text:
    No. 9,443.
    Gomila & Co., vs. John T. Milliken—Kelhor Bros., Garnishees.
    1. An objection to tlie effect of a citation and to its sufficiency to bring an absentee into court, as a garnishee in an attachment suit, is substantially an exception to the jurisdiction of the court mtione personce; and, to bo availing, it must bo formally presented in limine, and by way of exception, and must bo passod upon by the court, or the objection • will be considered to havo been waived
    2. It lias been the uniform and consistent ruling of our predecessors, and of this Court, since the decision of Phipps vs. Snodgrass, 31 Ann. 88, that an exception to the jurisdiction of the court mtione personce must be taken in limine.

      3. Uiuloi the jxmsxmidence of tins Cowvfe interpreting our Code of Practice, the hour of the day at which an attachment is levied, is taken, as determining the priority in court of tlio privilege conferred thereby, in respect to others levied upon the same day.
    4. A party having entered into four distinct and sepcw'ate contracts for the delivery of a specified quantity of corn to another, at different dates, completes and fulfills the two first maturing, and defaults on the other two, subsequently: Held that the contractor is entitled to payment of tho price at the instant of complete fulfillment of two and the amount due him could be legally garnisheed by his creditors; and, that tho contractor could not hold same for his reimbursement for the loss of profits on tlio two remaining contracts, which is occasioned by tho contractor’s-default subsequently.
    APPEAL from tho Civil District Court for the Parish of Orleans. JMghtor, J.

      J. Ward Gurley, Jr., for Plaintiffs and Appellees.

      Farrar, Jonas and Krutschnitt for Garnishees and Appellants.
   Tlio opinion of tho Court was delivered by

Watkins, J.

The claim of the plaintiffs against Milliken is for $6200, with 8 per cent interest from the 27th of February, 1883, and based upon a default on a contract for the delivery of 62,000 bushels of corn at New Orleans, on the date named above.

They rejiresent that said corn was actually laden for shipment to them — 35,000 bushels on the barge Broolcbank, and 27,000 bushels on tho barge Bessemer — -on the Ohio river, at or near Paducah, Ky., in January, 1883, and that same was actually shipped to them; but the defendant sent the bills of lading to Kehlor Bros., of St. Louis, to whom he had contracted to ship corn, and that they retained them, and claimed to have purchased the corn on their own account. They represent that they had purchased said corn of defendant for the fulfillment of other contracts, and, in consequence of said failure on the part of defendant to deliver, they were coerced to purchase other corn on an advanced and rising market, and a heavy loss was, thusly, entailed upon them, and which they place at the sum stated above.

As the defendant was a citizen of St. Louis, Missouri, their suit was commenced by an attachment, whereby they sought to reach certain funds, supposed to be in possession of Petit and Lawler, of the City of New Orleans, as the agents of Kehlor Bros., of St. Louis. Consequently, plaintiffs caused Petit and Lawler, as agents, to he cited and made garnishees on the 27th of February, 1883, and, as sueli, propounded to them certain interrogatories. On tho 14th of May, 1883, Kehlor Bros, and J. B. M. Kehlor were cited personally as garnishees^ also, and the same interrogatories, substantially, were propounded to them. On the 21st of May, 1883, Kehlor Bros, and J. B. M. Kehlor in person, made answers to the interrogatories, denying any indebtedness to the defendant, and the possession of any property or money oí his. On the 25th of March previous, and on the 26th of May subsequent, Petit-and Lawler, as agents of Kehlor Bros., filed like answers. On June 8th, 1883, plaintiffs took a rule on the garnishees to show cause why their answers should not be declared untrue and judgment rendered against them accordingly.

During the pen'denc3 of these proceedings the defendant confessed judgment in plaintiffs’ favor for the full amount claimed, and final judgment was thereon rendered and signed in this cause.

Upon the traverse of the answers of the garnishees there was quite a protracted trial, and, after hearing a large number of witnesses, and examining quite a multitude of documents and accounts, the learned judge of the lower court rendered a judgment against Kehlor Bros., setting their answers aside, and decreeing them to pay to the plaintiffs the sum of $4442 17, with 5 per cent interest from the 8th of June, 1883, the date plaintiffs’ rule was filed.

It is from this judgment that Kehlor Bros., garnishees, prosecute this appeal.

I.

■An objection is pressed, in argument, to the effect that plaintiffs’ prayer is that Petit and Lawler, agents of Kehlor Bros., be cited as garnishees, and 'that the judge a quo directed garnishment process to issue against Petit and Lawler, personally, and not as agents, and that citation issued conformably thereto, could not bring Kehlor Bros, into court, and hence the garnishment of February 27th, 1883, must fall.

Cdnceding -this to be the state of the record, no advantage can result to the 'garnishees, the parties urging the objection, because it, also, appears from the record that, as agents, Petit and Lawler twice answered the interrogatories that were propounded; and they are included in plaintiffs’ rule to traverse. It, likewise, appears that the trial of this rule, from start to finish, was proceeded with as though Kehlor Bros, were parties thereto.

Simplified, the objection is to the effect of a citation, and, it being defective and insufficient, the court was without jurisdiction ratíone personco. It has been the uniform and consistent jurisprudence of this Court, since Phipps vs. Snodgrass, 31 Ann. 88, that such an objection must be formally taken, in limine, and by way of exception, and passed upon by the court before answer is filed.

In the case of Jacobs vs. Frere, 28 Ann. 625, cited and relied upon, is of the old regime, and was, in effect, overruled, quite as well as those cases which are enumerated in the one just quoted and those mentioned in Marquez vs. Le Blanc, 29 Ann. 194, and Scholl Bros. vs. Webre, 30 Ann. 595.

It is too late for such an objection to be made now, particularly by way of argument.

II.

On the merits, the only question presented by this voluminous record of 1300 pages, is, what was the state of accounts between Milliken, the defendant, and Kehlor Bros., garnishees, on the-27th of February, 1883, when the citation was served.

The discussion of this question cannot be better prefaced than by a brief statement or outline of the several contracts of these parties, and of their acts and transactions thereunder.

It appears from the record that the defendant, John T. Milliken made, in the city of St. Louis, several' contracts to 'deliver corn /. o. b. in New Orleans, to the agents of Kehlor Bros., garnishees, on account of which contention has arisen in regard to the balance due Milliken in the garnishee’s hands.

Those contracts were, substantially, of the following tenor, viz:

First: On the 26th of December, 1882, the defendant contracted to deliver to Kehlor Bros., 50,000 bushels of No. 2 white corn,/, o. b., in New Orleans, on the 26th of February, 1883, at 56 cents per bushel, they engaging to advance 51 cents per bushel, on bills of lading and insurance certificates annexed.

Second: On the 12th of January, 1883, the defendant contracted to deliver to Kehlor Bros., 50,000 bushels of No. 2 mixed corn, /. o. b., in New Orleans, on the 26th of February, 1883, at 56 cents per bushel, they agreeing to advance 53 cents per bushel — the defendant “ retaining the privilege of substituting No. 2 white-mixed.”

Third: On the 15th of January,T883, the defendant likewise contracted to deliver to Kehlor Bros., 30,000 bushels of No. 2 mixed corn at 56 cents per bushel, /. o. b., in New Orleans, on the 15th of March, 1883, they agreeing to advance 53 cents per bushel upon a St. Louis inspection, or 50 cents on a New Orleans inspection.

Fourth: On February 1st, 1883, the defendant likewise contracted to deliver to Kehlor Bros., 50,000 bushels No. 2 white mixed corn, at 58 cents per bushel, /. o. b., in Now Orleans, on the 31st of March, 1883, they agreeing' to advance 55 cents per bushel.

The total amount of corn deliverable by the defendant under all of these contracts was 180,000 bushels, and under his contract with Gomila & Co., 62,000.

For the fulfillment of the three contracts matured on the 27th of February, 1883, the defendant had purchased from farmers in Kentucky and Illinois, along the Ohio river, and in the vicinities of Mount Vernon and Paducah, a quantity of corn, in the month of January, 1883, and with it certain barges wore laden for shipment to Now Orleans; and those barges were combined together into a tow, which the steamer Raven carried to New Orleans, at which place she arrived on the 27th of February, 1883, in ample time to make February deliveries' for foreign exportation.

There seems to be no question of the timeliness of this delivery, as it clearly appears that delivery was made directly from the Raven’s tow into the out-bound steamer Henry Anning, and that the process of delivery was continued until 12 o’clock m., on the night of February 28th, 1883, and that it was at that time, suspended, ou account of a want of adequate ship-room.

There were five barges which constituted the Raven’s tow, and their names were, respectively, Bessimer, Brookbank, North, Crescent City and II. B. Smith.

It appears that, upon each of these barges, there was a shortage in the quantity of corn, when a comparison is made with their bills of lading.

The following statement substantially exhibits the different amounts that were actually delivered, or the shortage supplied as the equivalent of a delivery under contract, viz: ■

Per barge Bessemer......................................33,074 21-56

Per barge Brookbank....................................25,479 26-56

Per barge North.........................................21,000

Per barge Crescent City.....'.............................12,674 11-56

Per barge H. B. Smith.................................... 5,385 35-56

The aggregate amount being.............................97,614 31-56

In addition to these deliveries there was, of the cargo of the Crescent City, 5583 12-56, which were alleged to have been damaged in transit; and of the cargo of the II. B. Smith there wore 10,924 33-56 bushels, likewise; alleged to have suffered damage in transit.

These two quantities amount to 16,727 38-56.

This damaged, or condemned corn,. did not constitute a part of Milliken’s delivery, under his contract, because it was rejected by Kohlor Bros.’ agents, Petit and Lawler, as not coming up to the requisite grade, —No. 2. Consequently it did not pass through the elevator on shipboard, but was placed in a bin to itself, was subsequently surveyed and condemned, and passed, irregularly, into the possession of Kehlor Bros., and was, by them, disposed of for their own account. A reason for this will appear in a subsequent part of this opinion.

Thus, it appears that there came into the possession of Kehlor Bros. —including shortages accounted for —114,342 13-56 bushels of corn; that the actual amount shipped was 115,790; and that the shortages, not accounted for, aggregated 14437 33-56.

With regard to these figures and data there is, practically, little difference of opinion; but there is quite a serious disparity of opinion as to the proper deduction to be made from them, and the surrounding circumstances, which were detailed, at great length, by different witnesses — and, particularly, with reference to their effect upon Milliken’s rights and liabilities, in respect to the garnishees and plaintiffs, and his balance in the former’s hands, at date of seizure.

Therefore, it becomes necessary to state these opposing views, as concisely as practicable, because it is upon a correct solution of them that the most difficult problem in this ease depends.

The District Judge held— and we state his view because the appellees rest exclusively upon it — in effect, that the 97,614 31-56 bushels of corn, which were discharged from the Raven’s tow, were delivered to Kehlor Bros, under the defendant’s first two contracts, which matured on the 27th of February, 1883, and to. be paid for at 56 cents per bushel; that the 16,727 88-56 bushels, which were alleged to have been damaged in transit, were not delivered under any contract, but having been taken possession of by Kehlor Bros., and sold for their own account, they must be settled upon a different basis; and, that a sufficient amount of the proceeds being first applied to the payment of the defendant’s shortage of 2387 19-56 bushels, the residue should be credited to Milliken’s account as of the date February 27th, 1883.

His theory, as to the method of making this settlement, is that the claim set up by Petit and Lawler with regard to the damage whiclx this lot of com had sustained, having been made known to defendant, he instructed Keillor Bros, to sell all that did not come up to grade No. 2, in the New Orleans market, and credit him with the proceeds; and, inasmuch as that class of corn had advanced in the market, he charged Kehlor Bros., in settlement, 68 cents per bushel — holding that the proof did not sanction the charge of damage, and that they were responsible for the current market value in New Orleans, at the date of their appropriation.

His theory is, further to the effect, that plaintiffs’ garnishment of February 27th, 1883, lielcl the entire proceeds of the Raven’s tow of corn —-ascertained as above stated — under the terms and conditions of the defendant’s first two contracts, and reached the subsequently ascertained results thereof; that defendant’s contracts going to maturity on the 15th and 31st of March, thereafter, were not to be taken into account in effecting a settlement between Milliken and Kehlor Bros.; and that, as a necessary consequence, the surplus to Milliken’s credit on his matured contracts, could not be held by Kehlor Bros, as a security for any default on non- matured contracts — each one of said contracts being independent of the other.

Per contra the theory of the garnishees is that the 16,727 38-56 bushels formed a part of defendant’s delivery under his three contracts — the two maturing February 27th, and the one maturing March, 31, 1883 — • indifferently ; that the entire cargo of the Raven’s tow, as well as that on barge No. 21, which had not then arrived, should be taken into consideration in the adjustment of defendant’s account with them; and that, being thus adjusted, there would be nothing remaining to his credit.

It is further to the effect that, on the 27th of February, 1883 — -the very day on which plaintiffs’ first garnishment was served — the defendant made default on his two contracts maturing on the 15th and 31st of March following, for the entire balance due thereon, and the legal consequence thereof was to mature the balance due them, on all the contracts, as of that date, and entitled them to hold any surplus there might be in the defendant’s favor.

In determining this controversy very much depends upon the precise status of these respective contracts, at the time the garnishment was served. It will, therefore, be necessary for us to examine and analyze, in a general way, such portions of the evidence as bear upon it.

But before proceeding therewith, it is well to premise that the principal contention in the lower court seemed to have been whether the alleged default of Milliken was simulated or bona fide. The District Judge held it to have been fictitious and simulated. But, in our opinion, there are other data which are perfectly conclusive with regard to the effect of the default, conceding it, arguendo, to have been serious and bona fide. In treating of them, we assume as a clear legal proposition, that the four contracts were, in the beginning, distinct and different ; that, upon defendant’s fulfillment of either of them, at its maturity, he was entitled to a settlement thereof, and to receive the net proceeds, less disbursements, from the consignees; and that the plaintiffs could take the same by garnishment. Further, that if the defendant’s default on future contracts did not occur prior to the said fulfillment of the one that had matured, the contractor could not defeat a seizure of a balance in his hands, by a creditor of the contractor.

It is a fact, disclosed by the evidence, that the garnishment was served at five minutes to 3 o’clock on the 27th of February, 1883, in the City of New Orleans, and that the alleged default of Milliken occurred about 5 o’clock on the same day, in St. Louis. It is fully shown by the four telegrams of that date, by Kehlor Bros., addressed to Petit and Lawler, their agents, in New Orleans, that they knew and had advised plaintiffs to garnishee Milliken’s balance in their hands, for the purpose of protecting the cargo of corn from plaintiffs’ anticipated sequestration. On the same date, Petit and-Lawler telegraphed their principals of the service of the garnishment upon them.

Both the principals and the agents being possessed of this information, it was the duty of Kehlor Bros, to have clearly proven that Milliken’s default occurred at an earlier hour of the day than the service of garnishment — if such was the fact — because, under the jurisprudence of this court, the hour of the day is attended to in determining the priority of conflicting seizures which confer privileges on the property seized. To oust a seizure, altogether, in the manner proposed by- the garnishees, and for their own benefit, proof equally efficacious should have been administered. 3 Ann. 430, Tufts vs. Carradine.

It was a fact well known to Petit and Lawler, that this service was made at five minutes to 3 o’clock on the 27th of February, and that was the knowledge of their principals; and it was, likewise, well known to both that the Raven’s tow was at that time in the port of New Orleans, and the cargo of corn in process of delivery under defendant’s contracts maturing on that day.

In furtherance of this theory we have the telegram from Kehlor Bros., of that date, to Petit and Lawler, stating: “ G-omila garnishees us for the amounts belonging to Milliken, in our hands. Accept for us, and answer for us that we have balance clue him on corn in Neiv Orleans, exact amount not ascertained, but estimated to be about $4500.”

This telegram was sent to New Orleans prior to Petit and Lawler’s notification of the service of the garnishment.

Milliken also appears to' have been fully advised of the arrival of the Raven’s tow in New Orleans, and the delivery of her cargo to Petit and Lawler prior to his alleged default, because he says in his written notice to Kehlor Bros.: “ That I decline to deliver to you any more corn on my several contracts.” This language clearly implies that a delivery had been made of some corn, and the cargo by the Raven’s tow is the only corn, at that date, of which any account is given in the record. It is, therefore, perfectly manifest that his default had relation to his contracts maturing- on the 13th and 31st of March, 1883.

This theory is further confirmed by the letter written by Milliken to Keillor Bros., under date of March 12th, 1883, prior to the maturity of either of last named contracts, which says:

“By steamer Raven and barges, I delivered to you in Nexo Orleans, prior to the 27th of February, last, 111,000 bushels of corn, under my contract with you, accepted prior to that date. I also placed on board barge No. 21, at Cairo, Illinois, 24,000 bushels of corn, which you have not ordered down the river.”

This letter was introduced in evidence by the garnishees, and is one of the documents which is relied upon as proving the bona fides of Milliken’s default.

Comment on this evidence is hardly necessary. To our thinking it points unerringly to one conclusion, and that is the fulfillment and completion of the two contracts falling due on the 27th of February, 1883, yyrior to the defendant's default on other contracts, and prior to the service of the garnishment, on that date, on Kehlor Bros.; and to there being a balance in their hands to Milliken’s credit, of $4500, on that date.

This conclusion seems to be irresistible, when we take into consideration the fact that the garnishees got possession of nearly 12,000 bushels of corn more than they were entitled to receive under those contracts, to the detriment of Gomila & Co.; that they garnisheed that balance at Kehlor Bros.’ suggestion; and that this defense is set up by them, as against Gomila & Co., with the undisguised object of consuming that balance, in a settlement with the defendant, and to the injury of Gomila & Co., and against the sworn protest of Milliken.

Counsel for garnishees, in the course of their argument, and in their briefs, frequently referred to the fact that the cargo of the Raven’s tow was 12,000 or 15,000 bushels in exeess of the 100,000 bushels which were deliverable under the defendant’s February contracts, and to the 24,000 bushels on board the barge No. 21, as proof incontestable of these deliveries being common to, and on account of all four of the contracts; and, from this assumption, argue that they had thus become merged and indistinguishable, and, hence, all were affected alike by defendant’s default.

This argument is wholly untenable.

• We have no doubt of it having been the original intention of Milliken to make the shipment of the Raven’s tow for the joint account of Kehlor and Gomila; but, becoming embarrassed in his negotiations for, and the purchase of the corn from the farmers, he found himself in such a situation that he could not carry all of his contracts to their maturity, and he chose to fulfill the larger ones to the garnishees, and to default on the smaller ones to the plaintiffs.

From the proofs above cited it is perfectly clear that the cargo of the barge No. 21 did not arrive for many days subsequent to all of these transactions, and does not, in any way, appertain to their consideration.

On the whole, we think it fairly demonstrated that the status of Milliken’s account with the garnishees was not affected by his default. While it is true that we have arrived at this conclusion by a slightly different process from the one employed by the judge a quo, it is in nowise to the detriment of the latter. We felt constrained to place our opinion on this ground, and thus avoid the unwelcome task of investigating the grave charges of fraud and simulation, in proof of which he cited, in his reasons for judgment, numerous and striking evidences.

III.

The only remaining duty there is to perform is to adjust the accounts of the defendants and garnishees, and strike a balance, and ascertain what plaintiffs are entitled to receive, if anything.

The following is the statement of the Judge a quo, viz :

Kebxor Bros. Dr. to John T. Milliken.

97.613.37 bushels corn at 56 cents...........................$54,763 95

16.737.38 “ “ 68 “ ............V.............. 11,374 82

$66,138 77

Less 12 cents profit on 2386 19 bushels short .'on contracts, being- difference between 56 and 68 cents..................$ 286 32

Gross amount to debt of Keillor Bros.......................$65,852 45

From which amounts are to be deducted the following credits upon the two contracts in question, and on account of the corn from barges “II. B. Smith” and “Crescent City,” to-wit:

Feb. 1. Cash paid draft against B. L. barge North..-........$ 9,789 85

“ 6. “ farmers at Mt. Vernon................... 26,703 00

“ 19. “ “ draft against B. L. “Crescent City” and “Smith”...................'............ 16,755 50

“ 19. “ “ John T. Milliken........................ 1,000 00

“ 28. “ “ Lawrence............................... 25 00

“ “ transfer on 111,245 16 bushels corn at New Orleans................................. 556 22

“ “ freight bill steamer Raven and barges..... 6,087 98

“ “ Blossom for-insurance................... 249 23

Fob. 28. Cash paid Henry Seeley’s expenses................ 28 85

Inspection corn barge Smith....................... 21 78

“ “ “ Crescent City................ 28 94

“ . “ “ North....................... 13 38

Interest on $22,500 at 8 per cent, from January 27th to February 28th............................. 150 00

Interest on $119, proportion of insurance for which defendant is liable, paid February 6th, from that date to February 28th......................... 55

'Total....................................$61,410 23

To debt of Keillor Bros....................................$65,852 45

By credit................................................. 61,410 28

Balance due Milliken.....................$ 4,442 17

We will notice a few of the objections that are urged by the garnishees’ counsel against this statement of accounts :

1.Complaint is'made of the garnishees’ debit of $54,763 95 as the proceeds of 97,613 37-56 bushels of corn, on the ground that it, incorrectly includes, as a part of defendant’s delivery, the 3076 bushels of corn, which was short in the cargo of the barge North, and which he did not make good until the 21 st of March, following.

There is a balance resulting of.............................$52,929 68

From this there is deducted a profit of...................... 286 32

Leaving as true balance the sum of.........................$52,643 36

This is incorrect, There is no credit given defendant for the proceeds of the 3096 bushels of corn he paid for, and the defendant is debited, in the judge’s statement, with the profit claimed, $286 23. Make'these alterations and the original debit is re-established.

2. It is contended that the judge a quo incorrectly allowed Milliken 68 cents for the 16,737 38-6 bushels of corn which were taken possession of by the garnishees, and that it should have been valued at 56 cents. We have already ascertained that this lot of corn was not accepted, or delivered under the defendant’s contract, hence the contract price does not control. We think the District Judge correctly fixed its value at the market price, according to the precedents mentioned in his opinion.

3. It is assigned as an error on the lower judge’s ruling, that he disallowed a credit of $1438 50, for money alleged to have been paid by garnishees’ agent, to one Prestorious, a representative of the defendant, in his negotiations for and purchase of corn in Kentucky and Illinois. This claim is made on a draft drawn by the defendants on Seeley and in favor of Prestorions for one cent.per bushel on all corn he shall pay for. Seeley claims to have accepted tills draft verbally and to have paid it subsequently to Prestorions, in installments.

Milliken countermanded payment, and Seeley disregarded the notification, and claims to have paid it on the faith of his verbal acceptance.

There is no pretense that this alleged draft had been negotiated to any one. It remained in the hands of Prestorions until payment was made. Milliken had a clear right to dishonor his draft, and, so long as no third party had acquired any right in it,' his command to the drawee was binding and absolute, because it was out of his funds that payment was to he made. If Seeley paid after the receipt of Milliken’» notice not to pay, he did so at Ms peril.

These are the only objections that are seriously urged.

We cannot more appropriately conclude this opinion than hy quoting a part of the concluding sentence of the brief of the garnishees’ counsel, as follows, viz:

“The opinion of the lower court seems to have been based almost entirely upon the alleged fact that Kehlor Bros., at the end of February, admitted to G-omila’s agent, in St. Louis, that they were indebted to John T. Milliken, under the first two contracts, in an amount of $4000. Mr. Kehlor, in his testimony, explains that this alleged admission consisted simply in the making of a pencil calculation showing the amount which Kehlor would owe to John T. Milliken upon the completion of those two contracts; but whatever the exact words of the admission may have been, there is no question that Kehlor Bros., would have become indebted to Milliken in an amount approximating $4000, if Milliken had fulfilled his two first contracts in the manner intended.”

It lias been satisfactorily established that Milliken did so fulfill these contracts, and that the judgment appealed from is correct.

Judgment affirmed.


source: Caselaw Access Project

author: McEnery, J. Watkins, J.

license: Public Domain

text:
    No. 10,210.
    Succession of Samuel Stewart. On Rule to Cancel Taxes, Tax Liens and Privileges of the City of New Orleans.
    Act 9G of 1877, Sections 36 and 102, apply to tax privileges in favor of the City of Now Orleans as well as to State and parish taxes for the years 1881, 1882 and 1883. Said Act is constitutional, and its title is in accordance with Article 13,0 of the Constitution, of 1868.
    Section 36 of said Act applies only to the lien, pledge and privilege; the tax remains due notwithstanding the prescription of the lion and privilege.

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

      Horace L. Bufour for Plaintiff and Appellee :
    1. Tlie Constitution intended that all matters of taxation, whether State, parochial or municipal, should be on the same footing. See Arts. 202, 203, 210, 218.
    2. If the revenue states of 1880 and 1882, apply to city taxation prescription has accrued.
    3. If not, Act 96 of 1877 governs, and all city taxes and lions from 1877 are prescribed by throe years.
    4. If neither the revenue Acts from 1880, nor act 96 of 1877 be applicable, there is no law giving privileges for city taxes, section 20 of the City Charter of 1870, having been repealed. 36 Ann. 705; 39 Ann. 124; Church Wardens vs. Houston (Court of Appeals).
    5. The presumption is in favor of the constitutionality of a law. 1 Bouvier 337; Longue's Dig. p. 127.
    6. The city is equitably estopped from disclaiming the burden after accepting the benefit of a statute.

      W. JB. Sommemlle, Assistant City Attorney, for Defendant and ApX)ellant:
    1. Acts 77 of 1880 and 96 of 1882, do not apply to the City of New Orleans, except in so far as Act 119 of 1882 makes them applicable. City vs. Wood, 34 Ann. 732.
    2. Act 119 of 1882 is an enabling act, putting Articles 203 and 218 or the Constitution into effect. Alexandria vs. Hcyman, 35 Ann. 301, and Alexandria vs. Williams, ibid, 329.
    3. It is not an act of prescription.
    4. Prescription is not a mode or mannor of collecting taxes or any other class of obligations.
    5. The manner and mode of collecting implies action on the part of the collector, whereby prescription implies inaction.
    6. “Prescription is a manner of acquiring the ownership of property, or discharging debts by the efiect of time, and under tlie conditions regulated by law.”
    7. The essence of prescription is that tlie party who invokes it as a remedy thereby acquires the ownership of property, or is thereby discharged from a debt or obligation.” Ashley vs. Ashley, 10 Ann.
    8. Laws of prescriiitions are established for the public good, and not for the benefit of debtors; they are in derogation of individual rights.
    9. Whore a term of prescription is not positively and definitely fixed it will not be implied.
    10. There being no law prescribing taxes of the City of How Orleans, a rehearing of this case should not be granted.

      Geo. L. Bright and James G. Moíse, Amiei GurUe.

   Tlie opinion of tlie Court was delivered by

McEnery, J.

Plaintiffs, tlie licirs of Samuel Stewart, proceeded by rule against tlie City of New Orleans and tlie Recorder of Mortgages to compel tlie cancellation and erasure of taxes, tax liens and privileges for tlie years 1880, 1882, 1883.

They rely upon the provisions of Section 24 of Act 77 of 1830, of Section 34 of Act 96 of 1882, and 98 of 1886. And if these several laws do not apply, they rely upon Act 96 of 1877, section 36.

Tlie city contends that taxes, oto., tax liens and privileges arc imprescriptible under Section 20 of Article No. 7 of the E. S. of 1870.

In tlie case of the City of New Orleans vs. Wood, 34 Ann. 732, it was held that Act 77 of 1880 did not apply to the City of New Orleans; that the Convention which framed the Constitution of 1879 did not intend to alter, nullity or abolish the mode of collecting municipal taxes, then in existence, by Articles 210, 211 of the Constitution, without the necessary legislation to cany into effect and make operative said articles. Act 96 of 1882, in its title and text, is almost identical with Act 77 of 1880. In both acts the language relating to the prescription of tax liens and privileges is the same, with the exception in the former ac-t, tlie time within which the privilege and lion shall prescribe is fixed at five years. ■ That the act of 1882 applies to the collection of State taxes, and not to tlie collection of the taxes of the City of New Orleans, is clearly deducible from sections 44 and 52, providing for the sale of movable and immovable property. In both sections the form,of sale is: “The State of Louisiana vs. Delinquent Tax Debtor.” All the provisions of said act relate to the assessment and collection of State taxes, and section 34 of said act, regulating tlie prescription of tax' privileges, liens and mortgage, applies to those in favor of the State. 34 Ann. 732.

It is contended by plaintiffs that Act 119 of 1882 places municipal corporations on tlie same footing as the State, and that existing laws relating to tlie prescription of State taxes also apply to and regulate municipal taxes. ■- <•

This act regulates the modi, maimers and method of collecting parish and municipal taxes by extending the provisions of Act 96 of 3882, so far as it relates to assessments, notices, and sales, and the time in which they shall he made, to subordinate political corporations. Its purpose was to cany into effect Article 218 of the Constitution, thus regulating, under existing State laws, the mode of proeedu.ro in the enforcement of Die collection of parish and municipal taxes.

Tlie case of Mayor vs. Hayman, 35 Ann. 301, does not support tlie position assumed by the plaintiffs. Tlie only question before the court, in that case, was whether the tax due tlie City of Alexandria could be collected by suit or under the provisions of Act 96 of 1882.

This court said, in relation to/that contention: “ * * the payment of taxes, whether due to the State or parish, or to incorporated villages, towns or the city, can not he enforced by a suit, but only in the mode provided by tlie Act of July 5, 1882.”

In the case of Saloy vs. Woods, cited by plaintiff’s counsel, the question raised in the instant case does not seem to have been presented or discussed. The court decided the question upon the pleadings and the state of facts presented. The question presented was whether the institution of a suit in 1882 interrupted the proscription of taxes due from 1882 to 1887. Act No. 26 of 1886 is the only law enacted since the adoption of the Constitution of 1879, which fixes the period in which State,,parish and municipal tax mortgages, liens and privileges shall prescribe. It provides in direct terms for the future, and, therefore, does not affect the question under consideration. 39 Ann. 124.

Section 20 of the City Charter of 1870, which, it is alleged, renders tlie city taxes imprescriptible, was repealed by Act 96 of 1877.

In the case of Davidson vs. Lindop, this court indicated its views on this question in the following language,: “ Under this law the tax privileges of the City of New Orleans were, practically imprescriptible. It remained unaffected by any subsequent legislation until Act 96 of 1877. Sections 36 and 102 of that act, taken together, leave the impression that they were intended to apply to tax privileges in favor of the City of New Orleans as well as to others. But they manifestly apply only to future taxes.”

On a careful review of this act and subsequent legislation, we are satisfied that our views in that case were correct and that Act 97 of 1877 regulated the assessment, collection and prescription of State, parish and municipal tax privileges, pledges and liens and applies to city taxes assessed in 1880, 1882, 1883.

The constitutionality of the act is attacked by the city because in the title of the act there is no special mention made of the City of New Orleans in connection with the language of sa.id title relating to the prescription of tax privileges.

The title fully covers all that is contained in the body of the act.

The title of the act recites that it is a law for regulating the mode of assessing and collecting taxes throughout the State, and recites also “ the limitation for license, taxes and assessment and the appointment of assessors for each parish.” Tf was not necessary to mention by name each political subdivision in the State. The act was passed and became a law in conformity to Article 134 of the Constitution of 1868.

It is argued by plaintiffs that Section 36 of Act 96 of 1877 applies to the tax as well as the privilege and pledge. The text of the section, in positive language, justifies an opposite interpretation. Counsel for plaintiffs rely, for the interpretation of said text, upon the case of Reed vs. Creditors, 39 Ann. 115. In the reported opinion language on page 124 is as follows: But in as much as tlic taxes asserted in the collector’s opposition are only those of 1869, 1875, 1876, 1877 and 1878, those only of the last two years are prescriptible under Act 96 of 1877 ; but as we have seeu, the mortgage is unaffected by it.”

The written opinion, as rendered by the court, is as follows: But in as much as the taxes asserted in the tax collector’s opposition are only those of 1869, 1875, 1876, 1877, 1878, the privileges securing only those of the last two years are prescriptible under Act 96 of 1877 ; but as we have seeu, the mortgage securing them is unaffected thereby.”

We, therefore, conclude that the lien, privilege and pledge resulting' from the inscription of the taxes due the City of New Orleans from the taxes of 1880 and 1882 are prescribed, but that the taxes of 1880 and-1882 are still due said city, which remains an ordinary creditor for the amounts thereof and entitled to be paid accordingly.

The judgment appealed from is amended, rejecting plaintiff’s demand for the annullment of the taxes due said City of New Orleans for the years 1880 and 1882, and in other respects it is affirmed, plaintiff to pay costs of appeal.

Concurring Opinion.

Watkins, J.

This is a proceeding by rule on the part of the succession representatives, for the cancellation of the inscriptions of the liens and privileges securing certain city taxes assessed for the years 1880, 1882 and 1883. These taxes were presumably assessed under and in pursuance of Act 77 of 1880 and Act 96 of '1882. The ground on which it is claimed that these inscriptions should be erased is that the ta,x liens and privileges securing same are prescribed. In neither of those acts is there any reference to city, or municipal taxes, eo nomine, and hence the city’s counsel argues that the period of prescription therein prescribed is not applicable to them. But, conceding that this is true, for the purpose of the argument only, counsel for the succession contends that the terms of section 36 of Act 96 of 1877 are broad enough to cover municipal'taxes, and that more than the prescriptible length of time has elapsed, and they are prescribed thereunder.

That section is in these words, viz: That from the filing of the assessment rolls in the office of the Recorder, as provided in this Act, the property therein mentioned shall be affected with a Ren, privilege, and rights of iiledge, which shall rank all other privileges, and exist, without further registering, until the payment of the tax; the Ren, privilege and rights of pledge, to be Ri favor of the State for State taxes, the parish for parochial taxes, and the municipalities for municipal taxes; and such rights shall be concurrent for all said taxes; provided, that the privilege and rights of pledge be not considered as lasting for a longer period than three years.”

This statute undoubtedly embraces municipal taxes, and the privilege and rights of pledge securing them is barred by the lapse of three years. This prescription is clearly applicable to all city taxes that were assessed under and in pursuance of that law. The only taxes that were assessed under it were those of 1877, 1878 and 1879. When the Constitution of 1879 was adopted, and the ordinance for the relief of delinquent tax payers appended thereto as a supplement, all taxes that were “ due the State or any political corporation therein” were denominated “delinquent taxes ” and dealt with as therein specified. The Constitution provided different and more specific rules in relation to “ revenue and taxation ” than had thitherto existed. It provided among other tilings that “ the tax shall be designated by the year in which it is collectible, and the tax on movable property shall be, collected in the year in which the assessment is made.” Art. 211.

In pursuance of the provisions of this Constitution, Act 77 of 1880 was adopted by the Legislature as the general revenue law of that year. In order to assure perfect harmony between the Constitution and the ordinance for the relief of delinquent tax payers, it was enacted in section C of that statute, as follows: “ That the assessments of State and parish taxes made in the year 1879 are suspended by the assessment to be made in the year 1880 under this Act, and that the assessments made under this Act shall constitute the assessments for all parish taxes collectable in the year 1880; and that no State or parish taxes shall be collected on the assessments made in the year 1879.”

Section 6 provides “ that all taxes shall be collected in the calendar year in which the assessment thereof is made, and they shall be designated as ‘ the taxes of the year 1880,’ and of each subsequent year, accordingly as they are collectible,” etc. This legislation was absolutely necessary, because all State taxes assessed in years anterior to the adoption of the Constitution are not collectible until the following year ; and had not the assessment of 1879 been suspended, there would have existed the anomaly of one tax assessed in 1879 falling due and añade collectible in 1880, and another assessed and collectible in 1880; one assessed under Act 96 of 1877, and the other under Act 77 of 1880 ; one a “ delinquent tax” in nomine, and the other a “current tax.”

This much of the legislation was necessary to be recited for the purpose of making very plain the distinction that was established by the organic law, between “ current and “ delinquent taxes.”

Of course, prior statutes were not abolished, or entirely repealed by the Constitution or Ordinance; for, had this been done, “delinquent taxes” would have boon extinguished and the ordinance itself rendered inoperativo. But the effect, of such laws was limited to the taxes that were assessed under them; and those subsequently assessed are controlled by laws enacted in pursuance of the provisions of the Constitution. Hence, the provisions of Act 96 of 1877 are inapplicable to “ current. taxes,” such as those under present consideration.

But, in order to still further enforce this view, let us instance that section of the act wliich provides security for the taxes of 1880 and 1881. It is as follows: “ That from the day the said tax roll is filed in the mortgage office, each specific piece of real estate thereon assessed shall be subject to a legal mortgage for the payment of the tax due on it, but not for any other tax, which mortgage shall prime and outrank all other mortgages, privileges, lions, encumbrances, or preferences, excejff tax rolls of previous years. All tax mortgages and tax privileges shall be prescribed by three years from the date of the filing of the tax roll, etc.” Section 21 of Act 77 of 1880.

This revenue law does not provide that there shall be either lien, privilege or pledge for the security of such taxes as shall be thereunder assessed.

The revenue law of 1882 follows the text of that of 1880, just quoted, ipsissimis verhis, in respect of the security; but, in reference to proscription, this language is employed, viz:

“ All taxes, tax mortgages and tax privileges shall be in-escribed by .five years from the date of filing the tax roll.”

It is obvious, that the. only security there is for the taxes in controversy, is a legal mortgage, for it cannot bo plausibly contended that the “lion, privilege and right of pledge” accorded by the law of 1877, was imported, tacitly and without the sanction of the Legislature, into the Acts of 1880 and 1882, and secure the taxes assessed thereunder.

Now, in Jackson vs. Recorder, 34 Ann. 178, it was held that the prescription announced in Act 98 of 1877 “ did not affect the mortgages by wliiclr (taxes) were secured.” It therefore follows., as an irresistible conclusion, that said act does not affect the legal mortgage securing taxes assessed under the law of 1880 or 1882, such as those in suit; and in as much as they arc not secured by any lien, privilege and rights of pledge, as provided by the revenue law of 1887, the prescription therein accorded does not affect them. Hence it was unnecessary for the Legislature to formally repeal that act, or, in terms, to alter the period of prescription therein provided for.

By referring to the repealing clause of the law of 1880, it will be seen that it was specially guarded in its terms. Thus: “That the liens, ~ * and those parts of a.ll laws on the, subject of the levy, assessment and collection of-State taxes, heretofore enacted, which are in conflict with the Constitution, of this State, or are inconsistent with, or superseded by, or contrary to, or in conflict, Avith the proAdsions of this act, he and the same are repealed, etc.” Section 53 of Act 77 of 1880.”

The manifest purpose was to carefully restrain revenue laAvs within the provisions of the Constitution, and not to interfere Avith the collectibility of taxes assessed under anterior laws.

Having- ascertained that the provisions of Act 96 of 1877 are not applicable to the taxes under discussion — conceding arguendo that, the Acts of 3880 and 1882 embrace city, or municipal taxes — let us now consider the question, as an original one, whether those acts embrace sucli taxes, and whether those in contestation were assessed thereunder and are governed by the prescription therein established.

Section 7 of Act 77 of 3880 directs the Board of Assessors of the Parish of Orleans to “furnish the City of NeAv Orleans * * with a, complete copy of the (State) assessment rolls.” Section 21 provides “that if there be any incorporated village, íoaati or city in any parish, the lists of property therein shall be taken up separately by the assessor, etc.”

The provisions of sections 7 and 26 of Act 96 of 1882, are almost identical AAdth those just quoted from the Law of 1880.

Now it happens that the Parish of Orleans and the City of NeAv Orleans are identical in area, population, and assessable property, and hence it is only necessary for the completion of the municipal assessment that the levy made by the City Council be extended on the State assessment roll furnished by the Board of State Assessors.

By this means the provisions of Article 218 of the Constitution are carried into effect. They are as folloAvs:

“All the articles and provisions of this Constitution, and relating to the collection of State taxes and tax sales, shall also apply to the collection of parish, district and municipal taxes.”

Article 202 provides that “the taxing poAVer may be exercised by the General Assembly for State purposes, and by parishes and municipal corporations, under the authority of the General Assembly, for parish and municipal purposes.”

The conclusion is, likewise, irresistible that the revenue laAvs of 1880 and 1882 embrace and provide fon municipal taxes, and that these provisions cover and control the levy, assessment, and proscriptions of the taxes in dispute, as well as the security for the payment of the same.

Therefore, it Avas proper and correct that Ave should, upon serious consideration of these principles of law, have said, in the matter of Orloff Lake, 40 Ann. 148, tliat^ “the provisions of Article 210 of the Constitution of 1879 have exclusive reference to the taxes that may be assessed under laws passed in pursuance thereof; and those of the ordinance for the relief of delinquent tax payers, to delinquent taxes that were assessed in years antecedent to its adoption by the public.”

It justified the language, employed by us in Reed vs. His Creditors, 39 Ann. 123, viz: “ The Constitution and the ordinance for the relief of delinquents dissevered back taxes ’ from current taxes.’ They did not operate a repeal of prior revenue laws; but some were thereby most distinctly left in full force for, at least, all purposes of collecting the taxes that had been assessed under them.’’’’

To my mind it is perfectly obvious that the taxes involved in the instant case are governed by the laws of .1880 and 1882; but, notwithstanding- they are only secured by a, legal mortgage, it is prescriptible by three years under the former, and by five years under the latter, and is extinguished in either event. lienee it would serve no useful purpose, should this theory prevail, to require an additional rule for its formal cancellation ; and I, therefore, concur in the decree for the reason that the same end is reached hy either course of argumentation and reasoning.


author: Bermudez, C. J.

text:
    No. 10,265.
    John Mahony, Individually and as Tutor, vs. Bedelia Mahony, Administratrix, Etc.
    While a tutor is liable for the revenues yielded by the property of his ward, under his control, and administration and which he has collected, lie is entitled to be credited, iira settle mont with them, with all disbursements for insurance, repairs, taxes, board and lodging etc., made by him, in his official capacity.
    He has nó authority in making sueli disbursements — however necessary — to speiid more than the revenues and thus encroach on their capital, without the assent of a family meeting approved by the Court.
    A tutor who has, in good faith, taken charge of liis wards and administered their property, as well as could have been done under straightened circumstances, cannot be charged with maladministration, simply because, in the course of time, the buildings have become more or less dilapidated.
    A clerical error, in the computation of the amount of an indebtedness, though formulated in the decretal part of a judgment of the Supreme Court, may he rectified and the correct amount specified, in passing on an application to review, without granting a re-licaring.
    APPEAL from the Civil District Court for the Parish of Orleans. Monroe, J.

      T. Gilmore cC- Sons for Plaintiff and Appellant: '

      Mott, Drolla cO Augustin anil Henry Denis for Defendant and Appellant.
   Tlie opinion of tlie Court was delivered by

Bermudez, C. J.

This is a suit by the children of Luke and Ilonora Maliony against the succession of their tutor and uncle for the revenues of property inherited by them from their authors, and which was under the administration of their said tutor, Francis Maliony, during five years and several months.

They collectively claim $2500, to be afterwards apportioned among themselves, the sum being the aggregate of rents received, averaged at about $40 per month.

To the demand, the succession answers substantially, that the average rent was $20 -per month, and that, after deduction of disbursements for insurance premiums, repairs, support of the minors, tutor’s advances and commissions, the balance remaining is $88 15, which are tendered.

Prom a judgment allowing the- sum claimed in full, apportioning it among the heirs, the administratrix of the succession of the late tutor prosecutes this appeal.

It is difficult, not to say impossible, to conceive- how, under averments which, for the host could, if proved, hold the tutor liable for the largest amount which the property could have yielded while in his administration, this official can he sought to he made to pay that sum, without crediting- him with disbursements which he necessarily must have made.

It appears that the only property owned hj^ the plaintiffs consists in a piece of real estate with buildings, etc., thereon, which was appraised, at the time of the appointment of the tutor in 1879, at $1000, although true it he, that eight years previous, the same had been purchased for four times as much, part cash and part on time, and was assessed at $2000.

Much testimony was adduced to prove the condition of the buildings and the rentals yielded. It establishes clearly that they were in had condition at the time of the death of Mrs. Maliony, the plaintiff’s mother and tutrix, who had had them in her charge and custody during the four years which intervened between her husband’s death, in August, 1874, and her own, in December, 1878, and that they continued such, with the difference that their condition grew worse as time rolled by, for want of better keeping and repairing.

The testimony is vague, disconnected, unsubstantial, unsatisfactory and surely does not establish that the property yielded ■ $40 monthly during the time that it was in the charge, of Francis Mahony, the deceased tutor.

Patiently and as attentively considered as it can he, it loaves the impression on the mind, however, that the property has rented more than tlie $20 monthly admitted by the defendant during that period, and that, considering the fluctuations in the rental of property, the non-rental of the same, the non-payment of rents and the other incidental and unavoidable disappointments in the same, an allowance of $30 per month, during the course of tutorship, is a liberal one.

This would give a total for the five years and eight months, constituting that period, of $2040.

On the other hand, the heirs cannot be permitted to claim the gross rent received and to ignore the counter demands of the tutor.

It would be. idle work to enumerate specifically here, the numerous items of disbursements for insurance, taxes, repairs, support of at least two of the minors, advances by the tutor, his commissions on sums collected.

It is enough to say that, in addition to the presumption attaching fox such disbursements, the proof in the record establishes that the tutor is entitled for the samo to a credit of $1535, which would leave a balance in favor of all the children, four in number, of $505, or thereabout.

The evidence shows, however, that no expense was incurred for the minor Mary, who was cared for by a friend, and that since 1883, John has been self-supporting. The item for board, lodging, etc.,, during the tutorship, must be borne by two of the children, and to some extent, difficult to determine with exact precision, by John, but which may bo set down at $50.

The share accruing in the residue to those two minors cannot, nevertheless, be charged with the item for board, etc., for the reason, that the tutor was not authorized by a family meeting and the judge, to encroach upon tlieir capital. He ought to have restricted the expenses to the revenues. This entitles the minors to be relieved of the, difference.

It is proper to say, that tin*, charges of maladministration against the tutor are groundless. It appears to his justification, that- in the straightened circumstances under which he labored, he acted honestly and in good faith, and that his devotion to his nephews and nieces had involved him pecuniarily.

It is therefore ordered and decreed, that the judgment appealed from be amended, so as to reduce the amount allowed by it against the succession of Francis Mahony to $203; whereof $76 50 shall accrue to John Mahony, individually; $126 50 to Mary Mahony, represented by her tutor; and nothing to the other two minors, Cornelius and Francis; with legal interest from judicial demand, and costs of the lower court, and that thus amended, said judgment be affirmed at appellees’ costs.

On Application for Rehearing.

A re-examination of the record establishes the fact that the succession of the tutor ought not to have been credited with the amount of city taxes since 1882, on the property of the minors, as these were not paid. The amount must, therefore, be debited to the succession, leaving it, therefore, in debt for $780.

By this operation, the share of each child would be increased by $08 75,. one-fourth of the amount improperly credited, practically benefitting John and Mary Mahony, only.

A review of the record satisfies us that, as is admitted by the brief in support of the application for a reheariug, the deceased tutor is entitled to a credit of $1280 62, exclusive of the taxes, considered to have been paid, but which was not so.

The amount due being $780, each child would be entitled to $195 25, John’s share to be charged with the $50 mentioned in the opinion, that of Mary to go to her free from all counter claim, and those of Cornelius and Francis to be burdened, as far as they go, with tho claims of the tutor against them, which absorb those two shaves, so that the minors receive nothing.

The corrections can be made without granting a rehearing.

It is, therefore, ordered that tho previous decree be amended so as to entitle John and Mary, the latter through her tutor, to recover from the succession of Francis Mahony three hundred and forty dollars and fifty cents ($340 50), whereof one hundred and forty-five dollars and twenty-five cents ( $145 25 ) to accrue to John Mahony, and one hundred and ninety-five dollars and twenty-five cents ($195 25 ) to accrue to Mary Mahony, and that thus amended, said decree become final and executory.

Rehearing refused.


author: Poché, J.

text:
    No. 10,214.
    Mary J. Ashbey vs. Joseph H. Ashbey.
    It is a general rule of practice, that a defendant who does not insist upon the trial of an except tion before tho case is tried on tho merits, is presumed to have waived the exception. But tho rule admits of at least one exception, and that is when the exception suggests a defect • which tho court, may notice ex propria motu, such as an omission, in a rule to erase a mort gage, to make the mortgagee, whose rights are involved, a. party, or to notify him.
    In such a case the mortgagee is not bound by the judgment, although he may be seriously in’ convonieneed and injured thereby, at least in restoring his mortgage, which may, under the judgment, have been released by tho recorder of mortgages.
    “ Tho first duty of a judge is to hear a party before he makes a decision to his injury.” Gas quet vs. Dimitry, 6 La. 553.

      In a rule to cancel tlie inscription of a mortgage in favor of minors against tlieir natural tutor and to invest tlio community to which the latter was a party, with ownership of immov able property which stands in the name of the minors alone, their interests are in opposition to those of tlioir tutor, and ho is not competent to represent them in this litigation ; their under-tutor should be notified.
    APPEAL from tlie Civil District Court, Parish of Orleans. Tissot, J.

      J. 8. and J. T. Whitaker for Plaintiff and Appellee:
    1. When the property of one against whom judgment has been rendered is incumbered by mortgageshaving an apparent preference ov.er the judgment creditor, the lattor may, by rule, proceed to have such mortgages erased. 28 Ann. 753; 1 Ann. 330.
    2. All dilatory pleas must be specially set forth in limine and before issue joiued otherwise not admissible. O. P. 333; 34 Ann. 966; 11 Ann. 491.
    3. Going to trial without insisting upon previous action of the court on exceptions is a presumption of their waiver. 15 Ann. 188; 18-Ann. 207 ; 23 Ann. 254; 4 La. 482; 14 La. 288.
    4. Prescription begins from the majority of the ward. If the minor docs not, within four years after majority, take legal action to finally settle his rights and enforce them, proscription will apply. 37 Ann. 809.
    5. Even where a tutor fails to plead prescription, third persons who have acquired rights on his property may avail themselves of such plea. 37 Ann. 809; 8 Ann. 504.
    6. Where a. judgment has been rendered declaring a contract fraudulent or simulated, courts will not impose on all the creditors the trouble, expenso and .delay of a formal action of revondication, but will, when all parties are before the court as in this case and such judgmentis pleaded, receive as full and conclusive proof of such fraud and simulation said record or judgment. 15 Ann. 663.
    7. All property acquired during marriage is considered community, and debts contracted during marriage are chargeable to it. C. C. 2371, 2372; 26 Ann. 232, 391; 12 Ann. 396; 21 Ann. 383.
    8. The mere declaration in an act of purchase “ with hor separate funds ” doos not rolieve the wife ox her representativos from proving aliunde where an issue is mado in such matter that the purchase was mado with her paraphernal funds. 18 Ann. 126; 20 Ann. 531.
    9. An inscription in the office, of the recorder of mortgages ceases to he evidence of the mortgage after the lapse of ten years. The recorder of mortgages is bound to cancel and erase a mortgage on the application of a creditor or party interested that has been registered in Mr office ten years previous to the application. Iso notice required in such case to parties interested. 20 Ann. 508. ^
    10. The appointment of an administrator is not a matter of course, but is made when any of the creditors of the succession require it. 2 Ann. 464; 3 Ann. 502; 4 Ann. 561; 30 Ann. 96. Heinscriptiou must bo made in the same manner as tlie first inscription. 28 Ann 775'; 21 Ann. 204: 20 Ann. 385.

      A. J. Lewis for Defendant and Appellant,
   Tlie opinion of tlie Court was delivered by

Poché, J.

Plaintiff, as a natural tutrix of lier minor children, and joined herein by her children of age and by the tutor of one of her grandchildren, took a rule against tlie defendant personally, and as natural tutor of his joiner children, issue of his second marriage, to which tlie sheriff, and the recorder of mortgages of the Parish of Orleans were made parties, with a view to the cancellation of several mortgages affecting certain immovable property which had a short time before been adjudicated to her, and for other purposes.

One of the reliefs prayed for is a judicial declaration to the effect that a jnece of immovable property purchased, and standing, in the name of the defendant’s second wife, belonged in truth to the community once existing between said spouses.

The mortgages sought to be cancelled are, one in favor of Martha B. and Louis Ashbey, growing out of an act of mortgage of May 20,1885, and other inscriptions in favor of the same parties, touching their rights in the community between defendant and their deceased mother, who was the first wife of Joseph Ashbey, the full particulars and details of which mortgages are contained in the opinion of the court, rendered this day in the case of Martha J. Ashbey, Tutrix, vs. Joseph H. Ashbey et al. (No. 10,213 on our Docket).

The other mortgage involved in the rule is that in favor of the minor children, issue of Joseph H. Ashbey’s second marriage, resulting from an inscription of an abstract of the inventory of their mother’s succession, which bears date, June 30, 1884.

The adjudication herein referred to was effected in execution of the judgment rendered May 29, 1885, in favor of plaintiffs in this rule, against Joseph H. Ashbey, also described in the opinion of this court just referred to.

In answer to this rule, Joseph H. Ashbey filed numerous pleas and defenses, all contained in the same pleadings, and many of which are in the nature of dilatory exceptions. He pleaded:

1. The prescription of one year.

2. The misjoinder of parties as plaintiffs.

3. The want of proper parties defendants.

4. The incompetency of the court or division.

o. That a rule was an improper proceeding for the reliof'sought.

6. No cause of action.

7. That a conventional mortgage securing promissory notes cannot be treated as a nullity on its face.

8. The nullity of the adjudication to plaintiff, Mary Ashbey.

9. That, if valid, the adjudication was burdened with the minor’s mortgage.

10. That title to property cannot be determined by rule.

11. A claimed reduction of plaintiff’s judgment against J, H, Ashbey.

At a glance it appears that these pleas, which are promiscuously mingled, embrace many matters which, under correct practice, must be urged in limine; and the. record shows that defendant went into the trial on the merits without insisting on a decision of any of his exceptions. Hence he is debarred of the right of urging them on appeal. That rule of practice, which is as ancient as our jurisprudence, has been formulated, as follows:

A defendant, who does not insist upon the trial of an exception before the case is tried on the merits, is presumed to have waived the exception.” Kemple vs. Hunt, 4 La. 482. Powell vs. Graves, 15 Ann. 188; Cure vs. Porter, 18 Ann. 206; Richardson vs. Hunter, 23 Ann. 255; Tupery vs. Edmondson, 32 Ann. 1146; Hickman vs. Dawson, 33 Ann. 438.

But jurisprudence has recognized, and the condition of this case suggests, an exception to tills general rule, and that involves the error of plaintiffs in having utterly failed to make the mortgagees, whose mortgages are herein sought to be cancelled, parties as defendants in their rule.

It has been uniformly held in our jurisprudence, and indeed it stands to reason, that a mortgagee not made a party to proceedings by which a judgment was obtained, ordering the recorder of mortgages to erase the mortgage held by him, will not be bound by them.”

That doctrine, which is really an axiom of law and justice, has led this Court in many cases to refuse countenance to a proceeding looking to the cancellation of mortgages, without notice., to, or hearing from, the mortgagees, even in the absence of any plea' to that effect, and in many instances the Court has refused to order the recorder of mortgages to proceed to the cancellation, in the absence of such necessary parties, as this would be equivalent to an order to that officer to perform the duty at his peril. Florance vs. Mercier, 2 La. 489; Waters vs. Mercier, 4 La. 17; State vs. LeBlanc, Judge, 5 La. 330; Gasquet vs. Dimitry, 6 La. 453; French vs. Prieur, 6 Rob. 299; Leverich vs. Prieur, 8 R. 97; Delavigne vs. Gaiennié, 11 Rob. 171.

Now it appears from the record, that three of the inscriptions sought to be erased are in the names of Martha B. and Louis Ashbey; that one of the mortgages thus to be disposed of is the very act of May 20, 1885, this day recognized by the Court as a valid mortgage (in suit 10,213), and no attempt is shown on the part of plaintiff to have either of these persons, so vitally interested, made a party to these proceedings.

From the statement of'tlie pleadings, contained in the first part of this opinion, it appears that the plan of subjecting the minors to the rule is by notifying their father as their natural tutor.

But, as to them, the two-fold purpose of the rule is to cancel a mortgage in their favor against their father, and to declare that they own but one-half of a piece of valuable immovable property, of which they are prima facie the sole owners, and to invest the ownership of the other half in their father. Hence their interests are in opposition to those of their natural tutor, and under the law, he is incompetent to represent them in this controversy.

Article 275 of the Civil Code provides : “ It is the duty of the under-tutor to act for the minor, wlieuever the interest of the minor is in opposition to the interest of the tutor.” Frere vs. Frere, 1 New Series, 462; succession of Hebert, 4 Ann. 77; Holmes vs. Hempkin, 6 Rob. 51.

It is therefore safe to conclude that the minors, whose mortgage rights are directly involved and are actually jeopardized in this rule, were not properly before the court, winch rendered a judgment entirely annihilating their aforesaid rights.

Their undertutor, who should have been brought into the case, has joined in this appeal, in which his voice must reach the ears of the court.

The theory on which our jurisprudence rests the rule that a mortgagee is a necessary party to a proceeding intended to affect his mortgage, rests on sound policy of reason and justice.

In the case of Gasquet et al vs. Dimitry, 6 La. 454, the plaintiffs in rule sought to coerce the sheriff to cancel a certain mortgage, without a notice to the mortgagee; the sheriff refused to act without an order of court, and although tlie mortgagee made no appearace, the court discharged the rule and the decision was affirmed on appeal.

This Court said in that case:

Although these mortgagees are not parties to the rule, its being made absolute may do them great injury. They may not be bound by it, but the sheriff may release, and the recorder of mortgages, on the production of the release, may proceed to the radiation of these mortgages, and the radiation may occasion trouble and injury to these mortgagees, and subsequent purchasers. ,
“ The first duty of a judge is to hear ly party before he makes a decision to his injury.
Applying this proposition to the present case, we cannot say the first judge erred, when ho concluded that the person who required him to order the sheriff to release the mortgages, could not be heard because he had not made these mortgagees parties, or given them notice.”

This language, characterized by a spirit of wisdom, fairness and justice, is entirely applicable to tlie condition-of the instant case, and it effectively demonstrates that there is error in the judgment of the District Court, which had granted to plaintiffs’ in rule, all the relief which they had prayed for.

It is therefore ordered, adjudged and decreed, that the judgment appealed from be annulled, avoided and reversed, and it is now ordered, that plaintiffs’ rule be discharged at their costs in both courts.

Rehearing refused.