source: Caselaw Access Project

author: Nicholls, C. J.

license: Public Domain

text:
    No. 11,363.
    Succession of Adam Thomson.
    1. The subscribers to the stock of the Citizens Bank of Louisiana, in subscribing not only subjected their property to mortgage, but incurred uersonal resnonsibility to the amount of the stock.
    2. Proceedings against stockholders in enforcement of calls for contributions by means of executory process are in affirmance of the contract of subscription, and not proceedings of forfeiture, and they are governed by different rules as to their effects.
    3. Any balance left unpaid on defaulted calls after sale of the stock and of the property mortgaged to secure it, made in executory proceedings, remains due by the subscriber, and an action lies to collect it.

      4. The purchaser of the stock and property mortgaged to secure it, sold at a judicial sale made in enforcement of defaulted calls, is not responsible for the balance of the defaulted calls left unpaid after sale of the stock and property mortgaged.
    6. The bank, in purchasing the stock and property mortgaged to secure the same, occupies no worse position than any other purchaser as to the unpaid balance on defaulted calls.

      Monroe, J. PPEAL from the Civil District Court, Parish of Orleans.

      Henry Denis for Citizens Bank, Opponent and Appellant:
    Subscribers to the capital stock of the Citizens Bank are personally liable for the amount subscribed. Charter of the bank and laws amendatory thereof; Angelí and Ames on Corporations, 10th Ed., p. 528; Morawetz Priv. Corp., Yol. 2, See. 56 et seq.; Waterman Corp., Vol. 2, Sec. 175; Cook on Stockholders, Sec. 69 et seq.

    Act No. 100 of 1847 does not limit the terms and number of contributions to be paid by the stockholders of the Citizens Bank as it does for the Consolidated Association of Planters of Louisiana.
    Under the provisions of Act No. 79 of 1880 the Citizens Bank is authorized to compromise with some of its stockholders, and may refuse to compromise with others. Cook on Stockholders, pp. 199-211.
    The subscriptions of stockholders forming the capital stock of a corporation constitute a trust fund for the security of the creditors, and can not be absorbed by the corporation, by purchase or otherwise, to the prejudice of the creditors. The subscribers are liable personally for the balance of their subscriptions after the seizure and sale of their shares of stock. Charter of the bank and laws amendatory thereof; Thompson’s Liability of Stockholders, Sec. 205; 22N.Y. 18; Cook on Stockholders, Secs. 125, 199, 312; 17 Wall. 610; Peyehaud vs. Lane, 24 An. 404; Same vs. Hood, 23 An. 732; Brode vs. Insurance Co., 10 Rob. 440.

      J. O. Ctilmore Attorney for the Executrix, Appellee:
    No action for personal liability for mortgage stock shares lies against owners of real estate subject to Citizens Bank mortgage stock; nor for any deficiency resulting from sales under executory process of said shares and mortgaged property subject to same to pay for calls or contributions levied or to be levied under the bank’s charter. Citizens Bank vs. Miller, 44 An. 200; 45 An. 493; Morawetz on Corporations.
    Where parties have bought property subject to said shares and paid stock loans assumed by them, the property is thereafter held by them as third possessors of mortgage property subject to said shares under See. 24 of the charter of the bank. Ib.

    Where the bank has bought at sale under its foreclosure and executory process the said shares and mortgaged property, the owner is relieved from all liability by the forfeiture and sale of his shares for any deficiency of proceeds of sale to pay calls. Beach on Private Corporations; Morawetz on Corps.; Macauley vs. Robinson, 18 An. 619.
    The Citizens Bank of Louisiana has no action for personal liability for calls for said shares of stock against the original subscribers and consequently none against parties who have bought property subject to its mortgage stock shares for calls while in their possession. Its only remedy to liquidate stock mortgages for calls or contributions under Act 45 of March 11, 1873, is by executory process under the provisions of the said act, and its charter, or by compromise under Act 79 of 1880.
    Hope & Co.’s agreement embodying the act of April 9,1880 (Record, pp. 69-71), accepted the condition of things at the time it was made without reservation or distinction as to mortgage stockholders. Morawetz on Corporations, Vol. 2, Sec. 829, p. 800.
    The agent of the bondholders can not refuse to accede to a compromise and enforce the foreclosure sale of the property subject to the shares to be assumed by the purchaser when the said shares are no longer of value, and after the said act and the funding of the bonds in the case of Hope & Co. Selling the property of the estate in this case on conditions of calls extending into the future, after offers of compromise and surrender of the property, closed the door to all competition at the sale, and was an injudicious and oppressive exercise of authority. Bank vs. Heirs of Jorda, 45 An. 188, No. 2.
    A claim for calls or alleged deficiency to pay calls in such a case comes within the ruling of the court in the cases of Planters’ Consolidated Association vs. Lord, 35 An. 425.

      Oarleton Hunt and W. B. Summerville submitted on Application for a Rehearing:
    When the representative of a succession files an account, he is the plaintiff, and an opposition is in the nature of an answer. No further pleadings are necessary or allowable. Succession of Romero, 28 An. 607; Succession of Planchet, 29 An. 521; Succession of Dugart, 30 An. 270; Succession of Mercier, 42 An. 1138.

      The State of Louisiana having been discharged from all obligations on its bonds issued in favor of the Citizens Bank by the judgment in the Hope case, it follows that the contributions levied upon stockholders of the Citizens Bank, under Act 45 of 1873, for the purpose of paying interest on said bonds, must fail and be without effect.
    Act No. 100 of 1847 contains a contract between the State of Louisiana and the stockholders of the Citizens Bank, whereby, on the payment of the contributions provided for in that act, all liabilities of the stockholders of the bank on their subscriptions for stock are discharged. Co isolidated Association of Planters of Louisiana vs. Lord, 35 An. 425.
    The charter of the bank as amended by Act 45 of 1873, if it be really amended by said act, gives to the bank the right to enforce collections of contributions therein provided for, by executory process alone, and the bank can not legally exercise any other remedy than that the statute allows.
    The obligation assumed by the subscribers to stock of the Citizens Bank is a real, and not a personal obligation. Bermudez vs. Union Bank, 7 An. 65; Citizens Bank vs. Levee Steam Cotton Press Company, 7 An. 287; Haynes vs. Harbour, 14 An. 238; Bangor House vs. Hinckley, 3 Fairfield (Conn.) 387; Bangor Bridge Company vs. McMahan, 1 Fairfield, 479; New Bedford and Bridge-water vs. Adams, 8 Mass. 141; the Charter of the Bank of 1833, Secs. 27, 28, 24, 3, 4, etc.; Amended Charter of Citizens Bank of 1836, Secs. 3, etc.
   The opinion of the court was delivered <by

Nicholls, C. J.

This is an appeal from a judgment of the Civil District Court for the parish of Orleans, dismissing an opposition filed by the Citizens Bank to the account of the testamentary executrix of Adam Thomson, and homologating said account and authorizing and directing the distribution of the funds of the succession in accordance therewith.

The petition of opposition avers that Thomson was at his death, and had been for many years before, a stockholder of the bank, holding and owning eight hundred .and fifty-four shares of the capital stock of one hundred dollars each; that the bank had made calls for contributions of seven hundred and eight dollars upon his shares each year from 1881 to 1890, inclusively, which he neglected and refused to pay, said calls or contributions bearing by law interest at the rate of eight per cent, per annum from the 1st of December of each and every year.

That the aggregate of said contributions amounted to the sum of seventeen thousand and eighty dollars.

That Thomson was entitled to a credit'on June 13, 1891, of eight thousand and forty dollars, the same being the proceeds of sale by executory process of the property mortgaged to secure the stock.

That Thomson’s succession is still in debt to the bank in the sum of nine thousand and forty dollars, with eight per cent, per annum interest from the 1st of December of each year, from 1881, upon the said ten annual calls or contributions of seventeen hundred and eighty dollars.

The bank prayed for judgment accordingly, and that its claim be placed upon the account with interest, reserving the right of the bank to any future claims that it may have for the balance which will hereafter be due for contributions on the eight hundred and fifty-four shares of stock.

The executrix excepted to the demand and opposition on grounds not necessary to be here specially enumerated, as they were renewed in the answer afterward filed. The exceptions were permitted to be filed and argued as such, on the trial of the merits of the opposition.

The grounds of defence of the executrix are substantially:

1. That the subscribers to the cap'.tal of the bank have contracted no personal obligation to pay the amount subscribed for, and they have only bound their property by mortgage.

2. That the ruling of the Supreme Court in the case of the Consolidated Association of the Planters of Louisiana vs. Lord, 35 An. 425, applies to this case, and shows that the subscribers of the Citizens Bank are equally exonerated.

3. That the bank has no light to compromise with some of its mortgage stockholders, and not with others.

4. That the right of the bank to claim the contributions already due by a stockholder is lost when she has caused the shares of such stockholder to be seized and sold, and has bought them in.

On the trial of the opposition the bank waived the reservation it had made in its petition of opposition to the right to demand future contributions from the succession, admitting “ that it made no claim for any contributions that have been raised or would be raised after the stock of Adam Thomson had been seized and caused to be sold by the sheriff at the instance of the bank in its suit.”

The District Oourt rendered judgment dismissing the opposition of the bank at its costs, and approving and homologating the account filed and ordering the funds to be distributed accordingly.

The bank appealed.

Plaintiff’s contention that in subscribing to the Citizens Bank stock the subscribers merely subjected their property to mortgage and incurred no personal liability is not well founded. In Cuculu vs. The Union Insurance Co., 2 Rob. 577, this court said:

A person who with others signs an agreement or promise to take stock in an incorporated company thereby promises to pay the corporation the sum necessary to cover every share set opposite his name, and an action will lie to recover it. This point has been repeatedly decided both in England and the United States, and rests upon the plainest principles of law and justice. * * * It is not to be permitted to any number of individuals to get up incorporated companies for insurance, banking or other operations, and, after enabling them to get into debt, to throw the loss upon the creditors by refusing to pay their stock or forfeiting it, or dissolving the corporation and releasing themselves by non-user.”

Cook says (Sec. 71) : “A subscription for shares implies a promise to pay for them, and this promise sustains an action to collect;” and he adds (Sec. 72): “This rule prevails in regard to subscriptions taken before incorporation as well as after incorporation.” There is no question in this case of any implied promise; the promise is absolute and express and the right of action to collect by personal action unquestionable.

We see nothing to take this particular subscription out of the general rule, and the evidence in the record establishes that Adam Thomson, when he purchased the shares of stock referred to herein and the property mortgaged to secure the same, assumed all the obligations of a shareholder in the bank. His personal obligation as resulting from his purchases from the Bishops is equally clear. We do not understand the executrix to question the amount of the calls, the necessity for the same, or the regularity of the proceedings taken to enforce them. On the contrary, she sets up those proceedings and the sale made under them as a defence, claiming that by reason thereof the succession of Thomson has been released from all liability.

She invokes in favor of this position the doctrine laid down in Cook, Secs. 127 and 128, that “forfeiture of stock relieves the shareholder whose shares are forfeited from liability to corporate creditors,” claiming that the seizure and sale of the stock and the property mortgaged to secure it in enforcement of the demand for calls operated a forfeiture of the stock, and that the corporation by becoming the purchaser of the stock and the property mortgage had assumed and rendered itself liable for all the obligations resulting from the subscription, thereby releasing the succession of Thomson.

In referring to the various remedies of which a corporation can avail itself against its non-paying stockholder, Cook (Sec. 121) says: “ When a subscriber fails or refuses to pay for the shares of stock for which he has subscribed, the corporation generally has several methods of enforcing the contract. First, there is the common law action to collect the subscription as a debt. This remedy always exists except in a few States, where it is available only when the subscription itself or the charter creates a liability to pay; second, the corporation may sue on the subscription, obtain judgment and then proceed to sell the stock under an execution levied to collect the judgment; third, the corporation may bring an action at law for breach of contract, the measure of damages being the difference between the value of the stock at the price which the subscriber was to pay and the market value at the date of the refusal to pay. A fourth and very important remedy is that of forfeiture. It is effected in one of two ways: the forfeiture maybe by a strict foreclosure of the stockholder’s stock — that is, by the taking of .his stock by the corporation itself, or it may be by a public sale of the stock for non-payment of the subscription.”

After a discussion of these various remedies and their effect, the author proceeds to say: “ There is a class of cases where it is held that a forreiture of shares of stock is like the foreclosure of a mortgage, and that just as a mortgage may have judgment against the mortgagor for a deficiency, so may a corporation have its action of assumpsit against a subscriber whose stock having been forfeited has failed to sell for enough to pay his entire indebtedness to the corporation on the subscription. This rule is held to apply equally to original subscribers or their transferees, and any stockholder is liable under this rule for the balance due upon assessments after deducting the amount realized at the forfeiture sale.”

We are of the opinion that the Citizens Bank having made legal calls upon the succession of Thomson which were not responded to, the judicial proceedings taken by the bank were by way of direct enforcement of the contract and not by way of forfeiture. And, therefore, the rules relative to forfeitures are not applicable to this case. '

We are next to inquire what was the effect from other standpoints upon the rights and obligations of parties of the adjudication made to the bank. The matured unpaid calls due by the. succession at the time of the adjudication amounted to seventeen thousand and eighty dollars. The stock with the property mortgaged sold together for eight thousand and forty dollars, so that after exhaustion of the mortgaged property there remained a deficit upon the defaulted calls of nine thousand and forty dollars. Would a third party purchasing the stock and property at this sale have been responsible by reason of thus becoming owner of the stock for this deficiency upon the calls? We think not. In cases of transfer by conventional sale Cook declares that the transferror is liable' for calls payable before the transfer is made, and in some cases for calls made before, but payable after the transfer, and he cites in support of this position, among others, a Louisiana ease, that of the Vicksburg, etc., R. R. Co. vs. McKean, 14 An. 724 (see Cook, Secs. 255 and 258 and notes). To the same effect in Sec. 418 he says: “ The transferror is bound to pay all calls made before the transferee purchases.”

The purchaser at a judicial sale occupies no worse position, and in our opinion matters are not varied by the corporation itself becoming the purchaser. The situation is that to which reference is made in the citation from Cook, Sec. 126. The adjudication left the stockholder responsible for the balance upon the matured assessments or calls after deducting the amount realized from the sale. The bank •claims nothing more than this.

The decisions in the matter of the Consolidated Association of the Planters of Louisiana rested upon the special facts connected with the affairs of that association. As it is entirely separate and distinct from the Citizens Bank the plea of res judicata has no force.

The executrix urges that it would be against good conscience to permit the bank to recover in this case, as though it has made numerous compromises of indebtedness with other stockholders it has declined to compromise with the succession she represents. She not only made no defence against the propriety and legality of the calls when made and the proceedings in their enforcement, but she sets up in this suit, as we have said, the proceedings heretofore taken as having released the succession from all liability. Questions as to the calls are not properly before us. All that we are called on to say is whether defaulted calls having been enforced resulting in a purchase by the corporation of the stock and mortgaged property, but leaving a balance due upon the stock, the succession is legally responsible for that balance. If it is, then the bank has the right to a judgment in the premises. Whether the compromises referred to have or have not resulted or will result in unjust discrimination among stockholders is a matter which we would be unable to dispose of from the record even if the issue were properly before us. A thorough knowledge of the entire situation of the bank and the accounts of all the stockholders would be necessary to reach correct conclusions. It is quite possible that the most liberal concessions made to other parties have resulted in larger actual pro rata payments from them on their stock than have been or ever will be made by the succession of Thomson. If the succession should suffer injury the remedy is not that sought to be applied here.

Referring to enforced payments upon stock Cook, Sec. 211, says: “ Corporate creditors compelling stockholders to pay their subscriptions are under no obligation to see that the payments made by the subscribers are proportionately equal. A court of chancery will compel subscribers to pay in full the amount of their unpaid sub - scription if the corporate indebtedness make it necessary, leaving them to seek contribution from the other shareholders. The rule, moreover, is well settled that a shareholder who has been compelled to pay more than his proportion of the debts may maintain his action against his co-stockholders for contribution.”

In Haynes, Liquidator, vs. Kent, 8 An. 132, which was an action to enforce calls made against a stockholder this court said: “The defendant stands as any other partner in a joint stock company and is bound to pay, when regularly called upon, the share of the capital which he agreed to pay. He is in no sense a joint debtor of the corporation. His obligation, on the contrary, is several and entirely unconnected with those of the other stockholders. He owes the amount of his subscription whether they pay or not, and nothing beyond that amount can be claimed of him under any circumstances.”

Whilst we refer to these authorities we are not called on, as we have said, to express — nor could we from the data in the record — any opinion as to whether the succession has been discriminated against or not, and if so what its precise course should be.

After consideration of the different grounds of defence set up, we have reached the conclusion that they are not well founded.

For the reasons herein assigned, it is hereby ordered, adjudged and decreed that the judgment appealed from be and the same is hereby annulled, avoided and reversed, and it is now ordered, adjudged and decreed that there be judgment in favor of the Citizens Bank of Louisiana, against the succession of Adam Thomson, for the sum of seventeen thousand and eighty dollars, being the aggregate amount in principal of the calls made each year from 1881 to 1890, both inclusive, under the charter of the said bank and the laws relative thereto, upon the shares of stock in said bank owned by Adam Thomson, with interest at eight per cent, per annum on each annual call from the 1st of December of the year each call was made until paid, subject to a credit on the 13th day of June, 1891, of eight thousand and forty dollars, the same being the proceeds of sale by executory process of the shares of stock and property mortgaged to secure the same, and that this judgment be placed upon the account of the executrix. It is further ordered that the succession of Adam Thomson pay the costs in both courts.

Miller, J., recused.

Rehearing refused.


author: Watkins, J.

text:
    No. 11,459.
    Mrs. M. L. McNeely vs. James H. Hyde. M. Ryan and T. J. Hickman et al., Warrantors.
    Matters once determined by a court of competent jurisdiction, if the judgment has become final, can never be called in question by the parties or third persons. It matters not under what form the question be presented, whenever the same question recurs between the same parties the plea of res adjudieata estops.
    APPEAL from the Fourth Judicial District Oourt, Parish of Grant. Ware, J.

      W. G. Roberts Attorney for Plaintiff and Appellee:
    ON MOTION TO DISMISS APPEAL.
    Unless the allegations of the petition show affirmatively that the amount in dispute exceeds two thousand dollars the appeal will be dismissed. 39 An. 113, Hite vs. Hinsel; 35 An. 311.
    When the allegations of neither party show that the amount in dispute exceeds the lower limit of the appellate jurisdiction the appeal will be dismissed ex proprio motu. 35 An. 496.
    ON PLEA OP RES JUDICATA.
    The title to property having been once passed upon is res judicata between the parties to the suit and their privies. 22 An. 81, M. A. Leatts vs. Heirs of Williams; 30 An. 838, Compton vs. Sanford.
    The plea of res judicata prevails as to all parties and their privies in the suit where the judgment was rendered, notwithstanding there may have been other parties to the suit. 30 An. 576, Ledieux vs. Barton.
    A vendee acquires no better rights than his vendor had. 10 An. 570, Dusson vs. Beller; 1 Rob. 87, Oliver vs. Stephens.
    Matters once determined between parties and privies can never be passed upon between them again. 43 An. 941, Broussard vs. Broussard; 34 An. 805.
    The verdict of a jury in a civil case has the force of the thing adjudged on the issue passed upon. 38 An. 570; 19 La. 318.
    This plea is to be determined by the issues raised by the pleadings and the judgment rendered. 35 An. 554; 17 La. 92; 7 N. S. 430.
    The plea of res judicata may be presented in any form of pleading, and whenever the same question recurs between the same parties or their privies it estops. 44 An. 289; 35 An. 553.
    PRESCRIPTION OE THIRTY YEARS.
    A title acquired at a sheriff’s sale prevails until set aside by a direct action. 41 An. 1135; 24 An. 445.
    Prescription based on title is coextensive with limits of title. R. C. C., Arts. 3498, 3437; 11 An. 471; 1 Rob. 159.
    Possession once commenced continues by intention. 9 An. 155; R. C. 0., Arts. 3442, 3443, 3444.

      ' A possessor who proves that he has formerly been in possession shall be presumed to have been in possession in the intermediate time. 24 An. 453; 16 La. 10.
    Possession of cleared land is possession of woodland adjoining on the tract. 37 An. 751.
    A confirmation by Congress of a Spanish grant is a prescriptible title. 40 An. 710; 5 An. 647.
    ON CONFIRMATION OF SPANISH GRANT.
    Lands which passed into private ownership previous to the treaty of cession between the two governments are not subject to control of tlfe United States. 40 An. 710; 15 An. 673; 5 An. 647.
    One having no title to the lands when confirmed can not contest the confirmation. It is conclusive. , 14 An. 98.
    Possession under a requete conferred title in a Spanish subject, a fortiori would possession under an order of survey. 3 An. 59.
    A confirmation dates back to the time claimant filed his claim, and is not defeated by an entry of the United States government, even before the confirmation. 9 An. 157.
    A government map returned by the surveyor general without notice of private claim does not defeat the rights of the confirmee. 9 An. 102-3.
    A confirmation by Congress for a certain number of acres on a particular stream, founded upon an order of survey, is a complete title. 4 An. 482, Pay vs. Chambers.
    A survey by the government is not necessary to complete a title to a confirmation, unless the claim is confirmed as a floating claim. 9 An. 103.
    Parol evidence is admissible to prove contents of deed when the original is shown to be lost or destroyed.
    The recitals of an authentic act estop the parties thereto. 28 An. 107; 15 An. 684.

      Robt. P. Hunter Attorney for Defendant and Appellant:
    Where United States patents are issued for land prior to the definite location and survey of a Spanish grant, the patents are the superior title and must prevail. 11 La. Rep. 323, 587; 3 Rob. 293; 6 Rob. 139; 96U.S.530; 2 Wallace, 525; 7An.546; llAn.561; Act of Congress to same effect.

      Parol evidence will not be received to prove title, unless the loss of the original and the non-existence of a copy is first shown. 39 An. 94; 45 An. 451.
    By offering titles and asking a judicial investigation of them, the plea of res adjudicata, based on a part of the same titles, is waived and renounced. The offerings and the plea are inconsistent and can not stand together.
    In a petitory action it is sufficient to defeat the action for the defendant to show a valid outstanding title in any one but plaintiff.
    To support the plea of res adjudicata it must be shown that the two suits are between the same parties, in the same capacities; that the cause of action is the same, and that the thing adjudged is the same. All doubts are to be construed against the plea. 43 An. 216.
    Where, in sales and • mortgages, the property sold and mortgaged is described so vaguely and indefinitely that it is impossible to locate the land by the description given, such sales and mortgages are null and void for want of description of the property.
    A Spanish grant described as “ a tract of land of twenty arpents front by forty arpents in depth, equal to six hundred and seventy American acres, situate on the Rigolet du Bon Dieu, in the parish of Natchitoches,” could not be validly sold or mortgaged by this description, prior to its definite survey and location. Particularly where it is shown that the Rigolet du Bor^ieu in Natchitoches parish was then sixty or seventy miles in length.

      Jno. O. Ryan Attorney for M. Ryan, Warrantor, Appellant:
    The plea of res adjudicata is stricti juris, and must be established beyond question, and all doubts enure to the benefit of the party against whom it is pleaded. 43 An. 214.

      R. J. Bowman Attorney for Hickman, Warrantor, Appellant:
    The mere confirmation of a claim without location is not good against land sold by the United States and patented. 18 Howard, 473; 11 La. 587; 11 An. 561; 7 An. 546.
    A judgment of the Supreme Court is often the reverse of the judgment of the District Court, and therefore the pleading of a judgment of the Supreme Court as res judicata is not pleading the judgment of the District Court.
    Evidence is not admissible to prove what is not alleged, nor will the judgment of the District Court, as evidence, sustain the pleadings of res judicata of the Supreme Court.
    A record made up of extracts from a record in the Supreme Court is a mutilated record and not admissible in evidence.
    The defendants in Hickman vs. T. J. Wells et al. are not legally the same as the plaintiff in this suit. She does not allege or prove that she derived the title she sets up from or through them.
    On the contrary, the title by which she alleges herself to be owner is antagonistic to and inconsistent with the title adjudged to the defendants in the suit of Hickman.
    A judgment sustaining a title can not be invoked as res judicata to sustain a title to which it is antagonistic and destructive.
    The identity of the land in controversy with the land adjudged to T. J. Wells, Hughes and Bailey in the suit of Hickman is not shown.
    In questions of res judicata every doubt is construed against the plea. Toul. 10, Sec. 157; 43 An. 216.
    A possessor in good faith, if evicted, owes rent only from the time the thing is claimed by the owner. C. O. 3416.
    A possessory action is not a claim of the thing by the owner.

      A fortiori, a possessory action in which the plaintiff fails does not make the possessor in good faith a possessor in bad faith or responsible for rent until the thing is claimed in a petitory action by the owner.
   On Motion to Dismiss Appeal.

The opinion of the court was delivered by

Watkins, J.

Plaintiff and appellee jshows to the court that the amount in dispute is below the lower limit of its jurisdiction, and for that reason the appeal should be dismissed.

The demand of the petition — and the prayer is to a like effect — is for the recovery of a tract of land valued at twelve hundred dollars, for the value of timber cut and removed, two hundred dollars, and for the rental value of the cleared land at the rate of two hundred and fifty dollars per annum, from 1889 to the date suit was instituted, August 18, 1892.

A simple calculation shows that the amount in dispute is something-over two thousand dollars and consequently this court has appellate jurisdiction.

The motion is, therefore, overruled.

On the Merits.

The plaintiff claims to have inherited the property in controversy, in common with her brothers and sisters, from her father, Littleton Bailey, who died in 1861, and from her mother, Frances J. Bailey, who [died in 1867, and that she subsequently inherited the interests of her brothers and sisters, all of whom have since died without issue.

To the title she claims by inheritance, she adds that she has acquired by the prescription of thirty years; and in this court she sets up the prescription acquirendi causa of ten years, as possessor in good faith.

She claims to have thus acquired title to a tract of land on the left bank of Red river descending, having a front on said river of twenty arpents, by a depth of forty arpents, which tract of land is known as the Juan de Leon Spanish grant, containing six hundred and eightythrée and 44-100 American acres, and embracing Spanish sections 37 and 38, in township 6 north, of range 4 west; Spanish section 37, in township 6 north, of range 3 west; Spanish sections 45 and 46,_ in township 7 north of range 4 west, and Spanish sections 37 and 39 and 40, in township 7 north, of range 3 west, as per survey made by George S. Walmsby, Deputy United States Surveyor, in 1847 and and 1848, said property being known as Rock Island plantation.

Petitioner represents that the claim of title by which her said parents became the owners of said land is as follows, to-wit: That said land was granted to Juan de Leon, by virtue of an order of survey given by Governor Miro, Spanish Governor at New Orleans, on the 8th of August, 1790, same then being situated in the parish of Natchitoches, as will appear by reference to a certified copy of the report of D. T. Sutton, Register of the Land Office for the district in Louisiana north of Red river, made on 6th of January, 1821, pursuant to an act of Congress of date May 11, 1820; which Spanish grant was, on the 28th day of February, 1823, confirmed as a valid Spanish grant, as against any claim on the part of the United States government, and the title of the said Juan de Leon thereto recognized to be good and valid. -

Petitioner further represents that under the treaty by which the United States acquired the territory of Louisiana, tracts of land previously granted to a Spanish subject were permitted to remain the property of such subject, and such Spanish grants were afterward confirmed by an act of Congress, which put at rest any question of their validity.

•Petitioner further represents that the order of the Spanish Governor, Miro, at New Orleans, in 1790, was prior in date to the cession of the territory of Louisiana to the United States in the year 1803.

She then sets out with precision the chain of title whereby her father and his authors acquired the ownership of said Spanish grant, as follows, to-wit: That her father, Littleton Bailey, acquired same from James Bowie and Juan de Leon, on or about the 1st of December, 1832, and January 8, 1836, respectively, by certain acts of sale referred to as of record in the parish of Natchitoches. That Bowie acquired the title which he conveyed from Juan de Leon by an act of sale of date December 15, 1818, likewise duly recorded. That on the 1st of December, 1832, her father conveyed to T. J. Wells an undivided half interest in said property, retaining a mortgage to secure the price, likewise recorded.

That on the 9th of February, 1838, T. J. Wells conveyed same to J. Madison Wells. She further represents that, on the 24th of February, 1838, J. Madison Wells purchased from W. H. T. Bynum the title he had acquired from Andrew Hunt Adams on the 31st of March, 1835, who it appears acquired a title from Juan de Leon on the 26th of March, 1835. She further represents that on the 25th of January, . 1839, J. Madison Wells executed a mortgage on said property in favor of the Oanal Bank, under which same was subsequently sold on the 6th of May, 1848, and at said sale the property was adjudicated to John K. Elgee, and he subsequently conveyed same to J. Madison Wells ia 1859, who, during the same year, conveyed it to the petitioner’s mother, Frances J. Bailey.

She then finally avers that both of said deeds — that is to say, the one from Elgee to Wells, and that from Wells to her mother — were destroyed by the burning of the court house in Rapides parish in 1864.

From the foregoing statement, it is clear that prior to February 23, 1838, plaintiff’s father was full and exclusive owner of the entire grant, and so remained with respect to an undivided one-half interest until the time of his death — unless his title was divested by the Bynum title. But conceding that, for the argument, and under the statement of plaintiff, the Bynum claim of title passed through the two Wells’ to her mother, and she being the sole heir to the estates of her father and mother, and of her sisters and brother, the entire title was united in her. That in addition she has ten and thirty years’ prescription. This statement appears to be clear, and must become conclusive on the production of the titles.

So much for the grant itself.

Petitioner further avers that in 1889 the defendant, Hyde, took illegal possession of a portion of said tract of land — the portion including Spanish sections 45 and 46, aggregating about one hundred and twenty-nine acres, and refuses to surrender the same, and hence the necessity for this suit; and she accompanies her other demand with one for the value of timber cut and removed, and for the rental value of the cleared land.

This is the real gist of this suit.

Finally, petitioner supports her claim of ownership with the plea of res adjudieata, as follows, viz.:

“Your petitioner further shows that in a suit styled L. Bailey and Wells vs. T. J. Hickman, reported in 12th La. 415, 416, and in a suit styled T. J. Hickman vs. L. Bailey, 9 An. 485, the title of the Juan de Leon grant was in controversy, which causes were decided by the Supreme Court (to which tribunal same had been appealed) in favor of said Bailey, and of his heirs, and she pleads (same) as res adjudieata.”

Substantially, the answer of the defendant, Hyde, is that he is a good faith possessor under a title from M. Ryan, and entitled to fruits and revenues up to date suit was instituted; and he calls Ryan in warranty.

The answer of this warrantor is similar in purport, he claiming under a title from the Hickman brothers, in 1888,' and he calls the Hickmans in warranty.

The latter answer, setting up their title by inheritance from their deceased father, Thomas J. Hickman, who obtained title from the United States; that is to say, by a certificate of entry of the east half of the southeast quarter, section 36, township 7 north, of range 4 west, on the 15th of May, 1835; and by patent, of the southwest quarter, and west half of the , southeast quarter of same section, township and range, in 1837 — same covering the land in suit.

They further aver that the Juan de Leon grant was never surveyed or located by the United States, and that the United States had not parted with its title at the time the land in controversy was sold to their ancestor; and that without survey and location of the Juan de Leon grant prior to sale to him, it could not be subsequently located so as to divest said ancestor’s acquired rights.

On these pleadings and issues there was judgment in favor of the plaintiff on the question of title, sustaining her plea of res adjudieata, and awarding her judgment for seven hundred and twenty dollars as the rental value of sixty acres of cleared land for a period of three years; and in favor of the defendant for eight hundred dollars for clearing land, and five hundred and thirty-four dollars and ninety cents for the construction of buildings, etc.

There was judgment against each of the warrantors, and from these various decrees the defendant and warrantors have appealed.

In this court the appellee seeks an amendment of the judgment, rejecting defendant’s claim for improvement, on the ground that h is a possessor in bad faith, or that, in the alternative, his claim therefor should be reduced to a reasonable sum.

The judgment of the court below did not award to the plaintiff anything on the score of timber cut and removed; and, as no amendment has been requested on this score, it may be treated as abandoned.

It is, therefore, clear that, in respect to the title, the only question raised on the pleadings is as to which is the better title, the Juan de Leon grant, or the United States Register’s certificate of 1835, and government patent of 1837; and that to this question we must apply the decision of this court relied upon as forming res adjudieata.

But, a question incidental to the discussion of the plea of res adjudieata, is whether the plaintiff has properly connected herself with the title to the Juan de Leon grant; for, otherwise, proof of the plea would be inadmissible.

It appears that there is no written title in the record showing a conveyance of the property from Elgee to J. Madison Wells, and from Wells to the mother of plaintiff, as alleged in the petition.

Plaintiff’s theory in regard to these missing documents is that the originals were destroyed by the burning of the court house at Alexandria, in 1864; and that she was entitled to offer secondary evidence of their contents. To the offer of the parol evidence of J. M. Wells for that purpose, defendants’ and warrantors’ counsel objected, on the following grounds, .viz.:

“ That it is not the best evidence; that it is not alleged or proved that a copy of the original was not in existence, nor could be obtained. It is not shown that there is no record of this deed in the parish of Natchitoches, in which this land was situated at that time, and where the plaintiff shows all of his other deeds were recorded and where a copy of the deed might have been found,”

The rule of law on this subject is, that “when an instrument in writing, containing obligations which the party wishes to enforce, has been lost, or destroyed by accident or force, evidence may be given of its contents,” etc. R. O. O. 2279. But this article does not place upon the evidence the limitation that is suggested in the exception. Other articles of the Code declare that a copy of an act “ is good proof, and supplies the want of the original,” in case “ the loss of the original be previously proved.” Id. 2269.

The record of an act is likewise receivable in evidence “ on proving the loss of the original,” etc. Id. 2270.

Our conclusion is that neither an examination of the record, nor an effort to find a copy of these two conveyances extant, was a condition precedent to the introduction of parol testimony of their contents; and that the judge a quo properly overruled the objections urged and admitted the evidence — thus completing plaintiff’s connection with the Juan de Leon grant.

On the trial in the lower court, plaintiff offered in evidence certified extracts from the record of the case of T. J. Hickman vs. L. Bailey et al., No. 2808 of the docket of this court, 9 An. 485 — the case plaintiff relies upon as forming res adjudícala — which were objected to by the defendant and warrantors, on the gronnd (1) that the judgment and verdict of the lower court were not plead as res adjudícala, and proof of same is inadmissible; and (2) that the document offered is not a full and complete copy of the aforesaid record, and a part thereof is inadmissible.

These objections were overruled and the testimony admitted, the objectors retaining a bill of exceptions.

We think the judge’s ruling was correct. Inasmuch as the judgment of this court was pleaded as res adjudícala, it is evident that the record of this court had to be consulted on the subject, and this necessitated its production. ' That this record included the proceedings in the lower court is evident, and that they included the verdict of the jury and the judgment of the lower court is equally evident. In this respect the testimony is unobjectionable and conforms to plaintiff’s plea.

As to the objection that only extracts from the record were offered, in lieu of a full and complete record, it only goes to the effect and not to the admissibility of the evidence. And an inspection of the certified extracts in evidence exhibit a full and complete record of the case on appeal, less the opinion of this court and one or two exhibits — the former appearing in the published reports, of which this court will take cognizance, and the latter being merely a matter of evidence, not determinative of the plea of res adjudieata. They contain the pleadings, minutes of court, finding of the jury and judgment thereon based, and the proceedings incident to an appeal to this court. These are all the essentials to an examination and decision of the plea of ?’es adjudieata. The objections were properly overruled.

It is manifest that the judgment and decree of this court, which is set up as res adjudieata, nécessarily embraces the verdict and judgment of the lower court as an essential and integral part thereof.

It was held in Beaird vs. Russ, 34 An. 315, that an appeal is not an independent suit, but an incident, merely, of the original suit, and the continuation of it.

The original suit in the lower court and the appeal are the same action without any substantial change.

In Shakspeare, Smith & Co. vs. Ware, 38 An. 570, it was held “ that the rule as to the verdict of the jury, like a judgment, is that it forms the authority of things adjudged upon all matters and demands set up in the pleadings.”

But the judgment of this court does not rest on the verdict of the jury, simply and alone, but upon a definitive judgment of the District Court, which was based upon the verdict of the jury. The judgment of this court dismissed the plaintiff’s appeal, because he had not cited the warrantors as appellees. Hence it was the result of this judgment of-dismissal, which put an end to the case, by leaving the judgment of the lower court in force. It would be impossible for this court to determine what force and effect are to be given to the judgment rendered without consulting the judgment that was appealed from. The plea of res adjudieata embraces the verdict of the jury and the judgment of the District Court thereon based; and in determining whether the bar of the judgment of this court is complete, same must be taken into consideration.

Looking into the opinion of this court in the case of Hickman vs. Bailey, 9 An. 485, we find the following statement of facts, viz.:

“The plaintiff claims the ownership of several tracts of land described as being situated on the Rigolet du Bon Dieu, in the parish of Natchitoches, under titles derived from the government of the United States. He alleges that the defendants have entered upon and taken possession of this land, and claim to be the owners of the same by virtue of a pretended title derived from Juan de Leen, which title they represent to be fraudulent and as never having been located by the proper authority under the government of the United States.
“The defendants, Bailey and Hughes, in answer, aver that they hold by good and valid titles derived, as to the defendant Hughes, from Littleton Bailey, who derived same from Juan de Leon, the grantee, under the Spanish government; that said grant was confirmed by the government of the United States, and was located by the officers thereof. They aver that they, purchased from their respective vendors in good faith and for a valuable consideration, and in case of eviction are, therefore, entitled to improvements, etc. * * * That the heirs of the late James Bowie are bound in warranty to them and pray that they may be accordingly cited, and in case of eviction that such judgment be rendered against said heirs in their favor as may be legal and just. The other defendants, Thomas and Wells, claim also under said Bailey.
“The heirs of Bowie being cited also joined issue and denied any liability as warrantors.
“The case was submitted to a jury in the court below and from the judgment rendered on their verdict in favor of defendants the plaintiff has appealed.”

The court coming to consider the case dismissed the appeal on the motion of appellee’s counsel, grounded on the plaintiff’s failure to cite the warrantors as appellees.

From the foregoing statement by the court it is evident that the issue in that case was, as it is in this, which is the better title to the land, the Juan de Leon grant or the certificate and patent of the United States — the land in controversy in this suit constituting an integral part of that involved in that suit.

There is no doubt of the fact that the Littleton Bailey who figures in the former casé as defendant is the same person who figures in the deeds which the plaintiff introduced in evidence, as the source of her title by inheritance; and there is likewise no doubt of the fact that the T. J. Hickman who is plaintiff in that suit is the ancestor of the warrantors, Hickman, in the instant case and the author of defendant’s title. It is likewise an undoubted fact that the title under which the plaintiff set up claim in the former case is the same identical patent and certificate from the United States government under which the defendant and warrantors claim in the instant case; and it is equally true and undoubted that the plaintiff in the instant suit claims under the same Juan de Leon grant that the de - fendants claimed under in the former case.

There can be no reasonable doubt or question of the efficacy and completeness of the bar of res adjudicata that is formed upon the judgment that was rendered in that case, if the plaintiff has properly connected herself with the Juan de Leon grant, in point of fact, as she has in allegation. And for this purpose it will be necessary for an investigation to be made as a means of ascertaining from the record what was the status of the title to the Juan de Leon grant at the time suit was brought on the 21st of December, 1845.

It appears from the record that Juan de Leon conveyed the land covered by his grant to James Bowie, on the 18th of December, 1818. That Bowie conveyed to Littleton Bailey, on December 1, 1832. That on the same date Bailey conveyed one-half interest to T. J. Wells; that on the 9th of February, 1838, T. J. Wells conveyed his one-half interest to J. M. Wells; that on the 8th of January, 1836, Juan de Leon executed an act of sale of the entire land to Littleton Bailey — the act reciting that the title he had executed to James Bowie on the 15th of December, 1818, to the same land has been declared null and void in consequence of informality.”

It also appears from the record that Juan de Leon executed a title to the same property to A. H. Adams, on the 26th of March, 1835— prior in date to his deed to Bailey, on the 8th of January, 1836. That Adams conveyed to Bynum on the 31st of March, 1835, and Bynum conveyed to J. M. Wells, on the 24th of February, 1838. That on the 25th of February, 1839, J. M. Wells executed a mortgage on the whole property in favor of the Canal Bank, and same was foreclosed and the property adjudicated to Elgee on the 23d of March, 1848. Thus it will be seen that, at date the suit of Hickman was filed, inl845, the title was either in J. M. Wells, who had derived title to part from T. J. Wells, or to the whole by a title from Bynum; or it was in Littleton Bailey and J. M. Wells, in joint ownership. The parties defendant in that suit were Littleton Bailey, Thomas J. Wells and John J. Hughes; and it was by the plaintiffs averred that the defendants were in possession, claiming ownership “by virtue of a certain pretended title derived from Juan de Leon, which petitioner avers to be fraudulent, and that it has never been located by the government,” etc; and judgment was prayed for against them, condemning them to deliver up the property.

The defendants, Bailey and Hughes, appeared and answered, and averred that they held good and valid titles to the property, “ derived, as to the defendant Hughes, from Littleton Bailey, who derived the same from and through the original grantee thereof from the Spanish government, to-wit: Juan de Leon.” And they further answered and averred that the title under which they claim “ is superior to that set up by the plaintiff. That the government of the United States had no right to dispose of the land by sale, if it is true that it did dispose of it.”

They further represent “ that James Bowie was bound to them in warranty, as the deeds filed herewith will show. That he is now deceased, and that his heirs are bound to them in warranty;” and they pray that they be cited in warranty — enumerating them and giving their places of residence.

Thomas J. Wells appears and answers by setting up a title derived from Littleton Bailey, and averring that the title under which Bailey holds is superior to that of the plaintiff — following, in substance, the answer of Bailey and Hughes. It was on these issues that the verdict of the jury was rendered in favor of the defendants, and thereon a final judgment was rendered, quieting them in their title and fully recognizing them as owners under the Juan de Leon grant — the judgment formally declaring “that said lands, thus decreed to the defendants, being so much of the land claimed in the patents set up in the plaintiff’s petition as are covered by and found within the limits of the Juan de Leon confirmation and location, as are represented on plats numbered 13 and 72, filed in this cause.”

In reply to the objections of plaintiff’s counsel to the motion to •dismiss the appeal the court employed this language, to-wit:

“ It appears that on the 1st of December, 1882, James Bowie conveyed to L. Bailey a tract of land, a part of which constitutes the subject matter of this litigation, for the price of two thousand dollars. The deed of sale contains the usual clause of warranty. But it is urged by the appellant that the heirs of Bowie have no real interest in the matter, and are not bound in warranty, and ought not to have been cited as such, inasmuch as the title relied upon by the defendants does not emanate from Bowie, but purports to come from Juan de Leon. In May, 1834, it appears that Bowie wrote to Juan de Leon, his vendor, that there existed some defect in the conveyance made to him in December, 1818, which he would discover from a copy which he sent, and requested him to renew the deed in favor of Bailey, the bearer of the letter, in such manner as should be satisfactory to both of them, which was done, de Leon stipulating the same price as that contained in his deed to Bowie. It is on this that the appellant relies to sustain his position. But it is far from being clear to our minds that this circumstance is entitled to produce the effect contended for, the extinguishment of the obligation of warranty of James Bowie, as vendor of Littleton Bailey. “Instead ■of lessening or impairing, it would seem to increase the warranty, •or to be an additional security bo the purchaser.” Or, in other words, the deed of Juan de Leon to L. Bailey in 1886 was, in effect, a confirmation of Bowie’s previous title to Bailey. It was not, in the opinion of the court, a new title intended to destroy the effect of de Leon’s previous conveyance to Bowie, but to make formal and effective the title he had conveyed to him in 1818. It had a direct tendency to defeat the title he had made to Adams in 1885.

On this theory both the plaintiff and defendants in that suit pro-needed; and that theory is perfectly reconcilable with the citation of Bailey and Wells as owners, and plaintiff’s failure to cite Adams ■or Bynum. It is consistent with the answers of the defendants and warrantors therein. This deed from Juan de Leon to L..Bailey being intended to correct an informality in the title of de Leon to Bowie, under whom Bailey held. But if it was a fact — a fact unknown and not recognized by these parties at the time — that the Adams-Bynum title was a better title than that of Bowie to the Juan de Leon grant, it passed subsequently through one of the defendants to the mother of the present plaintiff, though the judgment of the court, in the ease of Hickman vs. Sailey, did not take formal cognizance of it. The court passed upon and decided the main controversy, and held that the de Leon grant was a better evidence of title than the subsequent government patents; and we do not consider it of any importance that parties claiming under the Adams-Bynum title were not made parties, as they were evidently without interest, on the theory which was entertained by the court.

We do not, therefore, consider it important to discuss that question further in disposing of the plea of res adjudieata — the reference we have made to the title of either parties having been for the exclusive purpose of determining whether the plaintiff has properly connected herself with the Juan de Leon grant.

Finding that she has connected herself therewith we are of opinion that she is entitled to urge the plea of res adjudieata, and that the judgment rendered in the suit of Hickman vs. Bailey operates as a complete bar against the defendant and warrantors in the instant suit, as to the title they urge as adverse to the de Leon grant.

That judgment and decree fulfil, in our opinion, all the requirements of the Code, which are as follows, to-wit:

“ The authority of the thing adjudged takes 'place only with respect to what was the object of the judgment. The thing demanded must be the same; the demand must be founded on the same cause of action; the demand must be between the same parties, and formed by them against each other in the same quality.” R. C. C. 2286.

In Heroman vs. Institute, 34 An. 805, we said:

“Matters- once determined by a court of competent jurisdiction, if the judgment has become final, can never again be called in question by the parties or their privies.”

Again: “ It matters not under what form the question be presented, whenever the same question recurs between the same parties the plea of res adjudieata estops,” Sewell vs. Scott, 35 An. 553.

These authorities are quoted with approval in Broussard vs. Broussard, 43 An. 921, and are followed in the Tutorship of the Scarborough Minors, 44 An. 288.

On other issues of the case we are of opinion that the judgment appealed from is correct.

Judgment affirmed.

Rehearing refused.


text:
    No. 11,475.
    Mrs. K. B. Warner et al. vs. Charles J. Reddy, Executor, et al.
    An act under private signature which recites that, for and in consideration of a person named, paying a certain mortgage note on one-half interest in the Moss Side plantation, the heirs of the deceased owner do transfer all of their rights, titles and privileges in said property belonging to their ancestor, renouncing all their interest in his favor, is a conveyance of the property evidencing a sale in the sense of the Code.
    APPEAL from the Fifteenth Judicial District Court, Parish of East Baton Rouge. Buckner, J.

      Cross & Cross Attorneys for Plaintiffs and Appellants.

      Kernan & Laycoek and Bead & Goodale Attorneys for Defendants and Appellees.
   The opinion of the court was delivered by

Watkins, J.

This is a petitory action for the recovery from the executor of E. A. Yorke, deceased, of one-half interest in the Moss Side plantation, to which other collateral interests are joined.

Plaintiffs’ claim is that on the 19th of August, 1869, H. P. Beck-with executed a deed of conveyance to E. A. Yorke and J. D. Hamilton, jointly, of one-half interest in said plantation; and on July 15, 1874, he executed a like conveyance to the same parties, jointly, of the remaining one-half interest in the property.

That on January 22, 1884, John D. Hamilton conveyed his half interest to Mrs. Elizabeth F. Yorke, wife of E. A. Yorke, mother of Mrs. Warner and grandmother of Miss Hamilton, the plaintiffs in this suit. That, consequently, upon the happening of Mrs. Yorke’s death her estate was owner of one-half of the property in her own paraphernal right by conveyance from Hamilton, and one-half of the other one-half as her community interest by virtue of her husband’s acquisition thereof during the marriage. That as she left three heirs at her demise the two plaintiffs inherited, and are the owners of two-thirds of three-fourths, equal to one-half interest in the plantation.

Defendants rely upon a -subsequent transaction which occurred shortly after the death of Mrs. Yorke, between her three heirs and her surviving husband — insisting that the effect of same was to convey a title to Edward A. Yorke, and that this conveyance defeat plaintiffs’ title.

On the issue thus joined there was judgment rejecting the plaintiffs’ demands and they have appealed.

Fully recognizing the transaction referred to as an impediment in their way, plaintiffs assumed the burden of removing it from consideration as a title, and in their petition took the initiative thus:

“ That on the settlement of her affairs the said heirs made a family compact with the surviving spouse, E. A. Yorke, a copy of which is hereto annexed, the true intent of which was that the said Yorke was to pay the community debts and enjoy the usufruct of the whole property, both community and separate estate of the deceased, Mrs. Elizabeth Yorke, he agreeing to make a will leaving his whole estate to the heirs.
“That under this agreement the said Edward A. Yorke went into possession of said property, and at about that time executed his olographic will annexed hereto, which was in compliance with said family compact.
“That said E. A. Yorke, using and abusing the confidence thus reposed in him by petitioners, who are non-residents, adopted a scheme to use said instrument as an actual sale of said property, and for this purpose appeared before a notary public in the city of New Orleans, with certain other persons to petitioners unknown, who personated petitioners, and signed an acknowledgment of said agreement hereto annexed, the tendency and effect of which were to recognize said agreement as a valid subsisting transfer of property, and thus deceive the public, petitioners never signing or knowing of said acknowledgment until after the death of said Yorke.
“Now, they aver that said agreement does not in any manner purport to be a sale, nor is it in any legal sense an act of sale, there being no priee and no definite description of the property sold.” (Italics ours.)

In the foregoing elaborate statement we have a clear and defini■.tive exposé of plaintiffs’ case.

It is a noteworthy fact that plaintiffs do not deny or disavow this act, but distinctly affirm its genuineness. They aver that Edward A. Yorke went into possession under it; but charge him with adopting a scheme to use the same as an actual sale of said property by fraudulently procuring its acknowledgment, the tendency of which was to recognize it as a valid subsisting transfer of property, whereas it does not, in any manner, purport to be a sale, nor in any legal sense is it an act of sale.

The following is the text of the instrument, viz.:

“ We the undersigned children and lawful heirs of Mrs. E. F. Brandenburg, deceased wife of Edward A. Yorke, to-wit: Ella Brandenburg, authorized by her husband, John D. Hamilton, Kate B. Brandenburg, authorized by her husband, Jos. R. Warner, and Charles D. Brandenburg, for and in consideration of the said Edward A. Yorke paying in full with interest a certain mortgage note held by John D. Hamilton on Mrs. E. A. Yorke’s half interest in Moss Side plantation, parish of East Baton Rouge, do hereby transfer all our rights, titles and privileges in said plantation belonging to our late deceased mother, wife of Edward A. Yorke, to said Edward A. Yorke, and by these presents put him in full possession of said property, renouncing all our interest in his favor, the said Edward A. Yorke guaranteeing to protect and assume all mortgages and debts against said plantation.”

Conceding the full force and weight of plaintiffs’ charges against the conduct and acts of E. A. Yorke, in our opinion they do not go to the extent or have the effect claimed for them. The authentication of the instrument, though fraudulently obtained, only enabled Yorke to procure its registry. It did not affect the title. On its face the instrument purports a conveyance and the judge a quo properly gave it effect.

Judgment affirmed.

Rehearing refused.


author: McEnbry, J.

text:
    No. 11,476.
    Louis Baron et als. vs. Jacob Baum.
    In a succession where the judgment of the court recognizes a party as sole heir, and in pursuance of this judgment and under order of the court the administrator pays the balance of the succession after paying debts to said heir, heirs subsequently appearing can not compel him to account to them and answer personally for said sum in default of filing said account.
    APPEAL from the Fifteenth Judicial District Court, Parish of Fas Baton Rouge. Buchner, J.

      Cross & Cross Attorneys for Plaintiffs and Appellants:
    Cite 44 An. 295; 2 L. 299; 15 L. 527; 7 R. 183; 12 R. 258; 2 An. 339; 4 L. 571; 5 An. 113; -35 An. 355; 30 An. 861; 33 An. 605, 1321; 32 An. 1218; 35 An. 359, 419.

      Kernan & Layeoek Attorneys for Defendants and Appellees:
    The appellant must bring up a complete transcript of the record and trial of the case below, othei'wise his appeal will be dismissed. Records on the files of this court can not be used to supplement a defective transcript, unless they be records of different trials of the same suit, or at least of suits between the same parties. C. P. 896, 898; 5 L. 479; 7 An. 442; 8 An. 433; 9 An. 292; 13 An. 288; 32 An. 561.
    A judgment establishing the personal status of an individual to be that of a legitimated natural child, pronounced by a court of competent jurisdiction, is res judicata against the world. Ennis vs. Smith, 14 Howard, 430; Caballero vs. Maduel, 26 An. 112; Maduel, Executor, vs. Tuyes et al., 31 An. 484.
    The judgment recognizing Mrs. Gillingham as heir of deceased, even if not res judicata, is at least prima facie evidence of her capacity as heir, and until set aside has sufficient force to protect the administrator or any other person dealing with her as such in good faith. 44 An. 295; 35 An. 420.
    A judgment homologating an account, where the attorney for absent heirs voluntarily appeared and opposed the homologation, is a judgment rendered contradictorily with such absent heirs and constitutes res judicata against them.
    A judgment homologating an administrator’s account contradictorily with creditors, even if the heirs be not cited, will make prima facie proof of its correctness and protect the administrator in payments made in pursuance thereof. 12 An. 96; 25 An. 646; 2 R. 56; 24 An. 270.
    A judgment can not be annulled for want of evidence, except by seasonable appeal.'
    The maxim “ le mort saisit le vif,” avails the legitimated child, because he is clothed with all the rights which he could have enjoyed, if born in lawful wedlock.
   The opinion of the court was delivered by

McEnbry, J.

This suit is the logical sequence of the case reported in 44 An. 295. The pleadings and the facts are stated therein. That suit was for the purpose of compelling a succession administrator who had been discharged to file an account to the plaintiffs claiming to be the legal heirs of the deceased. The administration of the succession had been closed and the'account homologated. Under the order of the court the residuum of the succession had been delivered by the administrator to Mrs. Amelia Gillingham as the sole heir of the deceased.

The contest is between the brother and sisters of the deceased and Mrs. Gillingham, who claims to be his legitimated daughter.

Mrs. Gillingham was not made a party to the first suit. Therefore the decree was that the judgment appealed from be amended so as to read as a mere judgment of dismissal, as in case of non-suit, reserving to plaintiffs the right to renew the action on proper averments, and against the proper parties.

In pursuance of this decree the present suit was instituted, making Mrs. Gillingham a party.

The prayer of the petition is that the judgment homologating the account be declared a nullity, and that the discharged administrator file an account to petitioners, and in default thereof they ask for judgment against him for five thousand four hundred and fifty-seven dollars — the amount of the property in the inventory which went with his bonds. Mrs. Gillingham is dead, and her representative was made a party defendant.

This controversy involves the issue of heirship. On this point the evidence in the record is meagre. It does not satisfy us that Mrs. Amelia Gillingham was an adulterous bastard, as urged by the plaintiffs.

She had applied for the administration of the succession, and this was opposed by Louis Baron, one of the plaintiffs, on the ground that she was not the legitimate daughter of the deceased, on account of her mother being unmarried at the time of her conception. Mrs. Gillingham was appointed administratrix, on the issues thus presented, but she failed to qualify. The defendant Baum was appointed administrator.

There is no note of evidence in the application of Mrs. Gillingham, and the plaintiffs claim that the decree appointing her administratrix is null for that reason. If an appeal had been taken from that judgment and lodged here on account of the absence of the note of evidence from the record, the decree would undoubtedly have been annulled and the case remanded. But there is no evidence that a note of evidence was not taken; the testimony of the clerk is that he could not find it among the succession papers.

' He was not the clerk of court when the decree was rendered, and says he only looked for the note of evidence in one single bundle of papers, endorsed Succession of Pierre Baron.” We presume the decree was rendered in accordance with the. allegations in Mrs. Gillingham’s petition, supported by evidence. The decree closes as follows: “It is farther ordered, adjudged and decreed that she be recognized as sole heir of deceased.” It was under this decree that the administrator paid over to her'the balance of the succession after paying debts. The absent heirs were represented by an attorney appointed for that purpose. The evidence does not show that there was any fraud or collusion between the administrator and Mrs. Gillingham. The decree had full force and effect until set aside. As long as it was in existence it was to be respected as a valid judgment, protecting the administrator in the final distribution of the funds of the succession.

Judgment affirmed.

Rehearing refused.


author: McEnery, J.

text:
    No. 11,468.
    Biscoe Block & Co. et als. vs. W. T. Jefferies et als. Interventions of J. P. Rowan and Scharff, Bernheimer Grocer Co. et als.
    The respite is a judicial contract between the debtors and creditors and among the creditors. Therefore neither debtor nor creditor can take advantage of the other, and the creditors must remain on an equal and fair footing.
    If the debtor does any fraudulent act to give an undue preference, ipso facto he becomes an insolvent, and the respite proceedings are converted into a cession
    Privilege claims are not affected by the respite, and by consenting to the same privilege creditors do not waive their liens and privileges.
    Creditors in a respite can not sue to have property returned to the debtor’s estate for their individual benefit. Any action in other direction by an individual creditor will inure to the benefit of all the creditors.
    If no opposition is made to. a respite in ten days it can not be set aside. The alternative is to convert the proceedings into a cession of the debtor’s property.

      When the respite debtor laas absconded and abandoned the property on liis schedule the courts have power to issue the requisite conservative writs to protect the property, and to appoint a syndic until a meeting of creditors can be convened.
    A written notice to the creditor in respite proceedings is essential, but when the debtor informs the creditor of his intention to ask a respite, and the creditor answers that he does not wish to participate in the proceedings for fear of losing some advantage, but will not take steps against the debtor if the creditors agree to give time, the creditor can not after the respite is granted, because of want of notice, seize the property placed on the schedule. To all intents and purposes he consented to the respite.
    APPEAL from the Seventh Judicial District Court, Parish of Madison. Montgomery, J.

      Wade B. Young Attorney for Plaintiffs and Intervenors, Appellants :
    Articles 1986 and 1988 of the Civil Code are to be construed together, and do not apply in the case of an insolvent debtor who has obtained a respite, as the law does not contemplate that such debtor can pay his favored creditors in violation of the terms of the respite, or that the only consequence of such fraudulent payment shall be that the creditor so preferred shall be compelled to share the loss ratably with the complaining creditors.
    “'The law gives to every creditor, when there is no cession of goods, or other proceedings by which they are collectively represented, an action to annul any contract made in fraud of their rights.” C. C. 1970.
    “ The judgment in this action, if maintained, shall be that the contract be avoided as to its effect on the complaining creditors, and that all the property or money taken from the original debtor’s estate, by virtue thereof, or the value of such property to the amount of the debt, be applied to the payment of the plaintiff.” O. O. 1977.
    Such is the penalty which the law and the jurisprudence have always imposed in such cases.
    And such is to-day the law and jurisprudence of France, of England and of the other States of this Union.
    In cases of concealed fraucl prescription begins to run from the date of discovery of the fraud.

      ■The case of Byrne & Oo. vs. Their Creditors is directly in point, in which it was decided that the prescription of one year, relied on in this case, does not begin to run, in cases of concealed fraud, from the date of the contract, but from the time the contract was brought to the knowledge of the creditor; it is sustained by all the weight of reason and authority, and there is nothing in our reports in conflict with it. Rosental vs. Walker, 111 U. S. 185; Bailey vs. Glenn, 21 Wall. 342.
    In Brewer vs. Kelly, 24 An. 246, it was decided that the action of creditors to annul a contract made in fraud of their rights commences to run from the date the contract is recorded, and not from the date the fraud was discovered, but the court was careful to say: ‘ ‘ The creditor can not reasonably assert that the act has been concealed from him, or that his debtor has kept him in ignorance of it, when it has been placed upon the public records.”
    In Reynolds vs. Batson, 11 An. 730, the court said of the doctrine contra non valentum agere non currit prescriptio:

      “ It has been applied to prescriptions liberandi causa in three classes of cases. * * *
    il The third class of cases is where the debtor himself has done some act to prevent the creditor from availing himself of his cause of action.”
    In Hernandez vs. Montgomery, 2 New Series, 438, the court said:
    “ Indeed, the idea of a man losing his right by not bringing an action, which it was impossible he could bring, involves such a contradiction in itself and leads to such monstrous injustice ' that nothing short of the most positive law could authorize any tribunal to sanction such a doctrine.”
    In Martin vs. Jennings, 10 An. 553, the court said:
    “ The objection that this rule is not to be found in the statute books does not impair its authority, for it is interwoven with our jurisprudence from the earliest times. It is impossible to compress every principle of law into a code. The Legislature has not intended to confine the mission of the jurisconsult to fields so limited.”
    “ Any agreement of the debtor to buy the vote of the creditor, by giving security for the payment of the debt, must be considered a perversion of the course of justice, and a fraud upon the court charged with the homologation of the deliberations of the creditors.” Slidell vs. Pritchard, 5 Robinson, 104.
    In the case of Morgan vs. Nye, 14 An. 30, cited by the court in the case of the Vicksburg Liquor and Tobacco Company, the court said of such a contract: “ The vote, therefore, of a single creditor is not a mere offer to make a new contract between the debtor and creditor, but is a quasi judicial act by which the rights of other creditors are to be affected.”

      J. G. Ilawkes and W. M. Murphy Attorneys for Defendants Utz & Boney, Appellees:
    Where a party seeks to avoid a contract of sale, payment or preference, as made in fraud of creditors, he must allege and prove three essentials, viz.: fraud, knowledge of insolvency of the debtor, and injury to plaintiff. 44 An. 424; 38 An. 422; C. O. 1978; Bouillon vs. Creditors, 44 An. 19; 32 An. 433.
    The judgment homologating a respite meeting is res adjudieata as to all matters occurring prior to its rendition. C. C. 3092; 11 An. 36; 3 La. 217; 43 An. 1139.
    If the transaction complained of benefited plaintiffs instead of injuring them, they have no ground for complaint. C. C. 1978.
    If acts can be revoked as in fraud of creditors, the parties must be placed in the same position they were before the contract was made. O. C. 1982, 1983.
    The payment of a just debt in money can not be revoked under any circumstanees, and there are no exceptions to this law. C. C. 1986; Loewenstein vs. Fredikas, 43 An. 893.
    Actions to revoke fraudulent contracts, or those made to give preferences, are prescribed in one year from the date of the Contract. C. O. 1987; 4 R. 439; Bank vs. Girod, 31 An. 592; Bastían vs. Christensen, 34 An. 883; Morris vs. Cain, 39 An. 720; 28 An. 652f 29 An. 285; 39 An. 610; Babshaw vs. Douty, 39 An. 720; Mineral Water Co. vs. Deblieux et al., 40 An. 155.

      A. L. Slack and H. P. Wells Attorneys for Chaffe & West, Liquidators and Appellees:
    One of the essentials of a revocatory action is that it must be brought by a third person, no party to the contract sought to be revoked. Cross on Pleadings, Sec. 311. Here the plaintiffs are seeking to “ undo ” and “ annihilate ” proceedings they were the principal actors in.
    Where a respite is granted the debtor is placed in the “ friendly custody ” of his property in order that the same — under the purview of the court — may be administered for the benefit of all his creditors. Such is the obligation he assumes, which creditors have the right to have secured them by a bond. R. O. O. 3093.
    As Act 134 of 1888 authorizes a creditor to enforce his rights against his respited debtor by a rule to force him to insolvency, it results that the law considers the property still in its keeping, and that the respite is still a pending proceeding. If so, the only remedy the creditor has is under said act. This was what the court so strongly suggested in the V. L. & T. Oo. vs. J., 45 An. 621.
    “Judicial proceedings, once regularly inaugurated, can not by any act of the parties * * * be annihilated.” State ex rel. Marx vs. Judge, 45 An. 1350.
    A revocatory action can not be brought to annul a cession any more than a succession. For the same reason it could not annul a respite. Andrus vs. Creditors, 45 An. 1067.
    The plaintiffs can not “ undo, and by undoing make to inure to their separate advantage, a judicial order.” V. L. & T. Oo. vs. J., 45 An. 621.
    A respite is not a device to “ entrap the unwary,” but a quasi judicial act (14 An. 30), by which the debtor places in the hands of the law his property, to so remain subject to the rights of his creditors to change into an insolvency. Act 134 of 1888.
    When there is a cession of goods the revocatory action does not lie (R. O. O. 1970). A respite is a cession in abeyance — in embryo —and no portion of the creditors consenting to it have the right to forestall this cession, and absorb all the property of a surrender made for the joint benefit of all. Such a proceeding, judicially recognized, would put it in the power of a favored or unscrupulous few to defeat the rights of all, and thus not only “ annihilate ” and “ undo ” their own judicial act, but defeat the very letter and spirit of the law.

      While there rests upon the respited debtor an obligation to the creditors, there is also as strong an obligation resting inter sese among the creditors (14 An. 30), which they can not violate.
    If the respite can not be revoked, there is no right in the plaintiffs to attack a judgment of a co-creditor, which judgment is a mere incident to the main action; for the reason, had plaintiffs forced the common debtor into insolvency, the judgment could have been thereby “ stayed” and its status determined in such form of proceeding, in concurso with all the creditors. A creditor who is not summoned by “letter,” under Art. 3087, C. 0., is not bound by the respite. Mohr, Hanneman & Oo. vs. Marks, 39 An. 576; Haydel vs. Girod, 10 Peters, 284.
    The proces verbal of the notary should affirmatively show that the creditors were notified; where it does not, and this want of notice is alleged, the notary can not testify that such was given. Judicial records should make proof of themselves, and their absence can not be supplied from the “ uncertain memory ” of even the officers. A bill retained to such testimony should be sustained.
    The basis of a respite is the solvency of the debtor. (42 An. 851.) So, where a debtor has applied for a cession, he can not subsequently apply for a respite — using as the basis of it the insolvent schedule. The two proceedings are inconsistent and in violation of the express prohibition of C. O. 3097, and are nuil. O. O. 12.
    Where a respite is obtained, a second application for same relief can not be heard, except by the unanimous consent of all creditors. C. O. 3095.
    What is absolutely null has no effect, and can be questioned by any interested party at any time. Willis vs. Ward, 30 An. 1285; 33 An. 618; 34 An. 740.
    One who discloses, when interrogated, every detail of a connection, charged as fraudulent, shows his innocence and good faith. Fraud is never presumed.
    Privileged communications of a client to his attorney are sácred, and can not be communicated to other parties with opposing interest, and be used by them as the only basis of a suit brought in their name by such attorney against his former client. This protection lasts forever. Greenleaf, Secs. 237, 246.
   The opinion of the court was delivered by

McEnery, J.

This is a sequel of the suit of Liquor and Tobacco Company et als. vs. Jefferies et als, 45 An. 621.

The plaintiffs, making all the creditors parties as plaintiffs or defendants, instituted the present action to annul the respite granted to the debtor, Jefferies. Some of the parties plaintiff were plaintiffs in suit of Tobacco Company vs. Jefferies, reported in 45 An. 621. As to these creditors who were plaintiffs in that suit, the matters disposed of in the same are res judicata.

As the same facts are alleged to avoid the payments made to the defendant creditor by Jefferies, the respite debtor, we need only refer to that suit to render herein the same decree as in that suit against the additional complaining creditors.

The amount of cotton shipped to Chaffe, Powell & West was in the ordinary course of business; the business which the creditors, parties to the respite, permitted the debtor to carry on and conduct in order, within the delays granted, to pay his indebtedness.

Utz & Boney, were privileged creditors, and by consenting to the respite did not waive their privileges or postpone the payment of the special privilege they had on the effects surrendered. R. C. C. 3095.

In Bennett vs. Creditors, 45 An. 1019, a similar question was presented. In that case, on rehearing, we said: “The proceeds of the sale of this cotton could not be ratably, as contended for by opponents, applied to the payment of all the debts. By granting the respite the creditors do not relinquish the privilege and pledge they may have on particular property of Mrs. Bennett at any time after the respite was granted; in fact she was bound under agreement to turn the cotton or its proceeds over to the furnisher of supplies. The furnisher of supplies had a right to the proceeds of the sale sufficient to pay his privileged debt. The surplus only could be ratably applied to the payment of the other creditors. Opponents were in no way injured by the disposition of the cotton.”

In the instant case the respite debtor was a merchant. He had rented property from Utz & Boney, to carry on his business. The rent was payable by the month and the rent had been regularly paid. The lease had some time to run, and the rent was paid monthly as before the respite. When these privileged creditors unnecessarily consented to the respite there was no judicial contract springing from the same that they should postpone the collection of rent yet to become due. The places leased were necessary for the debtor to carry on his mercantile pursuits, and by consenting to the respite, and to the carrying on of these pursuits the creditors necessarily consented to the continuance of the lease and the pay-. ment of its price.

This suit, in addition to the averments made in the tobacco company suit, asks that a certain judgment obtained by Ohaffe, Powell & West against the respite debtor be annulled, and the property seized under it be applied to the payment of the debts due the complaining creditors, thus ignoring the claims of other creditors.

So far as the suit is instituted for the purpose of annulling the order granting the respite, the plaintiffs are estopped by Art. 8092 of the Civil Oode, which says that the opposition to the homologation of the order must be made within ten days, in writing, dating from that on which the prooes verbal of the deliberations of the creditors was returned to the clerk’s office. After this delay has expired the creditors are forbidden to interfere with the order or to urge any fact which would have been effectual in setting aside the order if presented in time.

It has been frequently stated by this court that the respite is a judicial contract between the debtor and the creditors, and among the creditors. Therefore no creditor can make any agreement or contract with the debtor, by which he can secure an undue advantage over the others, and the debtor must so conduct his affairs as to preserve equality among the creditors. Any act of his in violation of the contract resulting from the respice is a fraud, and ipso facto turns the respite into insolvent proceedings, a cession of goods for the benefit of the creditors, as though it had been offered in the first instance. It is to be assimilated to a case in which the respite is re - fused by the creditors. O. C., Art. 8098.

The contract by this fraud is ended, and the respite stands as though it had been offered to the creditors and refused. That this course, in such a contingency, is the proper one to pursue is clearly outlined in the ease of Tobacco Company vs. Jefferies, 45 An. 622.

It does not appear from the proces verbal that Chaffe, Powell & West were summoned to attend the meeting of creditors by letter, in accordance with law. They say under oath that they were never notified. But the record shows that they were awar.e of the contemplated proceedings for a respite, and in a letter to Jefferies, the debtor, declined to participate in the meeting for fear of losing certain privileges which they held on the property of the debtor’s wife, in Mississippi. Bnt they informed the debtor that, if the other creditors granted time to him, they would acquiesce and also delay the enforcement of their claims. The property in Mississippi paid some six thousand dollars on Ohaffe, Powell & West’s debt, and for the balance, say five thousand dollars, they sued their debtor, obtained judgment, without opposition on his part, and seized the property surrendered, which was enjoined by the creditors. The testimony in the record shows that this judgment was obtained through the connivance of Jefferies, with his consent, and evidently for the purpose of giving Chaffe, Powell & West an advantage over other creditors.

Under these circumstances, to all intents and purposes, Chaffe, Powell & West were parties to the respite.

It would be inequitable and unjust, and would in fact practically annul the benefit of a respite, to permit a creditor to arrange with his debtor for non-participation, and, possibly, through his efforts, to escape summons in the respite proceedings, and thus obtain a judgment by consent of the debtor and execute it against the property surrendered. The evidence justifies us in believing that such was the case here.

The complaining creditors pray that the proceeds of the sale of the property be applied to the payment of their several and individual debts. Prom what has been said above, it is evident that the prayer can not be granted. No creditor can seek an advantage not common to all. Through the efforts of individual creditors, whatever property of the insolvent debtor is recovered and restored to his estate must inure to the benefit of all the creditors. Gumble vs. Andrus, 45 An. 1081; McGraw vs. Andrus, 45 An. 1073; Andrus vs. Creditors, 45 An. 1067; Anderson vs. Duson, 35 La. An. 915; Hayden vs. Yale & Bowling, 45 An. 362.

The evidence shows that the debtor has violated the contract of respite, and ipso facto committed an act of insolvency, and as such insolvent, he no longer has the right to administer his property, and it must pass to his creditors. In addition, he has absconded and abandoned his property.

The plaintiffs contend, under these circumstances, they are unable to force the debtor into insolvency. The fraudulent acts themselves, ipso facto, forced him into insolvency, and it is only requisite for the court to appoint a syndic to administer the property. Revised Statutes, 1810. The court has power to issue all conservatory writs to protect the estate. 42 An. 71.

The amounts due for clerk hire are established, and they should be paid as general privilege debts.

Complaint is made by plaintiffs of costs paid by the .sheriff, and the illegal disposition of a twelve months’ bond by seizure and sale.

These matters can be adjusted in the settlement of the insolvent’s estate. The facts before us are not sufficient to warrant a decree respecting them.

The injunction restraining the execution of the judgment of Chaffe, Powell & West against the property of Jefferies has served its purpose and there is no reason for a formal decree in reference thereto. The proceeds of the sale of the property not legally disposed of will be turned into the insolvent’s estate.

We see no reason why we should disturb the judgment of Chaffe, Powell & West against Jefferies. We will only correct it so far as it affects the rights of the creditors of the insolvent in the seizure made of- his property surrendered on his schedule.

It is therefore ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and reversed, and the seizure made under the judgment of Chaffe, Powell & West be set aside and the property restored to the estate of the insolvent debtor. It is further ordered that this case be remanded and proceedings therein continue as if the cession had been offered in the first instance by the defendant Jefferies. It is further ordered that payments be made and proceedings conducted as herein stated. The insolvent’s estate to pay all costs.

Rehearing refused.