author: Nigtiolls, C. J.

text:
    No. 13,195.
    C. T. Cade, Sheriff, and Ex-Officio Tax Collector vs. L. Mitchell. Consolidated With Cases 3249 to 3277.
    Syllabus.
    Neither Article 229 of the Constitution of 1898, nor Acts Nos. 115, 136 or 171 of 1898 have the effect of reinstating the parish of Iberia in the power and right of parish license taxation in the town of New Iberia;'

      ON APPEAL from the Nineteenth Judicial District Court for the Parish of Iberia. Voorhies, J.

      Todd & Davis, Weeks & Weeks for the Plaintiff and Appellant.

      L. T. Dulaney, Foster & Broussard and A. J. Oammack for the Defendants and Appellees.
    Argued and submitted June 2, 1899.
    Opinion handed down June 12, 1899.
    Rehearing refused June 27, 1899.
   The opinion of the court was delivered by

Nigtiolls, C. J.

The plaintiff, ex-officio tax collector of the parish of Iberia, in his petition, filed herein, alleged:

That the defendant is indebted to the parish of Iberia for the sum of five hundred' dollars, with two per cent per month interest thereon, from March 1st, 1899, for this:

That since the beginning of the present year, 1899, in the town of New Iberia, (Parish of Iberia), and without having at any time procured, paid or obtained therefor the required parish license, in accordance with Article 229 of the Constitution of 1888, the said Mitchell had carried on the business of keeper of a bar room where spirituous," vinous, and malt liquors were and are sold and dispensed, by drinks or glass, and in quantities less than a pint; that under the law he is entitled to a rulo in the premises and to ,a summary trial, hearing and judgment.

He prayed, in view of the premises, that defendant be ruled to show cause why he should not forthwith pay the amount of the license, penalties and interest claimed or be ordered to cease from further pursuit of the business; that the rule be made absolute and judgment rendered for the State as claimed.

Defendant for answer averred that he could not be held liable for the five hundred dollars claimed as license due to the parish off Iberia, for the following reasons:

1st Because he was a resident of and carried on a liquor busisnesswithin the incorporated limits of the town of New Iberia, and the police jury of Iberia parish had no jurisdiction within the incorporated limits of the said municipality, and the attempt of the police jury to impose and collect a license tax to any amount from him was an unwarranted and illegal attempt to usurp powers which had been specially denied to and taken away from said police jury, and because said attempt to impose and collect a license tax for general parochial purposes from himself doing business within the incorporated limits of New Iberia was in violation of a prohibitory law of the State of Louisiana, and all and every resolution of the police jury by which it was attempted to impose said license tax, was absolutely null and void.

2nd. That he denied that Article 229 of the Constitution of the State of Louisiana gave the police jury of Iberia parish the right to assume and exercise any jurisdiction within the incorporated limits of the town of New Iberia, or that the General Assembly had enacted any enabling act giving thereto any force or effect, and he averred that the object and purpose of the law-makers in adopting the said Art. 229 of the Constitution was to provide a way by which municipal corporations not exempted by special laws from police jury jurisdiction might exclude the parish from the imposition of a license tax upon a business or occupation carried on within the incorporated limits of the municipality.

3. The municipal authorities of the town of New Iberia had imposed upon all retail liquor dealers within the incorporated limits of the said town a license tax graduated as the law requires, and ranging in amounts from one to six hundred dollars, according to gross receipts of the business done and the action and attempt ®f the police jury of Iberia to impose a license tax not graduated according to law as was now being attempted, was in violation of Article 229 of the Constitution of the State, and absolutely null and void, as was also the ordinance of the police jury.

He prayed that the demand of the plaintiff be rejected; that the rule be discharged; that the ordinance of the police jury of Iberia parish levying said tax be declared and decreed null and void.

The District Court rendered judgment discharging and dismissing the rule, with costs, and plaintiff appealed.

Twenty-eight rules of similar import to that herein were issued against different parties whose names, as well as the numbers and the titles of the proceedings against them, were given in the transcript.

Th following agreement was entered into between the parties and tiled in this case: '

“It is agreed in the following eases (naming them), between .coun-sel of the tax collector and for the defendants, that the. following

■ cases are to be called and tried on the following admissions to be noted von the minutes.

The plaintiff will offer in each ease ordinance of the police jury imposing license on grog shops and vendors of spirituous liquors throughout tho parish of Iberia, of five hundred dollars.

1st. The defendant, to admit in each case that he is a retail vendor of spirituous liquors and sells and has sold since January 1st, 1899, liquors spirituous and malt, at his store, place of business in Now Iberia, Louisiana.

2nd. Defendant admits that he has been called on by the tax collector of Iberia parish, or his deputy, for the parish annual license of 1899, and has declined to pay and not paid same.

3rd. It is admitted by the plaintiff that the license imposed by tho town of New Iberia has been paid by the defendants, and that the defendants oppose tho payment of the parish license on the ground that the parish license (that is, the liquor license imposed by the police jury of Iberia parish), cannot be collected within tho corporate limits ■ of the town of New Iberia for the reasons filed, for all the defendants, .the same as in the case of C. T. Cade, Tax Collector, vs. L. Mitchell.

It was further admitted that all the defendants in all the cases (excepting C. C. Weems), are residents of and carrying on their business •within tho corporate limits of the town of New Iberia. ■ Plaintiff ■offered in evidence the ordinance of tho police jury of the parish of Iberia referred to in his petition, and defendant, the charter of the town of New Iberia, together with amendments thereto, and especially amendment contained in Act No. 107 of 1868, and amendments adopted by vote of the people of New Iberia on the 28th of December. 1880, under authority of Act 110 of 1860, and amendments adopted by Act No. 130 of 1898.

The General Assembly of Louisiana by Section Eleven of the Acts ,of 1842, page 440, declared “That the police juries of tho different ■parishes having a right to a police power, have the right to impose ■whatever parish tax they see fit on grog shops, all laws or parts of laws rto the contrary notwithstanding.’.’ . . .

The various powers and duties of police juries were set out later -than this in Section 2743 of the Revised Statutes of 1870. By the :sixth clause of that section they were authorized “to regulate' the police of taverns and houses of public entertainment, and shops for retailing liquors in their respective parishes; and to impose whatever parish tax they may see fit on all keepers of billiard tables and grog shops, and all hawkers, peddlers and trading boats.”

This power was very considerably modified by Article 206 of the Constitution of 1879, which read as follows: “The General Assembly may levy a license tax and in such case shall graduate the amount of such tax to be collected from the persons pursuing the several trades, professions, vocations and callings.

All persons, associations of persons, and corporations pursuing any trade, profession, business or calling, may he rendered liable to such tax except clerks, laborers, clergymen,' school teachers, those engaged in mechanical, agricultural, horticultural and mining pursuits, and manufacturers other than those of distilled, alcoholic or malt liquors, tobacco and cigars, and cotton seed oil. No political corporation shall impose a greater license tax than is imposed by tho General Assembly for the State.”

The Constitution of 1898, in its Article 229, perpetuated Article 206 of the Constitution of 1879, with the added words, however: “This restriction (that upon the political corporations of the State) shall not apply to dealers in distilled alcoholic or malt liquors. The General Assembly shall have authority to provide that municipalities levying license taxes equal in amount to those levied by police juries for parochial purposes, shall be exempted from the payment of such parochial licenses.”

The town of New Iberia (then in the parish of St. Martin) was incorporated by Act No. 16, of the General Assembly, approved March 13, 1839.

Its charter was amended by act approved March 14, 1855, and again by Act No. 107, of 1868.

In the first section of the latter ac-t the town was granted all the rights and powers of a political corporation, with power to raise money by taxation on all property movable and immovable, provided the same he equal and uniform in value, and by taxing merchants, retailers, grog shops, billiard tables, hawkers, peddlers, shows, circuses, menageries, concerts, etc., and male citizens above twenty-one years of age, in such amounts as may bo deemed expedient within the limits aforesaid, provided the amount of tax so to be laid shall not exceed the parish tax in any one year.”

The fourth section of the act declared that “from and after the passage of the act, the police jury of the parish of St. Martin shall no longer exercise any jurisdiction within the limits of said town of New Iberia or impose any tax on property or persons therein except to impose such special tax as may be required to repair the courthouse or-jail of said parish.”

The police jury of St. Martin having lost jurisdiction over the territory cut off from that parish in the creation of the new parish of iberia, the General Assembly, by Act No. 208, of 1868, (the 16th Section of that Act), declared that “the police jury of Iberia shall have all the powers that are now possessed by and be subject to all the duties that are now enjoined upon the police jury of the parish of St. Martin.”

On the 28th of December, 1880, a number of amendments to the charter of the town of New Iberia were adopted by a vote of the people of that town, at an election held under Act No. 110, of I860. The 14th of these amendments declared “that the police jury of the parish of Iberia shall not exercise any jurisdiction within the corporate limits of the town of New Iberia, or impose any tax on property or persons therein, except such special tax as may be required to make or repair the courthouse or jail of said parish.”

On July 13th, 1898, the General Assembly passed Act No. 130, entitled “An act to amend and re-enact Act No. 16, of 1839 - — An act to incorporate the town of New Iberia, in the parish of St. Martin,, and for other purposes;” also Act No. 107, of 1868, entitled “To amend an act entitled an- act to amend an act to incorporate the town of New Iberia, in. the parish of St. Martin, and for other purposes,”' approved March 13th, 1839, and acts “amendatory thereof, approved March 14th, 1855, and also certain sections of the amended charter of the town of New Iberia, adopted by a vote of the legally qualified voters thereof at an election held on the 28th of December, 1880.”

By the 1st section of this act, the town was granted “the power and right of raising money by imposing and levying taxes and Iicensesupon all kinds of property, movable and immovable, and all persons, associations of persons and corporations pursuing any trade, profession, business or calling, except such as may be exempt from taxation and license under the Constitution of the State. Provided no license greater than that imposed by the Legislature and collected for the-State shall be imposed and collected.

The General Assembly at the same session enacted Acts Nos. 136' and 171. The first of these acts was approved July 13th, 1898, and was entitled “An act for the creation and government of municipal corporations throughout the, State, and defining their powers and' duties, and providing for the extension or contraction of their limits.”’

By the 17th section of the act, cities and towns having more than, two thousand inhabitants were authorized “to, levy and collect a license tax upon and regulate all callings, trades, professions and occupations, conducted, pursued, carried on or operated within the city or town, and when the license taxes equal in amount those levied by the police jury for parochial purposes, there shall not be collected any parochial licenses.”

By the 40th section it was enacted that “after the act should become operative every municipality in the State should exercise the powers-conferred therein on the class to which it belonged and should be governed by the provisions thereof, provided the provisions of the act should not apply to any existing municipality unless thereafter by a majority vote of the electors therein, to be cast at a general or special election for the purpose, it be determined to come under the operation of the act,” but it was further enacted “that until the acceptance of the 'act as provided for therein, the corporate powers, rights and franchises thereof should be and remain as then provided by law ”

The second of the acts referred to (Act No. 171 of 1898), was entitled “An act to levy, collect and enforce payment of an annual license - upon all persons or business firms and corporations pursuing any trade, profession, vocation, calling or business except those who are expressly excepted from such license tax by Article 229 of the Constitution, and prescribing the mode and method in which certain persons subject to license shall make report of their business.”

The 13th section of the act imposed and graduated a license tax upon-the business of bar room, cabaret, coffee house, cafe, beer saloon,, liquor exchange, drinking saloon, grogshop, beer house, beer garden, or other place where anything to be eaten or drunk on the premises is sold directly or indirectly.

The 16th section enacted that any municipal or parochial corporation in the State shall have the right to impose a license tax on any business, occupation or profession, provided for in that aet, provided, that all such license tax should conform to the provisions of Article-■229, of the Constitution.

Opinion.

The contest in this case is between the parish of Iberia claiming to have the right to impose a license upon liquor dealers doing business in the town of New Iberia, and certain dealers of liquor in said town resisting the collection of the license from them, upon the ground that the parish is without power or authority to impose parish licenses in •that town. The licenses sought to he collected are for the year 1899. Defendants’ defense is based upon Act No. 107 of 1868, declaring that the parish of St. Martin should no longer exercise any jurisdiction within the town of New Iberia, nor impose any tax on the property or persons therein, except to impose such special tax as may be required to make or repair the courthouse or jail of said parish— upon Act No. 208 of 1868, extending or rather making applicable to the parish of Iberia the same provisions on this subject as were contained in Act No. 107 of 1868, to the parish of St. Martin, and upon the 14th amendment to the town charter to the same effect, adopted on the 28th of December, 1880, by a Vote of the people of the town.

The parish of Iberia contends that the declaration in Section 4 of Act No. 107, of. 1868, that the parish, “should not impose any tax on property or persons in the town of New Iberia, left still in the parish of St. Martin, or Iberia, the right to impose “license taxes” in the limits of the corporation.

Its argument is that “a license tax” is not a “tax upon persons,” hut one upon “callings” or occupations.

That besides these two classes of taxes there is a distinctly recognized class — a “tax upon persons.”

That such tax is a per capita tax, as for instance, a poll tax- — a tax on individual citizens for road purposes, etc., and it is this last kind of taxes which the Legislature declares shall not be levied in the town.

We are not required in this case to discuss whether the Legislature in using the words “tax on person,” was using them with the narrow ' meaning contended for, or in their usually accepted meaning, as a tax to be due by and to be collected from the persons following the different occupations or callings iipon which a license was to be imposed, for the reason that after stating that taxes shall not be’imposed by the parish upon property or persons, the Legislature proceeded to specify and fix the single tax which it was authorized to impose in the town, to-wit: a tax for the repair of the courthouse and jail of the parish.

After withdrawing’ the jurisdiction of the parish in the town, the-law-maker reinstated it to some extent, but in doing so it affirmatively fixed the limit of the reinstatement and limited it to taxation for courthouse or jail building or repair.

We are not discussing now the powers of the corporate authorities-of the town, nor the rights of the individual citizens thereof, but the powers of the parish of Iberia. That parish took the powers which the Legislature thought proper to confer upon it, those and no more.

The measure and limit of its rights was to be found in the various legislative acts bearing upon its powers.

We think the intention of the Legislature was manifestly to confine-the power of the taxation by the parish within the corporate limits of New Iberia, to the taxation for the purpose specially referred to, that in aid of the building and repair of the parish courthouse and' jail.

Counsel for the parish claim that the Legislature was without constitutional authority to exempt the citizens and people of New Iberia from license taxation, that Article 118 of the Constitution of 1868 constitutionally barred such legislation. They say that that article declares that the General Assembly shall levy a tax upon all persons pursuing any occupation and all such persons shall obtain a license as provided by law.

They refer the court in support of this contention to' Section 2'T43 of the Revised Statutes, to parish of Plaquemine vs. Bowman, 30 Ann., 1403 — to City vs. Savings Bank, 31 Ann., 639, and Walter vs. Tax Collector, 31 Ann., 668.

.Article 118 of the Constitution of 1868, dealt not with the subject of license taxation in either parishes or towns, for parish or town purposes, but with license taxation for State purposes in the State at large, under a' direct levying by the General Assembly itself, of taxes of that character.

The article of the Constitution cited did not require, as counsel states, the Legislature to levy such taxes. The article readá: “The General Assembly may levy an income tax upon all persons pursuing - any occupation, trade or calling, and all such persons shall obtáin a. license as provided by law, all tax on income shall be pro rata on the .amount of income or business done.”

The power and control of the Legislature over political corporations in the State was not trammelled under the Constitution of 1868, .as they were under that of 1879.

The Legislature had at the time of the passage of Act 107 of 1868, the right to either extend or limit the powers of the parish of St. Martin.

That parish, in its political capacity as a parish, had no constitutional right to call in question legislative action on that subject.

The Legslature in the Act of 1868 did not deal directly with the citizens of either the parish of St. Martin or those of the town of New Iberia. If the latter were affected in any way, it was by way ■of the effect of the action of the General Assembly dealing with a political corporation over the extent of whose powers the Legislature had a power of control not fettered by Constitutional limitations.

The General Assembly of 1868, for reasons deemed good and suffi■cient by itself, thought proper to split the power of license taxation inside of the parish of St. Martin into two parts, conferring part of the same upon that parish and part upon the town of New Iberia.

What those reasons were we do not know, nor are we called on to ascertain or explain them. This action was political in character and not subject to the control of the judiciary.

Counsel directed our attention to Act No. 115 of 1898, amending and re-enacting Section 2743 of the Revised Statutes, and particularly to the 6th Section of that Act, which in general terms, confers upon police juries the right to regulate the police of taverns and houses of public entertainment and shops for retailing liquor in their respective parishes, and to impose whatever parish tax they may-see fit, on all keepers of billiard tables and grog shops, and on all hawkers, peddlers and trading boats.” They say the effect of this act, passed in 1898, was to reinstate the different police juries in the position which they held in 1842 and in 1870, and to give a general power of license, taxation over their entire parishes, and to repeal all special laws at variance with this power. Section 6 of Act No. 115 of 1898, is an exact reproduction of clause 6 of Section 2743 of the Revised Statutes, and its presence in the Act of 1898 was not for the purpose of widening the scope of that clause as then existing, but simply to comply with the requirements of law in amending an existing statute. A reading of the act of 1898, and a comparison with Section 2743 as it stood in 1898, prior to Act No. 115, will snow the intended scope of the new law.

We do not think that Article 229 of the Constitution of 1898 has .any bearing upon the issue involved in this case.

The question is not what amount of license the parish could or could not have imposed on the town in 1899, but whether it ha.d the power to impose any license at all.

The article does not pretend to take up cases of specially, existing ■exemptions of certain towns from parochial license taxation to repeal the same and to make future municipal .exemption from such taxation to be extended only to such municipalities as should levy license taxes equal in amount to those levied by police juries for parochial purposes.

The article, such as it is, is not self-operative'. It is a mere enabling article, placing it in the power of the General Assembly should it so elect to do, to hereafter withdraw from parochial license towns occupying the position referred to in the article. The Legislature has availed itself of that faculty in Section 17 of Act No. 136, and declared that where license taxes in municipalities equal in amount those levied by the police jury for parochial purposes, there shall not be collected in those municipalities, any parochial licenses.

It has nowhere said that in municipalities where such a condition does not exist parish licenses shall be collected, notwithstanding they may have been exempted from such taxation by special laws or charters.

On the contrary, the Legislature in the 40th Section of Act No. 136, has announced that its provisions were not intended to apply to existing municipalities, unless by vote of their people they should elect to make them apply, and that until they should have so elected their original corporate powers, rights and franchises should be and remain as they were existing at the date of the passage of the law.

We think the judgment of the District Court correct and it is hereby affirmed.


source: Caselaw Access Project

author: Nioholls, C. J.

license: Public Domain

text:
    No. 13,230.
    State of Louisiana vs. James Fuselier and Felix Olivier.
    Syllabus.
    In tie absence of a bill of exceptions the Supreme Court can not arrive at a knowledge of what was or was not proved in the court of a criminal trial. Statements in a motion for new trial and in the reasons of the judge for refusing the same are not equivalent to a bill of exception in informing the appellate tribunal upon the evidence adduced in the court below.
    ON APPEAL from the Nineteenth Judicial District Court for the Parish of St. Martin. V'oorhies, J.

      M. J. Cunningham, Attorney General, and James ¡Simon, District Attorney, for the Plaintiff and Appellee.

      J. E. Mouton 'for the Defendant and Appellant.
    Submitted on briefs June 24, 1899.
    Opinion handed down June 26, 1899.
   The opinion of the court was delivered by

Nioholls, C. J.

The present appeal has reference to the verdict of the jury and the judgment of the court of St. Martin as concerns the defendant, Felix Olivier; the appeal taken by James Fuselier from the verdict and judgment against him having been already passed upon by this court.

James Fuselier and Felix Olivier were jointly indicted for the murder of one Felix John. The jury found them guilty of manslaughter and recommended them to the mercy of fhc court. The District Court sentenced Olivier to pay a fine of one dollar, and to imprisonment at hard labor for two years, and he appealed.

He had prior to judgment, moved for a new trial, which was overruled. The minutes show the overruling of the motion, and state that defendant reserved a bill of exception to this ruling, but there is no bill found in the record.

In the application for a new trial his counsel made a statement of facts claimed to have been shown on the trial oT 'the cause. According- to this statement, Olivier accompanied Fuselier to the house of Felix John’s mother, for the sole purpose on the parTT of Fuselier, as he supposed, of asking- the mother to correct Her son for having-cursed and insulted his daughter. When they reached the house a conversation took place between the mother and Fuselier, the latter insisting that the boy should be punished, and the mother refusing to do so. The boy, who was present at the time, started to run, and when he had run about fifteen steps the gun in the hands of Fuselier was discharged or fired, the shot from the gun (bird shot No. 12), taking offcc-t on John’s person. At this time Olivier stood a distance off from Fuselier, and John’s mother, having taken no part in the conversation and having at no time and in no manner engaged in the difficulty, and doing no deed and having committed no act in the least unlawful, or in any way criminal. From the time of their arrival at the mother’s house to the time of their departure, and during the time they remained there, the State’s evidence proved that Olivier took no part in the affair, and did not so much as speak or utter a single word. There was but one wound inflicted, and that wound was shown and was admitted to have been inflicted by the £un then held by Fuselier, and that wound was the cause of death. Upon the evidence, and upon the judge’s charge, under the indictment for murder, the jury returned a verdict of “guilty of manslaughter, recommended to the mercy of the court.” It was contended “that under the evidence as aforesaid, and under the laws of the State of Louisiana, that said verdict so far as concerned Olivier, was ineffectual, illegal and null, in this: That Olivier, though indicted jointly as principal with Fuselier, for the crime of murder, was so indicted as one present, aiding and assisting Fuselier, the one principal in fact and by whom alone the act was shown to have been committed.”

“That by the verdict rendered, no murder had been committed,'and Fuselier, standing acquitted of that charge, but convicted of manslaughter, and the crime of manslaughter in law admitting of no accessories before or after the fact, Olivier, though present at the time, being shown to have taken no active part toward the infliction of the wound or otherwise, could not be held under the verdict rendered. That the verdict- was not supported by, but was repugnant to law; that is, it was contrary (so far as concerns Olivier), to the evidence adduced on the trial by the State itself, and was so rendered against Olivier, owing to a misconstruction or misunderstanding of the law by tbe jury, and under an erroneous impression that one and the same verdict must have been rendered against both defendants.”

The District Court, in its reasons for overruling the motion, said: “The court admits the correctness of the proposition that there can be no accessory to manslaughter before the fact, but Olivier was not indicted, nor prosecuted as an accessory before the fact in this case —both the accused were charged as principals for murder. The verdict of the jury, finding Euselier technically guilty of manslaughter, and Olivier substantially of that crime, cannot be construed as finding the latter guilty as an accessory before the fact, but guilty as a principal, aiding and abetting.”

“The fact of Olivier’s being an aider and abettor was one which it was the province of the jury to determine, and the court does not feel justified to set aside the verdict in this respect.”

Appellants’ position is evidently that the allegations of his motion, coupled with the reasons assigned by the District Court for its action and the deelaraton made in the minutes that he had reserved a bill of .exceptions, place him before the court as if the ease were before us on a bill of exceptions — the allegations of the motion taking the place of the recitals of a bill and the court’s reasons for overruling the motion for a new trial taking the place of the customary addendum of .the judge to a bill.

Basing himself on the correctness of this proposition, he assumes that the District Court not having denied or negatived the statements of facts averred in the motion, they are to be taken as true by this court. Counsel is entirely wrong in supposing it to be the duty of the District Court, in overruling a motion for a new trial, to make any statements as to what the testimony was, or what it tended to .show, or wherein defendants’ averments in the motion were unfounded -or unwarranted.

Defendant is authorized to take a bill of exception to the court’s : action and therein to give his version as to what he conceived had 'been shown on the trial, and that is the proper occasion and place for the judge either to deny defendants’ assertions or to acquiesce in their correctness. He' is not required at the time of overruling a motion for a new trial to assign the particular reasons which controlled his action, and he certainly would not expect, should he think proper to make known to a certain extent what those reasons were, that he should be held to have thereby admitted all the allegations of the motion for a new trial which those reasons did not expressly reach or cover. .

There is nothing in'the record by which we can come to a knowledge legally of the facts of this ease. Olivier was not indicted for murder as being “one present, aiding and assisting Fuselier," as asserted in the motion for a new trial. The indictment charges that one James Fuselier and Felix Olivier, unlawfully, feloniously, wilfully, and of their malice aforethought, killed and murdered Felix John. The jury having found both accused guilty of manslaughter, we are bound to assume that both parties, under the evidence, stood so circumstanced as to the commission of the crime as to warrant and legally justify that verdict.

We find no ground for setting aside the verdict and reversing the .judgment.

The judgment appealed from is affirmed.


author: Nicholls, O. J.

text:
    No. 13,184.
    D. A. Breard, Jr., vs. Robert B. Blanks.
    Syllabus.
    1 in the trial of suits for settlement ot partnerships, the accounts referred to by witnesses while giving their testimony should be offered in evidence and died in the record, in order that the Appellate Court as well as the court of first instance may know what the accounts as a whole actually show (47 Ann., 204).
    2. Where it is apparent that contracting parties have not understood each other, their rights in the subject matter of the contract will be determined from their acts and deeds with reference thereto and not from their contradictory assertions of the agreement given at the trial of a suit instituted for a settlement of their interests growing out of the contract.
    3. The joint purchase of property by several does not of itself constitute a partnership. (C. C. 2806; 4 Ann., 216.)
    ON APPEAL from the Fifth Judicial District Court for the Parish of Ouachita. Potts, J.

      Stulls & Bussell for the Plaintiff and Appellee.

      Hudson, Potts & Bernstein for the Defendant and Appellant.

      Argued and submitted Hay 30, 1899.
    Opinion handed down June 22, 1899.
   The opinion of the court was delivered by

Nicholls, O. J.

This is a suit for the settlement of a partnership - between the plaintiff and defendant, involving the ascertainment of the interest of each partner in the profits made in operating a saw and planing mill; the share of each in the proceeds of the sale of a lot of lumber acquired by the partners when they purchased the mills, an account of which was kept separately from the sales of lumber manufactured by the firm, and the distribution of the money realized-by a sale of the plant at the termination of the partnership.

The plaintiff alleges that on the 2nd day of October, 1897, the defendant. at sheriff’s sale, acquired of the property formerly composing the sawmill site of the Sheets Lumber Go., Limited, in Ouachita parish, five acres of land, with the residence, buildings and improvements thereon, for the price of three thousand and fifty dollars, also fifty-eight acres of land, for the price of one thousand, four hundred and twenty-five dollars.

That on or about the 4th of December, 1897, he. acquired in conjunction and in indivisión with the defendant, at sheriff’s sale, of the property of the Sheets Lumber Oo.,-Limited, a certain described tract of land containing fifteen and eight-tenths acres, together with the sawmill and planing plants, tramways, machinery, etc., thereon; and a lot of lumber upon the same, for the price of five thousand five hundred and twenty-five dollars, of which he paid one-half the price.

That he then began to operate and conduct said saw mill in partnership with defendant, under the name and style of the.Pargoud Lumber Oo., the partnership being composed of himself and defendant as equal partners.

That it was understood at the time of the formation of said partnership, that the property acquired by defendant in October, should be put into and made a part of the assets of the partnership, and defendant continually promised during the existence of the partnership to convey an undivided half of the property to petitioner for the price and sum at which he had acquired said half interest, but he failed to carry out his agreement during the existence of the partnership.

That during the time the partnership was in existence valuable and permanent improvements were made by the firm to the property belonging to petitioner and Blanks, the defendant, by the purchase of machinery, which cost two thousand and seven hundred and ninety-eight dollars.

That said saw and planing mills belonging to the parties were operated and the business in connection therewith was conducted for joint benefit of petitioner and his partner, until the 19th of May, 1898, when it was dissolved by a sale of all the partnership property.

That the firm business was prosperous; that the lumber which he and defendant bought with the mills was sold for their joint account and brought the sum of eight hundred and three dollars and ninety-eight cents; and that the lumber manufactured by the firm sold for at least twelve thousand dollars; that after deducting all expenses of operation, petitioner’s share of the net profits amounts to at least three thousand dollars, if not more, which, in addition to one-half of the eight hundred and .three 98-100 dollars, he is entitled to recover.

That about the 19th day of May, 1898, petitioner made a deed to defendant of hfs undivided half interest in the property belonging to them as aforesaid, to enable defendant to consummate a sale of the same, which lie made, to a third person.

That defendant paid petitioner no part of the price stipulated in said deed to have been paid, and he gave petitioner a counter letter in which he acknowledged that fact, and that payment was to be made in the settlement of the affairs of the Pargoud Lumber Co., and said price was arbitrary and did not represent the real value of his interest.

That after the execution of said deed, defendant sold all of said property to the St. Louis Eau Claire Lumber Co., for twenty-five thousand dollars; five thousand dollars of said price being included in the price stipulated in a deed from the defendant and John P. Parker, to the same company, of an undivided three-fourths interest in 647 acres of land for the purpose of concealing from petitioner the fact that -the property belonging to him and defendant had sold for twenty-five thousand dollars, the lands sold by defendant Blanks, and Parker having really been sold for $750, instead of $5750, as expressed in that deed.

That on a settlement of the partnership he is entitled to recover ■one-half of said sum of twenty-five thousand dollars, less- one-half of the price paid by defendant for the property purchased by him at sheriff’s sale, iu October, 1897, in pursuance of the agreement of defendant to the effect that' same should become partnership property,- and in the event the court should hold that said agreement was not binding on defendant, he was entitled to share in the aforesaid sum of twenty-five thousand dollars, in the proportion that the price paid: by defendant and himself for the property owned by them, to-wit: five thousand five hundred and twenty-five dollars ($5,525), added to-the cost of the improvements made thereto, to-wit: The sum of two' thousand seven hundred and ninety-eight dollars and eighty-one cents-($2,798.81-100), aggregating the sum of eight thousand and three1 hundred and twenty-three dollars and eighty one-cents ($8,323.81-100) bears to the price by him paid to Blanks for the property acquired individually.

That at the termination of the business the defendant took control of the assets of the firm, received all monies realized from sales of lumber and earnings of the business; collected all amounts due the firm; disposed of all property belonging to it; receiving the price therefor, and is now in possession of all funds so received.

That he had been unable to obtain a settlement. of the partnership and to obtain payment of the sums due him by defendant, and that he had received out of the business two thousand, seven hundred and sixty-two dollars, and fifty cents, on account, and in partial settlement of his-interest in the partnership.

That his interest in the partnership is' worth at least ten thousand dollars, exclusive of the said sum so- paid to petitioner and that defendant will owe him on a settlement (exclusive of said amount received), that amount, if not more. '

He prayed for citation; that the partnership be settled and liquidated; that his interest in the assets of the partnership and Hs share in the profits and value of all property formerly belonging to the-partnership, and to petitioner, and to defendant, and sold by defendant, and of all monies collected and received by Em for account of said partnership, be ascertained and that he have judgment against defendant for ten thousand dollars, or for whatever sum should be found due him on a settlement of the partnership, with legal interest from judicial demand.

Defendant first pleaded an exception of no cause of action. He then answered, pleading first the general issue.

He averred that on the 18th of May, 1897, when a receiver was appointed to the Sheets Lumber Co., Limited, it was largely indebted to the Merchants and Farmers’ Bank, of which defendant was then and was still president, and to the Ouachita National Bank, of which plaintiff was then and was still president.

That on the 2nd of October, 1897, he purchased at receiver’s sale of the said company’s property, the property which the plaintiff in his petition alleged he had then bought; that subsequent thereto on or about the 4th of December, 1897, respondent and plaintiff, in order to secure the eventual payment of the debts due the Merchants and Farmers’ Bank and the Ouachita National Bank by the Sheets Lumber Co., Limited, or as much thereof as possible, made and.entered into an agreement to purchase at receiver’s sale, the, saw mill and planing mill, plant, tramway, etc., attached thereto, and in the event they should become the purchasers they should operate the same for the joint benefit of said banks until the full payment and discharge of the debts due the same from the proceeds of operation or sale of said plant and if the said proceeds or operation, or sale, should be insufficient to discharge entirely each of the said debts, then the same should be divided between the two banks ratably as the debt due each of them by the Sheets Lumber Co., bears to the aggregate of said proceeds.

That pursuant to said agreement, respondent and plaintiff attended said sale and thereat purchased the said saw mill and planing mill plants, tramways, etc., attached thereto, together with a lot of old odds and ends, and fifteen and eight-tenths acres of land upon which the- same were located and constructed, and all the notes, books and' accounts, rights and credits of the Sheets Lumber Co'., Limited, and thereafter began and continued the operation of said plant under said' agreement until a sale of same, about the 20th of May, 1898.

Respondent admitted that the property purchased by him on the-20th of October, 1897, at the receiver’s sale, was to be included in the agreement between plaintiff and himself, and its proceeds when-sold accounted for along with the proceeds of operation and sale of the saw and planing mill plant proper, the old lumber, notes, books, accounts, rights and credits, purchased on December 4th, 1897, but he denied that the undivided interest in the one hundred and forty-seven acres of land purchased at said sale by respondent and J. P. Parker, entered into said agreement, was contemplated by it, or that plaintiff had then or ever had had any interest therein of any kind, ■character or description.

lie averred that in the purchase of said property and its operation as set forth in plaintiff’s petition, plaintiff and himself were acting merely as the trustees for said Banks, for their benefit and advantage, and all sums paid were paid for and on account of said banks.

That plaintiff had contributed nothing to pay for said purchases, the small sum advanced by him having been returned to him long since at his urgent solicitation and request.

That plaintiff took charge of all the notes and accounts, books and papers, rights and credits purchased by them, as stated, and had rendered no account of the collections therefrom.

That he, respondent, was compelled to superintend the operations of said plant alone, because plaintiff refused to give it any attention whatever.

That during the time said plant was being operated by plaintiff and himself, valuable improvements were -put on the property and much machinery was purchased, amounting to several thousand dollars, but he denied that plaintiff contributed anything whatever toward paying therefor, and he averred that the same was paid for by respondent.

Respondent admitted that the operation of the mill was profitable, but he denied that the profits were anything like the sum plaintiff alleged them to be. Ho averred that he, as well as plaintiff, was desirous and anxious for a settlement of said business, and was more than willing to render a faithful and true account of matters and things entrusted to him and relating to said plant and property on the trial of the cause upon the basis understood and agreed' upon, to-wit: Ratably between the Merchants and Farmers’ Bank and the Ouachita National Bank as the debt due each of said banks respectively by the Sheets Lumber Co., Limited, bears to the sum to be distributed.

He especially denied any collusion or fraud between himself and J. P. Parker, or any other person, as alleged in plaintiff’s petition, or that there were any fictitious values placed upon any of the said property sold to the St. Louis Eau Claire Lumber Co. He prayed that plaintiff’s demand against him for a monied demand be rejected; that plaintiff be required to render a just, true and full account of all collections made by him from the notes and accounts, books and papers, rights and credits left in his hands for collection, liquidation. and settlement, and upon a fair settlement of said business affairs for such judgment in the premises as justice and equity may require — • and for general relief.

The District Court rendered judgment to the effect that the effects then on hand in the Merchants and Farmers’ Bank of Monroe, and under the control of the defendant, R. B. Blanks, after paying Wood-worth and Chauvin two hundred and thirty-three dollars and eighty-four cents, and Leonard $250.00, the plaintiff, D. A. Breard, Jr., is to receive five thousand eight hundred and thirteen dollars and sixty-nine cents, and the defendant Blanks is to receive seven thousand one hundred and four dollars and fifty-five cents, this amount including ■the eight hundred and three dollars and ninety-eight cents due Breard and Blanks by the partnership. And it appearing that the •assets of said partnership are under the control of the defendant, there be judgment in favor of plaintiff and against defendant for the said sum of five thousand eight hundred and thirteen dollars and sixty-nine cents, with legal interest from date of judgment and one-half of the costs of suit.

The court further ordered that the amount stated to be due to Woodworth and Chauvin, two hundred and thirty-three dollars and eighty-four cents, and Leonard two hundred and fifty dollars, be paid; 'by defendant out of the funds of said partnership under his control in the event said debts are not so paid and plaintiff be compelled to contribute to the payment of the same, he recover from said defendant one-half the amount so contributed as paid.

The court further decreed that whatever amounts were still uncollected and due, if any, to the partnership, belong in equal proportions to plaintiff and defendant, and that each of the parties pay half the costs.

Defendant appealed devolutively.

Plaintiff in the Supreme Court answered the appeal praying that the judgment be amended by increasing the amount of the judgment in his favor to the sum of seven thousand one hundred and seventy-•one dollars and ninety-four cents, and that as so amended the judgment be affirmed.

Opinion.

The Sheets Lumber Company, Limited, a corporation domiciled in the parish of Ouachita., engaged in the saw mill business, having gone into the hands of a receiver, its property was sold in different lots, at different times.

At a sale made in October, 1897, certain property was sold at sheriff’s sale to the defendant, Blanks, for the sum of four thousand four hundred and seventy-five dollars ($4475).

In December, 1897, the saw mill and planing mill, tramways, machinery, etc., attached thereto, together with fifteen acres of land on which the same were placed, and constituting what is referred to in the evidence as the site of the mills, was adjudicated to the plaintiff, Breard, and the defendant, Blanks, together with a lot of lumoer or togs in indivisión, for the sum of five thousand five hundred and twenty-five dollars.

At the time of these sales the Sheets Lumber Company was indebted to the Ouachita National Bank, of which plaintiff was the president, in the sum of three thousand nine hundred and three dollars and twenty-five cents, ($3,908 25-100) and interest, and to the Farmers and Merchants’ Bank, of which the defendant was the president, in the sum of twelve thousand one hundred and sixty-two dollars and twenty-four cents ($12,162 24-100) and interest.

Shortly after these purchases were made the saw and planing mills ■were placed in active operations and business, under the name of the Pargoud Lumber Company; in charge of Woodworth and Chauvins as managers, they getting one-third of the net revenues.

This business continued for about five months, up to the time that the properties above mentioned, together with others, were sold to the Eau Claire St. Louis Lumber Company; as will be hereafter mentioned.

During these operations the logs which had been bought by Breard and Blanks at the sheriff’s sale were sawed up and sold as a separate and distinct lot of lumber, and other logs were bought, sawed and sold by the partnership.

The mill business during the five months was profitable. It seems that adjacent to the properties in question there was a tract of 147 acres of land which stood in the name of Blanks, and John P. Parker, and a large tract standing in the name of Blanks. A corporation known as the Eau Claire St. Loujs Lumber Company was willing in caáe it could buy all these various properties, to become the purchaser of the same.

In aid of that purpose Breard transferred to Blanks an undivided' half interest in the property, he had acquired in indivisión with him at a nominal sum, taking'a counter letter.

Blanks and Parker then sold the 147 acres of land which they owned to the Eau Claire St. Louis Lumber Co., for --, and Blanks sold the balance of the other properties to the same corporation for a lump price of one hundred thousand dollars. After this sale was made the present suit was instituted by the plaintiff for an adjustment and settlement of the accounts between himself and Blanks, arising out of these various transactions.

The plaintiff claims that when he and the defendant bought the-mill and mill tract, together jointly, it was under an agreement with the defendant that the property which the latter had himself previously purchased should' be placed also in joint ownership with him so that these properties should belong to defendant and himself as owners, each for an undivided half; that he had often called on defendant to make a deed to him of an undivided half of the property which he had separately bought, but he neglected to do so, and had finally sold it in his own name as stated, as part of those sold to the Eau Claire Company.

He charged that although the deed of sale to the latter company was declared to be for the lump price of one hundred thousand dollars, the particular portions of the property sold which Blanks himself had bought and that which he and Blanks had .bought together at sheriff’s sale, were really sold for twenty-five thousand dollars, but that the defendant asserted that it had sold only for twenty thousand dollars.

That the price at which the one hundred and forty-seven acres of land sold by Parker and Blanks was declared to have been sold to theEau Claire Lumber Co., was a false recital, to the extent of five-thousand dollars; that the amount was really a portion of the price-of the properties, adjudicated to himself and to Blanks and himself' at sheriff’s sale, and was made to figure in the sale of the 147 acres to-conceal the fact of its origin.

Plaintiff claims that the properties so averred by him to have been owned in indivisión between himself and Blanks, having been sold at a large advance over cost to the Eau Claire Company, he is entitled' to share the same equally with the defendant. That he is entitled to one-half of the proceeds of the sale of the lumber purchased jointly between him and defendant at sheriff’s sale, and one-half of the operation of the mill. He avers that the whole fund is in the -hands of the defendant and that his own share therein amounts to at least ten -thousand dollars.

He cited defendant into court and prayed judgment against him for that amount or for so much as should be found due to him on the trial •of the cause.

Plaintiff did not call on defendant for an account, but left the rights and obligations of parties to be examined into and determined '■by evidence received directly at the trial.

This method of proceeding has greatly embarrassed us, as the judgment of the District Court is based upon data furnished by accounts referred to by witnesses on the stand, in connection with their testimony, but which were not filed in the record as they should have been, (Webre vs. Beltram, 47 Ann., 204), and we are entirely in the dark •as to what the accounts, as a whole, show. Plaintiff’s counsel contend in their brief, as we understand them, that the court erred in charging up certain items to the wrong account or having charged them up on two different accounts. How this may be we do not know. Accounts “G” and “H,” referred to in the note of evidence, and the court’s opinion, are not in the record, and we do not feel that we can deal safely and finally with these accounts with the record in its present condition.

Wo will bo forced to remand this cause, but there are certain matters which we can dispose of at once, and we will endeavor to some •extent to shape future proceedings below by suggesting some matters us they presently appear to us.

On the trial below defendant and plaintiff both were placed upon ■the stand as witnesses in regard to the agreement which plaintiff sets -up in his petition as having been made between them. Plaintiff, as a witness, affirms positively "that the agreement was made on the terms asserted,' while defendant denies with equal positiveness that' the •terms of the agreement were such as plaintiff avers.

The terms of the agreement, according to him, were of an entirely •different character. Plaintiff repudiated them as so unreasonable as not to be entertained for a moment. Defendant says that he did •agree to plaintiff and himself becoming joint owners of the properties •adjudicated to them, but not as interested equally in the same. On the contrary, they were to become owners in all the properties in the ■proportion of the debts due by the Sheets Lumber Co. to the Farmers ..and Merchants’ Bank and the Ouachita National Bank, that to the Ouachita National Bank being’ $3093, and that to the Merchants’ and Farmers’ Bank being $12,163.

No one but the parties themselves pretend to know anything of this agreement, and their versions in regard to it are diametrically opposed to each other. The District Judge, referring to these parties, said: “They are both gentlemen of the highest social and moral standing in the community, and viewing their testimony from every conceivable standpoint, it is so evenly balanced that I cannot say that one is entitled to more weight than the other, and in my estimation the one completely offsets and neutralizes the other. I must, therefore, disregard both their testimony and leave it entirely out of the consideration of the case, wherever it conflicts.

“I am also deprived of the benefit of that rule of practice which throws the burden of proof upon the plaintiff, and requires that he should make out his case. Since this is a suit for a settlement of a partnership, and both parties ask that it be liquidated, the case must then be decided without reference to the testimony of either Breard or Blanks, and leaving out of consideration this testimony of the only two witnesses who knew what the terms of the partnership were, we have only the deeds and the presumption and the legal effect flowing from the deeds. The sheriff’s deed to Breard and Blanks is-made to them individually, no allusion is made to the banks, and as there is no stipulation to the contrary the property is conveyed to those purchasers in equal portions. The deed from the sheriff recites that when the mills and fifteen acres of land were offered, ‘R. B. Blanks and D. A. Breard, Jr., became the purchasers in indivisión of all the property,’ and that the same was ‘adjudicated to them.’ This deed is signed by the sheriff and by R. B. Blanks and D. A. Breard, Jr. The subsequent deed from D. A. Breard, Jr., to Blanks states that Breard sells to Blanks an undivided half interest in and to this same property, and is signed by Blanks, as well as by Breard, and seems to be an admission that an undivided one-half interest was then and previous to that time, held adversely to Blanks, and again in the deed from Blanks to the Eau Claire St. Louis Lumber Co., this fifteen acres of land with the mills, etc., is described as ‘being the same property acquired by this vendor (R. B. Blanks) and D. A. Breard, Jr., in indivisión, at the aforesaid sheriff’s sale,’ and the interest of said D. A. Breard, Jr., therein subsequently acquired by this vendor by purchase, on May 18, 1898, and this deed is signed by Mr. Blanks.

“Now the deeds of themselves considered alone and independently -of any other outside testimony, can only be construed one way, that the mill property was purchased by B. B. Blanks and I). A. Breard, .Jr., in equal portions. The joint purchase of this property did not -constitute a partnership. (C. C., 2806), 4 Ann., 216.

“When Blanks and Breard operated the mills there was a partnership for this venture, but there being no stipulation to the contrary, -each of the partners would be entitled to an equal share of the profits. Art. 2865, 0. C., says: ' ‘When the contract of partnership does not ■ determine the share of each partner in the profits or losses, each one shall be entitled to an equal share of the profits and must contribute -equally to the losses.5

“These remarks and this process of reasoning and this evidence, however, does not apply to the property previously acquired by Blanks; the residence and the five acres upon which it wa3 situated, .and the fifty-eight acres of land for which he paid $4475. If upon this branch of the case the 'testimony of Blanks and Breard neutralize each other as to the terms upon which the property was to have been taken into the partnership, or added to that which was pur■chased in the name of Breard and Blanks, we have no deeds, records •or other evidence except Blank’s admission in his answer, that can throw any light upon the question, and his admission must, of course, be taken with the qualification set forth in the answer, and if under the answer it is added to the other property, it must be added to the other restriction or statement that after paying back the purchase price the proceeds were to be divided in the proportion to the debts of the two banks, that of the Merchants’ and Farmers’ Bank being1 .$12,163.61-100 and interest, and that of the Ouachita National Bank $3903.24-100. This theory is also borne out by the legal maxim that •‘no one is presumed to give’ and the testimony does not show that any consideration was paid for this transfer. Breard was asked several times whether there was any other consideration or inducement for this transfer except his payment of part of the price; he stated there was not. He did not pay any portion of the price. All consideration of this branch of the case could have been easily eliminated by a simple denial in the answer and objection to parole evidence. 'This was not done, however, and while I feel authorized to pass upon -the facts, I do not feel justified in going further upon this branch of ■the ease than equity and good conscience demand. I think therefore .-that while Breard is entitled to one-half of the proceeds and profits of that portion of the property which was sold by the sheriff to Breard . and Blanks, being the saw mill and planing mill with accessories and lumber, with the fifteen acres of land upon which their plants were • constructed, after reimbursing the debts for' purchase price and other expenses of this portion of the property, he is only entitled to a pro rata distribution in the excess realized by the residence with its five acres and the other fifty-eight acres of land after paying back the purchase price of these lots. The excess to be distributed between Breard and Blanks in proportion to the debts due to the two banks, that of the Merchants’ and Farmers’ Bank being $12,162.61, and that -to the Ouachita National Bank $3093.24. The amount ascertained to be due these two funds can only be ascertained by pro rating the . amount for which the whole property sold ($20,000) between the two properties in proportion to the cash price of each.

“This will give to the mill property owned jointly by Blanks and Breard, out of the $20,000 for which the whole sold, $13,006.38, and to the residence and fifty-eight acres, $6993.62.

“That is, the sum of the cost of the two properties, to which is added the improvements added to the mills, is to the cost of each parcel of the property as the amount realized from the whole is to the fund coming to that lot or parcel, adding, of course, to the purchase price of the mill property the cost of improvements. From the $13,006.38 is to be deducted $6,893.33, which leaves $6,116.05 to be divided between Blanks and Breard, giving each $3038, and to this to be added one-half of the amount of the profits of the saw and.planing mill which on the 29th of July, 1898, according to, statement “G” (not in the record) $3308.75 (and $1187.72 on an uncollected account) but which the books of the M. & F. Bank show amount at this time, in consequence, I suppose, of the accounts outstanding having been collected, to $4814.26, including $803.96 due Breard and Blanks (amount of the net proceeds of the sale of the logs purchased jointly by Breard and Blanks at sheriff’s sale and sawed and sold separately from the other lumber sawed at the mill and sold), which was deducted on statement “G” and also some amounts due Woodworth and Ohauvin.

“Taking from this $4814.26, the amount due Breard and Blanks, $803.98, leaves $4010.28, an excess of $701.53 over account which ■shows collections of that amount — Woodworth and Ohauvin (superintendents or managers of the mills who under their contract' were entitled to receive one-third of the net profits of the mill by way of compensation for their services) are entitled to one-third of this $701.53, or $233.84, which taken from the $4010.28 — $233.84, leaves $3776.44. There is still due a fee of $250, which leaves $3526.44 to be divided — $3526.44 less $1763.22 leaves seventeen hundred and sixty-three dollars and twenty-two cents for Breard in the proceeds of the mill revenues besides being half owner of the claims still uncollected, if any, making Breard’s and Blank’s share in the funds from this branch of the case each $3038.68, plus $1763.22, equal to $4801.90.

“Now from the other branch of the ease the proceeds arising from the fifty^eight acres of land and the five acre residence lot, to-wit: $6993.62,'' we have to deduct $4475, the cost of the lots, and it leaves $2518.62 to be divided between Blanks and Breard in proportion to the claims of their respective banks against the Sheets Lumber Co., Limited, $12,162.61, and $3903.24, from which I calculate that Blanks should receive $1900.66 and Breard $609.80, which would make the total shares of each party.............................$4801 90

Breard....................................... 609 80

$5411 70

One-half B. and B. debt........................... 401 99

$5813 69

And Blanks.....................................$4801 9Q

$1966 66

$6702 56

401 99

Blanks.......................................$7104 55

after paying Woodworth and Ohauvin their one-third of the amount already collected and after paying $250 still due on Leonard’s fee.

“The uncollected accounts to belong in equal proportions to Breard and Blanks subject to the claim of Woodworth and Ohauvin for one-third of the amounts — costs of court to be equally divided.”

It will be seen from this that while the District Court in the division of the profits arising from the sale of the property purchased jointly by Breard and Blanks and the business of the mills restricted Breard to one-half and did not permit the division to made upon the basis of the debts due to the two banks of which these two parties were presidents, that is to say, held him to a division on the face of the deed, it permitted Breard to divide with Blanks the profits arising from the sale of the residence property and the fifty-eight acres of land, pn the basis of the debts due to the two banks, that is to say, it permitted him to share in the proceeds of the sale of pieces of property (real estate) in which on the face, of the deeds he had no interest whatever.

This result was reached by holding Blanks to a supposed absolute admission that he had agreed to permit Breard to have one-half interest in the property; and that the only question upon which the parties divided was as to the share which Breard was to take in the proceeds of that property; Breard claiming that he would be entitled to take one-half and Blanks denying this but admitting that he was entitled to take a proportion of the profits based upon the amounts due to the two banks. Upon this supposed restricted issue the couit ruled adversely to Breard’s claim of one-half, but held Blanks (on the theory that an admission had been made by him to the effect that this had been agreed to by himself) permitting Breard to share with him in the profits of the property adjudicated to himself individually on the basis of the claims due to the two banks.

The plaintiffs in their brief argue that defendant’s position is that Breard should pay one-half the price of both sets of property and that the division of the profits of both properties should be on the basis of the amounts due to the banks.

They say that it is a very unreasonable, almost absurd proposition,, to advsan.ee that a party would be willing to consent to pay one-half of the price of property and to share in the proceeds of that same property when sold on the basis of the joint owners getting four dollars to one.

We do not. understand defendant’s position to be that which the plaintiff advances as being 'his position, nor do we understand the averments made in defendant’s answer to be of the character which the court attributed to them and as containing admissions which narrowed the issue between the plaintiff and the defendant under defendant's pleadings to the sole question as to whether Breard should take one-half of the profits of the residence tract and other tract purchased by Blanks or take in an amount proportioned to the amount due to the banks.

We do not think that defendant ever pretended that plaintiff should pay one-half of the price of both properties and divide profits on another basis, but to say that it had been agreed between plaintiff and himself that they should be bound between themselves for the price of all the properties in the proportion of the amounts due to the banks and should share in the profits on the same basis.

He maintains that the court should not have divided his pleadings or any admissions contained therein and disconnect his recognition of his having been willing .to allow plaintiff to come into Joint ownership with him in the property which had been adjudicated to himself separately, from the condition affixed under which he stated that he was willing that should be donfe, which was that their ownership in these properties and their liability for the price thereof should be on the same basis as was to be the division or share of profits. We think that was fairly the import of defendant’s pleadings.

We do not think that his inability to prove satisfactorily the agree•ment which he set up should impose upon him a liability to which he had recognized in his pleadings he would be subjected, but only subjected to as the result of that agreement and on the contingency of its being carried out.

There is a view of the situation as presented, which we think would be much more likely to correspond with the actual situation than that adopted by the lower court, and that is to assume that plaintiff and defendant must have misunderstood each other in respect to the proposition to which they both allude and that their minds did not meet ■ thereon. Each is so positive as to the correctness of his own version of the matter and those versions are so irreconcilable that we can, in ■ view of the declared high character of both parties reach no other con.-elusion than this. Each party claims to have shown by certain facts • disclosed on the trial that his version was correct, but we do not give do the facts referred to the probative force which each claims for them.

Both have more or less by their acts and declarations furnished a handle for argument by the other.

We see no clear way out of the very unsatisfactory condition in which business men controlling large interests have placed this matter by failing to place their agreement in writing than to leave their rights rest upon their respective deeds.

There is no evidence in the record that the tract purchased by .Blanks separately furnished any portion of the lumber sawed at the mill or that it entered in any manner §s a factor into the partnership . affairs. s

We do not think it was utilized in any way by the partnership, and in our opinion it should be entirely ignored in that connection.

The views we have reached necessitate a reversal of the judgment .and a remanding of the case to the lower court for further’proceedings.

"We adopt the latter course on account of the absence from the record of the statements on which the court acted and our inability ■to reach any conclusion as to whether the claim of particular minor ■errors in the judgment urged by appellee be well founded or not, and because the judgment itself left the affairs of the partnership to a certain extent still open. Matters by the time of a new trial will be, we think, in position to be finally closed. Had these asserted errors been urged as they should have been on a motion for a new trial the lower court would have had an opportunity either to have corrected them, if the claim in respect thereto was well founded, or would have assigned reasons in support of its conclusions on these special points if ■it adhered to them as being correct.

There is nothing in the record to sustain plaintiff’s claim that the ■properties referred to in these pleadings sold for more than twenty thousand dollars; or that any portion of the actual price thereof was concealed by being made to appear as part of the price of the property sold by Parker and Blanks to the Eau Claire Company. That property belonged exclusively to Parker and Blanks. It was not intrinsically of much value, but the high price obtained for it was due to the position it occupied in respect to the other properties. The Eau Claire Company was only willing to buy in the event that they could buy the entire property they desired, and in order to do this, this particular tract of land had to be purchased. The owners had the right ■to avail themselves of the opportunity for their own benefit but the sale of the entire property operated indirectly to the interest of the plaintiff, as it caused the purchase at a high price of the mill property purchased by plaintiff and Blanks.

For the reasons herein assigned, it is hereby ordered, adjudged and decreed that the judgment of the District Court appealed from be and the same is hereby annulled, avoided and reversed, and it is now ordered, adjudged and decreed that the plaintiff, Daniel A. Breard,. Jr., never acquired ownership or interest in the property purchased by the defendant, Robert B. Blanks, on the second day of October, 1897, in his own name at the receiver’s sale made by the sheriff of the parish of Ouachita of the property of the Sheets Lumber Company, Limited, referred to in plaintiff’s petition herein, and is not entitled to any share of the proceeds of the sale thereof made by the defendant to the Eaff Claire, St. Louis Lumber Company, Limited, and that defendant Robert B. Blanks was the sole owner thereof and entitled to the whole of said proceeds.

It is further ordered, adjudged and decreed that the plaintiff, Daniel A. Breard, Jr., and the defendant, Robert B. Blanks, acquired jointly with equal interests therein on the fourth day of December, 1897, at the receiver’s sale of the property of the Sheets Lumber Company, Limited, made on that day by the sheriff of the parish of Ouachita, the property adjudicated at said sale to R. B. Blanks and D. A. Breard, Jr., and referred to in plaintiff’s petition and that they were joint owners of the same, holding an equal undivided interest therein at the time of the sale thereof by defendant Robert B. Blanks’ to the Eau Claire St. Louis Lumber Company on the 19th of May, 1898, and that they are entitled to share in the proceeds of the said sale of said property on the basis of an equal undivided joint interest therein.

It is further adjudged, ordered and decreed and recognized that the plaintiff Daniel A. Breard, Jr., and the defendant Robert ID Blanks were partners; each holding an equal interest in the partnership known as the Pargoud Lumber Company in the parish of Ouachita, entitled as such in the settlement thereof to share equally in the profits of the same with the liability on the part of each of them to contribute equally to the expenses and losses thereof.

It is further ordered, adjudged and decreed that this cause be remanded to the lower court for the purposes of ascertaining and settling the rights of the parties and making a final partition between-them.

It is further ordered that appellee pay the costs of this appeal.


author: Breaux, J.

text:
    No. 13,229.
    Metropolitan Bank vs. New Orleans Brewing Association.
    Syllabus.
    1. Receiver. — The appointment of a receiver was proper; it had the approval of the legal representatives of the defendant company. He cannot be removed in an attack collaterally made.
    2. Notice. — The receiver had, when his application to sell was granted, given ten days’ notice, as required, of his application to sell the property.
    S.Party'in Interest.- — The receiver was a party in interest, whose application to sell could be considered and granted if, in the judgment of the court, it was to the interest of the creditors; besides, a creditor joined in the application.
    4. Order of Sale. — The court had the power to order a sale of the mortgaged premises, subject to the laws regarding the appraisement of property sold at judicial sale. Although the amount of the bid may be less than the amount of the mortgage, the adjudication will be valid.
    5. Lots. — The forming of lots and the appraisement of lots, in order to fix the interest of creditors, is not a method unknown to Louisiana laws.
    6. Add Parties Before the Court. — Many of the debts were due and owing; all parties were before the court to be heard regarding the terms and conditions of the sale. The application to sell is treated as having been made contradictorily with all parties concerned and as if the proceedings were in the name of the mortgage creditors seeking to foreclose their mortgage.
    7. Other Measures Not Practicable. — If different steps were to be taken, the property would be sold only after great delays and after incurring ruinous costs. It. being in the hands of a receiver, he cannot in these proceedings be divested of his possession, and the property cannot be sold without regard 'to his possession.
    8. Costs. — The receiver’s charges and other charges should be equal to the services rendered.
    5). Bales for Cash to Meet Debts Due. — All creditors must be placed on a footing corresponding with their respective rights.
    ON APPEAL from the Civil District Court for the Parish of Orleans. St. Paul, J.

      Dinkelspiel & Hart, and Buck, Walshe & Buck, for A. G. Ricks, Receiver, of the New Orleans Brewing Association, Appellee.

      Denegre, Blair & Denegre, for G. A. Blaffer, Charles Hernsheim and J. E. Merrilh, third persons, interested in the judgment, Appellants.

      Hugh 0. Gage, Attorney for absent creditors, Appellee.
    Submitted on briefs June 15, 1899.
    Opinion handed down June 21, 1899.
   The opinion of the court was delivered by

Breaux, J.

This is an appeal by G. A. Blaffer, Charles Hernsheim and F. E. Merrilh, creditors of the New Orleans Brewing Association, from a judgment decreeing the sale of the property of the defendant corporation for the purpose of settlement and final liquidation of its affairs.

Five brewing companies; the Lafayette, the Louisiana, the Pelican, the Southern and the Weckerling Brewing Companies, formed an association and adopted a charter. After the organization, this association bought the Orescent City Brewing Company. In effecting-this purchase the association assumed a large indebtedness of the Orescent City Brewing Company. An act of mortgage, of record, shows that soon after its organization the New Orleans Brewing-Association mortgaged all property to secure a bond issue of one ■ million, §ix hundred thousand dollars.

In addition, the other companies owed large amounts, the whole footing four hundred and sixty thousand and five hundred dollars; and for that indebtedness bonds of the defendant company, of equal amount to the foregoing sum, was deposited with the Metropolitan Bank as trustee, to be exchanged at par, and they were all exchanged,/ except thirty thousand dollars, issued by the Weckerling, and an amount issued by the Orescent City Brewing Company.

It appears that, at first, the New Orleans Brewing Association wa3successful enough to declare annual dividends of ten per cent.

After the year 1891 the company’s affairs declined, and continued to decline, to such an extent that in November, 1895, the Metropolitan Bank, a creditor of the Now Orleans Brewing Association, for-one hundred and thirteen thousand dollars, filed a suit for the amount - of its claim, alleging, in substance, that the corporation was insolvent and asking for the appointment of a receiver to take charge of' the' property and assets of the corporation and administer them for the benefit of the creditors.

This action of this creditor met with the approval of the Board of Directors, as is made manifest by the following:

“New Orleans November 4th, 1895.

“It was moved, seconded and unanimously carried, that the president be, and he is hereby authorized to consent to the appointment of a receiver; that in this behalf he be authorized to file and make such pleadings as plaintiff or defendant, or confession of judgment, as may be necessary or proper; and that the appointment of A. G. Ricks be recommended to the court.”

The court, accordingly, appointed Ricks receiver of the association.

After his appointment, the receiver administered the affairs of the corporation, received its funds, and paid out some interest, and some of its debts in whole, or in part.

In May, 1899, the receiver, finding that the association no longer prospered, and that its business was on the wane, concluded that it was best to sell the property and liquidate. He sets forth his reasons in one of the petitions of record, viz.: “War tax on beer,” “cheap wines,” “increased competition” and “less consumption of beer,” as rendering it impossible to successfully operate the breweries of the association. Alleging, specially, his want of funds to continue operations, he complied with Statute 150 of 1898, by having his application properly qntered in the District Court for the sale, and had a copy of his petition mailed to each creditor.

Charles Roth filed an opposition to his application, which was subsequently abandoned. Mason -and Hein also filed oppositions. There was a trial had. These opponents did not appeal from the judgment which was rendered.

Blaffer, Hemsheim and Merrilh, creditors, appeal, as third persons,., from the judgment, and claim authority to appeal under Article 571 of the Code of Practice.

These creditors, appellants, set forth that they are the holders, inindivisión, of over one million dollars of negotiable mortgage bonds-of the defendant associations, with interest coupons maturing June 1st, 1899.

They aver that the following mortgages mentioned in the act of mortgage, before referred to, -as outstanding, namely: A mortgage of $85,000 by the Louisiana Brewing Association, a mortgage of’ $70,000 by the Lafayette Brewing Company, and a mortgage by the-Pelican Brewing Company, have been paid and cancelled-; that the mortgage for $200,000 by the Crescent City Brewing Company, included in the act, has been reduced by payment to $180,000, and the mortgage for $75,000 by Weckerling Brewing Company, set forth in the act, has been reduced by payment to $30,000; that the mortgage for $180,000 covers only the plant of the Crescent City Brewing ■Company, and the mortgage for $30,000 covers only the plant of the Weckerling Brewing Company, and that with this exception the mortgage of those appellants is a first mortgage priming all claims.

Appellants also aver that the interest due on their bonds has been paid to December 1st, 1898, and that on June 1st, 1899, when the judgment here complained of was rendered, the principal of their bonds was not due, and there had been no default in matter of the payment of interest.

In their motion for the appeal, appellants further set forth that they are "prejudiced by the judgment which was rendered, because "the District Court assumed that the property would be sold at a " price less than sufficient to discharge the mortgage indebtedness " held by them and others, and because (the court held) it was possible to scale down the mortgages as directed in the distributive “ clauses of the judgment, and it could lawfully provide for apportioning the mortgage indebtedness upon different pieces of prop- " erty mortgaged to secure the mortgage — the extent to which each of '" the pieces is to be subject to the mortgage to be determined by the "opinion and report of the appraisers appointed; that, as to the " relative value of the different parts of the property mortgaged, and " for the scaling down of the mortgage indebtedness subdivided, the “ property is worth less than the amount for which it is mortgaged.”

These apioealing creditors further aver that they intend to bid on the property, and they apprehend that the title under judgment, from which they appeal, -would not be valid, for the reason that the judgment orders a sale for a price insufficient to discharge the mortgage indebtedness, in so far as it apportions the mortgage indebtedness among different pieces of property; that the decree in this respect is not binding upon them, and can not confer a good title upon purchasers at the sale, and it follows, may be subject to attack. And, further, that the judgment is illegal, because it fails to make provision for payment, by purchaser at the sale, of cash to pay past due. indebtedness on coupons of bonds secured by mortgage.”

The judgment of the District Court is necessarily lengthy.

Tt orders a sale, at public auction, of all the property.

The property is to be offered for sale in one lot, the purchaser to pay ten per cent. cash. That immediately thereafter the property be • offered in lots, as follows:

“That separate lots be made of each of the br.eweries owned by the “ defendant, and separate lots to be made of other real estate, and '“ separate lots to be made of the movables in use at each of the brew- “ eries. One lot to be made of the office furniture, one lot of open

accounts, notes and judgments, and lots to be made of the property ■“of the defendant outside of the city of New Orleans; one lot in '“ each locality.

“If the total of the adjudication at such sale, in lots, does not “ exceed the amount of the adjudication, when sold as a whole, then all “ the .adjudication in lots shall be as if not made; but if the total of “the adjudication into lots exceed the total of the adjudication in “ bulk, then the purchaser of each lot shall deposit with the auction- ■“ eer ten per cent, of the purchase price, and the whole matter shall “ then be referred to the courts for confirmation of such sale as the ■“court may find to the best interest of all concerned.”

With reference to the proceeds, the court orders that the pro rata •price of the movables, as fixed by the appraisement, and determined by the sale and pro rata price of the Crescent City Brewing Company, be fixed and determined in the same manner up to the sum of $180,000, and that the same be done as relates to the Weckerling Brewing Company, also as relates to property outside of the city of .New Orleans.

It is also ordered that the mortgages representing the bonds that may be outstanding, be assumed by the purchaser to the amount of the bid.

■ We need not set forth all the details of the judgment from which the creditors appeal. The foregoing is sufficient to give an idea of its purpose and scope.

1st. The right to appoint the receiver, we take it, is not seriously questioned. He was appointed with the consent of the Board of Directors. No objection was made by any one in interest to this appointment. Without a direct attack, we take it, the appointment ■must stand.

The first attack ever made was made by creditors on appeal. It follows that the attack is not direct, but entirely collateral. The appointment was made at the instance of the Metropolitan Bank, a creditor for a large amount. We infer that there was no objection to ■ the appointment at the time it was made.

2nd. The serious questions before us relate to the right of the mortgage creditors, and the extent of the effect of Statute No. 159 of 1898.

With reference to appellants’ contention, that they, as mortgage creditors, were not parties to the suit, and, in consequence, no order of sale could issue, we have this to say: The statute under which the receiver acted gave authority to the court to issue the order of sale after having complied with the requirements of the statute cited supra. We understand that notice was, as required, given to all the creditors, including, of course, the appellants. Under the law, with the authorization of the court, the receiver may make a sale of property, and as we read the pleadings, he complied, as relates to the notice, with the statute.

We do not understand that every creditor who does not choose to intervene in the proceedings, or to file any appearance of any sort,. after the notification required by Section 8' of the statute, retains all his rights to object as have third persons. Provision was made for a statutory notice by which all parties are bound. It was evidently not the object of the statute that, upon every application brought under Section 8 of the statute, more notice should be given than was given in this case. After notification it is incumbent upon the creditor to protect himself by filing such plea to that end as he may see proper.

As in concurso, no creditor has a right, or simple motion, to an order of sale affecting the rights of third persons, without giving notice. 7 N. S., 425, Saul vs. His Creditors.

In the case before us the creditors had notice.

The property, by the appointment of the receiver, was in the hands ■ of the law, under the protection and control of the court and subject to sale, as ordered here.

The receiver has complied with the statutory mode in making the application. While he must be held to the formalities required in making a public sale, we do not think that as to notice he should do ■ more than comply with the statute cited supra.

Moreover, two of the appellants, owners of claims in indivisión with the other parties to the appeal, testified when the application was made before the court for the sale, and one of the two, as a witness, said that the sale was advisable.

The Metropolitan Bank joined the receiver in applying ior the-sale.

3rd. The statute, as relates to this application for sale, reads:. “The court may, on application of any party at interest, after ten days’ notice of such application on the order book, order the sale of the property.”

The appellants, Blaffer eí al,, urge that a receiver is not "a party at interest,” within the meaning of the law; that he is the custodian’ of the property, the representative of the court, the instrument by which the property is taken and held in gremio legisj that his duties are to protect and conserve and manage the property pending the settlement of the rights and claims of those who are parties to the suit, in which he was appointed, and we think, that in addition, the duty also devolves upon -him of informing the court when it becomes manifest that the property of the corporation can not be so administered as to pay its debts, and the possession thereof restored to the corporation; that a sale would be proper. In that light he is a party having’ an interest.

He has interest in the proper settlement of the affairs of the corporation; besides, we have seen that a creditor joined in the application.

4th. This brings us to appellants’ objection to the sale of the-property for an amount less than the mortgage debt, without keeping’ account of their (appellants’) special mortgage.

The property in the hands of a receiver is no longer subject to seizure and execution. It must be sold in due course of law.

This was, as we take it, the legislative intention in enacting the-following into a statute:

“Where the court has appointed a receiver, and it is made to appear that there is no reasonable ground to believe that the property of the corporation can be so administered as to pay its debts and the’ possession thereof restored to the corporation, the court may, on application of any party in interest, after ten days’ notice of said application in the order book, if there be no opposition, or after hearing, if same be opposed, order a sale of the property and the distribution of the assets in accordance with the rights of the parties in interest.”' Statute. -.

The language is clear enough. The court has authority to order the-sale and the distribution of the assets in accordance with the rights •of the parties. !

5th. Appellants, Blaffer, Hernsheiin and Merrilh propound the inquiry: “Was the court authorized to provide for a sale of the mortgaged property in separate lots and for a prorating of the liens of the mortgage based upon the reports of the appraisers?”

They add, “By the mortgage contract the lien of the mortgage .given to secure appellants’ bonds, bears in its entirety upon each piece of property covered thereby.”

They contend further that the law does not authorize a court to apportion a lien of such a mortgage according to the opinion of the appraisers as the relative value of the different portions of the mortgaged property. The practical effect will be, we are informed, that if the pro rata share of the proceeds of the sale attributable to the Orescent Oity Brewing Co. be less than the special mortgage of $180,000, resting on that property, there will remain a question of the right vel non of other mortgage creditors.

We can only say in meeting this position that the statute treats the creditors as if they were parties as in a ooncourso.

The forming of lots and the appointment of appraisers to fix values of the respective lots is usual and has the sanction of both law and precedents. Of course, the property must be sold subject to the laws regarding appraisement of property sold at judicial sale.

In addition, in its discretion, the court could, as it did, appoint appraisers in order to apportion the price of the sale among the properties encumbered by mortgages. While the court is bound to •see to the distribution of the assets in accordance with the rights of the parties, it is vested with some discretion in matter of fixing these rights.

After hearing the testimony, the court, in its discretion, ordered a •sale of the property on terms and conditions most advantageous, in its judgment, to all concerned.

We have not found that any other step can be adopted more beneficial to the creditors. Since they must look to the proceeds for payment, and mortgages are only retained in so far as they are unmatured, (to the extent of the bid), the order of a sale in this case is as .just and equitable as any that might be suggested.

We are convinced that, under the statute, property cannot be taken ■from 'the possession of the receiver after a sale has been ordered and be made to await the creditor’s pleasure in matter of foreclosing his mortgage.

6th. Appellants complain of an intended sale ordered before the maturity of the mortgage debt and before default in the payment of interest.

Our answer is, the appointment of a receiver was, in effect, a surrender of the property to the creditors. It was as it is in a cession. When a cession is made, all debts due by the insolvent are deemed to be due. But the court could, in its discretion, since a sale was needful in the interest of all concerned, and since there were large amounts due, order the sale to pay in cash the debts due and exigible; and on credits to meet the amount of the bid maturing, taking into account, always, the respective rights of each.

The creditors here, who are the appellants, have no cause to complain, as we infer that they desire that the property be sold for it3 value. The sale might have been ordered for cash. The court ordered the property sold, subject, to the extent of the bid, to mortgage' indebtedness as it matures.

The court, after hearing the witnesses and considering the condition of defendants’ affairs, had authority to order a sale to pay debts. The evidence discloses that there was no fund on hand even to pay debts. In view of this strait in defendants’ affairs, a sale (on terms and conditions ordered), in our view, was advisable.

Ith. Counsel for appellants, Blaffer, Hernsheim and Merrilh, invite our attention to that part of the decree which provides that should the proceeds of the property not covered by appellant’s mortgage be not sufficient to pay the costs and expenses of the receivership then a sufficient amount to make up the deficit shall be paid in cash, out of the proceeds of the sale of the mortgaged property, and the amount of the mortgage assumed by the purchaser shall then be reduced to the residue of the price.

From the foregoing counsel infers that the mortgage creditors will have to pay the expenses of a protracted receivership not provoked by them, (they allege), during the entire duration of which their hands were tied by the regular payment of all interest due.

Our answer is, that the payment of interest by the company to its creditors was not cause sufficient to prevent them from taking steps in opposition to the appointment of a receiver.

With reference to the charges, i. e., receiver and other charges. .they should be equal to the services rendered. If, under the law, they .are considered more than they should be, it concerns another branch of the government.

In any event, we do not think it follows, from the provisions complained of in the decree, that the mortgage creditors will be called upon to pay more than they should.

8th.- It is evident, as we read the statute, that the object of the . statute was to enable parties in interest to avoid a muliplicity of suits .and expenses as far as possible and to avoid the consequent costs a^id .charges.

The property would be sold with great difficulty and consequent charges and delays. It being in the hands of a receiver, we did not find it possible to take it from his possession, in order that it may be .subject to executory process.

Under the statute, in our judgment, the application to sell having ■been made contradictorily, was as if the proceedings were instituted ■in the name of the mortgage creditors seeking to foreclose their mortgage.

We have had to deal with an insolvent corporation.

As we understand, after the sale of its property and the distribution •of its assets, under the court’s supervision, it passes out of existence.

The laws regarding insolvency must to some extent be complied with in adjusting the rights of parties, otherwise the purpose of the ■statute, to bring about a settlement and liquidation of the corpora-tion’s affairs, would be thwarted.

We have not found, in interpreting the statute of 1898, that mortgages are to be excluded from its grasp; that it is possible to have the property returned to the corporation, to be subject to executory proceedings.

9th. We pass to the objection, argued by plaintiff, to the terms •of sale, on the ground that no provision was made for the payment of matured and unpaid coupons. We understand that all other claims actually due on the day of sale, are to be met so far as feasible: we have no good reason to exclude the matured and unpaid coupons.

Counsel for the defendant states in the brief that no objection will be urged if this court, in its judgment, should deem proper to provide for this cash payment.

We think in this respect there should be modification of the decree, in order to place all the creditors, with claims actually due, on the same footing.

For reasons assigned, it is ordered, adjudged and decreed that the order of sale which reads, “And the pro rata price of the other real property, embracing that covered by the mortgage passed before Joseph D. Taylor, Notary, on the 31st day of May, 1890, securing the first bonds of the defendant, to be retained by the purchaser, and said mortgage representing such bonds as may be outstanding, shall be assumed by the purchaser in proportion to the amount of the bid,” be amended to this extent, that the purchaser shall on the foregoing unmatured mortgage and all unmatured mortgages, pay cash on his bid, the matured and unmatured coupons.

As amended, the judgment of the District Court is affirmed at appellee’s costs in this court.

Mr. Justice Blanchard and Mr. Justice Monroe take no part in ■ this judgment.