text:
    No. 11,706.
    Robert Luckett, Under Tutor, vs. The Canadian and American Mortgage and Trust Company, Limited.
    An act importing a renunciation by a married woman o£ her paraphernal rights on the real property of her husband can not operate in favor of a mortgage creditor of her husband, unless same is evidenced by an authentic act, made in full compliance with the requirements of R. C. C. 129.
    A judgment rendered in a suit between a mortgage creditor of the husband and • his wife, based upon a compromise of her rights and an abandonment of her title, can not support the plea either of res adjudicate or estoppel, in a subsequent litigation with reference to the same subject matter between the same parties, their heirs or assigns.
    APPEAL from the Tenth Judicial District Court for the Parish of Rapides. Andrews, ./.

      Robert P. Hunter for Plaintiff, Appellee:
    Cites 34 An. 632; 30 An. 1157; 33 An. 1010; 45 An. 377; 40 An. 695; 36 An. 824, and quotes authorities to sustain the following propositions:
    A married woman can not, by any act of hers during the marriage, ratify a contract which is originally null.
    She is not bound by her confession of judgment.
    She can not be held for constructive fraud, but it must be actual fraud or deceit, otherwise it would be nothing more than an estoppel, which does not apply. Bisland vs. Provosty, 14 An. 173; McIntosh vs. Smith, 2 An. 556.
    Married women are of limited capacity to contract and.are forbidden to contract in certain cases. They are classed with minors. R. O. C. 1782, 1790.
    Whoever deals with a married woman is put on his guard and contracts at his own risk, and it is incumbent upon him to ascertain that her proper estate can be charged with the debt.
    A compromise with a married woman, induced by threats of a criminal prosecution against the husband is void. It is only when the husband is actually incarcerated that a married woman may bind herself to secure his release. Gibson vs. Hitchcock, 37 An. 213.

      J. O. Pugh and E. G. Hunter for Defendant, Appellant:
    The doctrine of estoppel and res judicata applicable to married women. 26 An. 289; 34 An. 1171; 37 An. 324, 684; 44 An. 584.
    The cases suggesting that a married woman is not estopped by her judicial admissions and confessions are based entirely upon the supposition that such confessions and admissions may have been induced by marital influence and coercion. 26 An. 289; 2 An. 343; 2 An. 440; 6 An. 121; 39 An. 705.
    Mere advice and request by the husband do not constitute the marital influence which impairs a married woman’s obligation. 15 An. 615; 37 An. 679; 44 An. 1103; C. C. 1749, 1559.
    Argued and submitted May 9, 1895.
    Opinion handed down June 3, 1895.
    Opinion refusing rehearing June 21, 1895.
   The opinion of the court was delivered by

Watkins, J.

This appeal presents the question of title vel non of the minor children and heirs of Mrs; Cornelia Luckett, née Petrovic, deceased wife of Henry P. Luckett, the question being collaterally raised by way of third opposition coupled with an injunction against the executory proceedings of the defendant, in the attempted foreclosure of a special mortgage, which was consented, during her lifetime, by her husband.

In the court below there was judgment in favor of the plaintiff, sustaining and perpetuating the injunction of the under-tutor, and the mortgage company has appealed.

The following is a brief summary of the salient facts about which there seems to be no question or dispute, viz.:

Mrs. Cornelia Luckett was owner by inheritance from her father, Charles A. Petrovic, and her mother, his wife, both deceased, of about eight hundred acres of land, situated in Grant parish, which she sold in 1881 to Lorenzo Smith for forty-six hundred dollars, and of that sum of money and its avails, her husband took possession and converted same to his own use.

On the 14th of February 1884, Henry P. Luckett presented himself before the clerk of the court and made oath to the fact that be had so received, used and converted the separate funds of his wife, and recognized her legal mortgage upon his real property as securing the restitution thereof — said affidavit being recorded at the time.

On the 8th of January, 1885, said Luckett appeared before a notary public and made, in due form of law, a dation en paiement oí a portion of the property known as the Ashbourn plantation, situated in the parish of Rapides, consisting of about eighteen hundred acres, about five hundred of which are involved in this suit, the aforesaid act being duly recorded in the book of conveyance records for the parish in which it was situated, on the 15th of January, 1885.

On the 22d of October, 1888, Henry P. Luckett executed a special mortgage upon the aforesaid plantation, in favor of the defendant company, to secure the loan of the sum of twenty-two hundred dollars.

On the 20th of October, 1888, just prior to the acceptance by the defendant of the mortgage, Mrs. Luckett executed the following relinquishment under private signature, to-wit:

“ Mrs. Nina Luckett, wife of H. P. Luckett, of Rapides parish, Louisiana, does hereby acknowledge full payment of a certain mortgage given by H. P. Luckett to her, the said Mrs. Nina Luckett; and the Olerk of the District Court of the parish of Rapides, Louisiana, is hereby requested to enter full satisfaction of said mortgage upon the records of his office. _ Said mortgage is dated 12th day of February, 1884, and was given to secure an indebtedness of five thousand dollars and interest, and is recorded in mortgage book CL,’ p. 45 et seq., of the records of Rapides parish, State of Louisiana. This release is made because the Canadian and American Mortgage and Trust Company, Limited, is about to make a loan to H. P. Luckett, and is unwilling to make it unless the fact of the payment of this mortgage be entered of record so as to show the lien of said company will be absolutely the first lien.” This refers to the same consideration as that stated in the affidavit of Henry P. Luckett, which was recorded on the 16th day of February, 1884, in Mortgage Book “ L,” p. 45.

This document was made part of the representation of Henry P. Luckett, upon which the company acted in granting the loan, which was to be secured by his mortgage when accepted; but it contains no mention of the subsequent dation en paiement.

Occasioned by his default, the mortgagee began foreclosure proeeedings via executiva in 1891, and caused the mortgaged premises to be seized. ■ This seizure was opposed and enjoined by Mrs. Cornelia Luckett, claiming ownership under the dation.

In answer the mortgage company put her claim at issue by a specific denial of the validity of her title, and a special averment that the dation was “ absolutely null, because the consideration therein named was never received by the husband.”

(The italics are ours.)

On the trial of that case there was judgment in favor of the company. Immediately thereafter time was granted to Luckett, and the executory proceedings were abandoned. Thereafter Mrs. Cornelia Luckett died — in March, 1893 — leaving her minor children as her heirs at law.

In March, 1894, another order of seizure was obtained, and the injunction now under consideration was procured and sale of the property was arrested.

We append the following résumé of the plaintiff’s present claims and pretensions, as it is well stated in the brief of defendant's counsel:

In the present case the plaintiffs, after reciting the dation en paiement to their mother, and the cancellation of the legal mortgage of date of October 20, 1888, substantially allege that on or about August, 1891, the said Canadian and American Mortgage and Trust Company, Limited, instituted proceedings to foreclose their mortgage against Henry P. Luckett, and had seized and advertised for sale her land, to pay, in part, said mortgage, when she obtained a writ of injunction restraining said sale of land as above described and asserting the ownership of1 same and the nullity of said mortgage ; whereupon the local agent of said Canadian and American Mortgage and Trust Company, Limited, and her said husband, by persuasion and the use of marital influence, and the said local agent, by threats against her said husband, induced her to withdraw and abandon her said suit, to dismiss her writ of injunction and to sign a document called a compromise, which was filed therein, containing acknowledgments as to the ownership of said property by her said husband, and other untrue acknowledgments and averments, which she signed in error and in ignorance of the fact that she could not bind herself and her property for her husband’s debts in that form and without any consideration whatever received or promised her, and all of which acts and proceedings petitioners now allege and charge were concocted and gotten up by the then local agent and attorney of the said Canadian and American Mortgage and Trust Company, Limited, to have the said Mrs. Cornelia Luekett bind herself for her husband’s debts, under the disguise of a compromise of a pending lawsuit, the said agent and attorney of the said Mortgage and Trust Company, Limited, and his said principa being then well aware of the justness of her ownership of the aforesaid property, and all of her rights in the premises, as above recited, and of the falsity of the averments and acknowledgments in said written act of compromise, which was prepared by him and is in his handwriting, and which he induced her to sign by threats of legal proceedings against her said husband for including her property in that mortgaged to the said Canadian and American Mortgage and Trust Company, Limited, and which said document she signed under duress and in error of fact and law, and without any consideration whatever, and under the marital influence and coercion of her said husband.”

They urge the nullity of the judgment rendered' in suit No. 3846 and the cancellation of the legal mortgage in favor of Mrs. Luekett. They pray for judgment in conformity with averments of the petitions.

With respect to the defendant’s pleas and answer to this suit counsel’s further statement is as follows, viz.:

“ By exception and answer the defendant plead the former judgment res adjudieata, and averred the absolute nullity of the dation en paiement as being without consideration, and specially denied that any influence was used by the attorneys representing the defendant upon the said Mrs. Cornelia Luekett, to induce her to sign the retraxit or statement, acknowledging the property to belong to her husband, and consenting that judgment should be rendered against her, and averring that it was done voluntarily by her on the advice of her attorneys, against whom these minors do not charge fraud nor want of authority.”

It was upon these issues that the ease went to trial, and judgment was pronounced in favor of the plaintiffs in the court below.

The decision of this case is, by both petition and answer, made to turn upon the effect that is to be attributed to the former suit and judgment, and to the wife’s renunciation, which antedates the loan and mortgage.

The pith and germ of the plaintiff’s averment are that the husband of their deceased mother, “ by persuasion and the use of marital influence, and the local agent of the defendant, by threats against the said husband, induced her to withdraw and abandon her said suit, to dismiss her writ of injunction, and sign a document called a compromise, which was -filed therein, containing acknowledgments of the ownership of said property by her said husband and other written acknowledgments and averments which she signed in error, and in ignorance of the fact that she could not bind herself or her property for her husband’s debts in that form, and without any consideration whatever received by or promised to her.”

Contra, the defendant’s answers and pleas are (1) res adjudieata; (2) the dation of plaintiff’s mother was without consideration; (3) the absence of any undue influence exercised by the company’s agent in procuring Mrs. Luckett’s renunciation; (4) that plaintiff’s mother, acting under the advice of her own counsel, gave her consent to the compromise of the suit voluntarily and willingly.

It is clear and undenied that Mrs. Luckett, the mother of the plaintiff, was primarily owner of a plantation in Grant parish, the proceeds of which, when sold, passed into the possession and use of her daughter’s husband, Henry P. Luckett. That, recognizing that fact, the latter made an acknowledgment of his indebtedness to his wife and caused the same to be duly recorded, as the law requires, so as to have effect as a legal mortgage, good as to strangers.

That the oath of Luckett places the aggregate amount of the pro - ceeds which he received at five thousand dollars.

That the statement of the dation en paiement is that he is justly and legally indebted to his wife in the sum of forty-six hundred dollars, which is made up of three different items of twenty-five hundred dollars, sixteen hundred dollars and five hundred dollars; and. that, in satisfaction thereof, he gave to her, .as a dation en paiement, five hundred acres of land, with the buildings and improvements thereon, at the valuation of four thousand dollars; anda small tract of woodland adjoining at the valuation of three hundred dollars— ten head of stock cattle and two mares, covering the remaining three hundred dollars, thus squaring their accounts.

That, on the 13th of June, 1883, previously, Henry P. Luckett acquired the entire Ashbourn plantation — a portion of which he gave in payment to his wife — containing eighteen hundred acres, for the consideration of four thousand dollars, receiving only a quit-claim deed therefor.

The truth of the recitals of these acts is not impeached by other evidence, and, for the purpose of the argument, they may be adopted as established facts.

This was the condition of things at the time Henry P. Luckett commenced negotiations with the mortgage company for a loan of twenty-two hundred dollars, predicated upon a proposed hypothecation of the entire Ashbourne plantation. Finding the wife’s legal mortgage interfered, her relinquishment thereof was procured — her title by elation en paiement having apparently escaped attention.

While the renunciation recites it to be a fact that Mrs. Luckett had received “ full payment ” of her mortgage claim against her husband, the fact is that she did not receive any part thereof; but this statement of the wife is not inconsistent with the truth, because she had received full payment through the instrumentality of the dation.

From the record it appears that no reference whatever is made in the act of mortgage to the defendant of the aforesaid renunciation. Mrs. Luckett did not sign the act making a formal renunciation of her right of mortgage or her right of property. There is no certificate of mortgages appended to the act, and no waiver of the production of such a certificate is found in the act. The mortgage covers and includes the entire Ashbourn plantation, the five hundred acres given to the wife, as well as the nine hundred belonging to the husband.

Counsel for the defendant insists that his client was a stranger to both the husband and the wife; that the husband had a legal right to liquidate the indebtedness of his wife, and that she had a legal right to acknowledge payment and direct the cancellation of her legal mortgage.

And at the same time he insists that the provisions of R. O. C. 129 do not apply, as they refer exclusively to a wife’s renunciation in favor of a third person; and, further, that they do not apply to the cancellation of a wife’s legal mortgage.

The renunciation of Mrs. Luckett was only an act under private signature authorized and signed by her husband out of the presence of the attesting witnesses; and it was neither filed for record nor recorded until three days subsequent to the execution of the mortgage to the defendant.

The record fails to disclose the cancellation of the wife’s mortgage at all, notwithstanding the relinquishment purports to have been made, “because the Canadian and American Mortgage and Trust Company, Limited, is about to make a loan to H. P. Luekett, and is unwilling to make it unless the fact of payment of this morgtage be entered of record, so as to show the lien of said company will be absolutely the first lien.”

But, for the present, leaving these facts out of view, as well as the question of her title in virtue of the dation en paiement, let us consider whether the renunciation, as such, was good in law, this being the necessary starting point in the controversy.

The general rule of law is that ‘ inscriptions of mortgage and privileges are erased by the consent of the parties interested and having capacity for that purpose; this consent is to be evidenced by a release, or by a receipt given on the records of the court,” etc. R. C. C. 3371.

But R. C. C.129 imposes the additional requirement that “married women above the age of twenty-one years shall have the right, with the consent of their husbands, by act passed before a notary public, to renounce in favor of third persons their matrimonial, dotal, paraphernal and other rights. The notary public, before receiving the signature of any married woman, shall detail in the act, and explain verbally to said married woman, out of the presence of her husband, the nature of her rights, and of the contract she agrees to.”

This is a new article, first incorporated in the Oode of 1870; and the same phraseology is found repeated in three sections of the Revised Statutes of 1870, viz.: 1717, 2518 and 3985.

The language of that article is general, that married women shall have the right to renounce in favor of third persons, their matrimonial, dotal, paraphernal and other rights, only upon compliance with the conditions therein imposed.

The law-maker has seen fit to impose these conditions and requirements, as a means of deoermining the capacity of a married woman to make a proposed renunciation; and it is the plain duty of this court to see that they have been complied with.

Succession of Montgomery, 44 An. 373, which is cited by the plaintiff’s counsel, seems to be exactly applicable.

The opening statement of the opinion is as follows, viz.:

“ This controversy involves the validity of a wife’s renunciation of her rights against her husband, and the property mortgaged by him, in favor of a creditor.”

The only question was as to the validity of the wife’s renunciation, which was contained in an authentic act of mortgage, wherein she intervened for the purpose of making the renunciation — the recital being that “ she appears and declares that she renounces unto G. Malin Davis her right of mortgage on said property, and agrees that his mortgage shall take precedence of hers; and she further declares that she has no other mortgage against her husband’s property, recorded or otherwise.”

After quoting R. C. C. 129 the court said:

“A simple reading of the provision forcibly impresses upon the mind that the law permits a renunciation, provided the notary before receiving the signature of the married woman explains to her verbally, out of the presence of her husband, (1) the nature of her rights and that of the contract she agrees to; (2) that he shows that he has done so, by detailing in the act the nature of the double information which he has thus given her, and that the formalities have been observed.

‘1 It is not until after he has so furnished her this information and thus detailed what has occurred that he has the authority to receive her signature.

“A compliance with those requirements is an essential condition precedent for the validity of such renunciations, which is exacted for the protection of married who are inopes eoneilii, in order to shield them as effectually as practicable from marital pressure, intimidation or captation.

“It is nothing but just that they should previously know their rights, just as they are, with precision; and it is for that purpose that the notary is required to inform them, and to show how he has done so, in order that they may not afterward deny that they had full knowledge of those rights, the whole, of course, to occur out of the presence of the husband.

“The proof which the law allows to show that those formalities have been gone through faithfully is the notary’s recital in the act.”

After citing various authorities applicable to similar provisions of law, the opinion concludes thus, viz.:

“ In the instant case it is more than apparent that the renunciation is fatally defective, not only because the notary did not detail the rights, the double information which is to be given by him to the wife, but also because it does not appear that what transpired, if anything of that kind did, occurred out of the presence of the husband.

“ A failure to have made a recital in the act of those .circumstances implies that the formalities were not fulfilled, and carries the nullity of the renunciation.”

In support of that interpretation of the Art. 129, the following authorities were cited, viz.: Succession of Gremillon, 4 An. 411; Ashford vs. Tibbitts, 11 An. 178; Locke vs. Lafitte, 28 An. 232; Pilcher vs. Schwartz, Id. 494.

The opinion is clear, logical and perfectly conclusive, and it applies, with much greater force, to the renunciation of the plaintiffs' mother. Because it is under private signature. It was signed at the request and in the presence of the husband, alone, and out of the presence even of the attesting witnesses. It was not attached to or made part of the act of mortgage. She did not appear and sign the act of mortgage, nor intervene therein for the purpose of having it recognized and authenticated.

There can be no doubt of the utter invalidity of the document which is relied upon as a renunciation by the plaintiffs’ mother of her right of legal mortgage on the property in controversy.

The next question for our consideration is the title of the plaintiffs’ mother, which she acquired by the dation en paiement from her husband, in satisfaction of her paraphernal claims, and secured by the aforesaid legal mortgage.

The paraphernal indebtedness of the wife being fully established, and her mortgage ascertained to have been in propriore vigore at the date her husband consented the special mortgage in favor of the defendant ; and it having the retroactive effect of a consideration for the dation en paiement — we must look elsewhere for a solution of the present controversy. And the defendant’s counsel points to the former litigation between their client and plaintiffs’ mother, as solving the difficulty — relying on the compromise settlement therein made as an estoppel, and the judgment therein rendered as constituting res adjudicaba.

But, on the other hand, the plaintiffs insist that their mother was, at the time, under the coverture of marriage, and that her mind was operated upon by undue marital influence and coercion which were exercised by her husband, as well as by the threats of a criminal prosecution against her husband, at the instance of the company— through which instrumentalities she was actuated in consenting to the apparent abandonment of her rights, and the rendition of a judgment against her in said litigation.

The following is the full text of the agreement on which the settlement of said suit and judgment was predicated, viz.:

“A.”

No. 3846. Mrs. Cornelia Luckett vs. Canadian and American Mortgage and Trust Company.}

Twelfth Judicial District Court, Parish of Rapides, State of Louisiana.

Now appears Mrs. Cornelia Luckett, wife, and her husband, Henry P. Luckett, who joins herein for the purpose of authorizing his said wife, who admits that the property claimed in her petition, filed in this injunction suit, is the property of her husband, H. P. Luckett; she moreover withdraws and disclaims any right, title and interest in said property, to-wit: A certain tract of land in the parish of Rapides, La., containing 500 acres of land, with all the buildings thereon, bounded above by lands of Mrs R. L. Luckett, below by lands of J. P. Hickman, and fronting on Red river; and also another tract of woodland adjoining the above tract, bounded north by Landry Baillio, south by lands of Sanford, and east by the first above described lands, and west by lands of the Bertrand plantation, being the identical property described in the dation in payment of Henry P, Luckett, husband to Cornelia Luckett, wife, dated 8th day of January, 1885, and recorded in Conveyance Book H, p. 493, on the 15th day of January, 1885. (Italics ours.) That when she signed the act of release, dated October 20, 1888, and recorded in Mortgage Book N, p. 284, she was then aware that her husband, Henry P. Luckett, was about to mortgage the “Ashborne” plantation, upon which he resides, on the right descending bank of Red river, about twelve miles above Alexandria, La., bounded on the north by Red river, on the south by lands of the estates of Willis Bonner, Wm. L. Sanford and James, on the east by lands of James P. Hickman and on the west by lands of Dr. R. L. Luckett, and he did mortgage the said plantation to the Canadian and American Mortgage Company, the above-described plantation containing 1400 acres of land, and that she executed her release to her husband in order that her husband might borrow the sum of twenty-two hundred dollars from the aforesaid mortgage company upon aforesaid plantation, as set forth in the act of mortgage executed by him in favor of the Canadian and American Mortgage Company for twenty-two hundred dollars, dated October 22, 1885, and recorded November 5, 1888, in Mortgage Book N, p. 285.

She now appears in open court and moves to dismiss her suit of injunction herein filed, and that the court shall render such judgment as her admissions warrant, and that judgment be rendered in favor of defendants so as to effect a settlement of the difference between the said company and her husband in this particular case. (Italics ours.)

(Signed) Cornelia Luckett.

Authorized by me, H. P. Luckett.

Rapides Parish, La., October 27, 1891.

Witnesses: John C. Ryan, John P. McGhee.

With reference to the influences that operated on the mind of Mrs_ Luckett in the execution of this instrument we have collated the following pertinent statements of the witnesses, and for convenience take the liberty of making extracts from the brief of defendant’s counsel, viz.:

“ R. J. Bowman, one of Mrs. Luckett’s attorneys, on a former trial testified substantially as follows: ‘ I never saw this document marked “A.” Captain White was associated with me in this business. After this injunction suit of Mrs. Luckett was brought, Mr. Daigre came to see me with some documents, consisting of an affidavit among other things, in which Mr. Luckett made an affidavit that this property was his own property; this affidavit was made preparatory to the mortgage which was given. Mr. Daigre also represented that the Canadian and American Mortgage and Trust Company would prosecute Mr, Luckett on this affidavit. I and Captain White considered over the matter, and we advised Mr. Luckett to have the suit withdrawn. We did not see Mrs. Luckett in reference to the withdrawal of the suit at all.’ Again: I have no recollection of seeing Mrs. Luckett in reference to the withdrawal of the suit. I knew the suit was dismissed, but did not know on what terms. Captain White and I abandoned the matter. It was the threat of the prosecution and the affidavit itself which caused us to give this advice to Mr. Luckett. I thought it placed him in a false position.’ On cross-examination he states that: ‘There was no representative of the company present when we advised Mr. Luckett to dismiss the suit.’

“ With reference to the same document Mr. Luckett, the husband and the person charged to have exercised violence and coercion, says: * Mr. Bowman told me, or advised me, to withdraw the injunction. I laid the ease before my wife and told her that I was in this position, and we persuaded her to sign this instrument. This paper was signed in Alexandria. I didn’t take it up home and have my wife to sign it up there. I had a talk with my wife about signing it at home before she came down. She didn’t want to do it, but she did it. I insisted upon her doing it. I told (her) of these threats and the whole circumstances.’

“On cross-examination the same witness says: ‘There was an agreement between the attorneys representing the company and myself by which I was to get an extension of time, and I paid their fees. This was not one of the reasons that induced me to request my wife to sign document marked “A.” The real reason was because I wanted to get a loan from Mr. Jones in another company. I told my wife that they threatened a criminal prosecution, and that was the reason she signed it. I was not fearful of a criminal prosecution, but I thought they might attempt something of the kind as they had threatened. Mr. Jones wrote me from Memphis that they could do that. Mr. Ryan or Mr. Daigre, one, hinted that they could do that. This is all in the nature of a threatened prosecution that I know of. I don’t know that I said anything to my wife about this threatened prosecution, but she was told of it. I don’t recollect having stated to her that if she didn’t sign it I would be prosecuted. I don’t know who did tell her, but some of the lawyers told her. I was not present when anybody told her.’ However, on final cross-examination the witness corrected the last statement by stating that he told his wife of the threatened prosecution prior to the signing of the document ‘A.’ ”

The testimony in behalf of the defendant is of a negative character, and we append the following extracts, viz.:

“H. L. Daigre testified in behalf of the defendant as follows: ‘ This document “A” is in my handwriting. I was not present when Mrs. Luckett signed it. I never had any conversation with Mrs. Luckett at all in regard to her signing that document. I used nó persuasion or threats of any kind, because I did not see her any; didn’t talk with her in relation to it. I drew up this document and it was submitted to Mr. Bowman and was afterward given to Mr. Ryan, the associate counsel in this case, and the next time I saw it, it was signed by Mrs. and Mr. Luckett. I used no undue influence, no threats and nothing to get this document signed.’ On cross-examination he further states that he did intimate to Mr. Bowman that if this injunction suit was pressed that the loan company would prosecute Mr. Luckett, and at the same time that the company had instructed him that no intimidation or coercion should be used, and for him not to do anything that would have that appearance. He finally states: ‘ I did not have a talk with Mr. Bowman as detailed by him.’ ”

Mr. Ryan, the other attorney, fully corroborated Mr. Daigre on this point, simply stating that he never used any threats or inducements to induce Mrs. Luckett to sign document “A.” That he never spoke about it.

But the statement of Mr. Bowman is direct and positive to the effect that “ it was the threat of the prosecution and the affidavit itself which caused us to give this advice to Mr. Luckett. I thought it placed him in a false position.”

Mr. Luckett’s statement is equally clear and emphatic that he told his wife of the position he was in, and “persuaded her to sign this instrument.” That he insisted upon her doing it. That he told her “ of these threats and the whole circumstances.” That he told her that he was “threatened with a criminal prosecution and that was the reason she signed it.”

Accepting the statements of Messrs. Daigre and Ryan as perfectly true, it is only to the effect that they did not see or speak with Mrs. Luckett on the subject; yet it is undoubtedly shown that Mr. Daigre, as attorney for the defendant, went to Mr. Bowman, as attorney for Mrs. Luckett, with the affidavit of H. P. Luckett; and it soon afterward transpired that the suit was withdrawn under the circumstances detailed in document “A.”

To our thinking, this evidence clearly establishes that Mrs. Luckett’s consent to the terms proposed in document “A” was obtained through the marital influence and coercion of her husband, and that in signing it her mind was influenced by the fear of a criminal prosecution being inaugurated against her husband, at the instance of the defendant. That while it does not appear from the evidence, that the defendant’s attorneys ever approached either H. P. Luekett or his wife on the subject, yet it is true that the evidence substantially shows that the defendant set in motion the causes which brought about the desired result.

In the light of all the evidence can this court affirm that document ii A” can serve as the foundation of a valid and binding judgment against a married woman; or, can operate as an equitable estoppel against the judicial assertion of her rights by her children ?

It is our deliberate opinion that we can not.

The agreement only purports to be an admission that the property she claimed was that of her husband; a withdrawal of her right, title and interest therein; and that her renunciation was intended to operate as an inducement to the defendant to make a loan to her husband. It does not express any consideration received. It is intrnded as an abandonment of her rights altogether. She has never been paid a tithe of the five thousand dollars her husband received and consumed. As the judgment of dismissal and disallowance of her title can not be any more substantial than the foundation on which it was based, the same is altogether unavailing either as res judicata or estoppel against the plaintiffs as heirs at law of Mrs. Luekett.

There is a total absence of proof that defendant’s loan inured to Mrs. Luckett’s benefit; on the contrary, the proof is perfectly clear that it did not inure to her benefit, or that of her separate property.

In our opinion there is scarcely any point of similitude between this ease, in point of fact, and the cases of Barron vs. Sollibellos, 26 An. 289; Thornhill vs. Bank, 34 An. 1171; Calhoun vs. Lane, 39 An. 594; Sentell vs. Stark, 37 An. 679. It is elementary that a married woman can not bind herself for her husband’s debts. R. O. O. 2398.

And in an early case which has been frequently since affirmed, it was very correctly held, that a married woman’s contract of surety-ship for her husband, on which a judgment has been rendered, remains liable to the same objection as the obnoxious obligation, as long as the disability lasts. Medart vs. Fansnatch, 15 An. 621.

And while it is true that our predecessors said that a married woman who had made a transaction and compromise of a lawsuit would “ not be listened to when saying that the debt sued on was her husband’s” (26 An. 289), and that statement .has been since-repeafced with apparent approval in some more recent cases; yet we find it difficult to perceive any reason why a greater degree of sanctity should attach to a compromise than to a confession of an ordinary judgment.

And it has often been held that a married woman is not estopped by a confession of judgment from the assertion of her rights. Strother vs. Hamlet, 28 An. 839; Dancy vs. Martin et al., 23 An. 323; Raines vs. Burbridge, 15 An. 628; Succession of Andrus, 34 An. 1065; Bowman vs. Kaufman, 30 An. 1024.

We are of the opinion that the dictum of that case is not in keeping with the jurisprudence of this court, and should be so modified as to conform thereto. It is quite evident that this is the clear import of our opinion in Calhoun vs. Lane when carefully considered, in the light of the facts therein developed.

On the question of estoppel against a married woman our jurisprudence is uniform and consistent.

In Harang vs. Blanc, 34 An. 632, the court puts the proposition thus:

“It is also urged that the plaintiff is estopped by reason of her conveyance to defendant, and the declarations made in the acts, from denying its truth and seeking its nullity. It has often been held that when a married women seeks to avoid an act, which she attacks upon the ground that it contravenes the provisions of a prohibitory law designed for her protection against a marital influence, that the principle of estoppel, as usually recognized, is not applicable.”

Chaffe vs. Oliver, 33 An. 1009, is to the same effect, citing: Bisland vs. Provosty, 14 An. 169; Leblanc vs. Bouchereau, 16 An. 11; Provost vs. Provost, 5 An. 572; McIntosh vs. Smith, 2 An. 756; Theriet & Baron vs. Voorhies, 12 An. 852; Cuny vs. Brown, 12 Rob. 84; Pascal vs. Sauvinet, 1 An. 428; Firemen’s Insurance Company of New Orleans vs. Julia Louisa Cross, 4 Rob. 508.

And we think it quite evident that the defendant’s case does not fall within the exception therein stated with respect to the “rights of innocent third persons who have acted in good faith upon the apparent validitv of such transactions.”

The authority of those adjudications was recently recognized in Vicknair vs. Trosclair, 45 An. 377.

Having made a careful examination and study of this case we are of the opinion that neither of the pleas of res adjudieata or estoppel are good.

Judgment affirmed.

On Application por Rehearing.

The application proceeds upon the theory that our opinion is, as charged, “ in direct conflict with previous adjudications of this court on the doctrine of res adjudieata and estoppel as applied to married women” — relying upon the following decisions, viz.:

Barron vs. Sollibellos, 26 An. 289; Thornhill vs. Bank, 34 An. 1176; Sentell vs. Stark, 37 An. 684; Calhoun vs. Lane, 39 An. 595.

All of those cases are particularly referred to in our opinion and commented upon, and we stated our conclusion to be that the expression employed in the Soliibellos case in which a married woman had made a transaction and compromise of a lawsuit that she would “ not be listened to when saying that the debt sued on was her husband’s ” was “ not in keeping with the jurisprudence of this court and should be so modified as to conform thereto.”

Though it is admitted in our opinion that the dictum of the court in that case had been “ since repeated with apparent approval.”

Recapitulating the substance of those decisions as they are related in the Calhoun case, it has pleased counsel to make this statement, viz.:

“Counsel for the plaintiff contended in this court, that on the question of the effect of judgments, as against married women, the jurisprudence left the matter in great doubt; and we submit that the decision in this case leaves the question in greater confusion than the prior adjudications of this court.”

Let us see how the matter stands.

Counsel’s position is, that our “opinion is in direct conflict with previous adjudications” — citing the cases — and in the next sentence he informs us that “the jurisprudence has left the matter in great doubt;” that is to say, the legal effect of judgments against married women are left in great doubt.

The plain significance of his proposition is, that the duty is imposed upon this court to relieve the question of the doubt in which it was involved.

Certainly the court is not a proper subject of criticism for having attempted to discharge this duty to the best of their ability.

Judging of his complaint by the quotations he has collated from the cases cited, the inference would naturally be, that he was willing to affirm the correctness of the proposition announced in the Sollibellos ease, that a married woman who had made a transaction and compromise “would not be listened to when saying that the debt sued on was that of her husband;” but, on the contrary, we find from his brief that his theory is, that “those cases go to the extent of holding (and this is the plain purpose of those decisions) that, as to matters of fact, married women are concluded by judgments, and the right to assail them is limited to cases where marital coercion and influence are charged, and satisfactorily proved.”

Now, if we mistake not, that is just exactly what our opinion holds. That was its definite purpose, and the object had in view_ As we understand the Sollibellos case, it is distinctly announced that a married woman who had made a transaction and compromise of a lawsuit “ would not be listened to when saying that the debt sued on was her husband’s,” and the plain meaning of that statement is that she would not be permitted to introduce proof of that fact.

While, just to the contrary, counsel’s proposition .is that married women are concluded by judgments, and “ the right to assail them is limited to cases when marital coercion and influence are charged and satisfactorily proved.”

It seems to us that the court is precisely in accord with counsel’s views; and, perfectly agreeing with him in the statement that the jurisprudence had left the matter in great doubt, we sought to relieve it thereof, and approved of the introduction of the proof of marital influence and coercion.

Having approved of the introduction of such evidence, and considered and found it sufficient to sustain the charge, our opinion declared, in the language-of counsel, that it had been “ satisfactorily proved.”

It is, therefore, clear that the difference between counsel and the eourtis not as to a question of law, but a question of fact. Was there satisfactory evidence of marital influence and coercion on the part of the husband? We thought so.

In our opinion we stated that there was no real distinction between a compromise and a confession of judgment, and that one was quite as much subject to attack as the other. To this view we still adhere, and in this view we understand counsel to concur.

Indeed, conceding that confessions of judgment are open to investigation by married women, on the charge of marital influence and coercion, for a stronger reason should a transaction and compromise be likewise open to investigation, be ause it is only by a fiction of law that the latter have attributed to them “ the authority of things adjudged.’-’

But the point upon which our opinion lays the greatest stress is that there was, in point of fact, no compromise of Mrs. Luckett’s rights. That she did not receive a single dollar of consideration for the supposed relinquishment of her paraphernal rights and claims. That, through the effect of the marital influence of her husband, she signed a renunciation, and that it was absolutely null and void, because it was not made according to the provisions of the Code. That she made a transaction and compromise of the suit against her subsequently, which was superinduced by the persuasion of her husband and his representations to the effect that he was threatened with a criminal prosecution by the mortgage company.

Our examination of the record and the law, since this application was filed, has only served to strengthen and confirm us in the conclusions at which we had at first arrived.


source: Caselaw Access Project

author: Watkins, J. Breaux, J.

license: Public Domain

text:
    No. 11,854.
    Heirs and Legal Representatives of James B. Williams, Deceased, vs. W. P. Douglass, Sheriff, et al.
    In case there is a stipulation in act of mortgage to the effect that if any one of the series of notes thereby secured shall not be promptly paid at its maturity, all of the remaining instalments shall at once become due and exigible at the option of the Holder and mortgagee; and he, in the exercise of that option, shall precipitate the maturity of the notes not due, by executory proceedings against the mortgaged property, he must, necessarily, incur the corresponding obligation by remitting all of the capitalized and unearned interest, at the date of default of the debtor and mortgagor.
    The alleged prematurity of the issuance of a writ of seizure and sale is no ground for injunction, injury, or at least a well-grounded apprehension of it, can alone justify a resort to the extraordinary writ of injunction against a writ of seizure and sale.
    APPEAL from the Fifth Judicial District Court for the Parish of Morehouse. Potts, J.

      O. J. Boatner and E. T. Lamkin (or Plaintiffs, Appellants.

      J. O. Pugh, Bussey & Naff and H. R. Boyd, for Defendants Appellees.
    Argued and submitted June 13, 1895.
    Opinion handed down June 21, 1895.
    Opinion refusing rehearing June 29, 1895.
   The opinion of the court was delivered by

Watkins, J.

As there is a very clear presentation of plaintiffs’ case made in the briefs of their counsel we extract and reproduce it thus:

“ Plaintiffs, the widow and heirs of the late Jas. B. Williams, of Morehouse parish, obtained in this case a writ of injunction against the execution by executory process of an act of mortgage executed by decedent on the 24th of May, 1889, in favor of Francis Smith, Caldwell & Co., to secure the payment of the following promissory notes:

One for two thousand six hundred and four dollars and eighty cents, due January 1, 1890.

One for three thousand six hundred and fifty dollars, due January 1, 1891.

One for four thousand five hundred and fifty dollars, due Jannary 1, 1892.

One for four thousand three hundred and fifty dollars, due January 1, 1893.

One for four thousand one hundred and fifty dollars, due January 1, 1894.

One for three thousand nine hundred and fifty dollars, due January 1, 1895.

One for three thousand seven hundred and fifty dollars, due January 1, 1896.

One for four thousand and fifty dollars, due January 1, 1897.

One for four thousand three hundred dollars, due January 1, 1898.

One for eleven thousand dollars, due January 1, 1899.

Amounting in the aggregate to the sum of forty-six thousand three hundred and fifty-four dollars and eighty cents, and all bearing interest at eight per cent, per annum after their respective maturities.

The injunction was obtained on the following grounds:

First. That although the mortgagors executed a mortgage to secure the payment of notes amounting in the aggregate to forty-six thousand three hundred and fifty-four dollars and eighty cents, they only received, and the mortgage so recites, the sum of twenty-seven thousand five hundred dollars. That the difference between the sum received and the face of the notes represents usurious interest, which was added to the amount received and included in the face of the notes. That the said sum of eighteen thousand eight hundred and fifty-four dollars and eighty cents, being the excess of the amount actually received, and which is composed of usurious interest charges on the sum received, is not due by them, because this amount could only be due at the expiration of the period of time for which said loan was obtained, and the same was to run, viz.: the 1st of January, 1899. That the note due January 1, 1890, amounting to two thousand six hundred and four dollars and eighty cents; that due January 1, 1891, amounting to two thousand eight hundred and fifty dollars, and that due January 1, 1892, amounting to four thousand five hundred and fifty dollars, were paid in full at their respective maturities, and that a payment of two thousand four hundred and three dollars in addition was made by Mrs. Williams on the note due January 1, L893, making an aggregate of thirteen thousand two hundred and seven dollars and eighty cents which has been paid on account of said loan of twenty-seven thousand five hundred dollars, and which would leave a balance of only about fourteen thousand dollars unpaid, excluding the amount mentioned as usurious interest.

It is further alleged that the deceased, James B. Williams, only acknowledged an indebtedness of twenty-seven thousand five hundred dollars to Francis Smith, Caldwell & Co., in the act of mortgage, although the notes executed and paraphed and identified with the same represent the aggregate sum of forty-six thousand three hundred and fifty-four dollars and eighty cents, which difference, as above set forth, is interest anticipated on the principal sum advanced, supposing and calculating that said loan would continue or run until January 1,1899, and that by reason of the alleged transfer and assignment of said notes and mortgage by the mortgagees, Francis Smith, Caldwell & Co., to the American Freehold Land Mortgage Company, of London, Limited, and the latter’s procedure and attempt to terminate the time for which said loan was made and was to mature, the aforesaid sum, and which is interest on the sum of twenty-seven thousand five hundred dollars, less the sum paid and herein-above set forth, and up to the date of said payments since the maturity of the note due January 1, 1898, and upon which a payment was made of two thousand four hundred and three dollars.

Second. It is further alleged that the stipulations in the act of mortgage made May 24, 1898, are exceedingly onerous and of no effect and not binding, because the promise to pay interest on interest is contrary to law and vitiates the obligation.

Third, That the defendant mortgage company has proceeded under executory process against the plantations covered by the mortgage, to sell property which is not covered by the mortgage, nor rendered immovable by destination, viz.: One bay horse colt, which is not a work animal, and one thousand bushels of corn, which has been gathered, and four tons of hay, also gathered, neither of which are in any manner attached to the mortgage premises nor immovable by destination.

Fourth. That the writ of seizure and sale was prematurely issued, and before the expiration of the legal delays given to the mortgage debtors. That the writ of seizure and sale itself directs the seizure of the property above described, which is not covered by the act of mortgage, and finally, that no demand of payment of the notes was ever made at the office of Francis Smith, Caldwell & Co., at San Antonio, Tex., where the same were made payable.

An injnnction was prayed for and obtained, and five hundred dollars general damages and six hundred dollars special damages, coun - sel fees, claimed for the wrongful issuance of the writ of seizure and sale, and the illegal execution thereof.

The defendant appeared and pleaded an exception of no cause of action, which the District Judge sustained, except as to the allegation that property had been seized under the writ not mentioned in the act of mortgage, and not immovable by destination. Upon this point he held that plaintiffs were entitled to introduce evidence.

The defendant thereupon answered to so much of plaintiffs’ petition as is not covered by the decree of the court on the exception of no cause of action. Averred that the corn and all the live stock that was seized under the writ enjoined were placed on, or were raised on the plantation, seized for the purpose of being used thereon, and were necessary for the use of said plantation, and were immovable by destination, and subject to seizure under the writ. They denied that plaintiffs were in any manner damaged by the seizure in this suit.

Wherefore, they pray for dissolution of the injunction, and that the sale be proceeded with. •

The foregoing statement admits and shows that the notes falling due on January 1, 1890; January 1, 1891; January, 1892, respectively, were fully and completely paid and discharged; and that the sum of 82403 was paid on the note which went to maturity on the 1st of January, 1893.

Consequently we are dealing with the balance due on the fourth note last mentioned, and the remaining six of the series.

The following is the synopsis of the claims of the plaintiffs, as they are appreciated by defendant’s counsel and reproduced in their brief, and which we have extracted therefrom for convenient reference, viz.:

While the petition is vague and indefinite, possibly by liberal construction it may be said to present the following propositions:

1. That it is not lawful to charge more than 8 per cent, interest, even though the same be capitalized in the face of the notes.

2. That a negotiable promissory note, due in the future, according to its terms, can not be brought to an immediate maturity through a clause in the mortgage given to secure the same, authorizing the mortgagee to declare the debt or note due upon default of any of the provisions found in the mortgage.

3. That corn, hay, fodder and other things of a like nature are not immovable, and not therefore subject to the mortgage.

4. That the advertisement of property, seized under executory process, on the day of seizure, even though thirty-three clear days intervened between the seizure and sale, is illegal, null and void.

5. That where the defendant resides more than twenty miles from the judge granting the order, a seizure made on the fourth day before notice is absolutely null and void, even though the required time has elapsed before the advertisement, and where the record shows that the defendants have appealed from the order of seizure and sale.

6. That a presentment of the mortgage notes and a demand of payment at the place designated must be alleged and proved to authorize executory process.

On the trial proof was administered, a judgment rendered dissolving plaintiffs’ injunction, without damages, requiring the sheriff to proceed with the sale, and from that judgment the plaintiffs’ have appealed.

I.

The plaintiffs’ first and principal proposition is that of the aggregate sum of forty-six thousand three hundred and fifty-four dollars and eighty cents, represented by the ten notes, only twenty-seven thousand five hundred dollars were borrowed of the mortgagees— the difference of eighteen thousand eight hundred and fifty-four dollars and eighty cents representing illegal and usurious interest. That having paid thirteen thousand two hundred and seven dollars and eighty cents, this amount is to be credited upon the said principal, and that after making this credit there will remain a balance of only fourteen thousand dollars due.

This statement is erroneous and inconsistent with the plaintiffs’ own admissions to the effect that the three first and a portion of the fourth notes had been paid by the mortgagor prior to the issuance of the order of seizure and sale. Consequently there was no payment on account of the principal as a whole. On the 10th of December, 1894, when the order of seizure was given, there was but the balance of one note due — six not being yet due. And the contention of the mortgage company is that by a clause in the act of mortgage the default of the mortgagor in making payment of any one of the notes matured and precipitated the payment of the remainder of the series.

As none of the series bear interest until after maturity the controversy is practically narrowed to whether the defendant is entitled to the entire amount of the notes as they stand, or the plaintiffs to have the unearned interest deducted therefrom.

The clause in the act of mortgage which is relied upon is as fol - lows, viz.:

“If said notes hereby secured or any one of them are not promptly paid at maturity, then all the notes remaining unpaid at the time of such default and all interest thereon shall at the option of the holders of said notes and without any notice to appearers be deemed due and payable.”

The question of law thereon raised is whether a negotiable promissory note which on its face is due in the future can be brought to its maturity through stipulation in the act of mortgage securing its payment, that a simple default in discharging a prior number of the series shall have that effect.

This is quite an unfamiliar proposition to this court, though it and other analogous questions have been decided frequently in other jurisdictions. We will content ourselves with citing the-authorities pro and eon, without aligning the court on either side of the controversy for the present: Railway Company vs. Sprague, 103 U. S. 761; White vs. Miller, 52 Minn. 367; McClelland vs. Bishop, 42 Ohio St. 113; Wheeler Manufacturing Company vs. Howard, 28 Fed. Rep. 74; Noell vs. Gaines, 68 Mo. 649; Chambers vs. Marks, 93 Ala. 412; Jones on Mortgages, Secs. 1179, 1175; Buchanon vs. Insurance Company, 96 Ind. 510; Gregory vs. Marks, 8 Bissel, 44; 62 Mo. 440; 14 Wis. 313; 73 Texas, 196.

In our own reports we find some adjudications which have some bearing on the question, though not decisive of it, and amongst the. number we cite the following, viz.: Broadwell vs. Rodrigues, 18 An. 77; Ives and Wife vs. Citizens Bank, 15 An. 83; McDonald vs. Gailand, 7 An. 143; LeBlanc vs. Dubroca, 6 An. 362; Mullen vs. Harding, 12 An. 271; Jouet vs. Mortimer, 29 An. 206; New Orleans Mutual Insurance Company vs. Bagley, 19 An. 89; Martin vs. Sheriff, 37 An. 766; Blanks vs. Insurance Company, 36 An. 599; Edson vs. Insurance Company, 35 An. 353.

But possibly the strongest and most pertinent case is that of Stein vs. Brunner, 42 An. 722. For the statement that this court had been relieved from the necessity of deciding whether the maturity of the notes not due can be thus precipitated, in so far as the capital is concerned, we refer to the following extract from the brief of plaintiffs’ counsel; viz.:

“Certainly it can not be contended that the mortgagees have not the right to avail themselves of the option reserved in the contract, 1 that said notes, and without any notice to the makers, shall be. deemed due and payable; ’ but the right to demand the return of the money which they have loaned, with the interest stipulated thereon, certainly should not be so construed as to give them the right of speculation, on their unfortunate debtors, and to demand, not only the instant return of the loan, but the payment of interest upon it for four years thereafter.”

On the contrary, it is insisted, on the part of the mortgage company, that it is entitled to the full value of all the unpaid notes, with eight per cent, interest after maturity, because it is “ so nominated in the bond,” and that neither allegation nor proof is admissible against that right.

It appears, from the declaration in the mortgage, that the mortgagor confessed himself indebted to the mortgage company in the sum of only twenty-seven thousand five hundred dollars, and with this statement it closely coupled this admission, viz.:

‘ ‘ Which said indebtedness is for money loaned, and is evidenced by the following promissory notes bearing even date herewith.”

Then follows an enumeration of the notes — ten in number — as above related, aggregating forty-six thousand three hundred and fifty-four dollars and eighty cents in amount. That is face value.

And the act further declares that each of said notes “ bears interest at the rate of eight per cent, per annum after maturity, and ten percent, attorney’s fees,” etc.-

It seems to us, without further evidence than this, that the conclusion is irresistible, that the notes thus described carry an interest that was computed on the face of the notes and capitalized — thus exhibiting on the face of the hypothecation an indebtedness larger than that actually loaned, by eighteen thousand eight hundred and fifty-four dollars and eighty cents.

Not only is this true, but we are of opinion that the clause in the contract relied upon by the mortgage company, for the precipitation of the notes not due, carries a similar significance.

For it declares that “if said notes hereby secured, or any one of them, are not promptly paid at maturity, then all of the notes remaining unpaid at the time of such default, and all interest thereon, shall, at the option of the holder * * * be deemed due and payable. ’ ’

To what interest could that language apply, if not to that which had been capitalized and carried into the notes, in view of the fact that the notes, on their faces, bear no interest until after their maturity? And as the time of default is fixed in the contract at the date of maturity, there could not, in the nature of things, have been any interest made exigible thereby, because none is recoverable on the face of the notes until after maturity.

In the condition of our law and jurisprudence, it would serve no useful purpose to discuss the right of a mortgagor and borrower to contract for the payment of a greater rate of interest than eight per cent., provided it be capitalized and carried into the obligation.'

We are of the opinion that it will be sufficient to merely recapitulate the authorities on that question: R. C. C. 2924; Carruth vs. Carter, 26 An. 331; Martin vs. Sheriff, 37 An. 766; Bank vs. Reagan, 40 An. 17; American Homestead Company vs. Linigan, 46 An. 1119.

The only prohibition at present contained in the Code on the subject of usurious interest is that contained in the proviso to Art. 2924, viz.: “ provided such obligation shall not bear more than eight per cent, per annum after maturity until paid.”

This provision of law has been observed by the contracting parties in the contract before us. Finding the engagement of the mortgage debtor to pay to the creditor company a bonus for the loan to be a legal and valid contract, the plaintiffs are entitled to no relief against that which they have paid, in discharge of the three notes first maturing and a portion of the fourth. The investigation must, therefore, be limited to the question of reduction, if any, that is to be made on the remainder of the series of notes.

There being unpaid a portion of the fourth note, falling due on the 1st of January, 1893, and the whole of the deferred payments became due by virtue of the terms of the contract; hence the entire indebtedness of the deceased bears eight per cent, interest per annum from the date of his default. But, if the plaintiffs’ theory in respect to unearned interest be accepted and maintained, they are entitled to a reduction of ten per cent, per annum on the principal, the calculation to be made on the face of each of the notes remaining unpaid.

As observed supra, we think it sufficiently appears from the recitals of the act of mortgage that ten per cent, per annum was calculated upon each of the ten instalments of the debt, from the date of the execution of the notes and mortgage to the date of the final maturity of the last instalment, January 1, 1899. Our conclusion is that this reduction ought to be made, because the amount of the indebtedness of the deceased, as represented by his ten notes, was evidently predicated upon the.theory that he, as maker and borrower, should retain and use the capital during that period of time. But, having exercised the option of the covenant in the mortgage to precipitate the maturity of all the premature instalments of the debt, the mortgagee necessarily assumed the corresponding duty of remitting all the capitalized interest that was unearned at the time of the attempted exercise of that right by the seizure and sale of the mortgaged property on the 10th of December, 1894.

Were there any doubt as to the correctness of this proposition it would be completely dispelled by the statement made in the argument by one of the counsel for the mortgage company that his client was perfectly willing to remit all the unearned interest, although insisting that, on the face of the contract, plaintiffs are not legally entitled to this allowance.

This statement carries with it the admission that, as matter of fact, ten per cent, per annum had been computed and capitalized in the notes, leaving only the conclusion of law that is to be drawn therefrom by the court, and this we have already done.

II.

On the argument it was conceded that the horse was properly seized as an immovable by destination, it having been used and worked on the plantation, which was mortgaged; but plaintiffs’ counsel strenuously oppose the seizure of the corn and hay, on the ground that same had been severed from the soil, and at date of seizure had been gathered and stored, and were, therefore, movable in the sense of the Code.

While it is true, and this court has so decided frequently, that corn and hay, which has been raised on the mortgaged premises, for the service and use of the plantation, is immovable by, destination (C. P. 645; R. C. C. 468; Citizens Bank vs. Wiltz, 31 An. 244; Citizens Bank vs. Crooks, 21 An. 324; Weil vs. Lapeyre, 38 An. 303; Barrow vs. Lapene, 30 An. 310), yet we are not disposed to put upon the law a harsh or extreme interpretation, and it is our opinion that such would be the case if we should maintain as legal and valid the seizure of the crops in question in the month of December, a time at which all farming operations are suspended.

In this respect we are of opinion that the judgment of the court a qua should be amended, and that the corn and hay should be released from seizure.

III.

With regard to the alleged prematurity of the seizure under the order of seizure and sale, there is but little to be said, as it is settled by repeated adjudications of this court that this is a mere irregularity, on account of which an injunction will not be perpetuated, for the reason that no substantial benefit would be allowed, as a new writ would immediately lie under the same order of seizure. And the law does not favor a multiplicity of actions.

Injury, or at least a well-grounded apprehension of it, can alone justify a resort to this extraordinary remedy. Morgan vs. Whitesides, Curator, 14 La. 280; Hudson vs. Dangerfield, 2 La. 66; Dayton vs. Bank, 6 R. 20; Aillet vs. Henry, 2 An., 145; Woodward vs. Dashiell, 15 La. 184; McDonough vs. Fost, 1 Rob. 295; Nash vs. Johnson, 9 Rob. 8; Birch vs. Bates, 22 An. 198; State vs. Judge, 16 An. 392; Gorde vs. Buford, 14 An. 102; Succession of Allen vs. Couret, 25 An. 24; Chase vs. Gas Light Co., 45 An. 300; Howell vs. Butchers’ Union, 36 An. 63; Brown vs. New Orleans, 38 An. 517; Butchers’ Union and Slaughter House Co. vs. Howell, 37 An. 280.

This ground of injunction is not good.

IV.

The foregoing conclusions necessitate a modification of the decree of the court a qua in the two particulars named.

It is therefore ordered and decreed that the judgment appealed from be and the same is hereby modified and amended so as to allow in favor of the plaintiffs a reduction of ten per cent, per annum on each of the six notes last falling due, and the maturity of which was precipitated by reason of the debtor’s default in making payment of a portion of the fourth note of the series, to be calculated from the date of the order of seizure and sale to the 1st of January, 1899, the date of the maturity of the last note of the series, and further amended as to order that the corn and hay be released from seizure.

And it is finally ordered and decreed that as thus amended the judgment appeale.d from be affirmed at appellee’s cost.

Nicholls, O. J., absent.

On Application por Rehearing.

Breaux, J.

We affirm the opinion heretofore pronounced in so far as it is held that the maturing of unmatured notes, the maturity of which is precipitated by the default of the debtor and the election of the creditor, does not carry with it indebtedness for the interest, although included in the note.

We amend the decree in so far as any item of interest allowed is not covered by the principle just announced.

The amount borrowed was twenty-seven thousand five hundred dollars. The principal and interest, prior to maturity (i. e., the maturity originally stipulated), added to the principal, were distributed in the different notes, maturing at different dates. .

The three notes maturing in 1890, 1891 and 1892 were paid; two thousand four hundred and three dollars were paid April 14, 1893, on the fourth note, which had matured January 1, 1893.

The fifth note was due January 1, 1894, and the sixth on January 1, 1895. Under the rule adopted no part of the interest prior to December 10, 1894, is to be deducted.

It is considered that the amount paid is a fait accompli, and that as to the remainder of the interest there was consideration, for use, to the 10th day of December, 1894, but not subsequently. Moreover, all the notes having matured, it would not be just to charge the interest added to the principal, and the eight per cent, from maturity stipulated in the notes.

Interest is due at eight per cent, per annum from December 10, 1894, as hereafter decreed.

It is therefore ordered, adjudged and decreed that our prior judgment is made to conform with the principle just written, and that a reduction of ten cent, per annum is to be computed from December 10, 1894, on each of the notes falling due, respectively, January 1, 1895, and years subsequent to that year — i. e., the said rate of interest from December 14, 1894, to January 1, 1895, in note which originally was to mature on last mentioned date, and same rate annually on note which was to mature originally on January 1, 1896, and so on to the last note, which was to mature in 1899, but which owing to default of debtor and election of creditor became due December 10, 1894, and that the whole amount left as due to the de - fendant in injunction shall bear eight per cent, interest from December 10, 1894.

Counsel were duly notified prior to this amendment and action by this court was taken rendering it useless to grant a rehearing.

Our original decree as amended by this decree is affirmed.


author: McEnery, J.

text:
    No. 11,835.
    Reynolds & Henry Construction Company vs. The Mayor and City Council of Monroe.
    Where a witness was asked by defendant to state the substance of a certain document, and the plaintiff objects, which objection is withdrawn, and then the defendant withdraws the question asked for the substance of the document, it is too late, after withdrawing the question, to ask for time to get a copy of the document.
    A party can not sue the defendant on instalments growing out of the same contract when the whole amount was due when suit was .first brought. I-Ie is presumed to have all that he was entitled to in the'first demand.
    On other points syllabus same as in 46 An. 1276, 45 An. 1024.
    APPEAL from the Fifth Judicial District Court for the Parish of Ouachita. Potts, J.

      E. T. LamTcin and C. J. Boatner for Plaintiff and Appellee.

      Thomas O. Benton, City Attorney (Stubbs & Russell of Counsel), for Defendants, Appellants.
    Argued and submitted June 7, 1895.
    Opinion handed down June 17, 1895.
    Rehearing refused June 29, 1895.
   The opinion of the court was delivered by

McEnery, J.

In order to promote the construction of the Houston Central, Arkansas & Northern Railroad through, the city of Monroe, connecting with the northwestern States, the city of Monroe, in accordance with existing law, ordered an election for the purpose of ascertaining whether a five mill tax for ten years should be voted to the road. The election was held, and the tax voted. After the election the city repealed the ordinance ordering the election, which ordinance also contained the contract between the city of Monroe and the railroad company. This tax was transferred by the railroad company to plaintiff.

The city refused to promulgate the returns, but it was mandamused to do so by this court.

This present Suit is for the purpose of compelling the city to levy a tax of five mills on all taxable property within the city for ten years, and in the alternative, if the five-mill tax for ten years is not allowed, then to command and order the levying of a five-mill tax for one year on the assessment roll of the year 1894.

The defences of the city as to all matters which preceded the ordering of the election, and the illegal votes cast at the election, may be eliminated from this controversy, as they have been disposed of in the suits between the same parties reported in the cases entitled Reynolds & Henry Construction Company vs. The Mayor and City Council of Monroe, 45 An. 1024; State ex rel. Reynolds & Henry Construction Company vs. The Mayor and Council of Monroe, 46 An. 1276.

The City Council was the sole judge whether or not the petition of the taxpayers, which only could be the basis of an election, was properly, legally and sufficiently signed.

And in the case of this plaintiff vs. the same defendant (46 An. 1278), we clearly intimated that the Oity Council was without authority to contest the validity of the election.which it had ordered. Its duty in ordering the election and promulgating the returns was purely ministerial, and in that ease we said: “If frauds are committed in the election of a character to vitiate the tax, or other causes exist to oppose it, the remedy is not to be sought in any discretion of the council. Instances are not infrequent of taxes of this character being resisted, nor has there been the least difficulty in finding suitable remedies where there is ground for their application, but remedy and relief is not by the refusal of the municipal authorities to perform ministerial acts.”

We also stated that if the frauds existed we are without authority to examine into the validity of the election, no jurisdiction for this purpose having been conferred upon this court. State vs. Judge Second Judicial District Court, 13 An. 89; State ex rel. Davis vs Police Jury, 43 An. 1009.

In this proceeding no taxpayer, or other party having a pecuniary interest in the payment or resisting of the tax, is complaining.

We may here add that in the case referred to, the pleas of prescription urged by the defendant were disposed of.

The only questions presented to us are whether there is evidence sufficient to show that the railroad company accepted from the Ouachita Valley Railroad Company its subscription stock in satisfaction of the tax voted, and whether the railroad company complied in time with its contract to build the road to the extent of making connections with the Northwest, and thus earn the five-mill tax for ten years. There is no question as to the earning of the five-mill tax, as this one-year tax was an absolute bonus. This question was settled in the eases referred to. The mandamus ordering the promulgation of the votes was necessarily based on the fact that the ■defendant was indebted to plaintiff for the one year five-mill tax.

The defendant offered witnesses to show that a sum of seventy-five thousand dollars had been subscribed to and collected by the Ouachita Valley Railroad, which was to occupy the territory of the Houston Central, Arkansas & Northern Railroad Company, and transferred to the latter by the former in consideration of the relinquishment of the tax voted by the city. The testimony was objected to by plaintiff, and the objection sustained. Apparently the judge’s reasons for rejecting the testimony are satisfactory.

But it will be unncessary to examine closely the reasons for his ruling, as the defendant recalled and placed on the stand F. G. Hudson, plaintiff’s witness, who had, at one time, possession of the books and papers of the railroad. In answer to a question of defendant’s attorney, he said he had, with the assistance of F. P. Stubbs, prepared a resolution on the report made by Maj. Bright on the subject of a proposition made by him to the Ouachita Valley Railroad Company, and the board passed a resolution on the subject, which was recorded in the minutes. He was asked by the defendant if he recollected the verbiage or substance of the resolution, and answered that he recollected the substance, but not its verbiage. He was asked to state it, and this was objected to by plaintiff. The ■objection was sustained. Plaintiff’s counsel then consented to Mr. Hudson stating the substance of the resolution, whereupon the defendant withdrew the question. The court, on the withdrawing of the question, denied the application for delay until a copy of the resolution could be obtained. This ruling was correct. The defendant had asked the witness as to his recollection of the substance of the resolution. This was all the defendant desired, and when it had an opportunity of obtaining this required information, it rejected it. It has no cause to complain. This disposes of the whole matter of the resolution, and it would be useless to notice the objection thereafter urged to the questions to, and the answers of, the witness as to the disposition of the stock of the Ouachita Valley road. The defendant was not taken by surprise. One of its attorneys had assisted in preparing the resolution, and must have known of its existence; and if there was an acceptance by it of the subscription stock of the Ouachita Valley Railroad, in lieu of the tax, it was too important to his client for him to have forgotten it.

In the case of Construction Company vs. Police Jury, 44 An. 863, the police jury set up this same defence, and we found that it had no existence.

This case is reported, and' the attorneys for the city must have known of the defence made by the police jury, and the existence of the resolution alluded to by Mr. Hudson. The city had ample time to procure a copy of it.

On the second ground urged by the defendant it is evident that the city owes only one year five-mill tax. The road was not completed in time so as to earn the ten-mill tax, This is virtually conceded by plaintiff in the suits reported in 45 and 46 of Annual Reports, referred to herein, in which the plaintiffs sued only for a tax of five mills for one year.

In case of Construction Company vs. Police Jury, involving almost identical issues with this, except the facts relating to the election, we said:

“ Plaintiff admits that a northern connection was not made within eighteen months, as required by the ordinance, and that only the first year’stax was earned. The northern connection was made about thirty days after the time expressed in the ordinance.”

The plaintiffs are not entitled to sue now for the entire tax, having abandoned it in the suits referred to. It is presumed the plaintiff will claim all that he is entitled to, which is demandable, growing out of a contract, and it is certain that he will not be permitted to divide his claim and sue the defendant in instalments.

The defendant insists, if the judgment is affirmed, that the tax be ordered collected on the rolls of 1889, and urges that the constitutional limit of taxation has been reached by the city in voting for. taxes for improvements on the supposition that the tax in aid of the railroad was null and void, and would never be enforced. The plaintiff asks that it be collected on the assessment roll of 1894. It is immaterial on what assessment roll it is levied, as the contract does not say in what particular year it should be paid. It was the duty of the city to provide for the payment, of the tax, and to have the assessment and collection made immediately after it was earned.

We will amend the judgment so as to order the assessment on the roll of 1889, and in case the limit of taxation has been reached during that year then on the roll of the year 1894.

It is therefore ordered and decreed that the judgment appealéd from be amended so as to order an assessment of a tax of five mills on the rolls of the year 1889, and in case the limit of taxation should have been reached that year or that there is any other reason why the full amount of the tax so ordered assessed can not be assessed and collected on the rolls for that year, it is ordered that an assessment of a five-mill tax be made on the rolls of 1894.

In other respects the judgment is affirmed, appellee to pay costs.

Ntcholls, O. J., absent.


text:
    No. 11,865.
    State ex rel. Mrs. Mattie L. Wright vs. Judges of the First Circuit Court of Appeals.
    Before invoking tile supervisory jurisdiction of the Supreme Court, the party applying for relief must exhaust his remedies in the lower court. When it is alleged the lower court was without jurisdiction, it must appear that a plea to the jurisdiction was filed in the lower court.
    y^PPLlCATION for a Writ of Certiorari.

      W. A. Van Hook for Relatrix.
    Submitted on briefs June 15, 1895.
    Opinion handed down, June 17, 1895.
    Rehearing refused June 29, 1895.
   The opinion of the court was delivered by

McEnery, J.

Our supervisory jurisdiction is invoked to annul a judgment of the First Circuit Court of Appeals aflirming the judgment of the District Court, partly in favor of and against relator.

The ground for relief is the want of jurisdiction ratione materise of the court, and it is now too late to apply for the relief prayed for. The relator should have exhausted his remedies in the lower court before applying for relief.

It is therefore decreed-that relator’s ápplication be dismissed.

Nicholls, C. J., absent.


author: Miller, J.

text:
    No. 11,617.
    The Gulf State Land and Improvement Company vs. Succession of Samuel Fasnacht.
    The assessment of property for taxation, should conform substantially, at least, to the titles giving accurate descriptions of the property of record, and to the other requisites of assessments pointed out by law. Revenue Act No. 85 of 1888, Secs. 7, 8.
    The court again affirms that a valid assessment is requisite to sustain the tax sale, and the principle is applied in this case to the defective descriptions of the property assessed. Cooley on Taxation, Chap. 12, p. 275, and the line of cases on deficient descriptions.
    A tax sale of property in its entirety, composed of distinct portions acquired under separate titles, will not be sustained if it is reasonably certain a smaller portion could have been sold for enough to pay unpaid taxes, interest and costs. Constitution, Art. 210; Burroughs on Taxation, Chap. 11, p. 204.
    The constitutional requirement, the tax collector shall sell at the tax sale the least quantity of the property that will bring the unpaid taxes, is not fulfilled by this statement that he offers any portion that any one will buy; the offer should be of a portion specific as to quantity and location, so that the purchaser may know what he buys and that delivery may be made. Ibid.

    Neither the administrator or attorney of a succession can surrender property by affirming a void tax sale.
    APPEAL from the Oivil District Oourt for the Parish of Orleans. Ellis, J.

      Charles H. Osterberger and J. Zaeh. Spearing cite for Plaintiffs, Appellants:
    46 An. 410; 42 An. 877.

      C. MeRae Selph cites for Defendant, Appellee:
    Oooley on Taxation, pp. 263-266; 32 An. 1006; 15 An. 15; 25 An. 504; 37 An. 60; 19 An. 185; 33 An. 520.
    Argued and submitted May 11, 1895.
    Opinion handed down June 3, 1895.
    Rehearing refused June 27, 1895.
   The opinion of the court was delivered by

Miller, J.

This is a suit for property alleged to have been acquired by plaintiff at a tax sale under an assessment against estate of Samuel Fasnacht. The defence is, there was no legal assessment of the property or notice to the owner of the sale, void, it is claimed, for the additional reason that for taxes amounting only to eighty dollars, the tax collector adjudicated property assessed at seven thousand five hundred dollars, the property embracing distinct portions, acquired under different titles, susceptible, it is claimed, of separate sale and sold at the tax sale in globo in violation of the constitutional requirement the offering and sale by the tax collector of the least portion capable of realizing the taxes due. From the judgment against plaintiff this appeal is prosecuted.

The titles by which the tax debtor, Samuel Fasnacht, acquired the property were and had been of record for years. They gave accurate descriptions, and the law requires assessments with reference to the recorded titles, or at least indicates the record as the sources of information for the successors. Acts of 1888, No. 7, Sec. 8. The assessment in this case undertook to blend in one description property the subject of distinct titles. The assessment was a tract measuring four hundred (400) feet on the Metairie road; on New Orleans shellroad, 443 feet 8 inches 3 lines; on an oblique line, 299 feet 7 inches; on rear line, parallel with New Orleans shellroad, 300 feet. It is, we think, manifest this does not locate property. With other defects neither the direction nor connection with any property of the oblique line is given, and the depth from the Metairie is not stated. The description is not at all aided by any reference to any ownership of the adjoining land. It is in proof that the tract fronting the Metairie bears a name, stated on the city map, and which it has borne for years. The requisites of an assessment are by its boundaries or divisions of United States surveys; if in cities the assessments should designate the lots according to the streets and squares, and if the land bears a name that is to be stated. Acts of 1888, Secs. 7, 8. The recorded titles state one of the portions intended to be embraced in this assessment, that is the Half-way House, as having 400 feet on the Metairie, by a depth between lines parallel to it of 400 feet; the front on the New Canal is 300 feet on a line parallel and 120 feet distant from it, and same extent in the rear; the other and adjoining portion is described as fronting 143 feet 8 inches 3 lines on the New Canal shellroad, triangular in form, with a depth of 262 feet 1 inch on the side toward the Metairie road, and adjoining the property of Read, purchased by the Oanal Bank from Redon. There is no reason why the description in the two recorded acts should not have been followed, and the assessment, deficient as it is, in our view, in material respects, can not be accepted as equivalent to the description in the deeds the law indicates as the guide.

There is the other objection to the tax sale that the property was adjudicated in its entirety, made up of two distinct portions, acquired by separate conveyances, that is to say, property for which over twenty-one thousand dollars was paid, and which was assessed at seven thousand five hundred dollars, was adjudicated for eighty dollars to pay an inconsiderable amount of taxes. It must appear difficult to maintain such a tax title. Without the stringent provision in the State Constitution, it is not likely such a title would stand. The gross inadequacy of price, of course not enough in itself to vitiate the sale, but with other elements, would militate seriously against any such title. As Burroughs puts it, dealing with statutory requisites not stronger, if as emphatic as our Constitution, requiring the least quantity to be sold, the same principle would be enforced by the courts if there was no statute. The general principle as to sales by sheriffs and tax collectors is often enforced on grounds of equity and reason, which forbids selling a whole tract when a few acres would be sufficient. Burroughs on Taxation, Chap. 15, Sec. 113. It would be more satisfactory if legislation had provided the method of division for sale by the tax collector of land assessed for taxes, inconsiderable in proportion to the value of the property. Still, we can not hold the constitutional requirement in this respect to be less stringent because of the absence of such legislation. In this case there were two distinct portions of property, each, too, susceptible of at least the division of setting apart the quantity apt to produce readily the sum required to discharge the small amount of unpaid taxes. We can not appreciate that any serious attempt was made to comply with the requirement of selling the least quantity. No specific quantity was offered. There is the statement in the deed that the entire property was the least quantity any one would purchase, and in the testimony that the collector first offered to sell a portion, and there being no bid he proceeded to sell the whole. This imports no compliance with his duty. That was to offer for adjudication a portion, so that the purchaser would know the extent and situation of the property proposed to be sold, and so that delivery could be made. Nothing of the kind was done or attempted.

The property was that of a succession, and it seems that the administrator and his attorney were present at the sale convened with the buyers; the attorney for the administrator testifies he understood the purchase was for the account of the succession, and it appears that the administrator offered to buy the tax title. All this it is claimed estops the succession from disputing that title. We do not find in any or all this conduct the basis for the alleged estoppel, least of all, that it was competent for the administrator or his attorney to surrender succession property by affirming a void tax sale. This view, too, disposes of the proposition advanced to support that title, that though present, neither pointed out any portion of the property to be sold. Their alleged omission, in this respect, did not authorize the sale attempted.

We have given attention to all the grounds urged in the brief and argument for plaintiff. What we have said disposes of the case.

It is therefore ordered, adjudged and decreed that the judgment of the lower court be and it is hereby affirmed at plaintiffs’ cost.

On Application por Rehearing.

In dealing with the constitutional requirement that in tax sales the least quantity of the property shall be sold that any person will buy for the taxes, interest and costs, the decision is, of course, to be construed with regard to the facts in this case. The property included under one assessment was composed of distinct portions, the subject of separate descriptions spread on the public records and acquired by the tax debtor under different titles. In such a case the adjudi“ cation was in globo of the property assessed for over seven thousand dollars for the pittance of taxes due. It seems to us that the constitutional mandate as to the method of sale must be deemed applicable here, as we have applied it in our decision. Constitution, Art. 210.

Rehearing refused.