author: Marr, J.

text:
    No. 7081.
    Mrs. Esther Chapman, Executrix, vs. S. O. Nelson et al.
    In a suit to revive a judgment there are but two necessary and proper parties, viz., the judgment creditor or his legal representative and the judgment debtor or his legal representative. Third persons who hold property affected by the legal mortgage resulting from the inscription of the judgment sought to be revived, are not necessary or proper parties to the suit to revive.
    In a suit to revive a judgment against a debtor who has made a surrender in bankruptcy, under the bankrupt law of the United States, the assignee of the bankrupt is not a necessary party, and can not therefore be compelled to appear as a defendant in the suit.
    A suit to revive a final judgment which was rendered by the Third District Court for the parish of Orleans in March, 1867, can not be brought in the Fourth District Court of that parish. The transfer of the suit in which the original judgment was rendered, first to the Seventh, and afterward to the Fourth District Court of said parish, under the acts of the Legislature in 1868 and 1872, did not give to either of those courts jurisdiction of the suit to revive.
    APPEAL from tbe Fourth District Court, parish of Orleans. Houston, J.

      Geo. L. Bright and Barrow & Pope for plaintiff and appellee.

      Armanct Pitot and B. F. Jonas for defendant and appellant.
   The opinion of the court was delivered by

Marr, J.

This suit was brought on the sixteenth of March, 1877, in the Fourth District Court for the parish of Orleans to revive a judgment of the Third District Court of New Orleans against Stephen 0: Nelson, signed on the twenty-ninth of March, 1867.

The petition charges substantially: That by act No. 46, of 1868,' the records of the Third District Court, except appeals from justices, were transferred to the Seventh District Court; that by act No. 2, of 1872, all suits and proceedings then depending in the Seventh District Court were transferred to the Fourth District Court, and among them the suit against Nelson ; that the judgment against Nelson was recorded in the parish of St. Mary on the first of April, 1867, and created a judicial mortgage on all the immovable property belonging to him in that parish, and specially on the lands described in the petition; that this property is now owned by the Citizens’ Bank ; that Nelson, now a nonresident, was adjudicated a bankrupt, and E. E. Norton was-appointed assignee; and that plaintiff desires to have the judgment revived.

The prayer is that Nelson, through a curator ad hoc, the Citizens’' Bank and Norton be cited to answer the petition ; and that contradictorily with them, the judgment be revived.

The bank plead to the jurisdiction without stating the grounds ; it also plead the prescription of two years under the bankrupt law, and of ten years under the State law ; it set up the discharge of Nelson in bankruptcy, as a perpetual bar ; and plead that the property having been sold according to law, could no longer be made subject to the judgment in favor of plaintiff; that therefore the bank could not be made a party to this suit, as owner of the land ; and that this proceeding, if authorized by law, could be maintained only against the assignee.

Norton did not appear, and default was entered against him ; and Nelson answered, pleading his discharge in bar of plaintiff’s claim.

The case was tried on these issues. The district judge held that Nelson, being a discharged bankrupt, could not be cited ; that Norton was the representative of Nelson or of his estate ; and that the bank was his representative, quoad the property described in the petition. He accordingly rendered judgment dismissing the demand as against Nelson, and maintaining it as against the Citizens’ Bank and Norton, the judgment, so'far as it relates to the bank, to have effect only against the property described in the petition, and not to hare effect or be enforced as a personal judgment against the bank ; and, so far as it relates to Norton, to have effect only against the estate in bankruptcy, and against Norton as assignee, and not personally.

The Citizens’ Bank and Mrs. Chapman appealed, the latter complaining of so much of the judgment as dismissed plaintiff’s demand as against Nelson.

The act of 1853, p. 250, re-enacted in the Revised Statutes, sec. 2813, and embodied in the R. C. C. as article 3547, after declaring that all judgments for money shall be prescribed by the lapse of ten years aftei they are rendered, provides, however, “ that any party interested in any judgment may have the same revived at any time before it is prescribed, by having a citation issued according to law, to the defendant or his representative, from the court which rendered the judgment, unless the defendant or his representative show good cause why the judgment should not be revived ; and if such defendant be absent and not represented, the court may appoint a curator ad hoc to represent him in the proceedings, upon which curator ad hoc the citation shall be served.”

This statute evidently contemplates but two parties to the proceeding : the judgment creditor, the plaintiff, or such other person as may be interested in the judgment; and the judgment debtor, the defendant in the original suit. The word “representative” simply means the agent or attorney in fact, if the defendant be living, or the curator or executor, or administrator, or heir, as the case may be, if he be dead ; the person having authority and capacity by the appointment of the defendant, if he be living, or by judicial appointment, or by the effect of the law, if he be dead, to be cited and to stand in judgment in his room and stead. If he be living, absent and not represented, he must be cited through the curator ad hoc appointed by the courtier that purpose.

The judicial mortgage is the effect which the law gives to a final judgment when it has been recorded in the manner prescribed by law. The right to have a judgment revived is merely the means provided by law for keeping the judgment alive, which might otherwise be prescribed, barred, and extinguished by the lapse of time ; and this right is wholly independent of the right of mortgage which results from the inscription of the judgment.

The right to have a judgment revived, and the effect which the revival may have as against third persons, are two very different things. It will be time enough for third persons, that is persons who were not parties to the judgment, to assert their rights, and to controvert the validity and effect of the revival, when the revived judgment is set up and sought to be enforced to their prejudice.

All that is said in the petition about the legal mortgage which plaintiff claims, and all that is said about the rights of the Citizens’ Bank, 'must be left entirely out of view. The naked question is, has the plaintiff the right to have the judgment revived in this proceeding ; and that question is to be determined solely between the plaintiff, the judgment creditor, or his legal representative, and the judgment debtor, the defendant, or his legal representative. The Citizens’ Bank was, in no sense, the representative of the defendant Nelson ; and it was not capable of standing in judgment in his room and stead. The bank should not have been cited ; and it was not legally a party to the suit.

By the surrender in bankruptcy the bankrupt divests himself of the title, ownership, and possession of all that was his not exempt by law; and the legal title vests in the assignee chosen by the creditors, or appointed by the court, to administer the estate in bankruptcy for the benefit of the creditors. The assignee is the representative of the creditors, so far as the estate in bankruptcy is concerned ; but he is not the representative of the bankrupt, for the very good reason that the bankrupt has no rights or interests to be protected or represented. By the surrender he abandons his rights, credits, effects, property, to his creditors ; and the law discharges him from liability for debts contracted prior to the date of the surrender, and provable against his estate in bankruptcy. It is no concern of his what becomes of the property afterwards: he would not be permitted to interfere in any manner with the disposition of it; and the creditors, whose debts are provable in bankruptcy, must and will have their respective rights, claims, and priorities determined and settled in the bankrupt court, without regard to him.

It is not necessary to make the assignee a party to a pending suit, whether brought by the bankrupt or against him. The person against whom the bankrupt may have brought suit could protect himself against a recovery by pleading the bankruptcy, and consequent divestiture of the rights of the bankrupt; and if he should neglect thus to protect himself, a recovery by the bankrupt and payment to him would be no obstacle to the assertion and enforcement of the same right by the assignee. If a suit should be pending or be brought against the bankrupt for a cause of action accruing before the bankruptcy, and provable in bankruptcy, the law affords the bankrupt ample means of protecting himself by pleading the bankruptcy and demanding a stay of proceedings ; and by afterwards pleading and exhibiting his discharge as a complete and perpetual bar.

The bankrupt act enables the assignee to intervene in pending suits, either as plaintiff or defendant, if, in his judgment, it should be necessary for the protection of the rights and interests of the creditors; but he can not bo compelled to assert, in the State courts, any of the rights of the bankrupt which vested in him by the assignment, nor any of the rights of the creditors against the bankrupt or against the estate, since he can compel every person asserting claims against the bankrupt or against the property surrendered to assert and maintain their rights contradictorily with him, in the bankrupt court. See Serra vs. Hoffman, 29 An. 18 to 23, where this subject is fully discussed.

The State courts are powerless to render any judgment against the assignee where he does not voluntarily submit to the jurisdiction, touching the payment of any debt due by the bankrupt, since the law .requires all creditors having claims against the estate to prove them in the bankrupt court.

The assignee is not the representative of the judgment debtor, the defendant, in the sense of the act of 1853 ; and the bankrupt can not be brought into court for any purpose by citing the assignee.

The judgment against Nelson was a debt provable against his estate in bankruptcy ; and we have serious doubts as to the right to give it any new or additional effect by any form of judicial proceeding against the bankrupt, instituted after his discharge. We incline to the opinion that when the judgment debtor is cited to show cause why a judgment rendered against him prior to his bankruptcy, and provable against his estate, should not be revived, he has the right to plead and exhibit his discharge as a complete and perpetual bar to the proceeding.

By the constitution of 1868, art. 83, seven district courts were established for the parish of Orleans. Changes were made in the jurisdiction of the courts ; and that of the Second District Court was restricted to matters of probate, and that of the Third District Court to appeals from justices : and art. 151 required the General Assembly to “provide for the removal of causes now pending in the courts of this State to courts created by or under this constitution.”

The first act on this subject is No. 7, of 1868, p. 7, entitled “ An act to transfer all causes now pending before the courts of the parish of Crleans, under the constitution of 1864, to the courts created by the constitution of 1868.” The first section of this act declares that “ the records, dockets, books, and papers in any of the district courts of the parish of Orleans shall be removed to the several courts,” designated by the corresponding numbers created by the constitution of 1868: “ those in the Third District Court * * * to the Seventh District Court * * * except the records of appeals from justices of the peace, which last mentioned records are hereby transferred to the Third District Court.”

The second section of this act provides that “ the courts to which any suits now pending may be transferred, under this act, shall entertain and exercise jurisdiction over the same, and the cases so transferred shall be proceeded with in the new courts in all respects as if no change had been made.”

The third section requires the “records, dockets, indexes, and all other papers on file in the district courts of the parish of Orleans,” to be delivered to the clerks of the new courts to which they have been removed by the first section; and the original records of suits not finally disposed of in accordance with this act in the Third District Court * * * shall be transferred to the Seventh District Court * * * except the records of appeals from justices.”

This act was amended by act No. 46, same session, p. 54, entitled “ An act to amend an act entitled,” giving the title of act No. 7. This act consists of a siDgle section, and it differs from the first section of the original act only in that it provides that all succession and probate causes " undisposed of and now pending before the district courts of New Orleans shall be removed to the new Second District Court, and that court shall have and maintain jurisdiction over the same to the full extent as though the said case had originally been instituted in said Second District Court.”

Act No. 2 of the called session of 1872, p. 38 of the acts of 1873, abolished the Seventh District Court; and section 8 of this act provided that “all suits and proceedings now depending in said Seventh District Court * * * are hereby transferred to the Fourth District Court -x- * and the said * * court is hereby vested with jurisdiction to hear and determine such suits or proceedings as if the same had been originally brought in said * * * court; and the said suits or proceedings are declared to be pending in said * * court from * * the passage of this act.

“ The records of all suits or proceedings heretofore brought in said Seventh Court, whether determined or not * * * are hereby transferred to said Fourth * * Court; and all proceedings so transferred shall be proceeded with in said Fourth * * Court, and be tried and determined, and process and judgment issued and executed therein by said * - court, in the same manner as if the same had been commenced originally in said * * court.”

Careful attention to the phraseology of acts 7 and 46 of 1868 will show that, with one exception, the word “removed.” is used only with respect to the records, dockets, books, indexes, and papers ; and that where jurisdiction is to be exercised, the word “transferred” is used ; and that this word is used only with respect to suits “ now pending ” in accordance with the limitation in art. 151 of the constitution, and the titles of the two acts. The exception is in the latter part of act No. 46, where the word “removed” is used with respect to “succession and probate causes undisposed of and now pending.” The Legislature kept up the distinction, however, and did not consider the word “removed” as having reference to or as conferring jurisdiction ; because the lan-' guage immediately following that requiring such causes to be “removed” is, that the new court into which they are removed “shall have and maintain jurisdiction over the same, to the full extent as though the said case had originally been instituted in said court.”

It is clear, therefore, that neither by ait. 151 of the constitution, nor by either of the acts 7 and 46 did the Seventh District Court acq.uire jurisdiction with respect to any other than suits then pending in the Third District Court. It became merely tlie custodian of the records, dockets, books, indexes, and papers removed to it; and jurisdiction in all suits pending, not finally disposed of, which were transferred.

The first clause of section 8 of the act of 1872 relates to pending causes; and there might well be pending in the Seventh Court two classes of suits, those which were pending in the Third District Court at the time of the transfer, which had not been disposed of finally by judgment of the Seventh Court, and those which had been brought in the Seventh Court, and had not been tried and determined.

The second clause applies to all suits and proceedings, whether determined or not; but it is limited expressly to suits or proceedings “ heretofore brought in said Seventh District Court.” It is not possible to give this language any construction which would bring within its terms a suit which was finally disposed of by judgment in the Third District Court: which was not pending in the sense of art. 151 of the constitution, nor in tlie sense of acts 7 and 46 of 1868 ; and which never was pending in the Seventh District Court. The Fourth District Court did not acquire any jurisdiction with respect to this suit; and it may be seriously questioned whether it could have enforced that judgment by execution.

In LaChambre vs. Cole, 30 An. 961, we had occasion to consider a similar question. A judgment had been obtained in the district court in a probate proceeding upon the account of a tutor. At the time this judgment was rendered there were no probate courts ; and the district courts exercised all the probate jurisdiction of which they were divested by the constitution of 1868. The owner of that judgment brought suit to revive it in the district court in 1877, when the court could no longer have entertained jurisdiction of the original cause. It was urged that the citation should have been issued from the parish court vested with probate jurisdiction by the constitution of 1868; but we considered the language of the act of 1853 as determinative ; and we decided that “ the court which has jurisdiction of suits for revival of judgments is distinctly pointed out in the act of 1853, which provided for their revival. The citation must issue from and the suit must necessarily be addressed to the ‘court which rendered the judgment.’”

The law has conferred no power on the Fourth District Court to entertain tlie demand of plaintiff; and the whole proceeding in that court was coram non judice and void. We are not required now to decide whether the Third District Court would have had jurisdiction to issue the citation and to revive the judgment; but if it had not there is a casus omissus with respect to the judgments rendered in that court prior to the adoption of the constitution of 1868, which the legislative department of the government alone could have supplied.

The judgment appealed from, except so much of it as dismissed the demand of plaintiff as against the defendant Nelson, is, therefore, annulled, avoided, and reversed ; and it is now ordered, adjudged, and decreed that the demand of plaintiff be rejected, and that her petition and suit be dismissed, she paying the costs in the district court and in this court. •

Rehearing refused.


source: Caselaw Access Project

license: Public Domain

text:
    No. 7347.
    Jas. L. Parmer vs. Jas. G. Mangham et al.
    A debtor may validly convey his immovable property to his creditor, in the form of a sale, in order to secure the creditor, when the value of the property is not in excess of the debt due, reserving to himself the right to redeem within a certain period. The continued possession of the property by the debtor in such a case, does not make the transaction a fraudulent simulation, or necessarily void. In such a transaction the conveyance, although in the form of a sale, does not vest the ownership of the property in the creditor, but may give him a right to be paid by priority out of its proceeds.
    APPEAL from the Seventeenth Judicial District Court, parish of Red River. Pierson, J.

      Jos. H. Pierson for plaintiff and appellee.

      L. B. Watkins for defendants and appellants.
   The opinion of the court was delivered by

Marr, J.

In September, 1873, James G. Mangham, and several others, were indicted and prosecuted for murder, charged to have been committed in 1867. Mangham and three others were arrested, and they gave their note, in solido, for 352000 iu favor of the several attorneys employed to defend them. The prosecution seems to have been without foundation, so far at least, as Mangham was concerned ; and he and his co-defendants were acquitted.

During the trial Mangham was sick ; and the judge permitted him to be kept, under guard, at the house of his friend, Thomas W. Abney, who took care of him, and hospitably entertained him and his guard.

The prosecution caused Mangham great distress, and pecuniary embarrassment; and, in October, 1873, he made a conveyance of his property to his friend Abney. This title was not recorded : Abney made no claim to the property ; and the conveyance was a mere simulation, designed to protect the property against the apprehended pursuit of creditors.

On the 18th of November, 1873, Lisso & Bro., to whom MaDgham was indebted for advances and supplies, brought suit against him,.and caused to be attached bis entire property; and, at the same time, the attorneys, holders of the note for $2000, brought suit, and obtained an attachment, which was levied on the same property.

Mangham considered himself a ruined man. In his distress he called upon his friend Abney for assistance. The first idea was to have the property attached released on bond; but this would have afforded him only temporary relief, as the amount of the two debts exceeded the realizable value of the property. It was finally agreed that Abney & Love, a commercial firm, composed of Thomas W. Abney and LeanderE. Love, should assume and pay the debts, and that Mangham should convey to them the entire property, consisting of a plantation, stock, crop, implements and utensils, and a house and lot in Springville.

This arrangement was under discussion for four or five days. At length the attorneys reduced their claim to $1042, which appears to have been paid in cash, as were the clerk’s and sheriff’s fees, amounting to $90 ; and Lisso & Bro. accepted the notes of Abney & Love, one for $943 75, payable in November, 1874, the other for $443 74, payable in November, 1875. In consequence o£ these payments and assumptions, and of other advances to, and indebtedness of Mangham to Abney & Love, he conveyed to them, by notarial act of November 24,1873, for the stated price of $2690, the entire property attached ; and they gave him a counter letter, stipulating that on payment of this sum, and of all liabilities that Mangham might contract with them, they would reconvey the property to him. After this counter letter had been copied into the letter-book of Abney & Love, these words were added, at the suggestion of Love: “If the above is paid in two years from this date.”

The partnership of Abney & Love was dissolved; and, in June, 1875, Abney sold and conveyed to Mrs. M. E, Love, wife of L. E. Love, his half of all the property and assets of Abney & Love, including the property conveyed to them by Mangham.

In June, 1875, L. E. Love and J. H. Sheen formed a partnership ; and Mrs. Love conveyed to Sheen all the property and effects conveyed to her by Abney. In J une, 1877, the firm of Love & Sheen was dissolved; and Love conveyed to Sheen his entire interest in all the property and assets. Immediately after this Sheen and Julius Lisso formed a partnership, under the style of Lisso & Sheen ; and, by the written articles of partnership, Sheen brought into the new firm all the property and assets of the preceding partnership, including the Mangham plantation.

. At the date of the conveyance to Abney & Love by Mangham they had an account current with him, and they charged the amounts assumed by thein as cash. ■ The balance against Mangham, on the 19th of December, 1873, was $2607 97, and on the 4th of January, 1875, it was $1860 90. Love & Sheen, the successors of Abney & Love, continued the account and dealing with Mangham ; and the balances against him were, 1 March, 1876, $1369 63 ; 11 January, 1877, $1317 78. The balance transferred to their successors, Lisso & Sheen, on the 8th June, 1877, was $1412 06 ; and the account closed 15 November, 1877, with balance in favor of Lisso & Sheen, $1547 41.

On the 1 March, 1876, Love & Sheen sold and conveyed, by notarial act, to Thomas Minter, forty acres of the Mangham land, for $232, payable in two equal installments, represented'by two notes'due 1 January, 1877, and 1878, respectively, secured by mortgage on the property. Mangham negotiated this sale. The notes were drawn to the order of Love & Sheen ; and the mortgage contained the pact de non alienando and was duly recorded.

In February, 1877, Love & Sheen sold and conveyed to James Lee, by notarial act, 200 acres of the Mangham land, for $1200, payable in three equal installments, represented by three promissory notes, to the order o£ Love & Sheen, due, respectively, 1 January, 1878, 1879, 1880, secured by mortgage duly recorded. This sale was also negotiated in part by Mangham, and he was a witness to the notarial title.

In September, 1876, Rawlins & Murrell recovered a judgment against D. EL Hayes and James G-. Mangham, in solido, for $576 76, with interest from 1872 ; and on the 1 March, 1876, they brought suit against Mangham, Abney, Love & Sheen, and Mrs. Love to have set aside, as fraudulent, the conveyance by Mangham to Abney & Love, and to subject the property to the payment of their judgment.

After this suit was brought, and for the purpose of showing possession in Love & Sheen, as Mangham testified, a contract of lease was entered into, by which they let the plantation to Mangham, except the 240 acres sold to Lee and to Minter, and Mangham gave them liis note for the rent, $500, payable November 15, 1877. The lease and note were actually executed after the first of March, but they were antedated first January to prove what was false, that they were anterior to the Rawlins & Murrell suit.

Lisso & Sheen, successors of Love & Sheen, settled the Rawlins & Murrell suit by paying the debt, less about $100. In September, 1877, they delivered the rent note, with the word “settled ” written across the face, to J. A. Mangham, son of J. G. Mangham, on his written assumption of the debt ; and on the fifteenth of November they brought suit against the Manghams, father and son, to recover the $500 for rent. They also obtained a writ of provisional seizure, which was executed at the same time that citation was served on James G. Mangham, November 17, at his domicile.

Mangham took measures promptly to meet this attack. Beginning on the day the process was served, he went about the country in company with his son-in-law James L. Parmer, and obtained from his •creditors transfers of tlieir claims to Parmer. On the twenty-third November Parmer brought suit against him; and on the same day Mangham confessed judgment in his favor for §2-133, with interest.

The suit was based-on a promissory note to the order of Parmer for §876 52, dated January 1, 1877, which is no indication of its real date, bearing eight per cent interest: a claim of Mrs. Parmer for §320 for services rendered to her father, James G. Mangham, as housekeeper and for sewing, cooking, and labor performed, at his instance, from March 1, 1875, probably the date of her marriage to Parmer, to November, 1877 : a note in favor of Sarah A. Mangham, another daughter, for $113 10, transferred to Parmer November 19,1877 ; and sundry other debts, most of them represented by promissory notes, transferred to Parmer, from the seventeenth to twenty-seventh November, inclusive. The proof is that Mangham procured the transfers of most of these debts: that Parmer neither paid nor promised to pay any thing for them ; and that there was, in some instances, a promise by Parmtr or Mangham that the transferrers should have whatever Parmer might realize on them.

Armed with this judgment by confession Parmer brought this suit, on the seventeenth December, 1877, against his father-in-law, Mangham, Abney, Love, Mrs. Love, Lisso & Sheen, to have declared a fraudulent simulation the conveyance to Abney & Love ; and to subject the property to the payment of the judgment. It would have been a cruel assault by Parmer upon the good name and reputation of his wife’s father, and upon the peace and happiness of the entire family, if Mangham himself had not been an active aider and abetter in the whole proceeding, and “ consenting thereto.”

Without attempting a detailed statement of the pleadings and evidence, which are voluminous, we shall continue the narrative form with special reference to the material facts and issues.

It was excepted that the entire conveyance was attacked, and that Lee and Minter, to whom Love & Sheen conveyed 210 acres of the land, were not made parties. There may be some question as to the right of a creditor to attack, for simulation, without making all the persons holding titles under the alleged simulated title parties to the suit. One inevitable consequence of this omission is that the titles of Lee and Minter and their obligations, as makers of promissory notes for the price, and as mortgagors, can not be in any manner impaired by any judgment that may be rendered in the suit.

It was alleged by defendants that the suit of Parmer against Mangham was a fraudulent collusion between Parmer and Mangham. The proof goes far toward establishing this defense, as a review of it will show.

In 1873, Parmer.came to Mangham’s without means or visible property, and was employed by Mangham as a laborer on the farm, his wages being $150 for the. year. It seems he continued in this service in 1874,1875, 1876, at no stipulated wages ; and in 1875 he married Mangham’s daughter. His wages for 1873 were paid ; and he says Mangham agreed to let him have part of the land for his services. In 1877 he seems to have cultivated a portion of the land on his own account. At any rate, there was no attempt to prove any consideration for the note except the wages for his services in 1874, 1875, 1876, which Mangham estimated at $250 a year. This would have been $750 for the three years. The note representing this 'is headed with the figures $876 '52. The sum written in the body of the note is “ eight hundred and fifty-two dollars.” The confession and the judgment are for the amount shown by the figures, not that written in the body of the note.

Before his marriage Parmer lived with Mangham, and after his marriage he and his wife continued to reside with Mangham, all as one family. His wife’s claim for $320 for wages as cook and servant in her father’s family is unusual and extraordinary : and it would require for its support a positive contract.

One of the • transferred notes sued on is in favor of Dr. Davidson for $140, dated November 19, transferred same day. Dz\ Davidson says Mangham, in company with Parmer, came to his house one night, and soon after they were seated, Mangham made known his business. He said : “ Doctor, I am owing you an account which I have not been and am not able to pay ; but I wish to settle it by note.” “I told him very well, and went to get my book in which I kept my accounts. While I was making up the account, before the note was written, Mangham said to me that he wished I would make it out as largo as I could conveniently. I told him I could make it out only as it was on my books, that I would not charge any more nor any less. After I made out the account I drew the note for the amount, and Mangham signed it. After he signed it he told me he wanted me to transfer it to his son-in-law Parmer, that he was about to be defrauded out of his property or something to that effect; and that the note would do him no good unless I transferred it to Parmer. I hesitated for some time before I would do so, because the request was a novel one ; but, after reflecting about it, I considered the debt a worthless or extremely doubtful one ; I complied with his request, and wrote and signed the transfer. There was no consideration for this transfer, and it was made by me to Parmer at the request of Mangham. I did not even expect ever to receive any thing for the account. I had very little if any thing to say to Parmer about the matter. I have no'recollection of any thing that was said by Parmer. Mangham is the one at whose instance the note was given and the transfer indorsed. * * * I remember that he (Mangham) said that he wanted all the debts against him transferred to Parmer, that he would through Parmer in some way secure his homestead, or get his land, or secure it, or some thing to that effect.”

Another of the transferred claims is a note, favor of Kirk, for $155 70 for labor for the year 1877, dated eighteenth November. Kirk says he does not think Mangham owed him any thing but for the wages of 1877, fixed at $125. In the latter part of the year Mangham came to him and said he wanted him to sign a note. He touched the pen, and Mangham made his mark. He is illiterate, can not read or write. What he signed was the transfer, written at the same time as the note. “ Mr. Parmer never said any thing to me about the note when I signed; he has never said any thing to me about it since that time. Mr. Mangham owed me just $125 for work. It has not been paid.” This note is evidently in excess of the amount due Kirk by $30 70.

Another claim is a note in favor of Boze, dated August 17, 1877, for $120 for labor on the farm. Boze says he worked for Mangham just six months ; and when he left he owed Mangham a small account, say $15 to $20. No rate of wages had been agreed upon. In November Mangham sent to ask him to meet him at East Point. When he got there Mangham told him lie wanted to give him a note for his work, “ and that he wanted me to transfer it to his son-in-law Parmer, and that he would do right by me when I came out to see him and have a settlement. At the rate of the real value of my work Mangham owed me at the date of that note only about $70 or $75.

“Parmer was present at the conversation between me and Mr. Mangham at the time the note was given and the transfer written, but had nothing to say to me about it that I remember. Mr. Parmer never paid me anything, nor even promised to pay me any thing for the transfer of the note.”

Parmer says he had a private conversation with Boze, “ away from the presence of any other person, in regard to the transfer ;” and it was then agreed that he was to pay Boze whatever part of it could be realized. “He said nothing to me about the note being for wages that Mangham owed him. I certainly did not know such to be the case.” Now, Parmer lived in Mangham’s house, and worked on the farm from 1873 to 1877 inclusive; and if Boze really worked there on wages in 1877, Parmer must have known it. Besides, the note expresses on its face that it is for labor performed on the farm. If any thing was due Boze, which the testimony makes somewhat doubtful, the note is in excess of the true amount by from $45 to $50; and it is falsely dated August 17, when it was actually made in November. If Mangham and Parmer could thus get up exaggerated claims for the purpose of assailing the title, and defeating the rights of his benefactors and friends, what liberties would they not take with dates and amounts, when arranging Mangham’s indebtedness to the members of his own family for the same purpose, and preparatory to the confession of judgment?

Parmer could not have hoped to succeed in this case without proving that his father-in-law had practiced fraud to the prejudice of his creditors ; and he charges in his petition that the sale to Abney & Love was “ a cover, and fraudulent and fictitious simulation, and was made and entered into to deceive and defraud the creditors of said J. G. Mangham, and to prevent them from exercising their rights over the property of said J. G. Mangham, and likewise for the purpose of defrauding his future creditors.” The proof satisfies us that this suit is the result of a fraudulent collusion between Mangham and Parmer ; that the whole proceeding is violative of public decency, of common honesty, of truth and justice; and that a proper disposition of the case would be to turn the plaintiff out of court on his own showing.

It is manifest that there was no fraud on the part of Abney & Love in taking the conveyance of Mangham’s property by public notarial recorded title; and in giving him the counter letter, stipulating the right of redemption. The consideration was real and meritorious. Mangham’s property was attached for debts which', with costs and interest, would have exceeded the amount for which it could have been sold at a forced sale. There were 640 acres in the plantation ; and Mangham says the land was worth about six dollars an acre. They assisted him in his hour of need and sore distress ; and they intended to hold the title merely as security for their just demands. They did not want the land; and Mangham says, notwithstanding the term of two years granted in the counter letter, that Abney & Love told him he could have ten years within which to redeem.

The form of security taken in this case, was precisely that which Abney & Love were in the habit of taking in other cases where they made advances. There is nothing illegal or immoral in this. Wolf vs. Wolf, 12 An. 529. It is hazardous to the creditor, because of the continued possession of the debtor; but it is not a fraudulent simulation, nor is it necessarily void. If Abney & Love had taken a mortgage instead of a conveyance, upon the same consideration, there could have been no question as to its validity. Practically, what difference can it make to other creditors, whether the security given to a real creditor is in the form of a mortgage or a sale ? In neither case would the secured creditor be allowed to claim the property in absolute ownership ; and, if the value of the property mortgaged or apparently sold is in excess of the debt intended to be secured by it, other creditors can enforce their demands to the extent of the surplus, by judgment, execution, and ■sale.

In Williams vs. schooner St. Stephens, 1 N. S. 418, a vessel was •seized for supplies furnished. Stebbins intervened, and claimed the ■vessel as his property, he having purchased it in New York, where it went after the supplies had been furnished. The district court decreed the vessel to be his property.

The proof was that the vendor, finding himself in want of money, obtained seven hundred dollars from Stebbins, and conveyed the schooner to him as security, under an agreement that it was to be reconveyed to him on payment of the amount. This court held, Judge Martin delivering the opinion, that the contract, though in Eorm a sale, in reality was •a pledge. The judgment of the district court was reversed; anditwas decreed that the schooner be sold, and, after paying Stebbins, that the bal•ance be applied to the debts due the seizing creditors. See also opinion delivered by Judge Porter, refusing a rehearing in this case, 2 N. S. p. 22, in which the court held that the sale was merely a security, and that as such it was valid; and that the apparent vendor was still the owner, and his creditors had still the right to seize, subject to the right of the secured creditor to be paid out of the proceeds.

In Zacharie vs. Buckman a debtor sold his property to one of his •creditors for the purpose of protecting it against other creditors. It •appeared, by a counter letter, that the creditor, Woodman, agreed with • the debtor, Tanner, to reconvey the property on Tanner’s paying him a •certain sum, at a certain date, and delivering up a note of Woodman for the balance of the price. A few days after the note was given up; but the money was not paid. The suit was to annul the sale for fraud and simulation. The j udgment of the district court, which was affirmed, •annulled the sale, but reserved for the heirs of Woodman the amount due, §1200, out of the proceeds of the sale. 10 La. 308.

In Collins vs. Pellerin, 5 An. 99, it was held that a sale of movables, with the right of redemption stipulated in a counter letter, where the vendor remains in possession, is merely a security, and does not vest a title of ownership in the vendee. See to the same effect Wolf vs. Wolf, 12 An. 529.

In Gleises vs. McHatton, 14 An. 560, it was held that where the sale Is absolute, but it was really intended as security, the vendee can not arrest by injunction the seizure and sale of the property ; and that he ■should proceed by way of opposition, to claim a priority on the proceeds.

The books are full of cases in which sales have been declared simulated, and in which creditors have been allowed to seize property conveyed by simulated title, as if no such title had been made; but we know of no case in which a sale has been treated and avoided as an absolute nullity where there was a sufficient consideration ; and the intention of the parties was merely to secure a just debt. Such a sale does not protect the property from seizure and sale, at the suit of creditors ; but it may give the secured creditor a right to be paid by priority out of the proceeds. To set aside a contract on the ground of simulation, it must be not only simulated, but it must also be fraudulent and prejudicial to the complaining creditor.

In one sense a writing or contract which is not, in reality, what it purports to be, is a simulation ; but if the purpose of the contract be lawful, and the consideration be sufficient to support it, though the design be not actually that which its terms import, it is not a fraudulent simulation, nor is it necessarily without legal effect.

The fact that Mangham remained in possession would be a badge of fraud or simulation; but it has no such significance when the real design of the parties is proven to have been, not to vest the ownership, but to secure a just debt. During the years 1875,1876, 1877, Mangham wrote frequently to Love & Sheen ; and whenever he had occasion to refer to the property, or to his relations to it, he called the land “ your land,” and himself "your agent.” If he possessed for them, and as their agent, the apparent contract of sale would have been, in-reality, in the nature of a pledge. His letters go far toward showing such possession and agency ; but he had the courage to testify, as a witness in this case, in behalf of his son-in-law, that these letters were written to suppor-t the original simulation, and to give a show of reality to what was merely fictitious ; and that one of them was antedated, as were the lease and note for the rent, for the same purpose.

Abney & Love adopted a novel mode of defrauding the creditors of Mangham. When his property had been seized, they released it by satisfying and paying the seizing creditors ; and when they took from him a conveyance of the same property for their security, the certificate of ■ the recorder of mortgages shows that it was free of incumbrance. When Rawlins & Murrell attacked the title, not for simulation, but for fraud, Lisso & Sheen paid the debt. The several firms, from Abney & Love down to and including Lisso & Sheen, not only saved the property from forced sale, but extended credit to Mangham for necessary supplies for the cultivation of the plantation, and for the maintenance of his family. We can not declare the contract by which the just demands of these creditors were to be secured simulated and void merely because it was not intended to convey ownership as it purports, but to secure a debt; and we think its legitimate effect is to entitle the secured creditors to bepaid by priority out of the proceeds whenever a sale shall be made at the instance of other creditors. The certificate of the parish recorder shows that this- conveyance was recorded in the book of mortgages, in his office. The real nature of the contract is disclosed by the counter letter; and we see no reason why the mere form should deprive it of the effect which it was designed to have.

If Parmer had actually seized the property under execution, and the issues presented in this case had been made on the injunction or opposition of Lisso & Sheen, we might possibly have ordered a sale, reserving to Lisso & Sheen, out of the proceeds, the amount due them. But Parmer clid not seize the property; and his judgment is so manifestly exaggerated and fraudulent that we should hesitate to recognize it as valid against any other person than Mangham alone. We entertain no doubt of the right of Lisso & Sheen to proceed to enforce the mortgages given by Lee and Minter, if they hold the notes given for the price; and it is clear that they would be bound to credit the amount realized to the balance due by Mangham. On the whole our conclusion is that the plaintiff is not entitled to have the conveyance to Abney & Love declared to be void as a fraudulent simulation ; but that any judgment creditor of Mangham has a right to have the property seized and sold under execution, subject to the right of Lisso & Sheen to be paid the balance actually due them, as it might be established contradictorily, on opposition or otherwise.

The judgment of the district court declared the conveyance to Abney & Love by Mangham unreal, simulated, and without effect, reserving the rights of defendants as creditors of Mangham. This judgment is erroneous.

It is therefore ordered, adjudged, and decreed that the judgment appealed from be annulled, avoided, and reversed; that the suit and demand of plaintiff be rejected, without prejudice to his rights as a creditor of James G. Mangham, whatever they maybe; and without prejudice to the rights of defendants, or any of them, whatever they may be; and that the plaintiff, appellee, pay the costs in both courts.


author: The opinion of the court was delivered by DeBlanc, J. Manning, O. J.

text:
    No. 7380.
    Thomas J. Pirtle vs. Warren Price et al.
    On the trial of a rule to dissolve a sequestration the allegation of the sequestrator, in his affidavit, that the goods sequestered belonged to the succession of which he was curator, will be assumed as true, although it may be without foundation in fact.
    Property purchased with the identical money stolen by the purchaser from a succession belongs to the succession, and may be sequestered in the hands and recovered from the possession of the purchaser by the curator of the succession.

      APPEAL from the Ninth Judicial District Court, parish of Grant. Blackman, J.

      A. Gazabat and B. P. Hunter for plaintiff and. appellant.

      H. L. Baigre and James G. White for defendants and appellees.
   The opinion of the court was delivered by

DeBlanc, J.

In this case, and for the purposes of this trial, we must consider as true the allegations of the petition which we .have before us. What do they disclose ? That — on or about the 17th of July 1878 — one George A. Wilson died in Grant parish at the residence of Warren and William Price. That — when Wilson died — he had, in cash, twenty-nine hundred and eighty dollars, which were secretly and fraudulently taken by William Price, his son Warren, and one Henry Holburn, who — with the very money thus taken — purchased more than one thousand dollars worth of goods, found and sequestered in their possession.

The curator of Wilson’s estate claims those goods as belonging to said estate, and swore that he feared that those parties who — before and up to the death of Wilson — were too poor to pay in cash the bare necessaries of life — would, during the pendency of this suit, conceal, part with or dispose of said goods.

On these allegations he prayed for and obtained an order commanding the sequestration-^-not only of the goods — but also of a crop of growing corn and cotton. The crop was released on bond, and — it is evident — not one of the curator’s allegations authorized its sequestration.

Defendant’s counsel moved to dissolve the sequestration, on the grounds:

1. That the affidavit is defective, vague and uncertain, unfounded in fact and in law.

2. That plaintiff did not swear to the ownership of the sequestered property, or that he has — on the same — a lien, privilege or mortgage.

The sequestration was dissolved and plaintiff has appealed.

The affidavit attached to the petition may be unfounded in fact; but the curator has sworn to every fact which he has alleged, one of which is that the goods belong to the succession of Wilson. The prayer of his petition is not as full as it might have been : it — however—leaves no doubt that he is suing to recover what may be left of the money alleged to have been stolen from the succession, and for the possession of the goods purchased by the suspected thieves and paid for by them with a part of the stolen money.

If — as charged — defendants did steal those funds ; if — with those funds — they paid the price of the goods, have they acquired, as to the goods thus paid for, a title sanctioned by any law, and which can justly be recognized by any court ? Most assuredly not. If that title, which fias passed from the merchants who sold, has not vested'in the thieves who bought, who can have a higher right to the goods, and by whatever name that right may be called, than the despoiled succession ?

Plaintiff’s allegations — we are told — are based upon mere suspicion ? If so, why did defendants close the door, by their motion, against the evidence which might have dispelled that suspicion ? Why did they admit, even for the purposes of the trial of that motion, that — at his death — Wilson had the amount of money claimed against them ; that they took it secretly and fraudulently, and that it was with that money that they purchased the sequestered goods ? It was their right to risk that admission ; but the exercise of that right was and still is — for the purposes of this trial — nothing less than a bold confession that they have committed the crime charged against them.

The chosen depositary and attorney-in-fact are each bound to restore to the depositor and principal, even that which they have unduly received ; and it cannot be that thieves are 'entitled to a favor or privilege which would be denied to confidential agents. That an action lies against them, for the recovery of the money stolen, is indisputable ; but that action would be as barren as insufficient, when — as in this instance —the fruits of the alleged crime appear to be their all, or at least all that can be reached by legal process.

C. C. 2964 (2935) — 2962, (2933) — 3005 (2974).

“L’intérét public et la morale — said Troplong — veulent que l’auteur d’une mauvaise action n’en retire pas de profits qui l’encouragent a mal faire ; et, dans le doute, il vaut toujours mieux próférer l’interpretation la plus défavorable á eelui qui a offense l’honnéteté publique, et la mieux appropriée a sa punition.”

Troplong, du Mandat, p. 409.

When — as remarked by Mr. Story — the profits are made by a violation of duty, it would be obviously unjust to allow the agent (and much more unjust to allow a thief,) to reap the fruits of his own misconduct; and as held by this court — when there has been such an appropriation of the trust property that it can be clearly identified, the change which it has undergone in point of form, should not be permitted to frustrate the pursuit of the principal, and — at his expense — put a profit in the agent’s pocket.

Story on Agency, 207. 4 A. 415.

In New York a majority of the judges of the Court of Appeals held “ that it is an elementary principle in the law of all civilized communities, that no man can be deprived of his property, except by his own voluntary act, or by operation of law; that a wilful wrongdoer acquires no property in the goods of another, either by the wrongful taking or by any change wrought in them by his labor or skill, however great that change may be.”

The same principle is to be found in the Digest of Justinian. “If .anyone shall make wine with my grapes, oil with my olives, or garments with my wool, knowing that they are not his own, he shall be compelled by action to produce the said wine, oil or garments.”

In bis Commentaries; the late Chancellor Kent declared that the English law will not allow a man to give a title to the property of another upon the principle of accession, if he took the other’s property wilfully as a trespasser and that it was settled as early as the time of the Tear Book, that whatever alterations of form any property had undergone, the owner might seize it in its new shape, if he could prove the identity of the original materials.”

Relying on those authorities, the New York court decided, with but two dissenting opinions, that where a quantity of corn was taken from the owner by a wilful trespasser and converted by him into whisky, the whisky belonged to the owner of the corn. It is manifest that any other conclusion would eradicate the ancient and respectable distinction established by the pronouns “ mine” and “ thine.”

3 N. Y. Comstock’s Reports, p. 379.

In “Newton vs. Porter,” the Supreme Court of New York said : “It was the felons who changed the stolen bonds into money, and — as found by the judge — the same money was changed into mortgage and notes.” There is no dispute about the following it and its identity, or of its conversion into the obligations in question. It was no bona fide purchaser that wrought this change; and some of these obligations came into the hands of the defendants, or some of them, with the knowledge of the larceny. The question before the court was, whether the proceeds of this stolen property could be recovered, by plaintiff, of the parties so holding it. The learned judge who found the facts, thought there was no trust, and because there was no trust he dismissed the plaintiff’s bill. This was clearly error. By every principle of natural equity and justice, the defendants were bound to hand over the moneys and obligations which were the conceded avails of the stolen bonds. * * It would be monstrous, indeed, if our law was such that, when the felon is expert enough to place his unrighteous gains in the hands of another, they can not be followed and obtained, and this because the holder can not be regarded as a trustee. * * * We have no such ungracious doctrine incorporated in our jurisprudence. * * * The owner of stolen property, or the avails thereof, clearly traced and proved, can recover it by any proper action, in whose hands soever it may be found ; and no law is to be found that throws around the thief its technical protection.

5th Lansing’s Report, p. 421.

One, whose money has been stolen, and used by the thief to pay the price of property, which is found in the thief’s possession, can — at his option — sue either to recover the money, or the property. As to third parties, he may lose his title, but — under no circumstances — can his title be considered as inferior to the insolent pretension of the rascal by whom he was robbed.

The curator of Wilson’s estate has sued to recover the money and the goods ; and defendants who — by their motion to dissolve on the face of the papers — have tacitly confessed the charge proffered against them, and tacitly admitted that they have no right to the sequestered goods, or to their possession, cannot, legally, control the title of the succession to said goods, and complain with bad grace of the form of the proceeding by which the curator seeks to wrest from them that which — by an inference authorized by their own course — belongs to the presumed victim of their presumed crime.

The facts alleged and sworn to by the curator do disclose a sufficient cause for the issuance of the writ of sequestration, and — as to that cause — the law, by implication, -if not otherwise, is not absolutely silent. Were it silent, this is — manifestly—one of the few instances when an appeal would have to be made to natural law and reason, to baffle and to defeat a criminal and infamous speculation.

Sequestration — it is said — is a harsh, a rigorous remedy, and mere grounds of suspicion — when extremely slight — do not authorize the issuance of the writ. This we admit; büt we do not consider as slight the suspicion which arises from the willing and tacit admission of a party; nor can we consider as rigorous and harsh the only remedy which can effectually be resorted to, by one who has been robbed of his purse, to prevent the thief from disposing — to his prejudice — of the property purchased with stolen money.

Those who find that which has been lost, or that which — during a storm and to save a vessel — is cast into the water, are bound to restore it to the lawful owner. The possession of those who steal from a dead man’s purse is far less respectable than the possession of those who find on a public route or on the bosom of the sea. To the stolen money, or to whatever they may buy with that money, they — themselves—can acquire no title, not even by prescription. C. C. 3424 (3387).

In the interest of defendants themselves, for it may be that they are not guilty ; and-^if they are guilty — in the interest of society and justice, the charge made against them by the curator, must be investigated.

It is — therefore—ordered, adjudged and decreed that the judgment appealed from is annulled, avoided and reversed, and this cause remanded to the lower court to be proceeded with according to the views herein expressed and according to law ; the. costs of the appeal to be paid by defendants.

Dissenting Opinion.

Manning, O. J.

In order to maintain the sequestration in this ease our assent is required to this proposition, based upon the following state of facts, or allegations thereof in the petition — that Wilson died, having in his possession as owner nearly three thousand dollars in U. S. Treasury notes, no portion of which could be found when the inventory was taken — that the defendants lived under the same roof that he did, and under which his store was kept, and previous to his death were so impecunious that they had not wherewithal to buy the necessaries of life — that shortly after his death, they or some of them bought a stock of goods, for which they paid one thousand dollars cash — that the money thus paid is a part of thát which Wilson had at his death — ergo the goods belong to his succession, and Pirtle as its representative is the owner of them, and is authorized to sue out a writ of sequestration in its behalf. I do not think that is true either in law or in fact. In the domain of morals and conscience, it is true that the succession ought to have the goods if they were bought with its money, but the legal question is, is the succession the owner of the stock of goods ?

It cannot fail to be observed that the claim of ownership is based upon an inference, or a series of inferences. As Wilson had this money prior to his death, it is inferred that it was, or ought to have been, among the effects of his succession. As the defendants theretofore had no money, and lived in the house where this money was, and thereafter used money in the purchase of goods, the inference is that they stole the sum with which the purchase was made. As -the money thus used belonged to Wilson, the legal conclusion is drawn that the property acquired by the purchase belongs to Wilson also, and upon his ownership (or that of his succession) is based the right to the writ.

The criminal aspect of the question is entirely outside of, and beyond our present inquiry. I think the statement of the facts, assuming the truth of the plaintiff’s allegations, shews very conclusively that the succession is not the owner of the goods. If we substitute to the inference, that the defendants did steal the money, the assumption of the larceny as a fact, still it would be true that the succession was not owner of the property bought with the stolen money. Suppose the stolen money had been applied to the purchase of a tract of land, instéad of a stock of goods, would the succession have become thereby the owner of the land ? If so, and other persons were claiming it, the succession could recover it of them in a petitory action, and the proof to authorize such recovery would be the title of defendants, explained and altered and supplemented by parol proof that these defendants, in whose name the title is placed, stole the sum which forms its consideration.

Conservatory process, such as this, being a harsh and extraordinary remedy, and obtained ex parte, it has been uniformly held that the party invoking it must adhere rigorously to the requirements of the law. Grounds of suspicion merely will not authorize a resort to it. Stetson v. Leblanc, 6 La. 266. It cannot be extended by implication to cases not included in the enumeration of the causes for which it is allowed. Thus — a party, having sold a stock of goods on a long credit and being holder of some of the sale notes, could not sequester on an allegation that the vendee is selling at auction to protect an indorser of the notes, who was his fraudulent confederate, the other indorsers having failed, and that the vendee was conducting his affairs out of the usual course of business, and his apprehended insolvency may defeat the privilege of the plaintiff as vendor. Barriere v. Leste, 9 Annual, 535.

There was never any ownership or possession of the goods by Wilson or his succession. He owned money which was suspected to have been stolen and used in their purchase, and however much this suspicion, ripening into a proved fact, may entitle his curator to a judgment for the sum stolen, it does not make him the owner. There was no commingling of these goods with those actually owned by Wilson at the time of his death, if he had a stock on hand then. The petition does not allege any commingling of two stocks through the defendants’ fault, and the impossibility of separating them, if indeed that would justify a writ for the whole. The prayer for the writ is solely as to the goods which the defendants bought.

Sequestration can be ordered at the request of one of the parties to a suit when he sues for the possession of movable property, Code Prac. art. 275, but he must shew a prima facie right to that possession, and such right is not shewn in this case.

I think the judgment of the lower court should be affirmed.


author: DeBlanc, J.

text:
    No. 7420.
    Raphael Hebert, Administrator, vs. E. M. Lefevre et al.
    Where an hypothecary action has been instituted against a third possessor of the mortgaged property, a non-resident warrantor, who has been called in warranty by the third possessor, is not entitled to have the cause removed to the Circuit Court of the United States, under the act of Congress of March 2, 1876.
    When it appears that a case arises under the constitution, or a law of the United States, it can be removed to the U. S. Circuit Court when the application to remove is made at the term of the State court at which it could first have been tried, and before the trial thereof.
    The "term, of the State court,” referred to in the act of Congress providing for the removal o£ cases, means the first term the ease wouldbe iriobZe'under thelaws and rules of practice of the State, and not the term at which, under a press of business, it may actually come up for trial.

      APPEAL from the Fifth Judicial District Court, parish of West Baton Rouge. Mb Vea, J.

      Barrow & Bope for plaintiff and appellant.

      Singleton & Browne and JET. M. Favrot for defendant and warrantor, appellees.
   The opinion of the court was delivered by

DeBlanc, J.

In March, 1878, Raphael Hebert, acting as the administrator of the succession of Frangois Bonnemaison, filed — in the Fifth District Court of the State — an action against Emile M. Lefevre, the third possessor of a tract of land alléged to be subject to a judicial mortgage, which resulted from the recording of a judgment obtained by and belonging to said succession.

The object of plaintiff’s action is to compel Lefevre to give up the tract of land referred to, or pay the amount for which it is averred it stands hypothecated.

Lefevre first excepted to, and then answered plaintiff’s demand. On his application, Mrs. Latham — a resident of the State of Yirginia — from whom he acquired the land sought to be subjected to the mortgage— was called in warranty. She appeared, and — on two grounds — asked and obtained, from the State court, an order removing the oause to the Circuit Court of the United States. Those grounds are:

1. That the real controversy, in this suit, is between her — a resident of the State of Yirginia — and the succession of Bonnemaison» opened in Louisiana.

2. That this case arises under, and involves the construction of a law of the United States.

Mrs. Latham’s application is — partly—based on the section of the act of Congress of the 2d of March, 1875, which provides “ that, when in any suit mentioned in this section, there shall be a controversy, which is wholly between citizens of different States, and which can be fully determined as between them, then either one or more of the plaintiffs or defendants, actually interested in such controversy, may remove said suit to the Circuit Court of the United States for the proper district.”

Mrs. Latham’s counsel contend that, as to its merits — this controversy can be loholly determined between her — as a warrantor — and the succession of Bonnemaison, the alleged mortgagee.

The 68th article of the Code of Practice provides that, “if the hypothecated property be neither in the possession of the. debtor nor of his heirs, but in that of a third person, the creditor has his action against that person, in order to compel him either to give up the property, or pay the amount for which it stands hypothecated.”

A call in warranty is a demand incidental to the suit, and must be determined with it. “ If the defondant be cast in the action, the court— when it gives judgment against such defendant, must — at the same time —render a j udgment in favor of the defendant against his warrantor.” The law so provides.

O. P. 362, 363, 385.

It is, then, a mistake to say that, in this suit, Mrs. Latham is the only real defendant. The pretended mortgagee has no action against her to compel her to surrender the property or pay the amount of the mortgage claim. The suit itself is between the succession of Bonnemaison and the third possessor — -the incidental demand between the third possessor, a resident, and his vendor, a. non-resident of the State. If plaintiff’s action be maintained, two judgments must be rendered— one, the first, against Lefevre, acknowledging the existence of plaintiff’s mortgage, and ordering its enforcement; the other, in favor of Lefevre and against the warrantor. No decree enforcing the promised warranty can precede that by the execution of which a purchaser is to be evicted ; and in such a suit as we now have under discussion, the purchaser is always the principal, and never a nominal defendant. Without a notice to, or proceeding against the third possessor, there can be no hypothecary action. He is not merely a necessary party to such a proceeding, he is an indispensable one.

Ante p.

It is manifest that this suit is not wholly between citizens of different States, and that, not only it cannot be fully determined, but — still more — it cannot be determined at all, between exclusively the plaintiff— a succession opened in this State, and the warrantor, a citizen of the State of Virginia.

Considering the nature of the pleadings, the time at, and the manner in which the judgment or judgments is or are to be rendered, this controversy cannot be divided, partly retained and partly tried in one jurisdiction, partly transferred and partly tried in another. The incidental demand and the main action have — by the parties’ course — been irrevocably linked to one another, and the former cannot drag the latter from the State to the Federal jurisdiction — but they can together, and under a proper application, be removed to that jurisdiction.

Does this case arise under the constitution or a law of the United States ?

If it does, were the applications to remove it made — as required by the congressional statute — at the term of the State court at which it could first have been tried, and before the trial thereof ?

I.

According to the averments of the petitions for the removal, what are the facts ?

The land on which plaintiff seeks to enforce the judicial mortgage which secured the claim due to the succession of Bonnemaison, was surrendered by Daniel Hicky to his creditors, sold free from incumbrances, under a decree of the district court of the United States, sitting in bankruptcy, and — at that sale — purchased by Mrs. Latham, a creditor of. Hicky ; and that — subsequently—by another decree of said court — her privilege and lien were recognized as the first recorded against the property thus purchased by her, its price applied to their satisfaction, and all the other incumbrances bearing on said property ordered to be erased and cancelled. A personal notice of the proceedings which resulted in the decrees referred to, was — it is alleged — served on the administrator of the succession of Bonnemaison.

The right of the Federal court to inquire into and ascertain the validity, extent and rank of mortgages and other securities, and — on application of the assignee — to order incumbered property to be sold free from incumbrances — the liens being transferred to the fund in court— is a right which — now—cannot be successfully disputed, and which — in argument — was conceded by plaintiff.

Bump’s Law and Practice of Bankruptcy, 9th edition, p. p. 174, 618. 3d How. 292.

This case — then—does arise under a law of the United States, and the rights set up by Lefevre and Mrs. Latham may be defeated by one construction of that law, ,or sustained by the opposite construction.

II.

This suit was filed in the State court on the 18th of March 1878, the call in warranty on the 15th of April, and the warrantor cited, through her agent, on the 27th of said month. That agent resides at one hundred and twenty miles of the court house from which the citation issued, and the warrantor being entitled to the same delays as the defendant, this cause could not have been tried at the April term of the State court.

C. P. 380, 381, 382, 383, 384, 385.

“ The word term as here used means — according to the construction which it has received in the eighth judicial circuit — the term at which, under the legislation of the State and the rules of practice pursuant thereto, the cause is first triable, i. e. subject to be tried on its merits, not necessarily the term when, owing to press of business or arrearages, it fnay be first reached, in its order, for actual trial. * * * It was— said Mr. Dillon — the obvious purpose of Congress, by the use of the words “before or at the term at which the cause could be fii'st tried, to require the election to be taken at the first term at which — under the law — the cause was triable on its merits.”

Southern Law Review, July 1876, p. 311, 312.

After the call in warranty, the term at which the present case could have first been tried on its merits, was the December term, and it was then that the warrantor and third possessor applied for and obtained its transfer.

The application was made within the delay prescribed by the act of Congress, and the nature of the subject matter of the controversy authorized the removal.

It is — therefore—ordered, adjudged and decreed that the judgment appealed from is affirmed with costs.


author: Spencer, J.

text:
    No. 7428.
    Jules Lacoste vs. Conrad Duvie.
    Where the plaintiff in a sequestration suit has been nonsuited, the surety on the sequestration bond, when sued by the defendant for damages, has a right to introduce evidence to show that the property sequestered did not belong to the defendant.
    APPEAL from the Fifth District Court, parish of Orleans. Rogers J.

      Hornor & Benedict and Francis W. Baker for plaintiff and appellee.

      T. A. Bartlette for defendant and appellant.
   The opinion of the court was delivered by

Spencer, J.

Joaquin Eoses brought suit against Lacoste and bad a distillery, its appurtenances, and some liquors sequestered on the allegation that they belonged to a partnership existing between him and Lacoste. He prayed a settlement of the partnership, and that he be decreed owner of one half its property, rights, credits, etc.

Conrad Duvie was the surety of Eoses on the sequestration bond.

Lacoste’s answer was a denial generally and specially of the alleged partnership. On February 2,1878, there was signed a final judgment dismissing the suit of Eoses as in case of nonsuit. On March 28,1878, Eoses moved for and obtained an order of appeal. Not having been taken within ten days, tjhat appeal is only devolutive, and does not suspend proceedings against Eoses and his surety for damages.

The present suit is brought against Duvie, the surety, alone, for damages resulting from said sequestration, plaintiff alleging that Eoses is impecunious and utterly insolvent, and that nothing can be made out of him on execution.

On the trial the surety offered evidence to show that Lacoste was not the owner of the goods sequestered, and consequently suffered no damages by their seizure. This evidence was rejected on the ground that the question of ownership could not be raised by the surety. We think the court erred. The judgment in this case was one of nonsuit, and does not therefore even prevent Roses from re-asserting Ms ownership of the property. For a stronger reason, it does not preclude his surety, as to whom a final judgment against the principal would be only prima facie evidence of liability. Certainly, if Lacoste was not owner of the property sequestered, he ought not to recover by way of damages the value thereof, as he seeks to do and has done in this case. The evidence should have been received.

It is therefore ordered and decreed that the judgment appealed from is reversed; and it is now ordered that this cause be remanded, to be proceeded with according to law.


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    No. 7318.
    The State vs. John Johnson.
    An objection to the manner o£ drawing a venire can not be sneeesslully made, unless made on the first day oí the week for which the venire was drawn.
    Whether certain interrogatories, objected to as leading and tending to elicit mere opinions instead of facts, should be put to a witness, is a matter that rests in the sound discretion of the court.
    Evidence offered in defense, and not in rebuttal, in a trial for murder, to show that shortly before the homicide another party had publicly threatened to kill the deceased, when neither the party’s name, nor any of the surrounding circumstances of his alleged throat is made to appear, is not admissible.
    A remark by the judge to the prosecuting officer in a criminal proceeding warning the latter to examine the witnesses carefully in order to avoid the taking of bills of exception, can not tend to the prej udice of the accused, and therefore is not a ground for disturbing a verdict.
    APPEAL from the Seventh Judicial District Court, parish of Pointe Coupee. Yoist, J.

      H. N. Ogden, Attorney General, for the State.

      Robert Semple, Charles Parlange, and Charles W. DuRoy for defendant.
   The opinion of the court was delivered by

DeBlanc, J.

Defendant was tried for murder. The first time he was found guilty without capital punishment, and sentenced as the law prescribes. He appealed and we remanded the case, “on the ground that evidence rejected by the lower court might have shown that persons with whom the deceased quarreled a few days previous to the murder had more reasons than the accused for committing the crime. There were no witnesses to the homicide, and the prosecution resting on circumstantial evidence, the rejected proof was as proper as legal.” It was offered in rebuttal, and reason and law commanded its admission.

The second trial took place, defendant was found guilty of manslaughter, and sentenced to twenty years imprisonment at hard labor. He has again appealed, and — to annul the verdict rendered, and reverse the sentence pronounced against him — he urges four different reasons:

1. The entire venire, from which was drawn the jury by whom he was tried, was illegal and void.

2. Leading questions, and questions which tended to elicit opinions and not facts, were propounded to the State witnesses.

3. He was not allowed to prove that deceased had, a short time previous to his death, quarrelled with another party, who had publicly threatened to kill him.

4. A remark from the presiding judge to the district attorney was calculated to prejudice the jury against the prisoner.

I.

The objection to the manner in which the jury had been drawn was not made on the first day of the week for which they had been drawn. It could have been successfully made but on that day. Act of 1877, p.

II.

The questions excepted to as being leading and as tending to elicit mere opinions, are these : The district attorney asked one of the witnesses :

1. Did the deceased — during the 1st, 2d, 3d or 4th visit you paid him, make any declaration, and did he seem to be conscious of his condition ?

2. Did he — from his actions — seem to fear that he was going to die?

3. Did he — at that time — make any voluntary declaration ?

The question propounded to a witness should not suggest but one, a desired answer, nor should it be a riddle. A witness is not a wizard or a sibyl: he must be comprehensively informed of the subject in relation to' which he is to be examined: his attention can properly be directed, by the question, to that particular subject, and — there—left in charge of his memory. Under the too rigid rule invoked by defendant’s counsel, no one could successfully testify in a court of justice, unless he could — on being vaguely interrogated — guess what facts, what dates, what circumstances he is expected to disclose.

’ The rule — as said by Mr. Greenieaf — is to be understood in a reasonable sense ; for if it were not allowed to approach the points at issue by leading questions, the examinations would be most inconveniently protracted. Indeed, when and under what circumstances they may be put, is a matter resting in the sound discretion of the court, and not a matter which can be assigned for error.

Greenieaf on Evidence, vol. 1, Nos. 434, 435, 447.

In answer to the questions excepted to, the witness was not necessarily bound to express an opinion : he could have testified as to his belief, and the facts which induced it. Though one may not always be able to know whether another is going to die, he can almost invariably discover whether the other is himself under that impression. Those who — for even a few months — have stood by the side of a mortally wounded man, can never be deceived as to his hopes and his apprehensions : the light of the hope or shades of the apprehension rest on his brow: they are revealed by an inquiring glance, by the sound of his voice, by an anxious request, by the silent farewell which swells his heart and his lips ; and — as well as the surgeon or the nurse — any one who has seen and heard a wounded man, can testify as to whether he left him under the impression that he was going either to live or to die.

1 L. R. 28.

III.

Defendant offered to prove — not in rebuttal — but as a defence, at least we so presume from the-judge’s ruling, that — -shortly before the homicide — another party had publicly threatened to kill the deceased. Who it was that so threatened, and where that party was when the homicide was perpetrated — -whether on the spot, near to it, in the parish, in the State, on this continent or in this world, we are not informed. The bill of exception does not, in this instance, disclose any fact or circumstance which would have justified the admission of the tendered proof, and it was properly excluded.

IV.

The judge’s remark, to which defendant’s counsel objected, as one calculated to prejudice the jury against the prisoner, was addressed to the district attorney: he warned him to examine the witnesses so as to avoid the taking of any bill of exception, because — he said — this case had already been remanded on the most frivolous technicalities.

From that remark, howsoever incorrect it was, we can draw but one inference: it is that the judge restrained the district attorney in the examination of the witnesses who testified on the trial, and of this the prisoner can not justly complain: that instruction must, necessarily, have been favorable to the defence.

It is — therefore—ordered, adjudged and decreed that the judgment • appealed from is affirmed.


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    No. 5767.
    Mrs. M. Germaine, Tutrix, vs. Frank Mallerich.
    The sale of a deceased husband’s property under executory process will be held invalid when it appears that the appraiser, by whose appraisement the property was sold, was appointed by the widow, and that she was not the agent of her deceased husband, or the legal representative of his succession.
    A purchaser in bad faith is not entitled to have the purchase price tendered to him before the institution of a suit for the recovery of the purchased property.
    The recital of an order of court in a sheriff’s return is not a sufficient proof of the order.
    The employment of an attorney to defend a suit does not authorize him to receive from the sheriff the proceeds of the defendant’s property sold under judgment in that suit.
    A purchaser in bad faith is liable for the fruits and revenues of the property while in his possession.
    The mere fact that a widow appoints an appraiser, in the sale of community property sold under executory process, will not make the sale a valid one as to her half of the property, when it appears that she acted for her husband, of whose death she was ignorant.
    ^PPEAL from the Sixth District Court, parish of Orleans. Saucier, J.

      Mcffloin & Nixon for plaintiff and appellee.

      C. F. Hafft and F. Michinarcl for defendant and appellant.
   The opinion of the court was delivered by

Spencer, J.

Plaintiff as tutrix of the minor children of Prangois 'Germaine, deceased, sues to recover two pieces of property in New Or.-leans, with their revenues. This property was sold and adjudicated to ■defendant on 7th July, 1873, under an execution issued on the judgment of Bruenning vs. said Frangois Germaine, said judgment recognizing a ■mortgage and vendor’s lien thereon.

Plaintiff alleges numerous nullities against the validity of said sale, ■and charges that the defendant was a purchaser in bad faith, and with lull knowledge of the defects of said title, and is therefore liable for .fruits and revenues.

The facts are, that Frangois Germaine, who was a citizen and resident of New Orleans, went on a trip to Costa Rica, where he died on the :2d June, 1873, his wife, the plaintiff, and their children remaining in said city. The sheriff returns that he made the seizure of said property on. ■ 31st May, 1873; that the property was duly appraised by experts appointed by plaintiff and defendant. The proof is, that the defendant’s wife appointed the appraiser by a writing wherein she states that her .husband was absent. This appointment was made on or after 18th • June. She does not sign as his agent, nor is there the slightest evidence .-that she was. Germaine’s succession was not opened till some time in September, and plaintiff qualified as natural tutrix in October, 1873.. We think that upon the state of facts here disclosed the sale to the defendant was illegal and null. It requires no citation of authority to show that a man’s wife, or his widow, for that matter,^ as such, has no-authority to act for him in judicial proceedings. She had no such powers of agency. Hence the question discussed by defendant’s counsel as-to the effect of the unknown death of the principal upon the subsequent, acts of the agent does not arise, and requires no discussion.

It is equally elementary that after the death of a defendant in execution proceedings to sell his property, without making his heirs or legal'i representatives parties, aré illegal.

We therefore hold that the sale to defendant was null and of no effect, and did not divest the succession of Germaine of the property in question.

But defendant’s counsel, in their brief, urge that the plaintiffs should have tendered him the amount he paid on his bid. No such objection or exception is made in defendant’s pleadings. But had it been made, we think that it would have been unavailing, for the reason, as-we shall see hereafter, the defendant was a purchaser in bad faith, and', had by his own confession full knowledge of Germaine’s death before-he accepted the sheriff’s title, on 28th August, 1873. We understand the-rule requiring previous restitution or tender to be an equitable relief granted only to purchasers in good faith. To extend the rule further would be to allow purchasers to take advantage of their own wrong. It is-'purely an equitable rule, and would be abused by allowing wrong-doers-to avail themselves of it as a condition precedent to the undoing of their own illegal acts. C. C. 3453 ; 30 A. 174; 6 A. 585 ; 26 A. 188, 343 ; 24 A. 472 ; 2 A. 543; 6 N. S. 674 ; 3 L. 543.

It is further objected in defendant’s brief, but nowhere in their pleadings, that plaintiffs are estopped from contesting this sale, first,, because the sheriff says in his return that by “ an order of the Second District Court in the matter of the succession of E. Germaine, No. 36,473,” he was directed to hold on to the proceeds of sale. As we have seen, the succession of Germaine was not opened until the middle of' September, 1873, long after this sale, and the number of that succession is shown to be 36,611. Even if it were conceded that the tutrix could ratify the sale in this way (which we think she could not do) the mere-recital of what the sheriff supposed to be such an order is not sufficient-proof of it. Secondly, the sheriff recites in his return that he paid to Braughn & Buck “defendant’s attorneys,” the surplus of the price, to-wit, §35. We have seen that defendant was dead. His attorneys had no mission or power to represent him, therefore, even if they had before his-death. It does not follow that because an attorney is employed to de ./end a suit, that he has authority to receive from the sheriff theproceecls of defendant’s property sold under judgment in that suit

The only remaining question is as to the fruits and revenues. The evidence satisfies us, as it did the judge a quo, that the defendant was a purchaser in bad faith, and therefore liable to pay the fruits and revenues. Had the defendant claimed to compensate this demand by the payment he made, we should have allowed it. But no such defense was made or is now made. He simply asked that Bruenning’s heirs be cited in warranty, and condemned to pay him a reasonable sum for his attor-ney’s fees, and that his rights against them in other respects be reserved to him. The court a qua reserved his rights as prayed for.' He has recourse upon them, or if he has paid the mortgage held by them, perhaps ■he would have his recourse on that, as subrogee.

The judgment is affirmed at the costs of defendant.

On Application bob a Rehearing.

Defendant’s counsel complains that the court has ignored that part •of his argument in which he claims that the sale to him was at least valid to extent of the widow’s half, it being community property. This •argument rests solely and exclusively upon the fact that she, after the husband’s death, appointed an appraiser.

It is elementary that an act done by an heir or surviving wife, in ignorance of the death of the ancestor or husband, and therefore with ■no intent to accept, will not constitute such acceptance.

It is the intent with which the act is done that the law regards chiefly. It is patent on the face of the paper whereby she appointed the appraiser that she had no such knowledge and no such intent. She professes to act for her husband, “who is now absent from the city.”

The counsel also complains bitterly of the decree holding him to be a possessor in bad faith. The district judge, who saw and heard the witnesses, so concluded. An examination and re-examination of the facts and evidence lead us to the same result. It is at all times án unpleasant, and often a distressing duty, which courts are called upon to perform, to decide in the last resort upon the rights of their fellow men. But after a full and conscientious investigation of the facts, it is our •duty to apply the law to them as we find them.

We see no possible ground to doubt the nullity of this sale. We think the weight of evidence discloses in the defendant such knowledge as renders him a possessor in bad faith. Nor do we see that the ultimate effect of our decree is so crushingly disastrous as the counsel pictures. 'In every event, and whether in good or bad faith, his client would •owe the fruits and revenues from and after the 17thNovember, 1873, the date of bringing this suit. The effect of bad faith is to make him liable for four months longer time. If the rents were not worth the sum, claimed, defendant should have rebutted the positive and uncontradicted proof that he was receiving $75 per month. He did not do so, and we must presume he did not because he could not.

We adhere to the views expressed in our former opinion, that restitution as a condition precedent to an action of nullity can be demanded only by purchasers in good faith. But while a purchaser in bad faith can not invoke this equitable rule, he may well set up by way of reconvention a claim that in case he be evicted he have judgment for moneys expended for improvements and taxes, as well as for the amount of the sum paid in satisfaction of the plaintiffs’ debts. If the sale is annulled the judgment debt and mortgage revive, and if defendant has paid them, he is legally subrogated to them.

But we can not render such judgments where there is no pleading or prayer to support them.

Defendant’s only prayer in this regard is that his warrantors be-cited, and condemned to pay him a reasonable attorney’s fee, and that, his rights in other respects be reserved.

The rehearing is refused.


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    No. 7385.
    A. H. Singletary vs. J. R. Singletary, Sheriff, et al.
    The house and grounds situated in the outskirts of an unincorporated town, which belong to a debtor who resides on the premises, and who has a wife and children dependent on him for support, andwhose wife has less than S500 worth of property, are exempt from seizure under the provisions of the homestead law.
    A PEEAL from the Sixth Judicial District Court, parish of Livingston. XX Duncan, J.

      JS. W. & 8. M. Robertson and C. Ireson Bradley for defendant and appellee.

      J. A. Addison and Hornor & Benedict for defendants and appellants.
   The opinion of the court was delivered by

DeBlanc, J.

In April 1873, plaintiff mortgaged in favor of Hugh Allison & Co. three lots of ground situated — one in Clio and two in Port Vincent.

Those lots were seized to satisfy the mortgage, and — of the three— that situated in Clio was sold. The intended sale of the others was enjoined, on the grounds:

1. That the notice required in proceedings via executiva has not been given.

2. That the lots which plaintiff owns in Port Vincent and the buildings thereon compose his homestead and are exempt from seizure.

His injunction was maintained and his creditors appealed.

The evidence shows that the two lots and the buildings thereon are occupied as a residence by plaintiff, his wife and his children, who are dependent upon him for a support: that said property is worth five hundred dollars, and that owned by his wife far less.

Under these circumstances, is plaintiff entitled to the exemption which he claims ?

It is contended that he is not, and why ? Because he occupies a residence which happens to be on the fraction of a plantation laid out in town lots, and because, instead of cultivating a field, he cultivates a garden and an orchard.

The representative of the parish testified, on the trial, that — as yet— Port Vincent is not incorporated.

As held in “Baden vs. Reeves, Executor,” plaintiff’s lots do not belong to the class designated as urban property, and the provisions of the homestead law do apply to his case.

27th A. 226, 227.

It is — therefore—ordered, adjudged and decreed that the judgment appealed from is affirmed with costs.