author: Watkins, J. Todd, J.

text:
    No. 9785.
    Beulah Webb, wife, et al. vs. Amelia Keller et al.
    1. The fact that only one of tbe parties defendant, cited in an action to annul a probate sale of real estate — portions of which are in possession of various other defendants cited— has prosecuted his appeal, from an order obtained in open court, by him, at the same terra at which final judgment was rendered against him, cannot be treated as invalidating his appeal. Those who are not appellants are appellees; and such individual appellant has the right to prosecute Ms appeal, which is regularly taken, notwithstanding bis co-defendants — against whom judgments have been previously rendered — have not been formally cited, and have acquiesced therein.
    2. A motion to dismiss an appeal on account of informality in tbe bond, or order of appeal, or even the want of tbe latter, must be made at tbe term at which the appeal is made returnable, and within three judicial days after the record is filed.
    One filed within the time specified, and not disposed at that term, cannot be supplemented, at a subsequent term, by another motion to dismiss upon other grounds not enumerated in the one first filed.
    OK THE MERITS.
    1. If an universal legatee shall marry a second time, having children of a preceding marriage, he or she cannot, in any manner dispose of the property given or bequeathed to him or her by the deceased spouse.

      The property becomes, by the second marriage, the property of the children of the preceding marriage and such legatee only retains its usufruct.
    2. The rulings of this Court in Bird vs. Succession of Jones, 5 Ann. 644 ; Wells vs. Wells, 30 Ann 936; Succession of Frazier, 35 Ann. 382; Succession of Townsend, 37 Ann. 408, and Succession of Townsend vs. Sykes, 38 Ann. 859, ate unreservedly affirmed.
    3. Mere illegality in the appointment of an administrator, executrix or undertutor will not vitiate the acts done under it. The acts of an officer, in such case, are valid, although he should have been illegally appointed.
    4. It was discretionary with the probate judge, on the application of the executrix to cause the property ordered to be sold to be re-examined and re appraised; as it may well bo that a former appraisement was excesivo, or the value of it had diminished since it was made.
    5. The purchaser at a sale, made at public auction, under an order made by a judge having jurisdiction of the succession, is not bound to look beyond such decree, in order to ascertain its necessity.
    He is bound only to ascertain that the judge had jurisdiction; and finding that he had, the truth of the reGoid, in other respects, maybe assumed.
    C. Informalities in the appointment of an undertutor, in the composition of a family meeting recommending a sale of succession property to pay the ancestor’s debts, and in which minors have a residuary interest; in the method of proving the existence of debts of deceased to the judge granting the order of sale — and all other irregularities in proceedings antecedent to and resulting in the probate sale, are prescribed by five years. R. O. C. 3543.
    APPEAL from the. Thirteenth District Court, Parish of St. Landry. Hudspeth, J.

      Kenneth Ballio for Plaintiffs and Appellees :
    1 A party who accepts the quality of universal legatee and that of executor conferred by will, probates the will, and enters into possession of the property, and “uses and treats it as his own;” ho cannot long afterwards retract such acceptance, or set up the nullity of the will or its probate or the proceedings carried thereunder. 28 Ann. 697; 31 Ann. 552; 18 Ann. 141; 7 Ann. 617; 4 L. 61; 15 Ann. 529; 24 Ann. 301.
    2.Parties who claim title from such a person, or who set up such proceedings as a shield or protection to their title, are likewise estopped from setting up the nullity of the will or the proceedings carried thereunder. Louque p. 223, no. 20; 15 Ann. 684; 15 Ann. 531; 24 Ann. 301; Bigelow p. 244 et seq.; 5 B. 523; Bigelow p. 473.
    3.A will is revoked by the birth of a child subsequent to its date. C. O. 1705. But the nullity is relative and can be waived, and the will ratified by heirs of age.
    4.Where the husband, by his will, makes his wife universal legatee, and she accepts and goes into possession of the property under the will, her paraphernal claims, if any she have against her husband's estate, will be lost by confusion. 13 Ann. 52; C. O. 2217; 3 L. 552; 4 B. 416.
    5.Where a husband dies, leaving minor children and a widow, and a will making the widow universal legatee, if the widow marries, the property devised to her by the will reverts and belongs to the children of the first marriage, and she will merely have the usufruct of it. 12 Ann. 465; C, C. 1753; 10 Ann. 679.
    6.The validity of a will and its probate cannot be collaterally questioned. 4. H S. 411; 8 N. S. 178, 13 Ann. 117, 5 L. 337; 6 Ann. 446.
    7.The capacity of an executor or administrator, or other fiduciary cannot he questioned under a general denial or collaterally. 15 Ann. 27, 505; 5 Ann. 128, 598; 14 Ann. 706; 9 D. 113; 13 Ann. 380; 25 Ann. 54; 30 Ann. 268; 32 Ann. 897; 28 Ann. 807 ; 26 Ann. 330 ; 10 Ann. 496; 8 Ann. 35; Hen. p. 1152, no. 1.

      8. A party cannot do an act which he is at liberty to abstain from, and by a mere reservation screen himself from the legal consequences of his own act; nor can he shift his position so as to defeat the action of the law upon it. 18 Ann. 141; 2 Ann. 617; 4 L. 61; To Ann. 520: 24 Ann. 301.
    9. When the community is dissolved by the death of one of the spouses, the heirs succeeding immediately to the right of their ancestor are necessary parties to any decree affecting their interest. They have the seizin and a proprietary interest in the community, and in case of a partition, must he duly made parties or represented in the partition proceedings. If not so represented or made parties, the proceedings are null as to them, 32 Ann. 849; 33 Ann. 585; Hen. p. 743, no. 2, p. 744, no. 1; C. C. 2405-6.
    10. Heirs have this seizin, even where a universal legatee is named by the will. C. C. 1607.
    11. The sale of the property of another is void. C. O, 2452.
    12. There can be no family meeting without an uuder tutor. Family meetings carried on without an under tutor are void. C. G. 275; C. C. 276,277. He represents the minors in all cases where their interests are opposed to those of their tutor. C. C. 275.
    13. An under tutor cannot bind the minors by any approval of debts or claims due by them. He has no such powers. G. C. 273 et seq.
    14. A re-appraisement of property in which minors aré interested can only be ordered and made under the provisions of art. 342, C. C. When otherwise made it is null.
    15. Property in which minors are interested cannot be sold for less than two-thirds of its appraised value. 33 Ann. 466.
    16. It is essential that a dative tutrix should only be appointed on the advice and recommendation of a family meeting. G. C. 254, 263, 270.
    17. Parties interested have the right to sue to annul a sale for non-payment of the price. G. C. 2045; 24 Ann. 537: 28 Ann. 739. This action is only prescribed by ten years. 24 Ann. 537; 28 Ann. 739.
    18. Ho prescription runs during minority except in special cases. These special cases are the exception to the general rule. Stare decisis,
    19. Where the surviving widow and the heirs are the owners of property in indivisión, the action for partition must be brought in the district court. In 1869 the parish court had no jurisdiction of a suit of that kind. 33 Ann. 585; 30 Ann. 93,177; 31 Ann. 572; 34 Ann. 288.
    20. What is not alleged cannot he proved. Hen. p. 1155, no. 3 and cases cited.
    21. A general denial merely traverses the law and facts of plaintiff’s case. 14 Ann. 120.
    22. A special defense requires a special plea. Hen. p. 1153, no. 10 and cases cited.
    23. Where a special defense depends upon the proof of a particular fact, the fact must be specially alleged. Hen. p. 1144, do. 1 and cases cited.
    24. A dative tutrix cannot administer whore there is a will — a fortiori, where an executrix has been appointed under the will. In such cases she represents only the minors. Hen. D. p. 1476, no. 11; 4 K. 42; 7R. 242 ; 2 L. 299.
    23. An order of a probate court, decreeing a sale of the property as a general rule, protects the purchaser. But it is subject to be attacked and set aside, as are other judgments, for instance: 1st. Where the court had no jurisdiction ratione matcrice. 2d. Where the parties affected were not cited or represented, and therefore not parties to the decree 3d. Where the property belongs to a third person, a stranger to the.proceedings; and many other examples might be oited. The sound rule in this regard is that that the order for the sale cures all relative nullities, but not absolute nullities. 14 Ann. 662; 11 L 149, 156; 13 L. 431; 16 L. 440 ; 3 K. 122; 10 K. 398; 15 Ann. 520; Gross on Pleadings, par. 305-C-7-8.
    26. An order of a probate court decreeing a sale does not protect the purchaser where fraud is charged and proved. 14 Ann. 662, and cases just cited.
    27. The plea of res judicata will not be sustained unless all the issues are the same. 14 Ann. 362; 24 Ann. 332; Bigelow on Est. p. 67. Intro.

      28. An imperfect usufructuary must return articles or property of the same quality and quantity, or their estimated value, on the termination of the usufruct. C. C. 549.
    29. Tender not necessary in this case. 34 Ann. 288.
    30. Only forced heirs can sue for a reduction of a will. C. O. 1504 ; 12 Ann. 465.
    31. A consent judgment has no force as such, except as to the parties thereto. 3 Ann. 34; 2 Ann. 483; 4 Ann. 65; 6 Ann. 790; 10 Ann. 18; 11 Ann. 696; 15 Ann. 225; 8 N. S. 347; 2L. 148; 6 L. 354,

      Henry L. Garland for Defendants and Appellants.

      Harry H. Hall on the same side.
   The opinion of the Court was delivered by

Watkins, J.

Plaintiffs seek to dismiss the appeals taken by Mrs. Nannie M. Morris, J. U. Payne, II. M. Payne, Mary I. Garrard and William Curley, on the grounds that they were co-defendants with Amelia E. Keller and others, against whom judgments were rendered on the 14th of April, 1883., and 20th of February, 1885, respectively, and who were not in court when appellants obtained their orders of appeal in open court on the 28th of May, 1885, and were not cited as appellees.

In the alternative, they urge that the value of the property claimed by appellants respectively, is less than $2000, and this Court is without j urisdiction ratione materia}.

The motion including these objections was filed at the term of court at Opelousas, in July, 1885, but which was not passed upon by the court, and subsequently the record was destroyed by fire. This record having been substituted for the one destroyed, the motion to dismiss was supplemented in July, 1886.

In addition, a supplemental motion to dismiss was filed in July, 1886, in which are assigned the additional grounds, viz: First, that no legal order of appeal was granted Wm. Curley in his fiduciary capacity a,s curator; second, that neither Mary I. Garrard nor Nannie M. Morris were authorized by their husbands to execute their appeal bonds.

I

Prior to the enactment of Act 125 of 1868, amending C. P. 575, requiring appeal bonds to bo made payable to the clerk of the court which rendered the judgment appealed from, the uniform current of our jurisprudence was to the effect that, when an appeal was taken from a judgment in an action on a joint contract or in a revocatory action, all who were required to be parties below must be made parties to the appeal, though a part only have appealed, else the appeal was dismissed.

Since the passage of that act, our predecessors have constantly held, and we think correctly, that when an appeal is granted in open court, and the bond is made payable to the clerk of the court, all persons homing an Merest are by law parties to the appeal — those who are not appellants are appellees.

In Walton vs. Police Jury, 26 Ann. 356, the court said : “ The fact that only one of the non-resident parties executed an appeal bond, under an order in favor of all, cannot invalidate the appeal taken by him. Those who are not appellants are appellees, and the appellant has the right to prosecute his appeal, which is regularly taken, although his co-defendants may acquiesce in the judgment.” 28 Ann. 370, Succession of McKenna; 26 Ann. 220, Baker vs. Thompson; 26 Ann. 312, Frances vs. Lavine.

The appellants have fully complied with the law, and all other parties having an admerse Merest are appellees necessarily.

Appellants are clearly entitled to prosecute their appeals, although plaintiffs and appellees had obtained judgments against other defendants at antecedent terms of the court, who have acquiesced in them.

Whatever may be the effect of such an-apparent severance thiough plaintiffs’ instrumentality, in respect to such other defendants, it cannot, in any way, prejudice the rights of appellants.

On the alternative part of the motion, in respect to this Court’s want of jurisdiction, it is sufficient to say that while the defendants against whom judgments were first rendered, have no interest in common with appellants claiming separate and distinct tracts of land, yet, in respect to plaintiffs claim of title as heirs of their father and the revocation of the probate sale of January' 5,1870, the appellants’ claims are identical. They are inseparably blended, and plaintiffs have so treated them; and it would be against equity to permit them to gain any advantage of the appellants by reason of their having taken judgments by piece-meals against other defendants, and in some instances by default.

In addition to this, plaintiffs, in their petition, show that the lands which Amelia Keller bought at probate sale were valued at $39,000, and they fail to show what the separate value of the different tracts were which she subsequently conveyed to the defendants; and, as there is doubt with respect to the value of the several properties held by the appellants, we think it our duty, under the circumstances, to favor the right of appeal.

With respect to the remaining grounds, and which are contained in the. supplemental motion, filed in July, 1886— more than twelve months after the filing of the record — it is only necessary to observe that it came too late.

“A motion to dismiss, on account of informality in the appeal bond, or order of appeal, or even the want of the latter, must be made within three judicial days after the .record is filed.” 2 Ann. 138; 3 Ann. 326; 4 Ann. 514; 6 Ann. 115; 11 Ann. 613; 12 Ann. 745; 22 Ann. 327; 23 Ann. 467; 21 Ann. 30.

If these objections were not.waived by their omission from the motion first filed, they certainly cannot be entertained at this time.

The motion is therefore refused.

On the Merits.

I.

This suit was filed on the 24th of January, 1882, and has for its object the annulment of the various adjudications and sales made to the various defendants, and the recovery of the property described, with its revenues.

Plaintiffs are the sole surviving descendants of Lewis A. and Amelia E. Webb. The latter survived the former’s death, which occurred in April, 1861, from whom they claim to have inherited the property in dispute.

On the 6th of July, 1860, Dr. Webb made an olographic will, by the terms of which he gave and bequeathed all of his estate in full property, after the debts were all paid, to his wife, Amelia Webb; and constituted her the executrix, with full seizin.

Below the signature is written this memorandum, viz: By this will I do (not) disinherit my child, Susan Charlotte Webb, but it is made in the event of her death;” and which was signed, without date.

At the request of the surviving widow, Amelia Keller, the will was probated, letters testamentary issued, an inventory taken, and she was duly qualified and placed in possession of the testator’s estate. No further proceedings were taken until after the close of the war.

In 1868, Mrs. Amelia Webb was married to Edward Gal ligar, who died in November, 1870. '

Plaintiffs’ contention is that, by her second marriage Amelia Keller lost the property bequeathed to her by the will * * * and it became vested in her two daughters, plaintiffs in this suit — she thereafter only having the usufruct of it.”

In support of this theory, they rely upon R. C. C. 1753, which provides : If any person who marries a second time, has children of his or lier preceding marriage, he or she cannot, in any manner, dispose of the property given or bequeathed to him or her by the deceased spouse, or which came to him or her from a brother or sister of any of the children which remain.

This property becomes, by the second marriage, the property of the children of the preceding marriage, and the spouse who marries again only has the usufruct of it.”

Therefrom they contend that they are the proprietors of the whole property, of which they were seized by operation of law; and hence any subsequent forced alienation thereof was the sale of the property of another, and therefore void.

Their argument is that Dr. Webb divested himself of all of his property by the will in favor of his wife, and she had executed the will, and gone into possession as the umwersal legatee, and the property no longer formed a part of his estate. Hence, the probate sale, made on the 5th of January, 1870, was a nullity.

IT.

Not contented with this averment of title in themselves as owners by operation of law, through the instrumentality of the will, they set up certain informalities and illegalities in the probate sale to Amelia Keller and the titles of her vendees, as sustaining the charges of nullity made.

They are in substance that Amelia Keller never qualified as testamentary executrix,-or natural tutrix, and all acts done by her, as such, are void.

That the appointment of Amelia Keller as dative tutrix was null and void, on account of the nullity of the family meeting proceedings resulting from the wow-appointment of an under tutor to fill an existing vacancy.

That the order of sale was improvidently granted, for the reason that the estate of Lewis A. Webb owed no debts; and particularly, because it did not owe the debt alleged to have been due to Amelia Keller, surviving widow; or, if it did, “said claim had never been recognized, or proof thereof adduced before the family council, or before the court; and that the order had been granted without sufficient evidence.'1'

That the property was sold for less than two-thirds of its appraisement, “which real and true appraisement was that of the first inventory,” taken April, 1861, and not the one made in 1869, and which they charge to have been fraudulently made “ to enable Amelia Keller to bid the whole of it in for a supposed claim due her as alleged of $40,000.”

Tliat Amelia Keller never qualified as dative tutrix, gave no bond, and failed to cause the registration of proper certificate ‘‘and all orders and proceedings taken by her in her said capacity are null and void.”

There are some other objections, but they are only in the enlargement of those quoted.

To this action, appellants urged the plea of res judicata resting on a final decree of this Court in suit of Susan Webb, Wife, vs. Amelia Keller, J. U. Payne, Intervenor, 26 Ann. 596, and on the judgment homologating the executrix’s tableau of debts and distribution in the Succession of Lewis A. Webb, on the 25th of February, 1870.

In their answers they denied all the averments of the plaintiffs’ petition, and alleged that they derived title from Amelia E. Keller, widow of Gralligar, who acquired on the 5th of January, .1870, at a probate sale made under an order rendered by a competent officer having jurisdiction of the subject matter and of the persons interested.

All of appellants plead the prescription of one, three, four, live and ten years against the action of plaintiffs and as a muniment of their titles.

The defendants, J. U. Payne aud others, alleged that they had con tested the title to the property now claimed in a litigation between Susan Webb and themselves.

III.

The record discloses the following pertinent facts necessary to be detailed, in order to a proper understanding of the contention of the parties.

On March 16, 1869, the testamentary exeeutrix represented to the probate court “that the succession is now chiefly composed of laud and the improvements thereon, and that in order to settle the said estate, which petitioner desires to do, it will be necessary to.cause the property to be reappraised. Further represents that a sale of the property will be necessary in order to settle the succession, pay its debts and make the necessary partition between petitioner and her children, in the event of the succession proving solvent; petitioner being a creditor with a tacit or legal mortgage for some $40,000,” and she prayed for an order of sale. Accordingly an inventory was ordered and a family meeting was convoked for the purpose of giving advice concerning- the interest of the minors and of fixing the terms of sale.

The proees verbal of the proceedings of the family meeting show that “ after having duly deliberated on said subject, they declared themselves unanimously of the opinion that it will be to the interest of said minors that the whole of the property belonging to the succession of Lewis A. Webb, either separate or community be sold for cash, payable on the day of sale.”

The executrix petitioned for the homologation of the deliberations of the family meeting, and on the 2d of December, I860, the following-order was entered, viz : “ Let the proceedings of the family meeting-mentioned therein be homologated and approved j and let the property of the estate of Dr. Lewis A. Webb, deceased, be sold for cost, as prayed for by petitioner, and by a duly qualified auctioneer.

“ Given in chambers, at Opelousas, this 2d of December, 1869.

“ A. GaBRIGUES, Parish Judge.”

On the 5th of January, 1870, a public probate sale was made by n duly commissioned auctioneer, of the various properties included in the inventory of Lewis A. Webb, both separate and community, and the same were adjudicated to Amelia E. Keller, surviving widow, for $25,725, with the exception of a tract of 494-94 acres adjoining the sugar plantation.

On the 25th of February, 1870, the executrix filed and caused to lie duly advertised, a tableau and classification of the debts of the deceased and distribution of the assets of said estate, and due notice was given to the undertutor for the two minors, plaintiffs herein.

On this tableau was entered the mortgage indebtedness of Dr. Lewis A. Webb to his surviving widow, Amelia E. Keller, aggregating $36,602 23, being the sum inherited by her from her deceased mother, Martha C. Hargrove, and which were received and appropriated by her husband, and for which amount she had and has a legal mortgage against his estate.

The duly homologated tableau in the succession of Martha C. Hargrove shows the share of Mrs. Amelia Webb to have been, in exact figures, $37,289 92f.

The items composing said sum are specifically enumerated on the tableau of the executrix, and it is accompanied by the declaration that her claims were duly registered in St. Landry and Avoyelles parishes.

Other debts appear on said tableau, exclusive of succession debts, and charges which of themselves aggregate $7,000.

On the. 4th of April, 1870, this tableau was duly homologated, and the executrix was ordered to distribute the funds realized from the sale, in accordance therewith ; and G. W. Hudspeth, one of the attorneys, testified that “the price of the adjudication was paid in actual money, but was credited on Dr. Webb’s indebtedness.”

All other defendants acquired title from Amelia Keller, by various mesne conveyances, all translative of property, and duly recorded.

IV.

We will first consider the plea of res judieata.

Referring to Webb vs. Keller, Payne et als., intervenors, 26 Ann. 596, we discover that the Susan Webb, who is one of plaintiffs in this suit, was plaintiff in that, praying that the probate sale herein complained of, be declared null, and “ that the property' be declared to belong to her and her sister.”

The court held: “It appears to us that the title to the property-purchased by the defendant on the 5th of January, 1870, is, as to third parties, good and valid. Defendant was the executrix of the will. She obtained authority to sell the property of the testator in order to pay debts of his succession, aud to make a partition between himself and the heirs.

“An appraisement of the property was ordered; a family meeting was convened, who recommended that the whole property of the succession, whether separate or community, be sold for cash.

“ The undertutor concurred in this advice. The property was sold ; the defendant became the purchaser. She subsequently furnished an account of her administration, which account, after due publication, was homologated. It was after this sale that the intervenor’s mortgage was taken. The title being in the defendant, the property was hers, to do with it as she pleased. She could sell it, or mortgage it Those who dealt with her did so under the faith of judicial proceedings. To set aside the sale made under the authority of justice, and thus destroy the mortgage which was taken as the result thereof, and which was accepted in good faith, would be to make like proceedings snares instead of shields. * * *

“Plaintiffs’ t.utrix may have assumed responsibilities towards her, and may have been derelict in her duty. But this is no reason why those who acted in good faith, and whose acts were based upon the orders of a court of competent jurisdiction, should be made to suffer.”

In so far as Mrs. Susan Quirk’s claims and pretensions are concerned, they are clearly covered by, and embraced in that decree; aud the plea of res judieata must be sustained. It does not matter that different allegations are made, and somewhat variant issues are now presented, the case is not altered, and the issue is the same.

In respect to the other plaintiff, Mrs. Beulah Beggs, the decree quoted does not establish res judicata, but it furnishes a forcible precedent.

Y.

Notwithstanding the fact that the second marriage of Ur. Webb’s surviving widow divested her of all claim of title, as universal legatee, under his will — conceding arguendo that she had asserted and was previously in the enjoyment of it — and yet, the plaintiffs certainly did not, and could not, acquire any title to her one-half of the community property, which was the larger and most valuable part of the estate.

Hence, the claims of Mrs. Quirk must be restricted to a one undivided fourth of the community, and to undivided one-half of the separate property of Dr. Webb.

VI.

The record satisfies us that Amelia Keller did not accept her husband’s succession, and never performed a single act of heirship, or assumed or held possession, as owner or legatee. But, if she had entertained such an idea she could not have successfully carried same into effect of her own free will and accord.

In Bird vs. Succession of Jones, 5 Ann. 644, the Court said: “Having, as executor, accepted the trust and seizin, it was not in his power to withdraw, at his own discretion, and relieve himself from the obligation and duties which he had judicially assumed.”

To the same effect are Wells vs. Wells. 30 Ann. 936; Succession of Frazier, 35 Ann. 382; and Succession of Kate Townsend, 37 Ann. 408.

In this last case, this Court said : “An executor, who has qualified and who is at the same time universal legatee, cannot, b.y any act purely Ms own, cease to be executor and represent himself as sole heir. He cannot be permitted to deny his capacity as executor by setting up that he has accepted unconditionally as universal legatee, and bolds the estate, not as executor, but as owner.”

These decisions have been closely followed in the more recent cases of Succession of Kate Townsend vs. Sykes, 38 Ann.,-

In plaintiffs’ brief, we find the following concession on this subject, viz: “She voluntarily accepted the will of Dr. Webb and the bequest to her; probated the will; qualified as testamentary executrix under it over twenty-four years ago; and in all proceedings and pleadings by her in the estate of Dr. Webb, styled herself ‘ testamentary executrix,’ and made the sale of January.5, 1876, as such.” Citing 18 Ann. 141; 7 Ann. 617; 4 La. 61; 15 Ann. 520; 24 Ann. 301.

Also: “Besides, we contend that the validity of the will, and its probate, cannot be collaterally attacked or questioned, as is now sought to be done.” Citing 4 N. S. 411; 8 N. S. 178; 13 Ann. 117; 5 La. 887; 6 Ann. 446.

Again : It is undeniable that all the orders and proceedings taken out by Mrs. Galligar in the succession of Lewis A. Webb, including the order for the probate sale of 1870, were taken by her in her capacity of testamentary executrix of his last will. * * * In fact, as she was acting under the will, in administering the property of the estate, •she could act in no other capacity than testamentary executrix.”

These admissions serve as a complete answer to the charge in plaintiffs’ petition that Amelia Keller was never qualified as testamentary executrix, and that all acts done by her in that capacity are null and void.

VII.

Having fully conceded, as indeed the record otherwise fully proves, that Amelia Keller administered the estate of Dr. Webb as testamentary executrix under his will, and as such procured the sale of the property, it follows as a necessary consequence that his acts as such are legal and valid to all the world, and cannot be assailed in a suit between other parties.

We have the admission in plaintiffs’ brief to this effect, viz: “Besides, the capacity of an administrator, executor or other fiduciary, cannot be collaterally assailed,” etc.; citing authorities:

In 32 Ann. 364, Estate of Altemus, the Court said : “ Mere illegality in the appointment of an administrator, will not vitiate the acts done under it. The acts of the officer in such case are valid, although he should have been illegally appointed.” Succession of Dugart, 30 Ann. 268; Bienvenu vs. Parker, 32-

This principle applies with equal force to the appointment of Amelia Oeller as executrix and dative tutrix, and to the appointment of under tutor.

VIII.

The complaint made of the order of court directing the sale on the ground that the estate of Dr. Webb owed no debts, or, if it did, none that had been recognized and proved before the family meeting or the court, does not go to the court’s want of jurisdiction. The debts were subsequently placed upon a tableau and proved to the 'satisfaction of the judge, who was competent, and same was homologated; and he directed the proceeds of sale to be applied to their payment. This was a mere irregularity and not a cause to challenge the proceedings as null and void.

IX.

The objection urged that the property was not adjudicated to Amelia Keller for two-thirds of the appraisement made in 1861, is wholly untenable. This Court will take judicial cognizance of the fact that the civil war intervened between that date and the date at which the second inventory was made in 1869. The proof shows that a once valuable plantation was completely devastated and laid waste by the transit of the contending armies, and that the value of the property was greatly reduced; and consequently a new appraisement was quite necessary in order to effect the sale of January, 1870.

It was the duty of the judge to cause the property to be estimated by experts before proceeding to the sale thereof, if it was such property as had remained unsold for more than one year after the appointment of the executrix. R. C. C. 1169, 1170; 33 Ann. 466, Succession of Hood.

At an offering under these articles, the property was legally adjudicated at two-thirds of that last valuation.

X.

It is the well settled jurisprudence of this Court that the purchaser at a sale made under an order of the probate court, which is a judicial one, is not bound to look beyond the decree recognizing its necessity.

He must look to the jurisdiction of the court, but the truth of the record, concerning matters within its jurisdiction, cannot be disputed.” 14 La. 146; 15 La. 182; 7 R. 66; 7 Ann. 468; 14 Ann. 154, 622; 26 Ann. 596, Webb vs. Keller; 29 Ann. 536, Frazier vs. Zylick; 31 Ann. 280, Heineman vs. Janney. The purchaser at a judicial sale of property of the succession is not bound to look further bade than the order of court directing the. sale.” 18 Ann. 485, Succession of Hebrard; 21 Ann. 505, Woods vs. Hilliard Lee; 11 R. 72; 16 La. 440; 34 Ann. 1004; Nesom vs. Weis.

XI.

Prescription of five years, R. C. C. 3543, provides: All informalities connected with, or growing out of any public sale made by any person authorized to sell at public auction, shall be prescribed against by those claiming under such sale, after the lapse of five years from the time of making it, whether against minors, married women or interdicted persons.” 28 Ann. 571, Routh vs. Citizens’ Bank; 29 Ann. 536, Frazer vs. Zylick; 34 Ann. 209, Roberts vs. Zansler; 34 Ann. 594, Heirs of Miller vs. Ober et al.; 21 Ann. 585, Pascaud vs. Pourle; 10 Ann. 684, Calais vs. Seinéré; 3 Ann. 328, Vaughan vs. Christine; 32 Ann. 337, Porter vs. Hornsby; 32 Ann. 437, Miller vs. Miller; 33 Ann. 1043, Mulholland vs. Scott; 33 Ann. 673.

We regard this plea as strictly applicable to all of the alleged nullities propounded as aiising out of proceedings antecedent to and resulting in the probate sale of January 5th, 1870.

The views hereinabove expressed in regard to the various intricate and conflicting claims of the plaintiffs, and the disposition made of the plea of five years’ prescription renders a decision of the defendants’ other pleas unnecessary.

Of the plea of prescription of ten years, urged by plaintiffs against the debt claimed by Amelia Keller against the estate of Dr. Weblu and of the plea of peremption of her tacit mortgage, it is sufficient to say that, no proscription run against her demand during the lifetime of her husband, and the tableau acknowledging it was tiled and homologated within less than ten years thereafter, and more than years elapsed thereafter before this suit was filed.

There was no law requiring the inscription of her tacit mortgage until the 1st of January, 1870 — only four days prior to the sale.

We think the judgment in favor of the plaintiffs and against the appellants was erroneous, and it is, therefore, ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and reversed, and proceeding to render such judgment as should have been rendered in the court below, it is ordered, adjudged and decreed that the judgment appealed from, in respect to the appellants, be annulled, avoided and reversed, and that all the demands of plaintiffs against them be rejected at their cost.

Mr. Justice' Todd dissenting on the motion to dismiss the appeal, takes no part in opinion upon the merits. Mr. Justice Fenner recuses himself on the ground of relationship to one of the defendants in the suit.

Dissenting Opinion.

Todd, J.

This was a suit instituted to annul an order for the sale;of succession,property, and the sale made thereuuder, and to recover the. lands purporting to have been conveyed by said sale; and the suit is against the party provoking the sale and the adjudicatee of the sale, and those who hold under her by mesne conveyance.

Among the grounds for the dismissal of the appeal, I find one substantially to the effect:

That all the parties to the suit in the lower court are not made parties to the appeal.

As the basis of the title to the lands held respectively by the several defendants was the succession sale mentioned, and the main and controlling object of the suit was to have the sale in question annulled, it is evident that all the defendants had a joint interest in the result of the suit, and were proper, if not necessary, parties to the same. The suit was not merely a cumulation of separate demands against different parties, between whom there was no privity or joint interest.

The record shows that there are a dozen or more defendants in the suit; that a judgment was rendered against a number of them on the 14th of April, 1883; another judgment was rendered against certain others of them on the 28th of February, 1885, and against the remaining defendants on the 22d of May, 1885 — being at different terms of the court.

The only appellants to this Court are the defendants against whom the last judgment was rendered. The other defendants, against whom the previous judgments were rendered, were never cited as appellees, and the plaintiffs-urge that these last referred to are not therefore parties to this appeal, and that the appeal should therefore be dismissed.

This is met by the appellants’ counsel by the contention that since the statute was passed, providing that appeal bonds should be made payable to the clerk, and this appeal having been taken by motion in open court, that all who are not appellants are necessarily appellees, and refers to 26 Ann. 220, 312, 356; 23 Ann. 370.

This would undoubtedly be correct if the judgment had been rendered again stall the defendants at the same term of the court, and the appeal had been taken by these appellants in open court at the same term.

By a Action of law all parties to such judgments are considered as present in court during the entire term at which the judgment is rendered, and thereby are affected by the appeal. But it has been repeatedly held, and may now be considered settled, that an appeal taken in open court at a term different from that at which the judgment was rendered, does not of itself make parties to the appeal the parties to such judgment. They must be cited. Hardy vs. Heaerson, 27 Ann. 95; Wheeler & Pierson vs. George A. Peterkin et al., not yet reported, and authorities there cited. . There was no citation to the parties to these prior judgments, nor to any of them, and therefore they are not before this court.

Among others not cited nor made parties to the appeal is Amelia E. Keller (Widow Gallager), who is charged as having fraudulently procured the order for the sale of the property of the succession, and purchased it illegally, and whose purchase is the very foundation of all the rights that the defendants claim to their respective properties, and who, according to the record, stands bound to them as warrantor.

To say nothing of the other parties to the suit, I cannot well conceive how this court could pass on the validity of the sale in question when the party who procured the order for the sale and the purchaser at such sale is not before us.

One of the counsel for the appellant, in his brief, describes Mrs. Keller (quoting), “asa necessary co-defendant in the suit” with his client.

The motion to dismiss, therefore, in my opinion, should prevail.

I therefore dissent from the opinion and decree of the majority maintaining the appeal, and thus dissenting on this point, I take no part in the opinion and decree relating to the merits of the controversy .


source: Caselaw Access Project

author: Fenner, J.

license: Public Domain

text:
    No. 9778.
    Smith Bros. & Co. vs. R. S. DeLeon.
    Questions of fact alone are involved, and the conclusions of the district judge are sustained.
    APPEAL from the Civil District Court for the Parish of Orleans. Rig]dor, J.

      T. Gilmore <& Sons for Plaintiffs and Appellants :
    1. A party to whom goods are sold will be held as principal debtor.
    2. The fact of his assumption of a commission for the vendor in an incidental employment-to buy a certain product will not affect his standing or the nature of his responsibility. Ewell’s Evans on Agency, pp. 7-8.
    3. New issues cannot be made by subsequent or supplemental answer introducing an inconsistent defense. Cross on Pleading, 67. A party will not be permitted to shift his defence at will- Bender vs. Belknap, 23 Ann. p. 763-4, and cases cited.
    4. Accounts settled and stated are binding on the parties in subsequent transactions. Hennen’s Digest, 515, 516, and cases cited^in brief.J
    5. Parol will be admitted to prove to whom credit is given. Authorities cited in brief.
    6. Unrestricted admissions pleaded in compensation extend to the whole character of the indebtedness. Compensation admits the claim sued upon. . Louque’s D., pp. 116,117.

      Thos. O. W. milis and B. O. Blliot for Defendant and Appellee:
    1. Where plaintiff sues defendant for the price, on the allegation of goods sold and delivered to defendant, and the proof shows that defendant was plaintiff’s agent, and that the goods were not sold to him, hut to third persons, through him as plaintiff’s agent, defendant will have judgment, because the allegata and probata, must agree.
    2. The contracts of sale and of mandate are different, and the resulting obligations, as also the actions to enforce said obligations are also different,
    3. An agency proved to exist is presumed to have continued, and the onus is on him who alleges that it ceased to exist.
    4. Where there is conflict of testimony between two witnesses, the opinion of the district judge hearing the testimony has groat weight. 23 Ann. 253; 24 Ann. 484.
    5. A witness who is candid, prompt and open in his testimony will be believed in preference to one who is evasive, shows over zeal, and states facts against his firm only after long and tedious cross-examination. 29 Ann, 768, Breard vs. Insurance Company,
    (i Indebtedness accruing after the date of an attachment suit, or facts subsequently transpiring cannot aid the plaintiff. Such a suit must stand or fall on the condition existing at the date of its institution. Bead vs, Ware, 2 Ann. 498; Price vs. Merritt, 13 Ami. 526 ; Denegre vs. Milne, 10 Ann. 324; Todd vs. Chouse, 14 Ann. 426.
    7. Attachment on allegation of non-residence will be dissolved where proof shows that the defendent has a fixed domicile in the place where the suit is brought. O. B. 240; 21 Ann 173; Cross on Pleading, § 370.
    8. When plaintiffs fail to show the existence of a debt, the attachment must be dissolved. C. P.208,239,243.
   Tlie opinion of the Court was delivered by

Fenner, J.

This suit is upon a balance of account for goods, wares and merchandise alleged to have been sold and delivered by plaintiffs to defendant, and for advances made to him, and is accompanied by an attachment of defendant’s property.

The defense is substantially a denial that defendant purchased goods from plaintiffs, and a claim that the relation between them was simply that of principal and agent, under which defendant, a resident of Central America, solicited orders for goods from dealers in that country and transmitted them to plaiutiffs, who filled theiii and sent the goods to defendant to be delivered to the parties and to collect and remit the price, for which the latter received no other compensation than a commission of two per cent on the amount of said sales.

The above statement involves the controversy in the case which turns exclusively upon questions of fact. The case is one of the most perplexing we have ever encountered. The brevity of this opinion will afford a scant indication of the long and patient labor we have expended in the study of the enormous volume of oral testimony, correspondence and accounts presented in the record, and in the weighing and comparison of the various facts and circumstances, some of which tend to support the theory of plaintiffs while others as strongly corroborate that of defendant.

But there are some undisputed facts which give to defendant’s position a strength which plaintiffs have not, in our judgment,- overcome,

1st. It is clearly established that from June to December, 1884, the relation between the parties was unquestionably that of principal and agent, under the precise terms stated by the defendant. This is evidenced by the correspondence, which embraces all the features of a written contract. As the business continued without interruption, plaintiffs’ contention that the terms of this contract were changed and an entirely new relation established between the parties, throws upon them the clear burden of proof. There are no writings evidencing such a change, and plaintiffs claim that it -was the result of oral agreement between the parties during the presence of defendant in this city in December, 1884.

Plaintiffs’ testimony on this subject is not satisfactory. It is very confused as to dates and is guarded and uncertain as to expressions, almost admitting that the new agreement was never reduced to particular and distinct expressions on any special occasion, but was merely a general understanding between the parties as the result of all their interviews.

We reach the conclusion that however clear and honest may have been plaintiffs’ interpretation of -these interviews, such understanding was on their side only and is not brought home to defendant with sufficient certainty to justify us in holding that it abrogated the clear written contract. Defendant denies it point blank and in toto. It requires something more than a vague and one-sided understanding of oral interviews to change a written agreement.

2d. While giving full faith to the honesty of the respected plaintiffs in their interpretation of these interviews, circumstances are not wanting to sustain the equal honesty of defendant in taking an opposite view. In all his dealings with parties in Central America from beginning to end, he never, at any time, assumed the role of principal, but acted always and exclusively as the avowed agent of Smith Bros. He .never assumed to re-sell goods or make any bargains whatever on his own account, but always delivered the goods consigned to him to the. parties for whom they were ordered and under whose marks they were shipped, at the invoice prices of Smith Bros. & Co., without any profit whatever to himself, other than the two per cent commission which plaintiffs continued to pay him. Even in the latest act of the business when, before any difficulty and at a time not suspicious, he took notes from a party for over-due account, the notes were given payable to <CR. S. DeLeon, agent of Smith Bros. & Co.” These facts powerfully sustain the honesty of defendant’s assertion that, from first to last, he considered himself to be acting as the simple agent of plaintiffs.

Inasmuch as his distinct and unqualified assent was necessary to change the original contract, we are bound to hold that it is not shown to have been voluntarily and understanding^ given.

3d. The judge a quo has decided this case in favor of defendant and nothing less than a moral certainty that he has committed error could justify us in disturbing his conclusion. As already intimated, we are far from feeling any such certainty.

We might consume many pages in discussing the forms of accounts and various expressions in the correspondence, which are relied upon by either side in supporting its theory ; but we shall content ourselves with alluding to but a few of these points.

Thus plaiutiffs claim that defendant is estopped by rendition of accounts to him in his own name and his acknowledgment thereof.

But similar accounts were rendered to him on October 1st and November 1st, 1884, when the relation of agency existed without dispute. He states that he regards them simply as accounts against him as agent, showing the amounts due for goods ordered by him, and which he was charged with -the duty of collecting and crediting him with amounts remitted by him.

This is reasonable and consistent with the course of dealing between the parties.

Again, plaintiffs produce several of defendant’s letters in which he sends orders for indicated parties, and directs them to be charged to his account. But in the majority of his orders he makes no such request. Yet all rested on the same basis, and defendant claims that the direction was mere surplusage intended as an order to charge to his agency account, as a basis for his commissions, which was done in all cases whether expressly ordered or not.

Finally plaintiffs say that defendant’s action in taking notes from one or two parties for their accounts, showed that he was not acting as agent because he had no authority to sell on time. But the whole course of dealings show that, from the beginning, goods were delivered before payment and collections were not actually made for considerable periods afterward.

This was certainly selling on credit though not, perhaps, on any fixed terms of credit. It is not shown, however, that defendant did sell on fixed terms of credit; but it rather appears that the notes were taken as the best settlement of over-due accounts and, as before stated, they were made payable to ‘‘R. S. DeLeon, agent of Smith Bros. & Co.’’

On the whole we conclude that nothing adduced by plaintiffs is irreeoncilable with the continuance of the clear written contract under which the dealings began and which is not shown to have been changed by evidence sufficiently certain to bind the parties.

If such change was made, plaintiffs have themselves to blame for not having proof of the change as clear as that which established the original contract.

Now, after plaintiffs had ordered the cessation of the dealings, they sent their agent to Central America to settle with DeLeon, who waited on him witli this account. DeLeon thereupon offered to turn over to him the notes and accounts which he held as their agent for the goods sold, which fully covered the account and, as the evidence shows, have been since collected; but the agent declined to accept them and returning to New Orleans, advised plaintiffs of his course, whereupon this suit was brought and this attachment levied.

We concur with the judge a quo that his action and this attachment must fall under the facts of this case, and that plaintiffs’ only rights against the defendant must be vindicated in an action for the settlement of the latter’s agency.

Judgment affirmed.


author: Manning, J. Fenner, J. Todd, J.

text:
    No. 9663.
    Stephen Duncan vs. David Wise.
    A wilt of sequestration is issuable by a creditor having a special mortgage when he apprehends that the mortgaged property will be moved out of the State before he can reap the benefit of his mortgage, and therefore the propinquity of the property to the border of another State is an element to be considered in estimating the strength and reality of bis apprehension.
    It is not what a debtor really intended to do that is to be considered in determining whether a sequestration has been lawfully sued out, but whether he was doing and. saying that from which his creditor might apprehend the existence of an intention to do the hurtful thing that a sequestration would prevent.

      A mortgage-creditor who lias waited longer for payment than he stipulated to wait, whose debtor has defaulted on the payment of several of the notes, and who proceeds to a foreclosure only on the eve of the last-maturing note, is not liable in damages when he lias used conservatory process to detain the property in the custody of the law under circumstances justifying it.
    On separate demands in the same suit, a judgment was rendered against the defendant, and another judgment for a smaller amount in favor of defendant against plaintiff. Defendant appealed devolutively from the two judgments.
    Held: 1. The devolutive appeal did not deprive plaintiff of the right to execute his judgment.
    ‘2. The two judgments being only devolutively appealed from were equally exigible, and tbe law operated a provisional compensation between them, effective so long as both judgments existed unreversed.

      3. The plaintiff’s right of execution was confined to the excess of his judgment over that of defendant against him.
    4. The existence of execution of a fi.fa, for such excess only was not such voluntary acquiescence in the judgment of defendant against plaintiff, as would prevent the latter from ashing amendment of such judgment on defendant’s appeal to this Court.
    APPEAL from the Ninth District Court, Parish of Tensas. Young, J.

      Steele & Garrett, for Plaintiffs and Appellee :
    1. To sustain a sequestration, the question is not what the friends and neighbors of defendant thought or believed he would do, but what had the plaintiff a right to believe the defendant was doing and would continue to do, from his own acts, declarations and tacit admissions. Allen, Nugent & Co. vs. Champlin, 32 Ann. 515; Portle vs. Price, 31 Ann. 363,
    2 A writ of sequestration is a lawful act, and in event of failure there should be no dam - ages arder the ordinary rule, and in no case should the damages exceed the actual and direct loss. Braxton vs. Broom, 15 Ann. 618.
    3. "Upon the dissolution of a sequestration, no damages can he allowed in the same suit, as in case of injunction. This question does not depend upon the residence of the parties, but upon the fact that there is no statute authorizing such imposition of damages. Muzan vs Gore, 24 Ann, 208.
    4. A judgment giving interest from demand upon damages claimed will be reversed. 37 Ann. 497; 15 Ann. 504; 1 Ann. 383.

      Kennard, Howe & Prentiss on the same side.

      Wade P. Young, for Defendant and Appellant.
   The opinion of the Court was delivered by

Manning, J.

In January, 1881, Stephen Duncan sold to David Wise, the Newfoundland plantation, in Tensas parish, for $20,000, of which three thousand were paid cash, and for the residue four notes were executed secured by mortgage and vendor’s lien. One of these notes was paid and executory process was obtained on the others in the latter part of 1884, which was discontinued and an ordinary suit for foreclosure was instituted in January, 1885. At the same time the. mules, farming implements, and other movables were sequestered.

The foreclosure of the mortgage was not resisted nor any portion of the debt denied, but the defendant answering the suit reconvenes for fifty thousand dollars- as damages suffered by reason of sequestration, and a jury gave him five thousand four hundred dollars therefor, nearly one-half of the unpaid principal of his debt.

The sole question is the lawfulness of the sequestration.

The writ is issuable by a creditor having a special mortgage when he apprehends that the mortgaged property will he moved out of the State before he can have the benefit of his mortgage. Code Prac. Art. 275. The plantation is on the border of the Mississippi river. The shore of another State is just opposite. Its propinquity is an element to be considered in estimating the strength, and reality of the creditor’s apprehension.

The plaintiff alleged his apprehension in the words of the Code and states the reason of it;—

“ That the said David Wise has notified the attorneys of petitioner that he had arranged and concluded to turn over all the mules and work stock on said plantation and mortgaged premises in payment of an indebtedness to V. & A. Meyer & Co., of New Orleans; and that said V. & A. Meyer & Co. have already caused said property to be once removed from the mortgaged premises; and though said mules were afterwards returned, the petitioner fears that said David Wise will conceal, part with, or dispose of the said mules and other movables upon said plantation, on which petitioners privilege and right of mortgage rests during the pendency of this suit.”

A brief recital of antecedent events will shew whether cause for apprehension had been given by the defendant, for it is not what he. really intended to do or not to do that is to be considered, but whether he was doing and saying that from which his creditor might apprehend the existence of an intention to do the hurtful thing that a sequestration would prevent. Allen v. Champlin, 32 Ann. 511.

Duncan wrote to Wise early in November 1884 that he would require a payment of $4250 on December 1st and $2200 in January, and would be content with nothing less The debt was double those sums and was all due or would be in January. At the same time he wrote his lawyers that he did not want to foreclose the mortgage but thought an urgent letter from them to Wise would ensure a compliance with his demand. Wise and the lawyers had an interview on the J9th of November and the conversation then had caused the lawyers to take out the sequestration. Their accounts of it do not materially differ.

Wise had given V. & A. Meyer of New Orleans a second mortgage on the plantation and that firm had advanced him the money to buy mules. He thought they had a claim on the mules superior to Duncan’s, or rather to use his own language he ‘‘thought as the muleswere mortgaged to V. & A. Meyer that they belonged to them,” and he told the lawyers so. He proposed to surrender the plantation to Duncan and the mules to the Meyer firm. There, were twenty-eight of them and cost $140 apiece.

Mr. Steele and Mr. Garrett both swear that in this conversation Mr. Wise stated that the mules were not subject to Duncan’s mortgage and that he had arranged with V. & A. Meyer that they should take tlie mules and cancel tlieir mortgage on ,the property, and that this statement, taken in connection with the fact that the mules were located so near the Mississippi river, the boundary between Mississippi and Louisiana, and could be moved in a few hours out of this State, induced them to believe that the defendant intended to remove (he mules herefrom. They believed he would be advised so to move the mules beyond the jurisdiction of the Tensas court in order to avoid their being subjected to Duncan’s mortgage, and they promptly provoked the issuance of the writ to thwart the execution of this plan. But they took unusual precautions (,we are quoting from Mr. Steele’s testimony) to prevent interrupting business or annoying Mr. Wise. We instructed the sheriff to make Mr. Wise’s manager, or any other person he might select, custodian of them, and not to interfere with the use of the mules by Mrs. Wise or with the gathering of the crops.”

The defendant’s version will be given in his own words:

“I told them, if Mr. Duncan would take the place, that V. & A. Meyer would take the mules, as they were mortgaged to them. I never told Steele & Garrett that I would move the mules from the State, and never expressed any such intention. I could have moved the mules from the State, had I desired to do so. I was informed of the contemplated seizure in time to have removed the mules, had T desired to do so. I was offered assistance in removing them, but I declined to remove them.”

Neither Mr. Steele nor Mr. Garrett asserted that the defendant had said he would move the mules from the State. Their whole argument is based on the theory that such positive declaration of intention is not necessary to justify th'e. issuance of the writ, and it is manifest that if he had made that declaration there would be no dispute about their client’s right to the writ. In attributing to Mr. Wise an intention to remove the mules it is not at all necessary to impute to him dishonesty, for he made it manifest that he thought Duncan had no claim to the mules. The Meyers were his friends and factors, and their money loaned to him had bought the mules and he believed that honesty rather required he should aid them in getting them. But Duncan had legal claims on the mules that he could lawfully assert and enforce, and it was not his policy just then to convince his debtor by argument that-he was in error of law, but to use the machinery of the law to prevent his debtor from making practical demonstration of the sincerity with which he nursed his error.

Other creditors than the plaintiff thought the condition of the defendant’s business required and justified resort to extraordinary procese. His friends V. A. Meyer took out an attachment on 2d of December, after the discontinuance of the plaintiff’s ñrst sequestration and.off the same day the: executory process was issued, aud alleged that they verily believed that Wise was about to dispose of his property with intent to defraud his creditors and that he was about to convert his property into money with intent to place it beyond their reach. It is no answer to this to say that their action was provoked by the plaintiff. If Wise’s friends aud factors believed that he was about to act dishonestly in December, Duncan’s apprehensions cannot be considered baseless aud ill-founded when he lirst sequestered in November or when he made the seizure complained of in January. These identical mules were seized under that attachment aud were removed from the plantation although they were soon returned, the attorneys who obtained the attachment becoming satisfied that the plaintiff had the superior lien.

Other creditors did likewise. Wise was a merchant as well as planter. Friedman Brothers of Boston and Heller of Tensas attached. Indeed it is not pretended that Wise was not insolvent at this time. The ruin of his credit is the thing he complains of. He repeats in his testimony that biit for the plaintiff’s harsh and precipitate action his credit would have remained good. It would be perilous for any one to be a creditor of a Louisiana planter or merchant if he is liable to be mulcted in damages for using against his insolvent or embarrassed debtor such process of law as has been provided for emergencies such as this record discloses.

But in truth an honest man’s credit is not ruined by disaster in business if general belief in his honesty survives the disaster. His credit receives a temporary shock but is not destroyed. One Moss, who is sometimes inquired of by a commercial agency, touching the standing of his neighbors in a business point of view and who furnishes the information desired, says a seizure of a merchant’s property is a deathblow to his commercial credit.” The experience of the commercial world shews that a merchant’s credit suffers only an intermission if his ‘‘ failure ” is wholly without moral blame. Mr. Meyer says “ we considered it hazardous to make him (Wise) further advances in view of the complication this seizure created. A seizure of his property has the effect of seriously damaging his commercial reputation and credit.” Undoubtedly for the time, but the particular .reason why his Arm as prudent men considered it hazardous to advance-further to Wise was the seizure of the plantation, because that seizure made doubtful whether Wise could longer cultivate it. Now surely a mortgage-creditor wlio has waited longer for his money than he stipulated to wait, whose debtor has defaulted on the payment of two of a series of four notes and who proceeds to a foreclosure not until the eve of the last-maturing note, cannot be expected to defer longer simply because a seizure will create a complication that will make it hazardous for any one to advance him further. And as little can he be expected or required to forego using any process for detaining in the custody of the law the property upon which he has a lien for the security of his debt.

Sequestration is a harsh remedy but the Code of Practice has particularized the instances in which it may be used. The plaintiff believed he had good reason for the apprehension he felt. The defendant’s declaration to him was well calculated to inspire it, and his use of the writ was authorized under the circumstances. But if the remedy was harsh, it was not harshly used. The plaintiff’s instruction to the sheriff deprived it of any more injury than was inevitable, and whatever damage ensued was necessarily incident to the service of the writ.

The defendant denies the right of the plaintiff to urge the rejection of the reconventional demand for damages in this Court because, as he alleges, the plaintiff has acquiesced in the judgment and therefore cannot obtain any relief here.

The judgment on the verdict of the jury was in favour of the plaintiff for the amount of the notes and interest with recognition of his mortgage and vendor’s lien, and in favour of the defendant for $5400 as damages for' the illegal sequestration which was dissolved. The defendant appealed devolutively and the plaintiff took out execution and the property was sold. The writ of fi. fa. necessarily ordered the execution of the judgment as it stood, i. e. the sale of the mortgaged property to pay the mortgaged debt subject to the writ of $5400 awarded the defendant as damages. The plaintiff in his answer to the appeal prays an amendment of the judgment below in this, that the sequestration be sustained and the damages disallowed. The acquiescence alleged is the execution of the judgment with a credit upon it, and the defendant insists that the appellee cannot now disavow the credit.

He cites Williams v. Duer, 14 La. 523, as conclusive of the question and De St. Romes v. Steam Press Co., 31 Ann. 228, as confirmatory of it.

In the first case the plaintiff Williams, having procured an order of seizure and sale, was arrested in its execution by an injunction on this ground among others, “that the purchaser of the plantation was exposed to the risk of being disturbed by an outstanding mortgage in favour of the Bank of Louisiana tile existence of which had not been declared at the time of the contract and against which the plaintiff his vendor is bound to warrant.” The district court was of opinion that there was not sufficient evidence of the extinguishment of the Ban^ mortgage, and while dissolving the injunction ordered that the plaintiff should give security against that incumbrance. The plaintiff had judgment for his mortgage-debt and the property was ordered to be sold. The defendant appealed. The plaintiff gave the security as ordered and in his answer to the appeal prayed the reversal of the judgment so far as it condemned him to give the bond of indemnity. The Court say: —

“ If the only question before the Court had been, whether the appellee was bound to furnish a bond of indemnity, and he had acquiesced in a judgment against him by giving the bond, it appears to us clear that he could not have been permitted a direct appeal under Article 567 of the Code of Practice, which provides that a party against whom a judgment has been rendered cannot appeal, if such judgment have been confessed by him, or if he have acquiesced in the same by executing it voluntarily.

“How is -the case varied, when that question is combined with others, all of which are solved in his favor except that, and when, instead of a direct appeal, he seeks, indirectly by a proceeding authorized by the Code and tantamount to a cross-appeal, to rid himself of the condition in which he acquiesced, and from which he could not escape by such direct appeal? We think the appellee ought not to be permitted to seek by a circuitous proceeding a relief which the law forbids him directly.”

With the greatest deference to the court that so ruled we think it was straining the point too much. Giving the bond of indemnity was but an incident in the proceedings, an act ordered to be done to protect the defendant from a possible claim against which the plaintiff as his vendor was bound to warrant him. It does not appear to us to be that acquiescence in a judgment that precludes a party from disputing its correctness and seeking relief from it. The present plaintiff like Williams had a judgment for all he claimed. The counter-judgment against him was obtained by his adversary in the same suit. He could not execute the judgment except in its entirety. He could not obtain a writ of fi. fa. upon it without the credit set forth in it, and to hold that the execution of the judgment in the only way possible to him must be deemed a voluntary acquiescence in that part of it that condemned him in damages would be giving the defendant’s devolutive appeal all the force and effect, of a. suspensive appeal. The acquiescence, if there he any, was enforced and not voluntary. Johnson v. Clark, 29 Ann. 762.

The provisions of the Code of Practice, arts. 567, 578, 592, formulate the right to execute a judgment pending an appeal if it is not suspensive, attach to the voluntary execution of a judgment, the penalty of deprivation of appeal, and grant to appellees permission t.o have a judgment amended by an answer and prayer therefor. The execution of a judgment pending a devolutive appeal is always at the peril of the Jndgment-creditor, for if reversed the execution stands for naught. If the execution is voluntary he cannot appeal, and we approve the ruling in Williams v. Duer so far as it holds that when one cannot appeal because of a voluntary acquiescence neither can he amend by answering the appeal, but in that case as in this the acquiescence was not voluntary, and the prayer for an amendment is not shut out thereby.

In St. Romes v. Cotton Press Co., 31 Ann. 228, the plaintiff and appellant moved to withdraw' her appeal which the defendant opposed. The Court sustained the defendant saying, “an appellant may at any time acquiesce in the judgment appealed from, bnt the effect of that acquiescence only operates to prevent any change in the judgment for the benefit of the appellant” — and no one will dispute that.

The defendant’s brief informs us that the plaintiff has got hack the property he sold the defendant in 3881 for $20,000 with all the improvements he put on it for the balance of the purchase-price and after deducting the $5100 damages awarded the defendant. That is a misfortune the risk of which he took when he bought on credit. It is apparent from the plaintiff’s letters t.o his- lawyers that he would gladly have avoided taking bade the property even at such a sacrifice of the defendant’s interests and that he much preferred the payment of his debt in money.

The defendant’s counsel gloomily predicts t.he consequences to our State and to its agricrrltural prosperity if such proceedings as these are sanctioned by the courts. He is mistaken. Capital never flows in insecure channels. Our fields cannot he cultivated without it. Confidence, the very life-blood of credit, can be created only by giving the capitalists assurance that the law will inexorably enforce his claim when it is just.

The defendant- calls attention to a supposed error in the date of payment endorsed on one of the notes. That payment is stated to be of the interest up to Deo. 1,1884 aud the judgment is'for interest from that date.

It is ordered and decreed that the judgment of the lower court in favour of the plaintiff for the amount of his mortgage claim, interest and attorneys fees, with such credits of payments as are therein mentioned, aud for recognition of Ids mortgage as therein set out is affirmed, and that the judgment in favour of the defendant against the plaintiff for live thousand four hundred dollars as damages on his re-conventional demand aud dissolving the sequestration he avoided and reversed, and it is how adjudged that the defendant David Wise take nothing by said demand and that the writ of sequestration is maintained and ordered to he enforced, the defendant to pay all costs of both courts.

By the Court:

The application for rehearing in this case is allowed, and the rehearing granted is restricted to the question of the alleged acquiescence of plaintiff in the judgment rendered on defendant’s reconventional demand for damages, as affecting plaintiff’s right to move on appeal as brought up by defendant, for the reversal of said judgment.

On Rehearing.

Fenner, J.

The only question open for our consideration under the terms of our order granting a rehearing is; Whether the plaintiff hap cut off his right to ask a reversal of the judgment rendered against him on the reconventional demand of defendant because he has '• acquiesced in the same by executing it voluntarily." C. P. art. 567.

What are the facts

Plaintiff recovered a judgment against defendant for (say) $15,000, and, in the same decree, defendant recovered a judgment against plaintiff for $5400.

Defendant appealed devolutively from the whole decree, thus bringing before us for review both judgments.

In this case, the cause of action in the reconventional demand did not grow out of, or have any connection with, the principal demand, but was entirely distinct from it — the reconvention being allowed solely because plaintiff was a non-resident.

The two judgments were as separate and distinct as if rendered in different actions — so much so that, had one of the judgments only been appealable, it alone could have been appealed from and the other could not have been reviewed. 3 Rob. 387; 10 Rob. 438; 11 Rob. 12; 5 Ann. 105: 6 Ann. 579; 14 Ann. 429.

Proin this essential separateness of the two judgments, it follows that the execution of one, while implying acquiescence in it, by no means implied acquiescence in the other. To deny plaintiff’s right to execute his judgment would be to give to defendant’s devolutive appeal the effect of a suspensive appeal.

Had plaintiff simply issued execution for the whole amount of tlio judgment in his favor, certainly no inference of acquiescence in the other judgment could have been drawn. But had he done this, he would have exceeded his legal right. Why? Because the two judgments co-existing, and being equally exigible, the law operated a compensation between the two — a provisional compensation to receive -effect as long as both judgments existed or until one of them had been reversed on appeal. Sandel vs. George, 18 Ann. 526; Lemane vs. Lemane, 27 Ann. 694.

If he had issued execution for the whole, the defendant’s right, by injunction, to reduce it to the extent of the excess over his own judgment, would have been perfectly clear under C. P. 298, par. 10.

Is plaintiff’s case to be prejudiced because he has respected the legal rights of defendant and the plain mandate of the law, by issuing execution only for the excess of his judgment over that of defendant?

If plaintiff were ashing an amendment of the judgment in his favor, he would be precluded by his voluntary execution of it; but as to the judgment against him, there is no such acquiescence. He has simply .submitted to the effect which the law gave to it as provisionally compensating his own judgment so long as it existed uureversed. This submission he could not avoid; it was forced and not voluntary; and does not constitute such voluntary acquiescence as precludes him from .ashing that, in our review of that judgment, we should consider his rights as well as those of defendant.

The correctness of plaintiff’s judgment was never questioned below or in this Court. It greatly exceeded that of defendant in reconvention. It was not suspensively appealed from; and upon what principle he could be refused the right of executing it to the extent of its excess, is certainly not apparent. Nor can we see how the exercise of this plain right should involve acquiescence in the other judgment.

Had he apjilied to the clerk for a writ of fi. fa. for the whole amount of his judgment, and had the clerk refused to issue it without crediting the amount of the concurrent judgment against him, and had he applied to the court for relief by rule on the clerk, it is manifest that the 'court would have sustained the clerk and refused relief. This makes it clear that, in the execution issued, he exercised his whole legal right and waived none.

It is, therefore, ordered that, our former decree herein remain undisturbed.

Todd and Watkins, JJ., dissent, and the former reserves the. right, to file reasons hereafter.

Dissenting- Opinion.

Todd, J.

The plaintiff obtained a judgment against the defendant, for $12,750 subject to credits amounting to about $2000, and in the same suit judgment was rendered in favor of the'defendant on a re-conventional demand for $5400. The defendant took a devolutive appeal to this court, and the plaintiff, in his answer to the appeal pray» that the judgment in reconvention against him be reversed.

The counsel for the defendant in this court denies the right of the plaintiff to demand the reversal of the judgment in favor of the defendant or to ask an amendment of the judgment in any respect on the ground that the plaintiff had acquiesced in the judgment.

It further appears that this alleged acquiescence was based upon the following facts:

Both plaintiff and defendant obtained an order of appeal from the judgment devolutive and suspensive. Defendant Wise alone perfected Ids appeal, the same being devolutive.

Plaintiff, a few days after the order of appeal was rendered, caused execution i,o issue, and in the writ of execution the amount of the judgment of Wise, defendant against him, for $5400, was credited on the judgment in his favor against Wise, and the writ issued for the balance, and the property specially mortgaged tp secure the debt and recognized in tlie judgment, was seized and sold, and adjudicated to the plaintiff.

The question, and the only one now before the court for determination, is whether the acts of tlie plaintiff and appellee with respect to this judgment, can he held .to establish his acquiescence in the judgment in contemplation of law, so as to debar him from seeking to reverse it, or change it in his favor.

After a thorough consideration of the matter and a close re-examination of the authorities bearing on it, I am constrained to answer this question affirmatively.

There were two distinct judgments rendered .by the district court, one in favor of plaintiff for the amount of his demand, and recognizing tlie special mortgage securing it on tlie mortgaged property. The other on a claim in no maimer connected with t]ie principal demand, and urged by way of reconvention.

Tne judgment in the principal demand, whilst allowing, by its terms, certain credits oil this demand, directs or allows no credit for or on account of the reconventional demand. The judgment did not, therefore, by its terms, require that this credit for the reconventional demand, liquidated by a judgment though it was, should have been inserted or allowed in the writ or indorsed upon it.

In our former decision the opinion expressed why this crediting the one judgment upon the other and causing execution to issue for the balance did not show an acquiescence, was, because such a course was not voluntary, but compulsory.

The plaintiff was not compelled to execute his judgment at all; at least, if he desired to bo safe from any complication or risk, and execute his judgment in its entirety, he might have waited until the defendant’s appeal was tried.

He might have had execution issue on his judgment, giving only the credits that the judgment itself allowed. It was a distinct, separate and independent judgment from the other on the reconventional demand ; and though such execution might have been met by an injunction, yot suoli injunction could only have affected the execution of plaintiff’s judgment to the amount of tlie judgment in reconvention, and plaintiff could thus have gotten the benefit of his judgment and the right to execute it for the excess of one judgment over the other, without contributing any act of his own to accomplish this object.

If plaintiff had gone forward and paid this judgment, and thus have gotten it out of his way, no one could then doubt that he had acquiesced in it. What he did do was essentially equivalent to its payment. By crediting it on his judgment he took it in payment _pro tanto of tlie judgment. Two judgments stood against each other for different amounts, he took both under his control, imputing one, so far as it went, to the payment of the other.

I cannot, from any standpoint, see how this disposition of the defendant’s judgment could be regarded in any other light than the virtual execution of the judgment. That when the credit was given for its amount, that it was thereby extinguished, and of course, fully executed.

Thus concluding, I am of opinion that the plaintiff by his acts lost the right of changing or amending the judgment in his favor either through an appeal or by prayer for an amendment in his answer to the appeal.

I therefore dissent from the opinion and decree of the majority of the court.

Justice Watkins concurs in this opinion.


author: Todd, J.

text:
    No. 9672.
    Wade R. Young vs. Stephen Duncan, et al.
    This Court has ho juiisdiction of a suit instituted to have an attorney’s privilege for his fee for less than $2000 recognized on a judgment exceeding that sum.
    APPEAL from the Ninth District Court, Parish of Tensas. P. Leivis, Judge ad hoe.

    Plaintiff in, propria persona, Appellee.

      Kennard, TIowe <& Prentiss, and Steele rB Garrett, for Defendant and Appellant:
    1. The matter in dispute is the existence, interpretation and effect of an alleged judgmenin reconvention for $5400, the right of Duncan to have the rules of compensation applied to it, and the right of plaintiff to enjoin with reference to that judgment. The judgment is indivisible; the plaintiff seeks and has obtained an injunction witli reference to the whole of it, and the consideration of the dispute requires a consideration of the judgment as a whole. The value of the rights of Duncan in the premises, which plaintiff seeks to enjoin and destroy, is $5400; and if tbo alleged judgment be considered a« a fund, it is a'fund of 85400. 37 Ann. 7; 34 Ann. 201 ; 31 Ann. 297; 35 Ann. 206.
    2. The opinion heretofore rendered should be maintained, for the reason therein given. Both this case and Bo. 9663 were before the Court at the same time, the counsel the same, and an alleged judgment in that the foundation of this. See Day vs. B. O. P. By. Co., 37 Ann. 131.
    3. The judgment in this canso should be reversed.

      (a) An injunction cannot he to restrain a creditor from compensating a claim of his debtor, with a claim of his own, under the circumstances here shown. As well might one enjoin the rising of the sun, or enjoin the Civil Code. The compensation, acts, -pleno jure, and even without the knowledge of the debtors, and relates back to the simultaneous existence of the debts. Dig. 16, 2; Larombiere on Ob., vol. 3, pp. 616, 018. Bo defendant could obey such an injunction, for the compensation would take effect in spite of any effort at obedience.

      (61 The alleged judgsaent of §5400, in favor of Wise against Duncan, never had any exist* onco. as claimed by plaintiff. The moment jndgment was given in favor of Duncan against Wise, for about §17,500, and for Wise in reconvention for $5400, the effect was the samo as if a balance had been struck and judgment given for Duncan for that balance C. P. 36,9; Levy vs. Poos, 32 Ann. 1029. Duncan owed Wise nothing, and there was nothing for plaintiff’s claim to operate on.
    (c) Wise is admitted to be insolvent, and to make Duncan pay his lawyer would be irrational and unjust. Illustrations given.

      {d) The claim of plaintiff that he is a third person, to whoso prejudice compensation cannot take |place, is unfounded. R. O. O. 2215; C. R. 1298, prohibit compensation only to a debtor who has become a creditor after the light of a third person has attached. Duncan was a creditor of Wise before plaintiff was even employed, and had his judgment before or at least at the time of the judgment in reconvention. Duncan does not, therefore, come within either the letter or the spirit of the Art 2215.
   On Rehearing.

The opinion of the Court was delivered by

Todd, J.

Further reflection lias satisfied us that this case is not within our jurisdiction.

This is a suit to have recognized and enforced a privilege for $1650 on a certain judgment described in the pleading.

It was accompanied by an injunction, taken out against the judgment debtor, to prevent him from paying, compensating or in any manner extinguishing 'the judgment on which the privilege was claimed. The judgment in question exceeds the sum of $2000.

If the suit was simply to recover a debt of $1650, of course it would hot be contended by any one that such a suit would be within the jurisdiction of this court. The privilege claimed does not enlarge the demand, but is exactly commensurate wiili it, nor is it affected by the injunction, since it is only invoked as a means of the preservation and enforcement of the privilege. The petition for its issuance contains no demand for money in the way of damages or otherwise ; nor does it enjoin the party from doing or omitting to do anything which would cost him a single dollar. As stated, it is simply and purely a suit to enforce a privilege on a judgment exceeding in amount the privilege claimed.

It does not seek to alfer or annul that judgment to any extent.

If this were a suit to enforce the vendor’s, lessor’s or any other kind of a privilege, though the action might ho directed against property ten or a hundred-fold greater in value than the amount of the demand, there could be no possible pretense that tbe value of tlie property could invest this court with jurisdiction. It is not contended that there is anything iu the nature or character of a judgment that puts it on a different footing from other property. So far as relates to the question as presented iu this case, the fact that it is a judgment is of no significance whatever. A judgment may he the subject of a privilege, and it may be seized and sold to satisfy it, like any other property.

Note of the Reporter: In this case the original opinion and decree having been set asid e are, under the rule of the Court, not reported.

The question of jurisdiction here presented is very analagous to that involved iu a revocatory action. The creditor in such action has no privilege on the property against which the action is directed^ but he has something that it is equivalent to it; he asserts the righ t to have the sale of the property revoked in order that his debt may be paid out of it, and'the property declared subject to his debt. In such an action it has been repeatedly held that the jurisdiction of this court is not determined by the value of the property, which is sought to be reached by the creditor, but by the amount of his demand.

So where as in this instance a creditor is seeking to save his debt by fastening a privilege on property exceeding the value of his debt, the jurisdiction of this court is determined not by the value of the property, but by the amount of the debt claimed.

But as a conclusive test of this matter, suppose that Mr. Duncan, the defendant in the suit, either before or after its institution had stepped forward and jraid to Mr. Young the plaintiff the amount of his demand, say $1650, would it not have extinguished his demand in toto, and left surviving to him no right or cause of action whatever in whole or iu part ? There can be but one answer to this question.

It thus plainly appears that this court has no jurisdiction over the controversy.

It is therefore ordered, adjudged and decreed, that the decree of this court heretofore rendered in this cause be annulled and set aside, and it is now adjudged and decreed that the appeal be dismissed, at the cost of the appellant.


text:
    No. 9800.
    Johnson & Randolph vs. Arthur McLaughlin.
    Tho case involves only questions of fact, which aro examined and determined in accord anee with the judgment below.
    APPEAL from the Civil District. Court tor the Parish of Orleans. Tissot, J.

      T. Gilmore & Sons, for Plaintiffs and Appellees :

      W. S. Benedict, for Defendant and Appellant:
   The opinion of the Court was delivered by

Fenner, J.

Plaintiffs, managers of a cotton press, entered into an agreement with defendant, a drayman, by which the latter was to haul all cotton which plaintiffs might have to haul in or out of the press, during the season of 1884-5, at a rate of twenty-four cents per hale, namely, eleven cents per bale inward and thirteen cents per bale outward. As defendant, however, -was a member of a labor organization, known as tlie Draymen’s Association, which assumed to regulate the charges of its members, and had fixed the rates at twenty-eight cents per bale, or thirteen cents for inward and fifteen cents for outward hauling, the agreement was, at his request, divided into two separate written contracts, viz: Contract A, intended for exhibition to the association, by which plaintiffs were to pay for the hauling at the rates of thirteen cents inward and fifteen cents outward ; and contract B, by which defendant obligated himself to pay to plaintiffs four cents per bale on all cotton hauled by him.

Plaintiffs bring this suit to recover $2325 18, alleged to he due on the last-mentioned contract.

Defendant admits the contract, does not contest the correctness of the account according to tho contract, and makes no pretense of payment j but avers that-, shortly after its date, the plaintiffs agreed with him to cancel and annul the contract B; and that, thereafter, the hauling was done and paid for exclusively according to the terms of conti act A.

Upon this defense the testimony of the parties is widely divergent.

Both agree that shortly after the hauling began, the Draymen’s Association passed a resolution requiring each member to go before a notary and make an affidavit that he receives full tariff rates, and a committee was appointed to carry the resolution into effect. Although the resolution itself does not so state, defendant says that he was required to swear that he received full tariff rates, without rebate.

In this dilemma, he appealed for relief to plaintiffs. Here the divergence begins. Defendant swears that plaintiffs then agreed to. cancel and annul contract B. Plaintiffs swear that, to accommodate defendant, and to enable him to placate his conscience in the matter of the affidavit, they agreed to pay him in full, according to the contract A, for the hauling as it was done through the season, without deducting the rebate, and that after tbe season was over, and the contract ended, defendant would then pay them the whole amount due under contract B.

Plaintiffs’ theory is sxrpported :

1st. By the decided preponderance of the oral testimony.

2d. By their retention and production of the written contract B,, which, if defendant’s theory were correct, should have been canceled or destroyed.

3d. By the absence of any consideration to induce plaintiffs to fore-go so substantial an advantage, secured by a positive contract with a responsible man, and by the maxim, “ nemo faeile prwsmnitur donare.'"

4th. •> By the fact that when, at the end of the contract, plaintiffs, presented their account, and demanded payment, defendant’s answer in writing, set up uo such defense, hut assigned other reasons for not complying with the demand.

5th. By the fact that the learned district judge, who saw and heard the, witnesses, found in favor of plaintiffs.

Under such conditions we have no hesitation in holding that the defense made is not sustained.

Judgment affirmed.


author: Watkins, J.

text:
    No. 9776.
    Bertrand Saloy vs. Hibernia National Bank.
    1. A bank which has received from a depositor, as collateral security for an account there-overdrawn, or which may be overdrawn subsequently, certain certificates or bonds payable to bearer at a future day for value, is entitled to bold the same as against one claiming ownership thereof ami alleging that one whom he had constituted the depositary of same had misappropriated them — unless the claimant shall allege and prove that the . hank’s acquisition was mala fide.

    2. A vendor of real estate that is charged wiih a general mortgage, who deposits with the notary passing the title, a sum of money or valuable securities as a guarantee that he will procure the erasure of same, incurs the risk of the deposit.
    APPEAL, from the Civil District Court for the Parish of Orleans. Lagar us, J.

      Bobt. Mott for Plaintiff and Appellant.

      T, Gilmore & Sons for Defendant and Api>ellee.
   Tite opinion of the Couib was delivered by

Watkins, J.

It is the object of this suit to recover tho possession of certain bonds of the city of New Orleans, known as certificate bonds issued under Act 58 of 1882 — two being of the denomination of $1000 each and ten of $50 each, and all of the aggregate amount of $2500— of which plaintiff claims the ownership.

He claims that on flie 1st of October, 1885, ho executed a title to a certain piece of immovable property described, to Mrs. Magioni, before William J. Casteli, a notary ]>ublio of the city of New Orleans, which was subject to a general mortgage, the erasure of which he obliged himself to the vendee to procure, and to guarantee the performance of this contract, he deposited the aforesaid bonds with the notary, until he should produce evidence of the cancellation of the mortgage.

For these bonds a receipt was executed on the 1st of October, 1885, by W. J. Casteli, notary, per Jas. J. Woulfe, expressing the purpose thereof as above set forth.

On the 1st. of January, 1886, plaintiff called for the bonds, but they were not to be found among the papers of Casteli, who had in the mean time died ; but upon enquiry they were ascertained to be in defendant’s possession.

Tn its answer the bank says that it is holder and pledgee of the twelve, certificates or bonds which it received from William J. Casteli as collateral security for moneys advanced and to be advanced to him, and to be applied to same, and to cover any balance that might remain due to the bank on the account of Casteli.

It also represents that, at the time of Castell’s death, he was indebted to the bank in a balance of $4,913.25, which is still due and owing, and for which the said certificates or bonds stand pledged; and that defendant is a holder of them in good faith, for a valuable consideration, before maturity, and that same are payable to bearer and negotiable and transferable by delivery only and without indorsement.

Defendant claims that on the 30th of September, 1885, Castell was duly notified that his account was overdrawn, and three days thereafter he pledged the bonds to the baulc to cover his account, as well as the amouut of his overdraft as any future, overdraft that might occur.

Plaintiff’s counsel admits in brief that “the testimony of Mr. Palfrey is clear to the point that the deposit of the bonds was made to cover the overdraft, and Mr. Woulfe’s statement was made regardless of the facts,” etc. Also that “ the bank afterwards continued to allow Mr. Castell to further overdraw his account, far in excess of the value of the bonds; and lie was overdrawn when he died in the sum of $4,913.25,” the exact sum claimed by defendant.

On this statement of facts, the sole question presented for consideration is whether the certificates were pledged to the bank in the ordinary course of business,” or under such circumstances as should, have put the bank upon inquiry.”

'Pile plaintiff argues to the effect that the bank transacted with the notary as a quasi officer of that institution, whose conduct was such as to have iuspired doubt of the transaction, and the same was out of the usual course of trade, “'the holder being neither a broker, a dealer in securities, or a merchant covering an account.” He insists that, as Mr. Castell was the notary of the bank, and a creditor thereof for professional services, he was “a quasi officer” thereof, and hence — inferentially — notice of the illegality of the transaction was sufficiently brought home to defendant to have put it on inquiry.

This argument is untenable. There is nothing in the record to establish that proposition. Tiie fact that Mr. Castell was usually employed by defendant to perform certain services as notary, in the course of its business, does not constitute him a quasi officer of the bank.

The evidence satisfies us that Mr. Casteil’s account was, on the 30th of September, 1885, overdrawn for more than $2500, the amount of the certificates deposited on the 4th of October following.

Subsequently his account was diminished by deposits and increased "by checks, alternately, until, at his death, he was indebted to the bank in excess of $4000 — more than sufficient to consume the deposit.

In Brown vs. Schmidt, 7 Ann. 349, it was held that “the purchaser of property who, without authority, pays the price into the hands of the notary, incurs the risk of the deposit,” and if the notary embezzle the money the purchaser must sustaiu the loss.

In Arby vs. Ducatel, 18 Ann. 470, the Court said: “ The law has not made it the official duty of a notary to receive money to erase mortgages.” 20 Ann. 78, Monrose vs. Brocard.

In Givanovich vs. Citizens’ Bank, 26 Ann. 15, the Court held that Ducros was indebted to the bank when the notes were placed in its possession as collateral security therefor, and that the bank had the right to thus receive them. That Ducros was lawfully in possession of them, and, as to third persons, the owner of them; and could dispose of them at pleasure.

The responsibility was from Ducros to his principal, and not from the bank to plaintiff.

That case involves a like principle to the one under discussion hero.

In Fairfax vs. Beer, 37 Ann. 821, this Court held that “the transferee for value, of negotiable securities not duo, from the possessor and apparent owner, gets a title which cannot he defeated without proof of actual or constructive notice of the imperfect title of the transferor, amounting to mala fieles.”

The burden of proof was on the plaintiff to establish such actual or constructive notice to defendant of Castell’s imperfect title to the certificates in question.

The legal presumption is that the holder of a negotiable instrument has acquired it without notice of anything to impeach his title.

In Collens vs. Gilbert, 94 N. S. 753, the Supreme Court held that “the title of a bona fide holder for value, of an accepted draft indorsed in blank, is not affected by the feet; that the party from whom ho received it, before its maturity, had possession of it for certain purposes and misappropriated it.” Shaw vs. Railroad Company, 101 U. S. 563; Brown vs. Sheppard, 95 U. S. 481.

There is no evidence in the record that impeaches the good faith of the defendant. We think the judgment appealed from is correct.

Judgment affirmed.