author: Pocmí, J.

text:
    No. 8584.
    The State ex rel. F. L. Fernandez vs. W. T. Houston, Judge, et al.
    By Act No. 5 of 1870, extra session, no court within this State has the jurisdiction to entertain an application for or the power to grant a writ of mandamus for the purpose of compelling the auditing officer of the city of New Orleans to issue a warrant for the payment of money on the disbursing officer óf said city. A writ of prohibition will issue from the Supreme Court under-its supervisory control to restrain the enforcement of a writ of mandamus issued in such circumstances by an inferior court.
    ApPLICATION for a writ of Prohibition. Houston, J., Respondent.

      JS. JE. Mo'ise, for Relator:
    A.
    1. Where two parties claim to be paid out of one fund, and the trustee is an officer of a municipal corporation, and where one of the parties has enjoined the officer from paying the other, and that other subsequently procures a mandamus to issue, the party enjoining has a sufficient interest to intervene in the mandamus proceedings, and necessarily to sue out a prohibition from this Court against the Judge who issued the mandamus
    2. A mere stranger to the proceedings can apply for a writ of prohibition. Bacon’s Abr. Tit. Prohibition C. 7; Comyn’s Dig. Prohibition, E: 2 Coke’s Inst. 602; Worthington vs. Jeffries, E. E., 10 C. P. 370 ; 12 Eng. B. 440; Moak's notes.
    3. If even intervenor could not, the defect is cured by the respondent in the lower court making himself plaintiff in this.
    B.
    1. Where intervenor takes a case just as he finds it, and joins respondent in his defenses, setting up no new matter, because one of those defenses happens to be the jurisdiction of tbe court, he is not estopped, since he changes no issue, and simply aids defendant in making out his defense.
    C.
    1.Where a court has neither jurisdiction nor power to issue a mandamus, the Supreme Court may issue a prohibition to the Court thus usurping. C. P. 845-846.
    D.
    1. Under Sec. 1, Act Ho 5, 1870, no court of the State can mandamus the Administrator of Public Accounts to warrant on the Administrator of Finance of the City of New Orleans.
    2. The change in the name of the officer from Controller to Administrator of Public Accouuts does not affect the matter. Ho is the “auditing officer” of the Act. 30 An. 79.*
    3. The Act makes no distinction of persons or claims.
    4. The fact that the claim is for the salary of an officer makes no difference.
    5. So far as the auditing officer of the city is concerned, the articles of the C. P. on mandamus do not apply. 30 An. 79.
    6. The Act applies to liquidated and unliquidated demands. 30 An. 79.
    7. The fact that a judgment creditor must be paid out of the funds of 1880 makes no difference.
    8. In taking from the city’s creditor the remedy by mandamus another remedy was given, for any injury caused by an auditing officer’s unjust refusal to pay a claim. Sec. 4, Act Ho. 5, 1870.
    9. The remedy given is an adequate one. 30 An. 79.
    E,
    1. Where one branch of a court enjoins the doing of an act, another co-ordinate branch has no power or jurisdiction to oí der tbe act done.
    2. An injunction is a bar to a mandamus. Wait's Actions and Defenses, vol 4, pp. 376-377 ; High Ex. Leg. Hem., chap. 1, §23. Ibid, Part 1, chap. 1. § 9.
    3. Under tbe Constitution granting supervisory control to this Court over the lower courts a prohibition will issue. 51 Barb. 312; 20 H. X. 531-542; 21 An. 113; 19 Wend. 154; 23 Ala. 94.
    Ho Court can command the doing of an act which is a crime in law. C. P. 834; High Ex. Leg. Hem., part 1, chap. If, § § 32, 40.
    The mandamus issued by the lower court commands Huger to commit a crime. Sec. 6, Act Ho. 38 of 1879; Wait’s Actions and Defenses, vol. 4, pp, 366, 377.

      Joseph P. Hornor, Francis W. Baker, for Respondent:
    1. A writ of prohibition can only issue where the court having no jurisdiction at all, ratione mateHce and personae, clearly usurps jurisdiction. 32 An. 1092; 32 An. 1185; 32 An. 553 ; 32 An. 676; 32 An. 549; 32 An. 1222; 32 An. 217; 33 An. 923; State e# rel. Brown vs. Houston, H. H.
    2. The writ of prohibition cannot be used to review the decision of inferior Courts in unappealable cases over which they had jurisdiction, however erroneous such decision may have heen.
    3. Act Ho. 5 of 1870, E. S , has no application to a claim for services rendered in 1880, and which is payable out of the revenues of 1880. Such a claim is not required to be registei ed and paid in order of registry, but lias a vested right to he paid out of that particular year’s revenues. 33 An. 567.
    4. Acts which should have beeu done at a particular time, and which are done thereafter under a judgment of court, are to he considered as if done at the proper time and take efft ct as of the proper date.
    5. Act Ho. 38 of 1879 does not give the City Council the right, by refusing to pass an ordinance at the proper timo, to postpone payment of claims for services rendered in April until after payment of similar claims of December.

      C. "Where there is no actual conflict of jurisdiction there is no cause of complaint. 33 An. 925.
    7. One -who voluntarily intervenes before a court and submits the adjudication of his lights, cannot complain of the jurisdiction of such court. 32 An. 1185.
   Tlie opinion of the Court was delivered by

Pocmí, J.

Relator charges that in entertaining an application for, and in granting a mandamus in favor of J. Henry Behan, against the Administrator of Public Accounts of the City of New Orleans, tlie defendant Judge has usurped j urisdiction not conferred upon him bylaw.

The record shows that Behan, a judgment creditor of the city, applied in the District Court for a writ of mandamus against tlie Administrator of Public Accounts, for the purpose of compelling that officer to issue to him a warrant of $200, as balance due on his salary as a former city officer, for the month of April, 1880.

Relator herein, alleging interest, as a creditor of the city, in that controversy, intervened in the proceeding, for the purpose of defeating Behan in his application.

Among other grounds, he and the defendant both urged, that under the provisions of Act No. 5 of 1870, Extra Sesssion, the court was powerless to grant the relief invoked by Behan.

On trial of the application and of the intervention, the latter was dismissed, and the writ of mandamus was granted.

As the case is not appealable, the intcrvenor, who is joined by the defendant, in an answer, lias applied to this Court for a writ of prohibition, under our supervisory jurisdiction.

As argued by defendants, our investigation must be strictly confined to the question of jurisdiction, vel non, of the lower court.

Article No. 90 of the present Constitution, which has created the supervisory jurisdiction of this Court over all inferior courts, has received judicial interpretation in several cases; and in keeping with the spirit of the Constitution, as expounded in those decisions, we shall exercise the power thus granted only in eases where the party aggrieved has no other adequate remedy, and where the act complained of is a manifest violation of a positive law.

The statute which the District Judge is charged to have ignored provides, in substance, that no court within the State shall have authority or jurisdiction to entertain or enforce any summary process, or proceeding, or writ, or order of mandamus against the auditing officer of the City of New Orleans, wdth a view, directly or indirectly, to compel said officer to issue and deliver any warrant for the payment of money, or against the officer charged with the disbursement of the moneys of the City of New' Orleans.

A close attention to the language of the statute discloses that the intention of the legislature was not only to deprive all jiersons of that remedy, but to prohibit all courts from even entertaining any application for the remedy in the cases provided for.

It follows, therefore, that the District Court is positively denied jurisdiction or power to consider the claim set up in all such applications ; and that its plain duty was to decline to even entertain the proceeding.

It has often been held, and it is in fact elementary, that the writ of mandamus is not a writ of right, and must be issued in strict conformity with law •, a fortiori it cannot be applied for or granted in violation of law.

The Articles of the Code of Practice providing general rules, governing writs of mandamus to enforce the performance of ministerial duties, must be construed with reference to this, a later statute, making exceptions as to the special officers in question, in the matters provided for.

The judgment sought to be executed by Behan, the consideration of that judgment and all causes of action which are made the basis of his proceeding, having arisen since the enactment of the- statute, fall clearly within its provisions, and must be governed thereby. See State ex rel. Strauss vs. Brown, 30 An. 79.

Our conclusion is, therefore, that the-defendant Judge -liad no jurisdiction, power or authority to-grant the writ of mandamus applied for by Behan, and that the Relator herein is entitled to the relief which he asks at our hands.

It is, therefore, ordered, that the alternative writ of - prohibition granted herein be made perpetual, and that the defendant Judge be prohibited from enforcing the writ of mandamus granted by him in the case of the State ex rel. J. Henry Behan vs. W. E. Huger, Administrator of Public Accounts. Costs to be paid by defendants in this proceeding-.

Levy, J., absent.


source: Caselaw Access Project

author: Bermudez, C. J.

license: Public Domain

text:
    No. 8549.
    Succession of P. G. Quinn.
    Succession property was offered for sale in this’case by the sheriff, and the appraisement price not being bid, tbe property was instantly re-offered and sold on a twelve months’ bond. The surety on such bond is held liable under the circumstances of the case, however irregular the sale, which was voidable, but not absolutely void.
    APPEAL from the Sixteenth Judicial District Court, Parish of St. Helena. Wedge, Special Judge.

      J. G. Kilbourne, W. B9Kemp, and T. C. W. Bilis', for Plaintiffs and Appellees. ■ •

      J. II. Muse, Administrator, Defendant and Appellant, propria persona.

      Chas. B. Lea, on tlie same side.
   The opinion of the Court was delivered by

Bermudez, C. J.

The question to be determined in this controversy is merely : whether one who signed, as surety, a certain twelve months’ bond, given by an adjudicateo of succession property, offered by a sheriff, can be held liable as such.

From a judgment in the negative the parties claiming to be aggrieved have appealed.

The facts disclosed by the record are: that in the succession of P.'G. Quinii, an order of sale having been provoked’ by a creditor seeking payment, the sheriff advertised a piece of real estate belonging to the succession. At the place and time fixed for the sale, the property was offered by him, but the appraisement price not having been bid, the land was instantly re-offered, and after crying, was adjudicated for $1,675, on a credit of twelve months, to B. C. Quinn, who was the administrator and also an heir of the deceased.

The adjudicatee furnished, as his obligation, a twelve months’ bond for the amount, with Mrs. Elizabeth Carter, as surety therein.

B. C. Quinn having been removed as administrator and a successor appointed to him, and the bond having matured and remaining unpaid, the present succession representative took steps to enforce payment of the bond against Mrs. Carter, as surety, levying on her property. Mrs. Carter, upon grounds alleged, obtained an injunction and arrested the sale. - •

The administrator'and a creditor further sue her directly'on the bond, each claiming exclusive title thereto. She resists payment on_ the ground that the bond is a nullity. It is not valid, she says, because it was not preceded by a judicial sale; the formalities required to give to the instrument the characteristics of a twelve months’ bond were not fulfilled; it is not a judicial bond, but one of consent only; she signed it in error of fact, and no execution could issue and no seizure can be made under it. '

There is no doubt that the sale having been provoked by a creditor, the property could not be legally adjudicated, itnless it brought the, inventory appraisement. As it did not, it was surely the clear duty of the sheriff, in not less than fifteen days, nor more than twenty-five days from the time it was thus offered, and after public advertisement, to have re-offered and sold it at public auction, to the highest bidder, for what it would have brought on a credit <jf twelve months. It is true that the forms of law were not observed,' and it may well be that the property did uot, at the time, pass, and that the adjudicatee did not acquire title to it; but those irregularities are not absolute nullities. They may have been, and to all appearances have been cured.

Indeed, it appears that after the adjudication had taken place, the bond was placed among the assets of the succession, in an account rendered, and that the same property was seized by a judgment creditor of the adjudicatee, and sold for $750, which went towards the satisfaction of his debt. Besides, more than five years have elapsed since the day of adjudication, and time has cured the irregularities attending the sale.

There is nothing in the record to show that any party concerned has ever attacked the title of the adjudicatee; nothing to show that he was disquieted in his possession or had any reason to fear that he would be disturbed by an action of mortgage, or any other claim ; nothing which would have justified him to suspend payment of the price. R. C. C. 2557. A suit against the adjudicatee on the bond would have terminated by a judgment against him, unless he had offered to return the property.

In the same manner that B. C. Quinn could not be permitted now to resist payment of the price, by alleging the nullity of the sale, when not offering to return the property, so Mrs. Carter, the surety, cannot bo allowed to assail the legality of the obligations which she has assumed for the satisfaction of the price. 4 N. S. 93; 9 R. 195; 7 A. 542.

The omission to record the bond cannot'avail her as a defense. She should have had it recorded herself, for her protection. Had she paid, she surely then would have been subrogated to the vendor and have had the privilege securing the debt. But even if the bond had been recorded, she could not resist payment on the bond.

The authorities to which our attention is called by the learned counsel of Mrs. Carter, relate to cases in which principals had defenses, and in which sureties could not be held responsible.

The lower court erred in perpetuating the injunction.

It is, therefore, ordered and decreed, that the judgment appealed from be reversed ; and proceeding to render such judgment as should have been rendered, it is ordered, adjudged and decreed, that, the injunction herein isued be dissolved, and that the execution of the writ enjoined be further proceeded with according to law, the appellants to pay cost in both Courts.

Rehearing refused.


author: Poché, J.

text:
    No. 8405.
    State of Louisiana vs. Jack Chatman.
    The power of tlio District Court to correct its minutes so as to make thorn conform with the truth, is recognized and well settled in our jurisprudence.
    The fact that in passing a sentence of death on a criminal, the District Judge fixes in his judgment the day aud date of the rxeeution, a duty devolving upon the Governor, does not vitiate the judgment or the trial, and will afford no relief to the defendant on appeal. That portion of the sentence will be considered as unwritten.
    The Supreme Court will not review the refusal of a now trial, on a motion involving questions of law blended with facts, unless the grounds are incorporated in a bill of exceptions.
    APPEAL from the Second Judicial District Court, Parish of Bossier. Drew, J.
    J. G. JUgan, Attorney General, for Plaintiff and Appellee :
    1. If an indictment is properly indorsed, returned and filed, it is no objection that its return was not entered on the minutes of the Court. Mose vs State, 35 Ala., 421.
    2. Courts have the inherent power to correct the minutes of tlioir proceedings, so as to make them conform to the truth. Yoorhies’ Crim. Juris, of Louisiana, Sec. 90, p. 401; 2 An. 744; 14 L. 191; 10 An. 198; 7 An. 283; 9 An. 94.
    3. Motions for new trials cannot be considered by this Court unless they are brought up by bills of exceptions. State vs. Nelson, 32 An. 842.
    4. Fixing the date for execution will not vitiate the sentence of the Court; it will be considered as mere surplusage.

      Ti. O. W. Turner, W. W. .Vanee, assigned for Defendant and Appellant.
   The opinion of the Court was delivered by

Poché, J.

The defendant appeals from a conviction of murder and a sentence of death, and urges, in an assignment of errors, numerous irregularities, alleged to have been committed to bis detriment, during t-be progress of bis trial.

The charge that the record fails to show that the indictment filed against him was formal and returned into court by a grand jury; that the finding was recorded ; that he was present at the trial of a motion to amend the minutes, and when he was sentenced and at other important proceedings during the trial; and the charge, that there were no minutes kept, as the law requires, of his case, are answered by an amended transcript, returned into this Court under a writ in the nature of a certiorari, issued at the instance of the Attorney General.

Prom this amended transcript it appears that the District-Judge ordered, on motion of the District Attorney, the correction of the defective minutes kept by the clerk of that court, so as to make them conform to the truth, aud from the minutes, as thus corrected, it appears that the accused was legally indicted and arraigned, and had a fair and impartial trial, under the supervision of, and aided by able counsel appointed by the court. It further appears, that after trial and conviction, his motion for a new trial was duly considered and overruled, after which, he was brought, into court, and being asked the usual question, he was sentenced to be hung.

The complaint that the Judge, through inadvertence, fixed the date and day of the execution, and thus attempted to perform a duty devolving upon the Governor, cannot vitiate the sentence of the court. As that part of the sentence is unwarranted by law, it cannot be executed, and it has evidently not been executed, the date fixed by the Judge having elapsed and the accused being yet in full life and struggling for a prolonged existence. Hence, he cannot urge that defect.

The argument that because the sentence of the court makes no part of the minutes, we must conclude that the accused has not been sentenced at all, could not avail the accused in this appeal, for if it be true that no judgment has been rendered and signed, his appeal should be dismissed. But that charge is not sustained by the record.

The grounds urged by the defendant in his motion for a new trial, involve questions of law and fact blended, but as they are not incorporated in a bill of exceptions, the motion and the refusal to grant a new trial by the lower court cannot be reviewed by us. On that point our jurisprudence is firmly settled. State vs. Nelson, 32 An. 842; 32 An. 854, 1052.

The innumerable and unpardonable omissions made by the clerk in his minutes, and which are detailed in the assignment of errors, could be, and were corrected under the order of the lower court; and the power of the court to thus correct its own minutes, so as to make them conform with the truth of what occurred at the trial, is now no longer an open question. State vs. Mason, 32 An. 1018; State vs. Cox, 33 An. 1056. This amended transcript furnishes all the elements necessary to satisfy us that we are powerless to relieve the defendant.

But before disposing of this cause, we cannot refrain from calling the attention of the'clerk of the lower court to his unpardonable carelessness, or to his utter inefficiency and incompetency, as manifested by his confection of the transcript in this case, involving the sacred rights of the State and society on the one hand, and the life of a human being on the other.

For the reasons herein given, the judgment of the lower court is affirmed.

Levy, J., absent.


author: Todd, J.

text:
    No. 7603.
    C. & W. Bastian vs. L. H. Christesen et als.
    To annul a sale on tlie ground that it was made in fraud of creditors, it must appear that the purchaser knew of the insolvency of the vendor and bought with the intent to assist him in defrauding' his creditors, when the sale was made for an adequate price, which was paid in whole or in part.
    When a sale is made for the purpose of giving an unfair preference to one creditor over others, the action to annul it must be brought within one year from the date of such sale. The one year cannot he counted from the date of the judgment against the debtor.
    APPEAL from the Fourth District Court for the Parish of Orleans. Houston, J.

      W. 3. Benedict, Jos. B. Hornor, for Plaintiffs and Appellees :
    Where creditors of an insolvent reduce their claims of judgment, and within a year thereafter, sue to annul a sale of their debtor’s property to a confidential clerk, made on unusual terms, out of the regular course of business, a part of the consideration being a debt averred.to be due the clerk, and the balauce being monthly notes, which the cleik has no means to pay, the Court will annul such sale.

      Breaux & Hall, for Defendants and Appellants :
    1. The sale, even of the entire remmant of stock, without concealment, in open market, for a full price, to a party able to buy, 'without knowledge of the insolvency of the vendor, cannot be annulled by the creditors of the vendor. C. C. 1978 et seq; 31 An. 197; 26 An. 467; Johnson & Faulkner vs. Chrisreson et al., decidediu 1881, Opinion Book Ko. 55, p. 320.
    2. The ‘action to annul a contract made to give undue preference to one creditor over another, is prescribed by one year from the date of the contract. C. C. 1987; 31 An. 594; 30 An. 749.
   Tlie opinion of the Court was delivered by

Todd, J.

This is an action by judgment creditors of the late firm of Sampson Bros., to revoke a sale of a stock of furniture made by them to the defendant, Christesen, and sales of real estate in this city, made by the members of said firm to Mrs. C. C. Sampson, their mother.

As relates to the sale of the furniture, the same question was before us in the case of Johnson & Faulkner vs. L. H. Christesen, decided by us last year. The same sale was attacked on the same grounds, and the pleadings and the evidence were substantially the same. The only material difference being that in this case there is no doubt of the plaintiffs’ herein being creditors of the vendors when the sale was made.

In that case, we reversed the judgment of the lower court annulling the sale, and rendered a decree in favor of the defendant, Christesen, rejecting the demand of the plaintiffs therein, judgment creditors of Sampson Bros.

The reasons for our judgment, briefly stated, were, that the evidence did not satisfy us that Sampson Bros, were insolvent at date of sale, to tlio knowledge of tlio purchaser, and that the sale was made with the intent, on the part of the vendors and vendee, to defraud the creditors of the former. We concluded that the sale was a real sale, that the purchaser had the means to buy, went into the actual possession yf the proporty, paid part of the price in cash and gave his notes for the balance, a large portion of which he subsequently paid. See 0. B. 55, p. 320.

We see no reasons for changing the conclusions respecting this sale then formed and announced.

It is urged that important testimony, that of the Sampson Bros., taken under commission, was improperly admitted in the trial in the lower court, against the objections of the defendants, which were :

That the depositions were not reduced to writing by the commissioner ; that they wore not signed by the witnesses, and that the commission was not executed within the delay allowed by the court.”

It is not essential that the depositions should bo written down by tlio commissioner. They may be reduced to writing by the witness or by 'an indifferent person. 7 N. S. 321; 7 L. 585; 6 R. 5; 11 R. 487.

The depositions were signed by tlio witnesses, but not in tlio usual place for such signatures, but at the end of the proces verbal of the commissioner, and the commission was executed within tlio proscribed delay.

In regard to the sales of real estate made to Mrs. Sampson, tlio plea of prescription of one year, interposed in bar of the action, must prevail. .

Mrs. Sampson was a creditor of the. Sampson Bros. This is admitted in statement iii the brief of defendants’ counsel, to the effect: “ That their mother, Mrs. C. C. Sampson, received from them real estate valued at 823,500, nominally for cash, in reality as a preferred creditor.”

The action in this respect comes under the operation of Act 1987 of the Civil Code, which declares :

“No contract made between the debtor and one of his creditors for the purpose of securing a just debt shall be set aside under this Section, although the debtors were insolvent to the knowledge of the creditor with whom he contracted, and although the other creditors are injured thereby, if such contract wore made more than one year before bringing the suit to avoid it, and if it contain no other cause of nullity than the preference given by one creditor over another.”

Under this Article, the action to avoid the contract must be brought within one year from the date of the contract, and it lias been held by this Court that it forms an exception to the rule prescribed in Article 1994 of the Code, in which the one year is to be counted from the date of the judgment obtained by the creditor against his debtor. Lehman, Abraham & Co. vs. Levy, 30 An. 749; Peoples’ Bank vs. Girod, 31 An. 594.

For these reasons, it is ordered, adjudged and decreed, that the judgment appealed from he annulled, avoided and reversed, and it is now ordered, adjudged and decreed, that plaintiff’s demand be rejected with costs of both Courts.

Mr. Justice Fenner recuses himself, having been of counsel.

Levy, J., absent.


author: Fenner, J.

text:
    No. 8491.
    Andrew J. Keenan vs. Widow and Heirs of C. Ahern.
    The appointment of a curator to represent minors, is not vitiated by improperly styling him “ curator ad hoc and special tutor.1’
    Where the attorney, himself ih party to the suit, acts as the appraiser for said party, the sale cannot bo attacked on the ground that he was nob sworn.
    Where an order of sale specifies no terms of credit, but only requires the purchaser to assume the payment of certain mortgage notes already past due, the sheriff did not depart from the terms fixed in the order, by advertising and selling for cash, at least in absence of any showing that the no les had been extended.
    APPEAL from the Civil District Court for the Parish of Orleans. liiyhtor, J.

      1. Timony, for Plaintiff and Appellant:
    1. A sale for cash and a sale with the condition of assuming notes past due, are identical.

      % If a defendant in.execution appoint an appraiser who acts and neglects, or evades being sworn, he will nob he permitted to take advantage of his own neglect or delinquency.

      T. Gilmore & Sons, for Defendants and Appellees :
    1. Where the purchaser of property sold under executory process to pay vendors' mortgage has complied with the terms of sale and paid the price, which has been applied in extinguishment of the mortgage taxes and costs, his title cannot be attacked by the widow in community who has subsequently qualified as tutrix without a previous tender to him of the amount he has paid. Brown vs. Bonny, 30 An. 374 ; Barrett vs. New Orleans, 13 An. 107; 24 An. 324.

      ii, A misnomer in the maiden name of a married woman — the widow in community — placed in parenthesis, and the designation as special tutor of a curator ad hoc, as in the words “ curator ad hoc and special tutor," will ho treated as surplusage and furnish no grounds for nullity of salo. C P. Arts. 116, 194, 395, 964, Bienvemi vs. Dactors’ and Traders’Ins. Co , 33 An. 209 ; Monition of Hall, 21 An. 693.
    3. A defendant will not be heard to attack a sale on the ground that her attorney, who acted as appraiser and attended the sale, was not sworn as appraiser. Mullan vs. Pollain, 12 An. .*38 ; Bemudez vs. Union Bank, 21 An. 64; Nichols vs. Mercicr, 15 An. 374.
    4. A creditor holding one of a series of notes described in an act of mortgage has a right to demand the sale of the proper) y on such terras as are granted to the debtor in the act for the payment of such instalments of the mortgage as are not d/ue. When it appears from the not of mortgage that these terms of credit have expired and the whole debtis past due, the sheriff is at liberty to proceed to a sale for cash. C. I5 , 686; 1 Rob. 224; 11 An. 182 ; 16 La. 173, Pepper ve. Dunlap.; 6 Rob. 461; 9 Rob. 73; 10 Rob. 49.

      5. The sheriff is bound to put the adjudicate© in possession of the property under the writ of seizure and sale — and the defendant’s appearance and defense to a rule for that purpose is conclusive on her if not appealed from — aud she cannot reiterate the sime objections as grounds for injunction. DePoret vs. Gusman, 33 An. p. 338; Porter vs. Morere, 30 An. 231-2; Winn vs. Elgee, 6 Rob. 100; Paul vs. Hoss, 28 An. 855; 20 An. 573.

      Wm. H. JPascoe, for Defendants and Appellees :
    1. In proceedings via cxecutiva the notice must be addressed to the defendant in his proper name. If the writ is issued, addressed and served in a different name, the service will b bad. A proceedingby which propertyis summarily seized and sold without citation is one of great severity, and the seizing creditor must bring himself within tbe letter of the law, and the formalties prescribed by law must be strictly complied with. C. P. Articles 179, 206; 19 An. 360, Bertoulrn vs. Bougoin; 6 R. 192, Lowry vs. Emin; 2 An. 212, 222, 270, 488, 552; 3 R. 94, Miller vs. Gaskin.

      % A service ma<le upon a “ curator ad hoc, and special tutor” appointed to represent minors, is bad, no such representative of minors being recognized under the laws of Louisiana. C. P. Arts. 116,194, 964 ; 13 An. 405, McDonald vs. Vaughn.
    3. To constitute a lawful appraisement of property seized under execution the appraisers must be sworn. A failure on the part of the sheriff to swear the appraisers is as if appraisement had been made. C. P., Arts. 673, 770; 17 L 76, Zaoharie vs. White; 2 M. 317, Bermudez vs. Iranez; 3 An. 546, Poster vs. Roussel; 28 An. 126, Drouet vs. Lacroix.
    4. Where the court has ordered the sale of property on terms of credit and the sheriff advertises and sells it for cash, the sale will be void for want of an order of sale. G. P. 686, 706 ; 29 An. 536; 31 An. 85 ; 15 An. 254, 285 ; 14 An. 153 ; 10 R. 49 ; 16 L. 163 ; 11 L. 72 ; 1 An. 279.
    5. Whereasale is an absolute nullity, and when defendant enjoins the purchaser from being put in possession for irregularities in the sale, he need not tender the price paid to the sheriff. 28 An. 126, Drouet vs. Lacroix; 26 An. 234, 249, 343 ; 24 An. 324; 29 An. 536; 30 An. 174.
    Also see recent decision by Justice Todd, Mrs. Caroline C. Gillespie et ais. vs. G. K. Gillespie et aU.
   The opinion of the Court was delivered by

Fenner, J.

Plaintiff, holding a note secured 'by mortgage and vendor’s lien, made by Cornelius Ahern, who was dead and whose succession had not been opened, foreclosed by executory process, directing Ms proceedings against tbe widow in community and the minor children, 'represented by a curator ad hoc, duly appointed for the purpose.

The proceeding now before us is taken by Mrs. Aliern, as widow in community and natural tutrix, to annul tbe sale made therein, on the following grounds:

1. Because no service was made upon her in her capacity as tutrix. She bad not qualified as tutrix till sometime after the service, and the minors were properly represented by a curator, who was duly served. C. P. 116.

2. Because the person appointed to represent the minors was styled curator ad hoc and special tutor.” The last words are to be treated as surplusage, and do not affect the capacity of the curator.

3. Because the service on her was not in her proper name. The notice was addressed to Lizzie Ahern,” (bom Katus) widow in community. The objection is that her maiden name was Keating,- and not Katus. Her maiden name was not essential, and the objection is frivolous.

4. Because no lawful appraisement was made, the sheriff having failed to swear the appraisers. The sheriff’s return shows that the appraisers were sworn. The attorney of the widow acted himself as her appraiser, and he testifies that he was not sworn. If not, his waiver of the oath was equivalent to her own, and cannot be invoked against the sale, bj1- her. 12 An. 838 ; 21 An. 64 ; 15 An. 374. There is nothing to contradict the sheriff’s return' that the other appraisers were sworn.

5. Because the property was. advertised and sold for cash, instead of on terms prescribed in the order.

The order, substantially, was to sell for cash, to pay plaintiff, and the purchaser to assume certain other outstanding mortgage notes. The sheriff, finding that the notes referred to were all past due, construed the order according to the law, and conceived that it was equivalent to an order to sell for cash. The order must have meant either a sale for cash, or a sale on terms of credit. Certainly, there could be no terms of credit in an assumption to pay notes already due. The law only provides for such te.rmB of credit as are granted to the debtor by the original contract, for the payment of such instalments as are not yet due.” C. P. 686.

The law guaranteed to the purchaser the right to retain in his hands the portion of the price accruing to such outstanding mortgages. This right was secured to, and exercised by the purchaser, and that is all that could be meant by that portion of the order directing the assumption of mortgages already due. It could not signify any terms of credit.

In any event, the act of the widow, through her attorney, in taking part in the appraisement of the property, with full knowledge of the proposed mode of sale, and her omission to make any objections prior to the sale, and the presence of attorney-at-law and in fact at the sale, preclude her present complaint. Nicholls vs. Mercier, 15 An. 374; Muller vs. Follain, 12 An. 838.

For these reasons, it is ordered, adjudged and decreed, that the judgment appealed from be annulled, avoided and reversed, and it is now adjudged and decreed, that the injunction issued on the petition of Mrs. Ahern, widow and natural tutrix, be dissolved, and her demand rejected at her cost in both Courts.

Rehearing refused.

Levy, J., absent.


author: Pociié, J. Todd, J.

text:
    No. 8427.
    Succession of John A. Turnell.
    In a testate succession the commission allowed to the testamentary executors shall not be charged so as to affect fcko legitime reserved to the forced heirs.
    The executors cannot claim, in addition to their commission allowed them by law on the amount of the inventory, any additional commissions on collections made by them for rents or other debts due the succession.
    A clerk in the employment of a merchant at a fixed salary, cannot be allowed an additional compensation against filio succession of his former employer for services rendered in the ' general management of decedent’s business, without proving an agreement to that effect between the deceased and himself.
    APPEAL from the Civil District Court for the Parish of Orleans. Tissot, J.

      Kelly, Mott & Saunders, for Executors, Appellees.

      T. Timony, Spencer & White, for Turnell’s Heirs, Appellants.
   The opinion of the Court was delivered by

Pociié, J.

The first annual account of the executors of this succession is opposed by T. W. Hutchinson, tutor of his minor children, forced heirs of the deceased, and he has taken this appeal from a judgment dismissing all his oiipositions.

At the threshold of our investigation, appellees’ counsel, in their brief, call our attention to the absence from the transcript of several documents filed in evidence on the trial below, and not copied in the transcript, for the reason of which omission, they argue that we have no knowledge of the matters argued or contested below, and that, therefore, the appeal should he dismissed.

This reasoning applies with unanswerable force to the items of opposition in support of, or in answer to which the missing documents have special reference; hut this, of itself, could not justify the dismissal of the appeal absolutely.

We shall, therefore, review the judgment of the lower court as to all the oppositions, touching which we have before us the evidence which was considered by the District Judge, and on which he rested his judgment:

1. The first objection is urged bo the omission of the executors to charge themselves with several sums alleged to have been due for rent to the succession, and collected by the executors and not accounted for, amounting together to $270.

As the evidence on these several items is somewhat conflicting, and as the present account is only provisional, we shall refer this issue to the last or final account of administration by the executors, with the reserved right of opponent to urge his objections on this ground to the final account of administration.

2. The next opposition complains of the omission to charge L. J. Duffy, one of the executors, with the sum of $2,000 received by him from the decedent, and not accounted for.

The documentary evidence on which the District Judge mainly rested his judgment on this point lias not been copied in the transcript, and hence, we have no means of testing the correctness of his ruling thereon. As it was the duty of the appellant to bring up the evidence on which this opposition was tried, and as he has failed to do so, we must presume that the ruling of the District Judge was correct, and we shall not disturb it on this point. Harris vs. Hays, 8 An. 433; Succession of Clew, 18 An. 231.

3. Opponent next complains, on the debit side of the account, of a charge of $900, paid to experts appointed by the court, for the purpose of examining into the partnership accounts between the deceased, Turnell, and Duffy, one of the executors, and former partner of the decedent. It is argued that this exjmnse having been incurred through the dereliction of Duffy, it should have been charged to his individual account; but we find in the record the written consent of opponent’s counsel, recognizing the legality of this charge and agreeing that it be taxed as costs against the succession; on which agreement an order of court was rendered, specially authorizing its payment by the executors. Opponent is, therefore, effectually estopped from contesting its validity as a charge against the succession in this proceeding.

4. The objection to the charge of twenty dollars, paid to one Warner, for hunting up witnesses on behalf of the executors, in a litigation in which they were cast, is well founded in law, and the item should have been stricken out.

5. The opposition to the charge of the executor’s commission, so as to affect the legitime of opponent's children as forced heirs, is supported by the textual provisions of our Code. C. C. Arts. 1683 and 1687. Hence, such expenses must not be charged against the mass of the succession previous to accounting to oppponent’s children for their legitime under the law.

6. The charge of the executors, of a commission of 5 per cent, for funds collected for rent, from debtors of the succession, and on bank deposits, is not supported by law or authority, and the opposition to that charge should have been sustained.

The only commission which the executor can claim under the law, is that of 2-J per cent, on the whole amount of the inventory, as fixed by Art. 1683 of our Civil Code.

The argument that, as this administration is to last five years, under the provisions of the- will, a different rale should apply to these executors who are charged during that time with the onerous duty of collecting rents for the estate, is not sound, and is utterly demolished by the decision rendered by this Court in the matter of this succession, and reported in 32 An. p. 1218, in which it was settled, that the provision of the will of decedent, requiring a five year administration of his succession, was ineffective as to the shares of these minors who were entitled to their legitime, not by virtue of the will, but by virtue of the law.

The case of the succession of Linton, 31 An. 130, relied upon by appellee, is not in point. In that case the succession was under the administration of the public administrator, under the laws then in force, by which his commission was fixed at 5 per cent., and the Court allowed him that rate of commission on rents collected by him, not mentioned in the inventory, and not collected by his predecessor in the administration of the succession, and hence, that decision is no authority in support of these executors’ pretensions, which cannot be sanctioned.

7. The last opposition is levelled at a claim allowed to L. J. Duffy, for services in attending to all the business of J. A. Turnell, in collecting his rents, looking after his affairs and -business generally, before and up to the time of his death, $6,000,” and should, in our opinion, have been maintained.

After a careful examination of the testimony on this point, we are forced to the conclusion that this charge is not supported by the evidence. We gather from our reading of the record, that Duffy, who had been in the employ of Turnell from his very boyhood, had by his intelligence,"his activity and his fidelity to duty, gained the unlimited confidence of his employer, who had in his last days admitted him rs his partner in business, and had entrusted him with the full management of his large and important business, including a trunk store, which was his main business, and extending to the collection of his rents and of other income, the payment of his taxes and the -general supervision of his business. But the evidence is overwhelming in support of the undeniable proposition, that the salary which lie received as general clerk, was understood between him and Turnell to be in full compensation of all the services which he rendered to the latter in the management of the business, for which he now only brings this charge.

We concede that such conduct, such zeal and such fidelity to duty, should have commended Duffy to the liberality of Turnell, but he ■seems to have turned a deaf ear to that voice, and courts cannot recognize a contract where none was entered into between the parties, nor allow compensation on a quantum meruit, where the conduct of the parties clearly excludes such an understanding between themselves.

Since the submission of this case, and since the adoption of this opinion, a motion has been filed by appellant, suggesting a diminution of tlie record, and praying for a writ in the nature of a certiorari, for the purpose of completing the record; but without passing on the question of his right to such a writ, after submission of the cause, we note, in the brief filed in support of his motion, a suggestion that the case should be decided, insofar as the missing documents could affect but one of his oppositions, and we think that the ends of justice are best subserved by a refusal of the writ prayed for.

As each opposition presents a separate and -distinct issue, it was competent for us to revi'ew the judgment of the court a- qua on all the oppositions, touching which we had before us the evidence considered, by the District Judge. 27 An. 547, Succession of Gayle.

The judgment of the lower court must therefore be amended in several particulars.

It is, therefore, ordered, adjudged and decreed, that the judgment, appealed from be amended in the following particulars:

1. In rejecting the opposition to the omission of accounting for the aggregate amount of $270, alleged to have been collected for rents, which opposition is reserved to opponent, to be urged if necessary at the final account.

2. In allowing the charge of $20, paid to J. R. Warner for hunting up witnesses, which item is stricken out.

3. In allowing as an absolute charge, against the mass of the succession, the executors’ commission, which must be charged so as not to effect the legitime of opponent’s children as forced heirs.

4. In allowing to the executors an additional commission of 5 per cent, on rents and other collections,, amounting in the aggregate to $20,316, which charge is hereby refused and stricken out.

5. In allowing a compensation of $6,000 to L. J. Duffy for general services to the decedent, which compensation or claim is hereby refused andrejected; and that as thus amended said judgment be affirmed, costs of appeal to be paid by the succession.

Tlie Chief Justice recuses himself, having been of counsel for opponent.

Levy, J., absent.

On Application por Rehearing.

Todd, J.

In reference to the question presented in the application for rehearing, as to the effect of our decree on the rights of the parties who did not oppose in the court below, and did not appeal from the judgment there rendered, we have only to say, that our decree disposes of tlie controversy presented to us for determination; and we are not called upon to express, and decline to express, any opinion as to the effect thereof upon the rights of appellees, with reference to each other.

Rehearing refused.

The Chief Justice recuses himself, having been of counsel.

Levy, J., absent.


text:
    No. 7949.
    City of New Orleans vs. State National Bank.
    A provision in the charter of a corporation exempting its “ stock and real estate ” from taxation, does not cover an exemption from license taxation. New Orleans vs. Canal Bank, 32 An. 104.
    The grant of a charter to a corporation authorizing it to carry on a certain business during the term of its charter, does not import permission to do so, without contributing to the support of the government in lile© manner with natural persous pursuing the same business.
    Judgment affirmed.
    APPEAL from the Third District Court for the Parish of Orleans. Monroe, J.

      8. P. Blane, J. Ward Gurley, Assistant City Attorney, for Plaintiff and Appellee.

      Jas. McConnell, for Defendant and Appellant.
   The opinion of the Court was delivered by

Fenner, J.


text:
    No. 8524.
    C. H. Teal et als. vs. T. J. Pirtle.
    In an action by one partner against the other, for an account of - partnership funds received and unaccounted for by the latter, if the plaintiff alleges that the sum thus received amounts to only a thousand dollars, the case presents an issue over which the Supreme Court has no jurisdiction, and the appeal will be dismissed.
    APPEAL from the Twelfth Judicial District Court, Parish of Grant. Barbin, J.

      T. II. Thorpe, for Plaintiffs and Appellees.

      W. B. BAchavdson, W. F. Blackman, for Defendant and Appellant.
   The opinion of the Court was delivered by

Poché, J.


author: Todd, J. Todd, J.

text:
    No. 8558.
    Succession of A. C. Rhoton.
    A privilege recorded after the death of the debtor cannot affect the creditors of his insolvent estate, whose rights become fixed as they exist at his death.
    A contract to pay eight per cont. interest and two per cent, commissions on money advanced, is usurious, and uuder the Revised Statutes, which do not conflict with the Code, the entire interest is foifeited.
    In a contest between the creditors of an insolvent estaie, the mere production of a contract of lease for a teim of years, is not of itself sufficient to establish the intestate’s liability, as against other creditors, for rent during years which preceded that of his death.
    Parol evidence is not admissible to impeach the validity of a judgment regular in form, rendered by a court having jurisdiction.
    Money deposited in a bauk by a firm to the credit of the intestate, their principal, previous to • his death, becomes, at his decease, an asset of the succession and cannot he withdrawn by the administrator, one of the firm, and treated as belonging to said firm.
    An administrator should bo allowed commissions on sales of cotton, belonging to the succession, made by the factors of the intestate, although said administrator bo a member of the factor’s firm.
    The administrator has no right to complain of the rejection by the lower court of a claim made by one of the creditors, nor make it the ground of an appeal, when the alleged creditor neither complains nor appeals.
    APPEAL from the Eighth Judicial District Court, Parish of East Carroll. Pilcher, Judge ad hoe.

      F. F. Montgomery, for Administrator, Appellant:
    Where a party sets up a large claim against a succession for rents of a previous year long after the crops have been removed and disposed of, ho will he held to strict proof that such claim has not been paid, before the same will be allowed on the tableaux of distribution. The court will presume such claim was satisfied out of the crops upon which it operated as a privilege.
    A judgment by default after exceptions filed is a nullity, and cannot be allowed as sufficient evidence of a claim against a succession. Frances vs. Steamer Black Hawk, 18 An. 629.
    A judgment by default after answer filed U an absolute nullity.
    A judgment confirmed without default is null. 21 An. 665, Taylor and Wife vs. Little.
    Where the furnisher of supplies and money records the evidence of his claim before the crop is gathered, it will operate as a privilege upon the crop and he paid by preference over ordinary debts, although not recorded before the debt of the debtor.
    Recordation is simply to give notice to other privileged creditors, and the law docs nob prescribe any timo within which the claim, or evidence of it, is to be recorded. C. 0. 3347 and 3348, also 3273.
    A special privilege does not lose its rank by the death of the debtor when it has been recorded before the gathering of the crop, and where it is not opposed by other privilege debts.
    The diligence required of an administrator is such as a prudent manager would bestow upon his own business, and an administrator will not bo held responsible for small farm products not clearly shown to have come into his hands, unless upon strict proof of neglect, misapplication or malfeasance in office.

      W. G. Wyly, for Heirs of Baker, Intervenors and Appellants :
    1. The final judgment of a court having jurisdiction of the persons and of the subject-matter, ' is conclusive of the matter decided.

      2. “In order to annul a judgment, a direct action oí nullity must be instituted in tlie same court which rendered tliejudgraent,” etc. (15 An. 279). It cannot be attacked collaterally.
    3. “Judicial records cannot be impeached or contradicted by verbal evidence.” (See 33 An. 351; 32 An. 974; 3 An. G31.)

      Alfred Grima, for Pliillippi & Co., Appellants :
    1. The relation between factor and planter creates the contract of mandate.
    2. When a planter in a contract with his factor authorizes the latter to do certain acts in the factor s interest, for a valuable consideration, such a maudafce does not expire by the planter’s death, and the contract may be effectively inscribed thereafter. 8 Wh. 174; Story Agency, §§488, 489; Troplong Mandat, §§718, 737.
    3. Tho factor who has made advances for a crop, without written contract, acquires a valid pledge thereof by constructive as well as real possession. Act 66 of Acts of 1874.
    4. When a factor’s firm has made advances on a crop, in consideration of the obligation contracted by a planter to consign to the former his crop, andt) pay stipulated commissions of sale, the circumstance that one of the members of the firm, who is its salesman, has become the administrator of tho planter’s succession, does not prevent the firm from receiving the stipulated commissions.
    5. Usury is not presumed, and since tho revision of the Civil Code in 1870, a contract for usurious interest does not oarry the forfeiture of the whole interest, but only the loss of what is in excess of the conventional interest. 3 An. 161; 20 An. 570; B. C- C. 2924.
    6. When a creditor in an opposition to a tableau of distribution in a succession, prayed for judgment without asking any privilege, and the District Court allowed none, this Court will not change the judgment of the District Court in that respect. 19 An. 169; 23 An. 245.
    7. When on opposition to an administrator’s tableau of distribution, opponents rest their claim on a judgment by default recognizing them as heirs of the original claimant, and they did not introduce in evidence the record of the suit, interested parties may prove by testimony that an answer had been filed and default taken notwithstanding, and also that the judgment by default was not notified to tbe defendant, although no personal service of the citation and petition appears to have been made.

      J. W. Montgomery, for Mrs. Peck, Appellant:
    1. Where the lessee remains in possession after the expiration of his lease, and makes another crop on the leased premises, the contract with all its obligations is continued by reconduction. C. C. 2688; Balfours case, 33 An.
    2. The lessor has a “right of pledge on the crops, and on everything that serves for the labor of the farm.” C. C. 2705, 3218. And when the crops and other property thus hound as security for the rent, have been administered upon and sold by the administrator, the right of pledge is transferred to the proceeds of the sales.
    3. The death of a person “ fixes the rights of creditors,” and no one can acquire a privilege against his property after his death. C. C. 3363,3183; 9 La. 354; 2 An. 872; lb. 923 ; 11 Bob. 243-8.
    4. Where the lender charges 8 per cent, on a loan of money, and in addition thereto, 2¿ per cent, for advancing it, the contract is usurious. 12 An. 723; 5 An. 505 ; 16 An. 239; or where it adds or stipulates for any services or other obligation than 8 per cent either to do or to give, it is likewise usurious. Hen. Digest, pp. 819-820, Sections 7, 18 19, 20, 21; and authorities there cited. And when the contract is usurious the penalty is an entire forfeiture of the interest or other advantages stipulated. Bovised Statutes, Art. 1884, and the authorities quoted above.
    5. Before the adoption of the recent Constitution and laws, a privilege, as respects third persons, had no effect unless duly recorded. See Constitution 1868, Art. 123; Acts of 1877, p. 59; 31 An. 1; lb. 37; 30 An. 1007; 29 An. 412; 28 An. 534; 27 An. 245; lb. 275; 23 An. 694.

      6. Where a factor’s account contains charges that are either illegal or unsupported by proof, they should be stricken therefrom, and the sums are to be considered as remaining in his liandvs ; and, if the factor becomes, or is administrator on tbe estate of his constituent, it is his duty to account for the same, as money unjustly withheld; and if on a trial of his official account, he fails to furnish such proof and gives evasive answers, the presumption will be against him, and such answers will be taken as confessed without an order of the court. Yide H An. 227; 12 An. 723; Hen. Digest, 567, Section 7.

      J. M. Kennedy, for Vicksburg Bauk and Sarali Greer, Appellees:
    For any portion of the unpaid price, the vendor, or his assignee, has a privilege on the proceeds of the sale of the movable sold by him; and this privilege ranks all other privileged debts, even funeral charges, except charges of opening and closing the succession. C. C. Arts. 3227 and 3267.
    The wages of servants for the year past, and so much as is due for the current year, is a privileged debt ou all the movables of a succession. G. C. Arts. 3191, Ho. 4, and 3206.
    Tlie*riglits of creditors are fixed by tbe debtor’s death; and no one can acquire a privilege after that time. An inscription made after that date has no effect. C. C. 3363; 9 L. 354; 11 ft. 248 ; 12 It. 243; 2 An. 872, 923.
    Under the Constitution of 1868, no privilege could “ affect third parties, unless recorded in the manner required by law*, in the parish where the property to be affected, was situated;” and in the year 1878, if the registry was required to be made in any other parish than that “where the act was passed, or the indebtedness originated,” it must have been done within fifteen days, “ ñ om the date of the act, or obligation of indebtedness.” Constitution of 1868, Art. 123; C. C. Art 3274; Acts 1877, Regular Session, p. 59; Succession of Elliott, 31 An. 31; 30,An. 1007; 29 4-n. 412; 28 An. 534; 27 An. 245 and 275 ; 23 An. 694.
    A contract to pay more than 8 per cent, per annum interest is usurious; and the penalty for usury is the “forfeiture of the entire interest so contracted.” C. C. Art. 2924 ; Revised Statutes of 1874, Sec. 1884.
    A contract to pay 2} per cent commission for advancing, in addition to 8 per cent, perannum interest, is a contract to pay 10 per cent, interest; and as such, is usurious. Payne & Harrison vs. Geo- W. Watterson, 16 An. 239; 12 An. 723; 5 An. 505; 31 An. 597; and authorities quoted in H. D. p. 821, Ho. 41, p. 819, Ho 7, p. 820, Hos. 18, 20.
    The factor is the mandatory of his principal, and cannot charge for expenses incurred, or monies paid out in the execution of the mandate, except it is proved that he did actually incur the expense, orpay outthe money. Charges made by a cotton factor for “brokerage, storage, drayage, labor, weighing and sampling” and “insurance,” in selling cottoD, cannot be allowed or maintained, unless itis shown by proof that he actually paid out for his principal, the several sums charged in the account sales. 17 An. 217, Brandar, Williams & Co vs. Bum.
    A suocesrion cannot be charged with commissions for selling its cotton, when the-same is sol'd by a commission house which the administrator is a member, where the administrator himself is the salesman, and actually sells that cotton. 24 An. 492; 5 An. 507; 15 L. 397.
   Tlie opinion of tlie Court was delivered by

Todd, J.

This case presents a contest between the creditors of an. insolvent succession over tbe proceeds of the sale of succession property raised by oppositions to the tableau and provisional account of the administrator.

The contesting creditors are Phillippi & Co., the factors of the deceased, Mrs. Emma J. Peck, the lessor, the heirs of Robert Baker, claiming to be judgment creditors of tbe intestate, tbe Vicksburg Bank, as tbe holder of claims for money advanced to gather the crop after the death of Ehoton, and for the price of mules sold him, and Mrs. Greer, claiming wages as a house servant.

The judgment of the lower court reduced the account of Phillippi & Co., allowed by the administrator, and rejected their claim for a privilege; allowed the claims of Mrs. Peck for the rents of 1877 and 1878, with privilege recognized for the latter year, and disallowed for the former ; rejected the claim of the heirs of Baker, and allowed the other claims mentioned, without privilege, except on the claim of the Vicksburg Bank for money furnished on account of expenses of gathering tiro crop, reduced the commissions of the administrator, and charged him with certain amounts not included in the debits of his account.

From this judgment, the administrator, A. C. Phillippi & Co., and the heirs of Baker, have appealed.

Mrs. Peck, in answer to the appeal, has asked an amendment of the judgment which shall recognize her privilege and right of pledge for the rent of 1877, and the other appellees pray for a recognition of their respective privileges rejected by the lower court.

We note at the outset, that the counsel of the several appellees, in their briefs, complain of the judgment rendered on the claim of Phillippi & Co., and oppose many items of their account, and seek to further reduce it, but inasmuch as none of the appellees, in their answers to the appeal, have moved an amendment of the judgment in this respect, we cannot consider the arguments in their briefs as respects the amount of the judgment.

I.

As to the claim of A. C. Phillippi & Co.:

The privileges claimed by these parties, as the furnishers of the plantation supplies for the year 1878, the year in which Ehoton died, is resisted on the ground that the evidence of the claim was not recorded until after the death of Ehoton. This objection to the privileges claimed must prevail. No privilege can have effect against third persons unless recorded. C. C. 3274, 3276; Suc. Elliott, 31 An. 31; 30An. 1007; 29 A. 412. The recordation after the death of Ehoton can have no legal effect against-the creditors of a,n insolvent estate. The death of the debtor fixes the rights of all his creditors. 9 L. 354; 11 A. R. 248; 12 R. 143; 2 An. 872, 923.

Art. 3363 lays down the rule in terms broad enough to cover both privileges and mortgages, and though found in the chapter “of the inscription of mortgages,” it is a general rule that is applicable to privileges. It is as follows:

“ If a succession which is administered by a curator or a beneficiary heir, is not sufficient to satisfy the creditors, an inscription made by one of them, after it is opened, shall have no effect against the others.”

An examination of this chapter, notwithstanding its caption, will suffice to show that it treats of the inscription of privileges as well as of mortgages.

Nor does the fact that the business out of which this indebtedness resulted grew out of the relations of the deceased and the firm in question, as principal and mandataries, and the mandate was executed after the death of Rhoton, change the character or rank of the debt or dispense with the requirement of registry. The debt was contracted, the advances were made, before the death of Rhoton. The mere fact that tlie factors, under the previous engagement, received and sold the cotton crop after the death Of the intestate, does not strengthen their claim.

In regard to the claim to a pledge urged in this Court in favor of Phillippi & Co., inasmuch as no evidence was offered in the court below with special reference to it, the state of the record does not allow us to pass on it, and we must leave it open for future adjudication, with the proper reservation of the rights of the parties, with reference thereto, in the decree.

As to the amount of this claim, fixed by the judgment of the lower court, as before stated, the appellees are not in a position to contest it before this Court. But we cannot increase the amount, as urged by Phillippi & Co., appellants, by allowing the interest and commissions charged in their account.

The written contract in the record, under which eight per cent, interest was stipulated, and 2i per cent, for advancing, was usurious. C. C. 2924 and Section 1884, Revised Statutes, provides that the penalty shall be the forfeiture of the entire interest.

There is no conflict between the Article of the Civil Code referred to and the Section mentioned. They contain provisions upon the same subject matter, are contemporaneous, and can and should be so construed as to give effect to both.

The Article of the Code prohibits the charging of interest beyond the limit therein prescribed, and the Statute declares the penalty for the violation of its provisions. There is no inconsistency between them. 12 An. 723; 16 An. 239 ; 31 An. 596.

II.

As to the claim of Mrs. Peck, the lessor:

The evidence does not satisfy us that the rent of the year 1877 was owing at the death of Rhoton. Considering that this is an insolvent succession, it is not enough to simply present the contract of lease as conclusive evidence of the debt. Suc. Warren, 4 An. 451; Suc. Coughlin, 34 An. not yet reported.

This contract was entered into in 1874, and on the face of it would establish a liability on the part of Rhoton, equally for that year, and also for 1875 and 1876, as well as for 1877,-the year for which the rent is claimed.

Was the alleged debt for rent of 1877 evidenced by a promissory note outstanding against Rhoton at the time of his death, the case might be different, but such is not the case. And it certainly would be more satisfactory that an explanation should be afforded of a fact somewhat remarkable, why the lessor, with her pledge and privilege on the crops grown on the plantation, should have suffered them, to be shipped and sold, and made no demand for payment whatever, in whole or in part, of the rent, so far as we are informed, for nearly a year after it was due, and while the lessee was alive. The existence of this debt should have been conclusively proved as against the creditors of this insolvent succession.

In our decree we- shall make provision affording an opportunity to supply this proof hereafter, if it can be. done.

III.

Claim of the heirs of Baker :

We see no warrant for the rejection of this claim. The judgment in favor of the opponents was regular in form, rendered by a court of competent jurisdiction, and sufficiently supported by the record of the proceedings in which it purports to have been rendered. It certainly made out a prima faeie case of indebtedness in favor of these opponents.' The parol evidence admitted to impeach this judgment, was clearly inadmissible. 3 An. 631; 32 An. 974; 33 An. 351.

The claim having been rejected by the court below, no trial seems to have been had of the issues raised by this opposition, respecting the account of the administrator, and we shall leave open for future adjudication all questions arising out of this opposition, save such as we have, or may herein finally determine, in disposing of the other oppositions.

IV.

Claims of the Vicksburg Bank:

We think this judgment correct with respect to these claims. The amendment asked for, allowing a privilege for the price of the mules, cannot be granted, for the same reason that we declined to recognize the factor’s privilege. It was not recorded prior to Rhoton’s death, and this objection applies as well to the claim of Mrs. Greer.

v.

The administration was properly charged with the amount deposited in the Vicksburg Bank to Rhoton’s credit. This fund belonged to Rhoton, and his succession could not be divested of it by any act of the administrator. The commissions of the administrator were properly reduced to the amount allowed by the judgment appealed from. He was also' properly charged with the .cotton seed unaccounted for, and we are not satisfied that the amount allowed in the judgment therefor, should be either increased or diminished. We do not, however, concur with the Judge a quo in charging the administrator with the commissions for the cotton sold by Phillippi & Co. We see no impropriety, considering Rhoton’s engagements to that firm, and the supplies furnished and advances made him, in the cotton being shipped to them and by them sold. It was but the carrying out of the contract of the deceased with the firm, and was for the evident advantage of the succession, as the cotton brought a better price than if sold at public auction on the plantation. Nor does the fact that the administrator was a member of the firm of Phillippi & Co., and as such member made the sale of the cotton, deprive the firm of the right to charge the usual commission for the sale, or impose this charge on the administrator. The question, whether the charge in the factor’s account of commissions for cotton not sold by them, which Rhoton, in his contract, bound himself to ship but failed to make, we do not consider properly before us at this time. In allowing the commissions for the cotton actually sold by Phillippi & Co., and declining to impose this charge on the administrator, the amount thereof, $314, must be deducted from the credit of $ 1,000 claimed in the account of Phillippi & Co., as commissions on cotton sold and unsold. Otherwise, since the commission of 21 per cent, for selling was deducted in the account sales from the gross proceeds of the cotton and retained by the firm, the same credit would be allowed twice. The credit of $200 for travelling expenses was disallowed administrator.

VI.

In regard to the notes for $1,259 and $1250, placed on the account of the administrator,. with privilege recognized on the proceeds of sale of property in Madison Parish, and which were rejected by the lower court, no appeal was taken from the judgment thus rejecting them by the holder of the botes, nor does it even appear from the account or from the pleadings who the holder is. The administrator, had no right to complain of this charge not being imposed .on the succession, and thus champion the claim ; and for these reasons, the judgment in this respect must remain undisturbed.

Prom the views expressed above, it becomes necessary to remand the case for the purpose of affording an opportunity to introduce further evidence touching the rent claim for 1877, and also with reference to the .claim to a pledge on the crops asserted by Phillippi & Co., and of determining the question involved in the opposition of the heirs of Baker, so far as not determined herein, under the pleadings of the other parties.

It is, therefore, ordered, adjudged and decreed, that the judgment appealed from he annulled, avoided and reversed, and the case be remanded, to be proceeded with according to law and the views herein expressed. Costs of appeal to be paid by the succession.

Levy, J., absent.

On Application por Eehearing.

Todd, J.

This application is made by A. C. Phillippi & Co, and is directed to those matters only included in the controversy.

The first relates to the rejection of $200 for travelling expenses of the administrator. Further consideration confirms us in the conclusion that this charge was properly rejected.

The second, touching the limitation of interest on several claims mentioned, to the date of the intestate’s death, the succession being insolvent. This question is not passed on in our previous opinion and is left open for future adjudication.

As to the third and last, relating to the charges on the sales of the crop, such as drayage, insurance, etc., we hold that the proof in the record was not sufficient to support the charges. This may be regarded also as still an open question, and subject to further adjudication.

Eehearing refused.

Levy, J., absent.


author: Fenner, J. Bermudez, C. J.

text:
    No. 8574.
    Succession of Anna B. Nusbaum. John F. Dinkel vs. Fridolin Dinkel et al.
    The special mortgage authorized to be given by the natural tutor in lieu of a general mortgage of the minors on all his property, must be executed by the tutor on his own-property, and cannot be given by a third person for him.
    APPEAL from the Civil District Court for the Parish of Orleans. Houston, J.

      Ü. 2?. Schmidt, for Plaintiffs and Appellants:
    A purchaser of property from a tutor, when a certificate from the Mortgage Office is produced, showing the property to be free of incumbrance, aud when the general mortgage which existed against the tutor in favor of his wards, is shown to have been released by the substitution of a special mortgage received aud accepted upon the advice of a family meeting, and after due valuation by experts, by a couTt of competent jurisdiction, is protected by the decree accepting the special mortgage, and ordering the cancellation of the general one, and is without interest to go behind that decree and to question the sufficiency or validity of* the evidence or proceedings upon which it was based. 9 L. 196 j 14 L. 469; 15 L. 221 ; 16 L. 120; 17 L. 194; 2 An. 658.
    The special mortgage which the natural tutor is authorized, by Art. 325, Rev. C C-, (embodying the provisions of the Act of 1330) to furnish as a substitute for the general one, is a conventional mortgage. 2 R. 416. Such a mortgage may be executed by a third person, on his property, to secure the rights and claims of the minors against the tutor, and the latter’s faithful administration. Rev. C. C-, Arts. 3295, 3291, 3297.
    By the very terms of the mortgage, the public are infoimed that the property stands as the pledge of the minors, not merely for a particular sum, but for tlie faithful accounting by the tutor for his wards’ property, up to the moment of his final discharge. 2 R. 417.
    Such a mortgage, though executed by a third person, practically secures to the minors the benefit of a legal mortgage on said property, as effectually as if it were the tutor’s. So that, while it restricts themioors’ legal mortgage to specific property, it leaves it as broad and expansive on that property, as if the same were owned by the tutor.
    If the Court should hold, however, that since the abrogation of all secret or tacit mortgages by the Constitution of 1868, and the laws enacted in confoimity therewith and maintained by the Constitution of 1879, legal mortgages, whether general or special, can only exist, as regards persons other than the mortgagor or mortgagee, to the extent of the amount specified in the mortgage as recorded, Rev. C. 0., Arts. 3345, 3351; such ruling would evidently iu no way militate against the validity of a special mortgage executed by a third person on his property for the tutor’s obligations.

      Braughn, Bucle & Dmlcélspiel, W. 0. Bart, for Defendant and Appellee:
    1. The letter of the law is not to be disregarded under pretext of following its spirit. R. C. C. Art. 13.
    2. The special moitgage in favor of minors must he given by the tutor; it cannot be given by a third person for him. R. C. C. 325.
    3. A purchaser at a j udicial sale has a i ight to go behind the decree, and is entitled to relief when irregularities are shown. 33 An 49; 9 An. 560.
    4. A mortgage, if illegally cancelled, loses none of its validity. 33 An. 49.
    5. The general mortgage of the minor cannot be removed fiom tbe tutor’s property ‘except by a special mortgage given after compliance with all legal requisites. 33 An. 49; 5 An. 497.
   The opinion of the Court was delivered by

Fenner, J.

The question presented for our determination in this ease, is whether the legal mortgage granted by law upon all tbe immovables of a natural tutor in favor of tbe minors, can be released by a special mortgage executed, not by the tutor upon his own property, but by a third person at the request of the tutor, upon property belonging to snob third person. The question is not whether it would not have been a wise and proper provision of law to allow the release' of the general mortgage upon the giving of such a special mortgage by a third person, but whether the law has actually made such provision. Under the original Code of 1825, no mode was provided by which the natural tutor could relieve his entire immovable estate from the legal mortgage resting thereon, for the security of the minors’ rights, and substitute therefor a special mortgage.

By an act passed in 1830, the Legislature made a special provision on this subject, modifying the prior general law to the exact extent specified therein, and to that extent only. That provision is now embodied in Article 325 of our existing Code, and is in the following words :

The surviving father or mother who becomes the natural tutor of his or her minor children, may give a special mortgage on immovable property, for the security of the rights, etc. From and after the execution of the special mortgage hy the matured tutor as aforesaid, all the remaining property of the father or mother acquired or to be acquired, shall bo completely discharged from the legal mortgage arising from the tutorship.”

We can perceive no ambiguity in this language. Its import is perspicuous and unmistakable. It provides for the execution of a special mortgage hy the tutor, on immovables neeessarify belonging to him, because a man cannot specially mortgage property not belonging to himself. But the law does not leave this matter to inference, however inevitable; because it expressly declares that after the execution of the special mortgage, “ the remaining property of the father or mother shall be completely discharged, etc.” If we should hold that the minor’s general mortgage could be released by a special mortgage, other than one executed by the tutor upon property belonging to him, we should not be interpreting law, but making law, and however wise and proper such a law would be, we have no power to legislate.

In the present case, the objection to the sufficiency and legality of the cancellation of the minors’ general mortgage on the property sold, is urged by the purchaser at a judicial sale, as a reason for declining the title offered; and'it is contended, that inasmuch as the court had accepted the special mortgage referred to and had ordered the cancellation of the minors’ general mortgage, the purchaser was protected by the order and had no right to question its validity. This contention is fully disposed of by the following decisions: Succession of Gassen vs. Palfrey, 9 An. 560; Life Association vs. Hall, 33 An. 56.

• The arguments ah mconvenienM, basedupon our decision in the case last quoted, would exercise whatever influence they might be entitled to as an inducement to us to modify that decision; but certainly could not, under any circumstances, justify us in adding to our Code a provision not placed there by the legislative will.

Judgment affirmed at appellants’ cost.

Levy, J., absent.

The Chief Justice dissents.

Dissenting Opinion.

Bermudez, C. J.

There is no dispute that the general mortgage which encumbers the property of a tutor in favor of his ward, to secure the fidelity of his administration, can be replaced by a special mortgage given after compliance with the requirements of the law, on immovable property belonging to the tutor himself.

The decision just rendered admits that proposition. The question is whether it can be replaced by a mortgage given by a third person, on real estate belonging to him, and not at all to the tutor.

The Code of 1825, which was in force previous to the adoption of the Act of 1830, provides, and the provisions, are still in the Code of 1870, that not only tutors by nature, but all tutors have a right to grant a special mortgage, by restricting the general one to specific qiroperty, which by such restriction would cease to exist. Property other than that to which the mortgage is restricted, is to be disencumbered and remain free from the general mortgage, and inscriptions are to be erased. C. C. 3305, 3306, 3309, 3313; C. N. 2145; 15 An. 417.

Article 325 R. C. C., which is the re-enactment of the Act of 3830, was intended merely to provide the rules of proceeding in such cases, and not, in the least, to exclude tutors, other than the father and mother, from the privilege of giving a special mortgage. Ever watchful over the rights of minors, the law has wisely provided that the general mortgage in favor of minors could be removed only where replaced by a special mortgage, or immovable property accepted by the family meeting, the under tutor and the Judge; but it is perfectly indifferent as to who may own the property encumbered, whether the tutor, or any one else. What difference does it make whether the. rights of the minors are secured on the one or the other, the moment that the title is a good one and the security is sufficient?

The law distinctly says, that the mortgage can be given on immovable property. It, of course, authorizes the giving of it by tutors on their property, but that inclusion is not an exclusion or proscription of property belonging to another, and encumbered in the same manner, and to the same extent as though it belonged to the tutor.

It is true that the law declares that after execution of the mortgage by the tutor, all his remaining property shall be completely discharged from the legal mortgage, but that word does not necessarily imply that the property given in special mortgage, as a condition sine qua non, be part of the tutor’s real estate, and exclude other property not owned by him. If it could be thus interpreted, then, in terms, it would only apply to property in existence at the date of the special mortgage ; and yet.such is not the case, for immediately following the words, “remaining property of the father or mother,” are to be found the words, “ acquired or to be acquired.'1'1 This demonstrates that the word “ remaining ” is not to be interpreted so as to have a fixed, absolute meaning, which can be understood only as excluding a special mortgage on immovable property, other thaii that owned by the tutor.

■ The object of the law, while it afforded a facility to the tutor, was to effectually shield the minor from all danger and loss, as far as human forethought could permit. It was, therefore, indifferent, in the eye of the law, whether the special mortgage was given on this or that immovable property, the moment that the real estate was sufficient to secure the rights of the minors, writh the specified margin of twenty-five per cent, over and above the liquidated rights.

If the law did not say that such mortgage could be given on another person’s property, it is only because it never was imagined that third persons would volunteer to affect their property in such manner; The fact of such willingness in this case proves that the law giver supposed the existence in human nature of less benevolence than is sometimes exhibited. The permission to the tutor to give a special mortgage on Ms property is a superfluity.

It is impossible to conceive why the law should have, a priori, interposed such a limitation.

Suppose the tutor, after giving a special mortgage, was to sell the property, would the rights of the minors against it be impaired ? Suplióse, after the giving of the special mortgage by the tutor, on the property of another person, the property was sold by the latter, would the rights of the minors against it be affected1? Suppose the tutor was to acquire the property of such person after such mortgage had been given on it, would the rights of the minors be lessened ? Would they not, in each and every case, remain identically secured ?

Suppose, at the end of the tutorship, the minors had claims against their tutor, could they not exercise against the property of such third person, and to the same extent the rights which they could have exercised against the property of their tutor, if such had been mortgaged in their favor? Why then deny to the tutor a right, a privilege, which ties up his property, puts it practically out of commerce ? Why give to the law a judicial interpretation which nullifies its spirit and does considerable harm ?

The proposition is unwholesome, that the .property mortgaged in this ease, is encumbered with a vendor’s privilege, and in case of the death of the mortgagor, his widow and minor children might be entitled to a homestead of $1,000, and that the property might further be subjected to funeral charges, expenses of administration, and ultimately, that the mortgage may prove of no benefit to the minors.

The objection can as forcibly be made in the case of a father, tutor by nature, who gives the special mortgage, sells his remaining property, marries again, has children, and dies, leaving them in a state of minority, and their mother in necessitous circumstances.

The argument is clearly one ab ineonvenienti, which cannot deprive the tutor of the benefit of a law which was enacted both for his advantage and that of his minor children.

In such cases the grave responsibility rests upon the members of the family meeting, the under tutor, the appraisers, and the Judge who accepts the tendered special conventional mortgage, and orders the release or discharge of the general legal mortgage from what real estate the tutor may then or thereafter own. Their duty is to see that the title to the property offered is good and valid; that the property is of sufficient and ample value, to secure effectually, with the super-added margin, the liquidated rights of the minor, and that the act be duly recorded. It is further the duty of the tutor and under tutor to see that the buildings are insured. When those duties have been faithfully discharged, the minors are secured and third parties are fully protected.

It is a principle which, to be recognized, did not require to be incorporated in the Code, that the owner óf real estate can mortgage it to secure the obligations of a third person.

Article 3295, R. C. C., provides, indeed, that: “It is not necessary that a mortgage should be given by the person contracting the principal obligation; it may be given for the contract of a third persou.”

To deny the privilege asked in this case is to expunge a valuable right which tutors have, and to write out this Article from the Court. It is destroying legislation and substituting jurisprudence to it.

The mortgage consented and accepted in this case subjects the property in the same manner and to the same extent that it could have been done had it been given by the tutor on an immovable of his own, and it protects as effectually third persons. 14 L. 469; 16 L. 120; 17 L. 194; 2 An. 658; 15 L. 221; also, 2 R. 415; 10 L. 239; 9 L. 192; 15 An. 417; 19 L. 181; 1 An. 62.

Nothing was said or intended to be in 33 An. 52, that militates with the doctrine contended for in the present instance. On the contrary, the ruling in that case harmonizes with the view I take in the actual one. It was then decided, after mature deliberation, that the generaL mortgage in favor of the minor could be replaced only by a special mortgage, given according to law. To rule otherwise would be to do violence to the well settled principle, that the law permits all that which it does not forbid.

Prom the fact that it authorizes a natural tutor to release the general legal mortgage covering all his real estate, by giving a mortgage on immovable property, it justifies the giving of such mortgage, either on immovable property owned by him, or owned by a third person consenting to burden it to secure his obligations.

The adjudicatee of the property in this case is offered such a title as he is bound to accept, and should be held to comply with the terms of sale.


author: Pociié, J.

text:
    No. 8565.
    James Powers vs. Sarah E. Rea, Individually and as Natural Tutrix.
    The defendant in this case ’executed a note and mortgage, individually and as tutrix of her two minor children, with the authorization of a family meeting, to secure a debt due by a man with whom she was living in concubinage, and who supported her and her family, and now she resists payment on the ground of want of consideration, misrepresentation and fraud. Held, that the plea of want of consideration, as regards the minors, must prevail, but it fails as to the defendant, an unmarried woman, who had full power to bind herself, as she did, and who failed to prove that fraud or misrepresentation had been practiced .on her by plaintiff, the creditor and mortgagee.
    APPEAL from the Civil District Court for the Parish of Orleans. Tissot, J.

      Walter 0. Flower, for Plaintiff and Appellant.

      J. 0. Nixon, Jr., for Defendant and Appellee.
   The opinion of the Court was delivered by

Pociié, J.


author: Poché, J. Pochií, J.

text:
    No. 8501.
    Thomas W. Bothick vs. Samuel P. Greves et als.
    An extrajudicial surrender of his property made by a debtor to, and accepted on his conditions by, a portion of his creditors, does not transfer the owneiship of his property to such creditors, nor does it divest his other creditors of th e i ight to participate pro rata in the proeeds of the sale of such property, made by judicial process at the instance of the creditors who had formally accepted the surrender and conditions of the debtor.
    The title of any creditor to a judgment against the debtor, and who claims his share of the assets, cannot be inquired into collaterally, without making the alleged owner a party to the suit.
    APPEAL from the Seventeenth Judicial District Court, Parish of East Baton Rouge. Sherburne, J.

      Herron & Beale and G-. W. Buckner, for Plaintiff and Appellee :
    The Code of Practice, Arts. 306, 400, 401, authorize proceedings such as these, where plaintiff claims to be entitled to a privilege on the proceeds of sale, up to his pro rata share thereof.
    The purchaser of a judgment takes with the judgment all its accessories and securities. Hennen’s Digest, Sale III, b. 2, B.; Louque, same reference, Execution, Y, d. 12, Louque, p.640.
    Prescription of one, two and three years not applicable to claim against agent.
    No prescription runs in favor of agent as to things that he holds for another. B. G. C. 5510. Where the claim is for the debt of a sura of money, ten years prescribes.
    The Board of Liquidators can stand in judgment in this suit, as they were clothed with power to sue and be sued, and have exercised that authority continuously ever since their appointment. »
    The creditors under the transfer of property made by agent, stand alike as to whether they' were creditors of the new or old firm or individual creditors. The evidence in this case shows that nearly all of the property belongs either to the old firm or its individual members. Insolvency has nothiiig to do with their case.

      Sam’l P. G-reves and G. B. Bavrot, for Defendants and Appellants :
    There is no law nor precedent for the form of action adopted by the plaintiff in this case. The Code of Practice clearly announces that this form of action can be resorted to only in two cases: where the opponent claims the ownership of the property seized, and where he claims a supeiior privilege on the proceeds of the sale. See C. P. under the head of third opposition, 30 An. 146.
    In case of allegation of supeiior privilege, Art. 401, C. P. requires the further allegation that the debtor has not sufficient ofother property to satisfy the demand of opponent. See also G. P. 301.
    The allegation of superior privileges ratifies the sale, the judgment and all the proceedings prior to judgment, and opponents are estopped from contesting any and all the proceedings, and of the acts and allegations of the parties to the suit and judgment.
    The Board of Liquidators were not parties to suit 2,710, and could not stand in judgment in this suit; consequently their exception should have been sustained, and their suit dismissed.
    The cieditors of the new firm have a supeiior privilege upon its assets over the creditors of the old firm.
    Insolvency is never presumed. It must be alleged and proven, otherwise the action will not lie, the plaintiffs showing no interest.
   The opinion of the Court was delivered by

Poché, J.

The present controversy is one of the many cases winch have arisen from the failure in business of Hart & Hébert, formerly bankers in Baton Rouge, and turns substantially on the following facts:

At the time of their failure, in October, 1875, Hart & Hébert made a voluntary surrender of their property to their creditors, under certain conditions, which were accepted by all their creditors, except twenty-two.

The accepting creditors appointed a committee of seven, with full power to accept said surrender, and to dispose of the property for the benefit of creditors.

Subsequently, these creditors who liad formally accepted the debtors’ surrender and their conditions, instituted among themselves an action in partition for the sale of the property of Hart & Hébert, with a view to a distribution of the proceeds among themselves, and a judgment was rendered ordering- the sale and the distribution prayed for, to be made under the supervision and control of the committee which is styled the “ Board of Liquidators of Hart & Hébert.”

Plaintiff in this case, who owns a judgment obtained against Hart & Hébert by Pike, Brother & Co., based on a note secured by mortgage on certain property of Hart & Hébert, granted before their failure, and who is a creditor for a residue on said note, after foreclosure on the property mortgaged, has filed a third opposition in the partition of the accepting creditors inter sese, for the purpose of being paid his pro rata in the proposed distribution of the proceeds of the property of Hart & Hebert, and he has prayed for citation on the Board of Liquidators through their president. The latter excepted, on the ground of his want of authority to stand in judgment for his former constituents, the accepting creditors, who had resumed for themselves the administration of Hart & Ilóbert’s property, and were the only parties in the suit for partition.

•The defects pointed out by this exception and by all the objections urged to the form of plaintiff’s present proceedings, have been cured by the intervention of H. Badley and all the other creditors who were parties to the partition suit, and who have thus formally joined issue with plaintiff on the relief which he seeks through this proceeding.

These intervenors, joined by the Board of Liquidators in the answer of the president, resist plaintiff’s demand on several grounds, which we shall consider seriatim.

Many of their grounds resolve themselves into an argument that plaintiff, as subrogee of Pike, Brother & Co., has no right to participate in the proceeds of the property surrendered by Hart & Hebert, by reason of the refusal of Pike, Brother & Co. to accept said surrender, which was therefore made for the exclusive benefit of those creditors who accepted under the conditions prescribed by the debtor, and on the additional ground that their claim is prescribed. We do not construe the transfer of Hart & Hébert as importing such an exclusion, and. we hold that such an intention on their part, even if manifested in the act of transfer, could not be sustained in law. No debtor in failing circumstances could, by means of a voluntary surrender of his property to certain creditors, on condition of a discharge from their claim, defeat the legal recourse of his other creditors on his property thus surrendered, which yet, remains the common pledge of his creditors.

This transfer of Hart & Hébert, has twice received judicial interpretation in this Court, where it. has been defined to be but a security for the payment of debts, coui>led with the power to sell the property, for the purpose of securing the creditors. 30 An. 868 ; 33 An. 474.

The plea of prescription cannot prevail against the creditor owning a judgment rendered in 1877, less than ten years preceding- this suit.. Intervenors’ denial of the ownership-of plaintiff of the Pike judgment, on the ground that it had been transferred to A. Baldwin by the original owner, is met by the fact, that Baldwin does not complain and is not a party to this suit; hence, he cannot be bound by the judgment herein, and his rights, if any he has, will be considered whenever he urges them and, therefore, these intervenors cannot- be heard to champion them.

' The same answer applies to the objection that the rights of G-. A. Pike, as a member of Pike, Brother & Co., to the judgment have never been acquired by plaintiff, whose title is not opposed by G-. A. Pike.

To the objection, that since the date of the mortgage of Hart & Hebert to Pike, Brother & Co., the former firm had been changed by the admission of a new member, Hugnot, we answer that the property surrendered was owned almost exclusively by the first firm, and urge the fact that such a defense should have been made and could have been heard only in the suit’of Pike, Brother & Co. vs. Hart & Hebert.

We have carefully considered and maturely weighed the numerous objections urged against the right of this creditor to claim hisjwo rata share in the distribution of the, assets of his insolvent debtors,.which was recognized by the judgment in the lower court, and we find none sufficient to justify a reversal of that judgment.

It is, therefore, ordered, adjudged and decreed, that the judgment appealed from be affirmed at appellants’ costs.

On Application for Rehearing.

Pochií, J.

In our decree affirming the judgment of the Court a qua, we recognized the right of plaintiff to participate with Hart & Hébert’s other creditors in the distribution of their assets, and by an oversight, we omitted to correct errors of calculation made by the District Judge, in fixing the share of such assets accruing to plaintiff, and partially admitted by the latter’s counsel, to which our attention has been called by defendants’ counsel in an application for rehearing.

The practical effect.of our judgment is intended to place plaintiff, Bothick, on the same footing with all the creditors of Hart & Hebert, in the proceeds realized or to be realized from the sale of the property surrendered by them for the benefit of their creditors.

Justice, therefore, requires an amendment of our decree, and as comidicated calculations are necessary for the purpose of determining the precise amount to which plaintiff is entitled as his share in said fund, we conclude that this branch of the case should be referred to the District Court, and our former decree is therefore set aside.

And it is now ordered that so much of the judgment appealed from as adjudicates the special amounts to be received by plaintiff from the-defendants be annulled, avoided andreversed; and it is further ordered that-in so far as said judgment recognizes and enforces the right of plaintiff to- participate pro rata with other creditors of Hart & Hebert, in the proceeds of the sale of the property of said I-Iart & Hebert, as well of the funds already distributed as those to be distributed by defendants among creditors, it be affirmed; and it is ordered that the case be remanded to the lower court for the purpose of making such distribution in accordance with the views expressed in this opinion. Opsts of appeal to be paid by plaintiff.

Eehearing refused.

Levy, J., absent.