author: DeBlanc, J. JVEarr, J.

text:
    No. 5314
    A. Rochereau et al. vs. William McC. Jones et al.
    The illegal cancellation o£ an official bond will not release the sureties on the bond, ': from their liability for any official delinquency of their principal.
    The sureties on the official bond of a notary public are liable for any loss, or damage caused by his affixing his notarial paraph to any mortgage note which he knew to be forged. And any one injured by his act, has a right of action on the bond against his sureties.
    APPEAL C. E. from the Sixth District Court, parish of Orleans. Saucier, J.

      C. E. Schmidt, for plaintiffs and appellees. William Grant, for defendants.
   The opinion of the court was delivered by

DeBlanc, J.

One of the defendants, William McC. Jones, was, in 1869, a notary public of the parish of Orleans. As such he gave two bonds, one on the twenty-eighth of July, 1869, the other on the fifteenth of August, 1870. The condition of each of said bonds is “that said Jones shall well and faithfully discharge, and perform all the duties incumbent upon him as •a notary public, in accordance with the laws of the State.” In substance, the aforesaid condition is that fixed by an act of the Legislature approved on the twelfth of March, 1857, and which provides “ that the notaries appointed for the parish of Orleans shall give bond in the sum of five thousand dollars, subscribed in favor of the Governor of the 'State, and conditioned as the law directs, for the faithful performance of their duties.” ” ’'

The other defendants are Edward .H. Wilson and the legal representafives of Samuel S. Green, the sureties on the bond furnished by Jones in 1869.

The plaintiffs have brought suit against said defendants for $1241 31, with five per cent interest thereon from the thirty-first of December, 1872, for tills: They allege that on the thirtieth of December, 1871, one August Hoffman, by act passed before said Jones as a notary, sold to the Union Band Association No. 1, for twenty-six hundred dollars, the property described in said act. One third of the price was paid in cash; for the' balance the association, through its president, furnished two notes of each $866 66jj, drawn and indorsed by said association. These notes were delivered to the vendor, and were in his possession on the day of the trial of this case.

Between the thirtieth of December, 1871, when these notes were furnished by the Union Band Association, and the third o£ May, 1872, Jones forged two notes exactly similar to those drawn by said association in favor of Hoffman, and attached to those forgeries, in red ink, the following certificate, to wit: Ne varietur, secured big mortgage by act passed before me and stamped three dollars. New Orleans, December 30, 1871. That certificate is signed William McC. Jones, notary public. On the first of May,-1872, representing these notes as those which had been -subscribed by the association, and which were secured by the vendor’s mortgage and privilege, he offered to sell'them to plaintiffs, aware as he was that they were in the habit of investing in mortgage paper. Plaintiffs’ attorney was instructed to examine the act of sale with which 'those notes were identified and the title to the property sold. This he did, and the report being favorable, plaintiffs purchased the notes for $1707 28, paid to said Jones on the third of May, 1872.

At the maturity of the first of said notes, with a view of concealing .his fraud and his crime, Jones paid on account of the same the sum of $422 40, and by misrepresentation obtained a delay for the payment of the balance. The extended delay expired, and plaintiff sued out executory process to enforce payment of the balance due to their firm on the ■discounted notes, and ascertained then that they- held but mere forgeries, which they were induced to buy because they appeared to be ¡secured by the vendor’s mortgage and privilege, a fact certified to by ¡said notary’s signature, which was known to plaintiffs.

Defendants aver that said plaintiffs have no cause of action; that the bond given by Jones and signed by them in 1869 was canceled before the •act of malfeasance charged against said Jones, by virtue of an order from C. C. Antoine, then acting as Governor, on the fifteenth of September, 1873, six days after plaintiffs had filed their suits against defendants, and notwithstanding plaintiffs’ protest against the canceling of said bond, filed in the office of the Secretary of State within the delay prescribed by law. They further contend in their defense that, if the bond of 1869 was not annulled by the aforesaid order, it whs superseded by 'the bond executed in 1870 by said Jones and other sureties, and they relieved from all liability. . .

In May, 1872, when Jones discounted and transferred the notes he had forged, the bond of 1869 was not and could not have been legally canceled, •and no subsequent cancellation of that bond could impair or destroy a right previously acquired. At and after the date of the forgery, and at and ¡after the date of his fraudulent transfer to plaintiffs, Jones was a notary public of the parish of Orleans. There is an admission that he was suspended from the exercise of his functions as such on the twenty - ' fifth of August, 1873, but that suspension is not equivalent to the vacancy which happens by the resignation, death, or dismissal of an •officer, or by the expiration of his term of office. It is only from the date of that vacancy that an application can be made to raise and annul 'the officer’s bond, and only from that date that the Governor, is authorized to order a publication of any such application. It is useless, tiren, to discuss the demerits of the. course pursued in this instance by Jones.’s sureties, the Secretary of State, and the acting Governor. They-are fraught with the most patent and unjustifiable irregularity; a carelessness, which has not an excuse, not a pretext to stand upon. - V. R.. S., section 359. . '

Was the bond of 1869 superseded by that of 1870, as contended by appellants ? The reasons urged by their able counsel are insufficient, and we have looked in vain for any in our statutes and reports to support that pretension. Under the former legislation the term of office of a notary was fixed at four years, since then that term continues as long as. he renews his bond within the delay prescribed by law, and that delay is of five years. Therefore Jones’s bond of 1869 remained in force until' at least the twenty-eighth of July, 1873, if we measure that bond by the-term of the four years commission; otherwise, until the twenty-eighth of- o uly, 1874, and it was in May, 1872, that he was guilty of the offense charged against him. Y. R. S., sections 2505, 2506. .

If, within the prescribed delay, officers were allowed to give several bonds instead of one, where the validity and sufficiency of that one are undisputed, what confusion might ensue. They might, with a considerable degree of impunity, fail in the discharge of their duties or violate their obligations, and as very often the dates of these omissions and commissions could not be ascertained or made to correspond with the dates of either the previous or ulterior bonds, the sureties of the offender could seldom be reached.

From the evidence on file in regard to said bonds we conclude that, the sureties’ right to apply for the canceling of that given in 1869 had not accrued-, that under the circumstances the acting Governor was without authority to issue even a notice of their application; that the granting of said application was unwarranted in law, unwarranted by the facts; that if said notice had not been premature, the protest of' plaintiffs was filed within the time and at the place indicated by law, and that from the date of that protest the Governor’s duty was to refer the parties to a court of competent jurisdiction. He has not done so, and the bond of 1869 is neither canceled nor superseded. Y. R. S., section 361.

The appellants have called our attention to a section of the Revised Statutes of 1876, which provides “that the notary’s bond is for the faithful performance of all the duties required by law toward all persons who may employ him in his profession of notary,” and that the letter of that section excludes plaintiffs from the list of those who can proceed on that bond, for the reason that they had not employed Jones, and he was not acting for them. The answer to that is that the act of 1857, the only one that applies to this case, fixes as the broad and legitimate condition of the notary’s bond, that he shall faithfully perform his duties in that capacity.

Has lie complied with or has he violated that obligation ? We fully concur in the proposition invoked by appellants’ counsel “ that he did not bind himself for Jones’s good behavior as an individual.” If, then, as a notary, from the twenty-eighth day of July, 1869, when he gave his bond, until the third of May, 1872, when he stole the price of his forgery, he has faithfully performed his duties as a notary of the parish of Orleans, appellants’ defense must prevail.

In matters of sales on terms, when notes are furnished by the vendor, ~what is the duty imposed on the notary? He shall attest each of the notes by putting his name on them, mentioning the date of the act from which the mortgage and privilege are derived, under the penalty of damages. R. C. 0., 3384 That attestation, the notary’s name, his signature, those distinct and deceitful badges of simulated authenticity, are on the face of' the discounted notes. The forgery is not that of an individual, but of the notary; his signature on those notes disguised and concealed the criminal fabrication, justified the conviction of their reality, left no room for suspicion and doubt, and was, as to the form and legal existence of those instruments, the principal, nay, the only cause which induced an ’ acceptance of their transfer. Was not that forgery a violation of his official duty ? If not, what would amount to or constitute such a violation ?

Had he not attached his signature to the attestation and his official, capacity to his signature, however guilty he would have been, his sureties on his bond would not have been responsible. Had he discounted or sold notes forged by another notary, or by any one else but himself, he alone would have been liable. Büt, oan his sureties be released when the evidence establishes beyond contradiction that it was as a notary he forged the notes, as ,a notary that he forged' the signature of the parties to the act, and that it was his signature as a notary that gave, to those notes that form, that character, without which they could not have been converted into money ? The attorneys representing appellants rely on decisions of this court reported in- -the -sixth and sixteenth Annuals. Those decisions we adhere to. If interested parties deposit funds with a notary and he fails to account for those funds, his sureties are not liable; and why ?- Because, as his office is not one of deposit, he was trusted and received the deposit, not as an officer, but as an individual. The doctrine cited by Burge -is to the -same effect, that in Scotland the sureties of messengers and notaries, when the latter act in another and different capacity — for instance, the first as agents, the others as town clerks — are not'liable for their errors -and neglects in the last-mentioned capacity, and in support of that -incontrovertible opinion he cites a maxim, as ancient as legislation:

•“ Losqu’on se rend caution pour quelqu’un, l’engagement ne va- pas au-delá de la somme ou de la cause exprimée; on ne se rend pas non plus responsable des dommages qui peuvent naitre d’unec ause ótrangére aü cautionnement.”

We find in Burge, page 49, “ that the surety of a public officer is responsible only for those acts which are done by virtue, or under color,., or by means of the office he holds.” Jones’s forgery, his fraud, was successful; and why? Because they were perpetrated under color and by méans of the office he held. His capacity and his offense can not beásseverated.

'High and important functions are intrusted to t notaries; they are invested with grave and extensive duties; they are charged with the-solemn preparation of the authentic evidence of our transactions, off last' wills, of those titles which pass from one generation to another.. Their responsibility is as high as their trust, and a notary who officially certifies as true what he knows to be false violates his duty, commits a. crime, forfeits his bond, binds himself, and binds .his sureties.

'It is therefore ordered, adjudged, and decreed that the judgment of tli'e lower court be and it is hereby affirmed at appellants’ eosts.

Dissenting Opinion.

JVEarr, J.

I am not able to concur in the opinion of the majority of the-court just pronounced in this case.

I differ with my brethren on a single point only,.and the range of inquiry is within very narrow limits, depending upon the meaning and effect of article 3384 (3347) of the Civil Code, which is as follows:

“Every notary before whom an act shall have been passed by which notes to order have been given for the payment of a debt bearing a privilege or'mortgage, shall attest each of the notes by putting his name on, them, mentioning the date of the act from which the privilege or mortgage is derived, under the penalty of damages.”

An act of sale was passed before Jones, a notary, and two notes were-given for the deferred payments of the price, bearing vendor’s mortgage. It was the official duty of Jones to paraph these notes, and if he had failed to do so he would have been liable in damages. He did all with respect to these two notes that the law, that his official duty, required.. He chose to do something-more. After his entire official duty with respect to these two notes had been performed, he made two other notes,, exactly the counterpart of the two real notes. He forged the signature-" of the maker and indorser. He paraphed these forgeries, just as he hadparaphed the two real notes, and he sold these forged notes to Rochereau & Co.

Roehereau & Co. took these forged notes on the faith of the paraph off Jones, and. when the forgery was discovered they sued Jones and the sureties on his official bond. The condition of the bond is that Jones shall “ well and faithfully discharge and perform all the duties incumbent upon him as a notary public, in and for the parish of Orleans, in accordance with the laws of the State of Louisiana.”

No complaint is made that Jones did not do all that the law and duty required of him touching the act and the two genuine notes, and when .he forged two other notes, and put his paraph upon them, he was not doing any act required of him by law, he was not in the performance of any duty, he was simply committing a crime which the law forbids and punishes. ,"

The act of 1857 requires notaries to give bond for “the faithful performance of their duties.” R. S. of 1870, sec. 2521. Section 2503 of the Revised Statutes directs that the condition of the notary’s bond shall be for “ the faithful performance of all duties required by law toward all persons who may employ him in his profession of notary.” The condition of the bond differs from that prescribed in this section, but the enactment is a correct exposition of the intention of the Legislature with, respect to the liability of the sureties of the notary. They are answera1 ble to those who employ the notary in his profession for his failure to perform his professional duty.

Roehereau & Co. did not employ Jones. The parties to the act of salé employed him, and he performed his entire duty to them. He committed a crime, a,nd defrauded persons who had not employed him in his pro.lessiqn as notary,, which his position as notary enabled him to do, and Roehereau & Co. were the victims. In all this criminal conduct he did not fail to perform his official duty toward any person who had employed him in his profession. He simply violated his duty as a citizen by committing a crime against the peace and dignity of the State.

Davis vs. Barham, 1 An. 528, it seems to me, 'does not authorize the interpretation which has been put upon it. Barham was sheriff of More-house parish. Davis had obtained a judgment against Hall, and an execution was issued upon that judgment, and was put into the hands of Barham, to be levied upon certain slaves, the property of Hall, and in bis possession. Barham had ample time to levy on the slaves.' Instead of doing this, which his official duty required, he sent word to Hall to get the slaves out of the way before a certain hour, or, he would be at his house at that hour to make the levy. Hall took the slaves into the State of Arkansas, and when Barham arrived at his house with the writ the property was beyond his reach, as Barham intended and arranged beforehand. Failing to make his debt, Davis sued Barham and bis sureties, and they were held liable.

The difference between that case and this is manifest. Barham, :ás gfaeriff, liad received the writ. He knew where the property was; it was Within his reach. If, instead of sending a messenger to Hall warning ’him to remove his property, he had gone with the writ, he would have lound.and have levied on the slaves. It was a clear case of failure on his part to perform an official duty which it was perfectly in his power to .have performed, and which he willfully and purposely failed to perform, simply because he did not choose and did not intend to perform it. •He and his sureties were not held liable for a wrongful act not pertaining to his official duty, for doing something which the law prohibits and punishes as a crime, but for not doing what the law specially required hfm to do, which he simply refused to do, and which he placed it out of his power to do, when the performance was perfectly within his power.

The law does not require, nor does it authorize, the notary to paraph notes generally. It is not his business to paraph any and all notes. His •duty and power in this respect are restricted to notes which are to be identified with acts passed before him, stipulating a privilege or mortgage. This means real, genuine notes, not forgeries, which are only the false semblance of notes. The law requires no official act of the notary touching forged notes, and all that Jones did with respect to these forgeries was entirely unofficial, a gross fraud and crime, for which his sureties, in my opinion, are not amenable.

' I differ with the other members of the court with reluctance. I distrust the correctness of my own opinions in opposition to theirs, but ‘With a clear conviction that the official bond of the notary extends to and secures nothing more than the performance of the official duties imposed upon him by law, and that the crime and fraud of Jones in this case Were whdlly outside of any duty pertaining to his profession as notary, I am constrained to put upon record the reasons upon which my conclusions are based.


source: Caselaw Access Project

author: Make, J.

license: Public Domain

text:
    No. 3451.
    A. B. Miller vs. D. C. Chandler.
    'On the trial of a rule to dissolve an attachment, the truth of all the allegations of the petition can not be inquired into, as that would be trying the case on the merits.
    ■'Where the affidavit for an attachment attests the truth of all the allegations of the petition, and .the petition sets forth the non-residence of the defendant, and a cause .of action, the affidavit is sufficient.
    Phe amount of an attachment bond must exceed by one-half, the sum demanded.
    No correction, or alterations of a judgment can be made by the court, ex proprio motu, after the judgment has been entered on the minutes, except such as are merely ■clerical, or rectify errors of calculation. No change in the substance of a judgment can be made, save by means of another formal decree, rendered after a new trial of the case.
    .Paying an employee a certain portion of the profits of a business, in compensation of-his services, does not make him a partner of the employer.

      A certificate of discharge in bankruptcy, made according to the forms prescribed in the bankrupt act, is receivable .n evidence before any court, to prove the fact of the discharge, and its regularity.
    A discharge in bankruptcy is a complete bar to any suit brought against a bankrupt in a State court to enforce a debt -which has been extinguished by that discharge.
    APPEAL from the Fourth District Court, parish of Orleans. Théard, J.

      Hays & New, for plaintiff and appellee. B. Egan, for defendant.
   The opinion of the court was delivered by

Make, J.

This suit was brought to recover a sum alleged to be due to plaintiff by defendant for his services as captain of defendant’s steamboat Welcome. The petition charges that the defendant employed plaintiff and agreed to give him one-tnird of the earnings of the boat for his services.

On the usual affidavit, process of attachment was issued against the property of defendant, who resided in the State of Arkansas, and the property attached was released on bond.

Defendant moved to set aside the attachment on the grounds —

First — That the affidavit is not true.

Second — That the affidavit is insufficient, and does not justify the issuing of the writ.

Third — That the security on the attachment bond is not good and solvent, or such as the law requires.

Fourth — That the bond is irregular in ■ form, and not sufficient in amount.

First — All the traversable allegations of the petition, except that which charges that the defendant is a non-resident, go to the merits. The defendant might, on a rule, put that allegation at issue, and might have the attachment dissolved, by proving that he resides in the State. But it would be necessary for him specially to deny the alleged non-residence; and the burden would be upon him to disprove that allegation. The general statement that the affidavit is not true where, as in this oase, all the allegations of the petition are sworn to, is neither more nor less than a general denial, and the defendant can not, on a rule to show cause why the attachment should not be dissolved, put plaintiff on the proof of his case, or enter into any inquiry as to the merits.

Second — The petition sets out clearly and distinctly a cause of action •ex contractu a debt alleged to be due to plaintiff by defendant, and it charges that defendant is a non-resident. The affidavit is that all the allegations of the foregoing petition are true.” There can be no question as to the sufficiency of this affidavit to authorize the order, and to maintain the writ of attachment.

Third — The surety in the attachment bond swore that he resided in the city of New Orleans, and that he -ftas worth more than the amount of the bond. There is room for suspicion that he was merely a temporary sojourner in the State; but his testimony, not contradicted, shows that he had the requisite qualifications, residence and pecuniary sufficiency.

Fourth — The bond is in the usual form, and the amount is four thousand dollars. The amount sued for is $2149, with interest from judicial demand. The law requires a bond- exceeding by one-half the amount sued for, and a bond for $3200 would have been ample in this case.

The defendant excepted to the suit on several grounds, all of which were referred to and were tried with the merits.

First — That the petition discloses no cause of action; because the plaintiff alleges a partnership ; and he can sue only for a liquidation and settlement of that partnership, not for any particular amount, as claimed in the petition.

Second — That, before this suit was brought, defendant had been made-garnishee in a suit in Arkansas in which plaintiff, Miller, was defendant,, and in which judgment had been rendered against Miller.for $4050; and that any claim or demand which Miller might have against defendant had been seized by that garnishment.

On the merits defendant answered that he had employed Miller as-captain, and agreed to allow him one-third of the net profits of the boat, after deducting two thousand dollars per month for the charter ; that plaintiff had served under- that agreement from the third of December, 1869, to some time in- January, 1870, and that during that time he had drawn $1001 12.

Defendant also pleads that he is holder and owner of the note of plaintiff for $3639, dated the thirty-first - of May, 1866, payable on demand ; and he claims, in reconvention, the amount of that note with interest from the thirty-first of May, 1866; and such further sum as may be. found, on settlement of the accounts of the boat, to have been overdrawn by plaintiff.

Plaintiff pleads, so far as the note is concerned, the discharge in. bankruptcy granted to him by the Supreme Court of the District of Utah, and files the certificate, which is dated the4wenty:secon.d,of July, 1869, and relates back to. the thirty-first of December, 1868, the date of the filing of the petition for adjudication.

The proof shows that plaintiff received at different times from the clerk of the boat $1001 12, and that he had returned seven hundred dollars, leaving $301 12 to be accounted for by him.

It was proven that the proceedings in garnishment were discharged by judgment of the Circuit Court in Arkansas on the fifteenth of December, 1870..

It was also proven that plaintiff remained on the Welcome, under his agreement with defendant, four trips, and that the boat paid for loss and damage on. fifty-six bales of cotton, and three bales short delivery, in consequence of which the profits on the four trips were reduced to $211. ■

The case was tried and submitted on the fourth of May, 1871; and on the ninth of May, for reasons orally assigned, judgment was entered rejecting the demand of the plaintiff, and the reconventional demand of' defendant. The next day the court, ex proprio motu, ordered that “ the judgment entered yesterday be annulled and made of no effect, as having been entered erroneously;” and, immediately, “ for reasons orally assigned in open court,” judgment was rendered and entered in favor of plaintiff for $1289 85, with interest and costs, and privilege on the property attached ; and dismissing the reconventional demand.

After an ineffectual motion for a new trial, defendant took a suspensive appeal.

It seems to us the judge of the court below proceeded very irregularly. After having rendered judgment in open court, and • having it entered, on the minutes, the judge might, indeed, have corrected a mere clerical' error, or a mistake in calculation, but to set aside a judgment rejecting-the demand of plaintiff, ex proprio motu, and to render a judgment, immediately, in favor of plaintiff for a specified sum, with privilege on the-property of defendant, thus changing the entire substance and effect of the judgment first rendered and entered, seems to us most extraordinary, and in excess of judicial authority; and we consider this action of the judge so plainly against the letter of the law that we can not give it. the apparent s§nction of our silence, nor incur the risk of allowing it to-become a precedent.

The Code of Practice, article 517, provides that judgments may be-amended by the court, until after having been signed—

First — To-alter the phraseology, but not the substance.

Second — To correct errors of calculation, if more, have been given than was demanded, or if the party in whose favor the judgment was given had been ordered to pay the costs. - .

“ Except in the cases above provided, courts can not alter their judgments; but they may ex officio direct a new trial in order to revise their judgments.”

When the judge discovered, as it seems he must have done on the reading of the minutes the next morning, that the judgment entered was not that which he had intended to render, it was his duty to have ordered, ex officio, a new trial, and to liave had counsel of both parties, notified. The course which the judge pursued in this case was manifestly in violation of the law as laid down in the Code of- Practice; and it shows the importance of requiring the judges to assign in writing the reasons for their judgments, with reference to the law on which they are based, when that is practicable. - ;

Defendant’s counsel was mistaken in supposing that plaintiff alleged a partnership; there was no partnership between him and defendant, and the agreement that an employee shall receivea certain part of the profits as. compensation for his services, does not mak.e. him a partner, even as to third persons, much! less with respect to-his employer. • ■ The garnishment having been disposed of some months before the trial, both the causes of exception to the suit were properly disregarded. Defendant took three bills of exception, one of which only requires any notice at our hands, and that is the one taken to the ruling of the court in admitting in evidence th^ certificate of discharge in bankruptcy. Defendant insisted that it should be authenticated as prescribed by the act of Congress of 1790. This act relates to the authentication of the records and proceedings of the courts of the several States; and it prescribes a form of authentication which is obligatory throughout the United States; that is, where the mode of authentication presented by that act is observed, every court in every State is compelled to admit the proof as sufficient. But this act does not relate to proceedings in the Federal Courts, nor does it forbid any State to admit in its courts proof and authentication of the records and proceedings in the courts of the other States different from that prescribed by the act.

The bankrupt act prescribes the form of the certificate of discharge, section 32, Revised Statutes, section 5115, and section 34, Revised Statutes, section 5119, provides that the discharge “ may be pleaded by a simple •averment that on the day of its date such discharge was granted to the bankrupt, setting a full copy of the same forth in its terms as a full and complete-bar, etc., and “the certificate shall he conclusive evidence in .favor of such bankrupt of the fact and regularity of such discharge.”

The plea of the discharge in bankruptcy in this case is in exact conformity with the bankrupt law, section 34, and the certificate is signed by the Chief Justice, attested by the clerk, and has attached to it the seal of the court. That which was presented to the court below as proof of the discharge in bankruptcy, and in support of the plea, is precisely that which the bankrupt act prescribes, and which it declares shall be conclusive evidence of the fact and regularity of the discharge.

We think that a certificate of discharge in bankruptcy, signed by the judge, attested by the clerk, under the seal of the court, is not only sufficiently authenticated, but that it is precisely the means by which the bankrupt is to prove and to have the benefit of his discharge.

Congress has exclusive control of this whole subject matter, and its legislation is the paramount law. It is not competent for any court within the territorial limits of the, United States to require any other proof of the discharge than that which the act of Congress declares shall be conclusive evidence; nor to refuse to give to that evidence and to. the discharge the effect'of a complete bar to-all "the debts and-demands falling within the scope of the discharge. >.. >

The liability of plaintiff on the note pleaded in reconvention' is completely and forever barred by the plea and proof of his discharge in-bankruptcy. He is entitled to one-third of the $211 net profits earned while .he was in the employ of defendant; and he is accountable for the balance drawn by him on account, $301 12; that is, he is to be charged with $301 12, and to be credited with one-third of $211; viz., $70 34, leaving a balance against him of $230 78, for which defendant is entitled to judgment, with interest from judicial demand, eighteenth March, 1870. r: .

It is therefore ordered, adjudged, and decreed that the judgment appealed from be avoided and annulled, and, proceeding to render such judgment as the court below should have rendered, it is further ordered, adjudged, and decreed that the demand of'plaintiff 'against the defendant be rejected; that the reconventional demand' of defendant against plaintiff for the amount of the bote for $3639, with interest from the thirty-first May, 1866, its date, be also rejected; and that on the remainder of the reconventional demand there be judgment in favor of the defendant appellant David W. Chandler against the plaintiff appellee Andrew B. Miller, for the sum of $230 78, with interest at the. rate of five per cent per annum from eighteenth March, 1870, until paid, and costs in both courts.


author: Morgan, J., Marr, J., Manning, C. J. Manning, C. J.

text:
    No. 3941.
    Summers & Brannins vs. J. S. Clark.
    If an importer of foreign goods has so gravely violated the revenue laws of the United States as to render the goods liable to confiscation, and himself obnoxious-to the penalties of his act, prescribed by said laws, he will become liable to any innocent purchaser of those goods, for whatever sums the purchaser may have to-pay the government, in order to compromise the suit to confiscate the goods; and for all necessary expenses incurred by such purchaser, in effecting the compromise. Such a compromise inures to the direct relief of the importer, which makes the latter liable for whatever the compromise has cost the former.
    Where, by the terms of the United States revenue law, the penalty of its violation is the forfeiture of the goods without alternative, then the property in said, goods vests at once in the government, and no purchaser of said goods, however innocent, can acquire any title to them. They remain liable to seizure and confiscation, wherever found. - *
    APPEAL from the Sixth District Court, parish of Orleans. Cooley, J.

      Labatt & Aroni and Hudson & JPeafn, for plaintiffs and appellants. Billings & Hughes and Williami 'H. Hunt, for defendant.
   The opinion of the court, on the original hearing, was delivered by

Morgan, J.,

on the rehearing by

Marr, J.,

and the application for a second rehearing by

Manning, C. J.

Section fifty of the acts of 1799, approved second of March, (United States Statutes at Large- p. 655) provides that if any goods brought in any ship or vessel, from any foreign port, shall be unladen, between the setting and the rising- of the sun, except by special license from the collector óf the port, the goods shall become forfeited.

Section three of the act approved sixth of August, 1846, provides that if any warehoused goods shall be fraudulently concealed in or removed from any public or private warehouse, the same shall be forfeited to the United States.

Section four of the act of eighteenth of July, 1866,' provides that if any person shall fraudulently or knowingly import, or shall receive, conceal, buy, sell, or in any manner facilitate the transportation, concealment, or «ale of such goods, knowing the same to have been imported contrary to law, such goods shall be forfeited.

On the twenty-fourth of May, 1869, the collector of the port of Louisville seized 1089 barrels and 254 packages of sugar as having been brought into the United States in contravention of the laws above quoted, and the United States attorney libeled the same, and asked for the condemnation of - the property.' In whose hands the sugars were, -seized does not appear.

Plaintiffs, who reside in Louisville, aver that the sugars in question were shipped to them by H. N. Soria & Co., of New Orleans, and that they were sold by them (plaintiffs.) That the sugars were for a long time in danger of being confiscated; that the persons to whom they had sold them, and in whose possession they were when seized, were innocent vendees, and that they (plaintiffs) were bound to “ stand by them ” and protect them from loss, which they did. They aver that after great exertions they succeeded in effecting a compromise with the government, to accomplish which they were obliged to pay, and did pay, in duties, costs, expenses, and charges, 111,041 41.

They then aver that H. N. Soria & Co. were merely the agents of James S. Clark, the defendant, who, they allege, was the real owner of the sugars, and that he merely used Soria & Co. to carry out his designs. They aver that if they had not compromised with the government the sugars would have been confiscated. They say that they deemed it in the best interest of all parties to make the compromise, and that, as negotiorum gestores, they did so. They pray for judgment against the defendant in the sum claimed, as above set forth.

• The action, therefore, is one instituted by a negotiorum gestor for the reimbursement of money spent by him in the interest of his principal. Primarily, whose interests were the plaintiffs protecting when they made the alleged compromise ? Evidently, the parties in whose hands the sugar was seized, for it was their property, and it was they who were in ■danger of loss.

Whose interest did they represent, in the second place ? Their own, because they allege that if the sugars had been condemned they would have been obliged to make good the loss to the holders thereof, their "vendees.

But they say that Clark committed the fraud; that Clark shipped the sugars to them; that they sold them to third parties; that without the compromise the sugars would have been condemned, in which event they, innocent venders, would have had to shoulder the burden of their Innnocent vendees, and that Clark who perpetrated the alleged fraud upon the government and procured them to pass off the property is bound to reimburse them what they paid to prevent the loss attaching to their vendees.

A negotiorum gestor is one who spontaneously and without authority undertakes to act for another during his absence in his affairs. Bouvier’s Law Dictionary, vol. 2, p 170. His agency springs from an emergency, and his action is taken on the spur of the moment. The action must be intended to benefit the person in whose favor the Action is taken, and must benefit him. In this event he is responsible for the expenses incurred by his self-constituted agent. Now the plaintiffs were not the agents of Clark when the compromise was effected. The compromise was not effected in his name. Their connection with Clark ceased when they disposed of the sugar shipped by Soria & Co. to them, assuming Clark to have been the owner thereof, and their returns thereof had been made and acknowledged. If they acted for him in regard to the compromise it was not because of any contract between them, or from any obligation under which they rested, but it was in what they supposed to be the interest of the defendant.

The plaintiffs reside, as we have seen, in Louisville. The defendant resides in New Orleans. Between the two cities there is rapid communication by rail, and almost instantaneous communication, by telegraph. When the sugars were seized by the government, communication between the two places was not interrupted. Some-ten months intervened between the date of the seizure of the sugars and the compromise, and although it appears that one of the plaintiffs was once in this city, and although they had sent counsel here from Louisville to examine into the facts upon which the libel was based, no demand whatever was made upon Clark, and no call was made upon him to defend the suits or procure the release of the property libeled.' The compromise, therefore, was •the voluntary act of the plaintiffs, and made without reference to Clark. 'They certainly had no power to spend his money in that way without his consent, when they could have notified him of the danger he was in, and at least called upon him to protect himself and them.

Judgment affirmed.

Taliaferro, J. Eor the reasons above stated, and others, I concur in the decree.

Justices Howell and Wyly reserve the right to file dissenting opinions.

On Rehearing.

About the month of October, 1868, an arrangement was made between James S. Clark and H. N. Soria & Co., of New Orleans, for the importation of Havana sugars, to be purchased by Clark and consigned to Soria & Co. for his account. Soria & Co. were to provide a bonded warehouse, or, as Soria expresses it, “ a bonded warehouse was to be fixed, up,” at New Orleans, in which the -sugars were to be stored, subject to such disposition as Clark might indicate, and Soria & Co. were to be paid a commission of one dollar per box.

.Clark went to Havana and purchased the first lot of sugar, and thus-inaugurated the business. This and all the subsequent purchases were-made with means furnished by Clark, and Soria & Co. were interested only to the extent of their commission.

Soria & Co. obtained the necessary authority, and became the proprietors of and opened the warehouse, and the sugars, as they arrived from Havana, were received by them, the consignees, and- were stored in this warehouse.

In the latter part of 1868, or early in 1869, Clark sought an introduction to Edwin H. Summers, of the firm of Summers & Brannins, and opened negotiations for advances on Havana sugars, to be shipped by Soria & Co. E. H. Summers, A. O. Brannin, and John S. Brannin composed the New Orleans firm of Summers & Brannins, and they were also partners, factors, and commission merchants, under the style of Brannin, Summers & Co., at Louisville, Kentucky, where the Brannins resided. Summers informed Clark that his New Orleans firm would make proper advances on consignments to the Louisville firm.

Shortly after this interview, Soria, by direction of Clark, called on Summers & Brannins, and the negotiations were completed. Sundry shipments of sugars were made by Soria & Co. to Brannin, Summers & Co., on which large advances were made by Summers & Brannins, covered by six drafts of Soria & Co. on Brannin, Summers & Co., of different dates, from the fifteenth of February to the eighth of March inclusive, aggregating seventy-three thousand five hundred dollars, maturing at different periods, the latest on the sixth of May, 1869.

The demand for these sugars was not very active, and some time in April, Soria, by direction of Clark, went to Louisville and instructed Brannin, Summers & Co. to have them transferred from the boxes, the original packages, into barrels, for the reason, as stated by him-to Brannin, Summers & Co., that “ the goods would be more salable in that shape than in boxes.” He testifies,-however, that-the real-object which Clark had in view in ordering this change was “ to prevent identification."

The sugars remaining on hand at the time this change-was made were sold by Brannin, Summers & Co,; a,nd .soon-after, before-they had -been, paid for, on the twenty-fourth of May, 1869, they were seized in the hands of the several purchasers, and were proceeded against by the government, in six separate suits, in the United-States District Court at Louisville for condemnation and forfeiture under the revenue laws.

Brannin, Summers & Co., who, according to the testimony, had-no suspicion of any fraud or irregularity, either in the importation or the subsequent shipments to them, were alarmed at these seizures, which threatened heavy pecuniary loss to them, and serious impeachment of their reputation as merchants. They employed eminent counsel, who undertook the defense, and procured the release of the seizures on bond.

On the first of June John K. Goodloe, one of the counsel. thus • employed,. left Louisville for New Orleans in company with John S. Brannin, to ascertain the history of the alleged frauds and causes of forfeiture.* The information which they obtained, after thorough investigation and examination of the records at the Custom-House, satisfied Mr. Goodloe, a lawyer of large experience, “ that the government had in its possession evidence sufficient to insure a condemnation and forfeiture of all the sugars seized at Louisville,” as he testifies.

Soon after the seizures were made Summers, having ascertained that the duties had not been properly -paid, had an interview with Clark, in which he told Clark he believed that he, Clark, was connected with this matter, and that he would hold him personally responsible. ' Clark denied having any connection with it, except that Soria owed him money.

A. O. Brannin also visited New Orleans in reference to these seizures, and having been informed by Soria that Clark was the owner of the sugars, he called on him. The result of this interview is not stated, but it is evident that Soria & Oo. and Clark were aware of the proceedings at Louisville which involved such serious consequences to them. •

On the return of Mr. Goodloe to Louisville, upon his statement of-the facts ascertained by him -at New Orleans, the two legal firms employed by Brannin, Summers & Co. were satisfied-that-the government would be able to make out-a clear case’of forfeiture, and they advised that an application for a compromise and remission of the forfeiture should be made at once to-the-Secretary of the Treasury. The application was made, and the compromise was recommended' by the District Attorney, B. H. Bristow, -and by the surveyor of the port of Louisville, both of whom knew’'the - reputation of Brannin, Summers & Co., and were convinced of-their entire innocence of the alleged fraud upon the government.

The Secretary of the Treasury did not act promptly on this application, and-Mr. Gdodioewent to "Washington-to urge it in person. Finally, in January, 1870,, after much trouble and expense, and upon the personal representations of Mr. Goodloe and Mr. Bristow, who was at Washington at that time, -the forfeiture was remitted, and the District Attorney who had succeeded Mr. Bristow was instructed to dismiss the proceedings on payment of the duties at three cents a pound and all fees and costs. These terms were promptly complied with, and on the twenty-first of January, 1870, the suits were-dismissed.

Mr. Goodloe testifies that this was the most favorable settlement that could have been obtained, and that the sugars, if tested by the govern-ment standard, would have been subject to a higher.duty. He attributes this result aS much to" the high character, social and commercial, of the members of the firm of Brannin, Summers & Co. as to the efforts of themselves and their counsel.

Brannin,-Summers & Co. made up their account with their consignors, Soria-& Co., in-which they charge all the advances made, duties, costs, fees, and expenses paid, and credit the proceeds of all the sugars, showing balance due by-Soria & Co., twenty-seventh of January, 1870, 3511,0-11 11. .-This- account was presented to Soria & Co. by Summers & Brannins, and it was acknowledged to be correct and satisfactory by Soria & Co. in writing at the foot of the account. -Brannin, Summers & Co. charged this balance to Summers & Brannins, and this suit was brought against Clark to recover that balance, 3511,011 11, with five per cent interest from the twenty-seventh of January, 1870.

- The petition charges that Clark was the owner of the sugars, the real party in interest; that Soria & Co. were merely his agents; that he suppressed his name as principal for purposes of his own, and used the name of Soria & Co. to carry out his designs; that the government claimed that the sugars had been fraudulently introduced through the Custom-House at New Orleans from Havana, and were actually seized at Louisville, in the hands of innocent vendees, and that they were for a long time in-jeopardy of actual confiscation.

The petition states the good faith and the innocence of the plaintiffs; their efforts to -save the sugars from forfeiture; the expenses incurred and paid by them; the-beneficial results to Clark, and his obligation to reimburse them as negotiorum gestores. ." .

Clark'answered on the thirtieth of March, 1870, simply pleading a general denial. The trial commenced in the lower court on the seventeenth of DeceiAber, 1870, and the case was finally” submitted on briefs on the twenty-third of December, 1871, and on the twenty-eighth of -February, 1872, for -reasons orally assigned, “ the law -and evidence being- in favor of defendant,” judgment of nonsuit was entered, from which the plaintiffs appealed.

Summers died pending the appeal, and his widow and administratrix was made a party in this court. Our predecessors, on the twenty-third of May, 1876, affirmed the judgment of the court below, and the case is before us on the rehearing granted by them.

We do not find in the pleading, nor in the several printed arguments ■filed by counsel for the appellee, that he raises any question as to the ownership of the sugars; nor do we think that he could have done so successfully. Soria testifies that Clark was the only person known to him as the owner, and that he paid Clark all the money advanced on the sugars, and all that was received from proceeds of sales. There is no room for doubt as to Clark’s ownership, and his failure to testify in his own behalf, and to offer any testimony to contradict that of Soria, relieves us of the necessity of further inquiry as to his relations to these sugars.

The counsel for appellee rest the case upon the law. They maintain that the sugars were not liable to forfeiture; that Brannin, Summers & Co. were bound to have defended the suits in which the sugars were seized; that they did not give Clark proper notice of the seizures, and that if they were in good faith their innocenc.e would have protected them and their innocent vendees, and there would have been no difficulty in obtaining a full remission of all penalties and expenses. “ But they threw away this opportunity, and preferred to make the compromise.”

“If, on the other hand,” counsel argue, “appellants were implicated in the fraud, then the compromise was useful and necessary, and highly advantageous to themselves.” “ But they are not permitted to claim a contribution from their confederates. Ex turpi causa non oritur aclis.”

We do not find in the record the slightest foundation for the application of the maxim ex turpi causa. On the contrary, the good faith of appellants is not only not impeached by any testimony in the record, but it is, moreover, fully shown by the testimony of A. O. Brannin, E. H. •Summers, John K. Goodloe, and B. H. Bristow; and the appellee has had the full benefit of the entire innocence of the appellants in the favorable compromise by which the sugars were saved from forfeiture.

It is not the habit of the Secretary of the Treasury to remit forfeitures after condemnation, and the chances of a favorable compromise, in any -case, are greatly diminished by a judgment after a protracted litigation.

As to notice to Clark, the proof is positive that he was informed by Summers of the seizures soon after they were made, and when Summers-told him he would be held responsible he denied having any connection with the sugars. Certainly he can not be heard to complain of want of' notice after this.

Within less than ten days after the seizures John K. Goodloe and John S. Brannin came to New Orleans for the special purpose of obtaining information about these sugars with a view to the defense of the suits, and they spent a week in this investigation, which was minute, the collector giving them access to the records of the Custom-House. Summers assisted them, and it can not be that they failed to call upon Soria & Co., the shippers of the sugars, and Clark, who had opened the negotiations with Summers. Soria & Co. and Clark must have known of the mission of Goodloe and Brannin, and they could not have been ignorant of the peril to which the sugars were exposed.

With every opportunity afforded him by a singularly protracted trial, Clark did not offer any testimony tending to exonerate him from liability in the present suit, and the presumption is that if any fact had existed which would have shown that the sugars were not liable to condemnation he would not have failed to plead and prove that fact in the present, suit, with so much the better reason and greater effect if no opportunity •had been offered him to make the same proof in the proceedings at. Louisville.

The real questions to be determined in this case are :

First — Were these sugars liable to condemnation and forfeiture in the-hands of the innocent purchasers ?

Second — Was Clark benefited by the compromise effected by Brannin, Summers & Co ?

First — The libels under which the seizures were made contain four counts, charging: 1. Violation of section fifty of the act of Congress approved second of March, 1799, 2. Violation of section four of the act. approved eighteenth of July, 1866. 3 and 1.' Violation of the act approved sixth of August, 1816, section three.

Section fifty of the act of 1799 prohibits the unlading of any imported 'goods between the setting and the rising of the sun without a. special license from the collector and the naval officer of the port; and it also forbids the unlading of such goods at any time without a permit from the same officers, under penalty, in both cases, of forfeiture of the good®. To obtain a permit, the goods must first be entereclat the Custom-House, and the duties paid, or secured to be paid.

Section four of the act of 1866 subjects 'to the penalty of forfeiture goods fraudulently or kno'wingly imported or brought into the United. States contrary to law, and this penalty is wholly independent of the fine and imprisonment imposed.upon the guilty parties, their aiders and abettors, on conviction.

Section three oí the act of 1816, known as the warehousing .act, relates to the fraudulent concealment in, and the fraudulent removal from, any public or private warehouse, of any warehoused goods, under penalty of forfeiture of the goods; and the guilty parties are also subject to criminal prosecution, and to fine and imprisonment on conviction.

Soria testifies that there were seven hundred and fifty boxes of these •sugars per De Sota, which arrived from Havana on the twenty-seventh of January, 1869, of 'which five hundred boxes were shipped to Brannin, Summers & Co. “There was no entry made of the seven hundred and fifty boxes at the Custom-House.” How easy it would have been to disprove this statement by the records of the Custom-House if it were not •true.

Another lot, two hundred and seventy boxes, per Santiago de Cuba, shipped to Louisville thirteenth of February, 1869, of which Soria says, •“No entry was made at the Custom-House that I know of.” As Soria & Co. were the consignees, and had the invoices and bills of lading, they were the proper persons to make the entry, and Soria would have known If the entry had been made.

There were twe.nty-one hundred and fifty.boxes per Ida M. Conery' which arrived first of March, and on the same day Soria & Co. gave a warehousing bond for this lot. On the second of March one thousand boxes of the twenty-one hundred and fifty were shipped by Soria & Co. to-Louisville “before the permit was granted,” as Sorfa testifies. On the third of March one Sheldon gave a bond for the transportation of the whole twenty-one hundred and fifty boxes to- Cincinnati, and on the fifth of March permit was given for, the delivery of these twenty-one hundred and fifty boxes for transportation to Cincinnati.

The transportation bond was canceled, when or how it does not appear, but it was conditioned for the delivery to the collector at Cincinnati, and the entry there for rewarehousing, and it should not have "been canceled until compliance with the condition had been properly proven.

Soria says these sugars went into his- bonded warehouse, and that all the sugars shipped by Soria & Co. to Louisville were taken from this warehouse. Two importations, seven hundred and fifty and two hundred and seventy, in all - one .thousand and twenty boxes, were not entered at the Custom-House, and one thousand boxes were shipped before the permit was granted, and that permit was granted on the fifth of March, for twenty-one hundred and fifty boxes for transportation to Cincinnati, when one thousand of the boxes were on their way to another port, Louisville, having.,’been shipped-three days before the date of the permit, consigned to Brannin, Summers & Co.; just as if,the duties had. been'fully paid at New Orleans. • .

Sdria says: “Mr. Ciarte’ordered me when,-where, and to'whom to ship. I gave these orders to • the drayman, who- went, there, and they were’ delivered by the man who was in charge of the bonded warehouse,, and shipped in accordance with "these instructions.” .

The testimony of'Soria, in no way contradicted, is confirmed by Claris's failure to testify, and fully warrants -the conclusion that Clark purchased these sugars at Havana with the intention-to import them into the United States and to put them on the market?'without paying the duties, and that the consigning them to Soria & Co., and thejftróig up of the bonded warehouse, to be kept, and controlled by Soria & Co., were but the means and instrumentality, prearranged, by which this design was intended to be, and was, in fact, accomplished. It is difficult to conceive of any defenses which could have been made to the suits brought by the government for the condemnation and forfeiture of these-sugars.

The counsel for appellee have failed to observe an obvious distinction, and they are mistaken in asserting that the innocent purchasers could have protected themselves against the proceedings by the. government, for the condemnation and'forfeiture of these sugars'by proving -their innocence. - ,

Where, by the terms of the law, the penalty is in the alternative, the-forfeiture of the goods or of the value thereof,- the title tp the goods does-not vest in the'government until it has elected whether to proceed for the goods or for the value thereof. Any purchaser in good faith, between the time of the committing of the' offense and the election by the government would acquire a good title to -.the goods, and the government, would be compelled to take'the alternative,-and-to proceed against the-offender, the owner or agent or consignee, for the value.

Where, by the terms of the law, the penalty is the forfeiture of the= goods, without alternative, as in section fifty .of the act of 1799, section three of the act of 1846, and section four of the act of 1866, under which these sugars were seized, the title vests in the government from the .moment the offense is committed, and no adverse title can be acquired by any one, nor can any right accrue to any .person whomsoever, after th& commission of the offense, by which the title, of the government, and the-right to seize tne goods, wherever they may be found, and to. have them condemned and forfeited, can be in any manner affected or impaired.

This distinction is plainly laid down in Caldwell’s case, 8 Howard, and in Henderson’s case-,' 14 Wallace. The United; States vs. Grundy, 3 Cranch, is an example under the registry act of-thirty-first of-December,, 1792, section four, in which the penalty for false swearing in registering a. vessel is the forfeiture of the vessel or the value thereof.. And the United States vs. Certain Bags of Coffee, 8 Cranch, and Gelstur vs. Hoyt, 3 Wheaton, are examples under. statutes..|n .which the penalty is forfeiture, in the one case of the goods, in the other case of the vessel. , ,

It is not material to determine whether the facts proven in this case bring it within section fifty of the act,pf ,1799, or within section three of the act of 1846, or within section four, of the act of 1866. ¡¡We entertain no doubt that the offenses mentioned in .these three sections, were committed. A permit requires a previous entry.,- anji as no ..entry was, made of, one thousand and twenty boxes of the .imported sugars, fhey must have been unladen without a permit, and thus have incurred ithe pgpalty of forfeiture.under the act of 1799.

. The proof satisfies us that these sugars .were purchased, a^d bought into the United States with the intention- t.o evade the payment of thq duties, and that they were subject to forfeiture .under the act of 1866.

It is plainly proven that these sugars were fraudulently removed from the bonded warehouse of Soria & Co. by .direction-of Clark, the,, owners through the agency of Soria & Co., the consignees, in accordance with the plan pre-arranged; and the penalty of. forfeiture under the act of 1846 had been incurred beyond doubt or question, .as, we think.

It is not necessary to pursue this branch of-Jije subject further. The story told in this record is one of systematized frauif.upon the revenue, which could not have been practiced on so large a scale and,ydth such success without the guilty connivance• and complicity,of some- of: the officers of the government charged with the collection, of the customs at New Orleans. ,

Counsel for appellee argue that, the act pf. August 6,1846, is supplied and repealed by the act of the eighteenth of July, 186Q. We do not think so. The act of 1846, section three, relates to the f,r¡audulent; corn cealing in, or the fraudulent removal frpm, any public or private ware: house of any warehoused goods; while section four of.thp.act of 1866 relates to the fraudulent importation of goods. , Goods may be imported fairly and legally, so that there could be no pretense of a violation of section four of the act of 1866 ; and the same goods might be afterward fraudulently concealed in, or fraudulently removed frorq, the public or private warehouse in which they weje stored in bpnd, and the penalty of forfeiture, under the act of 1846, section-three, might be incurred -\yithout the violation, up to the time of such fraudulent concealment or fraud-mi ent-removal, of any other statute of. the United States.

Besides,.we find section fifty of the act of 1799, section.three of the act of 1846, and section four of the act of 1866, re-enacted in the Revised Statutes of the -United States, sections 2867, 2872, 2873, 2987, and 3082.

If either Clark or Soria knew any fact,, knew of any means, by which the sugars could have been saved from forfeiture, it was their duty, and they had ample time and opportunity, to have given the information to the parties at Louisville, or, at least, to have communicated the facts and means of defense to Summers & Brannins, who had advanced on the sugars beyond their value,- deducting the duties. When Summers charged Clark with responsibility, instead of furnishing the means to defeat the claim of the government Clark denied having any connection with the business, éxcept' that Soria‘owed him money, while Soria testified that Clark-was indebted .to him.

It is too plain to admit of question that there was no fact or circumstance known, to Clark-or to Soria which would have been available against the claim of the government for the absolute forfeiture of these sugars, and neither Clark nor Soria made any attempt to relieve the purchasers, or gave any assistance to Brannin, Summers & Co., who stood between them and the purchasers.

These sugars were not merely in Jeopardy, they were clearly liable to forfeiture; and the innocence of Brannin, Summers & Co., and of the purchasers from them, would have afforded no protection against the right and claim 'of' the government.

Second — If the sugars had been condemned, the purchasers would have had recourse, immediately, on Brannin, Summers & Co., and they, in turn, would have been entitled to recover their disbursements and expenses from Clark, the owner of the sugars.

In Meredith vs. the United States, 13 Peters, 494, it was decided that the-duties on imported goods constitute a personal debt and charge upon the importer, as well as a charge upon the goods. The amount of duties paid by Brannin, Summers & Co. on the sugars seized was $8593 62 in gold, equal, at the time the payment was made, to $10,484 22 in currency. " Neither- innocence nor any other circumstance would induce or authorize the Secretary of the Treasury to abandon the right of the government to be paid the full duties on imported goods, and as Clark was bound, at any rate, to pay the duties, he was benefited to that extent, at least, by the payment made by Brannin, Summers & Co.

We are not satisfied that the relations of'Brannin, Summers & Co., as factors and'agents to Clark, the owner of the sugars consigned to them for sale, had ceased when the seizures were made ; but we do not care to inquire whether their agency still continued, or whether it had terminated, and-they are to be regarded in all that they did with respect to the sugars after the seizures as negotiorum gestores. It is a principle of law and of right that no one shall enrich himself at the expense of another. Brannin, Summers & Co., at great expense of time and money,- saved Clark from the consequences of the condemnation of property' worth more than five times -as much as they claim of him; and it would be an outrage upon justice to allow Clark to enjoy all the benefits of the outlay of money and of the services of Brannin, Summers & Co., occasioned solely by his violation of the revenue laws, without any obligation on his part to reimburse them.

The account sued on was acknowledged and approved by Soria, who, with respect to this entire business, was the alter ego of Clark, and it is sufficiently proven by other testimony in the record. We are satisfied that Clark is bound, legally, and ex aequo et l)ono, for the full amount sued for ; and that appellants are entitled to judgment as prayed for in their petition.

It is therefore ordered, adjudged, and decreed that the decree rendered herein .by.our predecessors on the twenty-third of May, 1876, be set aside and avoided; that the judgment of the Sixth District Court appealed from be also avoided and reversed; and, proceeding to render such judgment as the court a qua should have rendered, it is further ordered, adjudged, and decreed that Summers & Brannins, plaintiffs and appellants, now represented by Mrs. S. S. Summers, widow and administratrix of Edwin H. Summers, deceased, Abram O. Brannin, and John S. Brannin, do have and recover of and from James S. Clark, defendant and appellee, the sum of 811,011 41, with interest at the rate of five per cent per annum from the twenty-seventh of January, 1870, until paid, and costs in both courts.

Eon a Second Behearing.

Manning, C. J.

An opinion was read and judgment rendered in this cause last year. Upon application for a rehearing it was granted, and, a second judgment was rendered. This is an application for another, rehearing. We have said in the “succession of Milton Taylor,” wherein a similar petition was presented, that it is an innovation upon the established practice of this court, and is not warranted by the Code of Practice.- For that and other reasons this day assigned in rejecting the application in that cause, the prayer in this suit is refused and denied. .


author: SpbncBb,'J.

text:
    No. 6561.
    John A. Stevenson et al. vs. D. A. Weber et al.
    Tko action to annul a judgment must be brought before th.e court-which rendered it.
    Jurisdiction can not be given to a district court, by aggregating a number of co-plaintiffs, or co-defendants, where the sum claimed by, or demanded of, each, is less than five hundred dollars.

      A district court can not enjoin the execution of a judgment rendered by a parish court.
    The action to 'annul a judgment is prescribed in one year from, the date of the judgment,
    APPEAL from the Seventh Judicial District 'Court, parish of West Feliciana. Heioes, J.

      W W. Leake and Wickliffe & Fisher, for plaintiffs and appellants.

      S. J: Poioell and Kennarcl, Howe & Prentiss, for defendants.
   The-Opinion of the court was delivered by

SpbncBb,'J.

-The facts of-this case are as follows:

Picard & Weil, Stephen C. Sterling, the succession of W. D. Winter, deceased, and Samuel J. Powell each held the outstanding scrip of the parish" df West' Feliciana. They respectively instituted several suits against the parish, and after a protracted contest obtained judgments flxin'g'the amount of indebtedness, and also ordering the assessment and collection, of parish taxes to pay them under act No. 69 of 1869..

Two of these suits, to wit: No. 2496, C. J. Howell, for use, etc., and No. 2523, L. P. Day, for use, etc., being for amounts exceeding five hundred dollars, were instituted in the district • court; and judgments were rendered in faVor of plaintiffs.

All the remaining suits being for amounts less than five hundred dollars were instituted in the parish court'. In that court there was judgment in each case in favor of the parish, and plaintiffs appealed to the district court. All the judgments of the parish court were reversed by the district court on appeal, and judgments rendered in favor of plaintiffs and their execution ordered under act No. 69 of 1869.

Th'e demand in suit No, 2496 — Howell, for use, etc. — was for -his commissions as tax coRector-for collecting parish taxes for 1871. The demand in No. 2523 — Day, for use, etc. — was for building a bridge under a special ordinance of the .police 'j.ury in 1871. The demands in the other suits weredor sheriff’s fees Jn .criminal cases, coroner’s fees, jurors’ fees, parish attorney’s salaries, criminal expenses, expenses of the police jury, etc., being>the current expenses of the parish in part of the years 1868 to 1872:r . ' .

The parish of West Feliciana had by special ordinance of long standing required that all claims for its current expenses should be presented to the parish auditor; that they should be receipted by the creditor, and the auditor should issue his warrants on the treasury therefor.

In issuing these warrants (which it seems were payable .to order or bearer) the auditor frequently, for convenience of holders, when the claims were larger, subdivided the debt, and therefore several warrants were predicated1-'upon the same claim or account, and these warrants being transferable, became scattered in different hands, several persons holding-warrants resting- on the same claim.

It seems that in “ Sterling vs. West Feliciana,” 26 An. 59, this court held that no action wou d lie on these warrants, because the parish was without authority to issue negotiable paper, the court intimating on a rehearing that the parish might be- sued -on the original claims upon which these warrants were based and issued. Under the view we have taken of this case we are not called upon to pass upon these conclusions of our predecessors; but we see no good reason why a parish, if it honestly owes a debt, may not give an acknowledgment of it. True, this acknowledgment or warrant, even if negotiable in form, would not be commercial paper, or protected by the rules applicable to such paper, but it certainly would, if issued by authority of the parish for a just debt, be prima facie evidence of an obligation, and such as would sustain an action.

The said creditors, taking the hint thrown out by this court, brought against the parish twenty-seven suits — Picard & Weil brought five suits, two in the district court and three in the parish court- Powell brought'' two in the parish court; Sterling brought ten suits in the parish court; Mrs. Winter, administratrix, brought ten suits in the parish court. The plaintiffs declared on the original claims or debts, filing the warrants issued therein, and alleging the repudiation of the warrants by the parish.

Tnese suits seem to have been vigorously and thoroughly defended in both courts, and there.seems now to be no question as to the justness of the claims as'debts of the parish. The twenty-five suits instituted in the parish court were decided against the plaintiffs .therein,-who appealed to-the district court. The district court reversed the judgments of the parish court in all the cases and gave judgments for the plaintiff's, as it did also in the two cases originally brought therein. The court directed the assessment and collection of taxes to pay these judgments, according to act 69 of 1869. The defendants sought to appeal from these decisions in the parish-court cases, but it was refused. The only ground upon which such appeal could have been asked was that the tax imposed was illegal or unconstitutional. We are not called upon to say whether the appeal would in such case lie from the district court,/as the parties made no effort to enforce their right, if they had any, by application to this’ court. These twenty-seven judgments became final, neither the parish'nor the taxpayers who are plaintiffs in the suit at bar appealing taerefrom.

The board of assessors designated in the judgments proceeded to assess taxes to pay them in conformity to the decrees, and in their estimates they added nearly seventy-five per cent to the amount of the debt, to cover anticipated delinquencies. This was clearly illegal and excessive. They had no such right or power under the law.

• These taxes, amounting to twenty and a half mills on the dollar, having been thus assessed, the collector proceeded to collect them, giving notices that unless paid he would seize and sell, etc.

Thereupon several hundred taxpayers, whose names are set out in the petition, brought this suit in the district court enjoining the collection of the taxes so levied in execution of said judgments. They allege that they own several hundred thousand dollars of taxable property in said parish, and that their taxes under said judgments exceed five hundred dollars. They join all the said creditors as defendants in the suit, and pray that said judgments and the proceedings thereunder in execution of them be declared null and void for many reasons which it is not necessary.to state.

The defendants plead the following peremptory exceptions:

First — That the district court was without jurisdiction ratione material.

Second — That the judgments attacked were res adjudicata.

Third — Prescription of one year.

So far as.relates to the twenty-five suits brought in the parish court, it is manifest that an action to annul them can not be brought in the district court, for two reasons: First, because actions of nullity of judgments must be brought before the courts that rendered them. C. P. 60S, 609. Secondly, because the amount of each judgment attacked is less than five hundred dollars. The plaintiffs can not give jurisdiction to the district court by aggregating their own interests'on one side and opposing them to the interests of sundry persons holding distinct rights aggregated on the other side. Nor can an injunction be taken in the district court to prevent the execution of a judgment of the parish court. The assessment and collection of the taxes under the judgments of the parish court were only acts done in execution, and the injunction to restrain it must be taken out in the parish court. 23 An. 329. We tnink the exorbitant assessments good ground for injunction, but we can not grant relief in this action so far as relates to the parish-. court cases.

So far as the action of nullity is directed against the judgments rendered in the suits (No. 2496 and No. 2523) brought in the district court, we'think the plea of prescription of one year must prevail. The judgment In the first-numbered case was rendered on the twentieth of November, 1873, and in the latter on the twenty-first of June, 1874. This suit was brought and filed on the twenty-second of November, 1875 — more than one year after said dates. But the plaintiffs are entitled to relief against the assessments to pay these two judgments, and the injunction should be perpetuated as to them, and the said assessment set aside and avoided.

It is therefore ordered, adjudged, and decreed by the court that the judgment appealed from be avoided and set aside, and it is now ordered and decreed that plaintiffs’ suit, so far as it demands the nullity of the judgments rendered in suits brought before the parish court be dismissed and their injunction to the same extent set aside, reserving the plaintiffs’rights to proceed in the parish court.according.to law, and that plaintiffs pay costs of both courts so far as relates to these parish court cases.

It is further ordered and decreed that plaintiffs’ demand, so far as it relates to the nullity of the said two judgments in suits brought before the district court, be rejected; that the assessment of taxes under said two judgments be annulled and avoided, and that the board of assessors levy a new assessment according to law, at a rate per cent sufficient to pay said judgments; and that plaintiffs’ injunction as to the existing assessment for said two judgments be perpetuated; that Picard & Weil, plaintiffs in said two suits, pay costs of this suit as to those in the lower court, and plaintiffs those of this appeal.


author: Spencer, J. Egan, J.

text:
    No. 6453.
    The New Orleans Republican Printing Company vs. A. Dubuclet, Treasurer. H. Newgass, Intervenor.
    A devolutive appeal from a decree, refusing a mandamus on the Treasurer to compel him to pay relator a certain sum of money, will not restrain said sum in the Treasurer's hands.
    ^PPEAL from the Superior District Court, parish of Orleans. Lynch,

      H. H. Walsh, for intervenor and appellant.

      John Bay, for defendant.
   The opinion of the court was delivered by

Spencer, J.

On the eighteenth of April, 1876, the plaintiff filed a petition in the Superior District Court, alleging that said Company by contract became State Printer, and that for necessary work and material furnished during 1874 and 1875 the Auditor of Public Accounts had drawn his warrants in its favor on the treasury, against the-“general fund ” for those years to an amount exceeding $10,000, which warrants are now held by petitioner. That frequent and repeated demands for their payment had been made of the Treasurer, without effect, his excuse being want of funds. That for both of said years the Legislature had made appropriations largely in excess of the revenues, and-that the Auditor had issued his warrants for said appropriations, without discrimination as to whether they were for necessary expenses of the State government or not. That under the late amendments to the constitution it is made the duty' of the Legislature to provide for the payment of all necessary expenses of the State government out of the revenues, and it is further provided that the revenues of each year shall be devoted solely to the expenses of said year, and that all appropriations in excess of revenues shall bo null. That the Supremo Court in “ State vs. Clinton, Auditor, et al.” decided that the necessary expenses of the government must first be paid before those for other purposes, and that in case of excess of appropriation over revenues, those for other than necessary State expenses must fall. That the character of an appropriation is a judicial question, and not to be left to. the discretion of the executive ■officers. That under the system adopted by the Treasurer he can and does disburse the funds as he pleases. Petitioner therefore prays for an injunction forbidding the Treasurer paying any warrants on the general funds for 1874 and 1875 until after it shall be determined judicially whether each warrant was drawn for necessary expenses of the government, and be prohibited from paying any such warrants not so adjudged until after all those for necessary State expenses have been paid, etc.

A rule nisi was issued against the Treasurer, to show cause on the twenty-seventh of April, 1876, why the injunction should not bo granted as prayed for, and, pending the rule, restraining him as prayed for. On the twenty-seventh of April the Attorney General, for the Treasurer and State, filed an exception for answer, “that tho said petition and the allegations therein contained are not sufficient in law to authorize the relief prayed for in the same.”

On the twelfth of May, 1876, Herman Newgass filed an intervention, alleging that he held and owned 556323 80 of judges’ warrants, drawn on the general fund of 1875; that he has made frequent and repeated demands of the Treasurer for their payment, without effect, tho. excuse always being that there were no funds. He alleges that these judges’ salary warrants are for necessary expenses of tho State government; that the Legislature for tho year 1875 made appropriations far in excess of the revenues, and that the Auditor has drawn his warrants therefor without - discrimination; that said salary warrants must be paid by preference to those not for necessary expenses of the government. He adopts generally the allegations of plaintiff, and alleges that ho verily believes there is a large amount of money in the treasury “and now held by the Treasurer, by reason of an injunction from this honorable court.” He prays for judgment decreeing his warrants to be for necessary expenses of the government, entitled to be paid out of revenues of 1875 in preference to ordinary debts and appropriations, and for a mandamus on the Treasurer commanding him to pay relator the amount of Ms said warrants. On the twelfth of ¡May an order issuecFwfiieh was served on the nineteenth, commanding the Treasurer to show cause on the twenty-fifth of May why the mandamus should not issue. On the Mneteenth of May Newgass took a rule-on plaintiff to show cause why the injunction should not' be modified so as to perinit the Treasurer to pay his said warrants. On the twenty-second of May the exception filed by the Attorney General oh th'e’tWenty-seventh of ' April, was tried, and on the twenty-third of May the court sustained it, refusing plaintiff’s injunction and discharging the rule nisi, also dismissing the intervention of Newgass and refusing the-mandamus, and discharging Ms rule on plaintiff.for modification <?f the injunction. On the twenty-fifth of May Newgass on motion had his application "and rule nisi for mandamus reinstated on the docket and fixed for the twenty-seventh of May and then for the second of June,' on which last day it was taken up and tried. There Was judgment final for defendant, ordering and decreeing that the peremptory mandamus prayed for by re.ator and intervenor be refused and his'demand rejected, except that the warrants held by him should be recognized as for necessary expenses of the government.

From this decree Newgass avked for and prosecutes this devolutive appeal.

On the trial in the court below it was shown by relator’s attorney that on the. ninth of May, 1876, he called on the Treasurer and informed him that he had these warrants, and demanded their payment. The Treasurer replied there were no funds with which to pay them, and that if there were he could not pay them on account of the injunction.

The books and clerks of the treasury show that on the ninth of May there was to credit of the general fund for 1875, $7149 62, and that it was still there on the day of the trial, second of June, 1876.

It also appeared by said evidence that warrants to an amount much larger than the fund had been presented before Newgass presented his, and left in the hands of the Treasurer for payment out of this fund.

The defendant’s counsel urges various objections to relator’s protensions. It is only necessary to notice one of them :

The relator applied to the court for a mandamus to compel the Treasurer to pay his warrants, and the court ordered that the Treasurer show cause why the writ should not issue commanding him to pay them. On trial of this rule the court rejected relator’s demand and refused to grant the mandamus. The order to show cause undoubtedly had the effect to' prevent the Treasurer paying out the funds to relator’s prejudice. £ut on the trial this order or rule was discharged and set aside and its effects ceased. There was then no order or decree restraining the Treasurer from paying out the funds to other holders of warrants. The only mode of continuing the suspensive effect of the rule was to take a suspensive appeal from the decree discharging it. But the relator took only a devolutive appeal, which did not prevent the decree discharging the rule from going into effect, and did not continue to suspend the funds in the hands of the Treasurer. The Treasurer could not plead the pendency of such an appeal as reason for. holding the money in his hands pending the appeal. He is not obliged to. hold funds unless there is in operation an order so directing. The execution and effect of the decree discharging the rule not being suspended by the appeal, the Treasurer was at liberty to pay out the money. Under these circumstances it would be a vain thing and an injustice to order him to pay to the plain'iff what he may have already lawfully and in due course of business paid to others, and what may not now be in his hands.

It is therefore. ordered and decreed that the judgment of the lower court be affirmed, and that relator’s application for mandamus be refused.

On Application for Rehearing.

Egan, J.

Suits and matters of litigation must be determined by the condition of things existing when the proceeding is had or petition filed. The court sees no error in the reasons assigned for the decree rendered. Were it otherwise, however, applying the principle just stated to this case, the State Treasurer was enjoined by process and decree of court from paying out any part of the general fund in his hands at the time Newgass applied for the mandamus in this case. Mandamus would not lie to compel the Treasurer to disobey that injunction, and was rightly refused. There is no error in the decree sought to be opened. On this application the rehearing is refused.


author: DbBlanc, J.

text:
    No. 6474.
    Pierre Lannes vs. Workingmen’s Bank et al.
    The purchaser of property, sold for taxes in accordance with the provisions of law, holds, prima facie, after the delay for redeeming has expired, a valid title; and such title can not be disregarded, or assailed collaterally, like a simulated title, but must be attacked in a direct action to annul.
    REPEAL from the Superior District Court, parish of Orleans. Lynch,

      II. E. Upton and B. King Cutler, for plaintiff and appellee.

      Ilornor & Benedict and F. W. Baker, for defendants.
   The opinion of the court was delivered by

DbBlanc, J.

On the twenty-fourth of January, 1876, defendant filed, in the Superior District Court, a petition in which it alleges that Blaize Lannes is indebted unto it in the sum of two thousand dollars, with interest thereon at the rate of eight per cent from the tenth of October, 1873, the payment of which is secured by the vendor’s mortgage and privilege on two lots of ground, Nos. 5 and 6, of square No. 4,'situated in the Sixth District of the city of New Orleans, bounded by Levee, Jersey, Milan, and Marengo streets.

The amount sued upon is represented by four notes, of each five hundred dollars, bearing interest at tho rate and from the date aforesaid, 'drawn by Blaize Lannes to his own order and by him indorsed, payable respectively at one, two, three, and four years from the tenth of October, 1873, and now held by said bank.

In its petition of the twenty-fourth o£ January, 1876, defendant prayed for the seizure and sale of tho two lots subject to said vendor’s mortgage and privilege, to satisfy, in principal and interest, the four notes hereinbefore mentioned, and, besides, five per cent attorney’s fees, three dollafs and a half for a copy, and one dollar for a certificate, and the costs of suit. On tho twenty-fourth of January, 1876, the order then prayed for was granted.

The notes held by defendant were delivered by Blaize Lannes to his brother Martin, a part of tho price of a sale from Martin to Blaize of lots Nos. 5 and 6, in square No. 4. In said act of sale it is expressly stipulated that the vendor’s mortgage and privilege is retained in favor of any future holder of tho notes subscribed for said price, and that Blaize, the purchaser, would not sell; alienate, or encumber the property to the detriment of said act.

On the thirty-first of January, 187C, acting under tho writ of seizure and sale granted on the twenty-fourth of that month, the sheriff of the parish of Orleans seized and advertised for sale the mortgaged property. On the first of March, 1876, tho plaintiff, Pierre Lannes, a brother of Blaize and Martin, enjoined the bank and E. Waggaman, then sheriff of the parish of Orleans, from selling said property, on the ground that he owns and possesses tho same, by virtue of two valid and recorded 'deeds, one from tho tax collector of the Sixth District of the city of New Orleans, tho other from the State of Louisiana.

In answer to plaintiff’s injunction, the bank, after a general denial, specially denies the validity of tho title acquired from the State Collector, and confirmed by tho Auditor. It alleges that said sale is null and void, not only on account of the want of authority in the collector to make or give such a title, but also because said property did not belong, when sold by that officer, to.the person in whose name it was 'assessed.

In addition to these averments, the bank charges that none of the 'formalities prescribed bylaw for tho validity of a tax sale were complied with, and that the sale from the tax collector to Pierre Lannes was effected by collusion and fraud between said Pierre and his brother Blaize for the purpose of defeating the mortgage and privilege resting on said property.

The bank prays that the tax collector’s sale be annulled, plaintiff’s injunction dissolved, and he and the surety on his bond condemned in solido to pay twenty per cent on the amount of the execution enjoined, and, as special damages, the sum of five hundred dollars.

On the trial, plaintiff offered in evidence, first, the tax deed from the collector to him, executed on the fourth and recorded on the twelfth of August, 1875; second, the sale to him from the State of Louisiana, passed on the fourteenth and recorded pn the fifteenth of February, 1876.

The deed from the collector recites that said property was seized and sold to satisfy the taxes thereon due for the year 1873, and adjudicated to Pierre Lannes for $110, on condition that it could be redeemed within six months from the day on which it was sold, by the owner, or any creditor of the owner. The deed from the Auditor is the confirmation and ratification, in the name of the State of Louisiana, of the title transferred by the collector.

Defendant offered in evidence in its proceedings against Blaize Lannes the order and writ of seizure and sale, the return of the sheriff thereon, the notes delivered by said Blaize, and a copy of the act of sale from his brother to him.- That act contains the clause which, by tradition, we have been accustomed to consider as the pact de non alienando.

The bank also attempted to sustain the averments in its answer by extracts, documents, the testimony of the Lamieses and other witnesses; but plaintiff’s counsel objected to the introduction of that evidence, on the ground that, in this controversy, it was irrelevant and inadmissible ; that plaintiff owns and possesses under a title derived from the State, and the validity of his title can be inquired into but by a direct action.

The objections raised were maintained by the court, plaintiff’s injunction perpetuated, and defendant’s right to a direct action specially reserved.

From that decree the bank has appealed.

Had we found, in defendant’s pleadings, the charge that the mortgaged lots, though bought by Pierre Lannes, were bought for Blaize, and paid for with funds advanced by him; that the adjudication to Pierre was intended and concocted, not to displace or change the title, but to defeat the mortgage, and that, as between the two brothers, the transaction was and remains a simulation, we would not have hesitated to open the door to the rejected evidence, and assist the creditor in ferreting out any alleged simulation.

The taxes of 1873 were due by Blaize. The payment of these taxes was secured by a right bearing on the mortgaged property, a right superior in rank to any mortgage and privilege. To satisfy that right and those taxes, the property was seized, advertised for sale, adjudicated to plaintiff. He paid the price of adjudication; he paid that price to a State officer; that officer gave him a title to the property; that title was confirmed by the Auditor. That is not disputed. The deeds of sale from tho collector and the State are before us, and the constitution and the law command that such deeds shall be recorded, held, and recognized m prima fade evidence of a valid title.

We are in presence of an act which may be fraudulent, which may be annulled, but which can not be treated as an absolute nullity. With one exception, the authorities relied upon by defendant’s counsel refer — not to any contract or transaction which, though fraudulent, is not without consideration — but to those contracts which have no existence, and which are mere masks used by dishonest debtors to conceal their fraud. In this case there was a consideration, a price was paid, and if any fraud was planned and perpetrated, it was not between the vendor and the vendee, but between the vendee and the former owner.

The only apparent exception to the general rule, that no relative nullifies can be inquired into collaterally, that no actual sales can be annulled but in a direct act.on and contradictorily with all the parties, is that made in the case of Dupré vs. Thompson, reported in the twenty-fifth Annual, page 504, and which is different in more than one respect from tho present one. In that case, Mr. Justice Howell, with a majority of the court, held, too broadly, we conceive, that the validity of a tax sale can be raised by the plaintiff in execution, with no one else but said plaintiff and the ■purchaser as parties to the proceeding. The tax sale which, then, the •court had under consideration, was one made prior to the constitution of 1868, when the deed from the collector was insufficient to establish title, and in fact was not complete unless accompanied by proof of the existence and legality of the assessment. Besides, in that exceptional case, the owner had, within the delay fixed by law, offered to redeem the property, which had not passed from his possession. In this one, no-attempt to redeem was made by either the owner or the creditor, and the delay within which that right could have been exercised has expired.

Mr. Justice Wyly did not concur in the views expressed by his associates, and his dissenting opinion is but an additional link in tho unbroken chain of more than fifty decisions rendered by our court. He ■said: “ Until the tax sale is set aside in a revocatory action, contradicforily with all parties in interest, the creditor can not proceed to enforce .his mortgage, because, whether he has a mortgage or not still existing on the property depends upon tho result of the inquiry whether the ■sale to enforce the superior debt, the tax, was formal and valid. Until this result is ascertained in a proper proceeding the formalities necessary in a tax sale are presumed to have been observed ay the officers of the State and tho sale presumed to be valid.

“Like every forced alienation, a tax sale is liable to be avoided 'for relative nullities; but I have yet to learn that tho form of proceeding to ascertain these nullities is different in a tax suit from that in a judicial sale. Both kinds of sales are made upon the faith of the State. They are not snares laid to entrap honest bidders. The title given by the State, like that acquired at a judicial sale, is presumed to be valid until the contrary is shown in a legal manner.

“ It is only simulated éales that may be disregarded; actual contracts, though in fraud of creditors, must be attacked in a direct action.”

23 An. 44, 331; 13 An. 155; 14 An. 560, 495; 17 L. 517; 6 R. 21, 152; 6 L. 268; 9 L. 542; 4 An. 439; 3 L. 476; 1 An. 297; 4 L. 473; 8 L. 423; 1 L. 491; 11 L. 438; 6 M. 418, 574; 1 N. S. 537, 633; 23 An. 175; 24 An. 224; 25 An. 236.

There is no error -'n the judgment of the lower court.

It is therefore ordered, adjudged, and decreed that said judgment be 'and it is hereby affirmed at the costs of defendant in both courts.