author: Nicholls, C. J.

text:
    No. 11,237.
    Arthur H. Murray et al. vs. Succession of John Spencer et al.
    1. An exception of prematurity is not waived nor merged in the answer by a consent to have the same referred to be tried with the merits, particularly where the answer filed is under reservation of the exception.
    2. Robert ÍI. Short died leaving two wills, both of which were probated. By the first or Christy will plaintiffs, as his heirs-at-law, were entirely cut off. By the second or Zengel will they were also cut off save for a small special legacy. In proceedings in the Civil District Court these parties prayed that both wills be set aside — that Short be decreed to have died intestate, and that they be recognized as his legal heirs, assigning as grounds that the notaries who drew up the wills bad not complied with legal forms and requirements. On trial the Zengel will was set aside, but the Christy will was upheld. They then instituted suit against the notary who had .drawn up the Zengel will for damages, claiming that through his negligence and want of care he had caused that will to be a nullity, carrying with it as a result the loss of their legacy.

      Held: That having adopted the errors of the notary and sought to utilize the same for their benefit to get into position as heirs they should not be permitted» because unsuccessful in their ultimate object, to turn back upon the notary for damages.
    APPEAL from the Civil District Court for the Parish of Orleans. Ellis, J.

      F. Rivers Richardson and Frank E. Rainold Attorneys for Plaintiffs and Appellants:
    A judgment is not a consent judgment because the case is submitted to the court for adjudication without argument. A judgment is rendered upon^the issues as they appear from the pleadings and upon the pleadings alone.
    A judgment must be considered valid and binding until reversed or set aside in a prope ’ proceed'ng; no collateral attack is permissible. Kent vs. Brown et al., 38 An. 802; 36 An. 533, 831; Succession of Keller, 39 An. 579; 32 An. 896.
    An appeal lies from any judgment for the term of one year from date of final judgment (Oode of Practice, Art. 593), and those not parties to a judgment when their interests are affected may appeal. Code of Practice, Art. 571.
    A will to be valid, in the nuncupative form, by public act, must be entirely dictated by the testator, written by the notary as dictated and in the language of the testator, read over to him in presence of the attesting witnesses and express mention must be made of the performance of these formalities. Civil Code, Arts. 1578, 1579 and 1580.
    It is not sufficient that a part of the will is clothed with these formalities. It must be done in regard to the whole; hence if upon the reading of the will over to the testator he changes any portion of it, such change must be written in the language of the testator; it must state that this change was dictated by the testator to the notary and written by him as dictated, all in presence of the witnesses, and that the same was read over to him. Without the observance of these formalities, the will is a nullity. Grenier, No. 239; Merlin Rep., Y. “Testament,” Sec. 2 e. par. 3, Art. I, No. 13; Toullier, Droit Civil Francais, Yol. 5, p. 416, par. 452.
    A notary who executes a defective will is responsible to those whom he has damaged, and the measure of damage is the amount of the lost legacy. Rochereau vs. Jones, 29 An. 82; Wintz vs. Kramer, 44 An. 35.
    The bond given by the notary is that he shall well and truly perform his duties as such. It is a guarantee of his competency to fulfil such notarial duties. Bingham vs. Bussey, 26 An. 676; Fox vs. Thebaut, 33 An. 33; Wintz vs. Kramer, 44 An. 35.
    The duty of the notary is to follow the plain letter of the code, and if he does so he is certain to make no error. When he disregards these requirements and decides upon reflection that they can be omitted as to a particular portion of the will, he does so at his own risk, and it is not an error of judgment by which he can escape liabilty, but it is on the contrary culpable carelessness. Wintz vs. Kramer, 44 An. 35.
    The amount of the e >tate having been proved by the inventory and oral evidence to be largely in excess of the debts of the estate, the presumption is raised that the plaintiffs would recover their entire legacy, and this presumption not having been rebutted, the matter stands as proved.
    The liability of the notary and his bondsmen for damages on account of the loss of the legacy arose as soon as a'judgment was rendered annulling the will made by him; the plaintiffs are not compelled to wait the final winding up of the estate if other evidence can show the amount of the damage. Wintz vs. Kramer, 44 An. 35.
    A legacy of a sum of money is a a legacy of personality and is hence governed by the lex domicilii and not the lex rei sitse. Succession of Malone, 2 R. 382.
    All parties to a suit are bound by the decree even if other proceedings are instituted in other States. Am. and Eng. Ency. of Law, Vol. 12, p. 149 c. and authorities, and Yol. 13, p. 15 and notes.
    The primary probate at the domicile of the deceased makes probates in other States ancillary to this primary probate, and after administration the funds of the ancillary administration must be turned over to the primary administration. Am._and Eng. Ency. of Law, Vol. 3, pp. 640, 651.

      'The exception of prematurity is abandoned when referred to the merits by consent of defendants.
    An action of this character arises as soon as the title to the legacy is discovered to be null and void.
    The prematurity vel non of this action is not dependent upon whether succession of Short has been or ever will be administered.

      Henry P. Dart Attorney for Defendants and Appellants:
    Under the French law amendments and alterations to a testament are governed by a special statute, describing the duties of notaries in the minutest detail, and the Civil Code does not contain any provisions relative to such matters.
    When it appears from the will that it was read to the testator in the presence and hearing of the witnesses, it matters not what way this fact is' expressed or in what portion of the testament this declaration is contained.
    A notary should only be held in damages for defects of form in case of fraud or grave fault, or such gross negligence that might be attributed to bad faith, or when he acts in violation of a plain textual provision of the law.
    The notary is evidently excusable and should be discharged of all responsibility when the "question is on a point of law on which there is difference of opinion and of jurisprudence, and unless the circumstances are gravely against the notary his cause ' should be favored.
    The punishment should be in proportion to the wrong, and it would be out of proportion if a simple inadvertence would result in a condemnation that would ruin the notary.
    If a notary is held in damages in every case, the slightest error or merest inadvertence would be punished as severely as the gravest fault.
    A notary should never be held in damages for an error of judgment when he has been called upon to act on a doubtful point of law.
    No one should be permitted to profit by his own wrong, and where he has consented to or contributed to the act which occasions the loss, he should not be permitted to maintain an action in damages.
    This rule is especially applicable when the party acts after mature deliberation and perfect freedom in exercising his will.

      If a party prays for a judgment'he should not be permitted to claim damages for a resulting loss which he has sustained from the judgment rendered in accordance with the prayer of his petition
    If a person voluntarily consents to an .injury he ought to be .made to bear the loss.
    Where a decedent leaves property in several States, and his will is annulled in Louisiana, and the will is good in the other States, the legatees should not be permitted to hold the notary for damages until they have exhausted every means to have their legacies satisfied out of the property located in the other States.
    The property of a decedent in every State forms a separate succession, and can be administered in the different States irrespective o' the domicile of the testator.
    A notary can not be held in damages for an alleged loss of legacy until the estate of the decedent is settled and the amount of the damage is definite and final, and particularly should this rule apply when the property of the testator in the other States has not even been sold.
    In the absence of such definite evidence fixing the actual amount of loss, an exception of prematurity should be maintained.

       Henry O. Miller, as Amiens Curise, submits a brief:
    Robert H. Short, deceased, left a last will dated April 19, 1888, and a paper purporting to be- a will of date December 29, 1888.
    It was claimed that the testator was non compos mentis when the April will was made and that the December paper was void as a testament, because, being nuncupative in form by public act, the certificate of the notary was defective.
    The court sustained the April will and set aside the December will on the ground of the defective certificate. The executor thereupon qualified and proceeded with the administration, selling a portion of the property and discharging to a great extent the debts of the succession.
    The present plaintiffs, named as legatees under the December will, bring this suit against the notary and his sureties, claiming damages by reason of the judgment setting aside said will on account of the defective certificate. The same judge who rendered the judgment maintaining the April will determined this cause in favor of the notary and his sureties, and holding the certificate to the December paper sufficient, and that it was valid as a will.
    The executor is embarrassed by this last opinion of the lower court. If the December paper is good as a will, the April will first sustained by the lower court is superseded because of earlier date. If this last opinion is to prevail, then the action of the executor under the April will is apt to give rise to complications. Both in regard to his past and future course, the executor has an interest in the question arising on this appeal of the validity of this paper of December. He asks to be allowed to submit this brief. He has no concern in the issue between the plaintiffs and the notary. This brief is not filed to support any case the plaintiffs may be deemed to exhibit against the notary; but it is submitted to show thatthe paper of December, asserted to be the will, was of no effect because the last dispositions which the eccentric testator added at the moment of signing, changing radically his previous dispositions, are not embraced in the certificate of the notary. Indeed, as the paper itself shows, the closing dispositions were never dictated or written by the notary, or read to the testator in the presence of the witnesses.. The executor desires the cloud cast on his administration by this last-opinion, holding valid this December paper, removed.
    The certificate of the notary to the nuncupative will received of him must show that every disposition of the testator was dictated by him, written by the notary as dictated and read to the testator;; that this dictation, writing and reading were in the presence of the witnesses, and of all these requisites the certificate must make express mention, no proof being admissible to supply any omission of the certificate. Civil Code, Arts. 1578, 1647; 5 Toullier, p. 416, pars. 432,483; 3 Troplong, p. Ill, par. 1561; 1 Dalloz (les Codes annotes), p. 802, Nos. 306, 307; 1 Robinson,, p. 48; 12 Robinson, p. 29; 16 Louisiana, p. 80; 12 Robinson, p. 35.
    It follows that the certificate is defective, when it does not extend to each and every disposition of the will, as for instance in this case when after the dictation, writing and reading of the dispo - sitions, and after the mention of these formalities, the testator adds other dispositions at the moment of signing, not certified to have been dictated or written-or read. Ibid., specially 5 Toullier, p. 417, par. 432.

      The nuncupative will by public act is in law the entire testamentary paper as it is written by the notary. It can not be good as to part and void as to the remainder. If the certificate fails to show that all the dispositions in the paper were dictated by the testator, written by the notary as dictated, and then read, all in the presence of the witnesses, the nullity is not only of the dispositions not certified as required by the code, but all the dispositions are annulled, and there is no will. 5 Toullier, p. 417, par. 432; 3 Troplong, p. Ill, par. 1562; 1 Dalloz (les Codes annotes), p. 802, No. 313; Sirey (les Codes annotes), p. 241, No. 50.

      ¡Charles S. Bice, Amicus Curias, presented an oral statement.

      F. Bivers Biohardson and Frank E. Bainold, for Appellants, in reply and on application for a rehearing:
    The evidence shows that there should be judgment for plaintiff for two thousand five hundred and twenty-five dollars and sixty - one cents, and in no event less than two thousand three hundred and sixty-eight dollars and five cents.
    The act which occasioned the injury was the faulty confection of a will by defendant notary. It was impossible for plaintiffs to have been guilty of contributory negligence, nor does the maxim Volenti non fit injuria ” apply to them.
    .As far as the rights of plaintiffs are concerned the will is governe'1 by the laws of Louisiana; the legacy of a sum of money being a “¡personal ” or “ movable ” right.
    'The courts having jurisdictions of the auxiliary succession proceedings applied the law of Louisiana and annulled the Zengel will for want of form. They did not err in following the judgment of the court of the domiciliary succession.
    Estoppel, like prescription, to avail a defendant, must be specially pleaded. The plea can not be supplied by the court. 33 An. 748.
    Where no injury to the rights of defendant have resulted from the actions or declarations of plaintiff, there can be no estoppel. The vitality of the plea depends upon injury.
    ToAonstitute estoppel by record the allegations must be contradictory and the litigants the same.

      To constitute equitable estoppel the party pleading it must have been injured.
    The judgment of the lower court being one absolutely in favor of defendants, and this being the judgment brought before this court for review, the court in amending the judgment in favor of the minor plaintiffs so far as to non-suit them must determine whether or not they have a cause of action. To do this, the validity of the will must be setted. If it is void, the minors have no cause of action, and the judgment of the lower court should not be amended. It is error not to have passed upon this question.
    It is error not to have determined how the costs of appeal should be apportioned, the judgment of the lower court having been reversed in part.

      Note. — This brief was filed in court before Mr. Miller was appointed Associate Justice. — Reporter.

   The opinion of the court was deliver.- d by

Nicholls, C. J.

Plaintiffs represent that Fred. Zengel is a notary public in and for the parish of Orleans, and was such on the 29th of December, 1888, at which time he received the last will and testament of Robert H. Short, who formerly resided in New Orleans and died on the 11th of August, 1890, in which said will the said deceased gave and bequeathed to Mrs. Virginia T. Murray, widow of Joel T. Murray, or her heirs in case he survived her, the sum of three thousand dollars.

That on the 2 2d of May, -1890, and before the death of Robert H. Short, Mrs. Virginia T. Murray died, leaving as her heirs Arthur H. Murray, Mrs. Juliette Murray Jones, and the issue of a predeceased daughter, Mrs. Mary W. Murray, to-wit: the minors Arthur Murray Dargan, Cornelia Alice Dargan and Bertie Lucy McDonald, all of whom are plaintiffs herein, and are the parties described as the heirs of Mrs. Virginia T. Murray in the said testament, and would be hence entitled to the said legacy.

That the said will was duly probated on the petition of Philip S. Sims, named as one of the testamentary executors in the will, on the 18th of August, 1890. That thereafter Mrs. Margaret Short Moran, a legatee of R. H. Short, filed a suit to annul the will, on the ground that the said notary had failed to clothe the will with the formalities required by law, and especially because after a greater portion of the said will had been dictated by the testator to the notary, and having been read over to the testator and the testator having changed certain dispositions and added a modification or an amendment to the will, bequeathing the residue of his estate after discharging the legacies therein named to all the legatees named therein, share and share alike, the notary failed to clothe said amendment or modification with any of the requirements of law, and by reason of the said fatal defects the said will was a nullity. That plaintiffs were cited, among others, as defendants in said suit, and after due proceedings said will was annulled and avoided solely by reason of the fatal defects of form appearing on the face thereof, due wholly to the fault and want of care on the part of the notary, which judgment is now final. That when the notary executed the said will, William R. Richardson and John Spencer, now deceased, were the sureties of the said notary on his notarial bond, on which bond the t aid Fred. Zengel, notary, bound himself as principal in the sum of five thousand dollars, and each of the' sureties in the sum of twenty-five hundred dollars.

That by reason of the fault, negligence, imprudence, want of skill and inattention to his business, and the deplorable omissions in failing to clothe the will with the requirements of law, which the said Robert H. Short had a right to expect by reason of the said Zengel’s reputation as a competent notary, the will was a nullity, and was so declared by judgment of court, and petitioners were damaged in the full sum of their so lost legacy.

That John Spencer, one of the sureties, has died, ánd his succession is represented by the said Fred. Zengel and John Lynch as executors. .

That under the law the said notary is liable for said damage and injury; that the surviving surety, Richardson, is liable in solido with him up to the sum of twenty-five hundred do lars, and that the succession of Spencer is liable in solido up to the sum of twenty-five hundred dollars.

They pray for judgment against Zengel for three thousand dollars and for judgment for the sum of twenty-five hundred dollars against Richardson, and for a like amount against the succession of Spencer, with legal interest from date of judgment.

' Defendan s excepted — first, that the demand was premature, and, second, that the same sets forth no cause of action.

Plaintiffs then filed a supplemental petition, in which, reitera* ing their averments as first made, they further alleged that the succession of Short is perfectly solvent, and had the -will of the deceased executed before the said notary not been annulled by decree of court, they would have received the full amount as stipulated in the said will th -t they should be entitled to — that even had the court failed to annul the will for the reason more particularly set forth in the petition, still the said will was an absolute nullity because the notary had failed to clothe io with the formalities required by law, in that it was not written by the notary as dictated by the testator, which said fact the notary has himself testified to in the contest of said wills of the deceased, in which he was examined as a witness, all of which was due wholly to the fact of the negligence and want of skill of the said notary, as was more fully set forth in the or ginal petition.

By consent, of counsel the exceptions were referred to be tried with the merits.

Defendants, under reservation of their exceptions, answered, pleading first the general issue; further answering the defendant, Eengel, said that it is true he made the will complained of, but that he took down and wrote the will exactly as it was dictated by the testator, and that he did not fail or omit to comply with all the formalities of law, and he specially denied that the will in question was invalid, or that the same has ever been held to be invalid by any court or in any case, except in a consent proceeding, and he specially denied that the plaintiffs have suffered any loss whatever as the result of the making of the will, and that in the event that the e should be an error in the confection of said will, then he pleaded the same was an error of judgment, and not want of skill, or negligence in the confection of the will.

Judgment was rendered in the District Cour., in favor of the defendants, and plaintiffs have appealed.

Robert H. Short died in the city of New Orleans on the 11th August, leaving no ascendants or descendants, but certain collateral relations who, in the absence of the testamentary dispositions by him, would have been his legal heirs.

These parties were (1) the plaintiffs, who are the children of Virginia Thomas Short, a predeceased sister, who was the widow of Joel Murray; (2) a half sister, Juliette Brown, widow of R. S. Simms; (8) the descendants of William H. Brown, a predeceased half-brother; (4) the representatives of Richard Brown, a predeceased half-brother; (5) the representatives of John Short, a predeceased half -brother.

Robert H. Short had, however, executed two wills by notarial acts — one before Geo. W. Christy, notary, on the 19th day of April, 1888; the other on the 29th December, 1888, before Frederick Zengel, notary.

In each will his entire estate was disposed of. In that of 19th April, 1888, known as the “ Christy ” will, he bequeathed, after payment of the special legacies therein made, “ the residue of his property ” to the Christian or Campbellite church, at Hopkinsville, Ky., and to the Baptist church at the same place.

In the second will, known as the Zengel will, he at first bequeathed, after the special legacies therein made, “the remainder of his estate” to his nephew, Philip Short Sims, but before signing his name “ declared to the notary, in presence of the witnesses, that he amended and modified his will as before written, by bequeathing the remainder and residue of his estate, after the discharge of the legacies therein made, in equal shares and interests to all of the therein-before named legatees, to be possessed by them share and share alike.”

Both of those wills were probated by the Civil District Court.

The deceased left considerable property, real and personal, in Louisiana, and real estate in Tennessee, Alabama and Kentucky.

Mrs. Margaret Short Moran, wife of. William J. Moran, who was a legatee in the Christy will for four thousand dollars, and in the Zen-gel will for two thousand dollars, instituted an action to which all parties holding adverse interests were made defendants, asking the annulment of the Zengel will and the recognition and enforcement of that executed before Christy.

The plaintiffs and appellants herein filed an answer in that case, in which they say “ for answer to the petition of Mrs. Margaret Short Moran to annul the writing purporting to be the will of Robert Short, dated December, 1888, they admit that said public act passed before Fred. Zengel, notary, is null and void and of no effect, because (1) all of its dispositive provisions were not dictated by Robert Short to the notary in the presence of the witnesses, nor (2) were all of the provisions written by the notary as dictated in the presence of Robert Short and in the presence of three witnesses, nor (8) were all of its dispositive provisions read aloud to Robert Short by the notary in the presence of three witnesses, observing all these formalities without interruption and without turning aside' to other acts, and these respondents admit that the said act of 19th April, 1888, is null and void, and pray that it be so decreed, and they deny all the other allegations of the petition of the said Margaret Short Moran, and they aver that the said Robert Short died intestate. * * * Now these respondents show that the writing of 29th December, 1888, purporting to be the last will and testament of Robert Short, is null and void and of no effect, not only for the fatal defects of form already alleged but also because he was. not of sound and disposing mind and memory at the time of the execution of the said instrument, and was insane at that time and was under the control of the will of another. They further allege that the writing purporting to be the last will and testament of Robert Short, passed before George W. Christy, is null, void and no effect, and should be so decreed, and the demand for its execution rejected.’1'

The answer, after enumerating a number of objections in the preparation of the will, closes by alleging that at the time of the making of the same Robert Short was not of sound and disposing mind andl memory; that he was insane and incapable of making a will. Ife then proceeds as follows: “ And these appearers assuming the attitude of plaintiffs in reconvention against Mrs. Margaret Short Moraru pray that her demand for the annulment of the will of 29th December, 1888, be granted, and that her demand for the establishment of the will of 19th April, 1888, be rejected, and said act be declared null and void and of no effect, and that it be decreed that Robert Short died intestate, and that your petitioners (naming each of the present plaintiffs) be recognized as his heirs.”

They prayed for citation to the attorneys of absent heirs, the various legatees, the executor of the will of April 19, 1888, and the executor of the will of 29th December, 1888, and that petitioners have judg _ ment in conformity to their allegations, and rejecting both wills.

Some of the parties cited submitted the issues raised in the pleadings of the plaintiff, Mrs. Moran, and of the reconventional demand to the decisions of the court; others filed general or special denials, or made special admissions, as their different interests dictated.

The District Court upon these issues adjudged the Zengel will null, but upheld that executed before Christy — dismissing the reconventional demand.

In his reasons for judgment, the.district judge disposed summarily of the Zengel will by the statement that “the will of December 29, 1888, is conceded by all parties to be of no effect.”

The succession of Robert H. Short has not been closed; it is still under administration in the District Court. The rights of parties have not yet been definitely ascertained and fixed. In the present proceeding the District Court upheld the validity of the Zengel will, which it had before pronounced of no effect — the judg3 in his judgment stating, as he did in his testimony taken in the case, that the first judgment was substantially, in his opinion, a consent decree; that acting upon that hypothesis he had not given the will the consideration and thought which he would have done had it been contested in the first as it was in the last case; that had the matter been presented to him originally as it was afterward, he would have sustained and not rejected the will.

The first position contended for by the plaintiffs and appellants is that the exception of prematurity filed by the defendants is not before us, it having been abandoned by consent.

The second is that “prematurity vel non of the action is not dependent upon whether the succession of Short has been or ever will be administered.”

The exception was not waived. The record entry states “ that by consent of counsel the exceptions are referred to be tried with the merits,” and the answer filed was “ under benefit and reservation of the exceptions.”

A consent that they should be “tried” with the merits does not, under such circumstances, merge them into the answer.

Were appellants’ contention in their first point true, they would have still to maintain the correctness of the second, which is “that their right of action arose when Mrs. Moran brought suit to annul the Zengel will and had the probate and the will set aside; that whether or not plaintiffs had established the amount of their loss was another question. That the act which occasioned their loss and gave .them a cause of action was the fault of the notary in failing to make a valid will.”

We do not think that the act of a notary in failing to comply with the formal requirements of the law in the preparation of a will, carrying with it as a result the rejection of the will, gives rise necessarily per se to an action against the notary by a party named as a legatee in the rejected will. The setting aside of the instrument would in many instances enure to the benefit instead of to the injury of the legatee. The ease at bar is itself an instance of the truth of this statement. The plaintiffs here, as heirs at Jaw of the deceased, would receive a large portion of his estate if he should be held to have died intestate, whilst the upholding of the will would take from the heirs the entire succession, leaving them special legatees for a trifling amount. But for the fact of the existence of the prior will of April 19,1888, plaintiffs’ obvious interests were that the Zengel will should be declared null, and even with the Christy will s anding between them and their position as legal heirs, they deemed the Zengel will an obstacle in the way of those interests, and sought by affirmative action to get rid of it.

Plaintiffs’ conduct indicated a rejection of the legacy made to them in the Zengel will. The attack upon that instrument was part of a general plan to get into position as legal heirs of Robert Short, through a repudiation of and setting aside of both wills.

We th nk that where a will has failed of probate by reason of the fault of a notary in the drawing of the instrument, a person who predicates an action upon that fact must also allege and prove injury. Injury must concur with error, and the extent of the injury would be the measure of the plaintiffs’ rights. It matters little practically in this case whether we deal with the question of prematurity from the standpoint of an exception taken to the action or that of a failure by the plaintiffs to allege and prove a condition of affairs giving rise to the action and entitling them to a judgment. There is no claim or pretention in plaintiffs’ petition that the succession of Robert H. Short has been settled and the rights of parties finally ascertained and fixed. It is true plaintiffs in one allegation aver as a conclusion that they have been damaged to the extent of their legacies, but there is no fact stated,' save the fact itself of the setting aside of the will and a declaration that the succession of Short is solvent, on which such a conclusion could be based. The solvency of the succession is anything but certain. We do not feel warranted in the present situation of the Short estate, and under the pleadings, in examininginto and adjudicating piecemeal upon the issues raised in this litigation. It will be time enough to do so as a whole when we will have to deal with facts and not conjectures.

What we say here has reference to. the claim set up on behalf of the minors. .

We. have enough before us to pass finally upon the claims of Arthur H. Murray, advanced individually by him, and those of Mrs. Juliette Murray, wife of Philip S. Jones. . ..- ,

We are of the opinion 'that those parties by seeking to avail them-: selves of. the alleged errors of the. notary against the other legatees under the Zengel will* and as part of a general plan .to get into position as heirs of Robert H. Short, should not, though their efforts proved futile by reason of the prior will, be permitted to subsequently turn back upon the notary, whose errors they had deemed beneficial and had sought to utilize in their own behalf as instruments.of attack. Plaintiffs cite us to .the principle announced in the decisions quoted in the American and English Encyclopedia of Law, Yol. 7, Note 2, Yerbo “Estoppel,” to-the effect-that parties are notbound by allegations unsuccessfully pleaded. We do not think that principle applicable to this case. It may be that--when parties attack-a will for fraud, for insanity, or on other grounds, and fail in their attack from resistance made,-they can still claim the benefit of any provision in their favor to be found in the will, as estoppel would meet estoppel, but we do not think- the doctrine goes to the extent .contended for here. We think it perfectly clear that it was the desire, the interest and the intention of the major heirs to free themselves from the effect of both wills. To that end in furtherance of that object they affirmed and adopted, and by so doing condoned, the errors (if such they were) of the notary. They can not be allowed to repudiate now as wrongful and injurious that which they had previously availed themselves of- and advanced and relied upon and sought to utilize as a basis for acquiring beneficial rights.

In examining the record we notice-that while Mrs. Juliette Murray, wife of Philip - S. Jones, was, by the Zengel will, made a legatee for five hundred dollars, she is by the '-Christy will a legatee for one thousand dollars. - .

For the reasons herein assigned it is ordered, adjudged and decreed that the judgment appealed be and the saméis hereby affirmed in so far as it -c oncerns Arthur H. Murray individually, and Mrs. Juliette Murray Jones, wife- of Philip -S. Jones. ■ .....

It is further ordered, adjudged and decreed that as concerns the minors Arthur Murray Dargan, Camelia Alice Dargan and Bertie Lucie McDonald, the judgment appealed from be and the same is hereby annulled, avoided and reversed, and it is now ordered, adjudged and decreed that there be judgment against the. said minors on their demand as in case of non-suit.

Miller, J., recused.

Rehearing refused.


source: Caselaw Access Project

author: Breaux, J.

license: Public Domain

text:
    No. 11,434.
    State National Bank of New Orleans vs. Pierre Lanaux and Theodore Venissat.
    On motion to dismiss an appeal, on tlie'grounds ofacquiescence in and voluntary-execution of the judgment,.this-court will not determine the question on ex parte affidavits filed first in this court in the absence of. admission, of their truth by the appellant, but will remand the case to the lower court, in order that evidence maybe heard and a record returned to this court for final action.
    APPEAL from the Twentieth District Court, Parish of Assumption. Guión, J.

      J. McConnell and H. E. Upton, of Counsel, for the motion:
    Acquiescence by appellant in the judgment appealed from defeats the right of appeal. 40 An. 201.
    On motion to dismiss, on the ground that appellant has acquiesced in the judgment, evidence of this fact can not be introduced before the Supreme Court; the case must be remanded to try that issue. 28 An. 572; 3 An. 115; 23 An. 37; 20 Am 574; 29 An. 576; 39 An. 225.
    No appeal can be taken by one who even partially executes the judgment. 28 An. 743; 18 An. 59; 18 An. 264; 4 An. 150; 14 L. 523; 37 An. 581.

      Beattie & Beattie of Counsel, Contra:

    It is settled jurisprudence that any waiver or renunciation of the right to appeal must be plain and unequivocal. Leggett vs. Peet ét al., l.La. 296; Yale & Co. vs. Howard, 24- An. 458; Johnson, Tutrix, vs. Clark & Meader, 29 .An. 762; Hoey & O’Connor vs. Brown, 29 An. 861; Verges vs. Sheriff, 33 An. 413; Jackson \s. Michie et als., 33 An. 727.

      Mere passive submission to a judgment or order of court is not acquiescence which prevents appeal.
    To preclude an appeal by acquiescence some act must be done; mere failure to act is not enough. C. P. 567.
    On Motion to Dismiss the Appeal.
   The opinion of the court was delivered by

Breaux, J.

The appeal was taken by Theodore Venissat, one of the defendants.

The grounds for the dismissal of his appeal are that the defendant and appellant, as well also as his co-defendant, who is an appellee, have acquiesced in the judgment or order of sale appealed from by permitting the order or judgment appealed from to be executed without objection, opposition or protest.

The appellee annexes exhibits to his motion, consisting of affidavits setting forth, substantially, that although present in the parish of Assumption at the date of-seizure of the property and at the date the plantation seized under the writ of seizure and sale was sold and adjudicated to the plaintiff, the State National Bank of New Orleans, the defendant and appellant, remained quiescent and offered not the most remote opposition.

That he was in the actual possession of the plantation at the date of seizure and when it was sold.

That the expenses of cultivating the plantation from the date of seizure were paid by the plaintiff bank.

That a short time after the adjudication to it, the bank sold the property to Ernest Roger.

That after the latter’s purchase, the defendant and appellant having continued to occcupy the dwelling on the plantation, he was notified to vacate.

He complied with the notice and delivered possession.

General averments are made by the opponents, all to the effect that the appellant acquiesced in the judgment.

Able counsel for the defendant and appellant have not presented any argument in opposition to the motion.

In argument, the- appellee, the bank, does not ask that these ex parte affidavits be passed upon by the court, but rely upon them in support of their application to remand the case. They also urge that other facts be heard prior to decision.

It occurs to us that the interest of the appellant in this appeal is not at all manifest.

Though we do not finally pass upon that question, we think it of sufficient importance to giye it some consideration in remanding the •case. It has generally been held that a sale under execution, after the delay for a suspensive appeal, passes title, though the judgment is subsequently annulled, on the principle that the destruction of a power does not carry with it the destruction.of the effect previously produced by the power.' Factors and Traders’ Insurance Company vs. New Harbor Protection Company et al,, 37 An. 233; Farrar vs. Stacey, 2 An. 211; Williams vs. Gollien, 1 R. 94; Baillie vs. Wilson, 5 M. N. S. 214.

It is therefore ordered- that the case be remanded to the lower court, with instructions to the judge to hear evidence contradictorily on the questions of acquiescence and send up the record thereof, according to law.

Rehearing refused.


author: Watkins, J.

text:
    No. 11,463.
    Walter A. Simonds vs. P. P. McMichael, Sheriff, et al.
    Whilst the stipulation in an act of mortgage that in the event suit becomes necessary for its enforcement the mortgagor is to pay attorney’s fees, and only on the happening of that condition are such fees due, yet it is the duty of the mortgagee to malic a timely legal tender of the principal and interest of the debt, in order to prevent the institution of suit, and save himself the payment of attorney’s fees.
    APPLICATION from the Sixteenth District District Court, Parish of Tangipahoa. Reid, J.

      Jos. A Reid Attorney for Plaintiff and Appellee.

      Stephen D. Ellis, James Legendre and Gug M. Hornor Attorneys for Albert Baldwin, Defendant and Appellant:
    .Injunction to restrain the executipn of an order of seizure and sale by the debtor only lies in cases prescribed by Article 739, Code of Practice. Dupré vs. Anderson, 45 An. 1114.

      Attorney’s fees form part of the' capital, so that when the face amount of the note only is paid, it can not be said that the claim is satisfied. The fees of the attorneys remaining unpaid have to be satisfied out of the proceeds. Zimmermann vs. Langles, 36 An. 65; Mullen vs. His Creditors, 39 An. 398; Levy, Jr., vs. Beasley, 41 An. 834.
    Ten per cent., stipulated in an act of special mortgage as attorney’s fees in case judicial proceedings are necessarily resorted to, is in the nature of damages and is covered by the mortgage, and the mortgagee is entitled to collect same, as well as the capital and interest of his debt, all being of equal rank and dignity. Succession and Community of G. Duhe, 41 An. 210.
    When the tender is for money due it must be made to the creditor himself, or at his actual or chosen domicile, by the debtor or his agent, in the presence of two witnesses residing in the place, by tendering to such creditor the sum which is due to him, with the interest and such costs as he may have incurred, and exhibiting such sum to him in the presence of such witnesses, in the current money of the United States. Code of Practice, Art. 407.
    It is not necessary to allege. or prove an amicable demand before suing out executory process. Renshaw vs. Richards, 30 An. 398; Roman vs. Denney, 17 An. 127.
    The mortgagee, with the pact de non alienando, may proceed against the original mortgagor, no matter how many transfers of the property have been made. Stevens vs. Pinneo, 26 An. 617.

      Joseph A. Reid Attorney for Appellee asking a rehearing:
    The'only reasons no appearance was made for plaintiff and appellee were that the attorney for plaintiff was waiting to see the brief of defendant, with which he was never served until March 16, 1893, and the return day for appeals from Tangipahoa parish to this Honorable Court conflicts with the return day of the Circuit Court of Appeals to that tribunal.
    This appeal was not suspensive, and plaintiff’s attorney believed himself entitled to a copy of appellant’s brief before submitting his own.
    This court is without jurisdiction; the amount in dispute is not over three hundred and fifty dollars.

      The peremptory refusal of an offer to pay dispenses with the actual production of the money in the-presence of witnesses as required by Art. 407, O. P. No one is required to do a vain thing. 26 An. 453; 12 An. 793; 0. P. 413.
    To make a tender valid it is only necessary to place the money in the creditor’s power. 12 An. 246.
    The law does not require the idle ceremony of a tender where the creditor refuses payment, such refusal implying a waiver of it. 7 M. 218; 36 An. 68; 1 La. 273; 30 An. 383; 4 An. 344; 27 An. Ill; 27 An. 210.
    There was no necessity for any suit and no attorney’s fees are due. 36 An. 70.
   The opinion of the court was delivered by

Watkins, J.

This is an injunction suit against an executory proceeding in the enforcement of a special mortgage on property of which the plaintiffVlieges himself to have been in the actual and undisputed possession, under duly recorded titles, at the date of and antecedent to the seizure of the creditor.

The grounds on which his injunction is predicated are: (1) That he had not been judicially notified, prior to the issuance of the writ of seizure and sale, to pay the debt of the original mortgagor; (2) that no copy of the petition for and order of seizure and sale was served on him anterior to the seizure, notwithstanding he had specially assumed to pay this mortgage indebtedness as a part of the purchase price; (3) that the original mortgagors have been discharged from the payment of. said indebtedness, and are not necessary or real parties to the executory proceedings, and he has not been made a party to the same; (4) that the plaintiff in executory proceedings made demands of him by letter for the payment of the mortgage note, and he directed its presentation at the counter of a certain bank in the city of New Orleans, La., for the payment of the principal and-interest, and this offer was declined, because he had not directed and requested the payment of ten per cent, attorney’s fees, he disclaiming that any attorney’s fees were, at the time, due, the recital of the act of mortgage being that ten per cent, attorney’s fees were only due in the event of suit becoming necessary.

He avers his readiness and willingness to pay the capital and interest of the note at any time.’

Setting out a state of circumstances indicating that the suit was vexatious, he claims two hundred dollars attorney’s fees, and five hundred dollars for wanton injury inflicted by the seizure of his property; and his prayer is for a judgment for said amounts and the perpetuation of his injunction.

The answer of the seizing creditor is a general denial, coupled with the special averment that he has sustained damages to the extent of two hundred and fifty dollars, in attorney’s fees, occasioned by his wrongful injunction. His prayer is for the dissolution of the plaintiff’s injunction, with two hundred and fifty dollars for attorney’s fees and twenty per cent, statutory damages.

On the trial there was judgment in favor of the plaintiff, perpetuating the injunction as to the ten per cent, damages claimed in the executory proceedings; but same was dissolved, in all other respects the cost of suit being put on the seizing creditor, as defendant.

It is from that judgment that the defendant has appealed.

In this court the plaintiff and appellee has made no appearance; has filed no answer;' consequently, the controversy is limited to the claim of the appellant.

In brief and argument appellant’s counsel make the point (1) that no cause is assigned for an injunction conformable to O. P. 739, and for that reason the injunction must be dissolved; and (2) that he is, under the law, entitled to the attorney’s fees stipulated in the act of mortgage; also to one hundred dollars special damages for attorney’s fees, and twenty per cent, statutory damages.

I.

On the first point appellant places reliance on the provisions of 0. P. 739 as interpreted by this court in Dupre vs. Anderson, 45 An. 1114. True it is that they sustain his view, but it was his duty to have accepted, preliminarily, on that ground; for had he done so the plaintiff’s injunction would have been dissolved. But the defendant, having elected to join issue with the plaintiff by answer, is necessarily restricted to those issues.

II.

On the second proposition the evidence shows that the plaintiff had sufficient money to his credit in the Bank of Commerce of New Orleans to cover the principal and interest of the note, as well as the attorney’s fees stipulated in the act of mortgage; bnt it fails to show a legal tender to the mortgagee of the amount of the capital and interest of the mortgage debt sued on, notwithstanding he had, antecedent to suit, expressed a willingness to pay that amount, though the attorney of the mortgagee declined to accept same in full discharge, insisting on the payment of the ten per cent, that is stipulated in the act of mortgage as attorney’s fees.

That stipulation is as follows, to-wit:

“ In ease it shall become necessary to institute legal proceedings for the recovery of the amount of said notes, or any part thereof, the said purchasers do hereby bind themselves to pay the fees of the attorney who may be employed for that purpose, which are fixed at ten per cent, on the amount which may be sued for.”

On this presentation of fact we are clearly of the opinion that plaintiff has become liable for the amount of attorney’s fees stipulated in the contract.

At the same time we think it clear that he was not liable or responsible for those fees previous to the institution of legal proceedings, and that he could have discharged himself from their payment, by making a seasonable legal tender in conformity to the provisions of Article 407, Oode of Practice. Zimmerman vs. Exrs. of Langles, 36 An. 65; Mullen vs. His Creditors, 49 An. 397; Levy vs. Beasley, 41 An. 832; Succession of Duhé, 41 An. 209.

Notwithstanding the plaintiff’s expressed willingness to pay the debt and interest, leaving, as the only matter in controversy between the parties, at that time, the claim of the mortgagee’s attorney for his fees, yet he met the mortgagee’s executory proceedings with an injunction based on various other grounds, that were ruled against him on the trial, and he has apparently acquiesced in the judgment.

III.

Though proof was adduced in support of defendant’s claims for attorney’s fees as damages sustained in this suit, in consequence of procuring the dissolution of the plaintiff’s injunction pro tanto, yet it is limited to one hundred dollars, and for this amount judgment was pronounced in his favor in the lower court. This court has repeatedly held that damages will not be allowed on the dissolution of injunction, except in cases when execution to enforce moneyed judgments are enjoined. Gunn vs. Reagan, 32 An. 974; Morris vs. Bienvenue, 30 An. 878; Verges vs. Gonzales, 33 An. 410; Boyer vs. Sheriff, 40 An. 657.

It has also been repeatedly held that when a writ of seizure and sale is arrested by injunction which is afterward dissolved, the seizing creditor can not obtain his damages by the judgment dissolving the injunction, but must bring an action on the bond.

An order of seizure and sale is not a moneyed judgment, in the sense of Article 304 of the Code of Practice. Dejean vs. Hebert, 31 An. 729; Thompson vs. Lemlee, 32 An. 932; Burgess vs. Gordy, 32 An, 1296; Hodgson vs. Roth, 33 An. 941.

In terms, the code declares that, in case the injunction is dissolved, the plaintiff shall be condemned “ in the same judgment * * * to pay to the defendant interest, at the rate of ten per cent, interest on the amount of the judgment.” Article 304. Hence we can not award the defendant the twenty per cent, he demands — this injunction being directed against an order of seizure and sale — but we are powerless to so alter or amend the judgment in respect to the plaintiff who has not appealed, and has not joined issue with the defendant in his appeal. Laloire vs. Wiltz, 31 An. 436; White vs. Baptist Church, 31 An. 521; Succession of Forestall, 32 An. 97.

The judgment appealed from must be so amended as to award the seizing creditor ten per cent on the amount of the mortgage debt that is sought to be enforced, as attorney’s fees.

It is therefore ordered and decreed that the judgment appealed from be so amended as'to allow the defendant, as seizing creditor, the sum of ten per cent, on the amount of the principal and interest of the mortgage debt, as attorney’s fees; and that as thus amended, same is affirmed, at the cost of the plaintiff and appellee in both courts.

Rehearing refused.


text:
    No. 11,356.
    Thomas Egan, Jr., vs. Charles M. Fush.
    It is moro than doubtful whether a sequestration will lie antecedent to the maturity of the debt sued on in any case except that indicated in Code of Practice, Art. 275, par. 6.
    Conceding m'guendo that the dismissal of an original petition does not necessarily dissolve a sequestration issued under it, and that the status quo of a seizure under it may be saved by a supplemental petition subsequently filed, yet, in order that same be rendered efficacious, it must be sworn to.

      3. That in ease the original suit anti sequestration have proceeded on the theory that the debt is due at time of filing, a supplemental petition alleging the new and' substantial fact that the debt has become clue since the sitit toas filed changes the-substance of the original demand in an important particular.
    PPEAL from the Oivil District Court for the Parish of Orleans. Ellis, J.

      Frank MoGloin for Plaintiff and Appellee:
    Objections to a writ of sequestration must be specially pleaded anda defendant can not advance new objections on appeal. Wells vs. St. Dizier, 9 An. 119.
    One having a special mortgage or privilege upon property can, for-proper cause, sequester same before the maturity of his.debt. 14 La. 581; 17 La. 209; 4 An. 184; 23 An. 578; 23 An. 612.
    Where a creditor has a special privilege upon particular property he-is entitled to sequester same upon merely swearing that he fears the removal, etc., of same. O. P. 275; 40 An. 825. This rule applies whether the debt be due or not.
    Conservatory writs are strioti juris, but the courts can not impose conditions other than those established by the Legislature. Creditors entitled to sequestrations are not required by the Code of Practice, Art. 275, to do more than to swear to their-own fears. 40 An. 825.
    Where a creditor has sequestered before the maturity of his debt, he may, upon the arrival of the date of maturity, file a supplemental petition demanding judgment in personam. 17 La. 209; 23 An. 612.
    The sale of the property affected by the privilege, in whole or substantial part, without paying or securing the debt, warrants the-issuance of the writ of sequestration. 35 An. 488; 39 An. 761.
    Non-payment of the debt, at maturity, justifies the sequestration. 40 An. 825.
    While a writ must stand or fall according to the conditions at the time of its issuance, yet where the intentions of the debtor are matters of inquiry, his conduct immediately subsequent may be looked to with a view to ascertainment of such intent.

      W. S. Parkerson Attorney for Defendant and Appellant:
    Sequestration must depend upon the state of facts existing at the inception of suit.

      Suit brought upon an obligation not due must be dismissed.
    An amendment setting up facts, arising since the inception of suit, and changing the substance of the demand, will not be allowed.
    •Sequestrations like attachments are strictissimi juris, and every detail must be complied with, otherwise proceedings will be stricken with nullity.
    Petition being dismissed for prematurity, the supplemental petition not being allowable, there is no suit, and the sequestration must be dissolved.
   The opinion of the court was delivered by

Watkins, J.

Suit was filed on the 23d of February, 1893, upon a ¡promissory note maturing on the 18th of March following, accompanied by a writ of sequestration.

On the 27th of February following, the defendant moved to dissolve the sequestration upon two grounds, to-wit:

First, that the allegations of the petition are untrue.

Second, that the debt sued on was not due at date of suit.

On the 2d of March thereafter, defendant filed an exception of prematurity and no cause of action.

On the 9th of March the plaintiff filed a supplemental petition, ¡setting up the maturity of the note sued on since the filing of the •original petition.

On the 20th of March, 1893, the defendant filed an exception to the ¡supplemental petition, on the ground that it changed the substance •of the demand of the original petition, and was consequently inadmissible.

On the trial the exceptions were overruled as to the supplemental ¡petition, the original petition was dismissed and the sequestration .allowed to stand — the court a qua treating the supplemental petition, in personam, filed after the maturity of the note, and several ■ days subsequent to the making of the affidavit, as the inception of •.the suit.

Subsequently the defendant filed an answer, reserving the benefit • of his exceptions, and the cause went to judgment in favor of the plaintiff for the amount of his debt, sustaining the writ of sequestration, and enforcing the vendor’s lien.upon the property seized, and .the defendant has appealed.

From the foregoing analysis of the pleadings and issues in this’ case, it is evident that the determinative questions are, first,, whether the sequestration should have been dissolved on account of the alleged prematurity of the suit; second, whether the plaintiff’s supplemental petition changed the substance of his original demand.

Reference to the petition discloses that suit was filed on the 23d of February, 1893, upon an unconditional obligation of the defendant, bearing date September 1, 1892, and maturing on the 1st of March following. That the prayer thereof is, “ that, after due-proceedings, there be judgment in favor of petitioner and against, (the defendant) in the full sum of two thousand six hundred and' sixty-six dollars and sixty seven cents, with vendor’s privilege on the property described, and interest as claimed at eight per cent.,”-1 etc.

Alleging his vendor’s lien upon certain movable property described as being in the defendant’s possession, and swearing that affiant fears that (the defendant) will conceal, part with, or dispose of” same during the pendency of the suit to the prejudice of hi» vendor’s lien, the petitioner claimed and obtained a sequestration--

On this showing there is no doubt that suit was filed before the debt became due, and that an absolute and unconditional judgment was prayed for before same went to its maturity. Consequently, the exception of prematurity was well grounded, and1 the original petition was correctly dismissed by the judge a quo.

But just here the two preceding contentions enumerated arose in the court below — the judge maintaining the sequestration and holding the supplemental petition to be consistent with the original petition, and the inception of the suit.

I.

Was the sequestration properly issued, or correctly maintained— the original petition having been dismissed?

The supplemental petition was filed on the 9th of March, 1893, subsequent to the maturity of the debt, and also to the filing of defendant’s exception of prematurity. It does not contain the reiteration of all the averments and charges of the original petition and is, unaccompanied by any additional averment to the effect that the cause for the issuance of the writ of sequestration continued to exist, and no additional affidavit was made, order obtained, or bond given in connection therewith. There is no provision of the Code of Practice which authorizes the issuance of a writ of sequestration before the debt secured becomes due, as in a case of attachment and provisional seizure. O. P. 275 et seq., 244, 287.

But in such case the code makes special allegations in the petition and accompanying affidavit necessary and. essential. For instance, in reference to an attachment, its requirement is “ that in cases where the. debt or obligation is not yet due, such an attachment may be granted * * * and it shall be lawful for any judge * * * to order a writ of attachment to issue whenever said judge shall be satisfied * * - * of the existence of said debt * * * and swears that said debtor is about to remove his property out of the State before said debt becomes due” etc. O. P. 244.

In reference to a provisional seizure its requirements are “that it shall be sufficient to entitle a lessor to obtain said W'rit to swear to the amount which he claims, whether due or not due, and that he has good reasons to believe that said lessee will remove the furniture or property on which he has a lien or privilege out of the premises, and that he may be thereby deprived of his lien,” etc. C. P. 287.

. But these provisions are restricted to the issuance of the two conservatory writs mentioned, and do Dot apply to the main demand for the debt of the defendant. Olearly, it is contemplated by these •articles that the fact must be set out affirmatively that the debt declared upon is not due at time of filing of the suit, accompanied by the formal and specific allegation of the other facts mentioned therein as rendering the process necessary antecedent to the maturity of debt. These provisions are exceptional, and to be strictly construed, and not to be extended to any other cases not covered by them.

There is no corresponding provision of the code applicable, in terms, to the issuance of a writ of sequestration prior to the maturity of the debt sued upon; though this court has so interpreted paragraph 6 of Article 275 of the code, as to warrant its issuance prior to the maturity of the debt, in an exceptional class of cases, not including •the instant case.

The language of this paragraph is as follows, viz.:

“A creditor by special mortgage shall have the power of sequestering mortgaged property when he apprehends that it will be removed out of the State before he can have the benefit of his mortgage, and will make oath of the facts which induced his apprehension.” ,(Our italics.)

In Neilson vs. Pool, 17 La. 209, this interpretation was placed upon the provisions of that article. The note sued on in that case became due on the 1st of December, 1839, and suit was commenced on the 3d of September preceding — plaintiff alleging that his debt was not then due, and that same was secured by a mortgage and privilege on. the defendant’s crop, whie.h he verily feared and believed it was his intention to “ remove beyond the jurisdiction of the court, and out of the State before his debt becomes, due, and deprive him of the only security he has for the payment of his debt.” And his prayer was that the crop be sequestered, and that he have judgment for the amount of his note, when same fell due, recognizing his mortgage and privilege.

The court states, that “ on. 1st of February, 1840, a .supplemental petition was filed setting forth the same facts and containing the same allegations, except as to the sequestration, which had been already obtained, praying for judgment on the note, with a privilege or.lien on the crop,” etc, . . ,

On these averments a judgment by default was taken, upon the original and amended petitions, and subsequently the defendant filed an answer, one averment of which was to the effect that the suit was premature and the sequestration without cause.

But these defences did not prevail, and judgment went against the defendant on his note and mortgage, recognizing and enforcing the plaintiff’s lien on the crops sequestered.

In the instant case no mortgage is alleged, and neither the plaintiff’s petition nor affidavit contains any averment that the defendant’s intention was to remove the property on which he claims a privilege “ out. of the State before his debt became due.”

The case of Gardner vs. Shipley, 4 An. 184, was predicated upon allegations quite similar to those quoted.from Neilson vs. Pool, and thereto a similar exception of prematurity was urged and with like results; and the court in its opinion said:

“The argument presented by the opposite party is that the debt being unmatured could not be sued for, and the right to a sequestration, being a mere accessory right, must follow the fate of the principal demand. The text of the law does not require, in terms, that the debt secured by the mortgage or privilege should have matured; (but) certainly its spirit is conservative, and, in our opinion, embraces the present case”; — citing with approval the case of Neilson ys. Pool.

But it is necessary in order to sustain a writ of sequestration under the cited article of the code, that its requirements be rigidly and closely pursued; for it was held in Clark vs. Glover, 14 La. 266, that an affidavit stating that the plaintiff “ fears (that) the defendant may remove the mortgaged stock out of the jurisdiction of the State” is insufficient to obtain an order of sequestration; that it “ should state the facta which induce his apprehension.”

In that case the property sequestered was a slave, and “ the alleged ground for obtaining this order was their apprehension that the slave would be removed out of the State,” and the sequestration was dissolved because of the insufficiency of the affidavit.

The court adhered to the doctrine of the above cited cases and quoted them approvingly in Bres, Executor, vs. Booth, 1 An. 307, and held that “to entitle a plaintiff to sequester mortgaged property, on the ground of his apprehension that it will be removed out of the State before he can have the benefit of his mortgage, he must make oath to the facts which induce his apprehension. It is not sufficient to swear that he apprehends the removal.” C. P. 275, paragraph 6.

It is evident, that while maintaining writs of sequestration issued under the provisions of that particular paragraph, prior to the maturity of the debt, for the reason that such is believed by the court to be the spirit of the law, it intended to require of litigants the strictest adherence to the requirements thereof in procuring same, and not to extend that relief to any other class of cases arising under other provisions of that article. Because the court was evidently not unmindful of the safe and conservative rule that has constantly been adhered to, that a sequestration can only issue when a party is clearly entitled to it, and it is expressly allowed. That it is a harsh remedy and not to be extended by implication to cases not contemplated by law. 4 R. 462; 2 An. 961; 6 An. 444; 9 An. 535; 2 An. 826; 4 An. 452; 37 An. 552, Pasley vs. McConnell.

The rule announced in the foregoing cases was again recognized in Catlett vs. Heffner, 23 An. 578, in which the court held that a sequestration may issue in accordance “with Article 275, C. P., but the suit can not be instituted before the maturity of the obligation.”

In that case suit was filed on the 26th of November, 1868, to enforce the collection of a note maturing on the 1st of January following. The petition alleged the existence of a mortgage to secure the debt, and the prayer of the petition demanded the issuance of a sequestration at date of filing suit, and an absolute judgment for the amount of the debt. To this petition the defendant tendered the exception of prematurity, and moved to dissolve the writ of sequestration; but same were overruled.

This court was of opinion that the plea of prematurity should have been sustained, and the court said:

Because the plaintiff, under the state of facts contemplated by Article 275, C. P., may sequester the mortgaged property to prevent its removal from the State 1 before he can have the benefit of his mortgage,’ whether the same be due or not due, does not give him greater rights than the mortgage gave, or the debtors have consented he should have, as to the time at which he may enforce payment.”

A like opinion was entertained in Duncan vs. Wise, 39 An. 74.

An attentive examination of adjudicated cases has not enabled us to discover one in which a writ of sequestration was permitted to stand, when issued prior to the maturity of the debt, in any other class of eases than the one mentioned in the cases cited, and then only on compliance with the requirements pointed out in the statute. It is evident that the plaintiff has not brought his case within those requirements, the averments of his petition not definitely fixing the date his debt went to maturity, though his prayer is for an absolute, unconditional judgment; there is no allegation that his debt was secured by mortgage, or that he apprehended that the property on which he has a privilege was about to be removed out of the State during the pendency of the suit.

The case of Warfield vs. Oliver, 23 An. 612, is relied upon as sustaining the proposition that the filing of a supplemental petition is the real commencement of the suit, and relates back to date of filing the original suit, and will maintain a writ of sequestration in statu quo, notwithstanding the original petition be dismissed on an exception to it as premature.

That case is not, however, in point, because the suit was brought upon a series of notes for rent, a part of which were due and a part not due; and defendant’s exception was directed at those not due, and same was only to that extent sustained. Consequently, the writ was not dissolved as to the notes that were already due at time suit was filed. But in the instant case suit was brought on a single-note, which was not due, although absolute judgment is demanded on it. This allegation an.l accompanying prayer rendered defendant’s exception necessary, and caused the dismissal of the suit-in its entirety.

That such is the fate of a suit prematurely filed is attested by the opinion of our predecessors in Merz vs. Judge, 31 An. 120.

The case of Catlett vs. Heffner, 23 An. 577, is somewhat similar to-the Warfield case, though instituted upon a single note not due, and secured by a special mortgage — thus relegating it to the exceptional class above mentioned. In that case the exception of prematurity was sustained, the suit dismissed and the sequestration dissolved.

In the ease of Barrier & Bro. vs. Fiste, 9 An. 535, a sequestration was obtained of goods on which the plaintiffs claimed a vendor’s-lien — but no mortgage — the suit being founded on two notes thereafter to become due. To this suit land sequestration the defendant-excepted, i( on the ground that no case had been made by the pleadings and affidavits to authorize such remedy, and they also excepted-on the ground of its prematurity.”

The exceptions were sustained, the suit dismissed and the sequestration dissolved. On appeal to this court the judgment of the District Court was affirmed — the court simply stating that the District Court took a correct view of all the questions raised by the appellants.”

That case is exactly in point. Like the instant one it was brought on notes not due and secured by a vendor’s lien. Upon the defendant’s exception of prematurity the suit was dismissed and the sequestration dissolved.

This is the same exception and relief that is demanded on the part of the defendant. The two cases — that of Barrier and the instant one — are exactly parallel.

After diligent search we have been unable to find any decision of this court wherein that case has been overruled or a contrary doctrine maintained.

But while there seems to be no escape from the conclusion that the defendant’s exception was well taken and should, in keeping with our jurisprudence, have been maintained in toto, yet, without pledging this court unalterably to this view, we are of opinion that we may safely place our decision upon a different footing, equally as fatal to the plaintiff’s sequestration.

It is that the plaintiff made no oath to his supplemental petition, procured no additional order and obtained no new writ of sequestration. ,

On the authority of Lehman vs. Truxillo, 32 An. 65, an affidavit accompanying a supplemental petition is a sine qua non to the maintenance of a writ of sequestration issued under the original petition, and for the preservation of the status quo after the dismissal of the original petition. Eor “the supplemental petition,” say the court, “set up the new and important fact that some four hundred dollars more were due plaintiff than the amount claimed in the original petition. These petitions should, therefore, have been sworn to,, and new orders and new writs granted under them.”

Inasmuch as no affidavit was made to the supplemental petition-the sequestration was dissolved.

The same view was entertained and enforced in Gumble vs. Beer,. 36 An. 487 — a case of sequestration in the enforcement of a vendor’s-lien securing a debt past due. In the last case there was an affidavit-accompanying the supplemental petition, but no new order was obtained, and the court held that it was unavailing and superfluous.-

In the instant case the supplemental petition simply alleges the-fact of the debt sued upon having reached maturity since the suit was filed, entitling plaintiff to judgment. This averment was of far greater importance to the plaintiff than that of the supplemental petition in the Lehman case, claiming only an additional sum of four hundred dollars. But it was not accompanied by any new or-additional affidavit, order or writ, and no averment is made of the eantinued existence of the causes for which the original writ was issued.

Considering the well-grounded and ancient rule of our jurisprudence, that sequestration is a harsh remedy and must be construed and determined by the condition of things existing at date of issuance, the conviction is clear that the writ issued in the instant case must be dissolved at plaintiff’s cost, for the reason that the plaintiff has failed to observe some of the essential requisites for its maintenance.

II.

But, in any event, we regard the defendant’s exception to the supplemental petition good, same being that it changed the substance of his original demand by alleging that the note sued on had become due since the institution of the suit, whereas the demand of his original suit was predicated upon an obligation as already due, and upon which demand prayer was made for an unconditional judgment.

In Bank vs. Moss, 41 An. 232, a case of attachment on a debt not due is presented, and to which the defendant tendered an exception of prematurity.

Pending the trial of the exception, the plaintiff tendered and caused to be filed a supplemental petition setting out the fact, as alleged in the supplemental petition in the instant case, of the debt having become due since the suit was filed.

Of this suit and exception the court say:

“ The motion to dissolve was filed on the 8th of November, 1887, and plaintiff’s right to its attachment was therefore at issue when the amended petition was filed. It thence follows that it can not be considered if it contains any substantial averment on the issue of the attachment which was not to be found in the original petition.

“By reference to the latter it will appear that neither of the drafts had matured at the date of attachment, or of the filing of the petition, while in the amended petition it is distinctly alleged that all four of the drafts had matured. * * *

“The state of things thus disclosed is as widely different from the position contained in the original pleadings as light differs from darkness.

“ In other words, everything which, under law and jurisprudence, was lacking to justify the proceedings by attachment in the original pleadings is supplied by the lapse of time and by the happening of subsequent events, through the proposed amended petition. * * *

“ From the very nature of things the events and proceedings therein described would not have a retroactive effect, so as to make it appear, on the 23d of September, that maturities to occur in October and November and December following had already taken place.

“ To argue against the allowance of such amended pleadings, under the restricted issue to be herein discussed, is, after all, labor to prove a self-evident proposition. Hart vs. Bowie, 34 An. 325.”

On the theory of that opinion, there can be no doubt of the supplemental petition in the instant case changing the substance of the demand in the original petition, for the stronger reason that the debt is alleged to be due in the original petition and absolute judgment is prayed for, while in the supplemental petition the allegation is made that the debt became due since the filing of the suit — the two substantial and necessary allegations being in conflict.

Hence the defendant’s exception to the supplemental petition was well grounded, and should have been sustained.

A very careful consideration of this ease in all of its bearings has led us to the following conclusions, viz.:

First, that it is more than doubtful whether, in this class of cases, a sequestration is at all permissible antecedent to the maturity of the debt.

Second, that, conceding arguendo that the dismissal of an original petition does not necessarily dissolve the sequestration, and that the status quo of a seizure under it may be saved by a supplemental petition subsequently filed, yet, in order that same may be rendered efficacious, it must be sworn to.

Third, that in case the original suit and sequestration have pro - ceeded on the theory that the debt is due at time of filing, a supplemental petition alleging the new and substantial fact that the debt has become due since the suit was filed changes the substance of the original demand in an important particular.

Being satisfied of these propositions, the plaintiff’s sequestration can not stand; the supplemental petition must be dismissed.

It is therefore ordered and decreed that the judgment appealed from be reversed, and it is further ordered that the plaintiff’s suit and sequestration be dismissed at his costs in both courts.

Rehearing refused.


author: Miller, J.

text:
    No. 11,455.
    Henry Bryant vs. Mrs. E. R. Stothart.
    Tie dissolving condition in the contract of sale can not be enforced when the plaintiff in the suit represents only part of the price remaining due. Civil Code, Arts. 2045, 2046; Leflore vs. Oamors, 7 An. 67; Castle vs. Eloyd, 38 An. 589.
    In the action to dissolve the sale for non-payment of the price, tender to the purchaser of the price he has paid is a prerequisite for maintaining the action and hence can not be dispensed with, on the ground that the purchaser’s liability for the revenues compensates the price to be returned by the vendor. George vs. Knox, 23 An. 354; McDowell vs. Taylor, 14 An. 729; McKenzie vs. Bacon, 43 An. 534; 21 An. 425.
    APPEAL from the Ninth District Court, Parish of Red River. J.

      J. O. Egan for Plaintiff and Appellant:
    'This is a suit under Art. 2561 of the 0. O. to enforce there solutory condition in a contract of sale and have its dissolution decreed for the non-payment of the purchase price. To have the sale dissolved for the failure on the part of the vendee to comply with her obligation to pay the purchase price, and to have the vendor restored to the title and possession of the property.
    •The vendor claims the fruits or revenues, at eight hundred dollars per annum, its rental value for three years, the time he will necessarily he out of the use of his property, before he can obtain a judgment of this court restoring him to the ownership and possession. He claims one thousand dollars for loss, consumption and deterioration of personal property, and asks that these amounts be allowed as a credit upon a liquidation and settlement between himself and his vendee. To compensate and offset the amount paid by Mrs. B. R. Stothart (one thousand seven hundred and eighty dollars) and that he have judgment against her for such amount, if any, as may be found due, after allowing her this credit of whatever may be shown due her for improvements.
    A clear and concise statement of the object of the demand and nature of the title or cause of action on which it is founded is all that the law requires. 0. P., Art. 172. Where facts are wholly within the knowledge of the defendant, she can not require them to be set forth in plaintiff’s petition. The law requires impossibilities of no one. Gross on Pleading, Sec. 17, p. 95, and authorities there cited.
    ‘The action for a dissolution where a suit is necessary to enforce the resolutory condition is a putting in mora, as it may be met by paying the price, and the judge may even grant time for that purpose. This is not an action of rescission and is not in the cases provided for as contemplated by Art. 1912 of R. O. 0. 28 An. 740; 15 An. 518; 40 An. 157: 23 An. 335.
    ■Plaintiff is entitled to fruits from day of sale. 0. O. 2045, 2041; 31 An. 635 ; 38 An. 766; 31 An. 67; 35 An. 112.
    .‘The stipulation.jpowr autre in order to have.any binding effect, must be accepted by the party in whose favor it is made. 5' R. 514; 3 N. S-. 211; 22 An. 362. ....
    .No tender is necessary where plaintiff does not owe defendant. The payments can be offset against the rents. 41 An. 6; 43 An. 534.

      J. F. Pierson Attorney for Defendant also appealing. ■
    •0. 0. 2565 (2543) contemplates a real diminution of value in the thing sold in consequence of waste or deterioration caused by the acts or-neglect of the buyer during the time of his possession. It is inapplicable to a general fall or depreciation of property. Bourgeat vs. Smith, Syndic, 16 La. 470.
    The resolutory condition can be enforced only by the person or persons representing the whole price. One representing only a portion of the purchase price due can not restore the status quo, or resolve the sale. Swan vs. Gayle, 24 An. 501; Oastle vs. Eloyd, 38 An. 589, 593; Leflore vs. Carmors, 7 An. 67.
    The resolutory condition implied in the contract of sale can not be enforced without restoring to the buyer the purchase notes outstanding and such portions of the purchase price as the buyer has paid on the property. This is a condition precedent. Walden vs. Bank, 2 Rob. 179; Lee vs. Taylor, 21 An. 514; George vs. Knox, 23 An. 355; Heirs of Oastle vs. Eloyd, 38 An. 587; Wilmot & Oo. vs. Steamer Ouachita Belle, 32 An. 610; Heirs of Burney vs. Ludeling, 41 An. 632.
    Where this exception is not specially pleaded in the lower court, or where it is so pleaded in the lower court but waived on appeal in the Supreme Court, the exception will not be made or sustained by the Supreme Oourt on the appeal. McKenzie vs. Bacon, 40 An. 167; Ware vs. Berlin, 43 An. 534.
    The law is well settled, not i'only by the textual provisions of the code, but by repeated decisions of the Supreme Oourt, that in all cases of rescission, the party seeking relief must first offer to restore his adversary to the situation he was in before the contract. McDonald vs. Vaughan, 14 An. 728.
    It is necessary to put defendant in default in order to render the resolutory condition available. Poydras vs. Turgeau, 14 La. 37.
    ‘ The restoration or offer by the seller to restore the portion of the price paid by the buyer is a condition precedent to the seller’s rights to claim damages, fruits or revenues from the buyer on account of the property, and this obligation by the seller can not be offset by claims for damages, fruits or revenues from-the buyer. Until the seller returns the price paid he can not claim the property back nor any damages, fruits or revenues from the buyer on account of the property.
   The opinion o£ the court was delivered by

Miller, J.

The plaintiff seeks to dissolve for non-payment of the price the sale of a plantation sold by him to the defendant. The terms on which the property was sold were: A cash payment, two notes of defendant for the credit portions of the sale, and the assumption by defendant of certain notes of plaintiff. At the date of the institution of this suit the plaintiff had received the cash payment ; the defendant had also paid one of the notes and made payments on account of the others assumed by her. The price was eight thousand one hundred and twenty-one dollars. Defendant’s payments are stated in the brief filed in her behalf at two thousand one hundred and one dollars; the plaintiff’s brief makes’ the amount less, but the difference is unimportant. There were outstanding and unpaid, when the suit was brought, two notes held by plaintiff, amounting to two thousand four hundred and eighty dollars, excluding interest, and three thousand five hundred and forty dollars of notes assumed — all held by the American Freehold Mortgage Company of London, named in the act of sale in which defendant assumed payment of the notes. One of the outstanding notes held by plaintiff, and some of the outstanding notes held by the Loan Company, had matured when the suit was brought. The default on these matured notes was the basis of the suit. The petitioners claimed the dissolution of the sale; that defendant be condemned to pay for alleged depreciation and consumption of the personal property attached to the plantation at the time of the sale and for diminished value of the plantation, and besides judgment is asked against defendant for the fruits of the property since the sale.

The defendant filed various exceptions — among others, that there had been no tender by plaintiff of the part of the price paid by her, and that plaintiff, entitled to demand only part of the price still due, could not enforce the dissolving conditions. The exceptions overruled, the defendant, answering, combated plaintiff’s demand for the dissolution of the sale, or the liability of defendant, in case the sale was dissolved, for the amount claimed in the petition. The case was tried by a jury, and there was verdict and judgment dissolving the sale, condemning the plaintiff to pay rent, and that plaintiff restore the price paid out for the improvements. Both plaintiff and defendant appeal.

The exception that plaintiff represents only part of the price still due first engages attention. The dissolving condition accomplished in the contract of sale places the parties as they stood before the sale. The vendor takes back the property. The purchaser is restored the price he has paid, and is entitled to a complete discharge for any part of the price he has not paid. Can this last result i. e., the discharge of the purchaser — be attained in this suit? If not, 'the action fails. Under the contract, the notes of the plaintiff given to the loan company were to be paid as part of the price, and for this payment the defendant became bound. Part of these notes are unpaid, and held by the company. The company does not join in this suit. It is made a defendant. Answering, the company disclaims interest in the controversy; avers the mortgage granted by plaintiff to secure its notes; recites the subsequent sale of the mortgaged property to defendant; alleges that, advised the defendant was to make the remaining payments on the notes, it notified both plaintiff and defendant of these payments as they matured; avers the company never formally accepted defendant as the debtor, and the answer closes with reserving all rights under the mortgage.

We notice the plaintiff’s argument that the company never accepted the assumption by which defendant bound herself for the notes held by the company. But, as stated, the company gave defendant notice of the payments as they matured. That would avail as anaceeptance. Besides such a stipulation may be accepted at any time, unless by some act of the creditor it is barred. If it had been intended by the company, by its answer in this suit, to discharge the defendant, it is to be presumed that purpose would have been expressed. But the answer, guarded in its terms, stops short of a discharge. It is therefore our conclusion that the defendant may be still held to the company on the assumption. The plaintiff, however, tenders a bond to secure the defendant against any demand of the company. If defendant is entitled to a discharge as an incident of the dissolution of the sale, she can not be required to accept in lieu of the discharge a bond of indemnity. The plaintiff representing only a part of the price remaining due, it follows in our opinion he can not enforce the dissolving condition which exact the release of defendant’s liability for the whole price. See Civil Code, 2045, 2046; 7 An. 67; 88 An. 589.

We think the exception on the ground already discussed should have been sustained. We have, however, read with interest the argument of defendant on another exception — i. e., that to maintain this action the plaintiff was bound to tender to defendant the amount she had paid on account of the price. The plaintiff’s answer is, chat the liability of defendants for rents and revenues of the property since the sale compensates the debt of.plaintiff for the price, and hence plaintiff is under no obligation to tender the price. But we think it fixed in our jurisprudence that altogether irrespective of defendant’s liability in cases of this character for the revenues of the property, it is a prerequisite for maintaining the action that plaintiff shall tender the price paid by the purchaser. Until that tender plaintiff in such an action can invoke no relief. The precise contention of plaintiff that tender is not requisite because of defendant’s liability for rents was held unavailing in one of the cases we cite in this connection. We think the exception on this ground was well taken. 23 An. 354; 14 An. 729; 43 An. 534; 21 An. 425.

The views expressed in the exceptions determine the controversy and render unnecessary any examination of the plaintiff’s argument on other points

It is therefore ordered, adjudged and decreed that the judgment of the lower court be avoided and reversed, and that plaintiff’s suit be dismissed with costs.