author: Howell, J. Morcan, J.,

text:
    No. 4662.
    F. B. Fleitas v. Consolidated Association of the Planters of Louisiana et als.
    The main question in this case is, whether a plantation having been sold at the suit of a first mortgagee, the rights of subsequent mortgagees are transferred by the sale to the proceeds — said mortgages no longer subsisting. The decision of the controversy depends on the interpretation to be given to a clause m the concordat between certain debtors and their mortgage creditors of superior and inferior rank.
    This court thinks that said clause, which is recited at full length in the judgment, did not bind Mrs. Crozat, one of tbe first class creditors, in case of her foreclosing her mortgage to cause the property to be sold at one, two and three years, for the reason that her mortgage was not novated, that her note was not identified with the concordat, and that she could not proceed under it to enforce her mortgage rights. Her purpose, in becoming a party to the concordat, was simply to give certain debtors an opportunity to pay their debts to their creditors by suspending the enforcement of her mortgage to a given time, provided the interest on her claim was punctually paid. The failure to pay this interest, which was made the express condition of her agreement to the delay, released her from the obligation of said contract, and restored her to her full rights under her own act of mortgage.
    Mrs. Crozat did not expressly consent in the concordat, to enforce her first mortgage under the stipulations of that second act, and it is not to be presumed that sbe gave up more of her rights than were clearly and distinctively waived or relinquished. This act is to he construed liberally in her favor, as no one is presumed to give. She had therefore the right to seize and sell as she did. The sale and adjudication to the plaintiff having been legally made, and the price absorbed by the first and second mortgages, those created in favor of the third mortgagees are properly canceled, and the plaintiff can not be disturbed in the rights he has acquired.
    from the Superior District Court, parish of Orleans. HawTcins, J.

      W. W. King, Bemmes & Mott, for plaintiff and appellee. B. Her-mudez, B. W. Huntington and P. Oapdeville, for defendants and appellants; A. Pitot, for Mrs. Cruzat.
   Howell, J.

The plaintiff alleges that he purchased a certain plantation in the parish of St. Bernard at sheriff’s sale under executory process issued on a first mortgage, and that all other mortgages were canceled according to law; but the defendants have since asserted a subsequent mortgage as still subsisting, and have taken the initiatory steps to issue executory process on the same, thus casting a cloud on his title, impaired his credit as owner, and caused him damage.

He prays that they be injoined from suing out any writ of seizure and sale on their said pretended mortgage, and seizing his plantation, and also from asserting any right upon the same resulting from their said act of mortgage, and that they be condemned to pay damages.

The defendants filed exceptions to the jurisdiction, Us pendens, no cause of action, and insufficiency of averments for an injunction, which were overruled below and are not urged before us.

The answer sets up the existence and reality of their claims and mortgage, the nullity of the sale and adjudication to plaintiff, because by express stipulation in their act of mortgage, which they designate as a concordat between their debtors and all the creditors including the first mortgagee, the said plantation could not be sold for cash, as was done, but should have been sold on a credit of one, two and three years, and the further averment that the adjudication to plaintiff was made by deception, and for a trifling amount compared with the real value, and what the plaintiff had offered a short time before; and the defendants pray that the injunction be dissolved with damages, the adjudication to plaintiff be annulled, and their mortgage be recognized and enforced upon the said plantation. They also asked that the first mortgageor and the common debtors be made parties to this suit. The first mortgageor excepted to being made a party to this litigation, and the exception being overruled, she filed an answer. .There was a judgment perpetuating the injunction, declaring the rights of the subsequent mortgagees, are transferred by the sale to the proceeds and are no longer subsisting mortgages, from which the defendants appealed.

From the view we have taken of the case, and the questions presented by the principal parties, it is unnecessary to pass on the exceptions filed by the first mortgage creditor, under whose'mortgage the sale to plaintiff was made.

The decision .of the controversy depends on the interpretation of á clause of the concordat invoked by the defendants, as fixing the terms upon which the mortgaged property was to be sold — they contending that this stipulation applied to the first mortgage, while the plaintiff and Mrs. Crozat, the first mortgagee, contend that it applies only to the concordat, and that Mrs. Crozat expressly reserved all her mortgage rights, which she could enforce when the condition on which she became a party to the concordat, should fail or be violated.

The Villerés had two mortgage creditors, Mrs. Crozat and the succession of Olivier, whose claims bore eight per cent, interest, and several ordinary or chirographic creditors, the consolidated association and others. The above motgage creditors will be designated as first, and the others as third mortgage creditors. Being unable to pay their debts, the Villerés entered into a concordat before Ducatel, notary, with all their creditors, by which they were to pay the first mortgagees only five per cent, interest annually, and the ordinary debts without interest in seven annual installments, for which they executed their notes, and a third mortgage on their plantation to secure the payment thereof. The mortgage claims of Mrs. Crozat and the succession of Olivier were to remain the same without reduction of the principal during the seven years upon the payment of the five per cent, annually. In case of nonpayment of even one of the notes thus furnished (to these third mortgagees), their creditors could seize the property thereby mortgaged and sell it for the whole of their claims, on a credit of one, two and three years, with eight per cent, interest from the day of sale, in notes secured by mortgage on the property sold, and divided into coupons among said creditors.

The five per cent interest was paid for several years, but on subsequent failure of such payment, Mrs. Crozat caused her mortgage, executed before Boudousquié, notary, to be foreclosed, and the plaintiff became the purchaser at a little over two-thirds of the appraised value of the property

The clause of the concordat which has given rise to the dispute is as follows:

“The said Mr. Pierre Maspero, administrator of the succession of Mr. Cesaire Olivier, and the said Mrs. Widow Manuel Crozat do hereby declare, that in order to facilitate the said Messrs. Villeré and the said Mrs. Bodin in discharging themselves of their indebtedness to their creditors, they consent and acquiesce with all that is hereinbefore written, and to receive nothing during the said seven years, in deduction of the sums in principal due by mortgage to the succession of the said Cesaire Olivier, deceased, and to her, the said Mrs. Widow M. Crozat, but under the express condition that an annual interest of five per cent, upon said sums shall be paid to them, and that nothing in the present act shall be so construed as to prejudice in any manner their rights, privileges, mortgages, and actions resulting from the above described mortgage acts before Adolphe Boudousquié, which acts shall remain in full force and effect, without any derogation or innovation by virtue of these presents, except what has been hereinbefore stipulated in relation, to the delays granted, and to the mode of sale in case of seizure, they reserving to themselves, in case of seizure and sale before the expiration of the said seven years, the right of availing themselves of their rank of first mortgage creditors, to the extent of the sum of twelve thousand five hundred and ninety-seven dollars and welve cents for the succession of Mr. Cesaire Olivier, and of six thousand dollars for Mrs. Widow Manuel Crozat.”

The question is, did this bind Mrs. Crozat, in case of foreclosing her mortgage, to cause the property to be sold on a credit of one, two and three years? We think not; for the reason that her mortgage was not novated and her note was not identified with the concordat, and she could not proceed under it to enforce her mortgage rights. Her purpose, in becoming a party to the concordat, was simply to give the Villerés an opportunity to pay their debts, by suspending the enforcement of her mortgage for a given time, provided the. interest on her-claim was punctually paid. The failure to pay this interest, which was made the express condition of her agreement to the delay, would release her from the obligation of the said contract, and restore her toller full rights under her own act of mortgage.

The exceptions made and on which the defendants rely, refers to the only modification of her mortgage rights caused or affected by the said act, to wit, the granting of the delay and the mode of sale provided for by the act. In no other respect was her mortgage to be affected, and this depended on the condition she imposed, to wit, the payment of the interest. The delay was given during which the chirographiccreditors alone were to be paid the principal of their claims, and the mode of sale fixed was for their benefit, and to be resorted to by them alone, in ease any one of their notes should not be paid. It was only their notes that were identified with the said act, the payment of which alone could be enforced under the said act, and a sale made under it (the said act) was to be made on the credit specified; and the first mortgage creditors would, at such sale, “have the right of availing-themselves of their rank,” that is, have the right to assert their rank of first mortgage creditors, and require the payment of their claims in full. But if they should have the occasion so to do, and determine to enforce their own mortgages, they could do so only upon and by virtue of the act, which created their mortgage, and without any regard to the stipulations of the concordat, as there was no necessary connection between the different acts of mortgage in favor of the two different classes of creditors. It might well have happened, in the course of1 events, that the debtors would have paid the five per cent, interest on the prior or first mortgages, and failed to pay the last mortgage creditors. Under the concordat, so long as this five per cent, interest was. paid, the prior or first mortgage creditors had no right to sue or foreclose their mortgage. But if any one of the last mortgage creditors was not paid, he could proceed to sell, under the concordat, although the interest might be paid to the others; and in such contingency, the act (concordat) provided for the delay and terms on which the sale should be made under it, and the manner in which the prior mortgage rights would be preserved. This construction gives a reasonable interpretation and effect to every clause and portion of the act. As the sale did not take place under this last mortgage, the stipulations in it as to delays and terms of sale had no application to the case.

Mrs. Crozat did not expressly consent, in the concordat, to enforce her first mortgage under the stipulations of that act, and it is not to be presumed that she gave up more of her rights than were clearly and distinctly waived or relinquished. This act is to be construed liberally in her favor, as no one is easily presumed to give.

When the purpose and object of the concordat are considered, and all its stipulations, reservations and exceptions construed together, it is obvious, in our opinion, that Mrs. Crozat intended to be bound by any of its provisions, only on condition that the stipulated interest should be regularly paid, and that failing, she had the right to seize and sell as she did.

There is no evidence of deception or ill practices in the appraisement and sale of the property, and having been sold for two-thirds of the appraisement, we see no legal grounds for disturbing the adjudication; and the sale having been legally made, and the price being absorbed by the first and second mortgages, that in favor of the third mortgagees was properly canceled.

Judgment affirmed.

Morcan, J.,

dissenting. The prayer of the petition in this case is that an injunction may issue prohibiting and restraining the defendants, and each of them, their and each of their agents and attorneys from procuring or suing out any writ of seizure and sale, or other writ or order of seizure based on the mortgage which is recited in the petition, and from seizing thereunder the plantation which the plaintiff claims to own; and that they be injoined from asserting that they have any lien or mortgage on said property resulting from the act of mortgage aforesaid.

I do not think that a judge should have issued an injunction upon such a prayer. I understand that the courts of the State are open to all litigants who desire to assert their rights, and I do not understand, nor have I been informed, that there is any law in Louisiana which prevents a lawyer from bringing a suit for the protection of his clients’ interests. Here the door of justice is absolutely closed against the defendants, and their counsel’s lips are sealed.

I think it would have been time enough for the plaintiff to have defended himself when he was attacked. As well might a tenant be allowed to injoiu his landlord from collecting his rent, or the debtor of a promissory note injoin his creditor from suing him, or a furnisher of supplies which went to make a crop, from seizing the crop in order to secure his privilege.

Having issued the order, however, I think the judge should have maintained that portion of the exception filed by defendants, which specifically declared that the averments of the petition did not justify the issuing of the injunction which had been obtained, which exception I do not think was ever abandoned.

Coming to the merits, I think the case is equally clear for the defendants, in this, at least, that the injunction should have been dissolved. The Villerés (those I mean who are interested in this suit) had several creditors. They were divided into creditors with mortgage, of first and second rank, and chirographic creditors, and the mortgage creditors were also chirographic creditors. To pay their debts, which amounted to over $64,000, they owned two adjoining plantations. Their creditors, desiring to secure themselves, and to give to their debtors an opportunity of- acquitting themselves of their indebtedness, went before a notary public, on the fourteenth of December 1867, and accepted the proposition wkioh had been made to them, viz: that a delay of seven years be granted them, from the twelfth January 1867, in which they were to pay their debts, but without interest, in instalments of one-seventh yearly, for which they were to give, and clid give, their notes, secured by mortgage on their plantations. It was, however, expressly stipulated that the mortgage claims of Mrs. Manuel Crozat, and the succession of Mrs. Cesaire Olivier, amounting together to $18,597 12, which were already secured by mortgage on the aforesaid plantations, should remain the same, without annual reduction of the capital, but should bear interest at the rate of five per cent, per annum, payable annually, during the term of seven years. It was further agreed that in case of nonpayment of even one of the notes thus furnished by the Yillerés, their creditors were to have the right to sue for the reimbursement of the whole of their claims, and cause the property mortgaged to be sold in the manner following, to wit: one-fourth cash, and the balance at one, two and three years credit, with interest at the rate of eight per cent, per annum from the day of sale until final payment, in notes secured by mortgage on the property so sold, and divided into coupons, in order to facilitate the settlement with each of said creditors. And Pierre Maspero, representing the succession of Mr. Cesaire Olivier, and Mrs. Manuel Crozat specially declared that, in order to facilitate the Villerés and Mrs. Bodin in discharging their indebtedness to their creditors, they consented and acquiesced in what had been done, and agreed to receive nothing during the seven years therein stipulated, in deduction of the principal due to them, under the express condition, however, that an annual interest of five per cent, upon the amount due them should be paid, and that nothing in the act should be so construed as to prejudice in any manner their rights, privileges, mortgages and actions resulting from the mortgage acts passed before Boudousquié, under which their rights as creditors were determined, which acts were to remain in full force and effect, without any derogation or innovation, except what had “ been hereinbefore stipulated in relation to the delays granted, and to the mode of sale in case of seizure,’ they reserving to themselves, in case of seizure and sale before the expiration of the said seven years, the right of availing themselves of their rank of first mortgage creditors.” Now it seems to me that the intent of this act, and the language in which the intention is expressed is not susceptible of two interpretations. In case their interest was not paid they might proceed under their rank of first mortgage creditors, but the sale was to take place under the delays granted, which were one, two and three years credit.

Now, this agreement between the parties, was a contract, binding equally upon all who had signed it, and was the law between them. Notwithstanding which Mrs. Crozat, on the twentieth December 1869, without having previously endeavored to have the contract annulled, and without notice to any of her co-creditors, applied for and obtained an order of seizure and sale against the property, the terms being cash. At the sale Eleitas became the purchaser. To these proceedings the defendant was not a party. In the answer filed, after the exception was overruled, it is averred that the illegal and improper practices by which the sale was made were well known to the plaintiff, and were a fraud upon defendant’s rights, and a violation of their common act, all of which it is alleged was known to Eleitas.

Now, it is established that Mr. Eleitas knew of the act by which the creditors of the Yillerés had agreed to the terms upon which their property should be sold in case they did not comply with their engagements. He consulted counsel upon the subject who only advised him that he could purchase with safety after having received the assurances of the counsel, who represented the subsequent mortgage creditors, that they would consent to the sale being made for cash.

That the entirely irreproachable counsel representing these creditors believed he was acting in behalf of the true interest of all parties concerned, and that he believed he was authorized to give the assurances he did, I do not for a moment question. But whether he was so authorized is another matter, and I think, from the record that he was mistaken. Under all the circumstances of the case it seems to me clear that the injunction should have been dissolved, and the defendants left free to pursue their rights in such form as the law authorizes. I therefore dissent from the opinion of the majority.


source: Caselaw Access Project

author: Taliaferro, J.

license: Public Domain

text:
    No. 5061.
    O. K. Hawley, Public Administrator and his successor J. M. Wells v. Crescent City Bank et als.
    The defendants in injunction took a bill of exceptions to the permission granted by the court a qua, for an amended petition to be filed by the plaintiff on tbe ground that the suit being an injunction one, all the matters of law or fact that can justify tbe issuing of such process could and should only he alleged and pleaded in the original petition.
    The ruling of the court was correct. The amended petition contained only the plea of prescription which may he pleaded at any stage of the proceedings.
    The debts of the community during its existence are the debts of the husband. The property of the community is liable for the payment of them. Even more, the community property may be taken to pay debts of the husband contracted before the marriage. On the dissolution of the community by the death of the wife, the responsibility of the husband in regard to tbe community debts, is not changed. He is absolutely and personally bound for their payment; and his separate property may he seized and sold for their acquittal. ’
    Hence the community property justly oomes under bis control until tbe debts are paid. Before their final settlement and discharge, the heirs have no absolute rights to the property of the community that can be legally recognized. Their interest in it continues contingent and uncertain until, by the result of the final discharge of all the obligations of the community, it is known whether or not there are assets remaining for partition between the survivor aud the heirs of the deceased spouse.
    If the surviving husband has the right to control the community assets, and to administer them after his wife’s death, so as to make bona fide settlements of its debts, he has equally the right to waive or omit specific defenses to suits and indisputable claims.
    If, through fraud used hy a surviving husband in community to injure the heirs of the wife, he should sell or otherwise dispose of the community property, it would seem that they would have a remedy hy the provisions of art. 2404 of the Civil Code.
    In this case the husband had hy law the usufruct of the wife’s half of the community property, consisting of the undivided half of the lands seized by the judgment creditors, no partition of the community property having been made. Nevertheless, without opposition on the part of the surviving husband, the public administrator came forth and administered on what he styled the estate of the deceased wife, and injoined the sale of the community property seized by judgment creditors of the community, and which is subjected to the payment of their judgment. This proceeding is irregular and illegal, and the injunction must he dissolved with damages.
    from the Ninth Judicial District Court, parish of Eapides. Orsborn, J.

      M. Myan and Ii. J. Bowman, for plaintiffs and appellants, Manning, for defendants and appellees.
   Taliaferro, J.

This is an injunction suit. The Crescent City Bank and G. W. West having each a judgment against Whetty M. Sasser, issued executions and caused the undivided half of certain lands in the parish of Eapides to be seized by the sheriff. The public administrator injoined the sale on the ground that the lands seized belonged to the succession of Mrs. Drucilla Sasser, and that the judgments upon which the executions issued were in no way binding upon her estate, her representative never having been made a party to the judgments. The administrator amended his petition and pleaded the prescription of five years against the note upon which the judgment ■of the Crescent City Bank was rendered. Subsequently Whetty M. Sasser died. The court dissolved the injunction without damages, and the administrator of Mrs. Sasser appealed.

The counsel for the defendants in injunction took a bill of exceptions to the permission granted by the court for an amended petition to be filed by the plaintiffs, the suit being an injunction suit, and all the matters of law or fact that can justify the issuing such process •could and should be alleged and pleaded in the original petition. The amended petition was admitted. It contained only the plea of prescription, which maybe pleaded at any stage of the proceedings. We think the ruling of the court correct. Civil Code art. 3464.

The facts of this case are that the community of acquets between Whetty M. Sasser and his wife Drucilla, was dissolved by the death of the latter in 1864. Their property was all community property. Mrs. Sasser, as it appears, did not bring anything into the marriage, and never acquired anything by inheritance or donation during the long existence of the community of thirty years. A large amount of property seems to have been accumulated by the community, and against It there was a large amount of debts. It appears that other judgment •creditors of Sasser had, prior to the seizures made by the present defendants, seized under executions the lands belonging to the community, and their seizures were injoined by the administrator to the extent of an undivided half, on the ground that it was the property of the succession of Drucilla Sasser; the other half was sold and the proceeds satisfied the executions. The undivided half seized by the defendants in this suit, the plaintiff alleges, as before stated, is the property of Drucilla Sasser’s estate, under his administration as the public administrator of the parish.

The position assumed by the plaintiff’s counsel is, that the husband does not represent the community after its dissolution, and the heirs ■must be joined with him in a suit to affect their interest, and cites 1 Rob. 378, where it is laid down that “ the creditor who wishes to hold the heirs of the wife responsible for a community debt must join them in his suit against the husband, for the latter no longer represents a. community which is at an end.” The suit of the Crescent City Bank against Sasser was brought in 1867, four years after the death of his wife. The note sued on was due first of March, 1862, and petition and citation were served on the twenty-second of April, 1867. Sasser on the same day confessed judgment on the note, recognizing the mortgage as set forth in the petition. The other seizing creditor, West, obtained judgments against Sasser in 1865 and 1866.

It is argued that the husband has no power to create obligations against the community after its dissolution, and therefore his confession of judgment in the case of the Crescent City Bank has no effect against the heirs of Mrs. Sasser, for the authority to acknowledge a debt prescribed is equal to the authority to create a debt, referring to 1 An. 331. It is further contended that every debt of the community is a debt against the heirs of the wife, and these debts can not be fixed and adjudicated upon, without their being parties to the judicial proceedings which decree them; that the administrator of Mrs. Sasserhaving accepted her succession, it is bound for one-half the debts of the succession, and stands in relation to the bank claim as a joint debtor. Therefore it is held, her administrator has the right to plead prescription against it; that without citation or notice the judgment, of the bank against Sasser is not res adjudicata as to her.

These views of the relations that exist between the heirs of a deceased wife in community and the creditors of that community are not, we apprehend, in consonance with the laws and the general jurisprudence on tbe subject. The debts of the community during its existence are the debts of the husband. The property of the community is liable for the payment of them. Even more, the community property may be taken to pay debts of the husband contracted before the. marriage. 13 An. 396; 2 An. 226; 3 An. 615.

Upon the dissolution of the community by the death of the wife, the responsibility of the husband in regard to the community debts, is not changed. He is absolutely and personally bound for their payment; and his separate property may be seized and sold for their acquittal. This being his position, he has under his control the community property which by law is expressly subjected to the payment, of the community debts; and he has, so far as the final settlement and liquidation of the community after its dissolution is concerned, the same rights he had during its existence; because he is, after the dissolution, under the same responsibilities for the community debts that-he was before the dissolution. It is but just that he should have those powers. The community property continues under his control until the debts are paid. Until their final settlement and discharge, the heirs have no absolute rights to the property of the community that can be legally recognized. Their interest in it continues contingent and uncertain, until by the result of the final discharge of all the obligations of the community, it is known whether or not there are assets remaining for partition between the survivor and the heirs of the deceased spouse. This doctrine has been uniformly recognized in our jurisprudence as appears from a long chain of decisions. Among the more recent cases we refer to 24 An. 534 and 543 j 25 An. 379. We determined in a late case, Baird v. The Heirs of Sprowl, 23 An. 424, that “ a judgment creditor of the surviving spouse may seize and sell an asset of the community in satisfaction of his demand, and the heirs of the deceased partner can not set up their residuary rights by way of injunction.” In the case of Rush v. Warren 25 An. 314, we held that the surviving husband in community has the right to make bona fide settlements for the payment of debts of the community. If the surviving husband has the right to control the community assets, and to administer them after his wif^¡s death, so as to make bona fide settlements of its debts, he has equally the right to waive or omit specific defenses to suits, and indisputable claims.

In the case under consideration, Sasser, before the dissolution of the community, would have had the undoubted right to waive prescription and confess judgment, in the case of the debt against the community held by the Crescent City Bank. His right to do so after the dissolution, we think continued.

If, through fraud used by a surviving husband in community to injure the heirs of the wife, he should sell or otherwise dispose of the community property, it would seem that they would have a remedy by the provisions of article 2404 of the Civil Code.

The proceedings in this case, we think, rather anomalous. When they were commenced, Sasser, the survivor in community, was living and unmarried. He had by law the usufruct of the wife’s half of the community property, which consisted then of the undivided half of the lands seized by the judgment creditors, no partition of the community property ever having been made. Nevertheless, without opposition on the part of Sasser, the public administrator came forth and administers upon what he styles the estate of Drucilla Sasser, and injoins the sale of the community property seized by judgment creditors of the community and which is subjected to the payment of their judgments.

We think the proceedings irregular and illegal. The defendants, in their answer, prayed a dissolution of the injunction and for damages. We conclude, from the character of this case, the judgment of the lower court should be amended by decreeing damages.

It is therefore ordered that the judgment appealed from be amended by decreeing that O. K. Hawley, administrator, plaintiff in this case, pay the defendants the sum of one hundred and fifty dollars as damages for the wrongful suing out of the injunction and all costs of suit, and as thus amended that the judgment be affirmed.


author: Howell, J.

text:
    No. 5079.
    Harriet B. Kellogg et als. v. J. V. Duralde, Sheriff, et als.
    Under no circumstances, according to our jurisprudence, can the plaintiffs recover any portion of the community property, sold for a community debt, without first paying or rtendoring the amount by which they have been benefited from the price thereof paid by the purchaser.
    Appeal from the Fifth Judicial District Court, parish of West Baton Eouge. Posey, J.

      Fuqua & OalKhan, for plaintiffs and •appellants. Favrot & Lamon, for defendants and appellees.
   Howell, J.

This is a third opposition filed by the children and heirs of Mrs. E. M. Woods, deceased, wife of James C. Woods, in which they claim to be the owners, by inheritance from their mother, of an undivided half of the property seized and advertised for sale, at the suit of J. W. Burbridge & Co. v. James C. Woods. They claim that their rights to said property were determined by judgment in January, 1868, against their father, James C. Woods, and they ask, if the sale is persisted in by Burbridge & Co., it be annulled as to their said half.

Burbridge & Co. filed peremptory exceptions to the action of plaintiffs; that by averments and judgment in their suit they have accepted purely and simply the succession of their mother and made themselves responsible for the debts of the community, including that due exceptors, for which they obtained judgment in the sum of $18,138 20 with recognition of mortgage for $12,000, dating from nineteenth of April 1855, in which the mother of plaintiffs intervened and renounced; that they can not recover until they refund the prices applied to their debt; further, that at the sale of the property in question, the exceptors bought the same for $3648, which pro tanto was applied to the ■extinguishment of a debt due by the community, and that before plaintiffs can recover the half of said property they must pay or tender the sum by which they are thus benefited, and further that plaintiffs’ suit is an indirect attempt to attack collaterally exceptors’ judgment against James C. Woods, which is final and executory.

These exceptions were referred to the merits, and after answer filed, judgment was rendered dismissing the claim of third opponents and sustaining the sale to Burbridge & Co., from which the plaintiffs appealed.

The evidence seems very clear that at least the sum of $5269 87, the balance due to Burbridge & Co., on nineteenth April 1859, succeeding the death of Mrs. Woods, was a debt of the community which has never been settled, and that since that date the said indebtedness has not decreased, but has increased to about $18,000 under the management of the surviving spouse and usufructuary, and under no circumstances, according to our jurisprudence, can the plaintiffs recover any portion of the community property, sold for a community debt, without first paying or tendering the amount by which they have been benefited from the price thereof, paid by the purchaser. See 19 An. 508; 21 An. 383; 23 An. 424; 24 An. 324, 534; 25 An. 314, 379.

The pleadings and facts of the record, however, make it appear that their rights in this respect ought to be reserved.

It is therefore ordered that the judgment appealed from be amended by reserving plaintiffs’ right to assert their claim, if any they have, in a further action, and as thus amended it be affirmed. Costs of appeal to be paid by appellees.

Rehearing refused.


author: Ludeling, C. J.

text:
    No. 3070.
    Samuel Snodgrass v. Thomas A. Adams.
    "Whether Hatch, the United States collector of customs at the port of Hew Orleans, continued after secession to act in the same capacity as "before, or whether he became collector of customs for the Confederate States, it is not important to decide in this case, as in either event the payment of duties to him should protect from seizure the property on which the duties were paid.
    If Hatch had ceased to represent the Government of the United States and represented the Confederate States, the payment should protect the property, as it was made to the representative of a power which had the ability to enforce its demands, and which the United States, for the time being, were unable to resist.
    Appeal from the Sixth District Court, parish of Orleans. Oooley, J.

      George L. Bright and A. Be B. Hughes, for plaintiff and appellee. M. M. Gohen, for defendant and appellant.
   Ludeling, C. J.

This suit is for a partial rescission of a sale and to recover the sum paid for the property, of which the plaintiff says he was evicted.

It appears that on the seventh of February, 1862, the plaintiff bought from the defendant 375 rolls or 45,000 yards of India bagging.

This bagging was shipped from Calcutta to New Orleans on the ship Judith; the ship stranded on the coast of Cuba, in February 1861, and the cargo was abandoned to the insurance companies that had insured the property. The defendant, as the agent of said companies, paid the duties on the bagging when it was brought to New Orleans in May 1861, and in February 1862 he sold the bagging to the defendant.

The duties were paid to Mr. F. Hatch, who was the United States collector of customs at New Orleans when the ordinance of secession was adopted in Louisiana, and who continued to act under the authority of the State of Louisiana, and afterwards under that of the Confederate States.

The plaintiff withdrew from the bonded warehouse 30,600 yards of the bagging and sold it, and permitted 14,400 yards to remain in the warehouse until the Federal forces took possession of New Orleans, and the bagging of the plaintiff, undisposed of by him, was seized, as he alleges.

Whether Mr. Hatch continued to be the United States collector of customs after secession, or whether he was the collector of customs for the Confederate States, it is not important to decide, as in either event, we think, the payment of the duties should protect the property from seizure. If he had ceased to represent the Government of the United States and represented the Confederate States, the payment should protect the property, as it was made to the representative of a power, which had the ability to enforce its demands, and which the United States, for the time being, was unable to resist. Thorington v. Smith, 8 Wallace 10; United States v. Thomas, 16 Wallace —, and United States v. Rice, 4 Wheat. 250.

This view of the case renders it unnecessary to decide, whether or not there was warranty against eviction on account of nonpayment of duties, and whether or not the consideration of the contract was confederate money. The plea in reconvention is not well founded. It is therefore ordered and adjudged, that the judgment of the lower court be avoided, and that there be judgment in favor of the defendant and against the plaintiff, rejecting his demand with costs in both courts.

Rehearing refused.


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    No. 5092.
    Mary Hardy, for the use of her Child, v. John E. Stevenson.
    The plaintiff sues to have defendant declared the father of her illegitimate child and to have him condemned to pay a oertain sum for alimony to said child. One of the pleas of the defense is res judicata. There was a previous suit between the same parties for the same cause of action in the Fourth District Court, parish of Orleans, with the exception that, in said suit, the plaintiff had also claimed damages on the ground of injury done to her character and reputation by seduction. There was judgment, on the twenty-eighth of February, 1872, dismissing the claim of the minor child for alimony; and, on the next day, twenty-ninth of February, the claim of the mother for damages having come to trial before a jury, was dismissed on motion of her own counsel. The order of the twenty-eighth of February, dismissing the minor’s claim for alimony, was not entered on the minutes through clerical error, and in May following, on motion of defendant contradictorily with plaintiff, said judgment against the minor was entered nunc pro tunc.

    The court a qua had the power to make this correction of the minutes, and to cause the judgment to be properly entered, as was done. It follows that the plea of res judicata must be sustained.
    Appeal from the Fifth Judicial District Court, parish of Iberville. Oole, J.

      Barrow & Pope, for plaintiff and appellant; Breaux, Benner & Ball, for defendant and appellee.
   Taliaferro, J.

The plaintiff alleging the defendant to be the father of her illegitimate daughter, and that both the mother and daughter are without means for the support and education of the latter, sues the defendant in this action to have the daughter declared the illegitimate child of the defendant, and that lie be condemned to pay alimoDy for her usle at the rate of three hundred dollars, from the thirtieth of May, 1869, so long as her circumstances may require it. The defendant filed the plea of res judicata, and that failing, he further excepts peremptorily that the plaintiff can not recover alimony for the reason that, even if her allegations were true, which he denies, the daughter would be an adulterous bastard, as the defendant is a married man and was so at the time of the alleged intercourse with the alleged mother of said minor. He prays judgment in his favor and for general relief, etc.

The court a qua sustained the plea of res judicata and dismissed the suit.

The plaintiff appealed.^

The facts as we find them from the evidence are that, on the sixth of August, 1869, the plaintiff filed, a suit in the Fourth District Court, parish of Orleans, against the defendant for the same cause of action as set forth in the present suit, commenced in May, 1873, viz: for alimony for her child. In the first suit, however, she also prayed judgment on her own account for a large sum in damages arising from loss of character sustained by falling a victim to the arts and seduction of the defendant. In the original suit the defendant answered by general denial, and specially excepted to that part of the plaintiff’s petition which claimed alimony for the minor, on the same grounds that he now excepts in his suit. On the twenty-eighth of February, 1872, judgment was rendered on the exception sustaining it, and decreeing in favor of defendant, dismissing the claim of the minor child. On the next day, the defendant filed the plea of prescription in bar of the plaintiff’s claim on her individual account for damages. It appears from the minutes of the court that on the twenty-ninth of February, 1872, the case came on for trial and that a jury was empanelled for the purpose. At that juncture the plaintiff’s counsel presented papers addressed to them requesting that the suit be dismissed, which, on motion, was accordingly ordered by the court.

In May following, after this order discontinuing the suit was rendered on the twenty-ninth of February preceding, the defendant filed a motion to have the judgment entered on the minutes, that had been rendered on the exception to that part of the petition praying alimony for the minor, and which had been rendered on the twenty-eighth of February, 1872, of which, however,' at the time of filing this motion (on the seventeenth of May, 1872), no entry had been mad. on the minutes. Notice of this motion was given to the plaintiff’s counsel. On the twenty-fourth of May, trial was had on the motion and the-court ordered that the judgment rendered in the case on the twenty-eighth of February, 1872, omitted through clerical error from the-minutes of that day, be now entered nunc pro tunc.

The legal effect of this, judgment is the prominent inquiry in this-case. It is contended on the part of the defendant that the suit brought against him contains two distinct and separate demands independent of each other j that these demands might have been set up in two separate actions but were capable of being made the object of one suit; that a separate judgment might be rendered on each demand; that the omission of the clerk to enter upon his minutes of ■ the twenty-eighth of February the judgment rendered on that day on the exception to the minor’s claim, was a mere oversight and error, which the court had the authority afterwards to correct; that the subsequent judgment of dismissal had no bearing upon the judgment on the exception, and in no manner affected its validity. On the other hand, it is held that the action brought by the plaintiff against the defendant although containing two separate demands, is nevertheless but one action, one suit, and must be considered in its entirety; that the judgment said to have been rendered on the exception, formed only one proceeding in the case; that no entry upon the minutes of the court up to the twenty-ninth of February, the day the suit was dismissed, showed that any judgment had been rendered! upon the exception. The suit was dismissed on the twenty-ninth of' February; there was then an end of the case; it no longer existed;: there was no such case on the docket of the court. Therefore, it is. argued, that, on the twenty-fourth of May, nearly three months after the suit was dismissed, the order rendered to enter upon the minutes-of the court a judgment said to have been taken on the twenty-eighth, of February, is a nullity, for the reason that the judge could render no order nor take any action whatever in a case, not in court. He could not proceed to adjudicate upon matters no longer before him.

We think the court had the power to render the order nunc pro time on the seventeenth of May, making the proper correction of the minutes, and to cause the judgment sustaining the exception and dismissing the claim for alimony rendered on the twenty-eighth of February preceding, to be entered as of that date..

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

Rehearing refused.


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    No. 5104.
    Mrs. Evelyne M. May, wife et al., v. Ogden and Stansbrough, Executors.
    The question in this instance is, whether the plaintiffs, as the particular joint legatees of the Hapaca plantation, are entitled to the revenues thereof from February, 1867, to the time of its delivery to the said legatees in September, 1873.
    The second clause of article 1626, E. 0. C., provides that “ the particular Legatee can take-possession ot the thing bequeathed, or claim the proceeds or delivery thereof, only from the day the demand for the delivery was formed, according to the order herein before established, or from the day on which that delivery was voluntarily granted to him.”
    It is admitted in this case that there is no express bequest of the revenues accruing prior to delivery; that no judicial demand was made for the delivery; and that no corporeal delivery was made until September, 1873; but plaintiffs rely on what they call a constructive delivery by the executors. Even if it were conoeded that a constructive delivery can be made by executors, it is on record that by a special agreement with plaintiffs, the right to claim suoh constructive delivery was waived by said plaintiffs. It follows that under the provisions of the above cited article of the E. C. 0., the revenues of the Hapaoa plantation accruing before delivery, can not be successfully claimed by plaintiffs.
    Appeal from the Thirteenth Judicial District Court, parish of Tensas. Hough, J.

      F. D. Farrar & FI. H. Farrar, for plaintiffs and appellants. Mayo <& Spencer, for defendants and appellees.
   Howell, J.

This is a controversy between the executors of the last will of John Perkins, Sr., and two of the legatees under said will, in which the following two questions as stated by plaintiffs’ counsel, are involved, to wit:

First — The right of Mrs. Evelyne M. Perkins and Miss Evelyne Bailey, as the particular joint legatees of the “ Hapaoa plantation,” to the revenues thereof from February, 1867, to the time of its delivery to the said legatees in September, 1873.

Second — The right of Mrs. Evelyne Perkins to an amount of $2000-a year for ten years, to date from the testator’s death, which occurred on fifteenth of December, 1866.

The portions of the will (dated eleventh of June, 1866) directly involved, are the following:

V. I hereby give, devise and bequeath to Mrs. Evelyne M. Perkins, my daughter-in-law, and to her daughter, Miss Evelyne Bailey, and the whole to either surviving the other, at my death, all that! portion of the northwest corner of my Somerset estate, situated on Mill and Palmyra or Vidal Bayous, known as the Hapaca place, and now in lease-hold possession of Mr. Nolan, together with all the past and present due from said Nolan — said Hapaca being estimated at about two thousand acres.

“ XX. ***** That my executors shall have the management and control thereof (all the estate), until all my debts are paid and the legacies fully discharged, and that delivery shall be made to the legatees of the particular property devised and bequeathed to them as soon after my death as practicable. * * ** ****

Oodicil Second — I. Whereas in my said will I devised the Hapaca place, containing about two thousand acres, to my daughter-in-law, Mrs. Evelyne Perkins, I now impose as a condition of said devise that neither ferryboat nor bridge, from the mouth of Mill Bayou down its stream, shall be allowed or be permitted to be erected or established, if it can be legally prevented. I also give and bequeath to the said Mrs. Evelyne M. Perkins, in addition to what is- devised and bequeathed to her in my said will, the sum of 12000, to be paid to her annually for ten years, and to be a charge upon the Somerset estate— the Hapaca place being under lease which will not terminate until the end of that period.”

In other clauses of the will and codicils, the testator made many legacies of particular sums of money, some of which were imposed on the “ Somerset estate,” in Louisiana, described in the will as containing (including the “Hapaca place ”) seventeen thousand four hundred acres, some on the Oaks,” the testator’s residence in Mississippi,-and some not specially on any property. After the date of the will, and prior to the death of the testator, the lease to Nolan was canceled, and the rents, or a large portion thereof due by him, were relinquished or remitted.

The executors are of opinion that Mrs. Perkins is entitled to either the rents or the annuity, but not to both. They insist that, upon a proper construction of the will, she is entitled only to the annuity, and of this opinion was the judge a quo, from whose decree the plaintiffs have appealed.

There seems to be no serious contest as to the annuity which was adjudged to Mrs. Perkins, and we have only to determine whether or not she and her daughter are entitled to the revenues or rents of the Hapaca place,” bequeathed to them prior to its actual delivery.

The second clause-of article 1626, R. C. C., provides that “the particular legatee can take possession of the thing bequeathed, or claim the proceeds or delivery thereof, only from the day the demand for the delivery was formed, according to the order hereinbefore established, or from the day on which that delivery was voluntarily granted to him.”

It is admitted that there is no express bequest of the revenues accruing prior to delivery, that no judicial demand was made for the delivery, and that no corporeal delivery was made until September, 1873 ; but it is contended on behalf of plaintiffs that there was a constructive delivery- by the executors, resulting from their payment of the net revenues for several years.

In answer to this the executors invoke a notarial agreement, dated twenty-seventh of August, 1873, between themselves and the legatees, by which the delivery was made upon the terms and conditions, that the nature and extent of the rights of said legatees to the said revenues and annuity shall be left to a judicial decision in an amicable suit brought by said legatees for that purpose; and should the courts decide that said legatees are entitled to the said revenues, the amount of which is above fixed, or part thereof, then the payment already made as aforesaid shall be imputed thereto up to the amount, and any surplus of said payments shall be imputed to said annuity, in the event the court decides the said annuity to be due ; and should it be decided that said legatees are not entitled to said revenues in whole or in part, but are entitled to said annuity, then the amounts so paid by the executors shall be imputed to the extinction of said annuity.”

This clearly reserves the question of plaintiffs’ right to the revenues, and waives any claim as to a constructive delivery from the payments as made by the executors, admitting that a constructive delivery can be made by executors. It follows, we think, that the provisions of the above article must apply, and that the revenues accruing before delivery can not be successfully claimed by the plaintiffs. This conclusion is supported by the terms and clauses of the will and codicils when construed together, and the further fact that the donation of the “ Somerset estate,” including this particular land, by the testator to ■John Perkins, Jr., was not finally revoked until in April, 1871. There are money legacies imposed by the testator upon the “Somerset estate” in general terms, and the “ Somerset estate ” is described by-him as including the plantation bequeathed to the plaintiffs. The revenues of the whole estate were required to discharge those legacies, as those from the part so bequeathed to plaintiffs were not expressly exempted. And the legal title of the whole being in John Perkins, Jr., until judicially revoked in 1871, the delivery could not have been made to the plaintiffs prior thereto. We think the District Judge decided correctly.

Judgment affirmed.

Rehearing refused.


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    No. 2987.
    Mrs. Lydia A. Hardie v. St. Louis Mutual Life Insurance Company.
    ■Where the life policy of insurance contained the following clause: “ This policy shall not he* be binding on the company, until countersigned by J. R. Purvis, agent, of Hew Orleans, Louisiana, and the advance premium paid,” and where before the policy was received by the agent at Hew Orleans, John W. Hardie, the person intended to be insured, died j-Held — That the premium never having been paid, and the policy never countersigned by Jr R. Purvis, the agent, or delivered to the assured or his representative, the plaintiff can not recover.
    The obligation contracted by the company was a suspensive conditional obligation, depending upon future and uncertain events which have not happened.
    Appeal from the Seventh District Court, parish of Orleans. Oollens, J.

      Breaux, Benner & Ball, Randolph, Singleton <& Browne, for plaintiff and appellee. B. T. Merrick, Race & Roster, for defendant and appellant.
   Ludeling, C. J.

On the fourteenth day of September, 1867, John W. Hardie made application to the agent of the St. Louis Mutual Insurance Company, at New Orleans, to insure his life. The application contains the following clause: “Also, that the policy of assurance hereby applied for shall not be binding upon this company, until the. first premium, as stated therein, shall be received by said company, or some authorized agent thereof, during the life time of the person whose life is therein assured, such person being still in good assurable condition.”

This application was forwarded to the company at St. Louis for acceptance. It was accepted, and a policy was sent to the agent at New Orleans. This policy contains the following clause: “ This policy shall not be binding on the company, until countersigned by J. R. Purvis, agent, of New Orleans, Louisiana, and the advance premium paid.” Before the policy was received by the agent at New Orleans, John W. Hardie died.

The premium never was paid, nor was the policy countersigned by J.. R. Purvis, the agent, or delivered to the assured or his representatives.

The obligation contracted by the company was a suspensive conditional obligation, depending upon future and uncertain events which-have not happened. C. C. 2045.

Having come to this conclusion, after having given full effect to the oral evidence in the record, we deem it unnecessary to pass upon the bills of exception in the record.

It is therefore ordered and adjudged that the judgment of the lower court be annulled, and that there be judgment in favor of the defendant and against the plaintiff rejecting her demand, with costs of both-courts.

Rehearing refused.


author: Wyly, J.

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    No. 5059.
    John Clements, President of the Police Jury of the Parish of Rapides, v. Eugene R. Biossat et als.
    The plaintiíí has sued Eugene R. Biossat, parish treasurer, and the surein.es on his official bond for a certain amount of school funds, and has sought to enforce a legal mortgage for said amount against their property.
    The suit being on the bond of the parish treasurer, the prescription of five years pleaded in this court is not applicable.
    As the bond was recorded in the bond book, but not also in the mortgage book in the recorder’s office of the parish of Rapides, it did not operate as a mortgage on the property of the defendants, the principal and the sureties on said official bond.
    The delay of one, two and three months allowed to the delinquent parish treasurer, to pay over a certain amount of the school funds, was a mere indulgence, and it did not have the effect of discharging the sureties on his official bond, whose undertaking was to be security that he should account for and pay over all school funds coming into his hands as parish treasurer.
    Besides, the school board had no authority to make a contract having directly or indirectly for its object the discharge of the sureties on the bond of the parish treasurer.
    Furthermore, there was no consideration for the delay granted, and as a contract it was not obligatory.
    The court a qua did not err in refusing the defendants to prove by parol that they were entitled to a credit of §278, by reason of a voucher showing the fact. The voucher was the best evidence and should have been produced.
    There is no force in the objection that the official bond covered the acts of the treasurer only for two years. The funds in question came into the possession of Biossat while he was parish treasurer, and the sureties on his official bond are responsible on account of his failure to pay over the same, regardless of the fact whether his term of office has ceased or not. The conclusion is that the sureties are solidarity bound.
    Appeal from the Ninth Judicial District Court, parish of Rapides. Orsborn, J.

      Bobert P. Hunter, District Attorney pro tem., for plaintiff and appellant. M. Byan, for Biossat. T. 0. Hanning, for sureties, defendants and appellees.
   Wyly, J.

The plaintiff sued Eugene R. Biossat, parish treasurer, and the sureties on his official bond, for $12,059 80, school funds, and sought to enforce a legal mortgage for said amount against their property. The court, however, refused to recognize the mortgage, xejected the demand against the sureties, and gave judgment against Biossat, the delinquent treasurer, for $1419 70. Fr’om this judgment the plaintiff appealed.

As the defendant, Biossat, has neither appealed nor joined in plaintiff’s appeal, praying for a reduction of the judgment, his suggestion in his brief that there should be a further credit on the claim against him of $278, will not be noticed. The inquiry is not whether the judgment shall be reduced, but whether it shall be enlarged conform-ably to the pretensions of the appellant.

The suit being on the bond of the parish treasurer, the prescription of five years pleaded in this court is not applicable.

As the bond was recorded in the bond book, but not also in the mortgage book in the recorder’s office of the parish of Rapides, it did not operate as a mortgage on the property of the defendants, the principal and the sureties on said official bond.

The appellant concedes that the amount of the judgment ($1419 70) is all that is due him by Biossat, but he contends that the sureties on the bond should be condemned solidarily for said amount.

The sureties, however, insist that they are discharged from responsibility on the bond, because in tho settlement of thoir principal with the school board in 1871 an extension of time was granted him to pay the balance found to be due, without their assent thereto. It appears that at the settlement in September, 1871, the board found there was a balance of $1687 10 due by Biossat, the treasurer, “which amount he agrees to pay over to the school board in three installments, on fifteenth October, November and December, 1871, the whole of which was accepted by the board.”

We think this delay of one, two and three months allowed to the delinquent parish treasurer, was a mere indulgence, and it did not have the effect to discharge the sureties on his official bond, whose undertaking was to be security that Biossat would account for and pay over all school funds coming into his hands as parish treasurer. Besides, the school board had no authority to make a contract having directly or indirectly for its object the discharge of the sureties on the bond of the parish treasurer; they had authority to collect the school fund from him, but while the fund remained in his hands the school board could not exonerate from responsibility on account thereof either the treasurer or his sureties.

Furthermore, it will be observed there was no consideration for the delay granted, and as a contract it was not obligatory. We think the court did not err in refusing the defendants to prove by parol that they were entitled to a credit of $278, by reason of a voucher showing the fact. The voucher was the best evidence. The bill of exceptions to this ruling was not well taken.

There is no force in the objection that the official bond covered the acts of the treasurer only for two years. The funds in question came into the possession of Biossat while he was parish treasurer, and the sureties on his official bond are responsible on account of his failure to pay over the same, regardless of the fact whether his term of office has ceased or not. Our conclusion is that the sureties are solidarily bound.

It is therefore ordered that judgment herein be amended so as to condemn the sureties, Louis E. Texada, Joseph W. Texada and James R. Andrews m solido, for the amount of the judgment herein rendered against the defendant, Eugene R. Biossat, and as thus amended let the judgment appealed from be affirmed, appellees paying costs of appeal.

Rehearing refused.


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    No. 5009.
    William G. James v. John E. Breaux, Sheriff, et als.
    The plaintiff, a mere mortgagee, had no right to injoin the sale oí' the plantation of Bovard under executions in favor of a number of creditors of said Bovard, on the grounds substantially that the sheriff was proceeding irregularly and illegally in making said • sale. If the sale be null for illegality, it can not affect his rights; and if the sale be valid, his remedy would be by third oppositon to claim the proceeds of the sale.
    Appeal from the Seventh Judicial District Court, parish of Pointe . Coupee. Reives, J.

      Edward Phillips, for plaintiff and appellant. , T. Yoist, for defendants and appellees.
   Ludeling, C. J.

The plaintiff, claiming to have a mortgage upon-, the plantation of R. D. Bovard, injoined the sale of the plantation and. mules, carts, implements, etc., under executions in favor of a number of creditors of Bovard, on the grounds substantially that the sheriff was proceeding irregularly and illegally in making said sales. The judge a quo dissolved the injunction and the plaintiff has appealed.

We do not feel called on in this suit to decide whether or not a sugar plantation can be subdivided and sold, in accordance with the provisions of the statute enacted to carry into effect article 132 of the constitution. The plaintiff, a mere mortgagee, has no right to injoin the sale for such a cause. If the sale be null for illegality it can not affect his rights; and if the sale be valid, his remedy would be by third opposition to claim the proceeds of the sale. This court is burdened with too much business to undertake to decide hypothetical questions, however refined or interesting they may be.

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

Rehearing refused.


author: Morgan, J.

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    No. 3067.
    Charles E. Alter v. John McDougal et als.
    The written acknowledgment of a debt need not be stamped before it can be received in , evidence.
    In this instance, the note described in the act acknowledging the indebtedness, and interrupting prescription as alleged, is not sufficiently identified as the one sued upon— which it was incumbent on the plaintiff to show. It was his duty to make out his case positively and he has not done so.
    Appeal from the Fifth- District Court, parish of Orleans. Leaumont, J.

      W. W. King aud Gustavus Schmidt, for plaintiff and appellee. T. J. Semmes, for defendants and appellants.
   Morgan, J.

This is a suit on a promissory note. The defense is a general denial, and the prescription of five years.

Defendants objected to the introduction of the document B, signed by B. Arlington, Bennett & Co., in liquidation, per R. L. Arlington, dated sixteenth October, 1866, which acknowledges the indebtedness, and thus interrupts prescription, on the ground that the United States revenue stamp was not affixed thereto. We do not consider that the written acknowledgment of a debt must be stamped before it can be received in evidence. The opinion to which we have arrived upon another branch of the case renders it unnecessary for us to consider the other bills of exception.

The note described in the acknowledgment (B) is not identified as the note which is sued on. The note described in that document is said to be a note due on the first and fourth December, 1861, the date of the making of the note not being given, while the note sued on is dated fourth December, 1861, and is payable six months after date, say fourth June, 1862, and there is nothing in the record, except that the sum mentioned in each note is the same, to identify the one with the other. This we think it was incumbent upon the plaintiff to show. It was his duty to make out his case positively, and he has not done so.

It is therefore ordered, adjudged and decreed that the judgment of the District Court be avoided, annulled and reversed, and that there be judgment in favor of the defendants as in case of non-suit, plaintiff to pay the costs in both courts.

Rehearing refused.


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    No. 2962.
    John S. Wallis v. E. B. Wheelock.
    Ia March, 1862, plaintiff and defendant entered into a partnership by written agreement to transact an importing business, principally between certain ports in Europe and the Island of Cuba, the profits and losses to be equally divided between them. The partnership was to be continued during the year, and went into operation according to agreement. After the war, Wallis sues for one-half of a certain amount of partnership property remaining in the hands of defendant. The defense is that the contract was entered into with the view of running the blockade, and is therefore null and void, its object being an illicit one.
    This court sees nothing illicit in the contract itself, and does not think that the defendant has shown that the partnership funds which came into his hands were the result of an unlawful traffic.
    Appeal from the Sixth District Court, parish of Orleans. Cooley, J.

      Clarice & Bayne, for plaintiff and appellee. Randolph, Singleton & Browne, for defendant and appellant.
   Morgan, J.

In March, 1862, plaintiff and defendant entered into a partnership, the object of which was, according to their written agreement, “to transact an importing business, principally between ports in Europe and the Island of Cuba.” The partnership was to continue “ during the war.” They each contributed $32,538 94, and the profits and losses were to be divided equally between them. They appointed Charles Howard their agent, who went to Cuba and carried on their business. After the war Howard turned over to Wheelock over eight thousand dollars of the partnership property. Wallis sues him for his half. His answer is that the contract was entered into with the view of running the blockade; that this object was an illicit one, and is therefore null and void.

We see nothing illicit in the contract itself, and we do not think the -defendant has shown that the funds which came into his hands was the result of any unlawful traffic. Having partnership funds in his hands, he is bound to give to his partner the portion which he is -entitled to under their contract.

Judgment affirmed.

Rehearing refused.


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    No. 3034.
    W. B. Taylor v. Twenty-Five Bales of Cotton and Blakemore, Wooldridge & Co.
    In the State of Mississippi a sale of personal pioperty is complete "by tlie mere consent of tlie parties and without delivery.
    The cotton claimed in this case appears to have been made on Langley’s place, and Trible was to have an interest in the crop for his services — which interest was to be ascertained: by arbitration. Before the arbitration Langley sold to the plaintiff. That sale vested the title to the cotton in Taylor, the plaintiff, and the attempt of the agents of Trible to sell to the defendants was null, being the sale of the property of another.
    Appeal from the Seventh District Court, parish of Orleans. Oollens, J.

      Hays & Neiv, for plaintiff and appellant. (S'. JR. & 0. Ii. Walker, for defendants and appellees.
   Ludeling, C. J.

The plaintiff, claiming to be the owner of twenty-five bales of cotton in the possession of the defendants,, sequestered them.

Blakemore, Brothers & Co. appeared and bonded the cotton. In their answer they state that the cotton had been shipped to them by J. Hornthall & Co. for sale, for account of Hornthall & Co. and M. H. Blakemore. Hornthall & Co. and M. H. Blakemore also answered •and claimed to be the owners of the cotton by virtue of a purchase in Vicksburg, Mississippi, from Cowan & Co.

It appears from a bill of sale duly proved up, that the plaintiff bought the cotton from one W. S. Langley on the twenty-fourth of December, 1868.

From the evidence in the record it appears that in the State of Mississippi a sale of personal property is complete by the mere consent of the parties and without delivery. See also 13 Smedes & Marshall 611; 40 Miss. R. 472.

The cotton appears to have been made on Langley’s place, and that Trible was to have an interest in the crop for his services, which interest was to be ascertained by arbitration. Before the arbitration Langley sold to Taylor as aforesaid. There is no proof of bad faith or fraud on the part of Taylor. The sale by Langley vested the title to the cotton in Taylor; and the attempt of Cowan & Co., agents of Trible, to' sell it to the defendants, on the twenty-sixth of December, was null, being the sale of the property of another. C. C. 2452.

It is therefore ordered and adjudged that the judgment of the lower court be reversed, and that there be judgment in favor of the plaintiff for the said twenty-five bales of cotton, or the proceeds thereof, with five per cent, interest from the date of'the sale thereof, and costs of both courts.


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    No. 5042.
    Mrs. Corinne Tesson and Husband v. A. L. Gusman et als.
    One of the defendants, A. L. Gusman, moved in tlie court below to transfer tliis case to fcheCircuit Court of tli*-* United States, on tlio ground that he is a citizen of the State of New York, and has that right under the act of Congress approved July 27,1866, entitled “An Act for the removal of causes m certain cases from the State courts/’ It appears that there are two defendants besides the ono making the application for the removal and that they are citizens of this State.
    This being the case, it results from the decision of the Supreme Court of the United States, in the case of Coal Company v. Blatchford, 11 Wallace p. 172, that the case is not transferable under the said act of Congress.
    The copy of an act of sale of a lot and house under private signature, attested by two witnesses, one of whom made oath before the recorder of the parish of the execution thereof and of the signature of the parties to the act, is insufficient to prove title to real estate, but the original must bo produced and tbo signature proved, giving the privilege to the defendants of admitting or denying the genuineness of the signature. The evidence should have been rejected.
    Appeal from the Fifth Judicial District Court, parish of East Baton Rouge. Cole, J.

      Pavrot <& Damon, for plaintiff and appellee. 8. P. Greves and E. W. Robertson, for defendants and appellants.
   Taliaferro, J.

The plaintiff sues to be decreed owner of a bouse and lot in Baton Rouge, winch ‘die alleges was sold to her by the ancestor of the defendants. The answer is a general denial. The defendants aver that the plaintiff’s pretended act of sale was an act under private signature — that no price was paid for the property — that it remained in possession of the pretended vendor, who collected the revenues arising from it and paid the taxes upon it. They treat the plaintiff’s title as a mere simulation. There was judgment in the court below in favor of the plaintiff, and defendants have appealed.

There are several bills of exceptions forrad in the record. Two of these only we deem it important to examine. The first is to the refusal of the court on application of one of the defendants, A. L. Gusman, to transfer the cause for trial to the Circuit Court of the United States, on the ground that he is a citizen of the State of New York, and has the right under the act of Congress approved July 27, 1866, entited “ An Act for the removal of causes in certain cases from State courts,” to have the cause so removed. It appears there are two defendants beside the one making application for the removal and that they are citizens of this State. This being the case, it would appear from the decision of the Supreme Court of the United States in the case of Coal Company v. Blatchford, 11 Wallace p. 172, that the cause 1 is not transferable under the act of Congress referred to. The Supreme Court of the United States in that case say: “The eleventh section of the judiciary act of 1789 vests in the Circuit Courts original jurisdiction of suits of a civil nature at law and'in equity when the matter involved exceeds, exclusive of costs, the sum or value of five hundred dollars, in three classes of cases :

Mrst — When the United States are plaintiffs or petitioners.

Second — When an alien is a party; and

Third — When the suit is between a citizen of the State where the suit is brought and a citizen of another State. -

In the last two cases, the designation of the party plaintiff or defendant, is in the singular number, but the designation is intended to embrace all the persons who are on one side however numerous, so that each distinct interest must be represented by person, all of whom are entitled to sue, or are liable to be sued in the Federal courts. In other words, if there are several coplaintiffs the intention of the act is that each plaintiff must be competent to sue, and if there are several codefendants, each defendant must be liable to be sued, or the jurisdiction can not be entertained.” We think the application of the plaintiff, A. L. Gasman, for the removal of the cause was properly refused.

The other bill of exceptions was taken to the admission in evidence by the judge, of a certified copy of the act under private signature purporting to be a sale of the house and lot in controversy from Gabriel Gusman to Corinne Tesson. This instrument was attested by two witnesses, one of whom made oath before the recorder of the execution and signature of the parties to the act; and upon this proof it was admitted to record. The objection was that a copy of an act under private signature is insufficient to prove title to real estate, but that the original must be produced and the signature proved, giving the privilege to the defendants of admitting or denying the genuineness •of the signature. We think the objection was well taken and that the evidence should have been rejected. 5 New Series 175, Norwood & Oreen ; Civil Code 2240, 2241, 2248, 2249.

The case must be remanded for further proceedings.

It is therefore ordered that the judgment of the District Court be annulled and avoided and reversed.

It is further ordered that this case be remanded for further proceedings according to law, the plaintiff and appellee paying costs of this appeal.


text:
    No. 5054.
    E. J. Gay & Co. v. J. B. Lejeune, Jr., et als.
    After sequestration, a certain quantity of sugar and molasses was, by agreement of the parties, shipped by the sheriff to the firm of Da Silva & Weysham, the proceeds to be held by the sheriff subject to the decision of the court.
    By tins agreement the parties made the sheriff their agent, and as he was not therein acting in his official capacity, his sureties are not liable for his failure to pay over the money. But he is personally liable, as it is shown that he has several times promised to pay the plaintiff the sum claimed, and there being an obligation on which the promise is based, and the evidence being received without objection.
    APPEAL from the Seventh Judicial District Court, parish of Pointe Coupee. Hewes, J.
    Jury trial. W. W. Leake, for plaintiffs and appellants. E. Phillips and John Yoist, for defendants and appellees.
   Howell, J.

The plaintiffs sue the defendant, ex-sheriff, and his sureties for $952 32, with twenty per cent, as damages, it being the balance of the proceeds of certain sugar and molasses sequestered in two suits against one Bovard.

It is shown that after the property was sequestered, by agreement of the parties, it was shipped by the sheriff to the firm of Da Silva & Weysham, the proceeds to be held by the sheriff subject to the decision of the court; but that he never received the money. By this agreement the parties made the sheriff their agent, and as he was not therein acting in his official capacity, his sureties are not liable for his failure to pay over the money. But it is shown that he has several times promised to pay the plaintiffs the sum claimed, having already paid a part of the proceeds, and there being an obligation on which the promise is based, and the evidence being received without objection, he must be compelled to pay.

It is therefore ordered that the judgment of the lower court and the verdict of the jury be reversed and set aside as to the defendant, J. B. Lejeune, Jr., and that plaintiffs recover of him $952 32, with legal interest from judicial demand, with costs in both courts, and that in other respects the judgment be affirmed.


text:
    No. 5043.
    A. L. Gusman et als. v. Mrs. Zulme E. Hearsey and Husband.
    The partition of succession property, real and personal, can be considered a no more solemn act than the transfer of real property, which may be proved by propounding interrogatories, as was done in this case. Therefore the exception to the interrogatories was not well taken, on the ground, that no act of partition can be proven under the law, except by a written act of partition signed and executed by the parties thereto.
    The motion to strike out certain specified portions of defendant’s answers, as being irrelevant or contradictory, can not be maintained. The object of the interrogatories was to prove a partition by the mutual consent of all the heirs and to establish the consent of the respondent thereto. She certainly had the right to state all the conditions and stipulations of the alleged agreement and the facts upon which her refusal to complete it was based. Such matters are-closely linked to the facts on which she was interrogated, and they related to the very gist of the controversy. They are not irrelevant, nor are they con tradictory, when taken all together.
    The defendant objected to the introduction of her answers, until the plaintiffs had first shown that actual delivery of the property was made under the alleged partition. The answers were properly received. It is a rule of practice under our jurisprudence not to control a party in the order of introducing his proofs.
    The defendant's objection to any parol evidence to contradict her answers to interrogatories on facts and articles is well taken. The plaintiffs’ action is based on the theory that the partition is a transfer or exchange of real estate, and it is well settled that the answers of a party to interrogatories propounded to prove such transfer or exchange, can not be disproved or contradicted by parol.
    The same objection was properly taken to the parol evidence to prove a partition “ of the movable property mentioned in each lot/’ The partition of a succession is the division of the effects of which the succession is composed, among all the co-heirs, according to their respective rights. In this case the succession was oomposed of real and personal property and rights, and the partition was intended to be of such property and rights as a whole or mass, and the evidence should be that which is necessary in relation to real property.
    The proof of the delivery of real property is not confined to written or documentary evidence.
    Appeal from the Fifth Judicial District Court, parish of East Baton Rouge. Gole, J.

      Samuel P. Greves, A. S. Herron and F. W. Hoiertson, for plaintiffs and appellants. J. W. Burgess, James 0. Fuqua, Favrot & Lamon, for defendant and appellee.
   Howell, J.

This is a suit to enforce an alleged verbal partition of succession property by propounding interrogatories on facts and articles to the defendant, in order to prove by her testimony that the partition was effected.”

The defendant peremptorily excepted “that no act of partition can be proven under the law except by a written act of partition, signed and executed by the parties thereto.”

The partition of succession property, real and personal, can be considered a no more solemn act than the transfi r of real property, which may be proven by propounding interrogatories, as was done in this case. The exception was not well taken.

The plaintiffs moved to strike out specified portions of two of the answers of the defendant, on the grounds that they were not categori • cal answers to the questions propounded, and not closely linked to the facts on which she was questioned, and were contrary to her answers to other questions.

The portions objected to are statements of the defendant to the effect that the agreement to make a partition embraced the condition, that a portion of the property should be set aside and sold to pay the debts, including one with the interest thereon due to the respondeat, and that the other heirs insisted upon a reduction thereof and positively refused to allow the interest thereon, for which reason she declined to complete the partition. The object of the interrogatories was to prove a partition by the mutual consent of all the heirs and to establish the consent of the respondent thereto. She certainly had the right to state all the conditions and stipulations of the alleged agreement and to the facts upon which her refusal to complete it was based. Such matters are closely linked to the facts on which she was interrogated, and they related to the very gist of the controversy. Nor are they contradictory, when taken all together. The motion to strike out was therefore properly disallowed.

The defendant objected to the introduction of her answers until plaintiffs had first shown that actual delivery of the property was made under the alleged partition. It is a rule of practice under our jurisprudence not to control a party in the order of introducing his proofs, and the answers therefore were properly received when offered. She also objected to any parol evidence to contradict her answers to interrogatories on facts and articles. This objection was well taken.

The plaintiffs’ action is based on the theory that the partition is a transfer or exchange of real estate, and it is well settled that the answers of a party, to interrogatories propounded to prove such transfer or exchange, can not be disproved or contradicted by parol, R. C. C. 2275-76 ; 3 La. 1118; 10 R. 466; 4 An. 103; 10 An. 132; 12 An. 114.

The same objection was properly made to the parol evidence to prove a partition of the movable property mentioned in each lot. The partition of a succession is the division of the effects of which the succession is composed, among all the co-heirs, according to their respective rights.” R. C. C. 1293.

In this case the succession was composed of real and personal property and rights, and the partition was intended to be of such property and rights as a whole or mass, and the evidence should be that which is necessary in relation to real property. It is unnecessary to pass on the other bills of exceptions in the record, further than to remark that the proof of the delivery of real property is not confined to written or documentary evidence.

Referring to tlie answers of the defendant, upon which the controversy must be determined, we think the plaintiffs have not proven the alleged partition. Her statement that she declined to consummate it, because her co-heirs refused to allow and provide for the whole of her claim against the estate, which she says was a condition, shows that her consent was not given and that therefore there was not a voluntary partition. R. C. C. 1294.

Her answers do not satisfy us that the partition, which was attempted, was completed, nor does all the evidence, taken together, prove that she took possession of the property in the lot falling to her.

Judgment affirmed.

Rehearing refused.


author: Morgan, J. Howell, J.,

text:
    No. 5066.
    Edward. J. Gay v. W. L. Larimore.
    The question in this case is whether the sale, in consequence of which the note sued upon was given, is one per aversionem, or per acre.
    On the trial, the court below did not err in receiving in evidence, offered by plaintiff, the deeds of sale from the Citizens’ 'Bank and from the sheriff to him, in which the boundaries of the land sold were described.
    It follows from said evidence that it was the sale of a plantation described in certain deeds wherein the boundaries were specifically set forth, with all that was upon it, for a certain price for the whole. It was a sale per aversionem, and not per acre. The plaintiff purchased by boundaries and sold by boundaries within which the number of acres is described “as more or less.”
    Appeal from the Fifth Judicial District Court, parish of East Baton Rouge. Oole, J.

      Barrow & Pope, for plaintiff and appellee. Herron <& Gallaugher, Fuqua c6 OalKham, B. T. Posey, for defendant and appellant.
   Morgan, J.

The defense to the note sued on is that it was given in part payment of certain lands sold by plaintiff to defendant, and that the quantity he acquired is not the quantity he purchased. The question is whether the sale was one per aversionem, or whether it was a sale per acre.

Gay sold to Larimore the Mound Magnolia plantation, situated in the parish of East Baton Rouge, State of Louisiana, and composed of the following tracts of land, to wit:

First — A tract of land acquired by Gay by deed from the sheriff of the parish of East Baton Rouge, and adjudicated to him at sheriff’s sale on the fourth April, 1868, made under seizure in the suit of Edward J. Gay v. W. J. Sharp, Samuel Matthews and Leodocia Davis, wife of George W. Clarke, in the Fifth District Court of said parish, and containing nine hundred and eighty-five acres, more or less.

Second — The tract of land known as the Vail tract, adjoining the above described on the south, containing two hundred and forty acres, being the same acquired by said Gay from the Citizens’ Bank of Louisiana, together with one hundred and twelve shares of the capital stock of said bank, and all the buildings, fixtures and implements thereunto belonging or thereto attached, together with the growing crops thereon, as well as the hogs, mules, oxen, horses and sheep thereon, and all the corn and hay remaining on the place from the-crop of the previous year.

The sale was made for and in consideration of the sum and price of $35,000.

On the trial, plaintiff offered in evidence the deeds of sale from the-Citizens’ Bank and from the sheriff to him, in which the boundaries of the land sold were described. The court did not err in receiving them.

The sale was not, in our opinion, a sale of so many acres of land at so much per acre. It was the sale of a certain plantation described in certain deeds referred to in the act of purchase, wherein the boundaries were specifically set forth, with all that was upon it, for a certain price for the whole. It was' the sale of a plantation, and not of so-many acres of ground. Gay himself purchased by boundaries; he-sold by boundaries. The number of acres was described as “more or less” in the Mound Magnolia place. If he had sold more than was-mentioned in the deed, Larimore would have taken the surplus; if he sold less, Larimore must take less.

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

Howell, J.,

dissenting. The evidence in this case brings me to the conclusion that the parties contracted with reference to the quantity rather than to any fixed limits or boundaries of the land, and as the deficiency is considerably more than one-twentieth, I think the defendant is- entitled to a proportionate reduction of the price.

In the agreement of sale the titles of the vendor are not referred to> as containing a description with boundaries, but merely, I think, as the source of his acquisition, and at the time one of his titles was not recorded and no proper description of it is given; and in the notarial act of sale, executed some months afterwards in a distant city, the description is not made any more specific, except to give the date of and notary passing the said act, which was recorded after the said agreement.

The authorities cited^by the plaintiff do not, in my opinion, sustain his position.

I therefore dissent.

Rehearing refused.