text:
    No. 7794.
    G. B. Shields et al. vs. P. W. Chase, Tax-Collector, et al.
    The failure of tlie attorney of a police jury to make all of the defenses to a suit that might have been made, cannot be considered as making the judgment subsequently rendered in, the suit a confession of j udgment by the police jury.
    The question of tlie validity of certain scrip on which a formal, judgment was recovered against a police jury cannot he considered in a subsequent suit brought by taxpayers to enjoin the collection of taxes legally levied to pay the judgment by order of the court which rendered it.
    The repeal of the law authorizing a court to order the police jury of a parish to levy a tax to pay a judgment rendered byit, does not affect judgments rendered previous to the repealing act. 31 An. 765, affirmed.
    The law of 1872, restraining police juries from levying a tax for parochial purposes, for any year, exceeding the 100 per centum of the State tax of that year, did not, previous to the 10th of April, 1877, affect the power of a court to order the levy of larger tax, necessary to pay a judgment rendered by it.
    The action to annul a judgment is prescribed by one year from the date of the judgment.
    APPEAL from -the Thirteenth Judicial District Court, parish of Concordia. Ilough, J.
    Wade R. Young for plaintiffs and appellants:
    First — That the plaintiffs were properly joined, having a common interest, and that the Supreme Court has jurisdiction of the case. 2» An. 105 ; 31 An. ,765 ;■ 23 American Reports, 414; 6 Wall. 196 ; 7 Howard, 624 ; 24 Howard, 451.
    Second — That the confession of judgment by the police jury being beyond their power, was null and void, and hence that the prescription of one year was not applicable to a suit to annul the judgment. Such a judgment cannot have the force of res adjudicata. C. C. 439 ; 23 An. 191; 24 An. 457 ; 26 An. 59 ; 27 An. 320 ; 28 An. 343 ; 30' An. 461; Henn. Dig. p. 833,1 (6) No. 9 ; Dillon on Munic. Cor. see. 371; 5 An. 218 ; 29 An. 599 ; C. P. 604-6-8.
    Third — That police juries cannot contract a debt without at the same-time providing means to pay it, Rev. Stats, 1870, sec. 2786 ; nor levy a tax after the acts No. 42 of 1871 and No. 17 of 1872, to pay the general expenses of the parish, to exceed four mills per centum, of the assessed value.

      Owen Mayo, parish attorney,' and John S. Boatner for defendants ■ and appellees.
   The opinion of the court was delivered by

Manning, C. J.

The 'plaintiffs are taxpayers of the parish of Concordia who have enjoined the collection of taxes, levied to pay a judgment rendered in favor of Peter Young for over nine thousand dollars -against that parish, and seek to have it annulled. Young’s judgment was rendered April 5, 1877. Service of process in this suit, or its equivalent, was made September 2, 1879. The prescription of one year is pleaded. In Stevenson v. Weber, 29 Ann. 105 we applied that prescription to a similar case, but granted relief against the assessments to pay the judgments because of illegalities therein pointed out.

The plaintiffs however proceed on the theory that the judgment of "Young is absolutely null and void because it was a consent judgment rendered upon the confessi:n of the police jury, and upon evidences of ■debt issued in violation of prohibitory laws. Rev. Stats., sec. 2786, and -the revenue acts of 1871 and 1872. These prohibitions forbid police .juries contracting any debt without providing at the same time for its payment, and limit parochial taxation to one hundred per centum of the ‘.State tax.

The record does not sustain the statement that the judgment was rendered on the confession of the police jury, or by its consent. An • answer of general denial was filed. Testimony was introduced and .-.judgment followed upon the proof. The words, confession of judgment, have a recognised meaning in law, and are certainly not well employed here. It is conceded that on Young’s agreeing to a compromise, by ■which accrued interest was remitted and the payment of future interest ■deferred and the debt divided in installments, it was at one time in- • tended to enter a judgment by consent, but this project was abandoned • and the case regularly tried. It is said that the attorney for the police - j ury failed to make the defences which were open to him, and which were those now urged in this action to annul, viz. the inherent nullity of - the obligations sued on. But failing to make all defences that might be made to a suit, or defending it incompletely, cannot be considered as confessing a judgment. There is no need therefore to invoke the author- ■ Ity of Parker vs. Scogin, II Ann. 629, upon that point, where it was held that a judgment, confessed by the police jury, is res acljudicata against •each individual taxpayer, since here there was no judgment confessed, ’.but that case also decides the question of prescription in favor of the -defendant, and we held the same in Stevenson’s case above cited.

It is obvious then that we cannot consider the question of the va-tlidity or illegality of the. scrip since the judgment is conclusive on that ■matter. There can be no reason why judgments against police juries ■.should not be subjected to the same rule as other judgments. The jury represent the parish, its property owners and tax owers, and these latter must be concluded by a judgment, rendered by-a court upon evidence and issue joined, and without collusion.

At the time this judgment was rendered the law directed the judge to order the assessment and levy o£ a tax to pay it, and this was complied with in the present instance. That law was not repealed until April 10. Sess. Acts 1877, p. 87. We have already ruled that this repeal cannot affect judgments rendered previous to the repealing Act, 'because a vested right in the judgment had been acquired, and it was -as much beyond the power of the legislature to emasculate the judgment in that particular as in any othér. .Shields v. Pipes, 31 Ann. 765.

The scrip or parish warrants were issued in the years 1873-1877 Inclusive. Except the last year, when a tax of ten mills on the dollar’s valuation of property was legalised, the maximum rate was four mills, ■and it is admitted that the police jury in each of those years levied ¡taxes at a rate in excess of four mills. In 1874 the rate was ten mills— ■,in 1876 it whs fourteen arid a half milis, and was manifestly beyond the ■power of the police j ury to levy for parochial purposes under the restrictive law of 1872. Lafitte v. Morgans, 29 Ann. 1. But the statute empowering a court to order a tax to be levied for the payment of a judgment was also in force, and was a special means provided for the rsatisfactioh of judgments, independent of the action of the police jury. 'The law restricting the rate of taxation was designed as a curb on the ■jury in their expenditures — in checking extravagance and preventing waste of the public moneys. The law providing that a judgment against a parish shall be satisfied by the collection of a special tax gave to the .judgment creditor the means of enforcing his judgment without regard ■■to the action of the debtor. The two may well co-exist.

While it is true that any excess of taxation over four mills, levied by ■the police jury for parochial purposes between 1872 and 1877, is illegal -under the restrictive act of the first named year, unless for the purpose •excepted therein or unless the tax is for a special purpose sanctioned by law, e. g. for roads and bridges — it is also true that, when this judgment was rendered, the parish assessors might lawfully be ordered to assess ■and the tax collector to collect a tax sufficient to pay the judgment. It is the exercise of .this power by the collector, under the judgment, ■that is enjoined, and not the levy by the police jury of a tax in excess •of four mills for ordinary parochial purposes. The lower court dissolved the injunction.

Judgment affirmed.

Béhearing refused.


source: Caselaw Access Project

author: Manning, C. J.

license: Public Domain

text:
    No. 7707.
    Succession of R. W. Dougherty.
    "Where the real estate of a succession is seized and advertised for sale under executory process "by a mortgage creditor before tlie appointment of an administrator, and the adminis- * trator fails to pay off tlie mortgage debt, the proceeds of the sale will not belong to the succession for distribution.
    The mules, wagons, and farming implements in use on a plantation at the time of its seizure under executory process, are included in that seizure, and the mortgage creditor malting the seizure is entitled to claim the proceeds of their sale.
    The widow is entitled to an allowance of $ 1000 out of the husband’s succession, when there is • satisfactory proof of her necessitous circumstances.
    "Where the fees of the attorney of a succession set down by the administrator are increased by the lower judge without cause or proof to justify it, they will be reduced to the sum allowed by the administrator.
    4 PPEAL from the Parish Court of Bossier. Braclen, J.
    Looney & Elstner for appellant:
    First — All the property, rights, and credits of the succession stand precisely in the attitude that R. W. Dougherty and his property, rights,, and credits stood at the moment of liis death, in June, 1877.
    Second — At that moment the law fixes tlie obligations, privileges, destination, and distribution of the property, rights, and credits of his succession.
    Third — No heir, creditor, or. other person can by acts, agreements, or transactions defeat the rights vested by law on the other heirs- or creditors of the succession without their consent.
    T. T.. & A. D. Land, for Durham, opponent and appellee :
    An administration was wholly unnecessary. The widow and major heirs, had bound themselves by their unconditional acceptance to the payment of their virile shares of the debts of the estate. C. C. 988,. 992, 999 ; 2 N. S. 475 ; 7 A. 553 ; 9 A. 517.
    Article 976 of the Code of Practice requires the appointment of an administrator only in case some of the creditors require it. C. C. 1047" (1040) is modified by said article. Succession Story, 3 A. 502.
    As all the creditors stood by and acquiesced in the acceptance of the-major heirs and widow in community, and did not demand a separation of patrimony within the time required by law, they became owners of their respective interests in the estate,'and liable for the debts of the same.
    We see no reason in law, the creditors consenting, which would prevent, major heirs from accepting and becoming owners of an inheritance, although there might be a minor heir. If the succession be solvent, the minor heir could demand an immediate partition, as in the succession of Story. If insolvent, the minor heir has no interest.
    We believe that the opening of this succession and its administration are mere nullities, and an attempt to administer on the estate of the living.
    But considering it as a succession under administration, the widow and R. R. Dougherty, the administrator, have no claims or demands against this opponent, who has nothing to do with the contest between them and James Marks.
    If a succession is under administration, then the vendor’s privilege and special mortgage of this opponent on the mules, wagons, and other immovables by destination on the Red Chute plantation are superior to the judicial mortgage claimed by James Marks. That mules employed on a plantation are embraced in a mortgage of the lands, although not specially mentioned in the act, was determined by this court in the case of Templeman vs. Gilmer, decided at Monroe, July, 1878.
    Succession not represented.
   The opinion of the court was delivered by

Manning, C. J.

R. W. Dougherty died in June 1877. John B. Durham was furnishing him supplies for the cultivation of his crop during that year, and at the time of his death the account for supplies was $917.91 in amount. The contract for the supplies had been recorded. He continued furnishing them under the contract during the remainder of the year, the widow and children remaining on the place, and a grown son acting as overseer. The crop was delivered to Durham, and was •sold by him, and did not pay all of his debt. There was no administration of the succession as yet, and the settlement of the account with Durham was complete, so far as the crop effected it, before the succession was formally opened. This was not done until March 7,1878, when R. R. Dougherty, the son who was overseer, was appointed administrator.

Durham had a mortgage upon a plantation of the deceased, called Red Chute, and sued out executory process to foreclose it in February, a, month before the administration was applied for. There was litigation. Marks and Mrs. Pickett filed oppositions claiming the proceeds of sale, :and on appeal we adjudicated their rights at Monroe, recognising Durham and Mrs. Pickett as concurrent mortgage creditors with vendor’s privilege, and fixing Marks’ position as that of a judgment creditor with judicial mortgage. Durham then bought Mrs. Pickett’s claim, and at the sale bought the place for less than the aggregate of the two claims he held. *

This place was in the hands of the sheriff before and at the time administration was granted. It was never in the possession o£ the administrator as such, and the proceeds of its sale do not belong to the succession for distribution, since they did not extinguish the mortgage debt and vendor’s privilege, and there is no dispute as to the validity of the sale, or as to the sufficiency of the price, or other like matter, and there were no oppositions claiming priority of payment for privileges.

Durham also advanced to and supplied the place for the crop of 1878, and the proceeds of its sale leaves a small balance due from him to the administrator. Durham had advanced money to pay the expenses of administration, paid the burial expenses and some others, which were repaid by the sale of the property.

Seven mules, three waggons, and some farming implements upon the Red Chute plantation were included in the seizure under executory process of Durham, but before that litigation was terminated and a sale had under that process, the administrator gold them at probate sale. Durham prays an amendment of the judgment by recognising his vendor’s privilege and mortgage upon these movables, as attached to-the realty, and applying the proceeds of their sale to the further payment of his debt, which had not been extinguished by the sale of the land. We think he is entitled to it.

Marks opposes various items of the account which need be only briefly noticed. The widow’s portion of one thousand dollars was properly allowed, the proof of her necessitous circumstances being satisfactory. The overseer’s wages were moderate, and his claim had been recorded, and was rightly allowed as a privilege on the crops. The Holliday and Herold debts which he opposes as not privileged were classified only as ordinary debts. He insists that the account must stand as to the credits admitted by the administrator. These include the proceeds of sale of the Red 'Chute plantation, and cotton crops of 1877 and 1878. We have already said as to the first that they were absorbed by the mortgage debt, and as to the second, they were applied to the privilege of the furnisher of supplies.

The lower court increased the fees of the succession attorneys without good cause, or proof to justify it. They were stated on the account at $281.25 and they must remain at that sum. Therefore

It is ordered and decreed that the judgment of the lower court is amended by reducing the sum allowed the attorneys to $281.25, and by recognising J. B. Durham’s mortgage and vendor’s privilege as operating upon the mules, waggons, and farming implements, and applying the proceeds of their sale to the further extinguishment of his mortgage debt, and as thus amended, that it is affirmed, the costs of appeal ta be borne by Marks, as well as the costs of his opposition, and all other-costs at the charge of the succession.


author: Manning, C. J. Manning, C. J.

text:
    No. 7704.
    J. B. Durham & Co. vs. Lisso & Scheen.
    In estimating the sufficiency of sureties to bonds, it is not necessary to take into account the-contingent obligations of the party whose sufficiency is disputed, when it appears that he • is insufficient without calculating sxich obligations.
    This court has no power to order the substitution of a sufficient, for an insufficient surety on an attachment bond.
    APPEAL from the Seventeenth Judicial District Court, parish of Red-River. Pierson, J.
    T. T. & A. D. Land and Kennard, Howe & Prentiss for plaintiffs- and appellants:
    First — The true question in this case is, to what amount must the surety be solvent? and not whether he be solventas to the whole world. The amount of the solvency of the surety is declared and fixed in. art. 3011 of the Code of 1825, and in art. 3042 of the Code of 1870„. which limits his solvency to the possession of property sufficient to-answer for, or to pay the amount of the obligation or bond which • he signs. C. C. 1985, 3042 ; 17 L. 436.
    Second — It is error to hold that an attachment bond is a debt against the surety, so long as the attachment remains undissolved, and there is neither suit nor judgment against the surety.
    It is error to hold that the attachment bond in the Frye case is a debt against the surety, and should be computed against him in deciding whether or not he possesses the qualifications required by law for a judicial surety.
    J. E. Pierson, L. B. Watkins, and Egan & Ogden lor defendants and appellees:
    That the surety had not property sufficient, over and above the amount of his debts, to respond to the bond, and, therefore, that he was insufficient.
   The opinion of the court was delivered by

Manning, C. J.

This suit is on an open account for $1,257.73, and' was accompanied by a writ of attachment. The bond was for nineteen hundred dollars, and the only security was J. D. Pattoa The defendants moved to dissolve on sundry grounds, the second of which is the insufficiency of the security, which was maintained by the lower court. From his judgment dissolving the attachment on that ground this appeal is taken.

It cannot be expected that we shall recite the testimony of the numerous witnesses who have given their opinions of the value of Pat» ton’s land. The plaintiffs’ counsel gathers from the whole of it that the land is.worth twenty dollars an acre cash, and states the number of acres at 126|. The defendants’ counsel states the number of acres at 124 1-6, and thinks the testimony does not warrant a higher valuation than ten dollars per acre. We shall adopt the mean as to the quantity as well as the price.

. The stock and fixtures is the same property that is spoken of elsewhere as capital invested amounting to $500, and cannot be reckoned twice. Patton himself says very little was due him on notes and accounts, perhaps $200 or $300. This does not justify the insertion of any sum under that head. Of the sixty bales of cotton Patton testifies that he owns not one of them. They were merely in his possession, but were the property of Lisso & Scheen. The plaintiffs have so treated that cotton. They had it seized in another suit as the property of Lisso & Scheen. It cannot be theirs for the plaintiffs’ purposes in one suit, and Patton’s at the same time for their purposes in another suit. Patton’s -assets therefore are as follows ;

125 acres of land at $15- per acre.$ 1,875.00
House and lot in Coushatta. 800.00
Capital invested.;. 500.00
Live stock. 50.00
4 bales cotton. 120.00
$ 2,345.00
Liabilities admitted. ' 500.00
$ 1,845.00

It is' conceded that Patton was already, at the time of signing this attachment bond, surety for one Frye in another attachment bond for 43,500.00, and the plaintiffs insist that this does not affect his sufficiency -as surety on the subsequent bond, but this is a mistake. In estimating the sufficiency of sureties to bonds, it is the daily practice of the courts to take into account the obligations entered into already by the party whose sufficiency is disputed, and we know of no good reason why it -should not be so. If a score of attachments were taken out successively and the same surety were given to each bond, who was proved to be worth the amount of the first and largest, and no more, it would be ■small safety to the bonds subsequently given to pronounce the same •party sufficient as the sole surety to them.

If then we should estimate the land as the plaintiff does, and omit $300 of the liabilities as having been paid since (though the defendant •states the liabilities at a much larger sum) the value of the property . would be thus ;

Land at $20 per acre.$ 2,500.00
Other property in foregoing list. 1,470.00
$ 3,970.00
Liability. 200.00
$ 3,770.00
The Frye attachment bond is for.$ 3,500.00
The present bond. 1,900.00
$ 5,400.00

The figures justify the judgment of the lower court, and it is •affirmed.

On Application eob Beheabing.

Manning, C. J.

It was unnecessary to say any thing about the con- • tingent liabilities of the surety in estimating his debts with a view to test his solvency. It is sufficient to say that, leaving all contingent liabilities out of the calculation, the surety in this case was insufficient.

If we are to understand the counsel, in the concluding sentence of ffiis brief, as intimating the existence of a power in this court to order a new and sufficient security to be now taken to the attachment, we cannot assent to it. What the lower court might have done, upon application there made at the time the judge dissolved the attachment because of the insufficiency of the surety, it is not necessary for us to say. It -is certain that we cannot order a new security to be taken now.

The rehearing is refused.


author: MANNING, C. J.

text:
    No. 7764.
    Board of School Directors of Concordia vs. Albert G. Ober.
    •The Board of School Directors of a parish are without authority to bring suit for the reven-dication of land donated by Congress to the State for public school purposes, and sold under a law of the State, unless empowered to do so by a legislative act.
    A PPEAL from the Thirteenth Judicial District Court, parish of Con-cordia. Hough, J.
    George S. Sawyer for plaintiff and appellee:
    .First — The sale relied on by defendant as the basis of his bankrupt title and prescription, viz.: the sale by the parish treasurer to York & Hoover, is null and void upon the face of it. 1st. because it does not appear that the inhabitants of. said township ever gave their •consent to authorize the said sale. U. S. Statutes at large, vol. 5, p. 600 ; 12 A. 841; C. 0. 1797,1818,1798,1800,1811,1816,1945 ; 29 A.. 77.
    Second — Because it does not appear on said record that said section-was sold in lots of not less than forty, nor more than one hundred ■ . and sixty acres, as the law requires. Rey. Stat. of 1870, sec. 1316 ; C. C. 3010.
    Third — Because it does not appear upon said record that there was any appraisement by sworn appraisers, selected as required by law, or what was the amount of said appraisement. 4 L. 421; 8 N. S. 246;. 4 L. 150, 207 ; 11 M. 610, 675 ; 9 L. 542 ; C. C. 3010 ; 10 L. 285.
    Fourth — The notes given for the price were not made payable to the Auditor of Public Accounts as the law requires. 10 L. 285; 3 L. , • 421; 4 L. 150, 207.
    Fifth — It does not appear by legal evidence that there was any warrant from the proper officer to authorize the said sale, and the maxim “ De non existeniibus et non apparentibus eadem est ratio,” has its ' application here.
    The plea of estoppel is simply absurd; the inhabitants have done nothing to estop themselves, and their trustees could do nothing to estop them ; cestui qui trusts or beneficiaries of trust cannot be estopped by the acts of their trustees, no more than minors can be estopped by the acts of their tutors.
    O. Mayo for defendant and appellant:
    First — That the School Board of Concordia parish cannot sue, or stand in judgment for the purposes sought to be accomplished in this • suit.
    In reply to plaintiff’s first point, he quotes Miss. Rep. vol. 13, pp. 33 to 37 ; 13 An. 216 ; Act of Congress, February 15,1843 ; 12 A. 366.
    In reply to plaintiff’s second point, he quotes 13 A. 213 ; 20 A. 174 ; 29 A. 534.
    In reply to plaintiff’s third point, he quotes 21 A. 425; 30 A. 174; 21 A. 428.
   The opinion of the court was delivered by

MANNING, C. J.

This suit is instituted to annul a sale of the 16th. section in township 4 range 9 E. in Concordia parish, made in August 1860, when it was adjudicated to York & Hoover, from whom the defendant derived title through mesne conveyances. The defendant excepted to the capacity of the plaintiff to sue for the revendication of this land.

The sale was made by Purvis, the treasurer of that parish and the terms were complied with. The cash portion of the price was paid into the State Treasury, and the notes, representing the credit instalments, were transmitted to the Auditor of Public Accounts. The plaintiff seeks to recover the land, and its rents and revenues during the intervening years.

These lands were donated by Congress to this State for public school purposes. By Act of Eeb. 15,1843, the legislature was authorized by Congress to provide for their sale and the conveyance of a fee simple title to the purchaser, and the manner of sale and disposition of proceeds was prescribed by our legislative Acts of 1855. The State is a trustee of the lands, or of the proceeds of their sale, for the use of the inhabitants of the townships wherein they are located. When then a suit was brought in the name of the State Treasurer, to whom the notes for the credit portion of the price of the land were made payable, for the rescisión of the sale for their non-payment, and a similar exception to the present was made, the right of that officer to stand in judgment for the State was maintained. Hunter v. Williams, 16 Ann. 129.

Can the Board of School Directors of any parish represent the State in a like case without her authority ? The plaintiff cites School Directors v. Anderson, 28 Ann. 739 as conclusive, but it is against him. That suit was on the part of the Board for Carroll parish, and the court maintained the right on the ground that legislative authority had been expressly given, by a law on the subject which was restricted to Carroll parish, Sess. Acts 1861, p. 93, though we are inclined to think if the language of that Act had been scrutinized, it would have been found deficient for that purpose. The plaintiff refers us to the act of 1877 for authority, Sess. Acts, p. 28, which created the parish Boards of Directors. The 4th sect, enumerates the powers and duties of these Boards with painful minuteness and exhaustive recitation, and in no one of its involved and elongated sentences is this power conferred, or any other analogous to it. So also we are referred to sec. 7 of the Act of 1874, but this merely authorizes the Superintendent of Public Education to appoint a lawyer to examine the notes given for the purchase of school lands, and to recover lands improperly held and revenues diverted. Sess Acts 1874, p. 216. But when lawyers are employed they must bring suit properly, in the legal way, and in the name of whoever is capable of suing for the land.

The title to this land has never been in the parish Board of School Directors. The title was in the State under the donation of the general government, and she held it for a specific purpose, with authority to sell the lands, and a mandate to hold the proceeds and invest them for the benefit of the schools. No doubt she could confer authority on the parish Boards of Directors to sue in her stead, but she has not done it. On the contrary the State has seemed very tenacious of this power, and we think rightly, considering the position of trustee in which she stands to this fund. Never has she by a general Act given the parish Boards the power to sue in such case in their names and the exception was therefore well taken.

The lower court overruled the exception, and after hearing the merits of defence maintained them. We do not feel called on to go into their examination, and cannot therefore affirm the judgment upon the merits, but we cannot mulct the defendant in costs, therefore

It is ordered and decreed that the judgment of the lower court is reversed, and that there be now judgment maintaining the exception, and dismissing the plaintiffs suit at his costs in both courts.

Mr. Justice Spencer is recused.

Rehearing refused.


author: Marr, J.

text:
    No. 7723.
    Frederick Davis, Administrator, et al. vs. Greve & Wilderman et al.
    Where, on an application for the appointment of an administrator, the question was whether a person who had disappeared from his home was dead or was merely an absentee, the parish judge, after hearing the proof, solemnly decided that he was dead, and appointed an administrator of his succession, sucb judgment cannot be questioned collaterally; and until it has been set aside other tribunals must assume that the person is dead.
    Where more than thirty days elapsed between the making of a contract and the death of a party alleged to have been insane, the insanity cannot be shown, after his death to invalidate the contract unless interdiction shall have been applied for, except where the act or instrument contains, in itself, evidence of the insanity of the deceased.
    Where the mortgagor holds by a title apparently legal and valid, which is properly inscribed in the public records, the mortgagee in good faith is not affected by fraud, or simulation, or want of consideration between the mortgagor and his vendor.
    Tk e good faith which the law requires and protects is that which exists at the time of contracting ; and the rights of the mortgagee in good faith are not impaired by subsequent notice or knowledge of defects in the title of the mortgagor.
    APPEAL from the Fifteenth Judicial District Court, parish of La-fourche. Beattie, J. ■
    Moore & Badeaux for plaintiffs and appellees :
    First — What the intimate friends of a' deceased person said about his insanity is admissible to show the common fame and notoriety of the insanity. 6 A. 172.
    Second — Where a deceased was notoriously insane to the knowledge of those dealing with him, contracts made with him will be held null, although interdiction has not been applied for. 12 A. 24, 624, 651; C. C. 396,1781,1788,1766, 2439.

      Third — One who alleges a sale made with an insane person, must show two things, 1st. payment oí price, and 2d. a lucid interval. 12 R. 98; 10 A. 691; 6 A. 108 ; 4 L. 115 ; Domat’s Civil Law, vol. 1, p. 187, l 225 ; Kent’s Com. vol. ii, pp. 570, 571, 572, 573.
    Fourth — Possessors in bad faith cannot by themselves, or by their assigns, acquire the property of an immovable by the prescription of ten years. O. O. 3478 ; 24 Howard 553; O. C. 3452; Merlin, Repertoire de Jurisprudence, vol. 24, p. 130 ; 3 A. 324, 536 ; 16 A. 130; 1 A. 440 ; 2 A. 443.
    Fifth — Knowledge of the agent is knowledge of the principal. Story on Agency, 593 ; 1 A. 80 ; 2 A. 316 ; 14 A. 711.
    E. W. Blake and Kennard, Howe & Prentiss for defendants and appellants ;
    First — An administrator cannot maintain a revocatory action, or represent heirs. O. O. 1988-89,1993 ; 29 A. 513 ; 14 A. 611; 4 A. 495; 26 A. 607 ; 1R. 525 ; 6 R. 20 : 10 R. 387.
    Second — The formal judgment of a court cannot be treated as a nullity. 29 A. 560.
    Third — The position assumed by the defense is, that inasmuch as the ' acts of 11th April, 1863, are sought to be annulled as mere simulations, having been signed by Kees, who had not the capacity to contract, he being at the time non compos mentis, the plaintiffs must establish one of two things, in order to succeed: first, that Kees had been interdicted, or secondly, that his interdiction had been applied for at least thirty days before his death. O. 0.1788, par. 5. No other proof is admissible. This proof must be unequivocal, in order that plaintiffs may succeed in having these acts declared absolute nullities on that account.
    Fourth — The delivery of an immovable is always considered as accompanying the public act by which it is transferred. C. C. 2479; 30 A. 968. This principle is strengthened in the case of Meegels, because of their residing on the property at the time of their purchase, and as both vendor and vendees were living together the law declares in such a case that possession follows title. 3 N. S. 337, 194, 349 ; 1 R. 41; 11 R. 533 ; 6 A. 710 ; 30 A. 968.
    Fifth — Provided an actual consideration, no matter how inadequate, has. been paid for the purchase of an alleged sale, the transaction is not a simulated one, though the act declares the price to have been paid cash. 30 A. 968.
    Sixth — A party in possession is not bound to prove the reality of the sale attacked for simulation. 21 A. 647 ; Louque’s Digest, page 232, S. 4. •

      Seventh — The presumption of law is always in favor of sanity and capacity to contract, and this presumption continues until destroyed by the presumption juris et de jure, the decree of interdiction. 31 A. 757.
    As plaintiffs have failed to establish the insanity of Sees in the mode pointed out, then it follows, as a consequence, that there was no incapacity proven, and the acts are not absolutely null on that account. C.- C. 403, 1788 ; 12 A. 624.
    Eighth — Whoever claims that a sale is null because the price was not' paid must prove the want of payment. 29 A. 607.
    Ninth — A mortgagee or vendee dealing in good faith on the evidence of a good title in the vendor or mortgagor will be protected. 6 Cranch, 133 ; 11 L. 401; 29 A. 607; 14 A. 48.
    If evicted they are entitled to what they have paid, and value of improvements they have put on the property. See also 8 N. S. 224; 9 L. 290 ; 13 L. 408; 13 L. 98 ; 4 A. 227, 282 ; 5 A. 44. Hennen, p. 1373, S. 1.
    It would be idle to hold a mortgage without the right to urge its foreclosure. 31 A. 352.
    Tenth — Prescription of one year.
    This is covered by the law which declares “ that actions to annul con- ■ tracts for fraud must be brought within a year from the time the fraud is discovered.” Hennen, p. 1213, S. 1.
    Eleventh — Prescription of five years. This is covered by O. C. Art. 5342, relative to nullity and rescission of contracts, testaments, and other acts, and for reduction of excessive donations. 25 A. 98.
    Twelfth — Prescription of ten years. This is covered by O. O. article 3442.
    Thirteenth — The plaintiffs’ demand is stale. 5 A. 140 ; 7 A. 555, 562, 648 ; 14-A. 317.
    Fourteenth — Fraud is never presumed. It must be proved. Henn. Dig. vol. 1. pp. 525, 526 ; Story on Equity, § 190 ; 11 Peters; 295 ; 99 Pa. St. 257.
   The opinion of the court was delivered by

Marr, J.

Abraham Fees owned and resided upon a tract of land, on the Bayou Lafourche, near Loekport. He was a widower; and his family consisted, from about 1859, of his daughter, Widow Davis, and her children; his son-in-law, Edward Meegel, and his wife and son ; and Fritz Meegel, a cousin of Edward, who had just returned from California.

On the 11th April, 1863, by two acts under private signature, executed in presence of witnesses, Fees conveyed one half of his prop- ■ erty to Edward Meegel, ior $4000, cash, and the other half to Fritz Meegel, $3600, cash, as stated and acknowledged in the acts. Fees continued to reside on the place, as before, until the latter part of 1863, when he disappeared from his home. He was an old man, of about eighty years, feeble.in body and in mind; and he was seen, for the last time, attempting to cross a lake in Terrebonne parish, in a small hunting pirogue, with the avowed intention of going to his home on the Lafourche. The wind was high, the lake was rough, the weather was freezing: the owner of the pirogue informed the family of the perilous voyage the old man had undertaken; search was made immediately; but nothing has been heard of him since. The pirogue was found, by the owner, about a year after, adrift on the lake; and the probability is, either that Fees was drowned, or that he perished with cold.

The Meegels continued to reside on the place, until 1865, when Fritz died. Eugene W. Blake was appointed curator of the vacant succession ; and, by order of the probate court, the entire property of the ■succession, including the land acquired from Fees, was sold to pay debts ; ■ and the whole was purchased by Edward Meegel. The* final account of the curator was homologated, and he was discharged on the 30th August, 1877.

In March, 1869, Edward Meegel mortgaged his property to Greve •& Wilderman, to secure two notes representing accrued debt, amounting to $6945 11; and future advances not to exceed $3054 89 ; and, in April, 1871, he mortgaged the same property, to the same parties, to secure a note for $1096 26, representing the indebtedness which had accrued under the stipulation in the first mortgage for future advances. In April, 1875, Greve and Wilderman proceeded via executiva, on these notes and mortgages; and, in due course, the property was sold and adjudicated to Greve & Wilderman, for less than half the amount due them.

In the meantime, in February, Í872, Charles G. Davis filed a petition in the parish court, alleging the disappearance of his grandfather, 'Fees, in November, 1863 ; and praying to be.appointed administrator of his succession. The parish judge, on the theory that Fees was dead, ■appointed Davis administrator ; and in April, 1872, this administrator, and his mother, then wife of Use, brought suit against Edward Meegel and the curator of the succession of Fritz Meegel to have annulled the notes of 11th April, 1863, and the property restored to the succession of Fees ; and to recover the rents and revenues, on the ground: 1; that Fees was non compos mentis; and that his insanity was well known to the Meegels, and was a fact of public notoriety; 2; that no consideration was paid by the Meegels. The case was' put at issue; and in December, 1872, Mrs. Meegel authorized and aided by her husband, Edward Meegel, brought suit to annul the appointment of Davis as-administrator, and the entire mortuary proceedings on several grounds,, one of which was that the death of Kees had not been established ; and in November, 1873, by judgment of the parish court, the former proceedings were annulled, on the ground that Kees was not dead ; but was* in legal contemplation, living and an absentee.

Soon after this judgment was rendered Edward Meegel filed the-peremptory exception that Davis was not capable of standing in judgment in the suit brought by him and his mother, his appointment as administrator having been annulled. The district judge maintained this exception; and dismissed the suit as to Davis, alone, leaving it pending-as to Mrs. Usé. No further proceeding was had in the suit after this, judgment, 6th December, 1873.

In July, 1877, Frederick Davis, brother of Charles G-. Davis, filed a petition in the parish court, asking that a day be appointed for hearing-testimony touching the death of Kees ; and to be appointed administrator, in the event of a judgment declaring his death. The testimony established the facts already stated, making it more than probable that Kees did not survive the hazardous voyage, which a sane man would hardly have undertaken in so frail a boat. The parish judge decreed that-he was dead, and appointed Frederick Davis administrator in September ; and in October, 1877, this suit was brought by this administrator and his mother, joined and authorized by her husband Rozémond Usé, to recover the property and the rents and revenues, on the same-grounds as alleged in the former suit.

In the meantime Edward Meegel and his wife died; and Knight had been appointed administrator of his succession. Knight in his capacity,. Blake as curator of the succession of Fritz Meegel, Greve & Wilderman, and Robert Meegel were cited as defendants. Exception was taken to the capacity of Davis to stand in judgment; and Blake specially excepted that he was no longer the representative of the succession of Fritz Meegel. The case was put at issue by the answers of the defendants ; and Greve & Wilderman set up title and possession under-the executory proceedings. There were also pleas of prescription, calls-in warranty, and reeonventional demands, which do not require special notice.

The district judge was of opinion that Davis had no capacity to-stand in judgment: that the conveyances to Edward and Fritz Meegel,. and all the subsequent dispositions of the property, were nullities, so far as Mrs. Usé is concerned, not because of the alleged insanity of Kees,. but because of fraud and non-payment of the price : that Greve & Wil-derman were in .good faith as mortgagees, but that this could not avail them because they claimed title under a sale made after notice of tha defects in the title of their mortgagor : that as Kees had but two forced heirs, he could have disposed, gratuitously, of half his property ; and' that Mrs. Usé was entitled to recover her virile share, one half of the ■ legitime only. The judgment, accordingly, decreed Mrs. Usé to be the owner of one fourth of the property, and condemned G-reve & Wilder-man to pay her §250 a year for rent, from the 15th#July, 1875, the date of the adjudication to them by the sheriff; and it dismissed the demand of Davis, with reservation of the rights of the other heirs of Kees. G-reve & Wilderman appealed ; and Davis and Mrs. Use, in answer to the appeal pray that the judgment be so amended as to conform to the prayer of their petition.

The record is very voluminous, much of it consisting of the testimony of numerous witnesses called to prove the mental condition of Kees ; and the counsel on both sides have discussed, at considerable length, and with much ability and research, the several questions raised in the pleadings. We think the real controversy lies within a very narrow compass.

All the circumstances proven, indicate plainly that Kees is no longer living; and that he perished in November, 1863. If he were still living, where could he have been wandering during the long years of his absence, in his extreme old age and helplessness ? But this is not an open question for us. The parish judge having jurisdiction, heard the evidence touching his death ; and on the proof adduced he solemnly decided that Kees was dead; and appointed an administrator of his-succession. No appeal has been,taken, none can now be taken from that judgment; and it cannot be questioned collaterally. Until that judgment is set aside other tribunals must accept it as conclusive, and assume that Kees is dead, and that he died at the time indicated by the testimony, when he was exposed to perils from which death might well' have ensued.

The law provides, that if more than thirty days have elapsed between the making of a contract and the death of the party alleged to have been insane, the insanity cannot be shown, after his death, to invalidate that contract, unless interdiction shall have been applied for. R. O. 0. article 1788, paragraph 5. Kees lived, and remained at home,, more than six months after the making of the conveyances to the Meegels; and no application was ever made for his interdiction. All inquiry as to his sanity is precluded, by the express terms of the law; and it is now hushed in the silence of death.

The testimony tends to show that the Meegels took advantage of the mental condition of Kees ; and that they had not the means of paying in cash the price of their respective purchases. But the question is. not whether, as between Kees, or the heirs of Kees, and the Meegels,. these conveyances were voidable for fraud and want of consideration. The real question is how the rights of Greve & Wilderman are affected, conceding, for the sake of the argument, that the fraud and want of consideration, as charged in the petition, have been fully proven.

The conveyances to the Meegels were well known to the family and neighbors of Kees, within a few days after their date. They were filed in the office of the parish recorder on the twenty-fourth April, 1863; but they were not actually recorded at that time, because by military order, the recording of transfers of property was prohibited. This prohibition was removed about January, 1865, and on the eighth of that month these conveyances were recorded without proof. On the 28th October, 1865, they were authenticated ; and they were again recorded on that day. On their face they are valid in form ; they disclose no defects in the title which they purport to convey; and they acknowledge the receipt of the price by Kees. The Meegels were certainly in posses- • sion, after the disappearance of Kees; and their recorded titles gave notice that they claimed to be the owners.

Five years after the date of these titles, three years after they had been inscribed in the public records of the parish, Fritz Meegel died ; ■ and in the mortuary proceedings, apparently regular, his half of the property was sold at public sale, and purchased by Edward Meegel; and the conveyance to him 'by the curator was duly recorded on the 21st December, 1868.

. Reference has been made in the argument, to a suit brought by Toups, against Edward Meegel, in May, 1872, to recover two arpents front on the upper line of the nine arpents conveyed to Fritz Meegel by Kees. Of course, this suit can have no bearing on the question of the good faith of Greve & Wilderman, in accepting the mortgages of 1869, ■and 1871, not only because of the date at which it was brought but because the only question passed upon in that suit was that of priority of title. Toups claimed under a notarial title from Bourgeois, duly recorded, in 1872; and Bourgeois acquired from Kees, by notarial title, duly recorded in 1856. When Kees sold nine arpents to Fritz Meegel he sold two ar-pents which did not belong to him; and when Edward Meegel purchased, at the probate sale, he did not acquire these two arpents ; and this court so decided, at the February term, 1876. 28 An. 111.

It was proven that Digher told Greve, one of the defendants, that the title of the Meegels was not good, that everybody looked upon it as -a fraud; but he does not fix the date of this communication otherwise than that it was three or four years before the sale under the mortgages; and he says that Greve made him no answer.

It was also proven that Mr. Blake, who was attorney for Edward Meegel in 1869, was the attorney for Greve & Wilderman in the exeeu-tory proceedings. The argument is that, as Blake must have known the defects in Meegel’s title, when the mortgages were granted, Greve & Wilderman, who became his clients in 1875, are to be charged with notice. Surely counsel cannot be serious in urging this ; but if it had been proven that Mr. Blake, in 1875, when he was employed by Greve & Wilderman to enforce their mortgage rights, had told them that the title of Edward Meegel was bad, their good faith as mortgagees would not have been thereby impaired. There in nothing in the record to impugn the good faith of Greve & Wilderman as mortgagees ; and it cannot be seriously questioned.

It is well settled that the holder of the legal title, which is properly inscribed in the public records, whether it be simulated or fraudulent, ■conveys a good title to the purchaser in good faith. There can be no difference, in principle, between the good faith of the purchaser, and the good faith of the mortgagee, so far as their respective rights are concerned; and jurisprudence makes none. In Foster vs. Foster, 11 La. 401, Thomas Foster conveyed 18 slaves to his brother Levi, fraudulently and without consideration. Some months after this title had been recorded, Levi Foster mortgaged the slaves, for his antecedent debt. Both the Fosters died ; and the representatives of Thomas brought suit ■against the representatives of Levi, to recover the slaves, on the ground of fraud and want of consideration. The mortgage creditors of Levi intervened, and asserted their rights. This court said, page 408 :

" Had Levi Foster sold the slaves to a third person, ignorant of , the nature of the sale from his brother, it cannot be doubted that the vendee’s title would have been good. A mortgage is in the nature of an ■alienation ; and the mortgage creditor, who had no knowledge of the fraud, would be equally protected with the vendee. No principle is better established in law or moral justice than that third persons, acting in good faith, shall not be prejudiced by the frauds of others, in which ■they have no agency or concern.”

This doctrine was approved and affirmed, after elaborate argument, in Stockton vs. Oraddick, 4 An. 283, which was also the case of a mortgage by a fraudulent vendee.

In Hunter vs. Buckner, 29 An. 60Í, the purchaser, Walmsley, who had not paid the price, although payment was acknowledged in the conveyance, mortgaged the property to Buckner who was in good faith ; ■and Buckner proceeded via executiva. The vendors of Walmsley sued to arrest the sale, to annul the mortgage, and to recover the property for non-payment of the price. This court held that Buckner was not ■affected by any secret purposes or understanding between the original parties, not brought home to him. That the resolutory condition is, indeed, implied in all commutative contracts ; and its effect is to restore the status that existed at the date of the contract; but, “ the act of sale-informs the world that the price was paid ; and Buckner, acting on that information, gave credit to the owner of the property, and is entitled to enforce his mortgage rights upon it.”

The mortgagee in good faith, acquires the right to have the mortgaged property sold in satisfaction of the mortgage debt; and if he cannot do this, the mortgage is of no value. Subsequent notice or knowledge of defects in the title of the mortgagor, can no more impair the right of the mortgagee to seize and sell the mortgaged property, than could the right of the purchaser in good faith, to hold and enjoy the property, be affected by subsequent notice or knowledge of the fraud or simulation in the title of his vendor. The contrary doctrine would strip real estate and mortgages of their value; and would leave the rights of innocent third persons, dealing on the faith of public recorded titles, in a- deplorable state of uncertainty and insecurity. The good faith which, the law requires is that which existed at the time of contracting ; and the vendee and the mortgagee are equally protected in their respective rights by this good faith.

Of course Mrs. Meegel could not have been expected to make any attack on the title of her husband ; but there was no obstacle to the-operation, by Mrs. Davis, of her rights as one of the forced heirs of her father. The title was never called in question, judicially, until 1872, nine years after its date, and after the disappearance of Fees, four years after the death of Fritz, and three years after Greve & Wilderman had acquired their rights as mortgagees. Their good faith protects the title which they subsequently acquired, in the enforcement of their mortgage rights, as effectually as it protected those rights, ab origine.

The judgment appealed from is, therefore, annulled, avoided, and reversed ; and the demand of plaintiffs, appellees, is rejected, and their suit dismissed, with costs in both courts.

Rehearing refused.


text:
    No. 7827.
    The State vs. Michel E. Domingues.
    An. information for perjury -will lie, ■when it appears tliat tlie false swearing was done in a suit which was within the jurisdiction of the court that tried it.
    Justices of the peace have jurisdiction of suits hy lessors to recover possession of their leased premises, at the termination of the leases thereof.
    The rule of evidence that parol proof will not he admitted to explain, alter, or vary an authentic act is not applicable to the investigation of a charge of perjury, where the object was-to prove what was said and dono by the prisoner at a particular time, as a part of the res gestee-

    APPEAL from the Superior Criminal Court, parish of Orleans. Whitaker, J.

      J. C. Egan, Attorney-General, for the State :
    First — The testimony offered was admissible as part of the res gestae, to show intent and knowledge. The objection made only applies to an investigation to affect title of real estate, and is inapplicable when the object is to prove criminal intent and knowledge.
    Second — The proceedings before the justice of the peace seem to have been conducted under sec. 2155 of the Revised Statutes of 1870, and by the terms of this act “ it is lawful for lessor to cause the tenant to be cited to appear before any justice of the peace having competent jurisdiction, in order to be then condemned to deliver him the possession of the leased premises.” By section 2158, the lessor can make use of the law against any under lessor. The court therefore had jurisdiction.
    Oharles G. Ogden for defendant and appellee:
    First — Over such a suit a justice of the peace has no jurisdiction, O. P. 1068, and therefore the demurrer should have been sustained. See Archbold’s Criminal Practice, vol. 2, pages 951, 952, 955 (note 1) and 970 (note 1). Waterman’s Crim. Digest, p. 500, sec. 43, p. 501, sec. 60, p. 502, secs. 63 and 66, and p. 509, sec. 144. Bouvier’s Law Dictionary, vol. 2, page 531, No. 5.
    ¡Second — That parol evidence is inadmissible to explain, contradict, or vary an authentic act. Walker’s Digest, p. 178, No. 148, and p. 179, Nos. 159 and 162.
    'Third — That the question of the payment- of rent, vel non, was not material to the issue and there could be no perjury within the law in the testimony upon that point. Waterman’s Criminal Digest, p. 496, sec. 1; Archbold’s Criminal Practice, vol. 2, pp, 960 and 962, note.
   The opinion of the court was delivered by

Manning, C. J.

The prisoner having been convicted of perjury and •sentenced to five years’ imprisonment at hard labour, appeals.

There was a demurrer to the information in this — “ that the information, and the matter therein contained, in manner and form as the same ■are set forth, are not sufficient in law, the court wherein the alleged perjury is charged to have been committed being without jurisdiction ratione materice of the suit therein pending, and that the defendant is not bound by the law of the land to answer the same.” It was overruled.

The suit was before the First Justice of the Peace of Orleans, and was instituted by the prisoner against Andrew Branagan and another. The citation required them “to answer the demand of the plaintiff ■against you for the possession of the premises on Fourth street,” etc.

The suit before the justice seems to have been conducted under sec. 2155 Rev. Stats., where jurisdiction is conferred upon that pourt to hear and determine such questions, and the prisoner had selected that forum in which to lodge his complaint. The perjury was committed on the trial of that cause. The demurrer was properly overruled.

On the trial of the criminal charge, a witness for the State was-asked, “ what happened there,” meaning at the notary's office when a. deed for real property was executed. The prisoner’s counsel objected to the question on the ground that parol evidence was inadmissible to explain, alter, or vary an authentic act. That rule has no applicability" to the investigation of a criminal offence, wherein it is sought to prove-what was said or done by the prisoner at a particular time as a part of the res gestee, where, for example, the object was to shew his knowledge of certain facts, and thereby to prove his perjury when he swore to different facts. The court properly admitted the testimony.

Judgment affirmed.


author: White, J.

text:
    No. 7787.
    T. W. Robins, Sheriff, vs. B. M. G. Brown.
    A sheriff lias a cause of action in damages or otherwise to protect his possession and to shield himself from liability; but this right of action is limited by the degree of responsibility which may result should the property seized be illegally withdrawn.
    APPEAL from the Fifth Judicial District Court, parish of East Feli-ciana, MeVea, J.
    T. J. Kernan, Calhoun Fluker, and K A. Cross for plaintiff and ap-pellee :
    The possession of the owner is divested by seizure, and the sheriff is the rightful possessor and can maintain an action of trespass against a disturber of this possession. 6 Rob. 101.
    When the sheriff’s possession .has been divested by force and fraud on the part of the seized debtor, the wrong cannot afterward be condoned by a compromise between the seizing creditor and the seized debtor. 29 An. 214.
    Wedge & Moore and J. G. Kilbourne for defendant and appellant:
    There has been no force or fraud used by defendant to divest the sheriff’s - possession. Defendant has paid the seizing creditor his full claim,, interest and costs. This puts an end to the sheriff’s right of action as legal possessor. As to damages, he has suffered none personally,, and cannot recover any. Field on Damages, p. 31; 17 La. 567; T
      Nebraska R. 194; 4 An. 79, 440 ; 7 An. 447 ; 10 An. 33 ; 11 An. 645 5 Indiana R. 352 ; 18 ib. 350 ; 20 ib. 190 ; 11 ib. 64 ; 13 An. 116.
   The opinion of the court was delivered by

White, J.

The plaintiff, as sheriff of the parish of East Feliciana,, sues to recover the sum of $1090 upon the following cause of action: That as sheriff, under the authority of a writ of sequestration, he levied on certain cotton, the property of John Dent, the defendant in the sequestration, and placed the same in charge of a keeper ; that the defendant fraudulently and illegally by force of arms took from the possession of the keeper two of the bales of cotton which had been sequestered and retained the same, one thousand dollars of the claim being demanded as damages and the remainder as the value of the cotton.. The defendant answered by a general denial and by a special denial of the right of the sheriff to stand in judgment in the absence of all complaint by the plaintiff in the sequestration suit. There was judgment below on the verdict of a jury for two hundred and fifty dollars damages ; defendant appeals, and plaintiff answers praying judgment as asked below. The facts as disclosed by the record are as follows :

On the 24th September, 1877, Picard & Weil, on a claim of $137 54, caused to be issued a writ of sequestration against John- Dent and others. Under this writ the sheriff seized a small growing crop belonging to Dent and appointed,one Keller as keeper some time afterward. Dent, who had obtained his supplies from Brown, called upon him to obtain bagging for two bales, which he offered to deliver to him, the two bales being a part of the crop which had been seized. Brown thereupon sent his son with a wagon to the gin where the cotton was, and upon the refusal of the keeper to deliver it, he falsely represented to him that he was a deputy sheriff, and by this misrepresentation obtained possession of two bales of the cotton, which he took in the wagon to his father’s premises. Upon learning of the removal, a deputy sheriff called on the defendant for the return of the cotton, which was yet in the defendant’s hands. He pointed it out to the sheriff, told him he claimed it as fur-nisher of supplies ; would hold it subject to the Picard & Weil suit, but. refused to haul it back himself to the place whence it had been wrongfully removed. This suit was then commenced, and shortly thereafter the defendant acquired all the right of Pioard & Weil in and to their suit against Dent, and paid the costs, including those of the sheriff therein. Under this state of facts the defendant contends that the sheriff has no action in damages, as sheriff, and that if he had the-same was settled by the payment of the claim and costs of Picard & Weil, under whose sequestration the cotton was held by the sheriff. We take it that a sheriff entitled to the custody and possession of property has, ••an action in damages or otherwise to protect his possession and to shield himself from responsibility, and that this right for that purpose is limited by the degree of liability to be entailed on the sheriff should he Illegally part with the property which it is his duty to hold. To this extent and no further we consider the case of Winn vs. Elgee, 6 R. 101, as going. This being true, the only question is how far the settlement made with Picard & Weil after the institution of this suit deprived the ■plaintiff of remedy, or rather diminished the quantum of damages ? The settlement obviously relieved the plaintiff from all liability to Picard & Weil, and was hence destructive of all claim to actual damages unless .it be the expense to which the plaintiff was subjected in bringing the present suit, for which one hundred dollars would be a liberal allowance.

It is contended that as the sheriff had a cause of action that cause ■could not be destroyed without his privity. The fallacy consists in -confounding the claim of a sheriff as sheriff with his individual rights, if any, and his independent right as sheriff to commence an action to protect himself from liability with the cessation of the right of action upon the settlement of the cause of action. The axiom of “ siiblato fundamento cadit opus,” is decisive of the cause.

We therefore order that the verdict and judgment below be reduced from two hundred and fifty to one hundred dollars, and as thus reduced they be affirmed, the costs below to be borne by the defendant, those of .the appeal by the plaintiff.


text:
    No. 7776.
    W. L. Jackson vs. R. P. Miller et al.
    The real cause and consideration of a written contract involving a transfer of immovable property may be shown by parol evidence, although it appears that the real consideration was different from the one expressed in the contract.
    A transfer of mortgaged property to the mortgage creditor in settlement of a debt much larger in amount than the value of the property, is not in fraud of the debtor’s other creditors.
    APPEAL from the Thirteenth Judicial District Court, parish of Con-cordia. Hough, J.
    W. F. Mullen and Geo. W. Sawyer for plaintiff and appellant:
    First — That the parol evidence to show the consideration of the transfer from Miller & Walton to John A. Miller was inadmissible, is established by the following authorities: Skillman and Wife vs. Lacey, 12 M. 404; Clark vs. Farrar, 3 M. 252, 253 ; Hart vs. Clark, 5 M. 614; Semple vs. Fletcher, 3 N. S. 385 ; 2 L. 447; 17 L. 366; Girocl vs. Yiaes, 23 An. 588; 8 M. 216 ; the cases of Semple vs. Fletcher, 3 N. S. 385 ; Pothier on Obligations, 1.1, pt. 4, art. 3 ; 0. 0. 1808, 241,1876, 2275 ; 6 M. 429 ; 4 N. S. 159 ; 2 L. 448 ; 4 L. 1 ; 16 L. 130 ; 9 R. 416 ; 4 An. 441 ; 15 An. 577 ; 27 An. 198 ; 28 An. 181.
    Second — But if the evidence is held admissible, it shows a giving in payment by an insolvent debtor, which is prohibited. O. 0. arts. 2658’ and 2440 ; 10 L. 159 ; 21 A. 196.
    Third — -The relation of creditor and debtor existed between the plaintiff and Miller & Walton at the date of the transfer attacked by reason of the suretyship of Jackson for Miller & Walton. Yan Wyck vs. Seward, 18 Wend. 375 ; Jackson vs. Myers, 18 Johnson R. 425 ; Fox vs. Hill, 1 Conn. R. 275 ; How vs. Ward, 1 Greenleaf R. 195 ; Lewk-ner vs. Freeman, 1 Eq. Cas. Abr. 148.
    O. Mayo for defendant and appellee :
    That parol evidence is admissible to show the true cause of a contract, even though it be another cause than that set up in the contract. C. C.' 1894, 1900 ; 3 An. 135 ; 26 An. 548 ; 30 An. 966. .
   The opinion of the court was delivered by

Manning, C. J.

The plaintiff sues to recover $4,798.50 with interest of R. P. Miller and G. L. Walton in sólido, and $1,701.50 of the latter individually, and also to annul a sale made by these parties to John A. Miller of a plantation, and to subject it to the payment of his debt. John A. Miller being dead, hi£ daughter and heir Georgia Miller, is a party defendant as his representative. There was judgment in favor of the plaintiff for the moneyed demands against R. P. Miller and Walton, and in favour of all the defendants, rejecting the demand for the annulment of the sale.

R. P. Miller and G. L. Walton purchased the Excelsior plantation in January 1859 from John A. Miller, the price being $73,284.00 of which $12,765.60 was paid cash. In January 1861 a mortgage was given by these parties to their vendor upon this plantation and seventy negroes to secure $77,712.35. In August 1867 they conveyed the plantation to John A. Miller by deed, the consideration of which is said to be one dollar.

The allegation of the plaintiff is that this sale is simulated and fraudulent, and is informal and void against third persons for want of a legal price and consideration, and is not translative of property. The defendant offered, and was permitted, to prove by parol the real consideration of the transfer, which was the delivery and cancellation of the unpaid mortgage notes which John Miller held, and which had been substituted to the notes given two years before at the purchase, and which, therefore included the whole of the credit instalments of the purchase price with accrued interest, and some additional sum. Bills of exception were reserved to the admission of this testimony and present the chief question for decision.

It is a truism to say that titles to real estate can neither be created nor destroyed by parol evidence, nor can parol evidence be admitted to ■alter, vary, or contradict a written title, but the question here is whether such testimony can be admitted to discover the real cause or consideration of a contract, when.it is not expressed, on its face. In Delabigarre v. Second Municipality, 3 Ann. 230, where the object of the evidence was to shew whether the contract was a donation or compromise, this court ■said — courts'of justice will pause and try to discover whether this was the real cause, for a contract is not the less valid though the cause be not expressed, and if the cause expressed be one that does not exist, yet the contract cannot be invalidated if the party can shew the existence of a true and sufficient consideration. Civil Code, arts. 1888-1894. It is the necessary consequence of these provisions of law that the true cause may be shewn by any legal evidence, oral or written, and that the evidence adduced for that purpose never can be considered as contradicting the act.

So in Heluin v. Minor, 12 Ann. 124 the consideration of a deed for land was stated to be “ for value received,” and its validity was attacked, the court say — the plaintiffs contend that if the act be considered a sale, it is void for want of a fixed and determinate price, and if it be considered a donation, it is void for not having been passed before a notary and two witnesses. There cannot be any doubt that our courts would consider the instrument invalid as a donation, and it may not be techni•cally a sale under the Code, but it does not necessarily follow that the contract itself, after its execution, is to be considered as void because it cannot be classed as a contract of sale. * "" * A contract is not invalid because the cause has not been properly expressed. Civil Code, art. 1894. In a later case where the question was a partition of real estate it was said ; — This is not an attempt to prove by parol a sale of immovable property, nor to contradict a valid existing instrument, but to shew that by accident or negligence the instrument in question was mot made the depository of the intention and meaning of the contracting parties. Ex necessitate parol evidence should be received. Fleming v. Walton, 26 Ann. 545. In Brown v. Brown, 30 Annual, 966, we ruled that when an actual consideration, however inadequate, exists for an alleged sale, the contract is not simulated. Objection was made there as here, that the real consideration of the transfer could not be proved by parol. The consideration in that case was stated in the deed to be cash, and it was proposed to prove that notes were taken. We admit-■ted. the testimony saying — if the cause expressed in the contract should 'be one that does not exist, yet the contract cannot be invalidated if the -party can shew the existence of a true and sufficient consideration.

In the present case the deed, after a form familiar to conveyances ■ ■in the common law, expressed one dollar as the consideration, and the ■ conveyance was from vendees in a former sale, of the property then bought, to their vendor accompanied by the cancellation of their notes which represented the original purchase price, and which was far in excess of the value of the property at the time of the resale. To say that this is to permit parol evidence to contradict the written contract is an abuse of terms. There was a valid contract i. e. the sale of the plantation. It had a valid consideration which was not expressed. Parol -evidence was properly admitted to shew what it was.

The only other question is that this resale is alleged to have been In fraud of creditors. John Miller had a mortgage to secure the price, and the land was not worth over one third its amount. A forced sale -in foreclosure of his mortgage would have consumed the whole proceeds,

. and have left a large part of his debt unsatisfied.

Judgment affirmed.


text:
    No. 7782.
    F. M. Raxedale et al. vs. Fred. Seip, President Police Jury.
    ''Contiguous proprietors under R. S. 2754 construed to mean those whose land actually touches the road, or through whose land the road passes. Ticinal are not necessarily contiguous proprietors.
    A PPEAL from the Ninth .Judicial District Court, parish of Rapides. Blackman, J.
    R. A. Hunter & Robert P. Hunter for plaintiffs and appellants :
    Under the provisions of sec. 2754, Rev. Stats, of 1870, police juries cannot close, obstruct, or change public roads without the consent of the contiguous property owners.
    W. C. McGimsey & James Andrews, Jr., for defendants and ap'P ellees:
    ’The plaintiffs are not contiguous property owners such as the statute relied upon by them contemplates ; but residents of. the town of Alexandria, to whom the said law gives no cause of action in the premises.
   The opinion of the court was delivered by

White, J.

Oh Motion to Dismiss.

We think the amount involved in this cause is within our jurisdiction. The motion to dismiss, as also that to transfer, is denied.

On the MERITS.

Certain property owners enjoin the police jury from closing an old and opening a new road in the vicinage of the town of Alexandria. Their complaint is, that the closing of the old road will seriously damage property by them owned, and that they being contiguous proprietors the road cannot be closed without their consent; that even if this be not the case, as the old road passes along the banks of the Bayou Rapides, it cannot be closed, the bayou being a navigable stream.

We think the proof far from satisfactory as to the stream being navigable, and, if it were, know of no law compelling police juries to maintain public roads along the entire bank of all navigable streams. The road which it is proposed to close follows, as we take it, the meanderings of the stream, while the new road leaves for a while the bank, to rejoin it at no great distance.

The entire case, as we see it, turns upon the question of whether the plaintiffs are contiguous proprietors within the meaning of art. 2754 of the Revised Statutes, which forbids the closing of public roads without the consent of the contiguous property owners. We construe these words as designating those property owners through whose land the road passes ;gor, at all events, whose property is actually touching on the road. This view, of course excludes property holders who, although vicinal are not contiguous. Some of the plaintiffs are on the face of the papers residents of the town of Alexandria. Some reside outside of the corporate limits. The first, we think, are clearly not contiguous proprietors in the sense of the statute, as they own property in the town, on its streets, and in no sense contiguous to the road. The fact that property owners in the town think that their interests would best be sub-served b> a road approaching the town in one direction rather than another is beyond the issue, as the general power of the police jury is not controlled by the wishes of particular individuals, but by the statute which has made the consent of the contiguous proprietors the test of their right to make the contemplated change. The proof is far from satisfactory as to whether the property owners outside of the corporate limits who are plaintiffs in this causo are contiguous in the sense we give to the word. We infer from the general drift of the testimony that they are not-; yet we cannot so conclude without the risk of doing in7 justice. Had the diagram which it was agreed by both parties should be made by the parish surveyor and annexed to the transcript been be-iore us we would have been able to finally dispose of the matter. This not being the case, we think that the ends of justice require'that the •ease be remanded for the purpose of ascertaining whether the plaintiffs •or any of them are contiguous proprietors in the sense of the statute as herein above defined.

It is therefore ordered that the verdict of the jury and the judgment thereon be set aside and reversed, and that this cause be remanded *to the lower court for further proceedings according to law and in conformity to the views herein above expressed; the costs of appeal to be borne by appellee, those below to abide the final result.

The Chief Justiee takes no part in the decision of this cause.


text:
    No. 7777.
    Anna S. Miller vs. M. Georgia Miller et al.
    ^Nullities of form in the probate of a will are barred by the prescription of five years.
    'One who has made a last will may, by a subsequent will, appoint an executor, and although the will last written contains no other provision than the appointment of an executor, the objection that it is not dispositive is untenable.
    APPEAL from the Thirteenth Judicial District Court, parish of Con-cordia. Hough, J.
    George S. Sawyer for plaintiff and appellant:
    ¡Plaintiff contends that the sale of certain real estate made by order of the probate court, in the succession of her late husband, at the instance of the testamentary executor,- is null and void for the following reasons:
    ¡First. The will itself, a nuncupative one by private act, was null and void, because it does not appear by whom, or where, or in whose presence it was read at the time of making the same. Prescription of five years does not apply. C. C. 1582; 5 Rob. 481; 6 An. 242 ; 1 Rob. 48 : 2 An. 926.
    ¡Second. The will was ordered to be executed on the proof of the depositions of but two witnesses, without accounting for the absence of others, or showing the impossibility of having more. C. P. 933, 943 ; C. C. 1648 ; C. O. 12 ; 1 Rob. 48 ; 2 An. 726 ; 6 An. 246 ; 10 An. 212 ; 5 Rob. 483; 6 An. 104 ; 5 An. 265 ; 17 An. 189.
    ’Third. The olographic memorandum in which the deceased named the executor, is not a testament, and contains no testamentary disposition. 29 An. Succession of Elliot; 28 An. 697; 29 An. 660; C. C.. article 1570, 1571.
    Fourth. The pretended sale was a scheme of collusion and fraud between the executor and the purchaser.
    O. Mayo for defendants and appellees :
    The will was signed by the testator and requisite number of witnesses.. On its face it appears to be legal and valid. All the formalities of the law were also observed in the probating of it.
    Besides, the action to annul a will is barred by the prescription of ñve years, which has been pleaded.
    The administrative acts of the executor, even if illegally appointed and qualified, must be held valid until the appointment is revoked, for ■ the security of third persons. 30 An. 168 ; 28 An. 806.
    The appointment of an executor in a subsequent olographic codicil is • clearly legal.
    The charge of collusion is perfectly groundless. -The property was sold for its full value, and no injury done to the succession.
   The opinion of the court was delivered by

White, J.

This is a petitory action to recover a plantation in the parish of Concordia. Before stating the prayer of the petition, it will be well to state briefly the facts on which the cause of action is based, in order to a clear apprehension of the issues presented for decision: ■ David F. Miller was twice married, his second wife being the plaintiff' in this suit. In 1856, during the existence of the second marriage, John A. Miller sold to Anna S. Miller, wife of David F. Miller, the land in controversy; the price of the sale was $38,638 14, all on credit, and' evidenced by six notes of David F. Miller, drawn to the order of John A. Miller, and falling due in 1857, 1858, 1859, 1860, 1861, and 1862, all secured by special mortgage on the property sold. David F. Miller died, in 1862 ; he left the following children, the issue of his first marriage : W. T., Eliza L., wife of W. B. Ulrich, Mary II., and Julia B. Miller, all majors,, and David D. and Henry W. Miller, minors, as also three minor children, the issue of ,his second marriage. On the 29th September, 1862, W. B. Ulrich, the son-in-law of the deceased, applied for the probate of his-will, which was ordered and granted, and on the same day a decree of probate was duly entered, and letters testamentary were issued to Ulrich,, who was named as such in the will. An inventory was taken, in which, was included the property above mentioned as having been acquired-from John A. Miller. Ulrich, the qualified executor, as far as the record-discloses, filed no account of his gestión ; various judgments were rendered against him as executor, amounting in principal alone to nearly-twenty-five thousand dollars, some of them, containing recognition off special .mortgages. In 1872, William S. Miller, who had been named' co-testamentary executor of his father’s will, applied for letters, which upon Ms qualification were issued; he obtained an order for and had taken a new inventory, and shortly after, on his petition representing that there were debts to be paid, obtained an order of sale. Under this order, after due advertisement, the property now in question was adjudicated to John A. Miller for the appraised value, 825,627.52. The executor filed his final, account, which stated the privileged debts at $5851.09, and the other debts, mortgage and ordinary, at a sum which largely exceeded the action, leaving the succession hopelessly insolvent. The price paid by the purchaser of the real estate was called upon to-contribute to the payment of the privileges to the extent of $3210.51,, thus leaving the sum $22,417.01 to be applied to the debts, which were, as stated in the account, first, a stock mortgage of the Citizens’ Bank, subject to which the plantation was sold; second, the vendor’s mort- ‘ gage in favor of the purchaser, J. A. Miller, stated in the account as then amounting to $39,603.20; third, various judgment creditors, some ■with recognition of special mortgage, amounting to, exclusive of interest, the sum of $25,151.02. Thus the result was that Miller, the purchaser, contributed to the payment of the privileges the sum of $3210.51, retained the balance of his bid, $22,417.01, in partial satisfaction of his claim of $39,603.20, and the other mortgage and ordinary creditors got nothing. The account was, after due proceedings, homolo-gated, these being the proceedings upon which the defendant’s title rests, she having acquired through the succession of her father, J. A. Miller.

The claim of plaintiff is :

First. That the property never belonged to the succession of her-husband, having been acquired by her; that although the price was ■ paid by the notes of the husband, these notes represented the giving to her in payment by her husband of a sum of money due by him in consequence of the receipt of her paraphernal property.

Second. That the will was never duly probated, the witnesses not ■ testifying to such facts as authorized the probate, and only two witnesses having been heard, when three were required by law. '

Third. That the appointment of Miller as executor was an absolute • nullity, as he was appointed under a so-called codicil, which was absolutely null, not being dispositive in its nature.

Fourth. That all the proceedings in the succession of Miller were • fraudulent and collusive, and were concocted between John A. Miller and the executor, with the object of divesting the succession of its title without consideration.

We will pass on the grounds in detail.

1. The property was acquired during community; the presumption that it was community obtained. C. C. Besides, on the face of the sale the price was to be paid by the husband. No proof whatever is in the record substantiating the pretensions of the plaintiff as to the price having been intended to re-imburse her paraphernal claims. On the contrary, the proof is the other way.

, 2. The will probated was in the nuncupative form by private act; the two subscribing witnesses, whose testimony was made the basis of the probate, testified as follows : one, “ that he had carefully examined the instrument presented purporting to be the last will of David Franklin Miller; that he recognizes it as having been signed .by said Miller, as for his last will in the presence of deponent and the other subscribing witnesses on the day of its date, and'that the said Miller presented it to the witnesses, declaring it to be his last will and testament ; that deponents and the other subscribing witnesses, at the request of said Miller, and in his presence, and the presence of each other, signed the same as witnesses; that all of said witnesses were at the time residents of this parish; that Phelps and Hamberlin are now absent from the State. The other witness testified that he has carefully examined the instrument purporting to be the last will of David Franklin Miller; that he recognizes the same as having been written by deponent under the dictation of said Miller ; that said Miller presented the same to the subscribing witnesses, declaring it to be his last will and testament, and signed the same in the presence of deponent and the other subscribing witnesses, and that deponent and the other subscribing witnesses, at the request of said Miller and in his presence, and in the presence of each other, signed the same as witnesses; that all of the subscribing witnesses were residents of this parish, and that Phelps, Hamberlin, and Welch, as deponent is informed and believes, are now absent from the State.

The grounds upon which it is said that the testimony was insufficient to justify the probate are, first, that only two witnesses testified ; second, that the proof did no! show that the will was read to the testator in the presence of the witnesses.

First. The absence of the three other subscribing witnesses was sworn to, and such absence justifies the probate on the testimony of less than three witnesses. C. C. 1653. True, in the case now before us there is testimony going to show that one of the witnesses sworn to as absent was really present in the State. The proof is not certain, but if it were, the fact would not render the probate absolutely null.

Second. There can be no doubt that the reading of the nuncupative will by private act is necessary to its validity; but O. C. 1649, in pointing out what proof is required to probate such a will, does not enumerate prooí that the will was read. Whether or not this singular divergence between what is required for the validity of the will and the quantum of proof required for the probate renders null a probate made according to the requisites of C. C. 1649, is a question we need not consider, because we think the plaintiffs case, in so far as it attacks for nullity of form, is barred by the prescription of five years, which has been pleaded. C. C. 3540; Calais vs. Sembre, 10 A. 684. True, wills are solemn acts, and form is of the essence, the aphorism being forma dat esse rei, and therefore, a will not formal is absolutely null. But as said in Calais vs. Sembre, there is a distinction between absolute nullities resulting from defect of form and those flowing from other causes, as said by this court in Vaughan et al. vs. Christine, 3 A. 328, in speaking of a case where form was of the essence of the thing attacked, where it was contended that form being of the essence, the nullity was, therefore, absolute : “ Such is and has ever been the law; but counsel overlook the distinction that there are absolute nullities of different kinds, and that all absolute nullities arising from defect of form come within the general provisions of article 3507,” now article 3540.

Third. We think it only needs statement to maintain the proposition that one who has made a last will may by a subsequent will clothed with the legal formalities appoint a testamentary executor. The last will was in the olographic form, and was duly probated. It is contended, however, that this last will refers to the appointment of an executor to some other than the will to which we have previously referred. This claim results from the following: The will last in date, which is called a codicil, says, “ I hereby add this as a codicil to this my last will and testament, the said will having been dated on the 14th day of March, last past.” * * * * The will referred to is dated the 14th day of March, but the word fourteenth, which in the original will is written in letters, appears to have been incorrectly spelled, and has been altered. It is claimed that the word was originally the twentieth, and therefore the appointment of the executor refers to another will than the one probated. The original will is annexed to the transcript, and we are entirely satisfied that the word, as originally written, was the word fourteenth, which has been simply corrected as to spelling. The codicil, as found in the record, is attached to the will, and in it the testator speaks of it as “ this my will.”

Fourth. We find no proof whatever of the charges of fraud. It 'is said that the claim of the first mortgage creditor was prescribed. We know not whether such was the case, but it is manifest that the ■claim was allowed by the executor on his account, and although so allowing it cut all the other creditors off in the distribution, no one seems to have charged or pretended that the claim was barred by prescription. In fact, striking the claim from the account, the judgment', creditors of the succession would remain unpaid. The succession was insolvent, as we have already shown, by a large amount, irrespective of' the claims of the first mortgage creditor.

The judgment below is affirmed with costs.

Mr. Justice Spenoee recuses himself in this case.

Rehearing refused.


author: Manning, C. J. White, J.

text:
    No. 7496.
    David S. Bryon vs. Allen Jumel, Auditor.
    ■Where a judicial office is legally abolished, before the commission and qualification of on,e elected to perform its duties, such person, never having been commissioned and qualified,, cannot recover the salary of the office of -which he was never an incumbent.
    ^PPEAL from the Third District Gourt, parish of Orleans. Monroe,

    D. S. Bryon for plaintiff and appellee :
    The relator’s case is exactly the same as that of Oollens, 30 An. 861, Elmore, not reported, and Moss, 31 An. 142, ail three decided in. favor of the relators.
    H. N. Ogden, Attorney-General, for defendant and appellant:
   The opinion of the court was delivered by

Manning, C. J.

The relator was elected the judge of the Superior District Court of this city at the election in November 1876, and prays-for a mandamus to the Auditor of Pul lie Accounts compelling him to audit and issue warrants for his salary for the first three quarters-of 1878.

By an agreed statement of facts, it appears that the Superior District Court was in existence up to and including January 4,1877, presided over by another judge than the relator, and that the relator applied to the Governor on the 8th of that month for his commission, which was-refused on the ground that there was some doubt whether the court-then existed.

This doubt was produced in this way. The legislature had passed an Act abolishing that court, and sent it to the Governor for his approval, on March 11, 1876, who did not then approve it, but withheld the bill. The court continued its sittings, but on the assembling of the legislature-in January 1877, the Governor approved the bill, and instead of sending; tbe Act to the legislature sent it to a pseudo-legislature. The General Assembly thereupon provided a new mode of promulgating Acts (Sess. Acts 1877, p. 23) which the Governor had failed to return within the prescribed time, and under that law, this unreturned bill was promulgated on March 15, 1877. Ibid. p. 86. The effect of this was to abolish' that court as we held in State ex rel. Mercier v. Judge Superior District. Court, 29 Annual, 223.

, The relator appears to be in some confusion touching dates. His statement of facts gives January 4,1877 as the day when the repealing bill was passed. It was nearly a year before, viz. March 11,1876. The date he gives is that on which the Governor sent the approved bill to the wrong body. Its promulgation was legally made on March, 15,1877,. on which day we declared the court to have expired.

His suit is for salary of 1878, the year after the extinction of the-court. We are unable to sustain his demand.

The relator’s caséis unlike Collens’, 30 Annual, 861, whose office was. a constitutional one to which he had been commissioned; and unlike-Moss’ 31 Annual, 142, whose salary was subject to reduction by the-legislature. In the former, we held the judge’s office could not be abolished and himself deprived of its emoluments — in the latter, that the reduction could not affect an incumbent whose term had commenced' before the deduction. The relator’s office was created by the legislature- and by it abolished, and its abolition was recognised by this court to be complete before the time for which the salary is sued for.

It is therefore ordered and decreed that the judgment of the lower court is reversed, and that the mandamus is refused at the costs of the-relator in both courts.

OK REHEARING.

White, J.

Two propositions of fact are clearly established: 1st. That previous to the election of the relator a bill had passed the General Assembly, abolishing thg office to which he was elected ; that the bill at the time of the election was awaiting executive action, and was inchoate, and that it became a law shortly after the election. 2d. That it was promulgated before the relator qualified. These facts, we think, are-decisive of the cause, and render it legally impossible that we should grant the relief prayed for. The fundamental difference between this case and those of Oollens (30 A. 861), of Moss (31 A. 142), and of Elmore • (Opinion Book No. p. ) is that here the claim is for the salary of an office of which the relator was never an incumbent, because of his-non-qualification, while in the cases cited the claimants had qualified, and were in possession and legal exercise of the judicial functions upon which their claims were based. Whether or not the fact, that the bill abolishing the office to which he was elected was depending for executive approval at the time of the election, would deprive the relator of his right to the emoluments of the office, had he qualified before the promulgation of the law by which the office was legally abolished, is a question upen which we need express no opinion, as we rest our decree solely on the ground that the absence of the commission and the want of qualification renders it impossible for us to hold that the relator was illegally •deprived of the functions of an office which he never held, of which he was never an incumbent. Por these reasons, pretermitting all examination of the other issues, we think our former conclusion in all respects ■correct.

It is therefore ordered that our former decree remain undisturbed.