text:
    No. 10,139.
    Succession of Mrs. Minerva Sparrow.—Opposition to Accounts and Tableaux of Chris. Chaffe, Jr., Administrator, and Heirs of Mrs. M. Sparrow vs. Chris. Chaffe, Jr., Administrator.
    (Consolidated.)
    An administrator is entitled to credit for moneys paid out for tlie repair or preservation of plantation buildings and machinery, also for insurance on gin-house, though the policy issued in the name of the factor or commission merchant for the estate.
    A daughter of the intestate, who occupies with her minor children a plantation dwelling-house, should not be charged rent, where she has not contracted to do so, and where the building is not needed for the administrator or a tenant and is not required lor the cultivation of the plantation.
    Where an administrator has conducted planting operations and a mercantile business on account of the succession, and two of the three legal heirs have agreed that their shares in the succession shall he responsible for the debts contracted by tbe administrator for this unauthorized cultivation of the succession plantation, they do not bind themselves personally for the debts, nor are their shares liable for more than a third of the debts. Nor are the heirs committed by sucb agreement to conectness of tbe account and estopped from disputing it. Nor will a judgment decreeing the liability of such shares for tbe debt be bold as res judicata, against their right to dispute it, or show its payment or extinguishment.
    Where the administrator has employed competent and experienced attorneys, who are fully capable alone to perform every service required of them pertaining to the regular and usual administration of the succession, he is not authorized to employ at the expense of the succession other attorneys, whose services are directed mainly to the enforcement of a large claim against the succession in favor of a firm of which the administrator is amember. Their iee is not a proper charge against the succession.
    The entile commissions of an administrator of a large succession are not properly exigible before the administration is terminated. Prior to this his commissions on sums received and distributed should be paid, and his rights as to the residue reserved for his final account. He is entitled to commissions on the rentals of the plantation, (hough leased by himself.

      A PPEAL from the Eighth Judicial District Court, Parish of East Carroll. JDeloney, J.

      W. G. Wyley, F. F. Montgomery and F. D. Farrar for Opponents:
    1. Where there is no will, heirs ean at any time take possession of the succession on giving security to the creditors of the succession, if they require it. Minor heirs may be legally put in possession the same as the major heirs. 24 Ann. 270; 25 Ann. 56, 220 ; 21 Ann. 278; 29 Ann. 347; 30 Ann. 93, 128, 17S; 10 Ann. 169.
    2. Heirs can take possession, under Article 1012 R. O. 0., before the estate is wound up aud debts paid. Soye vs. Price, 30 Ann. 96; 27 Ann. 686; 25 Ann. 225, 235; 29 Ann. 347, 837; 30 Ann. 144. See also Succession of E. S. Powell, Van Bibber vs. Cosley, Admr., 38 Ann. —.
    3. A succession, a juridical person, cannot contract debts without authority of court, and the administrator cannot, of his own motion, imperil the succession by engaging in mer - can tile and planting pursuits; he can bind himself and the major heirs, if they are his sureties or guarantors, but such debt, not owing by the estate, cannot be set down on the tableau. 23 Ann. 189, 428 ; 25 Ann. 562; 21 Ann. 287; 22 Ann. 372; 24 Ann. 83; 26 Ann. 680.
    4. As the debts of a major heir, whether as principal or surety, axe distinct from the debts of the succession, they cannot be set down on the tableau and tried in the concursus, which is a probate proceeding; the obligations of such major heir, whether as principal or surety, are personal to him, and he should have the right, when sued in. a court of competent jurisdiction, to plead, answer, or demur, to file a reconventional demand (if he has one), and he should not be condemned without a hearing under the pretense of an estoppel. 2 Ann. 413; 5N. S. 529.

      J. M. Kennedy for John Chaffe & Sons, Appellees.

      Montgomery & Fansdell for Administrator, Appellee :
    1. It is the duty 'of an administrator of a succession to make all repairs to succession property that are absolutely necessary to preserve the property from destruction, and he is entitled to be paid by the succession for all such repairs. See Arts. 1147 and 2314 C. C,; 33 Ann. 745; 24 Ann. 253.
    2. If an administrator allows property of a succession to be lost and destroyed by his neglect to make usual and customary repairs, he will be personally liable to the succession for the loss.
    3. A lessor is bound to make all repairs that incidentally become necessary, and’result from decay. If lessor refuses or neglects to make necessary repairs, the lessee may make them and deduct from the rent. Art. 2692 etseq. C. O.; 36 Ann. 888, Ross vs. Zuntz.
    4. Where the qualities of lessor and lessee are united in the same person, through his representative and his individual capacity, it would be a vain thing for the lessee to put the lessor in default before making necessary repairs. Hence, default would not be necessary in such a case.
    5. A lessee has a right to remove all movable improvements placed by him on leased property. 36 Ann. 888, Ross vs. Zuntz.
    6. An administrator in the exercise of a sound discretion may insure property under his . administration belonging to a succession, and the costs must be borne by the succession. 2 R. 103; 3 Ann. 396; 12 Ann. 96.
    7. Heirs who occupy a portion of the succession property are liable for the rents. 27 Ann. 550; 30 Ann. 1138.

      8* An administrator may retain property of a succession in I1Í3 hands until his accounts axe finally homologated and all his claims against the succession paid. Art. 1007 O. P.; 4 Ann. 223, Succession of George.
    9. To terminate the existence of a succession, all the heirs must be sui juris, and have capacity to render themselves unconditionally liable for the succession debts. This a minor cannot do. 30 Ann. 388, 743.
    10. While a succession is under administration, the heirs have no right to interfere with it, and have nothing to claim until the debts are paid and the succession legally terminated. 31 Ann. 495, Oestacvs ITlorane
    11. In fixing the value of attorney's fees, tli e court will look into the whole record, and two factors will enter into the discussion : One is the extent and kind ef service, and the labor incident to its rendition; the other is the ability of the party who is liable to pay. 21 Add. 687, Cullom vs. Mock; 30 Ann. 336; 81 Ann.130, Succession of Linton.
    12. When it appears that the services of an attorney in settling up the complicated affairs of a succession have been long continued, wisely directed, and valuable, the court will be guided as to the money value of his services (in the absence of special agreement as to his fees, and of specific evidence as to extent of his services) by the opinion of the local bar to which he belongs. Succession of Jackson, 30 Ann. 463.
   The opinion of the Court was delivered by

Todd, J.

To understand fully the issues involved in these cases, a brief reference is necessary to a case which was before this Court last year, entitled “ Succession of Mrs. Minerva Sparrow; Opposition to accounts, etc.; Decker, Guardian, vs. C. Chaffe, Jr., Administrator,” and reported in the 39 Ann. p. 696.

From the decree then rendered we quote as follows :

“It is ordered, adjudged and decreed that the two provisional accounts of administration herein rendered and filed by Chris. Chaffe, Jr., administrator, and the tableau of debts charged against said succession, also presented by said administrator, be and the same are hereby each and all annulled, cancelled and rejected, under and subject to the rights hereinbefore reserved in favor of said ackninistrator and the firm of John Ohaffe <& Sons touching their claims against the two heirs df age for moneys advanced and for expenses of cultivating the succession plantations, and in favor of the administrator for moneys advanced 1 for the maintenance of the minor heirs — Mary and Kate Decker.
“ It is further ordered that Chris. Chaffe, Jr., administrator,' be required to present forthwith a provisional account of administration and tableau of debts which may be due by said succession, from which he shall exclude as debts due by said succession all expenses incurred in the cultivation of succession plantations, either by himself or Edward Sparrow, former administrator of said succession, and all items of indebtedness due to John Chaffe & Sons, either by A. M. Ashbridge or by Edward Sparrow personally.”

To understand fully the nature of the reservation ■ made in this decree, it appears from the report of that case that, in the account filed by the administrator a large indebtedness was charged against the succession of Mrs. Sparrow in favor of John Chaffe & Sous incurred in the cultivation of a number of succession plantations by Edward Sparrrow, the surviving husband of the deceased, and former administrator of her succession, and by Chaffe, the present administrator, which was decided to have been unequal and unauthorized. It was claimed, however, that two of the heirs of age of the said deceased — Mrs. Foster and Mrs. Ashbridge — had, by a written agreement, made themselves responsible for this laige debt to the extent of their interests in the succession.

This fact is referred to in the body of our former decree and the reservations further explained in the following language (quoting):

“ We, therefore, deem it our duty to reserve the rights of John Chaffe & Sons and of the present administrator, to enforce their respective claims against the two heirs of age, on account of the latter’s liability for expenses incurred in the cultivation of the plantations of tile succession, by proper proceedings, in due course of administration."

After the case was remanded under this decree, the heirs of Mrs. Sparrow filed a petition to be recognized as her heirs at law, and to be pud in possession of her succession, and that Chaffe, administrator, be ordered to render an account of his administration.

In this proceeding for recognition, and to be put in possession, John Chaffe & Sons intervened and opposed the major heirs, Mrs. Foster and Mrs. Ashbridge, going into possession of the estate, unless they first paid his claim against them, or, in the alternative, gave security for its payment.

The filing of this intervention was excepted to on the ground that John Chaffe & Sons, not being creditors of the succession of Mrs. Sparrow, they were without interest to intervene in this proceeding or any other relating to her succession.

The exception was overruled and the intervention allowed.

On the 5th of August, 1887, Chaffe, administrator, filed an account, and subsequently a supplemental account, and two tableaux — one tableau purporting to represent or show the debts against the succession as a legal entity, and the other the debt referred to in the reservation made in the pi evious decree, for which the heirs of age, or rather their shares in the succession, were claimed to be liable.

This item is mentioned and described in the tableau thus:

Claim of John Chaffe & Sons, for expenses incurred in the cultivation of the succession plantations by Edward Sparrow, former administrator, as set forth and ordered in said decree, one-half thereof to be paid out of the share of said Mrs. Foster and said Mrs. Ash-bridge, respectively, viz : $21,000.05 out of each of said shares, equal to $42,000.04.”

In the account, the administrator charged himself for rent of plantations from 1883 to 1887, inclusive, and a few debts collected, amounting in all to $19,008.28. He credits himself with payment made on account of repairs, taxes, attorneys’ fees, costs, commissions, etc., amounting to $12,227.53, leaving a balance in his hands of $6780 for distribution among the heirs. This sum he proposes to divide into three equal parts, and to credit the portion thereof of the minors to account of advances made to them by the administrator for their maintenance, and those of the major heirs, Mrs. Foster and Mrs. Aslibridge, to the plantation account in favor of John Chaffe & Sons, under their agreement subjecting their shares in the estate as security for the debt.

These accounts and tableau of the administrator were opposed by the major heirs and tutor of the minors, the opposition extending to the entire accounts, save as to certain items admitted to be correct.

The opponents further charge maladministration and mismanagement on the part of the administrator.

They are, in substance, that the succession owed no debts when it was opened, but after seven years of administration, the administrator reports the debt of the succession, or of the heirs, at $51,831.13.

That the gross revenues since August, 1883, when the present administrator took charge, aggregated only $14,564.84, against expenses, as alleged, of $20,254.84.

It is further charged that the standing crops on the succession plantations on the 5th of August, 1883, when the administrator went into possession, were inventoried and appraised at $16,780.50, and a stock of goods in the Midland store was inventoried at $1379.65, of whicli the administrator makes no account whatever.

Mrs. Foster and Mrs. Ashbridge made special opposition to the claim or charge of John Chaffe & Sons, directed against their shares in the succession, on the ground that such a claim was improperly included in the administrator’s account; that it was in the nature of a demand, and against them as heirs, and not against the succession, and one, which it had been decreed, the succession did not owe, and, therefore, could not be legally urged in a probate proceeding, nor enter into an administrator’s account. That the alleged indebtedness is charged in globo wherever they were entitled to be informed, by proper proceedings, of the precise nature of the demand and to have oyer of the accounts on which it was based, and further entitled to plead, answer or demur, after having been regularly sued, and ought not to be condemned, without a hearing and without trial, in a court of ordinary jurisdiction. Subject to this exception, they answered, denying the existence of the debt, and charging that the claim was false and fraudulent throughout.”

It was also charged by them that certain writings, designated as X, Y and Z, on which the liability of their interests in the succession to John Chaffe & Sons purports to be founded, were signed by them in error — an error induced by the false and fraudulent representations of Chaffe, administrator, and one of his attorneys. That they were made to believe, by these representations, that the succession of their mother, Mrs. Minerva Sparrow, was largely indebted to said firm of John'Chaffe & Sons, and that their only hope or chance for realizing anything from the succession was by executing these agreements purporting to bind their said interests as surety for advances and supplies made to the plantation by the firm of John Chaffe & Sons.

Mrs. Foster, in her own behalf, further represents, in substance, that she was induced by like false and fraudulent representations, by the same parties, to consent to the preparation and filing of an intervention in the proceeding relating to the provisional account and tableau filed by Chaffe, administrator, in 1885, by which it is sought to establish the liability aforesaid for the acts and gestión of her father» Edward Sparrow, decreeing his irregular administration of her mother’s succession, and his illegal cultivation of the plantations of the estate. She avers that, owing to said misrepresentations and deceptions practiced upon her, that she is in no way bound by said pretended intervention.

Pleas of res judicata and estoppel were filed against the major heirs, under which it was contended that they were debarred from disputing the correctness of the claim urged against them or the mode of its prosecution.

These pleas were sustained.

The proceeding of the heirs to be put in possession, and their opposition to the accounts and tableaux were consolidated and tried together and judgment rendered substantially as follows :

The account and tableau were approved and homologated except as to certain charges of insurance and expenses growing out of the planting operations, amounting in all to $466.36, and the tableau was amended by rejecting the claim of D B. H. Cbaffe for attorney fee; by reducing the fee of Montgomery and Randdell from $4117.50 to $2862.75, and the commissions of the administrator from $2134.42 to $1680.40, and in all other respects, the account, as relates to the succession, was approved and homologated. The pleas of res adjudicata and estoppel and prescription were sustained. Mrs. Foster and Mrs. Ashbridge were each condemned to pay $21,000 to John Chaffe & Sons, and said amounts were made a charge against their respective shares in the estate of Mrs. Minerva Sparrow, to be paid after the settlement of the debts of the succession, and the administrator ordered to retain the amounts owing them, and also the amounts due by the minor heirs, advanced for their maintenance.

The demand of the heirs to be put in possession of the estate was rejected except on condition of their giving bond to secure the debts recognized against their respective shares.

From this judgment the heirs of Mrs. Sparrow appealed, and also D. B. H. Chaffe, whose claim for an attorney’s fee was rejected. In this court Chris. Chaffe, administrator, in answer to this appeal, prays the amendment of the judgment by allowing the items of his account rejected by the lower court, being for $414 80 for insurance in gin-house, $750 charged by the administrator against Mrs. Ashbridge for rent of a plantation dwelling-house.

I.

Account of administrator filed 5 August, 1887, and opposition thereto and supplemental account. '

The administrator charges himself with $19,008.29, being almost exclusively for rents of plantation from July 5, 1883, to and including the year 1887, at $4000 per annum-the rental fixed by our former decree

He credits himself for payment made on account of the succession with $12,227.53, leaving a balance in his hands of $6780.76, which he proposes to apply towards the payment of the debts of the heirs.

Of these credits the opponents admit the correctness of $6090.36, leaving in dispute $6137.17.

The main items opposed are those for repairs, attorney fees and commission of administrator.

(a) The contention of the opponents is that none of the credits claimed for repairs and improvements should be allowed for the reason that by the terms of the decree of this court the credit of the administrator were restricted to taxes paid and commissions, the language of the decree being: ‘‘That he shall charge himself as rent for the plantations and their appurtenances during the whole time he cultivated them at the rate of $4000 per annum for the whole, subject to deduction of taxes and administrator’s commissions.

It is proved to our satisfaction that all the repairs made and paid for, which compose the items objected to, were such repairs as, in our opinion, were necessary for the preservation of the plantation build-1ngs and machinery.

Independently of the decree referred to, it was the duty of the administrator to preserve the property and defray the expenses for such preservation; and to find in the decree any prohibition of an expenditure for such an essential purpose would be giving too narrow a construction to its language. The judge a quo rejected the opposition to this item, and we shall not disturb his ruling on this point.

The credit claimed for insurance on the gin-house was of a like character as those for necessary repairs, but the judge rejected this charge, and there is a prayer for an amendment in this respect. It is objected to on the ground that the policy issued in favor of John Chaffe & Sons, but the evidence makes it certain that though thus issued, the property covered by the insurance was the gin-house on one of the succession plantations, and the succession should pay it; and the amendment is allowed. The amount of the item is $414.80.

(.6) The attorney fees charged are as follows:

Montgomery & Ransdell..........................$5,017 05

Less amount paid................................ 900 00

Balance claimed...............■...................$4,170 00

Bayne & Lengré.................................. 250 00

D. B. H. Chaffe................................. 250 00

Total........................'..............$5,617 00

The fee of Montgomery & Ransdell was reduced to $2862, and, adding the $900 already paid, made it-$3762.75.

A great deal of the litigation attending the settlement of this succession has been cahsed by the attempt to enforce against the succession the personal debt of Gen. Sparrow, contracted during and on account of his unauthorized cultivation of the succession plantations, and which debt was rejected by our former decree as a charge against Mrs. Sparrow’s succession. Therefore the professional services of these attorneys in this respect, at least, cannot be regarded as enuring to the benefit of the succession.

We have carefully examined the record and considered the proceedings with special reference to making a j ust estimate of the services rendered by these gentlemen, and we think they should be allowed a fee of $3250, and deducting the $900 received by them, would leave a balance due them of $2350; this to include services rendered and to be rendered in the settlement of the succession, and the judgment appealed from must be amended conformably to this conclusion.

The fee of T). B. H. Chaffe was properly rejected. His services were directed towards supporting the claim of John Chaffe & Sons, and there was no need of his help in any way relating to the usual and required services of attorney attending the administration of successions. The regular attorneys of succession were able, skillful and fuily competent of themselves to discharge the duties and responsibilities pertaining to their employment.

The fee of Messrs. Bayne & Denegré was for services rendered the administrator. They were doubtless valuable to him and to the succession, but they were not indispensible, and were in the line of those services which strictly devolved upon the regular attorneys of the succession, and which the administrator should have required of them. If he, a non-resident of the parish where the succession was opened, accepted the administration of it, and found it a matter of convenience to consult attorneys at the place of his residence instead of the regular attorneys for the succession, the charge should not fall on the succession, especially in view of the fact that a full and adequate compensation was allowed the latter for all services required in the administration of the succession. This charge, therefore, should have been rejected.

(c) The commissions charged by the administrator amount to $5,017.05. The administration is not yet closed, and we do not think that the succession should now be taxed with the entire commissions. These are only properly exigible upon a final settlement, to be adjusted in the final account.

Without, therefore, determining whether the charge is correct or not as to the amount claimed, we think it proper that the commissions of the administrator at present should be confined to the sums received by him for or on account of the succession since he took charge of it. The sums so received he reports at $14,964.10, upon which he properly charges a commission of $374, which is approved; and the right is reserved to him to claim the residue of his commissions to be settled in the final account.

ii.

The account of John Chaffe and Sons, which was rejected by our decree in the former appeal as a charge against the succession of Mrs. Minerva Sparrow, was properly placed on the administrator’s account. This became proper and even necessary from the terms of the former decree. It is too late to question the correctness or propriety of that decree in this regard. Whilst rejecting the claim as a charge against Mrs. Sparrow’s succession, we held, substantially, that the major heirs of Mrs. Spariow, or, at least, their shares or interests in their mother’s succession were surety for the debt to be paid, if required, in due course of administration. That necessarily implied that their shares in the estate should be ascertained and fixed by the final settlement of the succession under administration. And until a partition could be made, of course, the entire assets of the succession, including the shares of these heirs, would remain in the hands of the administrator, who, by the terms of the decree, was authorized to apply them, as far as might be necessary, to the payment of the account of John Chaffe & Sons.

The judge a quo, however, seemed to consider that the respective shares or interests of these heirs were liable each for one-half the. debt. This was a mistake. These heirs are not personally bound for any part of the debt. Only their shares in the succession are made subject to it under their engagement or contract. Had they been personally liable as heirs, they could only have been bound to the extent of their virile shares, and such shares, each being one-third of the estate, there being in all three heirs, are each bound only for one-third of the debt.

The plea of res adjudicata presented by the accountant was properly sustained, at least to this extent, that this claim of John Chaffe & Sons should be placed on the account, and settled contradictorily with these heirs in due conrse of administration, and their respective shares in the succession to be liable for the debt under their guarantee in favor of these creditors. At that time Mrs Foster, one of the heirs, acquiesced in this view of the matter, but since the decree was rendered she has shifted her position and seeks now to be relieved from her obligation of guarantee or suretyship on the grounds of fraud and error, of a similar character urged by Mrs. Ashbridge in the previous appeal. In that case we passed on the grounds of error and fraud set up by Mrs. Ashbridge, and ruled that they were insufficient to relieve her from her agreement. So, in like manner, we have carefully considered in the instant case the fraud and error charged by Mrs. Foster against the obligation as relates to herself, and have reached the same conclusion as we did in relation to Mrs. Ashbridge.

The judge, however, erred in extending the scope of the plea beyond this.

There was nothing, however, in our former decree that adjudged these opponents or their interests in their mother’s succession to be liable for the claim or account of John Chaffe & Sons as presented and reported in the account, or a.ny portion of it. The correctness of the account as against any one was not determined. In that case it was prosecuted as a just claim against Mrs. Sparrow’s succession exclusively. As such it was rejected by the court, with the right reserved to the creditors to prosecute it against her major heirs in the manner now being done to the extent of their interests in the succession.

The question as to the correctness of this account as relates to these opponents is still an open one; and the judge a quo was, therefore,in error in excluding all evidence in opposition to the claim or going to show its extinguishment by payment or otherwise.

This refers especially to that feature in the opposition, wherein it was sought to charge the administrator with the proceeds of the cotton crops growing on the succession plantations when the accountant entered on his administration and took possession of the estate. The cotton crop was alleged to have been sold for $36,000, and besides there was a stock of goods and other things for which an account was sought from the administrator.

True, these crops did not belong to the succession of Mrs. Sparrow, for which reason mainly an inquiry about them was suppressed, but it was for this very reason that they did not belong to Mrs. Sparrow’s succession, and consequently must*have belonged to Gen. Sparrow’s succession, that this inquiry sought should have been permitted.

These major heirs or their succession interests are not sought to be held liable for this indebtedness by reason of their heirship of their mother, but solely on account of their father’s acts and administration.

The only matter to be determined upon this branch of the case was how much did Gen. Sparrow or his estate owe John Chaffe & Sons for advances and supplies furnished him during his illegal administration of the succession and for the cultivation of its plantations, and for which these heirs have bound their interests to the extent stated. The only way to ascertain this indebtedness was to credit Chaffe & Sons with all they had supplied or advanced to these plantations or to Gen. Sparrow for their cultivation, and to debit them witli all they received in cotton or other things from the plantations or from Gen Sparrow or the present administrator. It was only by liquidating this indebtedness between these creditors and Gen. Sparrow that it was possible to ascertain or fix the amount, if any, for which the shares of these heirs in the succession of their mother could be made responsible, and ascertain the precise sum that the administrator was authorized, under our previous decree, of applying to his firm’s claim.

It was certainly not the intention of this Court, whilst extending to John Chaffe & Sons the right to prosecute their claim against these heirs in this probate proceeding — and but for the peculiar exigencies of the case, a very irregular proceeding — and at the same time deny these parties the privilege of a full inquiry into the merits of the claim, and at the same time shut them off from any and all defenses they would otherwise be authorized to make against it. No ; in remitting the parties to this mode of proceeding, it was with a full reservation of their respective rights as plaintiffs and defendants, creditors and debtors.

III.

We think the plea of prescription urged by the major heirs against the claim or account of John Chaffe & Sons was properly overruled. So far as the proceeding then to make liable their shares'in the estate to the payment of the debt, it was not subject to the terms of prescription pleaded against it. Besides, we consider that prescription was interrupted by the present and past proceedings taken by the creditors looking to the enforcement and realization of their claim.

•IV.

The judgment of the lower court rejected the demand of the heirs to be put in possession of the estate, except on the conditions mentioned — i. e., that the major heirs should first pay, or give bond to secure, the claim of John Chaffe to the extent of their engagement, and the minors should pay or secure the advances made to them by the administrator since the opening of the succession.

The right is given by pristine law to the heirs of a deceased person to take possession of his estate, though under administration, upon paying the debts of the estate, or giving the prescribed security therefor.

This right the heirs in this instance would be entitled to demand, except for the obstacle interposed, growing out of their agreement respecting the indebtedness of their father to John Chaffe & Sons, and the former decree of this Court prescribing the mode by which that agreement was to be enforced. The shares of the heirs in the suocession of Mrs. Sparrow was to be ascertained in the final settlement of her succession, and those shares, in due course of administration, were to be applied, if required, to the payment of .the debt in question.

To permit them to take possession of the estate before these conditions were fulfilled, or they discharged therefrom, would be virtually to annul this former decree. So, as to the major heirs, we think the conclusion of the judge was in this regard wise and conservative, and it will not be disturbed.

As to ihe minor heirs, however, their right to go into possession of the estate to the extent of their interest therein, is burthened with no such abstracts. They are in no manner bound to John Chaffe & Sons for this debt. All the debts of Mrs. Sparrow’s succession have been discharged, or there are funds to do so. The minors may be indebted to the succession or the administrator for advances made to them for their maintenance; but this does not debar them from the exercise of this clear legal right. Besides, even if the law did not provide adequate powers to enforce any claim the administrator might have against the minor heirs, it is evident that the administrator already has in his hands funds that can be applied to the satisfaction of any demands against them. As to the minor heirs, therefore, the judgment must be reversed and they put in possession of the succession or their undivided interests therein, subject to the condition only that they be charged with one-third of the commissions of the administrator upon the entire succession.

This completes the review of all the questions and issues embraced in this appeal, and from the conclusions announced above respecting some of them, it will be seen that it necessitates the remanding of the cause for the determination, at least, of some of the matters in controversy.

It is, therefore, ordered, adjudged and decreed that the judgment of the lower court be amended in the following particulars, to-wit:

1. That the administrator be allowed credit on his account for the sum of $466.36, being for insurance and repairs on plantation buildings, which charge is now approved.^ '

2. That the credit claimed for the fee of Bayne & Denegre be rejected.

3. That the fee of Montgomery & Ransdell be fixed at $3250, subject to a credit of $900 already paid, leaving balance of $2350 due.

4. That the commissions of the administrator now exigible be reduced to $374, with the right reserved to recover the residue to which they may be entitled at the final settlement of the succession.

5. That the accounts of the administrator and tableau of debts so far as relates exclusively to his administration of the succession of Mrs. Minerva Sparrow, as thus amended, be approved and homologated, and the judgment of the lower court, as thus amended, be affirmed.

6. That the judgment overruling the plea of prescription filed by the major heirs be affirmed.

7. That the judgment so far as it rejects the demand of the major heirs to be put in possession of the .estate, except upon the terms and conditions therein imposed, be also affirmed; but that in so far as it rejects the. demand of the minor heirs or their tutor to be put in possession of their interests therein, or to the extent of their interests, that it be reverséd, and that the said minors, through their tutor, be put in possession, subject only to the charge of being liable for one-third of the commissions of the administrator on the entire succession, to be paid out of their funds in the hands of the administrator.

8. That the pleas of res adjudicata and estoppel against the major heirs be overruled and the judgment therein amended to the extent expressed and indicated in the body of this opinion.

9. That in all other respects the judgment be annulled, avoided and reversed, and the cause be remanded to the lower court for the sole purpose of determining the amount, if any, that the shares or interests of the major heirs of Mrs. Minerva Sparrow, deceased — Mrs. Foster and Mrs. Ashbridge — are liable for to John Chaffe & Sons growing out of their written agreement touching- the cultivation of the plantations of the succession by Edward Sparrow and Chris. Chaffe, administrator, and the advances made and supplies furnished by said firm for the purpose of said cultivation, and also for adjusting any indebtedness of all the heirs for advances made them by the succession or by Chris. Chaffe, administrator, reserving to all parties the right of full inquiry relating to said indebtedness claimed by John Chaffe & Sous, and the benefit of all legal pleas and defenses germane thereto, except such as may have been passed on and determined by this Court, and as fully as the same would be permissible under the ordinary jurisdiction and practice of the courts.

The costs of both courts as relates to the accounts and tableau pertaining exclusively to the succession and its administration as an entity be paid by the succession, and-all other costs to abide the final determination of the controversy still left open by this decree.


source: Caselaw Access Project

author: Fenner, J.

license: Public Domain

text:
    No. 10,150.
    John F. Kelly vs. Isaac L. Lyons.
    ■When a party, about to be sued, is presented by his adversary with a petitien addressed to a particular court, and endorses thereon his acceptance of service, waiver of citation and confession of judgment, and when, two days afterward, said petition and confession are filed in court and judgment rendered thereon, defendant cannot claim that such judgment is a nullity, because violating Art. 162, C. P., prohibiting election of a domicile (other than his own) for the purpose of being sued.
    The confession of judgmentwas a pleading to the merits, and being filed with his authorization, its effect is to be governed by the date of filing and not by the date of its preparation.
    Having thus pleaded to the merits, without exception to the jurisdiction, the judgment rendered is valid.
    A PPEAL from the Civil District Court for the Parish of Orleans. Bightor, J.

      Merrick & Merrick for Plaintiff and Appellant:
    A confession of judgment on a petition addressed to a judge in a jurisdiction outside of the domicile of the debtor, to be subsequently filed in such jurisdiction beyond the domicile, is virtually a waiver of domicile, and prohibited by Articles 89, 92,129 and 162 of the Code of Practice. Revised Stat. 1870, Sec. 1204.
    This recognition of the incompetent judge by the debtor, in a proceeding subsequently to be filed, is not within the exception contained in Article 93 of the Civil Code. Phipps vs. Snodgrass, 31 Ann. R. 91, and is void.

      'Fcw'rar, Jonas <& KruUsohniit for Defendant and Appellee :
    1. It is now the settled jurisprudence of this State that there is no conflict between Art. 192, C. P., as amended by the Act of 1861, and Articles 93, 333 and 335; and that the Act of 1861 was intended only to invalidate agreements electing a domicile for the purpose of being sued. Jex vs. Heavy, 18 Ann. 89; Harqueze vs. Leblanc, 29 Ann. 194 ; School Board vs. Weber, 30 Ann. 595; Phipps vs. Snodgrass, 31 Ann. 88; Stevenson vs. Whitney, Tax Collector, 33 Ann. 655; Stackhouse vs. Zunlz, 36 Ann. 531.
    2. The contrary jurisprudence established by Richardson vs. Hunter, 23 Ann. 255, and Simpson vs. Hope, Idem, 558; Bush & Goode vs. Chapman, 24 Ann. 277, and other cases, has been expressly overruled by the above authorities.
   The opinion of the Court was delivered by ■

Fenner, J.

On the 8th day of February, 1886, Lyons filed in the Civil District Court a petition against Kelly upon notes and accounts aggregating $4250. The petition, when filed, contained the following-endorsement: “ Service of the foregoing petition accepted and citation waived, and judgment confessed in favor of plaintiff, as therein prayed for, with interest and costs,” which endorsement was signed by Kelly and duly acknowledged before a notary public, on February 6, 1886.

On February 10, 1886, judgment was rendered against Kelly, as prayed for, which recites as its reasons, “ considering the written confession herein on file, and on producing due proof in support of the demand, the law and evidence being in favor of plaintiff.”

In February, 1887, a writ of Herí facias was issued, addressed to the sheriff of the parish of Winn, under which certain property of Kelly was seized and sold, and the writ was returned partially satisfied.

On May 10, 1887, Kelly filed an action to have the judgment declared a nullity, on the grounds that, at the date of his waiver of citation and confession, and of the filing of the suit and the rendition of the judgment, he was a resident of the parish of Winn, which “is not within the jurisdiction of the Civil District Court of Orleans, and that the said court has no civil jurisdiction of the person of your petitioner, and that the judgment aforesaid is void and of no effect, having been rendered in violation of Articles 90 and 162 of the Code of Practice.”

To this petition, of which the original proceedings were made part, Lyons filed an exception of no cause of action, which was sustained in the court below, from which judgment of present appeal is taken.

The sole question is, whether the case, on the showing made, is controlled by the concluding paragraph of Art. 162, C. P., which lays down the general rule that a party must be sued at his domicile, “and shall not be permitted to elect any other domicile or residence for. the purpose of being sued, subject to those exceptions expressly provided by law; ” or by Articles 93, 333, 334, 335 and 336, the last four of which provide, in effect, that exceptions to the jurisdiction, ratione persones, must be pleaded in limine, and the first declares that, in absence of such exception, the judgment rendered shall be valid, notwithstanding the suit may have been brought elsewhere than at the domicile. We consider it beyond question that the case is governed by Art. 93.

Knowing that he was to be sued forthwith, and presented, indeed, with a petition actually drawn for the purpose and addressed to a particular court, he endorses thereon his acceptance of service, waiver of citation and confession of judgment. It is evident, and not disputed, that this gave authority to the attorney who drew the petition to file in court his endorsement, and the act of filing, being done by his authorization, was his act, and is to be treated precisely as if,'on the filing of the petition, he had himself appeared in court and entered the confession. Such confession was a pleading to the merits, and the judgment thereon was valid under the very terms of Art. 93.

The mere reading of the recent cases interpreting Art. 162, C. P., will show that this is not the election of domicile which is prohibited by either the letter or spirit of that article. Phipps vs. Snodgrass, 31 Ann. 88; Stevenson vs. Whitney, 33 Ann. 655; Stackhouse vs. Zuntz, 36 Ann. 531.

In the last case we broadly said: “ It is now the settled jurisprudence that parties may, by consent, waive personal jurisdiction and submit their controversy to the determination of another tribunal than that of their domicile, having jurisdiction over the subject matter, and that this latter thereby becomes vested with complete jurisdiction over the matter.”

It is true,"that this applies generally to waivers made in pending suits; but when the waiver is made in the shape of a pleading, its effect is governed, not by the date when it was prepared, but by that on which it was filed in court.

If a non-resident defendant, advised that a suit was about to be brought against him here, should employ his attorney and instruct him, when the suit was brought, to file a particular answer, surely the validity of the pleading, when filed to waive jurisdiction, would not be effe^^d by the fact that the instructions liad been given and the plea prepared before the suit. We think the instant case stands on the same footing.

In Phipps vs. Snodgrass it was held that Art. 162 relates to cases where parties, by agreement, and with a view to a future suit, designate a place (other tLan defendant’s domicile) in which to bring it.”

Here, there is no allegation of any agreement whatever on the subject of the place whore the suit should be brought, and it is not alleged, nor does it appear, that plaintiff even knew that New Orleans was not defendant’s domicil, or used any influence or inducement to obtain his confession.

Judgment affirmed.*


author: Watkins, J.

text:
    No. 10,151.
    Mrs. Bertha Levy vs. Julius Hitsche.
    Under the law in force antecedent to the adoption of tlie present Constitution, courts of probate had jurisdiction of actions for the partition and settlement of community rights and i>roperty and in which the heirs and legal representatives of a deceased spouse seek to ascertain, establish and recover a share in the active mass of the community.
    The Second District Court of the parish of Orleans, as it existed at that time, was vested with exclusive jurisdiction of probate matters, and consequently of suits for the partition of community property in liquidation and not in possession of major heirs, as the co-proprietors thereof.

      After the intent and meaning of a law lias been settled by judicial construction, the construction becomes, so far as contract rights acquired under it are concerned, as much a part of the law as the text itself, and a change in the construction is the same in effect on contracts as an amendment of the law, by means of a legislative enactment.
    PPEAL froui the Civil District Court, Parish of Orleans. fissot, J.

      White <& Saunders for Plaintiff and Appellee.

      Hewn) P. Dart for Defendant and Appellant.
   The opinion of the Court was delivered by

Watkins, J.

This is a suit to compei the defendant to accept title to a piece of leal estate described in the petition, and to which he makes the following objections, viz:

First. That it is derived through certain partition proceedings had in the Second District Court of the parish of Orleans, wherein one succession obtained a decree against another, ordering a partition in kind ; and that said court was without jurisdiction to entertain and decide it.

Second. That, to said partition proceedings, the universal legatees, nominated in the will of the deceased defendant, were necessary parties, and were not cited; or, if they were cited, no judgment by default ivas taken against them antecedent to the rendition of final judgment.

The case was submitted on an agreed statement of facts, and from an adverse judgment the defendant has appealed.

The pertinent facts disclosed by the record are as follows :

Ann Hugh and John Hugh were partners in community, and, at the death of the former, on the 4th of December, 1875, the assets thereof aggregated in value $11,500. '

On the 10th of December following her succession was opened in the Second District Court of the parish of Orleans; her will admitted to probate; an inventory. — which consisted exclusively of an undivided one-half interest in the community property — was taken; and her testamentary executor qualified.

Her will bequeathed special-legacies amounting to $3,700, and bestowed the residuum of her estate on certain universal legatees, all of whom were minors.

Contemporaneously with the mortuary proceedings, John Hugh, the surviving partner in community, was interdicted by a judgment of the Second District Court, and a curator was appointed and qualified,

An inventory was taken of his share in the community property, as his only estate.

This consisted of about $6000 worth of real estate and $5000 of money, and rights and credits.

On the 4th of November, 1876, the curator brought suit in the Second District Court against Mrs. Hugh’s executor for a partition of this community property. •

On an exception of the executor to his capacity to stand in judgment alone, the curator filed a supplemental petition demanding that the special and universal legatees be cited. Some of them appeared and answered, but others did not.

Neither the record, or the court docket, shows that any judgment by default was entered in the case against those not answering.

Neither John Hugh or Ann Hugh left any forced heirs at the latter’s death.

Judgment decreeing a partition in kind was rendered on the 11 Lh of Jwne, 1877 ; the proceedings had thereunder were regular and formal; and, in pursuance thereof, a partition of the effects of the community was made in presence of a notary.

In the partition in kind the allotment was as follows :

a. To the Interdict John McHugh, two pieces of real estate, $2800 00 and $1200 00...........................$4,000 00

Money.............................................. 1,997 641-

Total......... $5,997 64!

b. To the succession of Mrs. Ann McHugh, one piece of real estate...............,......................$2,800 00

Bonds, etc.......................................... 345 00

Money ......................................... 2,852 64!

Total..................................$5,997 64!

This partition was duly homologated and executed.

The interdict died in 1881, and his succession was opened in the Civil District Court.

The piece of real estate in contestation now was acquired by his estate while in charge of the curator; after his succession was opened it was sold under an order for its sale to pay debts; and from the proceeds of sale realized, his individual debts were paid, and, also, one of the debts of the community, which was for taxes of 1875 — the year in which Ann Hugh died.

After his debts were paid, nothing remained for distribution among his collateral heirs.

The property that was allotted to the succession of Ann Hugh, in the partition, was insufficient to discharge its debts and special legacies, and the latter prorated on the proceeds remaining in the hands of the executor. There was nothing applicable to the bequests in favor of the universal legatees.

I.

On this state of facts, the abstract legal question is raised, as to the lack of jurisdiction in the Second District Court, under the constitution and laws then in force, to entertain and decide that partition suit.

From 1854 to 1880 the Second Court of the parish of Orleans had exclusive cognizance of all probate proceedings therein. No change in the law took place, in this respect, under the Constitution of 1868. Vide Act 80 of 1869.

The reorganization of the district courts of the parish of Orleans, under the present constitution, resulted in the abolition of the Second District Court, and its jurisdiction and power were vested in the Civil District Court of said parish.

It is of first importance, therefore, to make an examination of the jurisprudence of that period, in connection with the articles of the codes confering probate jurisdiction on the courts, in order to get a clear idea of the question in dispute.

The Code of Practice provides that “ courts of probate shall have exclusive power * * * to ordain and regulate all partitions of successions in which minors, interdicted or absent persons are interested, or even those which were made by authority of law, between persons of lawful age and residing in the State, when such persons cannot agree upon the partition, and the mode of making it. Article 924, par. 14.

It also provides that all partition of succession property shall be made by the court of probate of the place where the succession is opened. Ib. 1022.

These articles have been the subjects of frequent adjudications by our early predecessors, from which we have selected the following extracts :

In 7 N. S. 469, Gosselin vs. Gosselin, the court said: “By the Code of Practice article 924, paragraph 14, the court of probate has exclusive jurisdiction of partitions.

This code was approved in 1824, and after its approbation, but before its promulgation, tlie Legislature, by an act of 1825 (p. 122, sec. 3), gave to the District Court jurisdiction of suits for partition. * * * Thus, the jurisdiction of the court of probates, which was exclusive in cases of partition, by the Code of Practice, was rendered concurrent only by the act of 1825, posterior to the approbation of the Code by the government, anterior to its promulgation.”

In many subsequent decisions their successors maintained the concurrent jurisdiction of the ordinary and probate courts in partition suits, while all upheld the exclusive jurisdiction of the courts of probate, in all other respects. 3 N. S. 172, Gauge vs. Gauge; 6 La. 420, Hooke vs. Hooke; 2 Ann. 150, Craighead vs. Hynes.

This resulted in a line of demarcation being drawn between the character of partition suits which could be brought, in each respectively.

Hence, we have the provision of the Civil Code that actions for partitions between co-proprietors of the same thing * * must be brought before the judge of the place where the property to be divided is situated,” (R. C. C. 1290, 1304,) as contradistinguished from those of C. P. 1022, above quoted ; but which did not interfere, in any wise, with those of C. P. 924, par. 14.

The adjustment of the jurisdiction of the ordinary and probate courts, in matter of partition, under those textual provisions, was attended with difficulty; but it was effectually accomplished, and the jurisprudence settled.

One of the questions on which most pungent discussions arose, during this process of adjustment, was whether or not an action for the partition of community property, between the survivor and the heirs of the deceased spouse, should be brought in a court of ordinary or probate jurisdiction.

In the case of Babin vs. Nolan it arose, and was decided ; and, in the course of their argument, the court took occasion to review the jurisprudence, and pronounced their opinion in the following unmistakable terms:

This is essentially an action for the settlement and partition of the community, in which the plaintiff, in the right of his sister; who was the defendant’s late wife, seeks to ascertain, establish and recover the portion to which the deceased was entitled in the active mass of the community; and, ever since the decision of the court in Turner vs Collins (1 U. S. 370), courts of probate have been repeatedly and uniformly recognized in our own jurisprudence, to have jurisdiction, if not exclusive, at least concurrent with the district courts, in such cases.

In the case of Broussard vs. Broussard (3 U. S. 37), which originated in a suit instituted by the heirs of the wife against the (surviving) husband, for the division of the community property, the concurrent jurisdiction was positively recognized. And so again it was death d in 3 N. S. 172; 7 N. S. 470; 9 La. 584.” p. 278.

That principle has been affirmed in the following cases, viz : 17 La. 246, Lawson vs. Ripley; 1 R. 149, Griffin vs. Waters; 1 R. 512, McCalloin vs. Palmer; 23 Ann. 637, Walker & Vaught vs. Kimbrough.

It must be borne in mind, however, that those decisions do not impeach the authority that is conferred on probate courts by C. P. 924, par. 14, which has been considered, and treated, as vesting them with jurisdiction of “partitions in which minors are interested,” independently of the property to be divided.

We find in Craighead vs. Hynes, 2 Ann. 150, a terse and forcible expression of this view, and which was expressed in the following terms, viz: u By Section 14 of Article 924 of the Code of Practice courts of probate had power to ordain and regulate all partitions of successions in which minors, interdicted or absent persons are interested; or even thos.i which are made by the authority of law between persons of lawful age and residing in the State, when such persons cannot agree upon the partition, and the mode of making it.’ By a subsequent act jurisdiction was given to the district courts.

“ Our impression is that, under the latter clause of the above section, courts of probate have jurisdiction in oases of partition in which minors are concerned.”

While, on the other hand, it has been frequently decided that, in case a succession has been fully administered by a testamentary executor, tutor, curator, or administrator, and the heirs, all of whom are majors, have come into the possession of the residuum, as an inheritance, or the same has been unconditionally accepted by them, the probate jurisdiction over the property ceases, and the co-proprietorship of such heirs supervenes. 4 R. 20, Babin vs. Dodd; 6 N. S. 519 ; 4 L. 202; 5 La. 384; 10 La. 18; 11 L. 359; 4 R. 412; 21 Ann. 364.

And particularly in the cases decided by our immediate predecessors, viz: Woolfolk vs. Woolfolk, 30 Ann. 139; and Freret vs. Freret, Ib. 506.

This lengthy and careful examination of adjudicated cases would not have been necessary but for the opinion expressed in the case of Boutté vs. Boutté, 30 Ann. 181, and that of Buddecke vs. Buddecke, 31 Ann. 572, in which a contrary doctrine was announced by the Court. The former is diametrically opposed to the theory announced in Craighead, vs. Hjnes; and the latter is eqi ally opposed to that in Babin vs. Nolan, quoted supra.

The facts in the Boutté case were that Charles and Francois owned in indivisión a valuable property in this city. Charles died, leaving-thirteen children ; and, subsequently, Francois died, leaving a widow and thirteen children — some of the children of each being minors. The latter left a will, and the appointed executor qualified and took possession of his estate.

Nine of the heirs of Charles were the plaintiffs and .the remaining four and the executor of Francois were the defendants in a suit in the Second District Court for the partition of that property. The question of the jurisdiction of the court was not raised by the counsel of either party, but the court, on its own motion, said :

“Here is not a succession to be settled, and property, exclusively its own, to be partitioned among the heirs of that succession. * * *
“ The Second Court had not jurisdiction of the action, just as it is without jurisdiction of an action of partition between two individuals who are majors, and own property in common in their own right.”

The heirs of neither decedent were in possession of the property as proprietors; the succession of one was under administration in the Second Court at the time ; each decedent left minor children, and one a surviving widow, interested in the property which was the subject of adjudication.

The state of facts on which the opinion of the Court in the Buddecke case was predicated are that the matrimonial community existing-between Christian T. Buddecke and his wife was dissolved by the death of the latter, the former and eleven children surviving, three of the latter being minors.

The. deceased left a will which was probated in the Second Court. One of the major heirs of the deceased instituted suit against her father and brothers and sisters, in the Fifth Court, for a partition of the community, and it was ordered to be sold in order to effect a partition. When the title was subsequently tendered to the purchaser, he objected to it on the ground that the court had no jurisdiction to order the partition sale, and he was ruled to accept it. The Court said:

“We are surprised to learn that the decision (in Boutté vs. Boutté) upset opinions of some of the profession on the matter of jurisdiction, upon which their practice had been based.
That decision but followed the old and beaten path. Forty years ago the same rule was expressly laid down by this Court in a case which has been reported,’ in the legal sense of that word, and from the reporter’s statement of the facts, we know the whole history. Henry vs. Krays, 12 La. 214.”

From a critical examination of those two opinions, it will appear that each stands alone, and is unsupported by pertinent authority.

In the former no opinion is cited, and in the latter only that in Henry vs. Krays.

In that case, suit was brought to annul a judgment of the district couit, ordeiing a partition of property of a deceased sister between her surviving brother and sister, both of whom were of full age at the time.

It will appear that one of the determinative factors in that case was the claim made by the plaintiff in the partition suit to one-fourth interest in the property to be partitioned by virtue of a donation, and another was a claim set up hy the defendant therein for a share of the same by virtue of a sale.

On the facts of that case the Court said, in regard to the jurisdiction : “ The Court óf Probates, on the contrary, can exercise no power not expressly given to it by statute, and is, therefore, of limited jurisdiction. By the Code of Practice, the authority of that court ’is exclusive to ordain and regulate partitions of successions, even among persons of lawful age and residing in the State, when they cannot agree upon the partition and the mode of making it. Under this grant of authority, this Court has thought that the Court of Probate might well act upon certain questions arising incidentally in the course of the partition, which would more properly belong to the ordinary jurisdiction, if presented separately, etc.” * * *

But “the authority of the district court to ordain and regulate a partition of property, held in common by other title than hereditary succession, at the suit of the eo-proprietor, can hardly be questioned at this time.”

Instead of these views giving any support to the opinion expressed in the Buddecke case, in our conception, they are precisely in line with prior and subsequent adjudications herein cited by us.

The sole ground on which the Court sustained the jurisdiction of the district court was that as to the pretensions of the plaintiff based on a donation — she was a stranger to. the succession, and not an heir. That was an appeal brought up from the first judicial district, outside of the parish of Orleans, and there was no minor or interdicted 'peison interested in the property partitioned.

While we are at all times desirous of following the decisions of our predecessors, and feel ourselves instructed by their wisdom and learning, yet, in a situation like the present, we feel constrained to adhere to those decisions which were rendered during a regime in which the controversies they acted on were living and vital, and the court whose jurisdiction is questioned, was still in existence.

Indeed, the jurisprudence of that time constituted a rule of property on which titles to real estate were adjusted, and to disturb it now, that the court, on whose order the property was partitioned, had ceased to be, would be straining a legal technicality too far and to no usefu^ purpose.

In a recent case this Court said :

“ A familiar rule is that judicial construction of statutes becomes incorporated in it.” Hawkins & Roberts vs. Beer, 37 Ann. 55.
In Ohio Life Insurance Company vs. Debolt, 16 Howard, 431, Chief Justice Taney, as the organ of the Court, said:
“ And the sound and true rule is, that if the contract, when made, was valid by the law of the State, as then expounded by all the departments of government and admimsteredin its courts of justice, its validity and obligation cannot be impaired by amy subsequent act of the JOegislature of the State or decision of its courts altermg the construction of the law.”

In the Douglass vs. County of Pike, 101 U. S. 677, the late Chief Justice Waite announced the same principle in even more perspicuous language:

“ The true rule is to give a change of judicial construction in respect to a statute the same effect in its operation on contracts and existing contract rights, that would be given to a legislative amendment; that is to say, make it prospective and not retroactive.
“After a statute has been settled by judicial construction, the construction becomes, so far as contract rights acquired under it are concerned, as much a part of the statute as the text itself, and a change in the decision is, to all intents and purposes, the same in effect on contracts as an amendment of the law by means of a legislative enactment.”

In State vs. Thompson, 10 Ann. 122, Mr. Justice Spofford stated the rule in this wise :

Whatever might be our impression, were the matter res integra, we deem it important, in the construction of statutes, to adhere to what has already been adjudged. The judicial interpretation becomes; as it were, a part of the statute, and should not be changed hut for the most cogent reasons.”

We feel constrained to follow the jurisprudence as it was established by this Court, at a time when the Second Court was in existence, and to give a like interpretation to the law defining its jurisdiction.

It is not our purpose, nor do we deem it necessary, to any more specifically overrule the decisions in Boutté vs. Boutté and Buddeeke vs. Buddeeke. We simply decline to follow them because we think they are departures from the established jurisprudence, with reference to the jurisdiction of the Second Court in partition matters, and which jurisprudence constituted and is a rule of property that cannot he altered to the prejudice of titles which were adjusted and settled thereunder.

II.

With respect to the defendant’s second- ground of complaint — the absence from the record of the partition proceedings complained of, of a judgment by default — it is sufficient to say, that it appears, from the record, that the universal legatees of Mrs. Ann Hugh took nothing by the bequest, her succession proving inadequate to meet her debts and special legacies. It further appears that some of the legatees appeared and answered plaintiff’s demands. We cannot regard this objection • as serious. Omnia rita aeta- may well be applied to the action of the judge of the Second Court.

We are of the opinion that thejudge a quo decided correctly.

Judgment affirmed.


author: Bermudez, C. J.

text:
    No. 10,079.
    R. F. Harrison, Receiver, vs. City of New Orleans.
    Under the provisions of Act No. 16 of 18Y5, the city óf New Orleans is required to pay certain officers and members of the Metropolitan police, and has no right to deduct disbursements from the taxes collected for that institution for the pay ment of such parties, for services rendered subsequent to tho law.
    Xhe city of New Orleans is not liable for taxes collected for that force, by defaulting sheriffs, simply because it allowed them privileges for accelerating the payment of such and her own taxes from delinqueuts.
    An expert appointed by a party to make researches deemed necessary for his defense, must he paid by that party.

      APPEAL from the (jivil District Court, Parish of Orleans Tissot, J.

      Bayne, Denegre & Bayne and B. B. Moise for Plaintiff and Appellee.

      W. JET. Bogeys, City Attorney, for Defendant and Appellant.
   The opinion of the Court was delivered by

Bermudez, C. J.

This is a suit for the recovery of the amount of taxes collected by the city of New Orleans under the laws relative to the Board of Metropolitan Police for the years 1874, 1875 and 1876.

The defense admits the levy of the taxes, but avers that the amounts collected have been accounted for.

From a judgment for $24,940 agaist her, the city appeals.

The plaintiff joins in the appeal, asking an increase of the judgment to $40,512.46, with interest.

Two experts were appointed to examine the books of the city, and they made separate reports, agreeing, as far as the figures go, but disagreeing as to the credits which the city claims.

The plaintiff claims that for 1874, the city has collected the sum of..................................."............$539,273 18

and, after allowing a credit of........................... 532,258 01

that he is entitled to the difference....................... $7,015 17

On the other hand, the city claims to be entitled to a credit for payment in excess of receipts, $10,698.00. ,

The aggregate of those differences is $17,713.17.

The city claims to have paid for the sanitary police.....................................$16,402 54

and not to be liable for taxes collected by Sheriff Gautlireaux, which she never received.................................... 1,310 63

$17,713 17 $17,713 17

For 1875, the plaintiff claims that the city has on hand... .$15,591 12

of that sum, the city’s expert concedes........$12,186 95

but the city refuses to be held liable for the difference, the same being for collections of Sheriff Gauthreaux........................ 3,404 17

$15,591 12 $15,591 12

For 1876, the plaintiff charges the city with $17,906 17

The city’s expert concedes.................. .$13,752 55

but the city declines liability for the difference, . which consists of amounts collected: By Sheriff Gauthreaux........................ 3,826 49

Sheriff Waggaman....................... ■ 1,026 13

and that the fund must be charged with fee of expert, to examine the books of the Board.. 300 00

$17,906 17 $17,906 17

Prom this statement, it is apparent that the only questions to be decided are:

1. Is the city entitled to the credit of $16,402.54 claimed to have been paid by her to the sanitary police.

2. Is the city to be held liable for the amounts collected and not paid over by the defaulting sheriffs, $6,163.27.

3. Is the fund chargeable with the fee of the expert appointed by the city to examine the books of the Board, $300.

I.

The bill presented by the city to show payment of the Metropolitan police, runs from August, 1875, to June 22d, 1876, and aggregates $16,402.54.

Under the provisions of Act 16 of 1875, approved March 24 and promulgated April 4 of the same year, it was directed that the officers and members of the Metropolitan police force detailed permanently with the Board of Health and to each of the municipal courts, shall be paid by the city of New Orleans. This meant clearly, shall not be paid out of the Metropolitan police fund, but by the city out of other funds. There is nothing to show that of this amount, any part was expended for any liability anterior to the passage of che law.

II.

The next question is : Whether the city is liable for the amounts collected by the two defaulting sheriffs, and which never came to her hands.

The ground upon which the city is sought to be made responsible, is, that she constituted the sheriffs her agents, to collect by special contract, and that their delinquency is attributable to her.

The authority relied on in support of this position is the ruling in Frank & Co. vs. Chaffe & Sons, 34 Ann. 1203, in which sureties of a sheriff were released from liability, because he had acted as the agent of the litigants, under their consent, to sell some property attached. The Court well held that, in doing, so, he did not act as sheriff, and hence that the sureties could not be held.

The authority has no application to the facts of this case, which are simply that, in order to accelerate the collection of all back taxes, which, it would seem, were not actively prosecuted, for want of means in the city to pay the costs and expenses for so doing, the council passed an ordinance authorizing the sheriff, who had the writs in hand, to proceed as such with the execution of the same, and even to employ counsel and to defray the disbursements and collect the fees from the surplus — i. e., not out of the capital due for taxes. This they did in the line of official collection.

Under such circumstances, clearly the city cannot be held responsible.

III.

As to the item of $300 for the expert employed for the examination of the books of the Board, it does not appear just that it should be charged to the plaintiff’s account. The city is in no better condition, in that respect, than any other defendant. If she liad researches to be made, she must pay those whom she entrusted with the duty. Had the plaintiff failed altogether, a question quite different might have been presented.

The district court allowed the amount reported by the city’s expert, $24,940.40 ; but without the interest, to which plaintiff is entitled.

By disallowing the two items for whicli the city claimed credit, $16,402.54 and $300, the amount of the judgment ought to be increased by $6,004.54.

It is, therefore, ordered and decreed that tlie judgment appealed from be increased to thirty thousand nine hundred and forty-four dollars and ninety-four cents ($30,944.94), with legal interest from judicial demand; and that, so amended, it be affirmed with costs.


author: Poché, J.

text:
    No. 10,179.
    Gustave Schulhoefer vs. City of New Orleans.
    A judgment is a fiat of a court settling the rights of the parties, and however unjust, erroneous or illegal the settlement may be, the parties can only claim under it that which, by its terms, the judgment awards.
    Hence, the holder of a judgment against Che city of New Orleans, which allows him interest from Apiil27,1887, and who seeks to have his judgment funded into bonds under Act G7 of 1884, cannot claim or he allowed bonds hearing interest from June 1,1884. No more interest can he allowed than fixed by the judgment.

      APPEAL from the Civil District Court for the Parish of Orleans. Tissot, J.

      White & Sawnders for Plaintiff and Appellee.

      W. B.. Rog&i'S, B. K. Miller and B. O. Miller for Defendant and Appellants.
   The opinion of the Court was delivered by

Poché, J.

As the holder of certificates of indebtedness of the city of New Orleans for the current expenses of the city in the years 1874 to 1878, aggregating in amount $3005, plaintiff brought suit thereon, and obtained judgment against the city for the full amount, with interest of 5 per cent per annum, from judicial demand, the 27th of April, 1887. That judgment became final on January 24, 1888. In March, 1888, he instituted proceedings to compel the board of liquidation of the city debt of New Orleans to fund his judgment into bonds in accordance with the provisions of Act No. 67 of the Legislature of 1884, said bonds to be equal in amount to the principal of his judgment, and to bear interest of 5 per cent per annum from June the 1st, 1884, as contemplated by that statute.

Prom a judgment in favor of plaintiff and in accordance with that prayer the city appeals, and her contention is that interest should have been made to run only from April 27, 1887, according to ihe very terms of the judgment sought to be funded.

The point is well taken and it must prevail.

Conceding, for the sake of the argument, that there was error in' the judgment of January 24, 1888, iu determining the date at which interest should begin to run, and that to comply with the provisions of Act No. 67 of 1884, the judgment should have allowed interest, as claimed by plaintiff in his first petition, to begin to run from the 1st of June, 1884, the .record shows that the judgment became final on January 24, 1888, and in proceedings looking to its execution the court was powerless to enlarge its scope, or to otherwise amend or alter its effect, which is irrevocably fixed by its own terms. That proposition is self-evident under our laws, flowing from the very essence of all final judgments. A motion for a new trial or an appeal was the only remedy which the law tendered to plaintiff for the correction of the alleged error in the original judgment, and it is too late to attempt such'a remedy on execution.

The question is not new in our jurisprudence, and the rule, already sanctioned by law and reason, finds additional support in authority.

In the matter of the succession of Anderson, 33 Ann. 58J, this court refused to allow interests to a creditor whose judgment was silent on the subject, even though the nature of his claim might have entitled him to interests.

The Court said: A judgment has been defined to he the decision or sentence of the law, pronounced by a court of competent jurisdiction upon the matter contained in the record. * * * * “ It is a fiat of a court settling the rights of the parties, and however unjust, erroneous or illegal the settlement may be, the parties can only claim under itthat which, by the terms, the judgment awards.” * * “If the plaintiff in rule is holder of a judgment which unjustly denús to, and withholds from him, his legal right, it is a misfortune which might have been repaired before that judgment became final, but which is now past remedy.”

The conclusions of the Court rested on and were completely justified by several previous adjudications enforcing similar views. Saul vs. His Creditors, 7 N. S. 437; Cochran vs. Murphy, 4 Ann. 6; Succession of Regan, 12 Ann. 116; see also Villars vs. Faivre, 36 Ann. 398.

In the instant case the special and sole relief sought by plaintiff is the funding of his judgment of January 24,1888 ; by that judgment it was settled that his interest should run only from April 27, 1887, and he cannot now he heard, in his present proceedings, to claim more.

It is therefore ordered that the judgment appealed from be amended so as to fix the 27th of April, 1887, as the date from which interest is to run on the bonds to he issued to plaintiff, and that as thus amended said judgment be affirmed, costs of appeal to be taxed against plaintiff and appellee.