text:
    No. 9818.
    Joseph Dunbar vs. His Creditors.
    An attorney employed by a person in insolvent circumstances and in contemplation of declaring bis insolvency and of making a cession, is entitled to compensation for advice and services rendered in the preparation of his petition and schedules; and that compensation must be fixed by the court having jurisdiction of the insolvent’s estate according to the proof.
    Xhe provisions of liev. Stats., Sec. 1817, exclusively apply to the “fees of the counsellor who shall be appointed to represent the absent creditors,” and same must be deducted from the amount awarded to them.
    APPEAL from the Civil District Court for the Parish of Orleans. Jtightor, S'.

      IF.Benedict and II. C. Cage for Syndic, Appellant.

      Singleton, Browne & Choate for Opponents and Appellees.
   The opinion of the Court was delivered by

Watkins, J.

The sale of the property of the real estate realized $23,238.11, and this sum is carried on the 'account and tableau of distribution, as the principal asset of the insolvent’s estate.

Singleton, Browne & Choate oppose the homologation of the account and tableau in respect to several items of debit entered thereon and two items of credit — in the aggregate $2,221.07.

The opponents allege that the sum placed upon the account as an item of credit, due by them to the estate, of $382.17, is incorrect and not by them due and owing; but that said sum had been received by them from the insolvent for professional services and advice rendered him in connection with the insolvency, and various matters appertaining thereto, and for the preparation of his petition and schedules in the insolvency proceedings, as his attorneys and counsellors at law.

They also claim the sum of $31.50, expended for stamps employed and used by the insolvent in the course of those proceedings.

They claim, in addition, that the insolvent is indebted to them, for professional services rendered him in the suit of the city against him for $400, as a license for 1883, $40.

These items do not appear on the account and tableau.

In the court below there was judgment in favor of the opponent, striking from the account the items complained of, reducing the auctioneer fees, recognizing opponent’s demands against the estate of the insolvent, and in all other respects approving and homologating the account.

The syndic alone appeals.

The record discloses the following material facts, viz:

That the law firm of Singleton, Browne & Choate were consulted by-Joseph Dunbar, previous to his declaration of insolvency, in reference to his proposed surrender.

That it was by- them regarded a serious question whether he was or not entitled to the benefits of the State insolvent law. There was difficulty'in obtaining the consent of the Factors and Traders’ Insurance Company to a sale of the property on which they' held a lien, upon such terms as would benefit the other creditors, and at the same time secure themselves.

That firm visited the various creditors of Dunbar and explained to them his situation, and obtained powers of attorney from the absent and non-resident creditors. These services continued during a period of five or six months, and to the date of Dunbar’s cession.

The petition and schedules of the insolvent were prepared, signed and filed by those gentlemen as his attorney’s.

The petition for the discharge of the insolvent was prepared and filed by them, and final discharge obtained by them.

Thereafter different counsel were chosen to represent the provisional and definitive syndics, who were placed on the tableau as creditors for a fee of $650.

There was no attorney appointed to represent the creditors residing out of the State. R. S. Sec. 1789.

It is claimed by opponents that they had, by their services previously rendered, obviated that necessity and expense to the estate of the insolvent.

On this state of facts the question is raised as to the correctness of the allowance in favor of the opponents.

The counsel for the syndic states that “the law is clear, that an attorney x>resenting the schedules of an insolvent, is entitled to a fee with privilege on the assets surrendered which, in no event, can exceed $250.

He doubtless relies upon R. S. See, 1817, as authority for this assertion. But in this he is under a mistake. That section refers to “the fees of the counsellor who shall be appointed to represent the absent creditors,” and not the attorney employed by the insolvent to advise with his creditors and prepare his petition and schedules.

Indeed, that section distinctly provides that such fees as those of the counselor for absent creditors “ shall in no case be paid by the mass creditors,” and “ in no case shall the fees exceed the sum of $250.”

The only duties that are imposed upon an attorney for absent creditors are to give them notice of the filing of the schedules and to look after their claims and superintend the proof of same before the notary. R. C. C. 3088.

In the nature of things, no definite amount of compensation could be fixed for the attorneys of the insolvent. The amounts must necessarily vary, as the affairs of the insolvent might be simple or complicated, great or small.

The authorities cited by the counsel of the syndic support the theory that “an attorney employed by the insolvent to give Mm advice and to prepare his schedules ” is entitled to receive some compensation out of the estate of the insolvent. 3 O. S. 363; 6 O. S. 560; 5 N. S. 399, 401.

We think the proof amply sustains the charge that is made. It also establishes the fee of $40 claims.

Judgment affirmed.


source: Caselaw Access Project

author: Poci-ié, J.

license: Public Domain

text:
    No. 9897.
    John W. Blackman vs. James D. Houston, Tax Collector, et als.
    Property used exclusively for a commercial college, such as "Blackman’s Commercial College,” in New Orleans, is exempt from taxation under Act 207 of the Constitution. The character of such property as used exclusiv ely for school purposes, is not affected or impaired by the fact that the owner thereof, who is the principal of the school and rn. one oí the teachers therein, resides in the bnildiug with his family.
    Teachers and necessary servants who occupy rooms in a college bnildiug on the premises, are necessary adjuncts to such an institution, and the property does not thereby cease to be used exclusively for a college, within the meaning of the Constitution.
    APPEAL from the Civil District Court for the Parish of Orleans. Houston, J.

      F. L. Richardson for Plaintiff and Appellee.

      M. J. Cunningham, Attorney (General; L. O'Donnell, Assistant City Attorney, and Jas. C. Moise for Defendants and Appellants.
   The opinion cf the Court was delivered by

Poci-ié, J.

Plaintiff’s object is to obtain a decree adjudging- a bouse and lot which lie owns in this city to be exempt from taxation under the provisions of Article 207 of the State Constitution, on the ground that the property is used exclusively for school purposes.

The defense is a general denial, and the judgment of the district court is in favor of plaintiff, recognizing the exemption claimed.

As the record shows that a portion of the house is occupied as a residence by plaintiff and his family, appellants argue that the property is not exempt from taxation because it is thus shown that the same is not used exclusively for school purposes.

The fallacy of the argument results from a too narrow construction of the article of the Constitution, which exempts from taxation * * all building's and property used exclusively for colleges or other school purposes, * * provided, the property so exempted be not used or leased for purposes of private or corporate profit or income.”

The record, shows that plaintiff himself is a teacher in his school, which is known as Blackman’s Commercial College,” which has an average attendance of fifty scholars, and which employs several assistant teachers.

In their contention appellants appear to entirely ignore or to radically misconstrue the proviso which is contained in the article and which is hereinabove transcribed.

It is shown, and we do not understand that it is denied, that the controlling use of that property is for the purpose of Blackman’s Cominercial College.” Under that showing the exemption applies, even when tested by the rule that exemptions should be strictly construed against the application therefor.

Now, does the fact that one or more teachers employed in the college or school, as indispensable means to carry out the object in view, occupy certain rooms in the buildings or on the premises thus used, destroy the character of the object to which the property has been destined ? The question is answered by the very nature of things and also by the proviso which forbids the use of the property so exempted for private or corporate i>rofit or income,” but is silent as to any other use which does not bring either profit or income. ■

It stands to reason that a college, with some two or three hundred scholars, who would also be boarders, would not lose its character as being used exclusively for school jmrposes, because forsooth it would contain rooms for the accommodation of necessary teachers, as well as for the servants required for the preparation of the food of teachers as well as of scholars, and for the performance of other household duties.

It is too plain in our minds for argument that all these incidents are necessary adjuncts to property used exclusively for college purposes.

It would certainly be imprudent, if not dangerous, to leave unoccupied at night, or when classes aTe not being actually taught, a building used for school purposes in a large city; aDd the argument which would hold that the occupation of such building by a janitor and his family would destroy or even impair its character as being used exclusively for school purposes, -would doubtless find no sanction under the true meaning of the article of the Constitution, or even in reason and common sense.

Is it entitled to more consideration or to greater weight when applied to the owner of-the building, who is the principal and one of the teachers of the school kept therein ?

This Court has held that the right of exemption from taxation of-a “textile fabric” was not affected or impaired by the fact that the owper occupied the same building with his family as a residence. City of New Orleans vs. Arthurs, 36 Ann. 98.

A careful examination of the various provisions contained in the Constitution on the subject of education, will satisfy any observing and impartial mind that the Convention which framed it intended, by all means in its power, to foster and promote education in the State, and that a too narrow construction of the provisions now under consideration, and which was one of the most efficient means adopted for tlie end in view, would be repugnant to.the manifest policy of the Convention on the subject of education.

We note the great reliance placed by appellant’s counsel on the case of St. Mary’s College vs. Crowl, 10 Kansas 442, which they quote as sustaining the proposition that the school-house used as a boarding school is not exempt from taxation, as the owner resided therein with his family.” Counsel seem to have entirely misunderstood that case, in which the exemption claimed was for a farm of several hundred acres of land, attached to a college, which, with all its appurtenances and grounds covering feighty acres, had never been taxed. The ground of the exemption claimed by plaintiff was that the entire property should be exempt, and the court refused the additional exemption on the ground that some of the products of the lands were sold for income. The exemption clause of the Constitution of Kansas touching the subject of education is about of the same import as the Article 207 of our Constitution. In the case in question the.court said : “ For the purposes of this case, it may also be conceded that if the property were used exclusively for teaching the Indians agriculture, and for raising food for them and the professors and the necessary stock kept on the farm, it would still be exempt. But when it is used to raise food for stock, not necessary to the farm, and to raise produce to sell, no further concessions in favor of its exemption can be made.”

Judgment affirmed.


author: Watkins, J.

text:
    No. 9904.
    Wm. S. Calhoun vs. M. M. A. Lane et al.
    It cannot bo contested tliat a married -woman, duly authorized thereto by her husband, has the right to compromise a lawsuit pending against her, or to make a transaction relativo to her separate paraphernal property or estate, for tlie purpose of preventing a lawsuit appertaining thereto.
    Such a compromise and transaction have, between the interested parties, a force equal to the authority of things adjudged.
    In case brother and sister, who are sole heirs-at-law to an estate fallen to them by a deceased ancestor, compose their differences, and one sells to the other his or her share, the hus-» band of the sister is a nominal, though necessary party, and his appearance therein does not convert it into a community covenant.
    A married woman cannot bo heard to set up the defense that the debt was her husband’s, in a suit upon the compromise, after she has failed to make it in the previous suit, or withdrawn it in consideration of the advantages she secured by the compromise.
    The suggesting that a married woman is not estopped from attaclcing her own judicial confession, are based entirely upon the supposition that such confession may hare been induced by marital coercion.

      Outsicle of suoli cases, she may. under exceptional circumstances, not existing here, he permitted to attach a transaction that has received the sanction of her husband only, upon proper averments and proof of error as to the matters transacted, fraud, violence or duress, and perhaps of her husband’s indebtedness.
    This class of contracts is clearly distinguishable from that iu which equivalents are exchanged. By the very nature of the agreement, the intention of the parties is the avoidance of litigation, even at the expense of what belongs to them.
    A force equal to the authority of things adjudged is said of that which has been decided by a final judgment, from which there can be no appeal, eibhor becanse the appeal did not lie, or because the time fixed by law for appealing is elapsed; or because it has been affirmed on appeal.
    If extraneous proof were required, iu support of a transaction enterod into by a married woman, it could not be said to have a force equal to the authority of things adjudged. It would be thereby deprived of the character of an unappealable judgment and reduced to the rank of a conventional obligation. To decide that a married woman may, with the authorization of her husband only, enter into a transaction, is to decide that no extraneous proof is required to entitle interested parties to a judgment for the enforcement of it, upon its production and proof of its execution.

      k PPEAL from the Twelfth District Court, Parish of Grant. Jt\j Overton, J.

      Thorpe <& Peterman for Plaintiff ami Appellant:
    1. A married woman, authorized l>y her husband, can enter into a valid compromise of disputes aud rights affecting her separate property. In a suit upon such compromise, if she fails to plead or prove that the debt was her husband’s or the community’s, or that the Compromise was secured by fraud or forced under marital coercion, and offers no evidence on the trial, she is hound; aud the creditor having shown that the compromise was properly executed, and had relations solely to her paraphernal property, can enforce the same. 26 Ann. 289; 37 Ann. 679.
    2. The consideration named in a compromise is tho foundation of the rule which gives to the compromise the authority of the thing adjudged. 23 Ann. 696.
    3. Compromises are not of that class of contracts to which sales belong; therefore, a transaction entered into to end. litigation, strife and disputes in the family, although only a cession of rights and pretensions, has a good consideration, and is enforceable at *law. 20 Ann. 248.
    4. Where it is shown that a married woman owned large separate interests, aud that she had compromised disputes relating thereto, the Court will not presume that they yielded no revenue, or were insufficient to justify her in exocuting the compromise. If this is her defense, she must allege and prove it. iü Aun. 209 ; 34 Ann. 995-1063.
    5. Parties'to a compromise are not entitled to restitution, their intention in executing it being the avoidance of litigation, “ even at the expense of what belongs to them.” 1 Potfa. Oblg. [35-36].
    6. The fact that the husband is bound in nowise changes or lessens the wife’s obligations. If the compromise is for the benefit of her separate property, it is binding on her, whether executed by herself ov by her husband with her consent. 29. Ann. 749.

      R. J. Boivman,. White <& Thornton and J. £. Tucker for Defendants and Appellees.
    The declaration of plaintiff of the ownership of the defendant of his interest in the succession of his mother (except the portion in Pennsylvania), and his warranty and stipulation to defend said title and the defendant to pay §42,500 in consideration thereof, is’a sale, aud nob a compromise.

      Such a sale to a married woman on credit, without proof or means of revenue to make the purchase, is a contract of the community, for which she is not hound, 5 Ann. 173;' 12 Ann. 663; 20 Ann. 220 ; 30 Ann. 1021: 34 Ann. 1065; 34 Ann. 975; 29 Ann- 75.
    The instrument sued on does not claim the contract it contains to he a compromise; neither is it claimed to he one in the petition, while the conveyance, by declaration of ownership, the warranty of title thus conveyed, and the price to he paid, are not. the features or characteristics of a compromise, but are of a sale.
    The sale of 1873, if real, proves too much, and estops the plaintiff from setting up claims and rights, and raising disputes about property that he has sold and warranted to defend. If a simulation, it strips the contract of its cloak of concealment, and exposes its true character, a sale.
    A part of the consideration of the contract is the release or cancellation of claims against her husband, and poisons and nullifies the contract. 1 Ann. 301; 16 Ann. 310; 23 Ann. 439.

      JFarrar db Kruttselmitt on the same side.
   The opinion of the Court was delivered by

Watkins, J.

The plaintiff and defendant are brother and sister, and sole heirs-at-law of their deceased mother, Mary Smith Calhoun, who died in 1871.

Plaintiff alleges that, for a long time, there had been disputes and differences between them in regard to their respective rights and interests in their mother’s succession, and that, in order to adjust and put an end to said claims, disputes and differences, and “ to perfect and quiet the title assei'ted by defendant, in and to the property of the said succession,” he and defendant made a written agreement, wherein he renounced and released to her all his right, title, interest and claim, of every kind and character, in all the property, movable and immovable, of whatever description and wheresoever situated, of their mother’s succession; and wherein she waived, renounced and released all claims, of whatever character and from whatever cause, against him; and further agreed to pay and satisfy a certain judgment obtained against him for the capital sum of $5200, by L. L. Levy, lo execute to his daughter a donation to a five hundred acre tract of land, and to pay him, in addition, $17,500.

This agreement hears date December 23, 1882, and the signature of defendant was duly authorized by her husband.

Petitioner represents that he has fully complied with his part of the agreement in good faith, hut that defendant has wholly failed and refused compliance therewith, and this suit isbrought for its enforcement.

Plaintiff’s contention is that the said agreement evidences a transaction and compromise having the force of res judicata while, on the other hand, defendant’s contention is, it was a contract of tlie.conrmunity existing between the defendant and her husband, G-. W.,Lane, for which defendant, a married woman, could not be held responsible— that one of its covenants seeks to bind her jointly with her husband, for the payment of the Levy judgment; and that a part of the pretended consideration of said contract was the cancellation of the obligation of her husband; and both in violation of a prohibitory law.

Defendant’s counsel argue that the agreement evidences a sale to a married woman and nota transaction or compromise; that she was unauthorized in law to bind herself for the payment of so large a sum, without adequate means to discharge the same, and that the contract was, without consideration, for more than $30,000.

I.

The issue must be determined by the proper construction to be placed upon the agreement.

The record discloses that, on the 23d of June, 1873, plaintiff and defendant were recognized as the sole heirs-at-law of their mother, Mary Smith Calhoun, deceased widow of Meredith Calhoun, from whom she was separate in property; and by a decree of the Probate Court they were placed in possession of her property and estate.

At that date defendant was of full age, unmarried and sui juris.

They accepted her succession unconditionally.

The agreement sought to be enforced contains, substantially, the recitals of fact set out in the petition.

The first paragraph declares that defendant “ is the true and lawful owner of, all and singular, the property formerly owned by his mother, Mary Smith Calhoun, deceased, both real and personal.” It further declares that' plaintiff releases and renounces any and all right, title or interest in any property therein referred to, and all claims against his sister and against her husband, if any be, mcmj, or might have been,” whether arising from, or out of said property, or any portion thereof, in any manner whatever, either as heir or legatee of Judge William Smith, his grandfather; Mary S. Calhoun, his mother ; or Meredith Calhoun, his father, or otherwise, binding himself to warrant and defend the title and ownership which his sister now has and enjoys in and to the property before referred to.”

In the second paragraph the defendant voluntarily and fully releases any and all claim against the plaintiff, whether arising from, or out of, his management of any of the property aforesaid or the'revenues thereof; or from or out of his management of the property formerly owned by Meredith Calhoun, their father, or the revenues thereof; or from or by reason of any debts, expenses, law charges, or other expenses named or paid for his account, or from any and all other sources whatever,” etc.

These two jiaragraphs are mainly relied upon as indicating the character of the differences and disputes that the parties, by thei.i agreement, composed and adjusted.

In the third paragraph the defendant binds herself to pay and satisfy the Levy judgment against the plaintiff of $5250, with interest.

In the fourth paragraph she obligates herself to make a donation of “five hundred acres of. land to plaintiff’s daughter.” The land is particularly described and indicated thus: “A part or portion of said lands is now claimed as the property of the succession of Meredith Calhoun, having been advertised for sale therein, and said sale has been enjoined by said Mrs. Lane; and which suit she declares she will prosecute to a successful termination; and, if unsuccessful, that she will purchase said land at the succession sale, in order to perfect the donation; or, on her inability so to do, she promises to make a donation to his said neice of five hundred acres of land of equal -value. The formal act of donation, before a notary, shall be executed and signed whenever W. S. Calhoun desires,” etc.

There is no valuation placed, by the agreement, on the land that is to be donated.

This paragraph indicates a reason why the plaintiff transfers to his sister his interest in the succession of his father, Meredith Calhoun, and that is to enable her to complete the proposed donation.

In the fifth paragraph, defendant’s pecuniary obligations are expressed,

“ For and in consideration of the acknowledgments, declarations and agreements made by the said W. S. Calhoun, as aforesaid, and in order to secure peace and a final termination of all possible disputes present and future,” defendant agrees to pay to the plaintiff $17,500 — that is to say, $10,000 in cash within forty-five days, and for the remainder of $7,500 to execute her note, secured by mortgage, due at twelve months*

II.

There was introduced in evidence, on the part of plaintiff and in connection with the agreement, what purports to be an act of sale, whereby plaintiff, on the 27th of May, 1873, conveyed to his sister, his interest in his mother’s succession, which is differently construed by counsel, and should he considered in connection with the agreement.

It is six days prior in date to the order of court placing them in possession of their mother’s succession.

An examination of that act shows that plaintiff did convey, with full warranty to his sister, the defendant, his interest in his mother’s succession for the express consideration of $35,000, in cash paid.

At that time, it appears the defendant was of full age and unmarried, and therefore fully capable of making the contract.

The act was executed before A. Hero, a notary in this city. The property, with the exception of the plaintiff’s interest in the successions of his father and grandfather, is identical with that which is described in the agreement, and acknowledged therein to be the projierty of defendant. The agreement in terms recites that the defendant “ is the true and law'full owner of all and singular the property formerly owned by his mother, Mary Smith Calhoun.”

The only essential difference between the act of sale and the agreement is in respect to the consideration.

In the former it is mentioned as cash ; while in the latter it is differently specified, as above recited, viz:

Satisfaction of the Levy judgment for $5,250, with accumulated interest, and in cash and note $17,500.

There is no valuation placed upon the live hundred acres of land to be donated. Nothing is said in the agreement upon that subject. The consideration that is expressed in the act of sale is $35,000, an equal, if not greater, amount than defendant promises to pay in agreement.

The only legitimate conclusion we can arrive at is that the act of sale of May 27, 1873, was recognized by the agreement, and all differences and disputes between the parties appertaining thereto or growing out of same, were therein adjusted and composed : and, that the consideration that was specified in the act of sale as cash, was explained and arranged to suit defendant’s circumstances.

III.

Assuming the agreement to be a sale and not a compromise, defendant’s counsel further argues that it is void, for the reason that a married woman is not permitted to purchase property on terms of credit on her separate account, unless she is possessed of adequate means to discharge her obligations from her own resources.

While that is true, as a general proposition, the principle is not properly invoked here. We have already ascertained that the agreement is not a sale j but, it is one in -which the previously existing title of defendant is recognized and affirmed. We have also ascertained that the defendant acquired her title after her full majority, but prior to her marriage — hence there was involved, in its acquisition, no question of marital restiaints or authority. In the answer of defendant’s present counsel, he challenges the validity of the consideration for the agreement beyond the sum of $30,000. Impliedly lie admits that to be a fair valuation of plaintiff’s interest. In our view, the defendant’s obligations are less than that amount. But on that basis she became possessed of property worth $60,000 — including her share — and which was certainly adequate to the paraphernal acquisition.

IV.

A further argument is made to the effect that plaintiff released and abandoned all claims upon theproperty referred to as against his sister and against her husband, “if any he may or might have,” and bound himself “never to make demand, call upon or prosecute his said sister, her husband, or their heirs, for an accou/nl relating thereto and, therefore, the whole agreement is tainted with illegality and cannot be enforced: It is difficult to conceive what claim plaintiff could have had against defendant’s husband on account of his mother’s succession or property. But it is a sufficient answer to say there is no proof furnished by the agreement or otherwise of any debt or demand the plaintiff had against the defendant’s husband; and, inasmuch as both plaintiff and defendant were of full age in 1873, when they accepted their mother’s succession unconditionally, no account was due the defendant.

We regard those as precautionary recitals in the act, and exercising no control over its general effect.

The act of sale was doubtless introduced by plaintiff as adjuvatory to, and as a basis for the agreement of compromise — to show the status of the parties thereto with respect to each other at the time it was made — and to indicate the relations existing between the title and the agreement itself.

V.

It cannot be contested that a married woman has the right to compromise a law suit pending against herself, or to make a transaction for the purpose of preventing a law suit against herself; and transactions have, between the parties, a force equal to the authority of things adjudged. 26 Ann. 289, Barion vs. Solibellos; 37 Ann. 679, Sentell vs. Dora Stark; 34 Ann. 1171, Thornhill vs. Bank; 37 Ann. 324, Chaffe vs. Watts; 20 Ann. 248, Davis vs. Lee; 23 Ann. 696, Roburn vs. Pierson; R. C. C. 3071, 3073, 3078.

The agreement appertains exclusively to the defendant’s separate property. It is a compromise between two forced heirs to the succession of their mother, and had its foundation in a sale made ten years before and prior to the defendant’s marriage.

On its face the consideration appears to be just and adequate, .and its sufficiency has not been assailed or questioned here, except in argument and pleading.

The defendant appeared and signed the act in the presence of her husband, who signed with her, and her counsel, F. W. Baker, who also signed, attesting.

There is, in our opinion, no question of the validity of the agreement, and plaintiff is entitled to the enforcement of it.

It is, therefore, ordered, adjudged and decreed that the judgment appealed from be avoided, annulled and reversed; and proceeding to render such judgment as should have been rendered by the court a qua, it is ordered, adjudged and decreed that the agreement sued on be recognized and enforced, and that the plaintiff and appellant do have and recover of the defendant and appellee the sum of ten thousand dollars, with five per cent interest from judicial demand; that defendant be required to execute her note and mortgage in favor of plaintiff for the further sum of seven thousand five hundred dollars, with interest and mortgage, as stipulated in the agreement sued on; that she pay and discharge the Levy judgment; of $5200 and interest, and execute the donation to plaintiff’s daughter of the land described, or that of equal value, and according to the terms and stipulations of the agreement; and that all costs of both courts be taxed against said defendant and appellee.

On Rehearing.

We are requested to review and recast our opinion, upon the following grounds, viz:

1st. Because there is no evidence of the existence of disputes and differences other than the recitals of the act, and they are insufficient to bind a married woman.

2d. “If the contract sued on is, as the court terms it, a sale of plaintiff’s interest in his mother’s succession, it cannot be a compromise.”

3d. If the contract could combine both a sale and a compromise, the portion resting upon the nature of a sale, could not bind a married woman.

4th. The plaintiff having proved the validity of the sale of 1873 to the defendant, he is estopped from disputing it; and, as warrantor, he is estopped from raising disputes and claiming rights growing out of said property, and a compromise based upon such a consideration is a nullity.

5th. Because, if the court holds that the act of sale of 1873 is a simulation, then the contract is a sale, pure and simple, to a married woman not separate in property and upon terms of credit beyond her means.

6th. Because the court erred in supposing the husband to be a merely nominal party to the contract.

The issues tendered by defendant’s answers are the following, viz:

1st. A general denial, coupled with the averment that plaintiff disclosed no legal right upon the face of the papers ” to bring him into court.

2d. That the agreement sued on evidences a community contract.

3d. That she is sought to be bound jointly with her husband for the Levy judgment.

4th. That part of the consideration of the agreement is the cancellation of her husband’s obligation.

5th. That the agreement is a simulation and null apon itsfaee.

On the trial the defendant was not sworn as a witness, and her counsel introduced no evidence. Hence none of her defenses are made out.

The agreement shows upon its face aprima fade right in plaintiff to bring the defendant into court.

It does not, in its recitals, evidence a community contract. They do not show that her husband’s obligations enter into its consideration. It contains no inherent proof of its simulation. The Levy judgment is against the plaintiff, and there is no legal prohibition against the defendant’s husband binding himself cojointly with her for its payment, to a stranger.

Recurring to the defendant’s application for a re-hearing, we find, in our opinion, no warrant for the assertion that it construed the agreement to be a sale; or, as one partaking of both the nature of a sale and a compromise. The record does not disclose any evidence to justify the inference that plaintiff denies or disavows the title of 1873; or that he raised the disputes and differences concerning it. We gave no intimation to the effect that the sale of 1873 was a simulation • — though the defendant and her counsel assert it was — and our inference that defendant’s husband was only a nominal party, was drawn from the want of proof, of any kind, that he was an interested party. The opinion is plain and unmistakable.

It reads thus: The agreement appertains, exclusively, to defendant’s separate property. It is a compromise between two forced heirs to the succession of their mother; and had its foundation in a sale made ten years before, and prior to the defendant’s marriage.

On its face the consideration appears to be just and adequate; and its sufficiency has not been assailed or questioned here, except in argument and pleading. The defendant appeared and signed the act, in the presence of her husband, who signed with her and her counsel, F. W. Baker, who also signed, attesting.”

The opinion further holds that a married woman has the incontestable right to compromise a law suit that is pending against herself, or to make a transaction for the purpose of preventing a law-suit being brought against her; and that transactions have a force equal to the authority of things adjudged.

The only remaining question for consideration is whether or not extraneous proof of differences and disputes should have been adduced, in order that a transaction or compromise should have binding force and effect upon a married woman, authorized by her husband alone, though not separated from him in property.

Defendant’s counsel say, in their brief: “We plant ourselves upon the position that there is not, in this case, that quantum of evidence, adduced by the plaintiff, to authorize the Court to render a judgment against a married woman, on a contract signed conjointly with her husband, without the authorization of the judge. The whole case turns upon this question.”

Further: “ There is no doubt about the power of a married woman to enter into a compromise. A compromise is only one form of contract, which any person with power to alienate the thing with reference to which the compromise is made, can enter into. She has the option, unless the other party objects, to enter into such a contract of compromise, solely with the consent of her husband.” But the other party “ accepts a contract which imposes upon him the burthen of proof to show that the compromise was for the separate use of the wife.”

It is a well established principle — one deeply imbedded in our jurisprudence — that he who sues a married woman upon a contract, or obligation, must show by proof administered that the “contract turned to her advantage” — or inured toiler separate benefit. We do not understand that this rule obliged the plaintiff to administer proof to establish the verity of the contract, or the sufficiency of the consideration of the written instrument; but it does oblige him, by some evidence, to show that an established contract “turned to her advantage.”

Defendant’s counsel contend that in neither Barron vs. Sollibellos, •nor Sentell vs. Stark, were the recitals of the act held sufficient proof of a transaction; but that proof aliunde was administered for the purpose of establishing it.

In the former case, Mrs. Barron enjoined the execution of a judgment she had confessed, upon the double ground that the obligation was one of her husband’s and that it did not inure to her benefit.

The Court say: “ The simple question presented is, can a married woman compromise a lawsuit pending against herself ? We apprehend no one will dispute her right to do so. And ‘ transactions have, between the interested parties, a force equal to the authority of things adj udged.’ It is difficult to imagine how it can be pretended that money loaned by Solibellos for the purpose of enabling the compromise to be effected, did not inure to her benefit. Nor can she be listened to when saying that the debt, on which Miltenberger has sued her, was the debt of her husband; for, by the compromise, they agreed to put an end to that lawsuit, to adjust their differences by mutual consent in the manner which they agreed on, and which each party preferred to the hope of gaining balanced by the danger of losing. The injunction was improvidently maintained.” 26 Ann. 289.

In the latter case plaintiff sued Mrs. Dora Stark on several mortgage notes that she had executed in pursuance of an act of compromise of a lawsuit, and her defense was that the debt was her husband’s, and marital coercion. The Court say: “That a married woman can compromise a pending lawsuit against herself, has been decided in Barron vs. Solibellos, where the facts were very similar to those in the case at bar, and she cannot be heard to set up the defense that the debt was her'h/usband’s, in a suit upon the compromise, after she has failed to make it in the previous suit, or withdrawn it, in consideration of the advant&ges she secured by the compromise.

“ If a married woman, under such circumstances, can go behind her own judicial admissions and repudiate them, she will have immunity that the law has not conferred upon her. * * * * *

“We think the defendant has no escape from the payment of the obligations, and that the judgment in her favor is error.” 87 Ann. 1171.

In Thornhill vs. Bank, suit was brought to annul a judgment rendered in pursuance of a compromise on various grounds, and among them that it was the husband’s debt. The Court say: “ The authority of a married woman to make a compromise, with the authority of the husband, has been judicially determined in Barron vs. Solibellos, 26 Ann. 289.

“ The effect of the compromise and of the judicial proceedings based thereon, was only to effect that which the plaintiff would have had the unquestioned right to do, assuming that the debt was her separate debt, viz: to subject her separate property to the payment thereof.

“ Can the plaintiff be heard to deny that the debt did inure to her separate benefit? We think not. She was a party to the suit in which the judgment assailed was rendered, and she judicially confessed the fact.

The cases suggesting that a married woman is not estopped from attacking her own judicial confession a/re based entirely upon the supposition that such 'confession may have been induced by marital influence,” etc.

Instead of the court holding that extraneous proof was necessary, they declined to hear and consider such evidence in those cases. Instead of holding that proof should be administered to establish that the debt inured to her advantage, they say that the only reason that a married woman is estopped from attacking her judicial confession is based upon the supposition of marital influence. We have no such allegation here. On the contrary, the defendant’s husband appeared as her counsel and filed her first answer, and his act was not subsequently repudiated.

In the last decided case—Sentell vs. Stark—defendant plead in her answer marital coercion and non-liability for her husband’s debt; but she failed to substantiate the former and the court would not listen to the proof of the latter.

As illustrating the view taken of this subject, an early case may. be quoted, in which it was said: “ The wife was bound by the note which she executed jointly and severally with her husband; although, if the debt for which it was given was her husband’s alone, and she merely a security, she could have resisted the execution of the amount by availing herself of her exception to such a contract resulting from her condition as a married woman. But having made the exception, and no' fraud, restraint, or duress having been charged to be exercised in relation to her non-appearance after citation, the judgment against her must be considered as valid.” 2 Ann. 342, Aubic vs. Grill.

In 23 Ann. 314, Darcy vs. Martin, the court sanctioned the right of a married woman to enjoin the execution of a judgment she had confessed with the authorization of her husband, on the grounds of error, fraud and marital coercion and restraint.

Similar rulings were made in 28 Ann. 839, Strother vs. Hamlet; 15 Ann. 628, Baines vs. Burbridge; 15 Ann. 621, Medart vs. Fasnach; 34 Ann. 1065, Succession of Andrus.

But to show how guarded this Court has been in admitting married women to urge such defenses against judgments, we have noted the striking- language employed by onr immediate predecessors in treating of them:

“And that principle has been carried so far that the wife is permitted to sue to annul and to enjoin the enforcement of a judgment she has confessed.” 30 Ann. 1024, Sara Bowman vs. Kaufman.

The Code teaches that a transaction or compromise is an agreement “ between two or more persons who, for preventing or putting an end to a lawsuit, adjust their differences by mutual consent, in the manner which they agree on, and which one of them prefers to the hope of gaining balanced by the danger of losing.” R. C. C. 3071.

A transaction is an agreement of two or-more parties. It has for its object the prevention or termination of a lawsuit between the parties. It is an adjustment of differences and disputes by mutual consent. This adjustment is preferred to the hope of gaining balanced by the danger of losing.

It was well said in Raburn vs. Piersou, that the law which gives to “the transaction the authority of the thing adjudged is founded upon the maxim that it is for the interest of the commonwealth that there should be an end to litigation.” 23 Ann. 696.

This class of contracts is clearly uistinguishable from that in which equivalents are respectively given and received.

It was correctly observed by our predecessors that “in transactions, as they are defined in the Code and in the Roman law, there is, from the nature of such contracts, something aleatory.” 20 Ann. 248, Davis vs. Lee.

Pothier, in writing on the subject, employs this language: “There are certain agreements in which persons of full age arc not entitled io restitution, be the injury ever so considerable. Such are compromises according to the edict of Francis IT. These are agreements respecting pretensions upon which there are impending or expected litigations. * * * By the very nature of such agreements, the intention of the parties is the avoidance of litigation, even at the expense of what belongs to them.” 1 Pothier Ob., p. 121 (36).

The Code declares that a transaction has “between interested parties, a force equal to the authority of things adjudged,” and-that “they cannot be attacked on account of error in law or am/ lesion. R. C. C. 3078.

In Long vs. Robinson, suit was brought to annul a transaction on the ground that there was great inequality in their respective shares and interests, and the Court hold that such a claim was unfounded, and declined to listen to evidence in support of it. What is a force equal to the authority of things adjudged?”

A thing adjudged is said of that which has been decided by a final judgment, from which there can be no appeal, either because the appeal did not lie, or because the time fixed for appealing is elapsed; or because it has been affirmed on appeal.” R. C. C. 3556, No. 31.

If, then, as learned counsel admit, •* there is no doubt of a married woman’s right to enter into a compromise,” or to make a transaction, “solely with the consent of her husband,” we submit, on the authorities cited, that his question must be answered in the negative.

There is no precept of the law that requires evidence to support an act or compromise. This would of itself destroy its effect as a transaction. It could not then be said to have a force equal to the authority of things adjudged. It would then be deprived of its character as an unappealable judgment, and reduced to the rank of conventional obligations and commutative contracts. If it be necessary to prove aliunde that there was an adequate consideration, then it would eo ■instcmti cease to be a compromise. If proof is necessary to show that the contract turned to her advantage, the provisions of the Code would be violated, and by its reception the jurisprudence would be trenched upon.

Both the Code and the decisions quoted clearly indicate what defendant’s remedy and redress are. If there was error in the matters that were transacted, or, if fraud, violence, duress, marital coercion, or restraint were resorted to; or possibly upon proof that the debt did not enure to her separate estate, or was, in fact, that of her husband, she might have been relieved; though it is unnecessary to decide that question now, because there is no averment of marital coercion, or restraint; and no pi oof whatever of any of the charges we have enumerated. And, in maintaining the transaction in the instant case, we have not gone to the extent of the doctrine that was announced in Aubie vs. Gill, above cited.

We have given the questions involved most patient and careful consideration, and feel satisfied that the conclusions announced in our opinion are founded in reason and on authority, and we 'shall adhere to them.

It is, therefore, ordered, adjuded and decreed that our original opinion and decree remain undisturbed.

Mr. Justice Foche takes no part, and assigns his reasons.

Poché, J. My examination of this case, on the application for re-bearing, had led me to the conclusion that onr original opinion was erroneous, and that owing to the lack of evidence on the part of plaintiff, to support his claim, the judgment should have been one of non-suit. I adhere to that opinion; but as I was prevented by sickness from hearing the argument of counsel on rehearing, I take no part in the present opinion and decree.


author: Poci-ik, J.

text:
    No. 9913.
    James A. Renshaw vs. Adeline C. Dowty and Husband.
    In a suit by a creditor for the nullity of a transfer by his debtor to the latter’s wife, of property, as a dation en paiement of her paraphernal funds, on the ground that such transfer is simulated and fraudulent, proof on tho.part of the wife that there was actual consideration, although inadequate, is conclusive against the allegation of simulation. The attack of the transfer as a fraudulent preference over the husband’s creditors is tho revocatory action of our code, and is barred by the prescription of one year.
    APPEAL from the Twelfth District Court, Parish of Rapides. Blaelcmam, J.

      It. J. Bowmcm and Henry Benshaw for Plaiutiff and Appellaut:
    The evidence shows that the claim of the wife does not reach §2600, and the property conveyed is §3060 more than that amount. Contracts between husband and wife are nullities, non-existent, except to restore the amount due the wife.
    Where more than half the price is simulated, the contract is simulated, as well as a nullity, because such a contract is prohibited,
    In simulations subsequent creditors can attack. 15 Ann. 177. A simulated transfer will not support prescription. 11 Ann.265; lOAmi.20; 8 Ann. 8L, 458 ; lAnn.132.
    The prescription of one year pleaded begins only from date of judgment against the debtor, is inapplicable to sale in execution of wife’s judgment. When no debt is due her, it Is • a mere nullity and transfers no title. 6 Ann. 87.
    Presumption, in actions from fraud alone, begins only from date of creditor’s judgment. C. C. 1889. One year had not elapsed from date of judgment.
    The testimony of married women, in proof a paraphernal claim against husband in a sum exceeding §500, uncorroborated by circumstances, is insufficient to establish the claim. 37 Ann. 857.
    Value of property in this case determines jurisdiction. 37 Ann. J86.

      James Andrexos for Defendant and Appellee:
    1. The husband and wife can make a legal contract of sale, or dation on paiemont — 1st, whenever the transfer is for the purpose of paying the rights of one of the spouses judicially separated from the other; 2d, whenever the transfer from the husband to the wife has a legitimate cause, such as the replacing of her dotal or other effects by him alienated. This contract may take place whether the apouties be separated in property or not. Voorhies, Ü. O. 2446 ; Rev, U. O. 2421.
    2. The wife may, during marriage, petition against the husband for a separation oí property when the disorder of his affairs induces her to believe that his estate may not be sufficient to meet her rights and claims. Voorhies, C.-'OV 2425; Rev.- C. C. 2399.

      3. A dation cn paiement made by the husband to the wife in settlement of her paraphernal rights, if in good faith, is valid, though her judgment of separation against him be null. 30 Ann. 746.
    4. A suit to annul a dation enpaiement made in execution of a wife’s judgment as collusive, fraudulent and simulated, can be viewed in no other light than a revocatory action. 6 Ann. 87, 494; 11 L. 424; 14 Ann. 106; 30 Ann. 966; 34 Ann. 347.
    5. The correctness of a judgment of separation, or the sufficiency of the evidence upon which it was rendered, cannot be inquired into by a creditor of the husband whose claim arose subsequent to its rendition. O. C. 3434 ; 6 Ann. 391; 4 R. 336 ; 24 Ann. 49 ; 22 Ann 49 ; 22 Ann. 619; 10 Ann. 5G4 ; 14 Ann. 49.
    6. The husband’s transfer to tbe wife in satisfaction of her paraphernal claims is not subject to the ordinary rules governing the revocatory action. By our settled jurisprudence neither his pecuniary embarrassment or actual insolvency, nor injury to the rights of creditors, present any obstacle to transfers in satisfaction of such claims, when shown to he real and genuine. 8 Ann. 485; 30 Ann. 745; 33 Ann. 536; 34 Ann. 992.
    7- Acfcious to annul a wife’s judgment and a transfer thereunder are prescribed in one year from the date of the transfer or dation cn paiement. 6 Ann. 87; 11 L. 424; 34 Ann. 347; 30 Ann. 966; 14 Ann. 106.
    8. He who alleges simulation must establish it, and to do so must disclose an intention to defraud and injury to himself. 18 L. 338; 2 R, 92; L2 Ann. 739; 13 Ann. 474; 30 Ann. 966 ; 22 Ann. 619.
    9. The wife may introduce other proof when her judgment against her husband is attacked by the husband’s creditors other than that upon which it is based, and show that his indebtedness is greater than the price stipulated in the dation en paiement made to her. 28 Ann. 546.
   The opinion of the Court was delivered by

Poci-ik, J.

Plaintiff’s object is to annul and set aside a dation en paiement made by the defendant husband to his wife as fraudulent and simulated, and as injurious to him as a judgment creditor of tbe husband.

' Tbe defense is a general, denial, an averment that plaintiff was not a creditor of tbe husband at tbe date of tbe transfer, and tbe prescription of one year.

Plaintiff appeals from an adverse judgment.

Tbe transfer from tbe husband to bis wife was preceded by a judgment of separation of property, condemning him in tbe sum of $5320.60 in favor of bis wife; and tbe property transferred was appraised at $5663. While in bis petition plaintiff charges absolute simulation in tbe proceedings which he attacks, on appeal be concedes that tbe moneyed claim of tbe wife amounted at least to tbe sum of $2583.37.

It'follows, under bis own admission, that there was a real and valid consideration to tbe extent of that sum for tbe transfer. Hence the transaction was not a simulation, and that feature of tbe action fails. Brown vs. Brown, 30 Ann. 966.

This leaves plaintiff in the attack with his allegation of fraud to the detriment of his rights as a creditor.

Conceding arguendo that he was a creditor at the date of the transaction, his action must be characterized as an attack on a real contract, alleged to have been made in fraud of creditors.

This is the revocatory action proper, which is barred by the prescription of one year from the date of the attacked transfer. C. C. 1987; Britto vs. Favre, 34 Ann. 347, and authorities therein cited; Powell vs. O’Neil, 24 Ann. 522.

The datíon en paienient was made in December, 1883, and plaintiff’s action was brought in January, 1886; it is therefore barred by the prescription of one year.

Judgment affirmed.


author: Todd, J.

text:
    No. 9791.
    Wilson & Belanger vs. W. R. Hanna & Bro.—W. H. Brown, Intervenor.
    Where the issue in a case is one of fact, such as fraud or simulation, and the testimony is conflicting, it is a safe rule not to disturb the judgment of the lower court, unless after careful research and patient weighing of the jarring testimony, there is a thorough conviction that the judgment is wi ong.
    APPEAL from the Civil District Court for the Parish of Orleans. Tissot, J.
    P. B. TMard <& Sons for Plaintiffs and Appellants.

      W. S. Benedict and A. J. Murphy for Intervenor and Appellee.
    J. A. Seghers, Curator ad hoc.

   The opinion of the Court was delivered by

Todd, J.

The parties to this litigation are all residents of Nicaragua.

The plaintiffs, merchants of Bluefields, sue the defendants on balance of an account for $3,523.35, before the Civil District Court of New Orleans, and caused to be attached fifty-five'bales of rubber as the property of the defendants, which liad been shipped to this port and consigned to Messrs. Schmidt & Ziegler, of this city. An order was procured by plaintiffs contradictorily with the curator ad hoc appointed to represent the defendants, for the sale of the property attached, during the pendency of the suit, and it was sold for $2,334.

On the day before the sale, W. H. Brown intervened in the suit, claiming to be the owner of the property by virtue of a purchase of the same from the defendants.

The plaintiffs, in answer to the intervention, alleged that the sale of the property to the intervenor was a fraudulent simulation.

There was judgment in favor of the intervenor and the plaintiffs appealed.

The sole controversy is between the plaintiffs and the intervenor, touching the ownership of the property seized — there being no contention about the debt.

As usual in litigations of this character, we find the evidence in the record, which is extensive, painfully conflicting, rendering the issue in the case difficult of determination.

Were we to be guided by the evidence on behalf of the plaintiffs alone, we would readily reach the conclusion that the sale in question was a pure simulation, as by that evidence it is made to appear that the intervenor went to Nicaragua entirely without means, and was for some time employed by the defendants as clerk at a moderate salary, and that such was his apparent condition at the date of the alleged transfer of the rubber.

On the other hand, it is shown that soon after quitting the employment of the defendants as clerk, the intervenor purchased at a nominal price the lease for a long term of years of a large tract of land, and established thereon a banana plantation, estimated to be worth at the time of the trial in the lower court, about $8,000. That he was assisted in'the improvement of this plantation and his business generally by a merchant doing business at Bluefields, a town in the Mosquito Reservation in said State. The price purporting to be paid for the' rubber by the intervenor was $800 in cash and $208.34 in merchandize. This price the intervenor swears that he paid, and another witness swears that he was present when the payment was made and counted the money himself, and also that he negotiated for the intervenor a loan or advance from the merchant above mentioned of the funds or means to make the payment.

The testimony of these witnesses is corroborated by that of the merchant referred to —named Ebensberger — who stated that he had made advances of money and merchandize to the intervenor exceeding $3000, and spoke of him (the intervenor) as meriting the credit he had given him and confidence bestowed from the reputation he had established for industry and probity and exceptional morality.

In eases of this kind, where the mind is liable to be embarrassed with doubt, under the effect of conflicting testimony, we think it the wiser and safer rule not to disturb tlie judgment of the lower court, unless after a careful study of the evidence and a patient weighing of the jarring testimony we are thoroughly convinced that the conclusion reached by the judge of the first instance is wrong. In the instant case we have reached no such conclusion.

Judgment affirmed.


author: Fenner, J. Bermudez, C. J.

text:
    No. 9823.
    Succession of Alexis Benjamin.
    A conventional mortgage, under our law, can result only from contract.
    Where such a mortgage is claimed, under the terms of an ambiguous writing, two things aro essential, viz: (1) The intention to create a mortgage on the part of the parties thereto; (2) in order to have effect with regard to third persons, the expression of that intention with sufficient clearness to serve as notice to them, when the instrument is recorded.
    Finding both these essentials wanting in the instrument under which the mortgage is claimed, the right is denied.
    APPEAL from the Civil District Court for the Parish of Orleans. T'issot, J.

      Alfred Grima, for the Administratrix, Appellee.

      Braughn, Bucle, Binlcelspiel, (& Hart, for. the Opponents, Appellants.
   The opinion of the Court was deliveréd by

Fenner, J.

Loeb & Sclioenfeld, holding a judicial mortgage on the immovables of the deceased, oppose the account herein filed by the administratrix, because, in distributing the proceeds of sale of the only immovable of the succession, the property No. 222 Baronne street, the administratrix awards a preference thereon in favor of Jules Aldigó, as a superior mortgage creditor.

Aldige’s claim to a mortgage rests on the following anomalous instrument :

(Face of Note.)

And the reverse of the note reads:

“State of Louisiana, ? Parish of Orleans. $

“Before me, Charles G. Andry, a notary public, duly commissioned and qualified, in and for the parish of Orleans, State of Louisiana, personally came and appeared Mr. Alexander Beujamin, of the city of New Orleans, who being duly sworn by me, notary, declared and said that he is justly and truly indebted unto Jules Aldigó, Esq., also of the city of New Orleans, as set forth in the note, which is on the reverse hereof, in the sum of forty-four hundred and seventy-seven 79-100 dollars, which have been advanced by the said Aldigó to him, the affiant, and applied by him, the affiant, to the payment of a certain piece of property, situated in the First District of the city of New Orleans, in the square bounded by Baronne, Dryades, Julia and St. Joseph streets, and bearing the municipal No. 222 on Baronne street.

“ That in order to secure the payment or reimbursement of the said sum to the said Aldigó he, the affiant, does hereby recognize and acknowledge, in favor of the said Aldigó, a privilege and lien on the above described property, and he does also authorize the recording of the said lien and privilege in the office of the Recorder of Mortgages for the parish of Orleans.

“(Signed) A. BENJAMIN.

“ Sworn to and subscribed before me at the city of New Orleans, this thirteenth day of September, 1884.

“(Signed) Chas. G-. Andry,

“Notary Public.”

The foregoing was recorded before the judgment of opponents, and if it be either a privilege or a mortgage, it ranks their judicial mortgage.

. It is apparent that no privilege exists; and the only question is whether the writing creates a conventional mortgage.

It purports to “ recognize and acknowledge ” a “ privilege and lien.”

Under our law, the term “ privilege ” has a well defined meaning, different and distinct from the term “mortgage.”

In a recent case we said: “ The distinction between mortgages and privileges is too elementary and well understood for us to extend the plain significance of a statute nominating privileges only, so as to cover and include mortgages also.” State ex rel. Jackson vs. Recorder, 34 Ann. 178.

The only kind of incumbrances on property known to the law of Louisiana are mortgages and privileges.

The term Hen is not used iu our law as significative of any particular sort of incumbrance. It is a legal term used geneially to signify any incumbrance on property, but, we may say, usually employed in connection with privileges, and rarely with mortgages.

Indeed, it is quite common to use the tautological expression of lien and privilege as applied to a mere privilege, e. g. the vendor’s lien and privilege, the lessor’s lien and privilege.

Prom this it is clear that the use of the term lien in addition to that of privilege does, by no means, of itself, indicate the intention to create or recognize a mortgage, or indeed anything in addition'to a privilege.

It is to be borne in mind that if there is any mortgage here, it is a conventional mortgage, or one resulting from a contract.

The terms of this contract being ambiguous, we must endeavor to determine what was the intention of the parties. Miller vs. Shotwell, 38 Ann. 890.

Benjamin expressed his intentions to the notary who prepared the writing indorsed on the notes. Can it be supposed that, if he had expressed or even hinted a desire to grant a mortgage, that experienced and able notary would have drawn up such a writing as is here presented ?

Prom the terms of the writing itself, it is perfectly clear to our minds that, from the fact that the note was given for money advanced by Aldigé, and actually applied in payment of the price of the property bought by Benjamin, the latter supposed that Aldigé had acquired a vendor’s privilege on the property; and his simple object was, by the.indorsement, to put the evidence of this privilege in proper shape to be recorded.

The whole language indicates this purpose, and is as far as possible from indicating an intention then ana there to create a new and original right.

Such would be the purpose suggested from the reading of the instrument. It was the evident interpretation put on it by the Recorder of Mortgages himself, who, when he furnished his certificate, reported this, not as a mortgage, but as a privilege.

We have not a shadow of doubt that it was so regarded by the notary, by Benjamin, and even by Aldigé, until, under the necessities of his case, his learned counsel suggested this far-fetched theory of its being a mortgage. Nay, we note that even he, in suing on this note, originally brought a simple personal action, and the claim of mortgage is only asserted, as an afterthought, in a supplemental petition.

Mr. Aldigé, though examined as a witness, does not pretend to assert that lie accepted this contract as a mortgage, or ever regarded it as such.

To create a conventional mortgage, two things are essential, viz: the intention to create it on file part of the parties to the contract; and, in order to have effect with regard to third parties, the expression of that intention with sufficient clearness to serve as notice to them when the instrument is recorded. Both essentials are wanting in this case, and we are bound to overrule the conclusion of our learned brother of the lower court.

It is, therefore, ordered, adjudged and decreed that judgment appealed from, dismissing the opposition of Loeb & Schoenfeld, be annulled, avoided and reversed; and it is now decreed that their said opposition be sustained, and that the account of the administratrix be amended by placing the said Loeb & Schoenfeld thereon as judicial mortgage creditors for the amount claimed by them, with right to be paid out of the proceeds of the immovable property sold, by preference over Jules Aldigé and other creditors; costs of said opposition and of this appeal to be paid by the succession.

Dissenting Opinion.

Bermudez, C. J.

The law attaches- little or no importance to the name by which parties designate the nature of their acts or transactions. To assist in finding and carrying out the object in view, it ascertains primarily the intention of the parties, and next determines what rights have been conferred and what obligations are to be enforced.

Among the instances in which courts of justice have applied this conservative principle are found numerous cases in which, for instance, contracts termed conveyanees have been pronounced to be mortgages; in which apparent sales have been declared to be donations; in which axithentie wills have been considered as wills under private signature, etc.

In the present matter it is glaring that Benjamin intended two things:

1st, to acknowledge, in a solemn form, his indebtedness to Aldigé, giving its origin, or consideration, viz: money lent him for the purchase of the property in question, and,

2d, to secure the payment of that debt by encumbering, in favor of Aldigé, the very real estate bought with his money.

It is true that, in the anomalous instrum ent described, uselessly put in the form of an affidavit, he recognizes in favor of Aldigé-a privilege and a lien, instead of a. mortgage on the property ; but this misnomer practically amounts to nothing.

It is very probable that he did not know the difference between a privilege and a mortgage, which to many is specious.

It is not shown that the notary before whom he took the oath, informed him of the meaning of the words lien and privilege, or gave him any explanation on the subject.

It is not unlikely that he thought that the payment of this debt would be better secured by a privilege than by a mortgage.

There is nothing to show what the notary and the Deputy Recorder of Mortgages thought of the nature of the act, and even if there was, their views on the subject could not serve to assist the court in determining a question affecting the character of the deed, and which it alone can solve.

If those views, however, be entitled to consideration, surely those of the district judge, before whom a suit was brought to enforce the debt and mortgage and who recognized the mortgage, ought to outweigh those of the notary and deputy recorder.

Mortgage is defined by law to be a right granted to the creditor over the property of the debtor for the security of his debt. R. C. C. 3278.

In the case of Thibodaux vs. Anderson, 34 Ann. 800, this Court said that the word mortgage was not sacramental, but that an instrument to constitute a Louisiana mortgage must contain all the essential elements.

In the case of Ells vs. Simms, 2 Ann. 251, germane to the instant one, the mortgage resulted from a stipulation on a note that the drawer recognized, agreed and consented that the party has a privilege and mortgage for the securing the payment of said sum of money.’’ The mortgage was recognized.

The word lien has been used in the sense of mortgage in the following cases, viz: Vincent vs. Merle, 19 Ann. 529; Dupuy vs. Bemiss, 2 Ann. 513; Leonard vs. Shiff, 37 Ann. 299, 362; Williams vs. Duer, 14 La, 537; Butt vs. Ellot, 19 Wall. 547.

This is not a case in which it can be said: Rei ens dat format.

It must be noted that in the present case, Benjamin used the word lien beside the word privilege. Lien is a generic term which means either a privilege or mortgage. Bouvier, L. D. Vo. Lien No. 13.

Has not Benjamin distinctly stated that he acknowdedged the indebtedness and in order to secure its payment recognized a privilege and lien on the property ?

Was nob this a formal recognition of a right in Aldigé over the real estate for the security of his debt 1

If it was, is not the name immaterial by which that right was desig-. nated ?

Had Benjamin used the word mortgage, could it be' claimed that he did not intend to hypothecate his property to secure payment of so just a debt ?

■ To say that the debt is not secured by a mortgage, is to hold that Benjamin, who intended to do a just act and to encumber his property, did not do so and that, where he did two things, (consent and encumber) he did nothing.

It is a contemporaneous fact that the instrument was duly and seasonably recorded in the mortgage office. This was done to put third parties on their guard, by notifying them that Benjamin had acknowledged an indebtedness and, in order to secure its payment, had encumbered the real estate bought with Aldigé’s money.

There is no doubt that Benjamin could, in this ex parte manner, acknowledge the debt and secure it by encumbering his property in favor of Aldigé, though the latter was absent and not a party to the act. Allain vs. Millaudon, 2 L. 552; Hill vs. Barton, 6 Rob. 150; case No. 7398, N. R., Lamkin vs. Maxwell.

The mortgage claimed should be recognized and enforced.


text:
    No. 9873.
    S. Van Raalte vs. The Congregation of the Mission.
    An order of seizure and sale must be supported by authentic evidence exclusively.

    Such an order is improperly granted without authentic evidence of the transfer of notes by indorsement.
    In executory proceedings, the judge cannot entertain as evidence matters in pais.

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

      Jonas <& Wixon for Plaintiff and Appellee.

      8. L. Gilmore for Defendant and Appellant.
   The opinion of the Court was delivered by

Watkins, J.

This appeal is prosecuted by defendant in executory proceedings, and he insists here that the flat issued without adequate authentic evidence, and that the order of seizure and sale should be annulled and set aside.

In this Court plaintiff and appellee answers the appeal, and avers that it is frivolous and was taken for purposes of delay, and he prays the affirmance of the judgment appealed from, with ten per cent damages.

The appellant assigns as error apparent upon the face of the record that there was no authentic evidence before the lower court, at the time it granted the order of seizure and sale, of the indorsements on the note; and that the genuineness of same should have been made to appear by. authentic evidence.

Plaintiff’s petition shows that he is the bona fide holder for value of defendant’s note, and that it is payable to the order of Mrs. Mary D. Foster, for $3000 in gold; that said note was indorsed by Mary D. Foster to the order of Dr. J. O. Ducker; and by the latter to the order of Davis F. Ducker; and by the latter to the order of A. D. Sheldon; and by him indorsed in blank; and by Daisy F. Ducker indorsed to the petitioner; and that same is annexed to and made a part of petition, as well as the act of special mortgage securing its payment, in favor of the original payee or any future holder.

The note evidences the various indorsements enumerated, but it bears the impress of but one notarial paraph, and that one is contemporaneous in date with the date of the note- and is signed by same notary before whom the act was passed.

The recitals of the act conform with the description of the note and its indorsements above recited.

The record discloses no authentic evidence whatever of the indorsements through which the plaintiff and appellee necessarily traces his title thereto.

This case is an exact parallel with Miller, Lyon & Co. vs. Coppel & Currey, 36 Ann. 264, in which the Court say: There is authentic evidence of the execution of the note, and of the mortgage, but none to show the transfer of the note and of its accessory, the mortgage. * * * To justify the order of seizure and sale every muniment of title and every link of evidence must be in the authentic form. In such a proceeding the judge can entertain no matter in pais." The judgment and decree of the court annulled and set aside the order of seizure and sale, and dismissed the case of nonsuit.

It is therefore ordered, adjudged and decreed that the order of seizure and sale be annulled and set aside, and that the executory proceedings be dismissed as of nonsuit, and that all costs be taxed against plaintiff and appellee..

Judgment reversed.


author: Bermudez, C. J. Todd, J.

text:
    No. 9948.
    The State of Louisiana ex rel. James Sweeney vs. N. H. Rightor, Judge of Civil District Court for the Parish of Orleans.
    The Constitution guarantees to every person the right to seek redress through the courts for any injury to his person or property, or to enforce any legal demand therein.
    So a court is without power to prevent, by an injunction, a person from bringing a suit before another court of competent jurisdiction, to enforce a right claimed or redress a grievance.,
    PPLICATION for Certiorari and Prohibition.

      T. M. Gill, for the Relator.

      Farrar & Kruttsclmitt, for the Respondent.
   The opinion of the Court was delivered by

Bermudez, C. J.

This is an application for a certiorari and prohibition.

The relator complains that the district judge has issued against him, at the instance of certain parties, an injunction preventing him from collecting judicially certain wharfage dues from said parties; that he has moved for the dissolution of said injunction, for reasons assigned, and next on furnishing bond; but that these motions were denied.

He further complains that he subsequently pleaded to the jurisdiction of the Court, but that his exception was overruled.

He charges, therefore, that the injunction was improperly allowed, and that the court has exceeded the bounds of its jurisdiction.

In his application before this Court, he prays for a certiorari that the validity of the proceedings may be ascertained; that the injunction be annulled and set aside, and that said judge and the parties who obtained the injunction be prohibited from proceeding further with the case.

Under che proceeding in this Court, which we take to be mainly, for a certiorari, and, subsidiarily, for a provisional, and eventually, for a perpetual prohibition — the only questions which can be raised, must involve, either the jurisdiction of the court or the regularity, in point of form, of the proceedings before it.

I.

The grounds upon which the relator apparently rests his plea to the jurisdiction, seem to be :

1st. That the plaintiffs who sought the injunction and obtained it, have prayed for no money judgment, but have merely asked that the injunction be perpetuated; and

2d. That the Court has only an appellate jurisdiction in certain causes, and no supervisory jurisdiction over inferior courts.

(a) It is true that the plaintiffs have not'prayecl for a money judgment, but the petition which is verified by oath, avers distinctly that, unless the injunction issue, they will sustain injury exceeding $1000.

This allegation was sufficient to vest jurisdiction.

(b) Holding, as we do, that the district court could, under the averment of apprehended injury, entertain original jurisdiction, we are at a loss to perceive any force in the second ground alleged.

II.

The relator has assigned numerous reasons for which he claims the injunction ought to be dissolved; but he has made no attack on the regularity of the proceedings. Judging from the extracts annexed to the petition, these appear, on the contrary, to have been, in point of form, properly conducted.

It may be that the judge ought not to have issued the injunction, and having done so, that he ought to have dissolved it; but he wTas vested with a legal discretion in the matter, the proper exercise of which cannot be drawn in question in a proceeding like the present one.

The relator is not left without adequate remedy. If he bo right, he may still convince the judge who, before passing on the merits, may reconsider and recall his previous rulings, if he think proper.

We have no authority to decide that the injunction was wrongfully issued and ought to have been dissolved.

It is, therefore, ordered and decreed that the application for a certiorari and prohibition herein be dismissed at relator’s costs.

On Rehearing.

Todd, J.

The rehearing was granted in this case for the purpose of determining a question which was not considered in our former opinion. It is this : Does a district court possess the power to prevent, by an injunction, a litigant from bringing a suit, or filing a complaint before another court of competent jurisdiction ?

The relator opposes the assertion or exercise of such power on the authority of Art. 11 of the State Constitution, which reads:

All courts shall be open and every person for injury done him in his rights, lands, goods, person or reputation shall have adequate remedy by due process of law, and justice administered without denial or reasonable delay.”

This article is the same as Art. 10 of the Constitution of 1868. In the case of Bratt vs. Eager, Ellerman & Co., 28 Ann. 262, that article was appealed to against a similar exercise of power by a district court, as presented in the instant case'. There, an injunction had been granted to prevent the lessees of the city wharves from suing to recover, in a justice court, the wharf fees or charges against the owner and master of a steamboat. The injunction was dissolved. Wyly, J., the organ of the court, in his opinion uses the following language :

“The right to claim judicially what one believes he is entitled to,. and the right to prosecute a suit in court, are rights which can be denied to no one. They are protected by Art. 10 of the Constitution.”

And in a previous case, Butchers’ Association vs. Cutler, 26 Ann. 500, where an injunction had issued to prevent a party from prosecuting twelve suits before a justice court, the injunction was dissolved, the court stating: “A party cannot be enjoined from prosecuting suits for claims whether well founded or not. On the defense the parties can be heard and their rights adjusted. The intimation that a party fears that he may not obtain justice before the particular judicial officer, or that he should be sued in a court of higher jurisdiction, is no ground for an injunction.”

And m the recent case of State ex rel. Hirsch vs. Judge, not yet reported, the present Court held that a district court was powerless to grant a writ of prohibition to stop the proceedings in a suit pending in another court.

Apart from the constitutional question, the manifest reasons for these rulings is in that case the court has jurisdiction of the subject matter of litigation pending before it, or threatened, it is to be presumed that such court will determine the suit as justly and as intelligently as the court that is appealed to judge the matter in advance, and prevent the other court to which the controversy is submitted from trying it at all. And, though complaint should be made that the judge of the inferior court would fail to do justice through some improper or corrupt motive, yet as he is the judge de facto and de jure, in the full exercise of his judicial functions, his condemnation in this collateral manner, and in a proceeding of this character and to which he is no party, would be wholly without warrant of law. Within the sphere of his jurisdiction the judge of the inferior court complained of is the peer of the judge asked to exert authority over him. If the charge made against the judge, of incompetency, partiality or corruption, is well-founded, the Constitution and laws afford to all litigants aggrieved a convenient remedy, which we need not point out. But, as long as he remains in office and presides iu his court, a litigant has the right to take his case before liiin, whether just or unjust, if the demand belong to Ms jurisdiction ; and resort oau only be had to the prescribed modes of relief from the judge’s errors or malfeasance. It is true that authority may be found to support the proposition that a court of equity may in some instances enjoin a party from resorting to a court of law to prosecute his demand; but, upon examination, it will be seen that such an exceptional proceeding is based on the reason that a court of common law cannot, under its restricted or prescribed powers, afford the relief that the party complaining may be entitled to. Under our system such a reason cannot, exist, since ail our courts possess equally law and equity powers. And, in this iustance, the city court from which the relator is sought to be debarred from bringing his suits, within the bounds of its jurisdiction, possesses those joint powers as amply as the district court whose aid and authority is invoked for the purpose stated.

We are satisfied that no authority or precedent can be found warranting one court of equity to eüjoiu the proceedings in another court of equity, or to restrain a party or suitor from filing his complaint therein.

It is, therefore, ordered, adjudged and decreed that the previous decree of this court in this case be annulled and set aside; and it is now ordered and decreed that the writ of prohibition be and the same is made absolute, and tiie respondent judge prohibited from proceeding further with the injunction suit referred to, and further, that the proceedings in said suit be and the same are hereby quashed and annulled.

Mr. Justice Roché, being absent when this case was argued on rehearing, takes no part in this decree.


author: Fenner, J.

text:
    No. 9973.
    The State of Louisiana ex rel. William Madison vs. E. J. Bermudez, Judge of the Third City Court of New Orleans.
    A.tide 246 O. P. is applicable to the City Courts of $Tew Orleans, and when the garnishee under fi.fa. has confessed that he is indebted to the judgment-debtor in a sum of money, the judge is authorized to order him forthwith to pay sueh amount into the hands of the constable.
    Where such order is made after tin ee days from service of notice of the seizure on the judgment-debtor, who has made no opposition thereto, he cannot, under certiorari in this Court, have such orders annulled on the ground that the money seized was due for wages and, therefore, exempt. He had the opportunity to raise this issue in the lower court, and, having failed to do so, the judge was not bound to raise it for him. The order was regular and authorized by the law.
    A PPLICATTON for Certiorari.

      Wm. Ii. Thompson for the Relator.

      T. F. Maher and L. F. Bouehereau for the Respondent.
   The opinion of the Court was delivered by

Fenner, J.

The record shows that Catherine MeG-ivney, having a judgment against relator, Wm. Madison, issued a fi. fa., under which, on March 25, 1887, it seized the rights, credits, etc., of the judgment-debtor in the hands of the Southern Pacific Railroad Company. The notice of seizure and interrogatories in garnishment were served on the company on March 25th, and on the same day Madison was personally served with notice of the seizure.

On March 28th, the garnishee filed its answers confessing an indebtedness to Madison in the sum of $21.35. On March 30th, the plaintiff made a motion for an order of the court directing the garnishee to pay the amount confessed to be due to the constable of the court forthwith, which order was made. On the same day the money was paid to the constable, who paid it over to the attorney of plaintiff.

Relator, thereafter, on March 31st, appeared and filed what he calls an answer to the notice of seizure served on him, setting up that the amount seized in the hands of the garnishee was wages due him as a laborer, and exempt from seizure. Upon the issue raised by this answer no further proceedings have been taken.

Relator now applies to this Court for a writ of certiorari and for a decree thereon annulling the order made by the respondent judge, directing the garnishee to pay over to the constable the debt confessed to be due.

The judge only complied with the express mandate of the law under Art. 246 C. P., which provides, with reference to garnishments under fieri facias: “In case such third person shall confess in his answers that he has property or effects in his possession belonging to defendant, or is indebted to him in any sum of money, the court shall order him forthwith to deliver up said property or to pay such sum to the sheriff,” etc.

Relator had had due notice and ample time to assert his right of exemption, and it is his own fault if he has failed to do so until after the delay allowed by law has expired. C. P. 655, 657. The judge was not bound to raise this issue for him. His proceeding was regular, and in accordance with law*.

We have no case before us in which a judge has decided that a laborer’s wages are subject to seizure, because no such issue has been presented except under the untimely answer of relator, on which no ruling has been made.

It is, therefore, ordered that the demand of relator be rejected, at his cost.

Bermudez, C. J., takes no part.