author: Todd, J.

text:
    No. 8177.
    Mary Ann Levi, Executrix, vs. Daniel Morgan et al.
    A creditor of the husband, holding a mortgage on property transferred hy the latter to his wife in. payment of her jjaraphernal rights, has no reason to contest the legality of the transfer, inasmuch as the property is transferred subject to the mortgage of the creditor, towards whom the wife is then iu the position o£ a third possessor.
    There is no legal objection to the husband’s transferring to his wife, in payment of her paraphernal rights, property encumbered with a mortgage, because the wife takes the property subject to the mortgage, without assuming the debt of her husband.
    The insolvency of the husband is no legal obstacle to the transfer made by him to his wife iu satisfaction of her paraphernal claims, and, in that respect, such transfer is not subject to the rules which govern the revocatory action. There is no difference to be made whether the transfer takes place after judgment of separation, or without such judgment. Previous decisions affirmed.
    APPEAL from the Seventeenth Judicial District Court, parish of East Baton Rouge. Sherburne, J.

      Sami. P. Grevea for Plaintiff and Appellant:
    Eirst — A dation en paiement, made hy the husband to the wife in satisfaction of her paraphernal rights, must he for the full.value of the property transferred, and the burden of proof is always -upon her to show that value. R. C. C. 2655 et seq.; 30 An. 202, 511, 1114; 23 An. 439; 1 An. 301; 8 An. 484.
    Second — The evidence of the wife’s mortgage must he recorded in the mortgage book, according to the provisions of Art. 3349 R. C. O., but such recording shall in no manner be evidence of the debt or claim, other than the law may award to acts of the kind when unrecorded. R. C. O. 3357.
    Third — An insolvent cannot give in payment to one creditor, to the prejudice of the others, any other thing than the sum of money due. R. O. C. 2628; 30 An. 511. See, also, 26 An. 296; 11 Ra. 424.

      Herron & Beale for Defendants and' Appellees:
    Eirst — Absolute accuracy is not required in the details of a wife’s claim, made hy the husband, in order to preserve her mortgage against him. If the source of the claim recorded be probably the same as the one afterwards proved to be a valid claim against the husband, it is sufficient to preserve her mortgage. Art. 1900 B. C. C.; 14 An. 563; 1 An. 432; 15 An. 666.
    Second — Art. 2398 B. O. C. prohibits the wife from assuming a debt of her husband in a transfer from him to her, but does not prevent her from accepting a transfer of property on which a mortgage prior to hers rests. 4
    Third — Known insolvency is ordinarily of the essence of the revocatory action. It does not lie against a transfer by the husband of property to replace her alienated paraphernal funds; on the contrary, the husband’s embarrassment is the condition precedent to a judgment of separation of property. There is no distinction between transfers made after a judgment of separation, and those which are made without such judgment. 2421 O. C.; 8 An. 485; 30 An. 745.
    Fourth — The onus is on plaintiff, attacking a transfer made by the husband to replace his wife’s alienated paraphernalia, to show that the appraisement made at the time of transfer was unfair. 30 An. 746.
   The opinion of the Court was delivered by

Todd, J.

Plaintiff, as j udgment creditor of Daniel Morgan, one of the defendants, brings this suit to set aside a dation en paiement made by him to his wife, co-defendant in the suit, for the alleged purpose of replacing her paraphernal funds, disposed of by him.

The plaintiff caused execution to issue upon her judgment in December, 1879 — the judgment having been rendered on the 10th July, 1877, and recorded the next day. The sheriff returned the writ in no part satisfied, after demand on the judgment debtor, and due diligence to find property.

Thereupon this suit was instituted on the 20th of February following, 1880.

The record establishes : That on the 26th of June, 1877, Morgan acknowledged himself indebted to his wife in the sum of $2100, and this acknowledgment he caused on the same day to be recorded in the Recorder’s office of the parish of East Baton Rouge, in the book of mortgages.

On the 80th of June, 1877, he transferred, in part satisfaction of this alleged debt, to his wife certain movable property, estimated in the act at $1020; and on rhe áth of October, 1879, made the transfer attacked in this suit, of a tract of land, as a payment on the balance.

The plaintiff alleges as grounds for annulling the transfer complained of, that there was no real consideration for the transfer; that Morgan was not indebted to his wife, and that the consideration expressed for the transfer was wholly inadequate and out of proportion to the real value of the property.

The answer was a general denial, an averment of a real indebtedness on the part of Morgan to his wife, and the reality of the transfer for an adequate consideration.

Prom a judgment in favor of Mrs. Morgan, rejecting plaintiff’s demand, she, plaintiff, has appealed.

There are two questions to be considered in this case.

The first is as to the existence of a real indebtedness on the part of Daniel Morgan to his wife; and, secondly, if so, whether the price or consideration of the transfer or giving in payment was less than the actual value of the property.

On the 26th June, 1877, Morgan, the husband, filed and had recorded in the recorder’s office of East Baton Rouge, his sworn statement, in which he acknowledged an indebtedness to his wife in the sum of $2100, and set forth the items of that indebtedness and the causes out of which it glew.

On the 30th of June, 1877, Morgan settled $1020 of this sum by a transfer of certain movable properly, leaving an apparent balance of $1080 due; and on the 4th of October, 1877, the dation en paiement was made the object of attack in this suit, by which all except $80 of this balance was satisfied.

The plaintiff’s counsel admits that Morgan was indebted to his wife in the sum of $1440, and to this amount that a legal mortgage in her favor existed on the immovables of her husband; but contends, as this debt, to the extent of $1020, had been settled by the first transfer of the movables mentioned, that there only remained $420 due at the time the second transfer — that of the land — was made; and that this balance constituted the sole consideration for such transfer. The evidence satisfies us that Morgan was indebted to his wife, when he filed the statement referred to, the amount of $2047 54.

How much of this debt operated as a mortgage upon his property, outranking the judicial mortgage in favor of the plaintiff under her recorded judgment, it is not necessary for us to decide, from the conclusions we have reached as to the law bearing on this case, or this branch of it.

If a real indebtedness existed in favor of the wife, whether it imported a mortgage or not on the immovables of the husband, the latter could discharge such indebtedness by a dation en paiement to the wife, if there was no other obstacle opposed thereto but a superior mortgage or privilege thereon in favor of another creditor of the husband, but such transfer would be made subject to such superior right or claim on, the part of this creditor, who could not be prejudiced by such disposition of the property. Admitting, therefore,- that the plaintiff’s mortgage outranked a part or the whole of Mrs. Morgan’s mortgage, this fact, of itself, would not entitle her to have the transfer set aside, if there was a real price or consideration for the' transfer, whether such price or consideration was a mortgage debt, or not.

Plaintiff’s remedy would be, under such circumstances, not the an- - nulment of the sale, but the enforcement of her superior mortgage by the proper proceeding against the property in the hands of Mrs. Morgan as third possessor — a right accorded to all creditors holding a superior mortgage or privilege thus to pursue the property subject to it, in whosoever possession found, and have it sold to pay their debt.

The question relative to the existence and rank of the respective mortgages claimed, would more properly come up in case of a contest over the proceeds of the sale of the property, or in an hypothecary action against the present possessor of it.

However we may view the subject, it is obvious that the holding of a superior mortgage, or an only mortgage, upon it, gives no right of itself to demand the nullity of a sale made by the debtor of the property mortgaged, for the reason that such sale in no manner impairs or affects the rights of a creditor holding such superior mortgage.

II.

The evidence in regard to the value of the property transferred is somewhat conflicting and unsatisfactory; but we are not prepared to say, from a careful review of it, that the judge a quo, who heard, and probably knew the witnesses, and was doubtless familiar with the subject of their testimony — the value of lands in the parish of his residence — erred in the conclusion which he reached on this point. It is a matter of great difficulty to establish the real value of lands in the country, where, as in this case, it was shown by the testimony of some of the witnesses, that there was no actual demand for lands of that description, and that if it had been offered at public sale, unless bought in by one of the parties, it probably could not have been sold at any price — a condition of things attributable, as shown, by the difficulty of procuring labor, the scarcity of money, and other unfavorable circumstances.

Nor was it improper in the appraisers of the land to take into consideration the incumbrance on the land, in making their valuation of it preparatory to its transfer by Morgan to his wife. The question was, what was this property worth to the wife, who proposed taking it in satisfaction of her debt. To ascertain its real worth to her, and what she could afford to allow for it, the incumbrance upon it should have been taken into consideration.

It was quite certain that, whatever incumbrance existed, it would not be discharged by the insolvent husband; and the actual nature of the land was only what it was worth over and above the prior mortgage. Nor can it be said that this involved the question, raised by the plaintiff’s counsel, of the light of the wife to assume the husband’s debt, for taking the land, subject to the mortgage, even with the expectation of having it to pay, implied no assumption of the debt. This mortgage was shown to be not less than $500. The record evidence of its existence was properly admitted as bearing upon the issue touching the value of the property, and the sufficiency of the price given therefor. It made out a prima facie ease of a legal mortgage on the land, which was not rebutted by opposing evidence.

Considering this prior mortgage on the property, the evidence fails to satisfy us that the valuation of it by the appraisers was too low, or the price or consideration of its transfer insufficient, and that it should foe set aside on this account. In cases of this kind, we must, as stated, rely greatly on the discretion of the judge a quo; and his judgment of the matter must appear clearly erroneous, or it will not be disturbed.

III.

Lastly, the plaintiff’s counsel contends that the sale or transfer should be set aside, because Morgan, the husband, was insolvent when he made it; and that it was a clear case of a preference of one creditor over another. This proposition would have great weight, were the legal question involved in it a new one; but it has been fully settled by frequent adjudications of this Court, that transfers by the busband to the wife, in satisfaction of her paraphernal claims, are not subject to the same rule that applies, ordinarily, to the revocatory action, and the right to such action. Thus, in the case of Judice vs. Neda, 8 An. 485, the Court said: “ The wife before she obtains a separation of property, is bound to allege and prove the embarrassment of her husband, and to justify her belief that his property may not be sufficient to meet her rights and claims; so that the husband must generally be in failing circumstances before a separation of property can be obtained — and yet article 2421 expressly authorizes tranfers by the husband to the wife in satisfaction of those judgments. There is no distinction made between transfers made after a-ju4gment of separation and those which are made without such judgment.”

And again, in the case of Lehman, Abraham & Co. vs. Mrs. Levy and Husband, 30 An. 745: “ Neither the pecuniary embarrassment nor the actual insolvency of the husband is any obstacle to a transfer by the husband to the wife in good faith, for the replacing of her money or property alienated by him.”

The rights of the parties under their respective mortgages cannot be determined in this suit, and we express no opinion in regard to them; and inasmuch as the judgment of the lower court, by its terms, seems to conclude the mortgage rights asserted by the plaintiff in the land in question, and to make the sale or transfer attacked a finality as to the respective mortgage rights of both parties, it must be amended in this respect by the proper reservation.

It is, therefore, ordered, adjudged and decreed that the judgment appealed, from be amended, by reserving to the parties to this suit their rights, if any, under the respective mortgages claimed by them upon the land in question, with the right to assert or enforce the same in any future proceeding; and as thus amended, the judgment be affirmed; the plaintiff and appellant to pay the costs of the lower court, and the defendants and appellees the costs of this appeal.


source: Caselaw Access Project

author: Fenner, J.

license: Public Domain

text:
    No. 8160.
    State of Louisiana vs. Louis Willingham.
    Counsel for the' State, in a criminal prosecution, lias the right, on the cross-examination of one of Defendant’s witnesses, to ask Mm what “ the feelings are between Mm and one of the State’s witnesses,” though nothing on this point was said in the examination in chief. The question is permissible as testing the credibility of the witness.
    The judge, in his charge to the jury, in saying that, the State must prove the guilt of the accused beyond all reasonable doubt, to the exclusion of every other hypothesis, may use the word conclusion instead of hypothesis. There is no legal difference between the two expressions.
    APPEAL from the Fourth Judicial District Court, parish of Winn. Briclger, J.

      J. G. JEgan, Attorney General; for the State, Appellee:
    ITirst — The court need not charge the jury in the very words ashed by defendant, providing a full and fair charge, substantially charging everything requested, be given, and no prejudice is done the accused. 25 An. 407; 31 An. 304; 8 An. 114; 6 An. 653.
    Second-In the cross-examination of defendant’s witness, it is admissible for the State to affect the credibility of said witness by ashing him whatwere the feelings between him and a witness for the State, whose character his evidence tended to attach.

      W. Bf. Richardson for Defendant and Appellant.
   The opinion of the Court was delivered by

Fenner, J.

The errors assigned in behalf of defendant, are two, viz:

1st. On the cross-examination by the State, of a witness of defendant, the district attorney propounded the question: “What are the feelings between you and Mr. James Moore ? ” To this question the defense objected, on the grounds that the witness had said nothing on his direct examination touching the subject inquired about, and that “the State had no right, on cross-examination of defendant’s witness, to question the latter as to any fact not connected with matters stated by him in his direct examination,” quoting the decision of this Court in State vs. Swayze, 30 An. 1327. The judge, in signing the bill, states: “ The evidence of the witness had a tendency to create suspicion that James Moore, a witness for the State, was implicated in the murder of the deceased, and the question of the district attorney was admissible for the reason that the answer might rebut his testimony given in the case, and was certainly admissible as affecting the credibility of the-witness.”

We think the judge did not err. The general principle relied on and sustained by the ruling in State vs. Swayze, is unquestionably sound; but it is confined, in its application, to preventing the State, on cross-examination, from questioning defendant’s witnesses on independent matters, facts, or acts, not connected with their testimony in chief, but tending to prove up the case of the State, which the State is-required affirmatively to establish by its own witnesses. It would, however, be an unreasonable extension of the rule to debar the State from proving on cross-examination, the relations of the defendant’s witnesses to the defendant and to the .parties referred to in his direct testimony, as affecting the weight and credibility of his evidence. Otherwise, a biased or dependant witness, a parent, child, brother, a sister, or person with strong motives for prejudice or partiality, might be put on the stand by defendant, and, in. the absence of any question by his counsel on the subject, the State would be prevented from putting the jury in possession of the facts of such relationship, which would be entitled to legitimate consideration as affecting the weight and credibility of the testimony.

We find no reason or precedent for such an extension of "the rule.

2d. Defendant assigns error in the refusal of the judge to give the following charge: “ The State must prove the guilt of the accused beyond all reasonable doubt, to the exclusion of every other hypothesis.”

It appears that the court, on the demand of the defendant, had delivered a written charge, and declined to give the special additional charge above stated, on the ground that it was substantially included in the charge already given. In that charge, the judge used the following language: “ Every man is presumed to be innocent until his guilt is established by legal evidence, beyond a reasonable doubt.” “ A party may be convicted on circumstantial evidence alone; but where a criminal-charge is to be proved by circumstantial evidence, the proof ought to be-not only consistent with the prisoner’s guilt, but inconsistent with any other rational (or reasonable) conclusion.”

The variances asserted by counsel between the charge given and that asked, are twofold, viz:

1st. The substitution of the word conclusion for the word hypothesis. The judge declares that he considered the two words, as used in that connection, as synonymous. Verbal hypercriticism may suggest differences between them, but the sober legal mind cannot conceive that they could convey any conflicting meaning to the intelligence of any juror. The terms are constantly used as convertible in decisions and text books, and in Waterman’s Criminal Digest we find the very words used by the judge laid down as the proper rule on the following authorities: 4 Parker, 396; 19 N. Y. 549; 49 N. 137; 41 Texas, 209, 342; 46 Ga. 637; 25 Miss. 584; 5 Blact. f. 579; 41 Cal. 66; 2 Blatch. 207.

See Waterman’s U. S. Cr. Dig. 129.

2d. Objection is made to the use of the words “ to the exclusion of every other rational or reasonable conclusion” or hypothesis, instead of the words “ to the exclusion of every other hypothesis.” It is true that Mr. Greenleaf, in his work on evidence, does, in one place, use the language last stated, and that it has been inconsiderately adopted in some decisions. See 1st Greenleaf, \ 13. But the same learned author, in another part of his work, iays down the true doctrine to be that chargedvby the judge, viz: “It is held necessary, not only that the circumstances all concur to show that he committed the crime, but that they all be inconsistent with any other rational conclusion.” 3 GreenL Ev. 1137.

This is as far as any well-considered authority has ever gone. ■

Willson Cir. Ev. p. 149.

Starkie on Ev. p. 138.

It has been expressly adopted as the proper rule by this Court in a recent ease.

State vs. Swayze, 30 An. 1327.

Wharton shows the absurdity of requiring that the circumstances should exclude every possible hypothesis of innocence.

Wharton Or. L. $ 732 et seq.

He even disputes the proposition that “ in circumstantial evidence, there can be no conviction, unless the facts are incapable of explanation upon any other reasonable hypothesis than that of guilt,” except so far as the same rule is applicable to all other evidence, and concludes: “ There is no ground for distinction between direct and circumstantial evidence. All evidence admitted by the court is to be' considered by the jury in making up their verdict; and their duty is to acquit if, on such evidence, there is reasonable doubt of the defendant’s guilt; otherwise, to convict.”

Wharton, Am. Or. L. gg 742-3.

We quote the foregoing not for the purpose of sanctioning its substitution for the commonly accepted rule, but to show how far the authorities are from supporting the doctrine of defendant’s counsel.

We are satisfied that the charge given by the judge was a sound and complete exposition of the law; that the charge asked by defendant was faulty, and, even if modified by the insertion of the word reasonable before hypothesis,- was then superfluous, because substantially covered by the charge already given.

The judgment and sentence appealed from are, therefore, affirmed


text:
    No. 8230.
    Succession of Mrs. Ella Roth. On Opposition of J. M. Delavallade.
    It is settled that the recompense due hy the separate estate of the wife for improvements placed thereon, during marriage, at the expense of the Community, is the enhanced value resulting to her separate estate from the improvements, at the date of the dissolution of the Community. If the improvements he added hy the husband out of his separate funds, under the same circumstances, the recompense due him hy the separate estate of the wife must he settled hy the same rule, as there is no difference in principle between the two cases.
    It is a perfectly equitable mode of fixing that enhanced value, to make an average of the valuations placed hy all the witnesses on the land and improvements together and on the same separately.
    A fee of $700, for the services of Counsel in maintaining a will, which controlled the disposition of an estate of $16,000, is not excessive.
    APPEAL from the Twenty-third Judicial District Court, parish of Iberville. Cole, J.

      Geo. Wailes and Barrow & Pope for the Opponent, Appellee:
    IS'irst — Neither the community nor the husband can claim against the wife’s separate estate, for improvements placed thereon, more than the enhanced value of the said separate estate at the death of the wife, and if the same exceeds the cost of the improvement, then only to the extent of the cost. 2 An. 43; 14 An. 763.
    (a) To ascertain this value the rule laid down in 4 Rob. and 6 Rob., Nolan vs. Babin, must be followed. Where several witnesses make estimates of tbe value of a thing, an average should be taken. In medeas res cst veritas. This rule fixes the improvement at $536.
    (b) Tbe fact tbat money used to make the improvement, and the cost of tbe improvement not being fixed by one witness and corroborating circumstances, the claim for $1340 is not established in favor of tbe separate estate of tbe husband.
    Second — Attorney’s fees being fixed in reference to amount of labor performed and value of tbe succession, other attorneys being engaged in some of the litigation, a fee of $1350 is a liberal allowance for one counsel, the succession not exceeding $15,000 or $20,000.

      A. & Ed. B. Talbot for the Executor, Appellant.
   The opinion of the Court was delivered by

Fenner, J.

The testamentary executor of deceased prosecutes this appeal from a judgment sustaining the opposition of Delavallade to certain items of a provisional account filed by him.

I.

The executor, who was the husband of deceased, had, during marriage, erected on the separate property of his wife, a store, at an alleged eost of $1340, which cost he claims to have paid out of his separate funds.

In his present account, under the head of the active mass of the community, he enters an item of $770 as the proportionate value of the store, which was sold with the property at a total price of $2100.

Under the head of the passive mass of the community, he enters an item of $1340, as the amount paid by him out of his separate funds for the self-same store.

In other words, he takes from the separate estate of the wife the entire value of the improvement as resulting from the sale, and passes it into the community of which he is half owner; and, at the same time, he takes from the community, of which the wife’s succession is half-owner, the entire cost of the improvement, and passes that amount into his own separate estate.

These items were opposed, the first-mentioned as excessive, and the last as entirely illegal.

The judge a quo reduced the first item from $770 to $536; and rejected the second item entirely. We think he did not err.

It is settled that the recompense'due by the separate estate of the wife for improvements placed thereon during marriage at the expense of the community, is the enhanced value, resulting to her separate estate from the improvements at the date of the dissolution of community.

Rev. C. C. 2408. Depas vs. Rees, 2 An. 43.

Babin vs. Nolan, 6 Rob. 514; 4 R. 286.

If the improvements be added by the husband out of his separate funds, under the same circumstances, the recompense due him by the separate estate of the wife must be settled by the same rule, as there is no difference in principle between the two cases.

Had the executor established, by sufficient proof, that'this improvement was paid for out of' his separate funds, he might have placed its proportionate value in the passive mass of the wife’s separate estate as an amount due to him. He has chosen, however, to credit the amount to the active mass of the community and is bound thereby; which settlement, however, we consider entirely correct, because his own unsupported and uncorroborated evidence, opposed by all the intrinsic presumptions and probabilities of the case, is entirely insufficient to sustain the pretension that the expenditure was made out of his separate funds.

The judge, therefore, rightly rejected the item of $1340 in the passive mass of the community.

As to the reduction of the other item to $536, the result was reached by a rule which seems entirely equitable, viz: by making an average of the valuations placed by all the several witnesses on the store and land together and on the land or store alone. Of course, if any witness had made an unreasonable valuation affecting the general average unjustly, such might have been rejected. But, in the present case, there seems no reason to doubt that all the valuations were honestly made, and we see no rule, which the judge could have followed, more likely to reach a truthful result; and we shall not interfere with his allowance.

II.

The attorney’s fees allowed to the attorney of the executor were opposed. These fees were composed of various items, all of which were sustained, except two, viz: 1st, the charge of $700 for professional services in establishing the will of deceased.

These services were rendered in the interesting and novel suit of which the final decision is reported in 31 An. 315. It is shown that the will controlled the disposition of an estate, inventoried at more than $16,000. A reference to the decision of this Court will show that the questions involved in the case were novel, important, and so doubtful that they were only decided by a divided Court. The result was the maintenance of the will. We can perceive no principle upon which the fee ef $700 charged by the successful attorney can be regarded as excessive, and we think the reduction thereof was entirely unwarranted. As to the reduction made in the other item for settling the community, those services passed under the eye of the judge a quo, and we shall not disturb his assessment of their value.

III.

We find no error in the judgment of the court upon other items of the account opposed, which are generally of trifling amount.

We see no necessity for the amendments asked by appellee in his answer to the appeal.

It is, therefore, ordered, adjudged and decreed, the judgment appealed from be amended by increasing the total amount allowed E. B. Talbot, Esq., as fees, from $1350 to $1550, and that, as thus amended, the same be affirmed at cost of appellee. •

Rehearing refused.


author: Fénner, J.

text:
    No. 7900.
    Lawrence F. Barrett vs. City of New Orleans.
    3t isnot by writ of Injunction, but by that of Mandamus, that a judgment creditor of tlie City of Kbw Orleans should proceed, to compel its Mayor and Administrators, in preparing the annual budget of tbe city, to comply with, the law by placing Ms judgment tliereon and. providing for its payment.
    Such being tho case, Plaintiffs petition for an Injunction discloses no legal cause of action.
    APPEAL from the Sixth District Court for the parish of Orleans. Bightor, J.

      J. H. Ferguson for Plaintiff and Appellant:
    3Tfrst — A cause of action is clearly set forth in plaintiffs petition. Deiendant’s exception is, to the form of relief invoked, and should have been pleaded in limine litis. C. P. 344.
    Sscond — Injunction and not mandamus is tho proper remedy. Plaintiff seeks to prevent dofendants from doing an aot injurious to him, and from impairing his legal rights. C. P. Art. 296.
    Third — The writ may he directed to parties or public officers, enjoining or commanding them to do certain acts or things, and is as effective in enforcing a right as in preventing a wrong or injury. 7 B. 444 and 445; 18 An. 242; 31 An. 497. • t
    fourth — The writ is invoked in this ease, not for the purpose of taking the place of fi. fa., but to compel defendants to comply with the law, and to abstain from doing certain injurious acts.

      K Howard MoOaleb, Oity Attorney, for Defendant and Appellee:

      1. Mandamus, and not injunction, is the proper process for enforcing the payment oí a judgment obtained against a municipal corporation. 2. Alter the rendition of a judgment against a municipal corporation, the judgment creditor can compel the municipal authorities to provide for its payment by mandamus. 3. In such cases the writ of mandamus takes the place of the writ of “ fi. fa.” as process in execution. 4. The writ of injunction is a conservatory act, a provisional order, obtained before judgment, and cannot bo used as a substitute for a mandamus after judgment.
   The opinion of the Court was delivered by

Fénner, J.

The plaintiff alleges that he is the owner of certain judgments against the City of New Orleans, which have been duly registered in accordance with the provisions of Act No. 5, Ex. Sess. of 1870; that it is the duty of the Mayor and Administrators of the city to provide specifically in the forthcoming yearly budget, out of the funds to arise from the general tax, means for paying all registered judgments in the order of their registry; that he had demanded, in writing, a compliance with said requirement by said officials, which they refused; that they were about to cause to be made out and to adopt the budget or estimate of liabilities and expenditures, without providing therein for the payment of his said judgments, to his irreparable injury; and that he has no adequate legal remedy except the writ of injunction. Upon affidavit and bond, he prayed for and obtained, an injunction restraining the Mayor and Administrators from preparing, adopting and publishing the said annual statement or budget until they comply with the statute by placing therein the said judgments of plaintiff, and by providing for the payment thereof; and he prayed that, after due proceedings, this injunction be perpetuated.

To this petition the defendants filed the peremptory exception of no cause of action, which was sustained by the court a qua.

Plaintiff contends that, under this exception, we are only authorized to enquire whether, under the allegations of his petition, ho has set forth a cause for any relief, and not whether he has set forth a cause for the particular relief sought.

The true test of this exception is found in the inquiry whether, taking all the allegations of his petition as true, the plaintiff is entitled to any relief under the prayer of his petition.

In this case, the solitary relief asked is a writ of injunction and the perpetuation thereof, and no other relief could possibly be granted. It follows, that unless the petition presents a case for injunction, the exception must be sustained.

In a case precisely similar to the present, this Court held, not only that the writ of mandamus was the proper remedy, but also, that “ there is no means or process by which the right can be enforced otherwise than by mandamus.”

State ex rel. Carondelet vs. Mayor, 30 An. 132.

We are not called upon, now, to say how far the doctrine of that case, as to the extent of relief granted by mandamus, may be sustained, but it is certainly correct in holding that mandamus is the only remedy.

The duty of preparing and publishing the annual budget of liabilities and expenditures, prior to the expiration of each , year, is imposed upon the Council by an absolute and mandatory law.

So far as the injunction sought operates to prohibit the performance of this clear duty, it is clear that no court has the right, under any circumstances, to grant it.

Accepting plaintiff’s construction that, in this case the injunction is, in effect, mandatory in character, and intended to cpmpel defendants to comply with the law, it then clearly usurps the office of the writ of mandamus, and would render that writ a superfluous and useless remedy.

The eases quoted by counsel, in which the mandatory inj unction has been approved, are cases in which, by reason of the character of the parties, the writ of mandamus did not apply. Even in such cases, this Court has held that the mandatory writ can only issue in enforcement of judgment or decree, or as auxiliary to a prohibitory injunction previously issued.

Black vs. Good Intent, 31 An. 499.

We think it perfectly clear, that plaintiff has mistaken his remedy in this case, and that the exception of defendant was properly sustained.

The judgment appealed from is, therefore, affirmed at appellant’s cost.


author: Levy, J.

text:
    No. 7832.
    J. A. Porche et al. vs. Mrs. M. C. Labatut et al.
    The purchaser at sheriff's sale of a plantation allowed the defendant in execution and former owner to remain in possession of the property. Held that this fact, unconnected with any acts of had faith or fraud, cannot he fairly regarded as a badge of simulation in the premises, when, on the contrary, the evidence shows that the property sold for its full value and the price was paid with funds of the purchaser.
    APPEAL from the Seventh Judicial District Court, parish of Point Coupée. Yoist, J.

      Edward Phillips for Plaintiffs and Appellants:
    ¡First — Mrs. ¡Labatut, tlie defendant in the suit in which the sheriffs sale sought to be annulled in this suit, never parted with the possession of the property sold, and the purchaser, Provosty, never took possession or control of said property.
    Second — Provosty never paid the purchase price. It was paid out of moneys, etc., belonging to Mrs. Labatut, the whole proving that the sale was illegal and void.

      L. B. Claiborne and O. O. Provosty for the Poydras College, Defendant and Appellee:
    The sale in this case was not simulated and fraudulent, but real and bona fide.
    The plaintiffs are estopped from contesting its validity, they having claimed and received part of the proceeds thereof, and furthermore, accepted a mortgage on the property from the purchaser.
    The right to urge the invalidity of a sale of property of the wife made to satisfy a debt of the husband, is personal to the wife.
    *Where the claims of the first and second mortgage creditors clearly exceed in amount the highest estimate that can be placed on the property, the sale thereof cannot injure the third mortgage creditor, within the meaning of Art. C. C.
    "Where an appeal is frivolous, ten per cent damages will be granted.

      PLewes & Parlange for O. Hopkins, Defendant and Appellee:
    A sheriff’s sale cannot be annulled as simulated unless it is shown that the seizing creditor was a party to the transaction. 15 An. 554.
   The opinion of the Court was delivered by

Levy, J.

Plaintiffs brought this suit to annul, on the grounds of fraud and simulation, a sheriff’s sale made on the 1st day of December, 1877, under a writ of seizure and sale in suit No. 1846, District Court of the parish of Point Coupée, entitled Octave Hopkins vs. Marie C. Labatut, at which sale the plantation seized was adjudicated to O. O. Provosty. The allegations of plaintiffs on which they base their action to annul are, substantially, as follows: That no price was paid for the plantation by Provosty, or by any one else for him; that Provosty has never taken possession of the said plantation, nor has he ever controlled the same, or any portion thereof, nor has hé ever had any intent to do so, either by virtue of said pretended purchase or otherwise; that Mrs. Labatut, the defendant in the suit of Hopkins vs. Mrs. M. C. Labatut, above mentioned, has remained'in possession and control of said plantation as sole owner; that no delivery or change of possession or control of said plantation took place at the time of said pretended sale, or since; that if any price was ever paid at the time of the sale or afterwards, it was paid by Mrs. Labatut out of her own funds; that Provosty has never paid any portion of the pretended purchase price; that Mrs. Labatut did not o.we and was not legally bound to pay Hopkins anything; that if there was any debt due to Hopkins, it was a debt of her husband, and that neither she nor her property were bound for the same; that the claim of the Police Jury (to secure which Mrs. Labatut had given a mortgage superior in rank to that in favor of plaintiffs) had no existence, or if it had, neither Mrs. Labatut nor her property were legally liable therefor to the Police Jury.

The facts of the case are these: By an agreement between the Poydras College, properly represented, the plaintiffs and the defendant, and for the purpose of effecting a compromise and securing certain disputed claims and rights of the several parties, the plantation known as the “Zenon Porche plantation,” was sold at succession sale of Porche, and Mrs. Labatut became the purchaser thereof for the price of $25,000, on the credit terms agreed upon. Octave Hopkins, who was a creditor of the succession duly recognized on the homologated final tableau, agreed to accept in payment of the debt due him a mortgage from the purchaser of the property at this succession sale for say, $4000. This mortgage was given by Mrs. Labatut in favor of Hopkins, and was the first bearing on the property, the next was in favor of the Poydras College for $4410 with interest. At the sale under the writ of seizure and sale in the suit of Hopkins vs. Mrs. Labatut, Provosty became the adjudicatee of the property for the price of $7500, and by consent of the mortgage creditors Hopkins and Poydras College, instead ¿of the whole amount being paid in cash, Provosty was to pay the costs and taxes, amounting to about $175, and $2000 to Hopkins in full of his debt, and to give a mortgage in favor of the Poydras College for $4000, its debt, and a second mortgage to Haralson, another intervening creditor, for $600. The purchase price seems to have been the full value of the property, and this is to be safely inferred from the fact that there was considerable competition among the bidders at the sale.

So far as objections that the purchaser, Provosty, had not taken possession, and no actual delivery had been made to him of the property sold, they are met and disposed of by article 2478 C. C. The law considers the tradition or delivery of immovables, as always accompanying the public act which transfers the property.” As to the failure of the purchaser to enter into actual possession, we do not consider that, in a case like this, such failure can be fairly regarded as a badge of simulation. It is true the former owner retained possession, and it is only reasonable to suppose, with the consent of the purchaser. She was not the conventional vendor, but her property was sold contradictorily with her at a forced sale under a judicial decree. The mere fact of her continuing in the actual possession or occupancy of the property thus sold, with the consent of the purchaser, has of itself no significance tending to show simulation or fraud on the part of the purchaser, unless taken in connection with other acts establishing bad faith, fraud or simulation affecting the rights of other creditors.

The objections, that the purchase price, and no portion of it, were paid by Provosty, and that whatever was paid on account thereof was paid by Mrs. Labatut, are wholly unsupported by the evidence. The testimony on this subject is, to our minds, conclusive that the purchase was made by Provosty for his own account, that the payments were made by him with his own funds, and that the whole transaction was conceived and executed in good faith, and is untainted with the slightest reasonable suspicion of simulation, fraud or collusion.

We are not disposed, however, to allow the damages prayed for as in case of a frivolous appeal.

The judgment appealed from is affirmed with costs.


text:
    No. 7751.
    Wm. W. Hollingsworth vs. John & Charles Chaffe.
    A mortgage upon a plantation attaches to the batture, which is formed in front of the said plantation subsequently to tlie act of mortgage.
    The seizure and sale of the plantation, at the suit of the mortgage creditor, carries with it the seizure and sale of the batture, as part of the property mortgaged, seized and sold, and the said baitu/re passes with the plantation to the purchaser.
    APPEAL from the Fourth Judicial District Court, parish of St. John the Baptist. Duffel, J.

      8. M. Bérault for Plaintiff and Appellant:
    "Hirst — It is a rule of property that, if at the time of the sale of riparian land, the alluvion attached has attained a sufficient elevation above the water to be susceptible of private ownership, the alluvion does not pass with the land, unless so expressed. That test has been definitely settled by repeated decisions of this Court. Barre vs. City, 22 An. 612-615; citing 6 M. 19-215; 9 M. 656; 7 H. S. 624; 11 B. 142; 10 An. 54-55; 13 An. 350; 18 B. 229. This rule applies to rural batture, and is not confined to urban alluvion. 9 M. 222-240-236; 7 H. S. 81; 18 B. 259.
    Second — Such was, on or before the the 3d August, 1867, or 2d April, 1870, the batture in contest, in front of the levee of 1839, on "Woodlands Plantation, adjudicated to defendants on the 2d April, 1870, as measuring 14 arpents front on the Mississippi river. With that description defendants’ title stopped at that levee, and did not pass to them the batture which has an area of 86 to 100 arpents, on which sugar and corn has been raised.
    Third — If the title to the batture, on the 2d April, 1870, was not in defendants, on the hypothesis of elevation at that date, then it must have been in either Mrs. Hollingsworth or in her husband at that period.
    If the batture had not the required elevation when Mrs. Hollingsworth purchased on the 3d August, 1867, then it passed with the land to her as an accession.
    If subsequent to the 3d August, 1867, when Mrs. Hollingsworth bought, and prior to the 2d April, 1870, when defendants purchased, the batture attained the necessary elevation, then it was the property of Mrs. Hollingsworth, and did not pass to defendants.
    If prior to the 3d August, 1867, when Mrs. Hollingsworth purchased Woodlands, the batture was sufficiently elevated, then it belonged to Sami. Hollingsworth, in his own right, and as heir of his father Jacob.

      In either hypothesis, the title to the battúrepassed to plaintiff hy the acts of 19th February, 1872, and the 20th October, 1877, as the transferee or vendee of his father or mother.
    Fourth — Article 45 C. P. says: “ The petitory action may be brought by one who has the ownership only of an undivided part of an estate or of a real right to which such an estate is subjected, though his ownership may be limited to a certain period, or end by the occurrence of a certain event.” . 8 H. S, 171; 14 An. 537.
    A joint proprietor, or heir, or co-partner, can maintain petitory action for the whole undivided property, against a mere trespasser without title. 6 An. 232, 531-2; 11 M. 713; 6 L. 653; R. C. C. 77 (78); Pothier de la Propriete, Hos. 414, 415, fully support us in this position.
    Fifth — It is admitted that Jacob Hollingsworth, Junior, a son of Jacob Hollingsworth, deceased, and a brother of Sami. Hollingsworth, father of plaintiff in this oase, is now living, and is a resident of Mississippi City, State of Mississippi, and that both Samuel and Jacob Hollingsworth, Junior, are sons of Jacob Hollingsworth.’’ See Admission, p. 31,1. 29 to p. 32,1. 8.
    But it is nowise admitted that Jacob Hollingsworth, Junior, has ever accepted the succession of his father, Jacob Hollingsworth. Samuel has accepted.
    Sixth — In forced sales, the law neither requires nor presumes the debtor’s assent. Such a sale is not a voluntary one, and is strictly construed, and cannot be enlarged or extended by mere implication. Duclaud vs. Rousseau, 2 An. 168, and authorities there citied. Pothier, Propriete, Ho. 274.
    At all forced sales the purchaser must look to the legal description of the seized property, and if that description does not in point of law, include and cover the elevated batture, tbe latter does not pass with the land described as fronting on the river, i. e. the levee.
    Seventh — The issue is how much land was conveyed to defendants by the forced sale of the 2d April, 1870, and not how much land or batture was subjected to the mortgages of 1840, granted to the Consolidated Association, and on which that sale was based. Defendants foreclosed on those mortgages and did not seize, advertise and sell the batture thou susceptible of private ownership. They seized only the land in the rear of the levee of 1839.
    Eighth — Alluvion in its incipienoy and development, before it has attained a sufficient elevation above the waters to be susceptible of private ownership, is an accessory to the land, to and before what it attaches, and may pass with the sale of the land. But alluvion or batture above the waters is no longer m accessory, but becomes a principal estate or field, and as such requires express words of description and of conveyance to pass or alienate it. 22 An. 612.

      JS. & J. Legendre for Defendants and Appellees.

      Spencer & White on the same side:
    First — The mortgage under which defendants bought, having been consented, in 1840, prior to the formation of the batture, the latter became a part of the mortgaged property, and was stricken with the mortgage. C. C. 3310, 498, 509; C. H. 2133, 551 and 556; Digest Book 20, Tit. 1, Laws 13 and 16; Chardon, Droit D’Alluvion, p. 5; Fenet, vol. 15. pp. 361, 362; Paul Pont, Priv. and Hypo., vol. 1, pp. 396, 397, Ho. 406; Troplong, Priv. and Hypo., Ho. 551; Grenier, vol. 1, Ho. 148; Duranton, vol. 19, Ho. 257.
    Second — The alluvion becoming, a part of the thing mortgaged, the sale of the whole of th& mortgaged immovable was a sale of the part. The part was contained in the whole. ’Williamson vs. Richardson, Sheriff, 31 An. pp. 685, 686.
   The opinion of the Court was delivered by

Todd, J.

This is a petitory actionafor the recovery of the, batture in front of the Woodlands plantation, in the parish of St. John the Baptist, on the Mississippi River, in possession of the defendants, and for the rents and revenues of the same. >

The plaintiff sets up title to the property under an act of sale from Mrs. E. M. Hollingsworth, dated February 19,1872, and an act confirmatory of this sale, signed by Mrs. Hollingsworth and her husband, Samuel Hollingsworth, the father and mother of the plaintiff, dated on the 20th of October, 1877.

The defendants claim the property under a sheriff’s sale, made on the second of April, 1870, in a suit or proceedings entitled John Chaffe & Brother vs. Mrs. E. M. Hollingworth.

The plaintiff is the appellant from a judgment rendered in the court below in favor of the defendants.

Mrs. E. M. Hollingsworth acquired the Woodlands plantation at a sheriff’s sale, on the third of August, 1867, under a judgment in favor of Seraphin Millet against Jacob Hollingsworth and Samuel Hollingsworth, the grand-fáther and father of the plaintiff, who, prior to and at the time of said sale, were the equal and joint owners of said plantation.

In the sheriff’s deed to Mrs. Hollingsworth of the third of August, 1867, and the subsequent deed to defendants of the second of April, 1870, the pro'perty is described as follows:

“ A certain sugar plantation, situated in the parish of St. John the Baptist, in this State, on the left bank of the Mississippi River, measuring fourteen arpents, more or less, front on said river, by forty arpents in depth by side lines opening in the rear,” etc.

The plaintiff claims in his petition that the batture in question was not conveyed or included in either of these sales, but that the title thereto remained first in the former proprietors of the Woodlands plantation — Jacob Hollingsworth and Samuel Hollingsworth — and subsequently in the latter, in his own right, and as heir of the former, until acquired by him, plaintiff, under his purchase, as set forth in the petition.

This claim is based, substantially, on the fact asserted by the plaintiff, that this alluvion or batture, subsequent to the year 1853 and prior to the year 1867, had reached and obtained a full and sufficient elevation above the waters of the Mississippi River to be susceptible of private ownership, occupancy and cultivation by the said Samuel Hollingsworth, plaintiff’s vendor, and Jacob Hollingsworth, the deceased father of Sami. Hollingsworth, the joint owners of the plantation and the alluvion in front of it; and that in consequence of this fact it did not pass to the purchasers under the sheriff’s sales mentioned, because it was not expressly included in the adjudications and sales, as sold and conveyed with the plantation. In other words, that from the condition of the batture, its elevation above the waters of the river, it had ceased to be a mere accessory to the Woodlands plantation, and had become an independent and separate estate, and as such, did not pass from the then proprietors by the successive sheriff's sales mentioned. That Mrs. Hollingsworth did not acquire it in 1867, because the sale to her of the plantation contained no words of conveyance of the batture; and that the defendants in 1870, by their purchase, acquired no other or greater right than Mrs. Hollingsworth had — against whom their proceeding was directed, and to whose title they succeeded.

And the issue thus presented, whether this batture did or did not pass, first, to Mrs. Hollingsworth, and subsequently to the defendants, by virtue of these sheriff’s sales, is the sole one for our determination.

Eew questions have given rise to more complicated and protracted litigation, and have been the subject of more learned research, than the question of alluvion. The principle of accretion, on which it is founded, has, in every known system of jurisprudence, been recognized as one of the modes for the acquisition of property.

We find in the Digest of Justinian, lib. ál, tit. 1, law 7, the following enunciation on this subject;

Prceterea, quod■ per alluvionem agro nostro flumen adjieit, jure gentium nobis acquisitus. Per alluvionem autem id videtur adgici, quod ita paulatim adjicitur, ut intelligere non passimus quantum, quoque momento temporis, adjiciatur.”

This text has furnished the source of the law on this subject to every country or people which has derived its system from Rome. Thus we read in the Partidas (lib. 3, Tit. 28, L. 26):

“ Crescen los rios a las vegadas de manera, que tuellan y men-guan a algunos en las heredades que han en las riberas dellos; y dan y acres■cen a las atras que las han, de la otra parte. Et por ende decimas, que todo quanto los rios tuellan a las hombres poco a poco, de manera que non puedan entender la quantidad dello, porque lo non llevan ayun tadamente, que lo ganan los señores de aquellas heredades, a quien lo ayuntan; y las otras, a quien lo tuellan; non han en ello que veer.”

This identical principle is more aptly expressed in Art. 509 of our Civil Code, which is but a reproduction, with a very slight exception, of Art. 556 of the Code Napoleon:

“The accretions which are formed successively and imperceptibly to any soil situated on the shore of a river or other stream, are called alluvion.”
“ The alluvion belongs to the owner of the soil situated on the edge of the water, whether it be a river or stream, and whether the same be navigable or not, who is bound to leave public that portion of the bank which is required by law for the public use.”

Notwithstanding, however, the antiquity of this principle, so universally adopted, and the plain and precise terms in which it has been enunciated, it has been, as stated, the fruitful source of litigation, as evidenced by very many long, elaborate and learned decisions of this Court. This litigation has been caused not so much by any obscurity in the law, but from the great difficulty of applying the law to the many varied and peculiar circumstances and conditions connected with and distinguishing the alluvions of the rivers, bayous and streams of Louisiana.

These alluvions are sometimes designated as battures, and are especially on the Mississippi River generally known by that name.

The word “ batture ” is thus defined by Judge Martin in the celebrated case of Morgan vs. Livingston, 6 M. 216:

“Batture is, according to Richelet and the French Academy, a marine term, and is used to denote a bottom of sand stone or rock mixed together and rising towards the surface of the water; its etymology is from the verb battre, to beat: because a batture is beaten by the water. In its grammatical sense, as a technical word, and in common parlance, it is then an elevation of the bed of a river under the surface of the water, since it is rising towards it. It is, however, sometimes used to denote the same elevation of the bank, when it has arisen above the surface of the water, or is as high as the land on the outside of the bank.”

From the various decisions of this Court on the subject, we deduce the general rule, subject to some exceptions, that if at the time of the sale of a riparian estate, the alluvion or batture attached, has attained a sufficient elevation to be susceptible of private ownership, the alluvion does not pass with the land unless so expressed in the act or acts of sale.

6 M. 19; 9 M. 656; 18 L. 229; 22 An. 613.

The counsel for the defendants, in their learned and elaborate briefs, deny that this rule applies to rural estates, such as plantations, sold in the gross and not by the measure; and contend that it must be strictly confined, if it exists at all, to urban property. They further urge that, even if such a rule can be sanctioned, as applicable to rural estates, in the case at bar, the batture in dispute had not, in point of fact, attained that elevation at the date of the sheriff’s sale, under which the defendants acquired, as to render it susceptible of private ownership; and upon this issue a great deal of 1 estimonv was taken, appearing in the record.

From the view we have taken of this case, after mature and thorough, deliberation we do not deem it necessary to its determination, to decide these difficult questions of law and facts thus presented. The record presents another feature in the ease, which must exercise a controlling influence in its determination.

We find that the sale of the Woodlands plantation was made to the defendants under a special mortgage, dating as far back as April, 1840. It is declared in the petition that this batture was formed or attained a condition rendering it susceptible of ownership, between the years 1853 and 1867, during which entire period the property or principal estate was subject to the operation of the mortgage in question. Art. 3310 R. C. C. declares:

“The conventional mortgage when once established on an immovable includes all the improvements which it may afterwards receive.”

This article is identical with Art. 2133 of the Code Napoleon, the latter article having the word “ ameliorations” for the word “improvements ” in the English text, which serves to explain the English word, by showing it to mean “ improvements ” resulting both from natural and artificial causes; and thus broadening its signification to make it correspond with the word “ betterments,” so aptly used in the phraseology of the common law.

The question here arises whether this word “ improvements ” embraces alluvions or battures becoming attached or united to the original estate mortgaged during the existence of the mortgage. Or, in other words, does such batture become stricken with the mortgage? The authorities leave no doubt on this point. The principle bearing on it is thus enunciated in the Roman law:

“ Si fundus hypothecce datas sit, deinde alluvione major f actus sit, iotus obligabatur.” Digest, lib. 20, tit. 1, Law 16.

In the deliberations over the Code Napoleon, when this provision extending the operation of mortgages to “ ameliorations ” or “ improvements ” was reported, we find the following discussion was had:

“ M. Galle demande une explication. Si dit-il, l’héritage grevé d’hypothéque se trouve considérablement agrandi, soit par alluvion, soit parce que le fleuve qui Favoisine a change de lit, Fhypothéque s’étendelle sur Faceroissement ? Cette question s’est élevóe quelquesfois dans le ci-devant Piemont et ailleurs. M. Erielhard dit que les aceroissements produits par l’effet de Falluvion sont insensibles et deviennent ainsi des parties du méme fonds. Il n’y a done point de doute qu’ils ne sup-portent Fhypothéque.”

Fenet, vol. 15, pp. 361, 362.

Paul Pont, on the same subject, says:

D’abord, et sans difficultó aucune, elle s’applique aux accrues qui si font par alluvion, a cette accrue qui selon l’expression de Lebrun, se fait de la méme maniere que Faceroissement et le progrés d’une plante, de telle sorte qu’on ne peut ni distinquer le moment ou il se fait, ni le séparer de l’hóritage auquel il se fait. Ainsi, Fhypothéque assise sur Fimmeuble profitera de l’augmentation produite par cette sort d’atterissement ou d’accroissement, quelque considerable qu’il puisse devenir á la longue.”

Paul Pont, Priv. and Hypo., vol. 1, pp. 396, 397.

Many other authorities might be cited on this point, but we think these are conclusive; nor do we understand that this principle is seriously questioned by the plaintiff’s counsel.

If the alluvion or batture in controversy became stricken with the mortgage to which the Woodlands plantation was subject from 1840; then the only remaining question left to consider is, whether this batture was affected by the proceedings for the enforcement of the mortgage, under which the adjudication was made, and by which the defendants claim title to the property. Was this batture seized and sold under these proceedings ? If so, it passed to the defendants with the Woodlands plantation, of which it had become a part. C. C. 498, 504. If not, the title to it remained in the former proprietors, under whom the plaintiff claims.

The proceedings which culminated in the sale, were instituted against the mortgaged property — the property subject to the mortgage; and we must conclude that by the effect of these proceedings the entire property, so subject to the' mortgage, passed to the purchasers, unless there was something in these proceedings — as for instance, in the advertisement or description of the property — to show that the creditors enforced their mortgage, not against the entire property, but only against a part; not against the property originally mortgaged, with all its augmentations, whether by alluvion or destination or artificial ameliorations, but only and exclusively against the land as it existed in 1840’ when the mortgage was consented. It might seem somewhat singular if a creditor with a mortgage covering the whole, and that mortgage indivisible, would proceed to enforce it against a part, when it was evident that it would require the whole to satisfy the mortgage debt. It is reasonably certain that such was not the intention of the creditor; and we should not conclude that such was the fact unless the evidence forbids any other conclusion. We do not discover any evidence in the record that would give to the proceedings such limited effect. It appears that the property, or plantation, was described in the act* of mortgage as fronting on the river; and'from the admissions of the parties, to supply the acts of mortgage and sale not copied into the transcript, we must presume that the property was described alike in the act of mortgage, and the several acts of sale. Such description do,es not exclude any part of the property, but on the contrary, is sufficient to include the entire property subject to the mortgage, the Woodlands plantation and all the augmentations ’ thereto, since the date of the mortgage. The sale of mortgaged property carries with it all these augmentations and improvements without any specific description of them being necessary. They had become a part and parcel of the property, on the principle declared in Art. 504 C. C., viz:

“ All that becomes united to or incorporated with the property, belongs to the owner of such property.”

And in Art. 499:

“ The ownership of a thing, movable or immovable, carries with it the right, * * * and all that becomes united to it either naturally or artificially.”

A question similar to the one here presented came up in the case of Williamson vs. Bichardson, sheriff, et al., decided by our immediate predecessors, 31 An, 685.

In that case the Court said :

“Although the writ issued only against the mortgaged premises, it necessarily issued against the immovables by nature or destination which were a part of those premises. There is no pretense that the-things seized and not described eo nomine in the writ and act of mortgage were not such immovables. The order to seize and sell the mortgaged property was an order to seize and sell all of it — not a part but the whole, and the sheriff would have been liable in damages had he failed to levy under the writ on those things which, by operation of law, were part of that which the writ covered.”

Under this view of the subject, we conclude that the defendants at the sheriff’s s.ale on the 2d April, 1870, acquired the property in controversy, and that plaintiff has no title thereto.

The judgment appealed from is, therefore, affirmed with costs.

Justice Poche recuses himself, having been of counsel.

Behearing refused.


text:
    No. 8171.
    M. M. Ada Lane and Husband vs. Succession of J. F. March and Sheriff.
    The notice to be given by the tax collector to the owner or agent and the return to be made-by the latter, in assessment proceedings, are acts required to be done but once, and when once validly performed, have their full effect without regard to subsequent changes of ownership. Therefore, if the owner dies after said notice and return, it is proper for the assessors to put on the rolls, instead of his name, that of his succession.
    The former owner of property, sold by the tax collector, cannot complain of the insufficiency of the description of the property in the advertisement of sale, when the defective description is that given by the owner himself or his agent, in his return to the assessors. And parties, whose title is purely derivative from said former owner, have no better right to raise the objection. ’
    A tax sale, like other judicial sales, when enjoined for only part of the property seized and advertised to be sold, is valid as to the portion which is not enjoined.

      There is no force in plaintiffs’ objection that the sale is invalid, because only consummated after the day the taxes passed into the list of delinquents, though the proceedings for the sale had been initiated long prior to that date.
    A PPEAL from the Twelfth Judicial District Court, parish of Grant. Barbin, J.

      Joseph P. Hornor and Francis W. Baker for Plaintiffs and Appellants:
    Eixst — A party claiming property in a petitory action must recover on the strength of his own title rather than on the weakness of his adversary. 22 An. 57; 11 An. 546; 22 An. 20; 11 M. 293; 12 B. 46; *12 An. 512; 3 B. 206; 10 B. 505; 11 B. 233; 12 An. 748.
    Second — Plaintiff, in a petitory action, may urge orally at the trial without otherwise pleading, any objections to the title set up in defendant’s answer. 11 An. 546; 2 Hennen, Pleading Y. (c) 2) Ho. 1.
    Third — An illegal or insufficient assessment is a radical defect. 15 An. 15; 14 An. 709; 29 An. 507; 11 An. 214; 4 An. 252; 10 La. 283; 12 An. 748;. 4 La. 150; 14 An. 209; 10 An. 726; 26 An. 730; 13 An. 210; 7 La. 50; 9 An. 550; 4 L. 207; 6 H. S. 349; 10 An. 327; 19 An. 184; 6 An. 542; 8 An. 19; 10 An. 193; 11 An. 87; 8 L. 198; 7 L. 50; 30 An. 871; 32 An. 704, 912, 925; Stafford vs. Twitchell, 33 An. H. B.; Blackwell’s Tax Titles, pp. 123, 124, 106, 107, 65 and 392.
    Eourth — The validity of a tax title depends upon literal, strict and technical rules, which govern the proceedings of the assessor and collector, and a strict conformity to all the requirements of the statute authorizing the sale. Stafford vs. Twitchell, 33 An. H. B., and above authorities.
    Eiffch — A tax collector can sell no other property than that described, and as described in the assessment rolls. Same authorities.
    Sixth — An assessment which fails to give the name of the owner, the boundaries of the property, the numbers of the lots or squares, tbe names of the streets within which the lots are situated, the dimensions of the lots, or the names of the streets on which the lots front, is defective; the omissions cannot be supplied or cured by the tax collector, and any sale under such assessment is null. Sec. 32 of Act Ho. 42 of 1871, and above authorities.
    Seventh — Under an assessment of 9000 acres of land in block, as four plantations, and borses, carriages, etc., thereon, town lots not mentioned or described on tbe assessment rolls cannot be sold by tbe tax collector for the whole tax, on both the immovable and movable property.
    Eighth — In giving the public notice, the individual notice, seizing, recording, advertising, and deeding property, the-tax collector must describe the property as it is described in the assessment rolls. If the assessment rolls are defective or do not sufficiently desoribe the property, the collector cannot supply such defect. Same authority.
    Hiuth — Under Act Ho. 42, of 1871, tax collectors were without authority to collect de- . linquent taxes, and could not sell to collect such delinquent taxes. Upon becoming delinquent, tbe property upon which tax was due became forfeited to the State, and the Auditor of Public Accounts alone had authority to collect the tax aud issue certificates of redemption. Act 42, of 1871, Secs. 66, 67, 68 and 69.
    Tenth — That which is null is not susceptible of confirmation. Quod nullum est conftmp/ri ntquit. 15 An. 569.
    Eleventh — Knowledge is the essence of estoppel, which cannot be presumed. 10 K. 502; 17 An. 241; 4 B. 417.
    Twelfth — Title to real estate cannot be proved nor helped out by parol.

      Thirteenth — Actual knowledge, however, clearly brought home to the taxpayer, cannot dispense with strict compliance with every formality required by law, and no consent to their waiver can in any case be implied. Stafford vs. Twitchell, 33 An., H. R. Blackwell on Tax Titles, p. 50; 4 L. 150 and 207; 18 La. 514; 14 An. 209.

      R. A. & B. P. Hunter i W. L. Richardson and H. L. JDaigre for Defendant and Appellee:
    Eirst — Plaintiffs’ action cannot be maintained as either a petitory action or an action of nullity.
    Second — The exception of no cause of action should be sustained.
    Third — She cannot, on such allegations, arrest the succession sale. 12 Louisiana Reports, 123.
    ¿Fourth — The plea of prescription, which we set up by way of exception, 'should be sustained. Acts 1874, page 155, § 5.
    Pifth — Plaintiff is estopped from setting up any irregularities in said tax sale by having consented to said sale in a judicial proceeding at the time.
    Sixth — She cannot be heard to attack our title in a collateral way; indeed, she has not done so except in vague and general terms. See Constitution 1868, Article 118; 30 An. 959.
    Seventh — Even if she can be permitted to do so, all the proceedings were regular and proper, our tax title is valid and good in law. Acts 1871, Ho. 42, §§ 23, 26, 30, 32, 40, 57, 59, 60, 62, 63; 31 An. 591; 28 An. 240, 352.
   The opinion of the Court was delivered by

Fenner, J.

The view which we take of this case obviates the necessity of determining several preliminary objections urged by defendants to the form of the action, as well as the contentions between the respective parties as to the nature and scope of the action.

“We will adopt the theory of the plaintiff, that it is a petitory action, In which each party sets up title to the property,'and in which plaintiff has established title in herself upon which she must recover unless the defendant has shown a better title.

The defendant sets up a title derived from a sale for taxes made by the State tax collector of Grant parish on the éth of January, 1873, and subsequently confirmed by the Auditor, which title, if not invalidated by some defects in the proceedings of assessment and sale, is superior to, and destructive of, the title established by plaintiff.

The sale was made for the taxes of 1871, on property belonging, at the date of the assessment, to Mrs. Mary S. Calhoun, the mother of plaintiff, and also of her brother, ¥m. S. Calhoun, who was the agent of his said mother in the administration and management of said property, living in the parish and attending to the same, while his mother had been for many years, residing out of the parish.

The evidence leaves no doubt that W. S. Calhoun was such agent, and was the proper person, to whom, under section 23 of the Act of 1871, the assessment notice therein provided should be delivered, in order that the blanks therein might be filled up by him and returned to the officers of assessment as a basis for their action.

It is proved that the notice was duly served on him; that he filled up the blanks himself, including his own description of the taxable property of his principal; that he returned the said list to the assessing officers; and that it was entered on the assessment rolls precisely as described by him. It is proved that the return was made prior to the death of his mother, and while his'capacity as agent was unquestioned. Thereafter, on June 10th, 1871, his mother died, and in making up the rolls the assessment of this property was entered as follows;

“W. S. Oalhoun, agent, (succession M. S. Calhoun) 9000 acres, Smithfield, Eerenzie, Mirabeau and Meredith plantations, 4000 acres timber, $140,000; horses, mares, etc., $3340; carriages and vehicles, $240; total, $143,580.”

To this assessment the following objections are made by plaintiff;

1st. That it does not contain the name of the owner. This objection is untenable on its face. The name of W. S. Calhoun, agent, is given to identify it with the return made by him, and doubtless the name of M. S. Calhoun, as owner, would have been added, but, she having died before the making up of the roll, her succession was properly substituted.

2d. That the names of the tracts are not given. . They are given.

3d. That the boundaries of the property and the quantity of land in each tract are not given. This objection would be fatal, were it not that the assessment adopts and follows the description of the property given by the owner, through her agent, in the manner and at the time prescribed by law.

The assessors were perfectly justified in adopting and following the description of taxable property furnished, for the purpose,' by the owner. If the owner choose to dispense with particulars of description, required by the law for her protection, and to permit, and even direct, her property to be assessed with an incomplete description, she cannot subsequently complain thereof and claim advantage from her own laches. Plaintiff, whose title is purely derivative from Mrs. M. S. Calhoun, has no better right to urge objections to this assessment than the latter would have had. W. S. Calhoun’s acts as agent, in receiving, filling up, and returning, the assessment notice, were completed prior to the death of his principal, and were irrevocably binding as to the property, as to the owner, and as to all persons claiming under the latter, whose subsequent death had no effect whatever on their validity.

The notice to be given to the owner or agent, and the return to be made by the latter, in assessment proceedings, are acts required to be done but once, and when once validly performed have their full effect without regard to subsequent changes of ownership. This assessment, under these circumstances, must be maintained as perfectly valid and as furnishing a full foundation for the tax and for subsequent proceedings in enforcement thereof.

II.

The evidence establishes that, in the proceedings for sale of the property, every delay, notice,- publication, and formality, prescribed by law, were minutely and technically complied with. The property, just as described on the assessment roll, which is the only description required or even permitted by law, was advertised for sale on the 4th of January, 1873. If the whole of the property so advertised had been sold on that day in conformity with law, there could have been no possible objection to the validity of the sale or to the title of the purchaser thereunder.

But, it appears, that a few days prior to the sale, W. S. Calhoun, who with his sister, the present plaintiff, were the sole heirs of Mrs. M. S. Calhoun, acting for himself and as agent for his said sister, applied to the district court and obtained an injunction restraining and pro- ■ hibiting the tax collector “ from proceeding with the sale of the Smith-field, Ferenzie, Meredith and Mirabeau plantations, except twenty-one acres or lots of ground, being part of the Smithfield plantation, and reserved or laid off as the town of Colfax.”

The evidence establishes that the succession of Mrs. M. S. Calhoun remained unadministered until June 3d, 1873, on which day W. S. Calhoun and the present plaintiff presented their petition to the parish court, asserted their sole heirship, accepted the succession without benefit of inventory, and obtained a decree recognizing them as unconditional heirs and putting them in possession of the property. It is proved that from the death of Mrs. M. S. Calhoun, W. S. Calhoun continued to exercise the exclusive management of the property, and constantly acted, and represented himself, as the agent of his sister and co-heir. His authority to represent his sister in the injunction suit above mentioned is not disproved by any evidence; nor is it denied by plaintiff in any pleading or in any testimony given by her, in this suit. It is impossible to suppose that she was ignorant that he was administering and managing these princely estates in which she had so large an interest, and that he was acting therein as the representative of her interest as well as of his own, especially as it is proved that she was present in the parish in March, 1872, preceding the sale. Under such circumstances, we consider that she is not authorized to rely upon the mere absence of proof of express mandate which it was not within the power of defendant to furnish, but was bound to repudiate or disprove the presumption of authority resulting from long continued action as her agent of which she could not have been ignorant. The motives and objects prompting Calhoun in excepting the twenty-one acres from the injunction, are suggested by the testimony. He desired to have the town of Colfax, the parish seat of the new parish, established on those twenty-one acres, which, it was supposed, would add to the value of the surrounding property. He desired to sell that property to persons desiring to- settle in - the proposed town. Incumbrances on the property interfered with the passing of titles; and tax sales would obviate this difficulty. Hence the exception of these lots from the injunction.

These matters, however, we refer to merely incidentally.

The salient fact is that the - injunction taken out by Calhoun, who was undivided half owner, arrested the sale of all the property except the twenty-one acres referred to, and left the collector free to sell those twenty-one acres.

We have been referred to no principle of law preventing the collector from proceeding with the sale so far as not enjoined.

The pretension that these twenty-one acres had not been assessed is untrue. They were a part of Smithfield plantation which had been validly assessed as such.

It is settled that under an advertisement for the judicial sale of a piece of land as a whole, part of it may be validly sold, when the sale of the remaining portion has been stayed by injunction or for other legal cause.

Lossee vs. Delacy, 23 An. 287.

Clay vs. O’Brien, 24 An. 234.

The last mentioned case involved a sale for taxes, and fully covers the present one.

The property here in contest was a part of the twenty-one acres exempted from the injunction, and the sale thereof was valid.

We have examined the numerous bills of exceptions taken by counsel for plaintiffs and find no merit in any of them.

The final objection that the sale was invalid because made after the second Monday of December, 1872, at which date it is claimed these taxes passed, under the law, into the list of delinquent taxes, has no force. It is apparent that the proceedings for the sale of this property had been initiated long prior to that date, and were then in. progress. They were not interrupted by the arrival of that day, nor is there any thing in the law to prevent the consummation of such pending proceedings. The judgment appealed from is, therefore, affirmed at appellants’ costs.

Rehearing refused.


text:
    No. 8149.
    Jean Torres et al. vs. Felix Falgoust.
    The fact that a judgment was rendered at chambers, does not exempt the case from the operation of Art. 574 C. P., which provides that no citation of appeal shall be necessary when the appeal has been granted upon motion in open court, at the same term that the judgment was rendered.
    ■When the acts enjoined amount to a trespass or a change of possession of immovable property, the injunction cannot be dissolved on bond and an appeal lies from the dissolving order. Decision in Sigur vs. Judge, 33 An. 133, affirmed.
    APPEAL from the Twenty-Second Judicial District Court, parish of St.. James. Cheevers, J.

      BoU. G. Dugué for Plaintiffs and Appellants:
    Upon an application to.bond an injunction, under C. P. 307, the allegations of the petition must be taken as true. 23 An. 52; 14 An. 57.
    An appeal lies from the order, when the injury is irreparable; and it is irreparable when the-act complained of amounts to a trespass or achango of possession of immovable property, and also when a new suit is necessary to adjust the damages. 22 An. 512; 24 An. 154; 26 An. 603; 23 An. 52; 14 An. 57; 12 An. 455, and authorities there cited.
    When an appeal is granted by motion in open court, at the same term at which the judgment appealed from is rendered, no citation or other notice to the appellee is necessary. C* P. 573, 574; 30 An. 696; 19 An. 291; 24 An. 289; 22 An. 463; 21 An. 733; 31 An. 515.

      Sims & Boché for Defendant and Appellee:
    First — Appellee has not been cited, and the fault is imputable to appellants. 15 La. 214; 16 La. 50; 5 An. 115; 10 An. 650; 6 Bob. 64; 10 Bob. 20; 17 An. 74; 21 An. 238, 618; 21 An. 277..
    Second — The omission to ask for citation of appeal is imputable to appellants. 21 An. 629; 18 An. 700; 12 La. 271; 14 An. 315.
    Third — The order appealed from was granted at chambers, in the parish of Ascension. An-appeal therefrom could only be obtained by an order rendered upon a petition, praying for citation, of which proper service should have been made. C. P. Arts. 573,581,582,585, 587; 27 An. 95.
    Fourth — There is no legal order of appeal in the record. The minutes do not show that any appeal was ever granted. 22 An. 373; 27 An, 97; 21 An. 649; 6 An. 707.
    Fifth — There is no order of appeal. The court will dismiss the appeal ex officio, 24 An. 276;. 20 An. 193; 2 An. 628; 22 An. 373; 23 An. 543.
    Sixth — The affidavit of counsel for appellants filed in this Court is inadmissible to contradiot, supply or in any manner add to, the record in this case. 21 An. 649; 6 An. 707; 10 An. 550; 12 An. 349; 6 An. 700; 11 Bob. 531.
   On Motion to Dismiss.

The opinion of the Court was delivered by

Fenner, J.

Appellee moves to dismiss this appeal on the grounds:.

1st. That the appeal was taken by motion in open court and without citation. The interlocutory judgment appealed from, though rendered at chambers, was so rendered during a term of the court and at the instance of appellee, and the appeal was taken at the same term. We find nothing in the circumstance that the judgment was rendered at chambers to exempt the case from the operation of article 574 C. P., authorizing appeal by motion, if taken at the same term.

2d. That there is no legal order of appeal in the record. This .objection is not sustained by the transcript, which presents the motion and order of appeal with the statement by the clerk that it is “ entered verbatim, et literatim in the minutes of November 6th, 1880.” We must assume that such entry exists, and that the minutes, which contain only the record of proceedings in open court, are evidence that the motion and order were made in open court and are legal.

On the Merits.

This is an injunction suit. Plaintiffs av.er, in substance, that a eertian road, running through lands of defendant, is a public road, which has been opened and dedicated to public use for forty or fifty years; that the use of it is necessary to plaintiffs, as part of the public, in the carrying on of their agricultural operations and the transportation of their crops; and that it cannot be closed or obstructed by any individual; that the free use of the road is impeded by a hole at a point within defendant’s property which he refuses either to fill himself, or to permit them or others to fill, though they have offered to do so, at their own expense; and that he threatens to build a fence across the road and close it completely if any one attempts to fill the hole, which, in its condition, renders the road impassable.

Avering injury and damage from the said actual and threatened conduct of defendant, on affidavit and bond, they applied for and obtained a writ of injunction restraining the defendant from closing or obstructing the road, and from interfering with or preventing them from repairing the same, at their own expense, so as to keep it in passable condition.

Thereafter, the defendant presented a petition controverting the allegations of plaintiffs’ petition as to the road’s being public, and as to the rights of plaintiffs to use the same, and, avering that the acts complained of by plaintiffs were not such as to cause them an irreparable injury, prayed for dissolution of the injunction on bond.

Upon this petition, without citation or notice of any kind to plaintiffs, the judge made his ex parte order in chambers, dissolving the injunction on bond as prayed for. From this interlocutory judgment the present appeal is taken.

The Code of Practice expressly authorizes injunction, “when the defendant opposes the execution of works necessary for the repairs of public roads,” and “ when the defendant is in the act of building or constructing some work tending to obstruct a place o£ which the public has the use.” C. P. 298, Nos. 1 and A

Both of these grounds of injunction are presented in plaintiffs’ petition, which must be taken as true, and the sworn allegation of which, that the road is a “ public road,” cannot be overcome by the mere ' counter-allegation of the ex parte petition of the defendant.

The road must, therefore, be considered as in the possession of the public, who are entitled to possess and use the same, and cannot be denied the right of making, at their own expense, repairs necessary to fit it for such use.

The acts of defendant, actual and threatened, amount, if consummated, to a change of possession of the road from the public to defendant as a private individual; and are trespasses, if the allegations of plaintiffs’ petition are true.

In the case of State ex rel. Sigur vs. Judge, recently decided, we held that where the acts enjoined were trespasses and operated change of possession of immovable property, the injury was irreparable, and the injunction could not be dissolved on bond. In that case, the police jury were attempting to open a public road through the land of the relator, and thus to change the possession of the land over which the road was to run from a private individual to the public. Here a private individual is, upon the face of the papers, seeking to change possession of an existing public road from the public to himself.

The two cases cannot, in principle, be distinguished.

The injunction was of a character to work irreparable injury, upon the principles and authorities invoked in the Sigur case, and should not have been dissolved on bond.

It is, therefore, ordered, adjudged and decreed that the judgment i appealed from be annulled, avoided and reversed, that the injunction be reinstated and that the case be proceeded with according to law.

Mr. Justice Roché recuses himself in this case, having been con- , suited as counsel.

Rehearing refused.