author: Poché, J.

text:
    No. 10,064.
    Robert N. Cochrane vs. Mrs. Alice Dickenson.
    The transferee of a negotiable instrument, such as a promissory note made payable to the order of the maker and by him endorsed in blank, holds the instrument clothed with the presumption that it was negotiated for value in the usual course of business, before maturity and without notice of any equities between the prior parties to the instrument. That presumption is not rebutted by proof that the notes had been negotiated by an agent of the maker, contrary to the latter’s instructions, who had left them in the possession of the agent for future negotiation according to special instructions to be given, and which were never given, without proof that such circumstances were made known to the transferee at the time, or in default of evidence tending tp show that the transferee was not in good faith.
    APPEAL from the Twenty-sixth District Court, Parish of Jefferson. Host, J.

      G. A. Breaux and H..JS. Tipton for Plaintiff and'Appellant:
    1. The renewal of a note and mortgage between the same parties, though the interest which has accrued be added to, the principal, is no novation. It is but a continuance of the same transaction, novation is the substitution, either of a new creditor, a new debtor, or a new debt. C. G. 2185; Bosenda vs. Zabriska, 5 H. S. 157; 4 B. 493; 34 Ann. 534,
    But receiving new notes operates no novation. Hobson vs. Davidson, 4 Mart. 431; Bothier Oblig. No. 559; Merlin Iíep. de Jur. Novation, § 5; Parson's Notes and Bills, Yol. II. p. 205, note.
    The renewal note is of the same illegitimate progeny as the first. Edwards on Bills and Promissory Notes, pp. 351, 352.
    2. Where the original note is without consideration, a note given in renewal thereof is likewise without consideration Copp vs. Sawyer, 6 N. H. 386 ; 5 Pick. 391: Parsons on Notes and Bills, pp. 178 and 179.
    Neither the rendition of an account nor giving of notes can pi •event the defendant from showing errors and inquiring into the consideration of a note in a suit against him. 16 Ann. 240; 13 Ann. 234, 413; 12 Ann. 20; 26 Anil. 668; 23 Ann. 312.
    3. The rule of law, that he who takes a note over due and dishonored, takes it encumbered with all the equities between the prior parties to it, is the law of Louisiana, as well as of tlipse States which have adopted the common law. 6 Wall. 492.
    The purchaser or pledgee of negotiable instruments after maturity, whose rights arc derived from one who was not the owner, and who was not authorized to sell or pledge, acquires no right or title thereto, or thereupon, as against the true owner. StemBrothers vs. Germania National Bank, 34 Ann. 1119, and authorities; C. 0 . 2252. The sale of a thing belonging to another person is null. This applies to past due obligations to pay money, as well as other property. 28 Ann. 70; 81 Ann. 215; 7 Wall. 700; 21 Wall. 143; 30 Wall. 90; 4 Peters, 321; 99 IT. S. 440; 26 Ann. 556; 13 Lit. 214.
    The doctrine is invoked, that where one of two innocent parties must suffer, the loss should fall on the one who enabled the third party to commit the fraud. This objection to the application of the principle now under discussion is not ne’v. 34 Ann. 1121. It has been made, considered and overruled, both by the Supreme Court ol' this State and the Supremo Court of the "United States. 6 Wall. 493; 28 Ann. 70; 34 Ann. 1121.
    4. Where the existence of the consideration is expressly put at issue and doubt or suspicion cast upon its reality, the burden of proving it is thrown upon the payee. 15 Ann. 41.
    5. To fix acquiescence on a party, it must unequivocally appear that ho knew, or had notice of ihe fact upon which the alleged acquiescence is founded, and to which it refers. * * A recognition resulting from ignorance of material facts goes for nothing. The question as to acquiescence cannot arise unless the party against whom it is set up was aware of his rights. A man cannot be said to acquiesce in what he does not know, nor can he be bound by acquiescence, unless fully apprised of Ms rights and all the material facts and circumstances of the case. Nor, indeed, is a recognition of avail which assumes the validity of a transaction, if the question as to its validity does not appear to have come before the parties. Kerr on Fraud and Mistake, pj>. 300 and 301, and authorities cited.
    The acts from which ratification is to be deduced must evince such intention clearly and unequivocally; none will be inferred when those acts can otherwise he explained. Kivas’ Heirs vs. Bernard, 13 L. 169 (176); Copeland vs. Micliie, 17 L. 286.
    To bind a man by ratification, it must appear that he knew witliprocission wliat act he was ratifying, and what defect he was waiving. Knight vs. Mentis, 23 Ann. 538.
    6. Whore the legal principle is confessedly doubtful, and one about which ignorance may well be supposed to exist, a person, acting under a misapprehension of the law, will not forfeit any of his legal rights by reason of such mistake. In “fraud,” as distinguished from “mistake,” there is necessarily a misapprehension or mistake in the party defrauded, which alone would not vitiate his dealings with others; but there is tbe additional circumstance that the party, with whom lie deals, intentionally causes the mistake for the purpose of effecting the dealing, and this precludes the party so occasioning the mistake from holding the other hound to it. Kerr on Fraud and Mistake, pp. 399. 406, aud authorities •
    Money paid voluntarily under mistake of fact, is recoverable both at law and in equity. Kerr on Fraud and Mistake, p. 415, and authorities.

      Error in law, as well as error in fact, invalidates a contract, where such error is its only or principal cause. It. C. C. Art. 1846,
    Fraud, as applied to contracts, is tho cause of an error bearing’ on a material part of tho contract, created, or continued by artifice, with design to obtain some unjust advantages to the one party, or cause an inconvenionce or loss to the other. It. O. C. Art. 1847.
    Fraud, lite every other allegation, must be proved by him who alleges it; but it may be proved by simple presumptions, or by legal presumptions, as well as by other evidence. Tho maxim, that fraud is not to be presumed, means no more than that it is not to be imputed without legal evidence. E. C. C. ATt. 1848.
    7. Parol evidence is admissible between the parties to show error in an act of mortgage.
    Tho doctrino of estoppel cannot be extended to a case of that description, particularly in a suit brought to correct tho fundamental error which arises between the original parties, and especially when the plea is urged by the representatives of the party against whom error is charged, and. who is represented by them as having fraudulently caused the error. 30 Ann. 549; 33 Ann. 1036, and authorities cited.
    It is a universal rule of jurisprudence that parol testimony is admissible to defeat written contracts when fraud is alleged; and error is often akin to fraud. 35 Ann. 361; 36 Aim. 550, and authorities cited.

      Beovy é Blair for Defendant and Appellee.
   The opinion of the Court was delivered by

Poché, J.

The object of this suit is to enjoin an executory process sued out by the defendant, as the holder and owner of four promissory notes, amounting together to $10,400, which notes are alleged to be null and void for want of consideration, and as having been obtained from plaintiff by the defendant by means of fraud and through misrepresentation.

Plaintiff alleges that, on the 2d of February, 1882, he executed two promissory notes, of $5000 each, payable one year after date, and signed an act of mortgage, intended to secure the payment of said notes, which he left in the possession and custody of the late William J. Castell, a notary public, before whom he signed the act of mortgage aforesaid, and whom he instituted as his agent, for the purpose of negotiating said notes, at some future time, under his instructions, whenever he would reed the amount of money which they were intended to secure. He then states that, although he had never authorized the actual negotiation of the notes, they were found in the possession of defendant, a short time after the death of Castell, which occurred on the 14th of November, 1885, the same having been illegally and wrongfully negotiated by said Castell to said defendant, long after théir maturity, and without consideration to him, plaintiff in injunction.

He then represents that on the 30th of November, 1885, he executed the four notes sued on by the defendant, intended to represent the ' aforesaid two notes of $5000 each and accrued interests, which ho secured by an act of mortgage of the same date, in error of his rights, through unlawful and fraudulent representations and without consideration. Hence, he contends that the new notes, being tainted with the same nullity which characterized the original notes of $5000 each, he is not liable for the same.

The defence is substantially that the two notes of $5000 each, which were in form negotiable instruments, transferable by delivery, were acquired by defendant from William J. Castell before maturity, and for valuable consideration, equal to the face value of the same, and that said notes remained her lawful property until the 30th of November, 1885, when they were surrendered or returned to plaintiff in exchange for the four notes now held by her and now in suit. She also avers that from the month of May, 1882, at which time she purchased said notes, until September, 1885, her aforesaid notes, together with other valuable papers, were left by her for safe keeping in the custody of said Castell, through whom, as defendant’s agent, she annually received payment of the interests becoming due on said notes, amounting in the aggregate to $2400.

She further states that, at the instance of plaintiff, she accepted, in lieu and stead of said notes, the four notes now in suit, secured by mortgage executed on the same day, November 30, 1885, on condition, required by plaintiff, that said new notes be made payable in one, two and three years from date, and of her allowing a mortgage in favor of another creditor of plaintiff, to secure a debt of $5000, of the same rank as the mortgage which secured her aforesaid notes.

She, therefore, contends that, by executing said new notes and mortgage, by paying a portion of one of said notes, without objection, and by other similar acts, plaintiff has fully ratified the act of hi8 agent, Castell, in negotiating the original notes of $5000 each.

The judgment below was in fayor of defendant, and plaintiff appeals.

The uncontested facts of the case are as follows : Plaintiff had for many jears been a constant client and customer of the late W. J. Castell, with whom he had close and confidential business relations, consisting in notarial business^ and also in negotiating loans of money, represented by notes intrusted to him for that purpose, which notes were generally secured by means of mortgages executed before Castell, as a notary. Castell had many other similar clients for whom he negotiated loans on notes and mortgages, similarly executed, and it appears that, in his usual dealings in that capacity, he had previously negotiated sundry notes to Mrs. Dickenson, the defendant herein.

Now, in reference to the particular transaction involved herein, the record "shows that plaintiff, in anticipation Of an approaching want of funds, signed," on the 2d of February, 1882, two notes, of $5000 each, payable one year after date, to be secured by mortgage on a valuable piece of property (tbe same which is now under seizure), in furtherance of which be affixed Ms signature to a blank printed form of mortgage generally used by Castell, leaving the notes in the latter’s possession, as Ms agent, for the purposes of future negotiation in accordance with the instructions to he given to the agent by him.

The notes remained in the physical possession of Castell until the month of September, 1885, during which interval tbe maker of the notes, on several occasions, in answer to his inquiries, was informed by Castell that they bad not yet been used or negotiated.

The act of mortgage was never completed, and was found after Castell’s death in the same unfinished condition in which it had been left by Cochrane on tbe 2d of February, 1882.

About a week after the death of Castell, Cochrane discovered that tbe notes were in tbe possession of, and held by, tbe defendant, Mrs. Dickenson, who soon thereafter made demand for tbe payment of the same. After consultation with their respective counsel, the parties agreed upon the contract evidenced by the act of mortgage of November 30, 1885, as hereinabove stated.

The amount of the capital ($10,000) was represented by three notes of equal amounts, payable in one, two and three years, and the sum of $800, representing interests on" tbe two retired notes of $5000 each, from the 2d of February, 1885, to tbe same day and month of 1886, was incorporated in a fourth note, payable on tbe 31st of March, 1886.

At the maturity of that note, plaintiff made a part payment of $410 on the same, and claimed the indulgence of defendant for time to meet payment of the balance due thereon.

All the other pertinent facts in the case are seriously contested, and tbe truth must be sought out of very conflicting testimony. As a result of tbe foregoing statement of uncontested facts, the legal attitude of Mrs. Dickenson, touching tbe two original notes of $5000 each, at the date of the new contract, on November 30,1885, was that of the bolder of negotiable instruments, from which flows tbe presumption, well established in American jurisprudence Rnd resting on commercial law, that they were negotiated for value in the usual course of business at the time of execution, and. without notice of any equities between the prior parties to the instrument.’’ Collins vs. Gilbert, 94 U. S. Reports, p. 754; Fairen vs. Bier, 37 Ann. 824; Saloy vs. Hibernia National Bank, 39 Ann. 90.

The burden of proof to support plaintiff’s contention that the notes were negotiated long after maturity, so as to open the door for evidence of equities between Castell and himself, is therefore on him.

The elements of his evidence on the point consist of his own testimony, going to show that the execution of the notes and his signature to the projected act of mortgage were mere initiatory steps towards a future negotiation of the notes, not to be affected in the absence of new and special instructions to that effect, which he never gave, going also to show that, on several subsequent occasions, Castell had assured him that the notes which he exhibited to him had not yet been used or negotiated, the last occasion being within six months or one year at most previous to Castell’s death. He also relies on the projected act of mortgage which was never completed, and stands yet without the signature of the notary.

As that evidence is uncontradicted, it must be held sufficient prima fade to rebut the presumption in favor of defendant’s acquisition, and to shift the burden of proof on her to substantiate her averment that the notes had been acquired by her before maturity.

This requirement is met by her own testimony, in which she states that some time in April, 1882, she called on Castell, informing him that she desired to make an investment of funds, and asking him if he had any good mortgage paper on hand for disposition in that way. Castell then offered her the two notes, of $5000 each, in question; but she then only had $5000 on hand, which were not sufficient for the amount of the notes. But as she expected soon to realize additional funds, it was agreed that by handing $5000 to Castell he would hold the notes for her, which was accordingly done. A few days after-wards she produced the additional amount of $5000, and the transaction was then closed, the two notes having been then and there delivered to her by Castell. But before leaving his office she concluded to leave the notes in his custody for safe keeping, where they remained, subject to her order, until some time in Septemper, 1885, at which time she took them in her own possession, for the ' reason that she feared that Castell would die in a short time. His death occurred on the 14th day of November following. She states that in February of each of the years 1883,1884 and 1885 the interests due on tlie notes were settled with her by Castell, as the agent of the maker, giving her credit in a running account which he had with her, embracing other moneyed transactions operated between them, and endorsing the fact of such payments on the back of each note at each settlement.

Her testimony is corroborated by several incidents shown by the record, among which are the following:

The first sum of $5000 handed to her by Castell was by means of a check, which he filled up in his own writing for her, made to her order and endorsed by her, on which she drew the money and immediately brought it over to him; the check, dated 22d of April, 1882, is in the record.

The second sum of $5000 handed to Castell was in a check, under date of May 3, 1882, for $3440, drawn, executed and collected in the same manner; in a sum of $350 in currency, and finally in a bond valued at $1210, accompanied by a memorandum, shown to be in his handwriting, containing an addition of the figures $3440 and 1660 = to $5000.00. The two notes in question also contain the endorsed payments of interest at each of the dates hereinabove stated.

An extract from the books of Castell also shows that defendant’s account with him was credited with the interests corresponding with the amounts and dates as endorsed on the notes.

The record also contains a certificate made out and signed by Castell, who therein acknowledges that, among other valuable papers, he held, on July 1,1884, for, and as the property of,-Mrs. Dickenson the two Cochrane notes of $5000 each. And all this is additionally corroborated by the testimony of defendant’s daughter whq was present at Castell’s office on several occasions when the settlement of interests took place, and the same were entered on the back of the notes. This same witness was also present at her mother’s house when Cochrane, on the 3d of April, 1886, made the part payment of the interest note of $800, on which occasion he uttered no complaints against the acts, doings and transactions of Castell, his agent in the premises, and when, in answer to defendant’s inquiry, he.stated that he had not received all of the amount for which his note had been negotiated.

Her testimony is in the main corroborated by that of her brother, who, in addition, relates two conversations which he had with Cochrane in reference to this business, in which the latter took occasion to explain the reasons for which he had issued the two notes in question, and during neither of which he ever intimated that there was anything wrong about the transaction through which Mrs. Dickenson had acquired the ownership of those notes. In the attempted re-' futation ot all that evidence which is actually overwhelming, when considered with reference to the difficulties which surrounded the defendant by reason of the death of Castell, the most important factor in the case, plaintiff’s sole reliance is on his own testimony, and on circumstances of doubtful aspect and of suspicious appearance.

The leading fact deduced from his testimony, which is to the effect that Castell had repeatedly informed him that his notes had not yet been used or negotiated, and that he exhibited them to him on each of those occasions, is not essentially imcompatible with the fact that the notes had really been acquired in good faith by Mrs. Dickenson. That circumstance is satisfactorily explained by the proof in the record that after her purchase of the notes Mrs. Dickenson had left them in the custody of Castell, at his own suggestion and for reason which are too plain and too apparent to require any further elucidation.

lie also invokes the fact that in the paraph of one of the notes the date is February 2, 1884, instead of 1882, which is the date in the paraph of the other note and of the execution of both. We attach no importance to that circumstance, which is either a clerical error, or a fraudulent design of plaintiff’s agent intended to the detriment and not to the advantage of Mrs. Dickenson.

She dealt with him in absolute good faith and in full trust in his judgment as well as in his honesty, having been entirely guided by her confidence in his representations as to the validity of the mortgage, of plaintiff’s titles to the property, its value on the market, and in all matters touching the value of the securities which she was buying. As the act of mortgage is avowedly incomplete and conferred no rights whatever, the date of the paraph on the notes loses all significance, at least in so far as it is invoked to assail Mrs. Dickenson’s good faith. Nor do we find any element of fraud in her conduct throughout the negotiations which led up to the contract of November 30,1885. True she did not inform plaintiff or his counsel that the act of mortgage of 1882 had never been completed. But he does not pretend that he was ignorant of that fact, which was as much within his reach as in that of Mrs. Dickenson. His own testimony shows how he discovered the whereabouts of his notes, which was by inquiry at the office of the custodian of all of Castell’s papers. He says himself that he was advised by his counsel that he was liable on the notes because they were held by a third person, and that his whole line of conduct was thereafter shaped under the sense of that responsibility.

All the foregoing considerations logically lead to the conclusion that the two notes of $5000 each had been purchased by Mrs. Dickenson from Wm. J. Castell before maturity, for valuable consideration, in good faith and without the slightest knowledge or intimation of any irregularity or defect in his possession and control of the same. Hence we hold that plaintiff was liable on said notes, and that he is legally bound by the contract of November 30, 1885, by which he did, as he manifestly intended to, ratify the act of his agent in the previous transaction. Givanovich vs. Citizens’ Bank, 26 Ann. 15 and authorities hereinabove referred to. The case is therefore with the defendant.

Judgment affirmed.


source: Caselaw Access Project

author: Watkins, J.

license: Public Domain

text:
    No. 9997.
    Meyer Weill.—Mechanics and Traders’ Insurance Company vs. Mrs. Mary Ann Levi et al.
    Where a fund exceeding §2,000, realized by the sale of mortgaged property, is in the hands of the sheriff, and the whole fund is claimed by the seizing creditor, and §1,000 of said fund is claimed by a third opponent in preference to said creditor, this Court lias jurisdiction of the case.
    The controversy involves the distribution of the entire fund.
    Where* the minutes of the court show that the motion for the appeal and the order thereon granting the appeal were made in open court, parol evidence is inadmissible, in the absence of any averment,of fraud or error,-to contradict the record. The record is conclusive.
    Sections 128 and 2897 of the Revised Statutes confer no privilege upon real estate in favor of ' attorneys at law for their professional fees in obtaining judgment maintaining the title and possession of defendants in a petitory action.
    The moment such a judgment becomes final its object is attained, and nothing remains to which a privilege could attach.
    APPEAL from the Civil District Court for the Parish of Orleans. Voorhies, J.

      Singleton, Browne <& Choate and Percy Roberts for Plaintiffs and Appellants.

      W. S. Benedict, Chas. Louque and Farrar & Kmttsclimitt for Defendants and Appellees.
   On Motion to Dismiss.

The opinion of the Court was delivered by

Todd, J. The motion rests upon two grounds :

1st. Want of jurisdiction; and

2d. Want of proper order of appeal.

The plaintiffs seized and sold certain real estate of the defendant, which realized $13,000. A third opposition was made claiming $1,000 out of that amount in preference to the plaintiffs.

The contest relates exclusively to the distribution of a fund exceeding $2,000. The plaintiffs claim the entire fund,

It has been decided in a similar case that this Court had jurisdiction. Renshaw vs. Stafford, 34 Ann. 1138.

The third opponent, who is appellee, claims that the motion of appeal was not made and granted in open court; and for the purpose-of showing this, he obtained from this Court a qualified order authorizing the court of the first instance to receive evidence on the subject.

The minutes of that court show that the motion was made and allowed in open court.

The order for the reception of evidence by the lower court reserved the right of the appellant touching the admissibility of the evidence.

An entry on the minutes may, in exceptional cases, be attached and declared null, but this could only be done for causes and reasons which have not been alleged in the instant case.

Under the showing made, the proof adduced by the appellee is inadmissible and cannot be considered.

The minutes as they stand conclude him. 4 N. S. 176; 14 Ann. 726; 34 Ann. 1117.

The motion is therefore denied.

On the Merits.

Watkins, J.

The plaintiffs, as mortgage creditors of the defendant, Mrs. Levi — Meyer Weill for the sum of $5,000, and the Mechanics and Traders’ Insurance Company for $10,000 — in separate executory proceedings, caused the mortgaged property to be seized and sold; and the sum of $13,500 was realized, an amount insufficient to satisfy their demands.

In each of these proceedings Charles Louque filed an intervention and third opposition, in which he claims the sum of $1,000, with privilege on the mortgaged property superior in rank to the plaintiffs’ mortgages, as compensation due him for professional services rendered Thomas J. Sellers, a former owner, in maintaining his title to the property sold.

Thomas J. Sellers, as third opponent, claims the sum of $200 for rice straw fed to the stock on the plantation, while it was under seizure, to be paid him in preference to all others.

These claims were first made in the suit of Meyer Weill vs. Mary Ann Levi — this plaintiff having made the first seizure — and, on the trial of the eoneursus thus formed, the judge a quo gave judgment in favor of Louque in full, and of Sellers for $100, and recognizing their' privileges as superior to those of the mortgage creditors; and the latter have appealed.

. Louque seeks to recover for professional services rendered to the defendant in the petitory action, entitled F. E. Trepagnier vs. Thomas J. Sellers, in which plaintiff’s claim of title was successfully resisted, and that of defendant maintained. During the pendency of this suit the defendant, Mrs. Levi, purchased the property from Sellers, at the price of $32,801.73, which was represented in great part by her assumption of a previously existing and duly recorded mortgage of Sellers. Her title was registered in the book of conveyances on the 14th of January, and the Sellers mortgage was registered in the mortgage office on the 5th of January, 1884. Louque’s affidavit, stating his lien and privilege on the judgment (then recently rendered) and on the property, was recorded in the book of mortgages on the 11th of January, 1884. The two mortgages in favor of the appellants were in part concurrent, and executed by Mrs. Levi on the 15th of April, 1884.

If Louque’s demand is well grounded in law, it ranks that of the seizing creditor’s, as it was first recorded. The Sellers mortgage assumed by Mrs. Levi as a part of the purchase price of the property has been paid and discharged; and she, having been divested of title by a judicial sale, is without interest in this controversy. Louque’s affidavit was recorded prior to Mrs. Levi’s title. His reliance is placed on the provisions of Revised Statutes, sections 128 and 2897, which are as follows, viz: “A special privilege is hereby granted in favor of attorneys at law for the amount of their professional fees on all judgments obtained by them, to take rank as a first privilege thereon.” His contention is that the judgment he obtained for Sellers, decreeing him the owner of the property, conferred upon him a privilege on the property; while thac of the appellants is, that the privilege is restricted to the judgment.

The statute in terms confers “ a special privilege * * * in favor of attorneys at law on' * * * all judgments obtained by them.” Privileges are strieti juris and cannot be extended by inference to other objects than those mentioned in the statute granting- them. Gruided by this familiar rule of interpretation, our conclusion is that opponent Louque’s demand is unfounded and should have been rejected in the court below. In our opinion this statute was not intended by the Legislature to confer upon an attorney at law a lien or privilege upon hia client’s property, real or personal, for professional services rendered in the maintenance of his possession or ownership thereof.

In a recent case, Luneau, tutrix, vs. Edwards, adm’x — decided at Opelousas, vide 39 Ann. 876 — we employed the following language: .“The privilege granted bylaw, in Section 128 of the Revised Statutes, in favor of attorneys at law, for the amount of their professional fees, on all judgments obtained by them, cannot be extended so as to affect property which the creditors may have acquired in execution or satisfaction of the judgment. When the judgment has been satisfied it ceases to have a legal existence, and hence it cannot be applied to any privilege or other legal purpose.”

In the case of Trepagnier vs. Sellers, the judgment maintained the defendant’s title and possession. The moment that judgment became final its mission was ended and its object attained, without the issuance, even, of a writ of possession. It was a judgment of that class which recognizes the status of a thing, and which ceases to have a legal existence the moment it is created — except as a muniment of title — and to which a lien or privilege could not attach.

The claim of Sellers rests mainly on the evidence of witnesses, whose testimony was heard and considered by the judge of the court below, and we are not prepared to differ from him in his appreciation of it.

It is therefore ordered, adjudged and decreed that the judgment of the lower court in favor of the opponent, Charles Louque, be reversed at his cost, and that the judgment in favor of T. J. Sellers be affirmed; and that the cost of appeal be shared ratably by appellants and Louque.


author: Fenner, J.

text:
      No. 10,054.
    People's Bank vs. Harry Cage et als.
    ■When the vendor transfers tlie notes for fclie price, for a valuable consideration, to a third person without endorsement and without recourse or warranty, his right and power to demand or receive payment of the price ceases to exist, and with it his right to demand aresolutionof the sale in event of non-payment, and the corresponding obligation of the buyer.
    Every obligation is the correlative of a corresponding right, and when the light is destroyed the obligation is equally extinguished.
    The modes of extinguishing obligations mentioned in C. C. 2130 embrace only those general ones applicable to all obligations, and are not exclusive of a multitude of other particular causes of extinguishment applicable to each peculiar kind of obligation.
    The subsequent reacquisition of the notes by the vendor does not operate to revive this ob* ligation which had been thus extinguished.

      APPEAL from fclie Nineteenth District Court, Parish of Terrebonne. Allen, J.
    if. C. Oage for Plaintiff and Appellant.

      Brcmglm, Buck, Binkmspiel & Bart for New Orleans National Bank, Defendant and Appellee.

      Samuel L. Gibnore for Hibernia National Bank, Defendant and Appellee:
    1.A restoration or an offer of restoration of the amount received on account» of the purchase price is an absolute condition precedent to an action to resolve a sale for nonpayment of price. This restoration or offer of restoration must be alleged and pioved by the plaintiff in the action as an indispensible preliminary to his suit and cannot be avoided by his attempting to show or by his showing, that the rents and revenues of the property are worth more than the amount he has received on account of the price. Latham vs. Hickey, 21 Ann. 425 ; Lee vs. Taylor. 21 Ann. 514; George vs. Knox, 23 Ann. 354; Heirs of Castle vs. Floyd, 38 Ann. 587; Hennen’s Digest, page 1020, Ho. 19.
    2.Asale cannot be annulled for the non-payment of a portion of the price, where the parties, from their transactions, have rendered it impossible to place each other in the same situation they were in before the sale. Leflore vs. Carson, 7 Ann. 65. See also cases on-the doctrine that transferrer cannot compete with transferree. Howard vs. Schmidt, 29 Ann. 133-4; Barkdull vs. Herwig, 30 Ann. 621; Abney vs. "Waimsley, 33 Ann. 589.
    3.The right to sue for the resolution of a sale of property for non-payment of its price is transferable by a special contract to that effect. Heirs of Castle vs. Floyd, 38 Ann. 583 ; Hamilton vs. State Hational Bank, Southern Reporter, page 126.
    4.A sale of the notes representing all the unpaid balance of the price of the property transfers the resolutory action to the purchaser of the notes when such sale is accompaniedby an act subrogating the purchaser of the notes to all the rights, actions and remedies the vendor had by virtue of the act of sale of the property and giving him authority to exercise these rights, actions and remedies in the same form and manner as the vendor himself.
    5.The sale of the notes representing the unpaid balance of the price of the property extinguishes and terminates in the vendor the right to sue for the resolution of the sale. He is paid the price in the money he receives for the notes, unless he keeps the debt for the price alive for the benefit of the purchaser of the notes by a special contract conveying the right to the resolutory action.
   The opinion of tbe Court was delivered by

Fenner, J.

On January 7, 1876, t>be People’s Bank sold to Harry Cage certain immovable property for a price of $8000, of which $1000 was paid in cash and the rest was represented by six equal promissory notes, secured by mortgage aud vendor’s privilege, and falling due respectively in the years 1877 to 1882, both inclusive. All but the last two nqtes were paid.

In 1884, after their maturity, the bank transferred these two notes (which were payable to Cage’s own order and by him endorsed) to Gidiére, Day & Co., executing at the same time a notarial act reciting that it had received in cash the full amount of the notes, that the transfer was made ‘‘withoutrecourse on said bank or warranty of any kind,” and also containing the clause that the bank does, “ moreover, cede, transfer and assign to said Gidiére, Day & Co. all of said bank’s rights and interest in and to said notes, and to the mortgage securing the same, hereby subrogating the said Gidiére, Day & Co. in and to all of said bank’s rights, mortgages, actions, liens, privileges and remedies, to which it is entitled, under and by virtue of the provisions, clauses and conditions in said act of mortgage contained, to be by the said Gidiére, Day & Co. enjoyed and exercised in the same manner and to the same extent as they could have been by the said People’s Bank itself.” «

A few days thereafter, Cage executed in favor of Gidiére, Day & Co. a mortgage to secure two notes of $8500 each, which are now held respectively by the Hibernia National Bank and the New Orleans National Bank.

Subsequently, Gidiére, Day & Co. discounted their own note in the People’s Bank, as security for which they pledged the two original mortgage notes of Cage, which they had bought from the bank; and, later, by the foreclosure of this pledge, the bank again became the owner of said notes.

Haiving suffered its mortgage to lapse by failure to reinscribe, it brings the present suit to resolve the sale for non-payment of the price represented by said notes, to which it makes Cage and the Hibernia and New Orleans banks parties.

Various interesting questions are presented in argument, but it is apparent from the face of the foregoing statement that plaintiff has no case.

Under our law the resolutory condition implied in all commutative contracts gives to the seller of property the right to dissolve the sale in case the buyer fails to pay the price. C. C. 2046, 2561.

Undoubtedly in every contract of sale there is tacitly embodied an obligation on the part of the buyer to restore the thing sold to the seller, on the latter’s demand, in case he fails to pay the price.

It is now well settled that this obligation is, in some sort, personal to the seller and does not pass with the transfer of the notes representing the price to a third person, at least without a special transfer of this particular obligation with subrogation. Hamilton vs. State National Bank, 39 Ann.; Castle vs. Floyd, 38 Ann. 583; Swan vs. Gayle, 24 Ann. 503.

We need not now definitely decide whether this peculiar obligation is transferable at all, or whether, if transferable, the language of the notarial subrogation quoted in this case was sufficient to embrace it. If it was transferred to Gidiére, Day & Co., it is clear that it was never retroceded by them to plaintiff, and hence he has no standing to enforce it.

But if it did not pass to Gidiére, Day & Co. it is equally clear that the obligation was extinguished by the transfer of the notes by the seller, for a valuable consideration, without recourse or warranty.

Had the plaintiff remained bound as endorser on the notes, the case might have been different. But the transfer without recourse completely severed his connection with the contract of sale otherwise than as warrantor of the title to the buyer; and, leaving him without right or interest to demand payment of the price, equally destroyed his right to demand resolution of the sale on the ground of non-payment. Every obligation is the correlative of a corresponding right; and -when the right is destroyed, the obligation necessarily falls with it.

Tins seems plain enough in reason and common sense, and is only confused by the groundless assumption on the part of plaintiff’s counsel, that obligations can only be extinguished by one of the nine modes mentioned in article 2130 of the Civil Code, and by his claim that, as not one of those modes has operated to extinguish this obligation, it must, ex necessitate rei, continue to exist.

The fallacy of this argument will be exposed by a brief quotation from Marcadé’s commentary on the corresponding article of the Napoleon Code:

Besides these general modes, there is a multitude of other causes of extinguishment peculiar to each special kind of obligation. Thus the obligation of a tutor to take charge of the person and property of his waid ceases, not only by the death of either, but also by majority or emancipation of the minor, or by the destitution or excuse of the tutor; my obligation to discharge the mandate which I have accepted ends not only by death, but also by my renunciation or by your revocation of the mandate, etc. These are methods of extinguishment peculiar to particular obligations,which the law does not concern itself with in a title consecrated .to the general principles common to all obligations.” 4 Marcadé, p. 508.

In the instant case, at the moment when the vendor parted with the right or power to demand or receive the payment of the price, he lost the right to enforce the penalty of resolving the sale because of nonpayment, and the correlative obligation was necessarily destroyed. This would hardly be questioned had Oíd i ere, Day & Co. remained owner of the notes. But the.vendor’s reacquisition of the notes could not revive an extinguished obligation.

For extinct obligations there is no resurrection. New ones may bo created, but the dead rise not again.

Judgment affirmed.


text:
    No. 9873.
    In the Matter of Orloff Lake, Praying for a Writ of Possession Under a Tax Title, and the Third Opposition and Injunction of John Leslie.
    Section 3 of Act 82 of 1884, wliicli declares that a tax title executed before a notary shall be conclusive evidence of the following facts:
    1st. That the property was assessed according to law;
    2d. That the taxes were levied according to law;
    3d. • That the property was advertised according to law:
    4th. That the property was adjudicated and sold, as recited in said deed;

    5th.- That all of the prerequisites of the law were eomplied-with by all the officers, from the assessment, up to and including the execution, and registry of the deed to said purchaser, — was only intended to conclude enquiry into the non-essential requisites to the exercise of the taxing powor.
    The provisions of that section necessarily imply that all the jurisdictional prerequisites have been complied with; and if, in point of fact, they have not, the tax title does not preclude an action of nullity based on non-compliance therewith.
    The Legislature had ample power to enact such a statute, and the act in question is not open to the objection of unconstitutionality urged against it.
    APPEAL from the Civil District Court for the Parish of Orleans. Tissot, J.

      Joseph H. Spearing, for Plaintiff and Appellant.

      Frank Hebert, for Defendant and Appellee.

      M. J. Cwvnmgham, Attorney General, and James G. Moise as Amici Gurice.

      Braughn, Buck, Hinkelspiel & Hart, and B. B. Forman, on the side of Defendant and Appellant.
   On Rehearing.

The opinion of the Court was delivered by

Watkins, J.

On the 14th of September, 1885, Orloff Lake became the adjudicatee of the following-described property, viz : “Twenty-six (26) certain lots of ground in the Sixth District of the city of New Orleans, in the square bounded by Tchoupitoulas, Jersey, Valmont and Leontine streets, designated as lots numbered 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13,14,15,16,17,18, 19, 20, 21, 22, 23, 24, 25 and 26, and (which) “ form and comprise square No. 127. Said square No. 127 measures * * 280 feet 10 inches and 6' lines front on Levee street, same on Jersey street, and 354 feet front on Valmont street, and same on Leontiné street.”

The adjudication thereof was made by the State Tax Collector, under the terms and provisions of act No. 82 of 1884, to enforce the payment of certain unpaid State taxes, due on said property for the years 1869, 1873, 1874, 1875, 1876, 1877 and 1878, as that of Mrs. Helen P. Harrison, or her estate or heirs, as the present owners thereof.

In pursance of said adjudication the tax collector executed to the said purchaser an absolute and irredeemable title to the said property, with the-right to immediate possession thereof, and with full warranty.

This title was duly registered in the conveyance office, and thereunder the adjudicatee applied to the court for a writ of possession.

To this writ of seizure and possession John Leslie made opposition on the following grounds, viz :

1. That said property was acquired in 1853 by the late).Mrs. Helen P. Harrison, and that she departed this life on the 4th~of July, 1859, leaving as her sole surviving heir her minor child, Daniel C. Harrison, who became of full age in 1874.

2. That said property was inherited by said heir as a part of her estate.

3 That in October, 1885, said Daniel C. Harrison was recognized by the court as the sole heir of his said deceased mother, ard, as such placed in possession of all her property, including the property hereinbefore described.”

4. That he (opponent) u has lately acquired, through said Daniel O. Harrison, all the rights, title and interest of said D. C. Harrison and of said Mrs. B. S. Harrison (should be Mrs. H. P. Harrison) in and to said property,” by notarial act, of date March 29,1886.

6. That in August, 1885, said [property was advertised and sold to Orloff Lake,[in the enforcement of certain delinquent taxes enumerated under the provisions of act 82 of 1884.

7. That the advertisement of said property for sale, and said adjudication and sale, were illegal and void, on the following grounds, viz:

a. “ Because the property was not assessed for any of said years 1872 to 1878, in the name of said Mrs. H. P. Harrison, or in the name of the estate of Mrs. H. P. Harrison, or in the name of D. O. Harrison, the owner thereof, during said years; but the same was illegally assessed in the name of John Boylan, who was never the legal owner of said property.”

b. “ Because said property was insufficiently and illegally described on the assessment rolls for said years 1872 to 1878 inclusive; that the descripción of said property on the assessment rolls for said years was not in accordance with law.”

c. “Because, neither said D. C. Harrison nor any person interested in said property ever received any notice of the assessment of said property for any of said years, or any notice that any taxes were due on same for said years, or any notice that said property would be advertised or sold to enforce the payment of said taxes, nor did any one interested in said property receive any notice of said sale.”

d. Because the State taxes on said property for the year 1878 liad been paid previous to said advertisement and sale.

e. Because said advertisement was contrary to the provisions of act 82 of 1884, said property having been advertised as that of “Mrs. H. P. Harrison, or her estate and heirs (as) the present owners.”

f. That, if Act 82 of 1884 authorized the tax collector to change the assessment of the property, or to advertise the same otherwise than as it was assessed, it was an unconstitutional law.

g. Because said property was never adjudicated to the State, and was not so advertised, and that same was simply advertised for sale to enforce the payment of delinquent taxes, and said advertisement and sale were contrary to the provisions of act 82 of 1884, as it only provided for the sale of property that had been previously adjudicated to the State.

8. That Act 82 of 1884 is unconstitutional, on the the following grounds, viz. :

aa. Because all the objects of the act are not expressed in tie title.

bb. Because the act comprises, deals with and legislates on more than one object.

ee. Because it provides for the divestiture of title to property, “without due process of law,”

dd. Because said act is retrospective in its provisions, and operates as a divestiture of vested rights.

ee. Because said act provides for notice by public citation only, in violation of Article 210 of the Constitution.

ff. Because said act does not provide for, nor allow, the right' of redemption, in violation of said Article 210.

gg. Because said act confers upon tax collectors judicial powers in violation of Articles 14, 15, 80 and 210 of the Constitution.

hJi. “Because it is beyond the power of the legislature to provide that an act (of sale) shall be conclusive evidence, as provided in said act.”

The tax collector’s act of sale is annexed to and made a part of the opponent’s petition.

To this petition the adjudicatee and petitioner tendered a plea of no cause of action. This was overruled by the judge a quo, and on the trial of the merits, he rendered judgment in favor of the opponent, sustained his injunction and annuled the sale to Lake. From this judgment the adjudicatee and petitioner for a writ of possession, has appealed. The correctness of the ruling of the lower judge on the petitioner’s exception is the principal question in the case, and we will first examine and dispose of it.

That exception was predicated on the provisions of Section 3 of Act 82 of 1884, which is couched in the following terms, viz..:

“That each tax collector * * * shall, as soon as said adjudications to bidders are made and complied with, execute to each purchaser a deed of sale in the name of the State, of each specific piece of property, before a duly qualified notary public, by authentic act * * * a duly certified copy of which deed shall be prima facie evidence of the following facts :

“1st. That the property conveyed was subject to taxation;

“2d. That none of the taxes for which said property was offered was paid;

“And said deed shall be conclusive evidence of the following facts :

“1st. That the property was assessed according to law j

“2d. That the taxes were levied according to law ;

“3d. That the property was advertised according to law ;

“4thi. That the property was adjudicated and sold as recited in said deed;

“5th. That all of the prerequisites of the law were complied with, by all the officers, from the assessment up to and including th'e execution and registery of the deed to said purchaser, etc. * * * If only

a portion of the taxes for which the property is sold are proved to have been paid, the sale and title to the purchaser shall, nevertheless, be good and valid the same as if all the taxes for which it is sold, had not been paid.”

We are to ascertain what is the true and correct import of the language employed in this legislative enactment, in so far as same bears on this controvesy.

In our opinion we said “that precedents are not wanting to show that in several 'sister States their legislatures have been recognized as having the power of making such deeds conclnsime as to non-essential prerequisites, but the exercise of legislative power has never been sanctioned, so as to make such deeds conclusive as to essential prerequisites. * * *

“It would serve no useful purpose to enter into an examination of the prerequisites which are deemed essential and non-essential, as for the purposes of this case it is amply sufficient to say that all the decisions and commentators agree that the omission to assess at all the property to which the deed is made, is a radical, or fatal defect, which strikes the proceedings with nullity.”

On this hypothesis we expressed the opinion that the opponent had a right to attack the act of sale in question, and show that the property had never been assessed; and, upon an examination of the evidence adduced in support of opponent’s assault upon it, we came to the conclusion that lots 5 and 8 had never been assessed at all.

A re-examination of the record has induced us to modify our opinion in some particulars, but without altering our conclusions with regard to the law.

Reference to the paragraphs we have quoted from the petition of opponent, will disclose that he does not allege that no assessment was made at all, but that he does allege that “the property was not assessed in the name of Mrs H. P. Harrison, etc.that same was illegally assessed in the name of John Boylan,” and that it was “illegally and insufficiently described on the assessment rolls, etc.”

The opponent does not allege that the property was not subject to taxation, or that all thp taxes for which the property was sold had been paid. Of these ingredients the act of sale furnishes prima facie evidence, and not being assailed for the want of either, it is full proof of their existence.

This view necessitates an examination of the statute, the constitutionality of which is drawn in question, and a comparison of it with the several charges preferred against the tax title.

It is well settled by the decisions of this Court, as well as those of the courts of our sister States, that the essential, jurisdictional prerequisites for the exercise of the taxing power are, viz.:

1st. The listing and assessing of the property.

2d. The levy of the tax upon it.

3d. The statutory warrant for its sale.

4th. A sale made under this statutory warrant.

Do we understand that the statute under consideration makes a tax title conclusive as to either? No. What is meant by the phrases : “ That the property was assessed according to laxo? ” “ That the taxes were levied according to law?” “That the property was advertised accimling to laxo?” “ That the property was adjudicated and sold as recited in said deed?

Do they not necessarily imply that all those essentials had been fulfilled, and that the tax title is only made conclusive evidence that, if performed, they had been performed “according to law?” Does it not. follow, as a legal sequence, that, as opponent’s complaint is that his property was not assessed in the -name of the true owner, and was illegally assessed in the name of John Boylan, it is excluded by rhe deed, because it furnishes conclusive evidence of the correctness of the assessment, if made at all? It would seem so.

In Dorsey vs. Hill, 4 Ann. 107, plaintiff enjoined an execution on the ground “ that the advertisement was illegal, because it was made by a person not authorized to perform the act,” and the Court held that the suit put at issue the capacity of the officer only.

Bottom vs. Breed, 4 La. 344, an exception was taken to the admissibility of a document in evidence, on the ground “that it did not appear that the sale was made by a legal officerand the Court held that these reasons ought not to have prevailed against the introduction of this piece of evidence, because the person who executed the process was an officer defacto.

As, in each of those cases, the capacity of the officer was put at issue, and not the fact of an -advertisement or sale, so, in the instant case, the opponent has put at issue the legality of an assessment in the name of John Boylan, and not the fact of an assessment at all.

Opponent’s complaint is not well founded, because it is made of non-essentials, which are cured by the execution of the tax title.

With regard to the alleged unconstitutionality of the law, we think opponent is in error. A simple inspection of the title of the act will suffice to show that its object is set forth distinctly, and a perusal of the act will disclose that its only object was to inforee the ordinance for the relief of delinquent taxpayers.

We do not regard the provision of the statute, in any sense, retrospective ; nor can we perceive in what way they can divest vested rights. The legislature only iutended to provide the manner in which valid sales could be effected of property on which delinquent taxes are due the State prior to the year 1879, and whereby such taxes could be collected.

The ordinance referred to provides that “all interests, penalties, etc., * * on taxes and licenses due the State * * prior to tlie first day of January, 1879, and yet unpaid, are remitted,” etc.

“ In the event the principal of said taxes and licenses is not paid by said time, the interest, penalties, etc., * 1 hereinbefore remitted, shall revive and attach to the property upon which the taxes and licenses are due, and such property shall then be sold, in the manner to he provided by law, and the title of 'the purchaser shall be full and complete,” etc.

In the effort to enforce this ordinance, the legislature passed Act No. 107 of 1880, and, subsequently, Act No. 98 of 1882; but great difficulty was experienced in giving good and sufficient titles to property sold under them, and the State was thereby deprived of this source of revenue to a great extent; hence, the passage of Act No. 82 of 1884 became a necessity. It deals exclusively with the proceedings necessary to effectuate sales of such property as are subject to such delinquent taxes, and the execution and effect of tax titles evidencing such sales. It is a remedial law, authorized b3r the terms of said ordinance. Certainly, the opponent has no vested right in the property that will be divested by the sale made under it, because his vendor, D. C. Harrison, was not placed in possession of his mother’s estate until after it was made; and the taxes sought to be collected thereby were assessed against her succession and heirs, and he purchased cum onere.

That such proceedings as those provided by this act constitute “due process of law,” in the sense of the Constitution, has been so often decided, that it may be classed as an elementary principle in matters of taxation.

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 taxpayers, to delinquent taxes that were assessed in years antecedent to its adoption by the people.

All tax sales made in pursuance of Article 2.10 are jedeemable within one year; but those made in pursuance of said ordinance and law are not redeemable at all.

W-e do not think the act confers judicial powers on tax collectors.

The objection made to the effect that the legislature was without power to pass a law declaring that a tax title shall be conclusive evidence, as- provided in the act under discussion, has been virtually disposed of already, as we have ascertained that it has no reference to essential, jurisdictional prerequisites. We think the law is constitutional, and the exception of no cause of action should have been sustained.

It is, therefore, ordered, adjudged and decreed that our former decree be and the same is annulled and set aside, and that the judgment appealed from be annulled, avoided and reversed; and it is further ordered, adjudged and decreed that the demands of opponent be rejected at his cost in .both courts.


author: Bermudez, C. J.

text:
    No. 10,111.
    Citizen’s Bank vs. Louise Tureaud et als.
    Proceedings for the distribution of funds in the hands of a sheriff and arising from a sale, partake of the nature of a concurso and resemble a tableau of distribution.
    In such oases, particularly when there exists a clash of interests, it is indispensable that all the claims affecting the proceeds in hand be considered together, and determined by one and the same judgment, and not piecemeal or separately.
    This is essential, to avoid confusion and injustice.
    In the instant case, as two out of several claims have been passed upon separately, and those having an interest to resist them were not made parties, this Court is powerless to review the judgments complained of.
    A APPEAL from the Twenty-second District Court, Parish of St, James. Most, J.

      E. O. Miller and M. G. Mugué for Plaintiff and Appellee.

      Sims & Moché for Defendants and Appellants.
   The opinion of the Court was.delivered by

Bermudez, C. J.

The contentions in this case relate to the distribu tion of tbe proceeds of real estate sold to satisfy plaintiff’s vendor’s claim.

The amount realized, $6,800, is claimed by a number of opponents who seek preference, the ones over the others, resulting from conventional and judicial mortgages and privileges.

It is unnecessary to state in what particulars the demands respectively clash. It is enough to say that they do, and that they aggregate nearly twice the proceeds of sale.

Two only of those claims were considered and determined below. This was done over the objections of one of the opponents. They were tried and passed upon on different days and by separate judgments, which apparently conflict together and seem to have been left for interpretation and enforcement to the discretion of the executive officer of the court.

The. remaining oppositions were not tried, and as far as the transcript shows, are still pending.

It has been well observed, that proceedings of this character partake .of the nature of a concurso and resemble a tableau of distribution. Bowman vs. McKleroy, 14 Ann. 594.

In successions, in surrenders, and in all kindred matters in which funds are involved for distribution, as the common pledge of creditors, it is indispensable, in order to avoid confusion and injustice, particularly where there exists a clash of interests, that all the pretensious affecting the money in hand be tried together and adjudicated upon by one and the same judgment, which, it is important to all concerned, should not be rendered separately and piecemeal, after diffeient trials.

The first judgment here was upon a rule of the bank against opponent Heath, who had subsequently taken one also. It ordered the payment of the bank’s claim, $3,300, with interest, attorneys’ fees, etc., after retaining an amount sufficient to pay Heath, say $2,200, with .interest, attorneys’ fees, should he therealter be decreed entitled thereto.

The second judgment appealed from is on the opposition of Mrs. Gaignard for a priority. That judgment ordered the payment of her claim, some $3,000, by preference over Heath, or so much thereof as may remain after paying the bank, in case there should not be enough to pay both.

The rules were not tried contradictorily with all the parties who had an interest to resist them and who claimed superiority.

That which the district court could not do, it is not in our power to accomplish.

All the opponents must be heard at one and the same time, befoie there can be rendered any judgment upon the validity and rank of their respective claims.

When this shall have been done, and the adjudication shall be brought up for review, it will become our duty to hear and determiue, but not until then.

It is therefore ordered and decreed, that the judgments appealed from be reversed, and that the case be remanded to the lower court, to be proceeded with according to the views herein expressed and according to law; and that appellees pay costs in both courts, from and after the filing of the rules, the other costs to abide the final determination of the suit.


author: PocHií, J.

text:
    No. 10,089.
    The State of Louisiana vs. Landky Thomas.
    In all criminal prosecutions it is the desire, and to the interest, of the State, that all reasonable facilities be extended to the accused in the preparation of his defense.
    Hence, the accused is not responsible for the error committed by the clerk in issuing subpeanas to witnesses for the defense, if it appears that the order for such witnesses had been given in a proper manner by the accused or his counsel, and that the witnesses thus ordered are residents of the parish.
    A party accused, who discovers on the day fixed for his trial that a material and important witness, ordered by him, and by whom alone he could establish a fact important or indispensable to his defense, had not been summoned, because the given name of the witness had been by error of the clerk changed into another name, in making out the summons, is legally entitled to a continuance on proper showing, for the purpose of procuring the attendance of such witness.
    For making the discovery on the day of trial only, he can not be charged with want of due diligence.
    A PPEAL from the Thirteenth District Court, Parish of St. Landry. JSstilette, J.
    if. J. Cunningham, Attorney General, and John M. Ogclen, District Attorney, for the State, Appellee :
    1. "Where an application for a continuance in a criminal case, based upon the absence of a material wi ness, is refused because of the lack of due diligence onthepart of the defense in securing the attendance of such witness, on appeal the record should contain affirmative proof of the exercise of due diligence or the judgment of the Court a qua will be affirmed. Knobloch’sOr. Di. p. 122, “Diligence.”
    tí A juror living in a parish other than the one in which the accused is tried is incompetent. 30 Ann. 335.
    3. And the Court may exproprio motu upon discovering the tact, discharge the incompetent juror before the introduction of any evidence in the case. State vs. Diskin. 34 Ann. 920, and authorities therein cited.
    4. The question as to whether the confessions of an accused are voluntary or not is for the trial judge to determine. If the evidence upon which he rules in favor of the voluntary character of the confessions is not incorporated in a bill of exceptions the Supreme Court cannot test the correctness of such ruling'and it will be sustained. 34 Ann. 147. •
    5. Parol evidence is admissible to prove a confession made in open court presided over by a magistrate when such confession was not taken down in writing. State vs. Simien, 30 Ann. 297,
    C. The tact that the confession was in the nature of a plea to a charge contained in the affidavit against the prisoner, the substance of which charge was undisputed, does not make it necessary to produce the affidavit and exclude parol testimony of the confes" sion. The contents of the affidavit was not at issue. It was simply an incident to the main fact to be proved.
    7. Where the ruling of the trial judge causes no injury to the accused he will not be granted a new trial. Knobloch’s Cr. Ei. p. 339.
    8. Leading questions may be put to an exceedingly unwilling witness. Wharton’s Cr. Bv. § 454 a.*, 26 Ann. 75; Profiat on Jury Trials, § 227.
    9. On an indictment for “rape” there can bo no verdict for “ assault and battery,” and the trial judge rightfully refuses to charge that there may.
    10. Errors in the judge’s charge to thejury should be brought up for review to the Supreme Court by bills of exception, and not in an assignment of errors, 35 Ann. 774; 37 Ann. 51, 1; 35 Ann. 543, 619, 970; 38 Ann, 497.
    F. P. Veime and C. W.BuBoy for Defendant and Appellant.
   The opinion of the Court was delivered by

PocHií, J.

The defendant appeals from a sentence of death under-a conviction of rape, and charges numerous errors to his detriment.

His first complaint is levelled at the judge’s refusal of a continuance which he had asked under the following circumstances : When brought up for trial, on the 28th of October, 1887, the accused filed a motion for continuance on the ground of the absence of a material and important witness, residing in the parish,who bad not been summoned although bis name bad been written, with au order for a subpoena, m the proper book by defendant’s counsel on the 24th of October, four days previous to the day of trial.

The judge’s refusal was grounded on want of'proper diligence on the part of the accused to secure the attendance of the witness.

It appears from the record, and from the original order for subpcena to witnesses, as written by counsel, and which is attached to his bill of exception, that in writing down the name of that witness, which is “ Archie Sanders,” counsel connected the letters in such a manner that a first glance the given name looked like “Archie,” and hence the summons was addressed by the clerk to “ Ardie Sanders,” and the sheriff returned that the person thus named could not be found. In reading the name as written in the original order we find no difficulty to make out the name of “ Archie Sanders ” as that of the person intended by the writer of the order.

The question presented is therefore to determine whether the accused can be held responsible for the error of the clerk in summoning the wrong person, or in making out a summons addressed to so strange and unusual a name as Ardrie as a given name, especially when coupled with, the cognomen of “ Sanders.”

To the suggestion of the district judge that under ordinary diligence it was incumbent on the defendant to have discovered the error, and to have had the same corrected in time for the trial, “as the return of the sheriff was made some time before the case was called for trial,” an easy answer is that the accused should not be made to suffer for an error of the clerk, whose plain duty was to call on. counsel for the accused to remove the doubt which he might have entertained as to the precise name intended to have been written by the attorney.

We do not understand the discussion to .involve the question of due diligence at all; but merely and exclusively to deal with the consequence of a palpable error committed by an officer over whom the accused or his counsel had no control, and for whose error the injured party can surely not be held responsible.

But should the question of due or ordinary diligence be considered as the pivotal point of the contention, the record does net warrant the conclusion that the accused is guilty of any laches on that score. In his statement that the sheriff’s return had been made “ some time before the case was called for trial,” the judge does not inform us of the precise length of time which intervened between the return and the trial; whether the return was made on the same day or the day before. As the order had been given on the 24th, and the trial took place on the 28th of October, it is clear that the “ sometime ” refen ed to by the judge could not have meant several days; and the doubt resulting from the expression above quoted cannot be construed against the accused. Hence, it does not appear that the question of due diligence could be decided adversely to the motion.

Now it appears that the indictment had been presented on the 21st of October, the case was fixed for trial on the 28th of the same month, the subíosnos for witnesses were ordered on the 24th, and the continuance asked by the accused was only to the 81st of the same month, at which time a jury would have been in attendance. Was there anything extraordinary oi unreasonable in the delay prayed for, or does the relief asked suggest anything to justify the conclusion of the trial judge that the sole object of the motion was delay? We think not.

In his motion, supported by affidavit, the accused states that by the testimony of Archie Sanders he could prove a very material fact, which, if established, would necessarily have changed the verdict, and that he could not prove that fact by any other witness. 8 Mo. 606, Freleigh vs. State.

The fact is detailed with precision in the motion, but we deem it best not to reproduce it in this opinion.

Now, through the error of a ministerial officer who failed to read, or to copy correctly, a plainly wiitten name, the accused 'has been deprived of the benefit of most important testimony. It may be that the witness, it present, would not have testified as represented by the 'accused. But this supposition cannot impair his legal right to secure his attendance and to produce his testimony.

If the witness, when produced, should entirely fail to establish the fact relied on, that circumstance will strengthen the case of the State; will remove the last doubt as to the guilt of the accused, and the correct administration of justice will to that extent be enhanced.

In a criminal prosecution the State is not zealous for conviction ; her only aim is justice, which will not condemn without a fair and impartial hearing. Hence the State herself tenders her whole power to the accused in his effort to prove his innocence, and her desire as well as her interest require that all facilities be given to the accused to produce all the testimony which the nature of his case may admit of or require.

Counsel for the defendant, after giving his order for witnesses in manner and form required by law and by the rules of the Court, together with the written information of the place where the witnesses resided, as shown to have been done in this case, and within a reasonable time before the day fixed for the trial, knowing tl;at the witnesses to be snmmoned were residents of and were present in the parish, had every reason and every right in law to presume that the summons would be issued as ordered, and served in time for the trihl. Hence his client cannot suffer for the laches or errors of others.

As we are thoroughly convinced that through inadvertence of the trial judge, the defendant has been denied a right to which he was legally entitled, we are constrained to overcome our repugnance to interfere in such cases with rulings of district courts, and to set aside the eonviction of this defendant. State vs. Egan, 87 Ann. 371; State vs. Bolds, 37 Ann. 310; State vs. Briggs, 34 Ann. 71; State vs. Boitreaux, 31 Ann. 189.

Under these views the discussion of the other complaints urged by his counsel is entirely obviated.

It is therefore ordered, adjudged and decreed that the verdict of the jury be set aside and the judgment appealed from annulled, avoided and reversed, and it is ordered that this case be remanded for further proceedings according to law.


text:
    No. 10,043.
    Crescent City Seltz and Mineral Water Manufacturing Company vs. Edwin Deblieux and Victor Letorey.
    The action against defendant, Letorey, is not sustained by the evidence, so far as it charges simulation, and, as a revocatory action, is barred by the prescription of one year.
    A pledge of shares of stock in corporations is validly effected by the delivery of the certificates, without the necessity of notice to the corporation or transfer on its hooks.
    The case is not affected by the fact that the certificates refer to the charter, which contains a provision that no sale or transfer shall be made without first giving the corporation sixty days’ notice, with the privilege to it or its members to purchase on equal terms.
    Such provision obviously refers to transfers of ownership, and not to pledges. It will be time enough to discuss its effect and the rights of the corporation under it, when tbe pledgee shall seek to sell the stock in satisfaction of his pledge.
    APPEAL from the Civil District Court, Parish of Orleans. Houston, J.

      S. JBelden, for Plaintiff and Appellee.

      White é Saunders, for Defendant and Appellant.
   The opinion of the Court was delivered by

Fenner, J.

The plaintiff took out a writ of attachment against its debtor, Deblieux, under which it seized, in the hands of Henry Tremoulet, a certain share of its own stock which was owned by him. Tremoulet refused to deliver the stock certificate to the sheriff. Thereupon plaintiff filed a supplemental petition, making Tremoulet a party, in which it was alleged that the latter was holding said stoektas a confederate of Deblieux in an attempt to defraud his creditors, and had thereby made himself liable for the debts, and praying judgment against both. Tremoulet answered that he held said stock as agent of Victor Letorey, to whom it had been validly pledged for a debt of seven thousand dollars.

Plaintiff then dismissed its suit against Tremoulet and filed another petition, to which it made Letorey a party, in which, under appropriate allegations of fraud and simulation, it prayed for judgment decreeing Letorey’s pledge to he fraudulent and null and without effect upon plaintiff’s rights under the attachment. Letorey answered, asserting the validity and good faith of his debt and pledge.

On these issues the case went to trial. The judge a quo does not find that either the debt or pledge of Letorey was simulated or fraudulent. Indeed, the evidence abundantly establishes that the pledge was a reality and made to secure a bona fide debt, and that, even if it had been made in fraud of creditors, the revocatory action was clearly barred by the prescription of one year, which was duly pleaded.

But the judge avoided Letorey’s pledge on the ground, that notice thereof had not been given .to the corporation, and subjected the stock to plaintiff’s attachment.

It is now perfectly settled that shares of stock in corporations may be validly pledged by delivery of the stock certificates without the necessity of notice to the corporation or transfer on its books. Pitot vs. Johnson, 33 Ann. 1286; Factors vs Marine, 31 Ann. 149; Friedlander vs. Slaughterhouse, id. 523; Smith vs. Slaughterhouse, 30 Ann. 1378.

The judge, however, held that these authorities did not apply to the instant case, because the certificate recited that the stock is transferable only on the books of the corporation in accordance with its charter,” and because the charter contains the following provision :

“ Transfers of stock shall be made only on the books of this corporation, at its office, and no sale or transfer shall be made by the owners, nor be valid until sixty days’ notice of the intention to transfer or sell said stock shall have been given to the president of the corporation, and unless, also, this corporation, or in default thereof, any one or more members of said corporation, shall have had the privilege 'of purchasing said share or shares of capital stock at the hona fide price offered therefor outside of this corporation, or in default of any such offer, at the market value of such share or shares.”

It is obvious that this provision refers only to transfers of ownership, and not to pledges, its object being to, prevent the disposition of the stock to strangers without first giving the corporation or its members the opportunity of purchasing at an equal price.

When Letorey shall seek to enforce his pledge by sale and transfer of the stock, it will be time enough to discuss the effect of this provision and the corporation’s rights thereunder to claim said notice and privilege.

For the present Deblieux remains the owner and Letorey’s rights as pledgee, being fully established, must be maintained.

It is, therefore, ordered and adjudged that the judgment appealed from, in so far as it affects Victor Letorey, be annulled and set aside, and that there be judgment rejecting the demand of plaintiff as against said Letorey, and maintaining the validity and effect of the latter’s pledge of the share of stock attached herein, plaintiff to pay the costs of this appeal.