text:
    No. 7608.
    New Orleans & Carrollton Railroad Co. vs. Jourdain’s Heirs.
    The clause in an act of sale restricting warranty to troubles, evictions, etc., “ arising from the acts and promises of the vendor only," is equivalent to a stipulation of no warranty against troubles, evictions, etc., arising from the acts or promises of others than the vendor.
    The mere stipulation of no warranty exempts the vendor from liability for fruits or revenues, cost-or damages, in case of eviction of the buyer; but he remains bound for restitution of the piice, “ unless tho buyer was aware at the time of tho sale, of the danger of th<4 eviction, and purchased at his peril and risk.”
    The buyer who accepts a sale with stipulation of no warranty, knowing at the time the danger of eviction, is held, by implication from those acts, to purchase at his peril and risk, and cannot, therefore, sue for the restitution of the price; and it is not necessary that the act should contain an express stipulation that the buyer purchases at his peril or risk.
    It is essential, however, that the vendor, in order to escape liability to the evicted purchaser for restitution of the price, should affirmatively establish actual knowledge by the latter of the danger of eviction, either by direct proof, or by implication from references to. oi proof of collateral facts so strong, as to be equivalent to direct proof.
    More reference to the conveyances through which the vendor’s title was derived is not sufficient, unless the titles referred to, have infirmities so patent on their face as to be equivalent to notice.
    The fact that the vendor’s title was derived, mediately, from a syndic’s sale, is not of itself sufficient to affect a buyer with knowledge of the danger of eviction.
    APPEAL from the Fifth District Court for tho Parish of Orleans; Rogers, J.

      Fred. I). King, L. F. Shiouds, for Plaintiff and Appellant:
    1. Even where there is no warranty of title, an evicted purchaser may recover the price paid, with interest from the date of eviction, unless he had knowledge of the danger of eviction and assumed the risk. R C. C. 2505, (2481); S^wall vs. Roach, 5 An. 684; Canal Rank vs. Copeland, 6 L. R. 550; Bach vs. Syndic of Miller, 16 An. 44; Hall vs. Hevill, 3 An. 327 j Scott vs. Featherstou, 5 An. 314.
    2. The Code Hapoleon. differs from our Code, in respect that it uses the disjunctive “ou}” instead of the conjunctive. And the French commentators differ in opinion whether or not the word “ ou ” should not be construed conjunctively in that article. C. H. 1629 ; Marcadé, Vente, Vol. 6, p. 252, Tit. VI, Art. 1629; Troplong, Vente, Art. 483, p. 359; Duranton, Vol. 16, § 362.
    3. There is no evidence of even any knowledge had by plaintiff of the danger of eviction. The mere fact of a sale without warranty creates no presumption of such knowledge. Still less is there a presumption that the risk was assumed, or a waiver of right to a return of the price.

      O. S. Lavillebenvre, Garleton Sunt, for Defendants and Appellants:
    "When in a contract of sale the vendor warrants expressly against his own acts and promises only ( lt ses faits etpromesscs settlement” ) this amounts to an entire exclusion of warranty, except as to such encumbrances or charges as may be imposed by the vendor himself.
    This is equally the law of Louisiana and that of France. Rev. C. 0.1764. 2503,2505 • C. H. 1627-1629; 6 AVall. 764; 5 An. 274; Rev. C. C. 2620; C. P. 690-694; Rorer on Judicial Sales, 167; 14 La. 363; Pothier on Sale, §1, p. 85, Ho. 184; Pothier on Oblig. (Evans Trans.) Vol. 1, Art. vii, p. 57.

      Robert G. Rugué, for Mrs. Clioppin, Appellee :
    •Jurisdiction cannot be given to tbis Court by joining together a number of defendants, where the sum claimed from each is less than one thousand dollars. 33 A. 806; 28 A. 172; 18 A. 136; 6 Pet. 143.
    There is no evidence upon which to predicate any judgmentwbatevor in favor of the plaintiffs.
    The plaintiffs purchased the property at their risk and peril, aud are not entitled to recover the price.
    Having acquiesced in the judgment of the United States Court, without appealing from it as they should have done, they cannot he said to have heen evicted. Volenti non fit injuria.

   The opinion of the Court was delivered by

Fenner, J.

Plaintiff sues defendants for the price of certain real estate sold to plaintiff by E. Y. Jourdain, the ancestor of defendants, on May 3d, 1836, and from which plaintiff was evicted on May 27th, 1878.

The answer of defendants admits the sale hut avers that the sale from Jourdain to plaintiff contained a stipulation of no warranty, and that plaintiff, at date of purchase, was aware of the danger of eviction, and purchased at its peril and risk.

The act of sale contains a warranty against all troubles, evictions, etc., u provenant de ses fait-s et promesses seiilement.'1''

The French authorities agree that such a clause as the above is equivalent to an express stipulation of non-warranty against troubles, evictions, etc., arising from the acts or promises of others than the vendor himself. 1 Troplong, Yente, p. 610, Nos. 478-9-80.

Warranty, as a general rule, is of tlie nature, and not of the essence, of the contract of sale; the only exception being that the vendor is, under all circumstances, “ accountable for what results from his personal act, and any contrary agreement is void.” C. C. 2504.

In all other respects, the jiarties may, “ by particular agreement,” add to, or diminish, or even abrogate, the obligation of warranty. C. C. 2503.

But with regard to the effect of such “particular agreements,” the law distinguishes between the different consequences of eviction.

The mere stipulation of non-warranty frees the seller from liability for fruits or revenues, costs aud damages; but with regard to the price, the case is different. Nee enim home field contractus hane patitur corwentionem, ut cmptor reni amitteret, et venditor pretium retineret, was the equitable doctrine of the Roman law. Dig. L. 11, § 18, De act. empti.

Our own Code expressly provides that “ even in case of stipulation of no warranty, the seller, in case of eviction, is liable to a restitution of the price, unless the buyer was aware, at the time of the sale, of the danger of the oviction, and purchased at his peril and risk.” C. C. 2505.

This Article is a literal translation of Art. 1629 of the Code Napoleon, except that the latter uses the disjunctive or, instead of the conjunctive and, in the last phrase of the Article.

Counsel for plaintiff contends that the effect of this change in our law from the French Code, is to require the concurrence of three elements in order to create an exemption from restitution of the price, viz: 1st, stipulation of no warranty; 2d, knowledge of buyer, at time of sale, of danger of eviction; 3d, express stipulation in the act that the buyer bought at his peril and risk.

We cannot adopt this interpretation. We think, with the District Judge, that our Article means the same as if it read: “Unless the buyer was aware, at the time of the sale, of the danger of the eviction, and thus or therefore purchased at his peril and risk.” In other words, the law moans that the buyer who acquires under a clause of non-warranty, having, at the time, knowledge of the danger of the eviction, is held, by implication from those facts to purchase at his risk and peril, and cannot, therefore, sue for restitution of the price.

When, on the other hand, the act contains an express stipulation that the buyer purchases at his peril and risk, it would seem to be of no consequence what knowledge he had of the danger of eviction, or even, perhaps, whether there was a stipulation of no warranty or not. “ In that case,” says Marcadé, “the object of the sale is not properly the thing itself, but merely the pretensions and claims which the vendor may have upon this thing. The seller then fulfils his promise completely by the simple fact of transferring his rights, whatever they may be, and hence the buyer can have no right to reclaim the price, on the ground of eviction from the thing itself. There is no occasion, in such case, to inquire whether the act contains the clause of non-warranty or not, because what the Article says under the assumption of the existence of this clause, would equally result, even in its absence.” 6 Marcadé, p. 262; 6 Mourlon, No. 573 ; 1 Duvergier, 341.

Our Code expressly recognizes the sale of an uncertain hope, such as the haul of the fisher’s net before he throws it, and maintains the sale, although he should catch nothing. C. C. 2151.

In this case, there is no such express stipulation, and under our construction of Art. 2505, considering the clause of non-warranty, and considering that nothing is claimed beyond the restitution of the price, we have only to inquire whether the plaintiff was aware, at the time of the sale, of the danger of the eviction.”

The record furnishes no evidence whatever that the vendor communicated to plaintiff, or that the latter otherwise had knowledge of any particular real or suspected defect of title, from which any danger of eviction might have been anticipated. The sale took place more than forty j'ears ago,- and naturally evidence outside of the act itself is wanting.

The sole ground on which defendants rely, to establish plaintiff’s knowledge of the danger of eviction, is the following clause in the act: “ The property presently sold belongs to the- vendor, by means of the acquisition which he has made thereof from Mr. Raymond Mansana, according to an act passed before the undersigned notary, on the 24th of February last, to which the parties declare that they refer for fuller information.”

Referring to the sale from Mansana, we find it to be a sale with full warranty, at the same price for which it was subsequently sold to plaintiff.

That act, however, also sets forth the origin of Mansana’s title as derived by sale from syndics of the creditors of Louis Bierra, made on the 19th of August, 1823.

Bierra had acquired the property from Relf & Chew, claiming to be (but finally decided not to be) executors of Daniel Clark.

By these successive references, defendants contend that plaintiff acquired full knowledge of ttlie authorship of Jourdairfs title; that it was thus advised that the title was derived mediately from a syndic’s sale, and that this was sufficient to inform it of the danger of eviction.

We cannot admit the correctness of this view. ■ There is nothing apparent on the face of any of the acts referred to, suggesting any cause for, or danger of, eviction. Mansana, who had acquired at the syndics’ sale, had held the property for thirteen years, without disturbance, and then sold to Jourdain with full warranty. The mere fact that the property was derived from a syndic’s sale, does not, necessarily or naturally, import any defect of title or danger of eviction. Indeed, in many respects, titles derived from judicial sales are more secure than private titles.

A syndic’s sale is analagous to the sale under execution, as to which the Code declares that “ it transfers the property of the thing to the purchaser as completely as if the owner had sold it himself; but it transfers only the rights of the debtor such as they are.” C. C. 2620.

The latter clause does not signify, as substantially contended by defendants, that such a sale amounts merely to a quit-claim. On the contrary, the following Article gives the purchaser, in case of eviction from the property, recourse for reimbursement against the debtor and creditor. So, in ease of a syndic’s sale, the evicted purchaser would have his recourse against those who had received the price.

We have carefully considered this question and can find neither reason nor authority in support of the position that mere knowledge of the sources of the vendor’s title dispenses with the necessity of establishing knowledge of the danger of eviction, in order to bar the claim for restitution of the price; unless, indeed, the titles referred to have infirmities so patent on their face, that the buyer would be thereby affected with notice.

The latter feature is distinctly presented in the cases of Carrian vs. Rieffel, 2 N. S. 621; Boisblanc vs. Markey, 21 A. 721, and in the French case of Dulut contre Deloffre, J. P. 1846, 1, 576.

We think the knowledge of the danger of eviction, referred to in the Code, means actual knowledge, which must be brought home to him by direct i>roof, or by implication from references to, or proof of, collateral facts, so strong as to be equivalent thereto. See Fletcher vs. Cavalier, 4 La. 274.

The plaintiff asserts, in its abstract of facts, that the present defendants represent one-half the succession of E. V. Jourdain. Defendants, in their counter statement, deny this averment, but fail to state what the correct facts are, .as required by the Rule. The record itself is confused on the subject, and, unacquainted as we are with the facts, would require at our hands the elucidation of an extensive and complicated family-tree, in order to ascertain the interest of each defendant. We Shall, therefore, for the purposes of this decree, accept the statement of plaintiff, reserving the right, in case of error, shown, to correct it on application for rehearing.

It is, therefore, ordered, adjudged and decreed, that the judgment appealed from be annulled, avoided and reversed, and it is ordered that there be judgment in favor of plaintiff and against the defendants, for the sum of fifteen hundred dollars, with interest from May 27th, 1878 ; defendants and appellees to pay costs of the lower court and of this appeal.

Rehearing refused.

Levy, J.f absent.


source: Caselaw Access Project

author: Poché, J.

license: Public Domain

text:
    No. 8593.
    State ex rel. Charles Zimmerman et al. vs. The Judge of the Civil District Court, Division B, et al.
    None but parties to a suit are entitled to service of notice of judgment.
    Notice of judgment, rendered ex parte, placing heirs in possession of succession property, need not be served on the executors of the succession, whose right to a suspensive appeal is lost after the expiration of the legal delay.
    rl'he validity of this ex parte judgment, which may be null and void, cannot bo questioned in this proceeding; an appeal being the proper method to review such judgment.
    A rule for a restraining order, which was never sustained, cannot suspend a judgment.
    A writ of prohibition issues only to inferior courts and not to private individuals, unless they are necessary adjuncts to the proceeding against the Judge.
    APPLICATION for Writs of Mandamus and Prohibition. Houston, J., Respondent.
    Ti". JB. Koons, T. Gilmore é Sons, for Relators:
    1. Where one of the heirs is a minor, the heirs of age cannot be put in possession unconditionally of their part or share of the estate, until a partition is effected. C. C. 1047; 30 An. 389; 21 An. 3G4.
    2. When a testamentary executor is administering a succession, an ex parte judgment, without citation or notice to the executor, putting the heirs in possession, is an absolute nullity. C P. 1000-1003; 4 B. 283; 6 3J. 9 ; 12 An. 611; 18 An. 156.
    A restraining order will stop the execution of a judgment, and the legal delays for appeal do not run against such judgment, pending the proceeding. 32 An. 1233, 1276.
    4. The legal delays for a suspensive appeal do not run agaiust persons having an interest in a judgment, rendered ex parte, until after legal service of notice of said judgment. C. P. 575, 621; 22 An 90; 25 An. 213; 27 An. 304; 7 An. 239.
    .5. Mandamus will issue to compel the District Judge to grant a suspensive appeal. C. P. 841.
    6. Prohibition will issue to restrain the execution of a judgment, null on the face of the proceedings, pending an appeal to this Court. C. P. 846.

      J. Ail, Rosier, Vallé Hosier, L. L, Levy, for Respondent-:
    1. If in a testate succession, there be neither debts nor legacies to pay, nothing to execute, the appointment of an executor is inoperative. Sue. of Walker, 32 A 321, and authorities therein cited by the Court. Sec Dupuv, 4 A. 572.

      2. The seizin of the executor, fiction of law, which does not interfere with the legal posses* eion of the heir — the latter, true possessor — same authorities. The heir, in case no debts, no legacies to bo paid, can take the seizin from the executor, which is not constituted for liia personal advantage 5 in such a case, the pretensions of an executor is an unlawful intrusion.
    3. The executor cannot be said to ho qualified as such, or that his mandate has commenced, until inventory made and homologated. The meie taking the oath does not fulfil all the requisites. R. C. C. 1666. The action of the- testamentary heirs was timely to prevent mandate commencing.
    4. The will constituting the four children of testatrix the universal legatees, being probated, ordered to be registered and éxecuted, they had a right, without citation or notice to the executors, to present petition for possession; making proof of no legacies; no debts unpaid ? there was no issue of fact to be tried, especially when the executors had not qualified. The opposition, of heirs to the issuing of letters testamentary, must be sustained. The Art. 1671, R, C. C. is applicable; 32 A. 321, Sue of Walker.
    5. Even when creditors have claims filed in court against the succession, by Art. 1671, R. 0. C., and 1012, lb., the heir can obtain possession by giving bond with security, if they require it.
    6. It is not necessary that a succession which has been accepted with benefit of inventory, should he entirely administered and liquidated before the property can come into the legal possession of the beneficiary heirs, unless opposed by creditors or heirs of age, the natural .tutor of minors may take in charge and administer as tutor the property of the minors and his possession of the property, in contemplation of law is their possession. Soye vs. Price et ah, 30 A. 93, and the authorities fully reviewed therein.
    Art. 996, C. P., shows that minors and beneficiary heirs may come into possession, before estate has been fully administered and liquidated. Heirs of age and creditors alone can require administration, lb. Articles 65 and 66 confirm it; jurisprudence fully settled. See late case Beauregard vs Lampton, 33 A.; re-afiii med, Soye vs. Price.
    7. The Relators have no pecuniary interest; do not represent any imagined creditor; without-standing in law; causing useless litigation, to subserve alone their private ends in antagonism with the provisions of the will, not entitled to any appeal, whether suspensive or devolutive.
    8. The only mode whereby the execution of the judgments and orders of the court a qua could be stopped was by obtaining an injunction, based on an affidavit, and furnishing bond and security. In the case at bar, the executors failed to comply with any one of these requisites. The-heirs would have no protection.
    9. The timé 'for a suspensive appeal had elapsed, and besides, on the very face of the Record these so-styled executors have no interest; without right to any appeal whatever.
   The opinion of the Court was delivered by

Poché, J.

Relators, executors of the succession of Theresa Baum-garden, seek by mandamus to compel the defendant Judge to allow them a suspensive appeal from a judgment rendered by him on February 20th, 1882, placing the heirs of age in possession of the property of said succession and,, by prohibition, to restrain said heirs from executing said judgment.

The judgment complained of was rendered ex parte on the application of the heirs for possession of the succession property; it is vehemently assailed by Relators as illegal, null and void, and is defended with equal zeal by the heirs, as legal and binding. But-under the very limited issue presented to us in this proceeding, we have no power to examine into the legality or validity of the judgment which could oiily be reviewed on appeal, and hence, we cannot consider the elaborate arguments of counsel of both sides on that question.

Our investigation must be strictly confined to the discussion of Relators’ right to a suspensive appeal from the judgment placing the heirs in possession of the succession property.

Tiie record shows that Relators were confirmed and were sworn as testamentary executors on tiie 16th of February, 1882, and that before inventory made, the judgment complained of was rendered on February 20th.

It appears that on the 27th of that month, Relators instituted suit for the nullity of said ex parte judgment, to which they added a rule to restrain the execution of the judgment pending their suit for nullity. In this they were met by an exception of no cause of action, resulting-in the dismissal of their suit, on the 30th of March, by a judgment which was signed on April 5th. Whereupon, they prayed for a suspensive appeal from all the judgments rendered against them in the premises.

The Judge granted a suspensive appeal from the judgments signed on April 5th, but refused such an appeal from the ex parte judgment of February 20th, on the ground that the application was made too late; more than ten days having elapsed, exclusive of Sundays, since the date of the judgment.

Relators submit the two following propositions:

1. The delay within which they had the right to appeal can only be computed from the date of the notice on them of the judgment which they are striving to reverse.

2. The operation of the judgment was suspended between the 27th of February and the 5th of April, under the effect of their rule, filed with the leave of the court, for a restraining order to forbid the execution of the judgment.

First. As th ?. judgment complained of was rendered ex parte, not in a suit, but in the matter of the settlement of a succession, and as the Code of Practice requires that notice of a judgment by default be served on the “ party cast in the suit,” it is difficult to conceive upon what grounds the Relators herein could require the notice on them of a judgment rendered under such circumstances. The essence of their complaint is, that the judgment was rendered ex parte ; hence, they were not parties, and could not be cast in a suit which did not exist; and, therefore, they were not more entitled to notice of such judgment than any other person not a party to the proceeding. Tiie judgment may bo erroneous and absolutely null and void, for the very reason that it was rendered in an cx parte proceeding; but the question now to be solved involves the mode of having such nullity declared. Relators first sought this end by the action of nullity, in which the question may be properly presented. But the contention now is, whether their application for a suspensive appeal was made timely, and whether they were entitled to a notice of such judgment.

We think that they were not, and that the delay should be computed from the date of the judgment.

Second. Their application for a restraining order, which was not granted, cannot have the effect of suspending the judgment. This circumstance very clearly differentiates the issue in this proceeding from that presented in the two cases of State ex rel. Kennedy vs. N. O. Savings Institution, 32 A. 1233, and State ex rel. Behan vs. Judge, 32 A. 1276, relied on by Relators.

In the first of these cases a restraining order had been granted pending the rule of Relator for the delivery of the notes sued on. And in the other case, a temporary injunction restraining the execution of a judgment against Relator, pending the trial of his suit for injunction, had been granted by the District Court, and hence, it was held in this Court, that the judgment complained of had been suspended in its operation.

But in this case, the prayer for a restraining order has not been allowed, and hence, time ran as to the judgment sought to be supended. We cannot strain the rule so as to apply it to a case where the rule for a restraining order was never sustained, but was finally discharged. Relators may suffer great hardships under the effect of a judgment which may be finally avoided, but the law is too plain against the position which they have assumed.

As to the prohibition which they invoke against the heirs, it is plain that under a refusal of the mandamus against the Judge, such relief cannot be granted by this Court, whose writ of prohibition issues only to an inferior Judge, unless the parties are necessary adjuncts to the proceeding against the Judge. State ex rel. Dowling vs. Mix, 33 A. 794.

The writs of mandamus and prohibition, herein prayed for, are therefore denied, at Relators’ costs.

Levy, J., absent.


author: Bermudez, C. J.

text:
    No. 8403.
    J. C. Morris vs. Cain’s Executors et al.
    Where the property of a deceased, incumbered wfrth mortgages, is seized and sold to pay tho debt, and realizes much more than the claim of the seizing creditor, but not enough to ° n pay him, together with anterior, concurrent and subsequent mortgages or incumbrances, and the whole price of adjudication is not paid in court, but is retained by the adjudicatee, the executors have no right to ask that the entire price of sale be paid to them, for distribution in the succession, by an account, on the ground that the estate is insolvent and the claims are conflicting.
    The purchaser of such property has a right to clear it from incumbrances, by an action against all concerned in them, upon payment of the proceeds under a final judgment adjusting their rights and ranks.
    A proceeding termed an intervention, for which tho effect of an interpleader is claimod, is' irregular.
    The court is without authority to order the price of adjudication to be deposited in a named bank, and the notification of the petition to all concerned, by advertisement or publication, during a stated time in a designated newspaper. The proceedings must be carried on by citation, actually or constructively served..
    APPEAL from the Civil District Court for the Parish of Orleans. Lazarus, J., acting in place of Houston, J., absent.

      Miller, Finney & Miller, for Canal Bank, Appellee:
    When the mortgage creditor, With the act containing the ‘pact de non alienando, seizes and sells the mortgaged property under the process of the ordinary court, the administrator of the mortgage debtor has no right to demand that the sheriff or the purchaser shall pay to him the proceeds of the mortgaged property. See C. P. Arts. 683 et seq.; 16 La. p. 170 ,? 5 An. p. 306; 24 An. 381.
    The amount accruing to the seizing creditor, under such seizure and sale, the sheriff must pay over to the seizing'creditor. Ibid.
    When property is seized and sold under concurrent mortgages, the purchaser must retain in his hands the amounts accruing to the concurrent mortgage creditors, who have placed no writs in the sheriff’s hands. The sheriff cannot'receive such amounts nor raise the mortgages of such creditors. Ibid.
    When property thus seized and sold is burdened with a mortgage preferred to that under which the property was sold, the purchaser retains the amount of that mortgage in his hands. If privileges are claimed on the property, the law provides how they shall bo asserted, and the purchaser relieved. There is no necessity for an interpleader to determine what the purchaser shall do in such cases. The law provides amply for the purchaser’s safety, in permitting him to retain in his hands the prior mortgage, and by compelling those who claim privileges to file third oppositions. 1 An. 204 ? (J. F. 683.

      T, Gilmore & Sons, for Plaintiff and Appellant, from ex parte order;
    I,
    On the Appeal of the Execotohs*
    1. The light of the mortgagee to proceed against the executors of the mortgagor for tho foreclosure of the mortgage, is indisputable. Bouguille vs. Faille, 1 A. 204; Dupuy vs. Remiss, 2 A. 509; Nichols vs. Grice, 6 A. 446? McCalop vs. Fluker’s Heirs, 12 A. 551? Succession of Wilson, 12 A. 591; Erwin vs. Lowry, 7 How. 172; Randolph vs. Chapman, 21 A. 486; Durand vs. Delahonsaye, 28 A. 622.

      t. The executors of the mortgagor cannot compel the sheriff to pay over to them, for distribution, the money made on execution against them, , .

      II.
    On the Appeal of Plaintiff from the Order of August 9th, 1881.
    1.The sheriff has no right to require from the purchásér of mortgaged property more than the amount of the writ in his hands.* Scott vs. Eeatherstonej 5 A. 313; Johnson vs. Duncan, 24 A. 381; Hibernia National Hank vs. Smith, 27 A. GO; Quertier & Co. vs. Succession of Hille,,18 A. 65; Hacas vs. Hernandez, 31 A. 86 * Noble vs,,Cooper, 7 R. 44; Pepper vs. Dunlap, 16 L. 170; Conery vs. Holmes, 18 A. 641; Howard’y¡¡L Smith, 29 A 129.

      % The court has no right to turn plaintiff in execution over to a fund in oourt, or to involve him in a concursus; it has no power over the mortgage. .The mode 'Of proceeding is .prescribed by Arts. 706-7-8-9, of the Code of Practice, and by decisions of the Supreme Court in numerous oases. Scott vs. Eeathorstone, 5 A. 313; Johnson vs. Duncan, 24 A. 381; Hibernia National Hank, 27 A. 60.
    III.
    The suit brought by Wiltz, Public Administrator, oan, in nowise, affeotthe oaso at bar.

      Breaux é Hall, for Public Administrator, Appellant^
    1. Whore a party is threatened with eviction, ho is authorized to retain the purchase price. C. C. 2557 ; 26 A. 147. . ....
    2. Where a contest arises as to the validity of the mortgage, on which seizure and sale was obtained aDd sale made, and a consequent change of the destination of the purchase price, the case is similar in principié to one of eviction, and the purchaser must hold the price, to await the final determination. • • . » ••
    3. This right arises to the purohasor to protect him against loss; and to the rightful claimant to assure him payment on the property itself.
    4. Where there are claims, either anterior or concurrent, the purohasor is hound to hold purchase price to meet these; payment to a sheriff will not release the property. C. P. 705.'

      J3. JEL Moise, for Moses Lobo & Co., Tntervenors:
    A.
    1. Executory proceedings on a special mortgage oan he issued by a court of ordinary jurisdiction. .
    2. The fact of there being conflicting privileges, mortgages, etc., on the property seized and sold in executory process, does not ontitle the executors of the mortgagor to the prioe of adjudication, to be’distributed by them. 1 A. 204, 206.
    3. Seizure and sale under executory process divests the executors of possession. 12 A. 591, 592; 32 A. 323.
    B.
    1. A claim to proceeds of a sale ratifies tbo salé;1
    2. A olaim that the mortgage, undórVhioh á sate of succession property is sold, is a fraudulent simulation, where the order for* executory process has not been appealed from or enjoined, is a olaim in effeot that the prioe realized is the money of the succession.
    (a) • Suclra olaim is tb'annul the evidence on which the court acted, not the action the court took. ‘
    (b) Such a claim, if proved to he true, does not nullify the sale, as against innocent third persons, without actual notice.
    (c) The reversal of a judgment on a devolutive appeal will not injure purchasers of property under the fi. fa., if the proceedings he otherwise regular. 5 N. S. 214; 16 L 440; 2 A. 211.

      (cl) There must be fraud in the purchaser, or actual knowledge of fraud, to affect his title. 26 A. 30. ,

      (e) Though the mortgage be attacked as a simulation, and issue joined before the sale, title will pass to the purchaser if lie be ’an innocent third person without actual notice. 6 A. 462.
    (/) Such a suit is not lis pendens (notice to the world,) as the thing in controversy has not been purchased — the thing claimed by the claimant has not been purchased. C. C, 2453,. [2428.]’

      {g) At common law the doctrine is the same as that in our Code. The subject matter of the • litigation-must be purchased. 9 Paige, 512; 1 Harp. Eq. 224; 1 McCord’s Oh. Pep. 264 • 7 Md. 537..
    (h) A claim that a debt and mortgage are simulated as to executory process under the mortgage, is, if recognized by the court, a judgment that the mortgagee is either no creditor at all, or nob a preferred creditor of the succession.
    (i) The claimant is in the same position as he would be had he gained an opposition to the executor’s account allowing a creditor a preference or privilege.
    O’) Such a claimant does not claim the proceeds as his, biit that they are the succession’s, and is therefore not estopped from .setting up the simulation of- the mortgage, though he shares in the proceeds of the sale'thereunder.
    (A) He occupies the position of a>creditor who seizes the fund as his debtor’s. 29 A. 274,275.

      (l) The fuxul derived from a sale under executory process must he distributed by the court which sold the property.

      (m) A change of forum under these circumstances does not change the law or its principles:
    0.

      (a) Concurrent mortgagees may sue the purchaser at a foreclosure for the amount of their 'notes. 1& L. 163; 2 A. 306. • ’
    (0) The sheriff can only receive what his writ calls for, and no more — if paid more, the sheriff is trusted personally. 2 it. 214. " •
    (c) Where the price of adjudication is not sufficient to pay all the-concurrent mortgage notes, the purchaser must pay tlie^í'o rata share of the seizing creditor to-the sheriff, and retain the joro rata share of the holders of the other notes. 24 A. 381.* ‘
    ‘ B.
    («) Where’it is impossible to tell, without judicial investigation, wliafc proportion the purchaser must pay and what retain, the law will not force the purchaser to be judge at his peril. '
    (5) Where the purchaser does not know to whom to pay the balance in his hands, he will not he forced to decide’at his peril; he has a right to institute an action against the claimants, and have the court decide between them. 7 B. 398. ’
    (e) The same remedy is allowed a sheriff if the claimants will not take steps to test their fight to a fund in his hands. 1 A. 144. * *
    (<2) * The remedy allowed to these two, when in doubt-, is, under similar circumstances, also allowed the purchaser.

      (e) Eor the seizing creditor cannot urge' a reasonable objection against our doing, when in doubt, what these others could do. '
    (/) ‘ Where a party holds money, to which different parties lay claim, his remedy is to pay" ' the money into court. 6 A. 439.
    E.
    FIRST.
    Where, from the peculiar circumstarices of a case*, the^ textual provisions of our C. P» give no, action, the courts will give one ex necessitate rei, to prevent injury to an innocent party,' and prevent a failure of justice.
    SECOND.
    In giving this remedy, the court will look to other systems of other States and follow their mode of granting relief. Louisiana courts have actually borrowed.from the common law.
    THIRD.
    The proceeding taken in this case is identical with the one granted in chancery under similar circumstances,
    FOURTH,
    When there is no express law to govern a strange and peculiar case of judicial sales, the court . .will look to analogous cases-in conventional sales, and when the faots are very similar, be tguided by the analogous provisions of the Code, and a similar remedy for relief will be granted, :

      GENERAL DOCTRINES.
    1. Laws are generally either statutory rights or legislative recognitions of inherent rights.
    2. Legislative recognition of a right is not absolutely neoessary to give a right.
    3. As it is impossible to specify all rights, it is impossible to specify all remedies. Courts will enforce the one by supplying an “ adequate ” remedy whore the law has failed.
    4. The Constitution and the Codes reoognizo the foregoing. Const. 1879, Art. 13 ; C. C. 21 ; ■ C. P.130.

      First, (a) Ho man can be injured beoauso the C. P. docs not give an aotion. The Court will give one unless it be prohibited. 12 A. 588.
    (5) The C. P. is not exclusivo of all other remedies, where a party does not know how to divide among many claimants a fund, we oan cite them all in court and let them oontest their rights contradictorily, even though the C. P. does not mention the aotion. 2 A. 987.
    (c) The fact that an aotion is not mentioned in the O. P. does not prevent the Court’s recognition of it whore justioe is served. 27 A. 138.
    (d) Humerous claimants to a fund in small amounts — many suing and others threatening suit — trustee has the right to enjoin the suits, and parties from bringing suits, and file one aocount for all, although no suoh aotion is mentioned in C. P. 31 A. 309.
    Second. («) Our courts, while not hound by technicalities of foreign systems, may s.till resort to them when our law is silent. 16 L. 395.
    (I») Under C. C. 21, when our own law does not provide for an emergency, chancery praotice will,be resorted to. 1 A. 138.
    (c) Imperative mandate to judge to proceed, when there is no law, chancery practice adopted. 3 A. 177,182; 5 A. 740 ; 7 A. 287; 2 A. 87.
    Third. * (a) Interpleader — our remedy — our law giving none — it is the ohancery remedy under facts similar to the case at bar. Wait’s Actions and Defenses, Yol. 4, p. 149. ,
    (6) A mere stakeholder, having no interest save his own protection, has a right to force olaimants to interplead and oontest contradictorily. 2 Yes. «T. It. 109; 15 id. 245; 11 Sim. 147.
    (c) Stakeholder not obliged to exercise his judgment. 2 Edw. Ch. 647.

      id) Stakeholder need not await a suit. 30 N. H, 363 ? 6 Johns Ch. 44.
    (e) When stakeholder files his interpleader, he must deposit or offer to deposit the-fund. 1 Cow. 691, 30H.H.354; 20 Tex. 399; 61 H. Y. [16 Sich], 264, 268j 2 Eeich [S. G] 291.
    .(/) Ignorance or doubt as to the respectivo rights of claimants, warrants an interpleader. 3 Barb. Ch. 391 • 11 Ga. 103.

      (g) Where a party does not claim, but will not assent to payment, a proper party to inter-pleader. 5 Hare, 314.

      Fourth, (a) Analogous provision of our Code will govern where our law is silent. 33 A. 470.
    Conventional sales give light to deposit price where any claim is disturbing or will disturb purebaser. C. C. 2557 [2535], 2558 [2536], 2559 [2537J.

      F.

    GENERAL CONCLUSION.
    Whore a purchaser at a judicial sale is harassed by concurrent mortgagees and privileged creditors of various kinds — where he neither knows who to pay or how much to pay each one, and is a party to a suit seeking to declare all the mortgages a fraudulent simulation — and the mortgagor being dead, the fund must he distributed in the court which issued the order of executory process, an intervention setting forth all the facts, and calling upon the parties to come into court and contest their rights; and he tenders the whole amouut of his hid to the court, and the court accepts the tender, the proceeding is proper and just and allowed by the law of the laud.

      Braughn, Bucle & Dinlcdspid, W. O. Hart, for Defendants and Appellants:
    1. Where property of a deceased debtor is sold under an ordinary mortgage, and the funds arising from the sale are insufficient to pay all claims thereon, and the succession of .the debtor is in course of administration, the funds should be distributed by the executors.

      2. Particularly is this the case where there are privileges priming the mortgage under which the sale is made, and where the sale is for an amount exceeding plaintiff’s claim. 30 A. 323.
    3. Where the mortgage, under which the sale is made, is attacked in a direct action, to which the holder of the note is a party, hut without injunction, the funds arising from the sale must go to the succession.
    <7. McConnell, H. li. Upton, for D. Roos, H. Roos, and Meyers, . Appellants:
    Í. A creditor claiming a preference by mortgage or privilege, when called upon, is bound to plead. The pendency of a suit in which the validity of his debt, mortgage or privilege is involved, would be a good plea. It would arrest the .distribution. Bank of Louisiana vs. Delery, 2 An. 650.
    2. Where property has been sold under execution to pay mortgage debts, the mortgages upon the property to which the price was to be applied are extinguished, as far as the property is concerned, and the rights of the parties are transferred to the funds. 7 A. 123; '8 A. 505; 13 A. 559; Eillastre vs. St. Amand, 32 A. 354, 355.
    3. In the instant case, as there can be no distribution of the fund, it should be turned over by the purchaser to the executors, to be by them in due course of administration, paid to the parties who may be adjudged entitled thereto.
   The opinion of the Court was delivered by

Bermudez, C. J.

Two questions only are presented in tbis apparently complicated case. They are :

1. Are the defendants entitled to receive the proceeds of sale realized in this suit,‘to distribute them, by an account in the succession of the deceased, which they represent.

2. Has a purchaser of real estate at the judicial sale made in this case, the right to proceed, as he has done, with a view to clear the property acquired by him, from the encumbrances which burden it.

From a judgment dismissing the rule of the executors for the proceeds, those officials have appealed. From the ex parte order and rule, initiating proceedings contemplating the ultimate cancellation of inscriptions against the property, the plaintiff has appealed. His right to do so is disputed by no one, and may be considered as admitted by the tacit acquiescence of those concerned in resisting it. '

.1.

The record shows that L. B. Cain, in 1878, in order to secure the. payment of a number of notes of his, each for $5,000, payable at one and two years, amounting, in the aggregate to $100,000, mortgaged in favor of Henry Roos, two pieces of real estate belonging to him, situate .in this city. It is immaterial to state to whom those notes afterwards passed and how a portion of them, was, by consent between the holder of another portion, given a priority.

It is enough to say that the plaintiff, having become the owner of •six of the notes, in favor of which a preference had been granted, and remaining “unpaid, instituted proceedings via exeeativa, to satisfy his claim, which was for $30,000, with interest, attorney’s fees, costs, etc.

■ At the sheriff’s sale, the two pieces of real estate were adjudicated to different purchasers. One was bid off to Lobe & Co. for $67,000, and the other to M. Prank, for $27,550, together $0-1,550. The former paid $10,000 and'the latter $5,000 to the sheriff, and both retained the balance of the price of adjudication.

■ Some time after the sale, the executors of Cain, defendants in this suit, took a rule-on the plain tiff,the purchasers and the sheriff, to show cause why the entire'amorint of the sales should not' be paid over to them, to be distributed by them in the mortuary proceedings, on the grounds: that the succession of Cain was thoroughly insolvent, and that the claims, mortgages, liens, privileges, etc., against the proceed» of sale, being of a conflicting character, it was absolutely necessary that the funds should be distributed in that mode.

The sheriff, on the suggestion that P. S. Wiltz, as the representative of the succession of one Weil, claiming to be a mortgage creditor, had instituted proceedings to have all the notes and mortgages declared null and.of no effect, made him a party to the proceedings. Lobe & Co., who had purchased one of the pieces of property, next took a rule against .the succession of Weil, against the executors, widow Cain, individually, besides* H. Roos, the .original mortgagee, the New Orleans Canal & Banking Company, the plaintiff, the slieriff, and the recorder, of mortgages, to show cause why, on payment of the price of adjudication, the inscriptions against the property should not be cancelled and erased and a clear title be given to them. . 11

The executors acquiesced in this rul.e, provided the payment was made to them. The plaintiff excepted .to the proceeding by rule; Wiltz, administrator, too, likewise objected to the form. Mr. Frank, the other purchaser, made no appearance.

The rule taken by Lobe & Co. was, discontinued, and will not be further considered. It provoked the accomplishment of the object for which it is said that it was taken.

After trial of the rule of the executors, the Court discharged it without prejudice to the right of the executors, to claim out "of the proceeds of'sale, contradictorily with the parties in-interest, the debts recognized by law as privileged, and outranking the' mortgage sued. on. From the entire ruling the executors have appealed.

' It is clear, under the settled jurisprudence of this State, that the plaintiff had-a right to proceed, via exeeutiva, notwithstanding the death of L. B. Cain, and to do so contradictorily with his executors. 1 A. 204 ; 2 A. 509; 6-A. 446; 12 A. 551, 501-.*..: If' he had that right, he possesses also that of having the writ in his favor executed, not only by the sale of the property mortgaged to secure the payment" of his notes, but also by the application of the proceeds of sale to that payment, to the extent to which he had a right to participate in them, the notes held by him being secured concurrently with others, on the same real estate and by the .same act of mortgage. '

It is another well settled principle, that a purchaser at a judicial sale made to satisfy a writ, is not bound to pay to the sheriff, whatever the price of adjudication may be, an amount exceeding that called for by the writ; that if he assume to do so, creditors entitled to a mortgage or privilege, cannot-be thereby deprived, of their security; that he constitutes the sheriff individually his agent, and would have no recourse against his surety in case of a diversion of funds. 2 R. 214; 5 A. 313; 24 A. 381; 27 A. 60; 18 A. 65; 31 A. 86; 7 R. 44; 16 L.170; 18 A. 641; 29 A. 120.

The retention of the surplus of the writ by the purchasers, produces a right or claim in favor of the creditors who may be entitled to be. paid out of that surplus. It is only' by paying them, that he can discharge himself from what responsibility he may have incurred, and. release the property from the encumbrances .upon it. By paying the sheriff, who is the legal agent of the seizing creditor, he pays the latter and thus liberates both himself and the property to the extent of the. creditor’s rights' against it. From • no possible standpoint, can it be claimed that the executors can pretend to receive any portionnof the price of adjudication in this case, whem-it is apparent, that it would be. entirely absorbed by the creditors of .the deceased, whose titles have been duly inscribed;. From the moment that the,seizure was effected,* they were divested of the right of possession; from the instant that the* sale took place, they ceased — and with them the succession of Cain — to have any right of ownership in the. real estate adjudicated under the' writ. The case would be different, if after the payment, of the seizing creditor and retaining an amount sufficient to pay anterior, concurrent and subsequent mortgage and privilege creditors, there remained ..a balance of the price of adjudication; but it would be only to such, balance that the executors could raise their claim. C. P. 683, et seq., also 707; 16 L. 170; 5 A. 306; 24 A. 381; 30 A. 323; 32 A. 325.

The court.which, was first seized of jurisdiction, which issued the, writ under which the .property was sold, has the exclusive right of: distributing the proceeds of sale, paid to the sheriff in satisfaction' of the writ in his hand. C. P. 130; 15 A. 636.

We do not consider that, in reviewing the judgment dismissing the executors’ rule, we are called upon to determine ■ any other question than that of the right of- the executors to receive the proceeds of the sales. We have no concur sus before us, and no prayer for an amend-, ment of the judgment, which, as far as reviewed, being correct, must be affirmed with costs.

II.

The next question presented, involves the right of the purchasers, Lobe & Co., to proceed, as they have done, to cancel the claims and mortgages securing the same, against the property adjudicated to them.

The petition presented by them is termed an intervention, and was filed after the adjudication. It contains substantial allegations for relief, and a prayer which provoked the order rendered upon it, is in the words and figures following:

Let this petition of intervention be filed, and let the parties herein named be cited as prayed for, and let the amount of adjudication herein mentioned be deposited as a special deposit in the hands of the State National Bank, on or before the first day of October, 1881, or thepavties sliow cause to the contrary on said day, and let notice of this filing of this petition, to all whomever it may concern, be given by advertisement in the New Orleans Democrat, commencing on Sunday, August 14th, 1881, and every succeeding Sunday until October 1st, 1881, as prayed for in the within petition.”

There can be no doubt that a purchaser- at a judicial sale has the right of disencumbering the property adjudicated to him, in the same manner as the expropriated owner could have done had he not been divested of ownership by the seizure and sale; that is, by paying the creditors, to secure whose claims the property was burdened. But although this right be co-extensive, it is not greater; and the obligation of payment, to which the purchaser may have subjected himself, by retaining a portion of the price, is not the same.

The owner, who had mortgaged the property to pay his own debt, is liable, personally, for the whole indebtedness, while the purchaser is not. His responsibility, whatever it be, is to be measured by the amount of the adjudication, to pay which, the property remains burdened. C. P. 708 ; 10 A. 286.

What the rights or claims may be, which creditors interested in the amount retained may have, we'are not called upon to declare in this controversy, and we will abstain from doing so.

Whatever that right be, and whatever the mode be, in which it can bo exercised, the order obtained on the proceeding instituted by Lobe & Co., which we would be made to view as an interpleader, is not sanctioned by law or precedents in this State. 7 A. 297; 7 R. 398; 1 A. 145, 330; 2 A. 987; 11 A. 489; 2 A. 650; 6 A. 485; 18 A. 641; 21 A. 401.

As Cain could not have asked and procured such an order, his vendee, who has no greater rights than he himself could have asserted, cannot resort to that form of proceeding for relief.

The right of a purchaser should be averred in a direct action, independent from the main suit in which the writ issued, and the property was sold; the proper averments must be made, the creditors interested must be named and must be reached by the process of the court where they will be bound to plead. 21 A. 101, and authorities there cited.

Where it is not asserted in that form, and parties do not object, the judgment rendered will be as valid as if it had been rendered in a direct suit.

We do not propose to pass upon the regularity of the proceeding by “intervention” in this case, which is not before us, no exception having been taken and sustained dismissing it. We are called upon merely to revise the correctness of the' order. We l^ve done so. The plaintiff is entitled to proceed with his intervention, as though the order thereon had not been rendered.

Judgment creditors can, however, in proper cases, proceed by rule. 1 A. 330; 2 A. 650; 24 A. 256; 25 A. 146; 27 A. 293; 28 A. 754; 29 A. 319, 358.

It is only after hearing all concerned in the amount retained by the purchaser, and in the inscriptions securing payment, that the court can pass upon the correctness and dignity of each claim, and allow, reject, or regulate the same. It is. only after such judgment has become final and executory, that the purchaser is authorized to pay, and can force the creditor to receive payment, and, in default, can deposit the amount, accruing to him, contradictorily with him, in such manner as the court may, under the law, determine.

The court was without power or authority to issue in limine an ex parte order directing the amount of adjudication to be specially deposited in a bank, on or before a fixed day, unless parties concerned show cause to the contrary on said day. Neither could it notify the filing of the petition to all whom it may concern, by advertisement in a newspaper during a specified period.

It is in the course of proper proceedings, that the validity and effect of the sale, together with the reality and dignity of the claims of the creditors will have to be tested and decided.

An inscription duly made can be erased only with the creditor’s consent, or by a valid decree of court contradictorily obtained. 8 R. 97, 130; 8 A. 58; 2A.606; 21 A. 401; 29 A. 848; 2 L. 489 ; 4 L. 17; 5 L. 329 ; 6 R. 299; 11 R. 171.

Any judgment which would be rendered on the petition of Lobe & Co., unless after issue joined by appearance, or by default obtained after proper service of citation, would be absolutely void.

Tiie advertisement can supply neither the ser%dce of the petition, viewed as a rule to show cause, nor the service of the same, considered as the statement of the cause of action, prayer for relief,, nor of the citation which the law requires in such action. Parties concerned, not cited and served, and not waiving citation and service and not joining issue, would not be bound by such proceedings.

While wo are far from denying that Lobe & Co. are entitled to adequate relief under our own laws and jurisprudence, we do not consider that they can obtain it by resorting to the proceedings which they have inaugurated. 2 A. 987; 34 A. 54; Partida III, t. II, 1. 46.

For that reason, among others, we cannot pass upon the validity and effect, even if founded on the suit brought by the representative of the succession of Weil, the merits of which will have to be considered at the proper time, -j^ien presented in the proper form.

We have read with unusual interest the able brief presented on behalf of Lobe & Co., in vindication of the proceeding, but while we give it the credit to which it is entitled, we niust withhold our concurrence in the legal propositions which it advances. It is not until after the Legislature will have adopted and formulated them, in the shape of a law, that we will feel authorized to admit them as guides, binding upon us, and to carry them out accordingly.

We think that, the petitioners are extended ample relief by our own laws and jurisprudence. This dispenses us from borrowing from other systems on the subject.

The order was improvidently rendered and should be rescinded.

For the reasons contained in the foregoing opinion :

It is ordered and decreed, that the judgment appealed from, discharging the rule of the executors for the proceeds of sale, be affirmed, at the cost of appellants.

It is further ordered and decreed, that the ex parte order rendered on the 9th of August, 1881, on the petition of Lobe & Co., filed on that day, be annulled and set aside, and that the prayer therein, for such ex parte order, bo refused, without prejudice to further proceedings on the petition itself, contradictorily with the parties therein asked to be cited, the costs on the appeal from the order, including the cost of rendition of the order, to be paid by Lobe & Co.

Levy, J., absent.

On Application for Rehearing.

We are asked to amend our decree so as to make it read that the petition filed by Lobe & Co., be remanded to tbe lower court to be further proceeded with according to law.

We cannot remand a matter which never was before us, and which has not ceased to be pending in the lower court. We were merely called upon to decide, whether a certain ex parte order was or not legal in some of its features. We have done so. Our decree merely erases from the order the objectionable portions in it. The petition of intervention, from the date of its filing, has not ceased to be a pending proceeding. As it never was put at issue, and no question was ever brought up touching it, in that condition, we could not and did not pass upon its merits or demerits. Our decree was well considered. It distinctly reserves the right of the petitioner to further proceedings, on the pending intervention, contradictorily with the parties asked to be cited. Under such circumstances we cannot be asked to anticipate the merits of the application and now express an opinion touching the disposition which the petitioner is to make, pendente lite, of the proceeds of sale. Much in that respect will depend upon the regularity of the proceeding, and upon the right to deposit the fund retained by the purchaser, in some way or other.

We cannot take notice of the invoked rule of the lower court, to which our attention is called in the brief for a rehearing, for the first time, which is not in the record, and touching which there was no issue before us.

Rehearing refused.

Levy, J., absent.


author: Fenner, J.

text:
    No. 8544.
    City of New Orleans vs. J. Jané.
    Selling liquors by the (Iriuh is not part of the business of a confectionery, and is not covered "by a confectioner’s license.
    "When a confectioner sells liquors by tlie drink, lie combines two kinds of business, and under the terms of tbe statute, is liable for a separate license on each.
    APPEAL from the Eirst City Court for the City of Now Orleans. Skinner, J.

      J. Ward Gurley, Jr., Assistant City Attorney, II. G. Morgan, for Plaintiff and Appellee:
    A licensed confectioner cannot sell liquor, or keep a bar, at his confectionery, without a liquor license; the barroom business and that of the confectionery are specially designated and separated in Section 11, Act 119 of 1880.
    When two or more kinds of business are combined, except as specially provided for in Section 6 of Act 119 of 1880, a separate license is required for each kind of business. Section 13, Act 119 of 1880.

      The lowest license tlmt can he issued under Act Ho. 119 of 1880, for the sale of liquor in quantities loss than a pint, is a lioense for fifty dollars. See proviso to Section 11 of said Act.
    “A confectionery is aplace for sweetmeats; aplacewhero sweetmeats and similar things are made and sold.” Webster’s Dictionary.
    The legislature can, from motives of public policy, require a special license for the sale of liquors, in addition to the regular license paid by merchants and dealers in other articles of trade. State vs. Holmes, 28 An. p. 765.

      Joseph P. Eornor, Francis W. Balcer, for Defendant and Appellant:
    Whero a confectioner, as part of his business, sells liquors which are drank upon the premises, a single license is sufficient. Act 119 of 1880.
   The opinion of the Court was delivered by

Fenner, J.

The City of New Orleans sues the defendant for a license of fifty dollars for the sale of liquor, in less quantities than a pint, at his confectionery.

The defense is that defendant has paid his license for his confectionery; that it is part of the business of confectionaries, as conducted in New Orleans, to sell absynth, vermouth and other liquors, by the drink, for the accommodation of their customers, and that this privilege is covered by the license to carry on the business of a confectionery.

If such a custom prevails, it is very clear that it cannot avail to make the business of selling liquors by the drink a part of the business of a confectioner. It would simply establish the prevalence of a custom in this City, among confectioners, to combine with that business the separate and distinct business of a barroom or drinking saloon.

A confectionery, as defined by Webster, is “aplace where sweetmeats and similar things are made and sold.” By no possible stretch of construction can it be held to include the selling of liquors by the drink.

The terms of the ordinance, under which the license is imposed, are as follows: “ For every restaurant, oyster house, confectionery, barroom, cabaret, coffee house, café, beer saloon, liquor exchange, drinking saloon, grog-shop, or other place where anything to be drank or eaten is sold, etc., * * * provided, that no establishment selling or giving away any spirituous wines or malt liquors in less quantities than one pint, shall pay less than fifty dollars.”

We think it might be contended that the business of a barroom or drinking saloon covered the business of a confectionery, with quite as much force as sustains the reverse contention supported by defendant.

It is especially provided in the law, that “when two or more kinds of business are combined, there shall be a separate license required for each kind of business.”

Such is the precise case here.

Defendant further sets up, as a bar to the City’s claim, that his license reads: “Received from J. Jane, tbe sum of $75, for license to carry on the business of confectionery and liquors, etc., No. 164 Canal street.” Tbe City cannot be estopped from claiming ber lawful dues by such a blunder of a subordinate agent.. The receipt serves to show that the term, confectioner!/, by itself, was not. considered to cover tbe business of selling liquors, without express mention of the latter.

This case is similar, in principle, to that of State vs. Holmes, 28 A. 765, and the reasons there set forth are applicable here.

It is, therefore, ordered, adjudged and decreed, that the judgment appealed from he annulled, avoided and reversed, and it is now adjudged that plaintiff have judgment condemning defendant to pay the license claimed, viz: the sum of fifty dollars with interest at ten per cent, per annum from March 1st, 1881, until paid, defendant and appellee to pay costs of the lower court and of this appeal.

Levy, J., absent.


author: Todd, J.

text:
    No. 8572.
    State of Louisiana vs. George Watson.
    The appointment by the J urtge, of a citizen who is not a member of the grand jury, as a clerk of that body, is unauthorized by law, and can be made the ground of a motion in arrest of judgment-.
    APPEAL from the Twenty-second Judicial District Court, Parish of Ascension. Gheevers, J.

      J. 0. Egan, Attorney General, for State, Appellee.

      F. B. Earhart, District Attorney, same side:
    After a party has pleaded to an indictment and been convicted, it is too late to object to the constitution of the grand jury, or to the disqualification of any member thereof, more especially if it was known before, as claimed in this case. 14 A. 827; 28 Miss 687; 2 Barb. 427; 2 Parker; O C. 235; 7 Eng. 630: 33 A. 1404; 29 Iowa, 267; State vs. Kimball, 2 Ire-dell, 101; 4 Dev. 305; 6Blatch. 248: 7 Ittohardson, 327.
    Clerk of grand jury was known to the common law and practice in England, and not changed by the statutes of Louisiana. Vide Tomlin’s Law Dictionary, Clerk. Crown Circuits Companion, (appendix ) Sec. 976, K. S.; 8 II. 545; 32 A. 408; 31 A. 269, 487, 653; 29 A. 693, 718: 10 A. 193; 30 A. 846; 32 A. 1021.
    The doctrine of secrecy of proceedings before grand jury, as laid down in Storkie on Evidence, pages 172. 173. Edition 1879, is not entertained by the courts and eminent judges. Lord Kenyon differed from Lord Elieuboi ougk. Vide State vs. Broughton, 7 Ired. 96.
    In this ease the court decided that a grand juror may be compelled to testify as to what was given in evidence befoie the grand jury by a witness. In Little vs. Com., 25 Gratt. 921, Court held that the defense could prove, by a witness present, that a witness for the prosecution testified differently before the grand jury. Waterman's Crim. Digest, page 135, Eos. 88, 89; 16 Conn, page 457; 53 E. H. 484; 4 Gray, 585; Waterman’s Crim. Digest, page 248, Eos. 26, 28, 29, 31; 32 E. V. 465; Waterman’s Crim. Digest, pages 352 and 353, Eos. 354-359, 360-361.

      The rule that proceedings before the grand jury shall be secret, will not protect witnesses (who testify and commit perjury,) from prosecution. People vs. Youug, 31 Cal. 563: Waterman’s Grim. Digest, page 652, Nos. 69, 70, 71.
    The mere fact that a stranger was present in the grand jury room when the indictment was found, would not render it void, if he did not participate in the proceedings. State vs. Clough, 49 Maine, 573.
    The question of secrecy is fully discussed in Bishop’s Criminal Procedure, Vol. 1, No. 531, and notes 1, 2, 3, and Nos 857 and 858 and notes, and 859.
    Tho reasons for secrecy are removed after finding the bill, and trial and conviction theieon. Secrecy of the grand jury is for the public good, so the defendant could not escape. Bishop’s Criminal Procedure, Vol. 1, Ed. of 1872, No. 859
    There is a distinction between deliberating upon, or deciding a question of finding a bill, and examining witnesses, or hearing and taking memorandum of evidence. See note 6, No. 872, Bishop’s Ciim. Procedure.
    There can be no error where there is no injury to the accused, and it is bu&reasonable to require him, when he objt cts to the finding, to show that the grand jury who found the indictment on which he was convicted was an illegal body. 14 A. 468.
    Presumption of law is that the grand jury acted propeily in finding the bill. 14 A. 468.

      Edmond Maurhi, for Defendant and Appellant:
    1. A clerk to the grand jury is an officer unknown to the laws of Louisiana.
    2. The appointment by the Judge of a citizen, who is not a member of the grand jury, as clerk of that body, is unauthorized by law, and a grand j ury so constituted is not a legal grand jury.
    3. Sixteen jurors shall constitute the grand jury. Sec. 2136, R. Stat.; Voorhies Grim. Jump, page 438.
    4. What passed before the grand jury cannot be inquired into.
    5. The proceedings of the grand jury must be secret. 8 R. 618; 14 A. 461.
    6. The judgment of the court must state the reasons and the law upon which it is based.
   The opinion of the Court was delivered by

Todd, J.

The defendant was indicted for murder, and upon conviction was sentenced to a life imprisonment in the penitentiary, in conformity to the verdict., and from this sentence has appealed.

The only question presented by the appeal is as to the correctness of the ruling of the lower court on the motion in arrest of judgment.

This motion was to the effect that the record showed that the Judge* had appointed a cleric to the grand jury, for the purpose of assisting them in their labors, and it was charged that such appointment was unauthorized by law, and constituted an irregularity so grave, and a defect of substance so radical, as to vitiate and stamp with illegality the proceedings of that body.

The motion Avas overruled, and Ave think improperly.

The entry on the minutes relating'to this point, is as folloAvs:

And the said grand jury being so duly impanelled and sworn, as aforesaid, were thereupon duly charged by the Court, and retired to enter upon their deliberations. The Court appointed R. Prosper Landry to act as clerk for the grand jury, at the request of the District Attorney.”

It was by this grand jury that the indictment was found, under which the defendant was tried and convicted.

Section 2166, Revised Statutes, relating to the formation and organization of grand juries, provides that, “ the first fifteen jurors who shall answer to their names, shall, with said foreman, constitute the t/rand jit ry.n

This grand jury, thus composed of persons not exceeding sixteen, are sworn and charged by the Judge ; and the oath and charge are to insure diligent inquiry, entire fidelity, thorough deliberation, impartiality in their findings, and absolute secrecy in their proceedings and in the results of their labors.

Their duties are of a grave and delicate character and of the highest importance to society; and the grand jury is selected under the law, framed with a view to secure, in their selection, the discharge of those duties involving such grave responsibilities.

These duties, however, are to be discharged by this body of sixteen men, this grand jury, alone.

A person could not be appointed to act as clerk to the grand jury, except to do something or perform some service that should be done or performed by some member or members of that body, and which belonged to their exclusive functions, and were a part of the duties that the law imposed on them, and required to be discharged by them alone.

A clerk to the grand jury, possessed of the superior intelligence and fitness requisite for the performance of those acts and the rendering of those services and assistance, for which his appointment was made, it must be presumed, could exert a marked influence in the work and proceedings of that body, even where there might be no intentional effort on his part to shape or control their proceedings. But if he chose to avail himself of the opportunity afforded him, and exert the influence that his position, and perhaps superior advantages and acquirements would give him, we may readily see what an important factor lie would become in the labor's and findings of that body. Unrestrained by the sanction of the oath that each grand juror has taken, it is not to be supposed that he would possess that becoming sense of responsibility that would always afford a proper guide to his conduct and turn his influence in the right direction. Again, the clerk's attendance on the grand jury, and participation in their labors — virtually as one of themselves — with an opportunity to pry into their most secret proceedings, must greatly lessen the chances of secrecy, which the law strives to secure, and without which their work would be vain. It is idle to argue that such consequences could not, or did not result in this particular instance, and that there is testimony to show that the clerk was not present at the secret deliberations of the jury. It is sufficient reply to this to say that such results might follow, and that there is no law to authorize the appointment in question. That the law, as it exists, imposes upon the grand jury and the members thereof, the performance of every act connected with, or growing out of, the discharge of their functions and sworn duties. That this law, and every law of this nature, prescribes general rules, and aims to secure by its terms and provisions, certain results, and it is not enough to say that an act or proceeding, about which the law is silent, or does not expressly prohibit, is not calculated, in a special case, to interfere with or affect the general object or the purpose of its enactment. Affirmative legal authority, in such cases, must be shown for the act done.

It is a question of great delicacy and of some embarrassment, how far even a District Attorney, or other sworn prosecuting officer for the State, can co-operate with, or assist by his advice or otherwise, a grand jury, whilst engaged in their deliberations or other duties. With regard to a clerk, though it has been held that the grand jury can appoint one from its own members, yet we find no instance under our system of criminal procedure, where a grand jury has ever been provided with such an assistant outside of their own body, and know of no law to warrant it. And in view of the manifest abuses to which the exercise of such authority on the part of a Judge might lead, in appointing such assistant, abuses which by reasonable inference, might seriously impair, if they did not destroy the very mode of prosecution under the grand jury system, by robbing it of its efficiency, it would require very strong authority to induce our sanction to that which we regard as a glaring innovation in our criminal practice.

We have been pointed to the fact by the District Attorney, that the ancient common law of England authorized the “ Clerk of Assizes,” or Clerk of the Peace,” to act as clerk to the grand jury, and it is urged that wo adopted this feature of criminal practice of the ancient law by the Act of 1805. While we do not concede the fact .suggested, even were it so, it is quite a different thing in a sworn officer of the law, legally charged with such duty, rendering such services to a grand jury, to similar services being discharged, not by an officer of the law, but by one wholly irresponsible, unsworn, and who derives his sole authority from a judicial appointment, made without warrant of any law on our Statute books.

The testimony of the witnesses, offered on the trial of this motion, was inadmissible. It related to the proceedings of the grand jury, testified to by one of its members. Even if the proceedings of a grand jury could, in any case, be invalidated or strengthened by such oral testimony, which we are not called on to decide, a motion in arrest of judgment, must depend on and bo tried by the record itself. Under a settled jurisprudence on the subject, it lias become almost impossible to reach or inquire into irregularities or disorders attending the proceedings of that body, not a matter of record, with such secrecy and sanctity does the law clothe these proceedings. So much the greater necessity for courts to refuse their sanction to any measure or proceeding bearing on the composition of a grand jury, or calculated to affect the workings of such body, unless the same is expressly authorized by law.

Tlie irregularity complained of was of that character that could be taken advantage of by motion in arrest of judgment. Arrests of judgment arise from intrinsic causes appearing on the face of the record.” Blackstone.

Bishop says : It is plain that there is a class of cases in which, if objection to tlie grand jury appear of record, it can be taken advantage of after verdict, or on motion in arrest of judgment. An illustration of tills proposition occurs, where by the, record, the grand jury appears affirmatively not to have been a legal body.” Bishop Crim. Proc. v. I, p. 540.

The motion does not, in this instance, relato to mere irregularities in the drawing of the jury, or to the disqualification of one or more of its-members, which, it is insisted, must be otherwise objected to, but to a gross irregularity of substance, patent on tlie face of tlie record, and of so serious a nature as to affect the very composition of tlie grand jury, and to vitiate its proceedings.

It is, therefore, ordered adjudged and decreed, that tlie judgment and sentence appealed from be annulled, avoided and reversed ; that the indictment in question, and all proceedings thereunder, be quashed, and that the defendant bo held in custody to await tlie action of another grand jury, and until discharged in due course of law.

Levy, J., absent.


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

text:
    No. 8324.
    State ex rel. S. R. Stewart vs. Police Jury of the Parish of Jefferson, Left Bank, et al.
    Relator's right to a tax to satisfy liis j udgment against tlie Parish is to be determined by tbe law in foice at tbe date of bis contract.
    Tbe limit of taxation, fixed by law, at tbe date of bis contract, and the constitutional enlargement of tbe limit to ten mills, bad been exhausted by the parochial authorities at tbe date of the mandamus. A mandamus to compel tbe Police Jury to levy a tax to satisfy Relator’s judgment was therefore improperly granted.
    APPEAL from the Twenty-sixth Judicial District Court, Parish of Jefferson. Hahn, J.

      Chas. Louque, for Relator and' Appellee.

      W. Mithoff, Chas. F. Claiborne, for Defendants and Appellants.
   Tlie opinion of the Court was délivcred by

Levy, J.

Plaintiff, as transi'erree and owner of a judgment of §1,133, bearing five per cent, per annum from November 18th, 1876, against the Police Jury of the Parish of Jefferson, Left Rank, obtained a judgment in the District Court of said Parish, perpetuating a mandamus, ordering the said Police Jury to levy a tax of three mills on the dollar of all assessed property within the said Parish, Left Bank, to pay the judgment, interest and costs, and further ordering the sheriff and ex-officio tax collector, to collect said tax immediately, and to pay the proceeds to Relator, as soon as collected, in satisfaction, pro tanto, of the said judgment.

Prom the judgment in the mandamus suit, the defendants have taken this appeal.

In his petition, plaintiff alleged that said judgment was rendered to enforce contracts made in 1875 and 1876, when the rate of taxation was limited to 14J mills : that during said years the rate of taxation was, for Parish purposes, as follows: Por 1875, 10 mills, and for 1876, 141-mills, and that at the time when the contract, on which the judgment is based, was made, the law provided, that, in the judgment, the Judge should order the levy of a tax of sufficient amount to pay the' said judgments, and Relator has a vested right in the levy of said tax, which could not be divested by subsequent legislation j wherefore, he prayed for the mandamus. In the alternative, he prayed that the Police Jury be ordered to budget the amount of the judgment on their next-budget and proceed to levy a tax sufficient to pay the same, of three mills on the dollar, notwithstanding the constitutional limitation of taxation.

The record contains conclusive evidence that the original judgment, was based on a contract entered into between the plaintiff therein and the defendant Police Jury. The judgment was rendered contradictorily with the Police Jury, and is, therefore, by lapse of time, within which an appeal or action of nullity might be had, res adjudicata, and cannot be inquired into by us in this action. When the judgment was obtained, the Act of 186!), embodied in the Revised Statutes, was in force, which gave to the judgment debtor the right to have the assessment and collection of a special tax to pay the judgment, and as this Act was subsequently repealed, and prior to the institution of these mandamus proceedings, defendant contends that as the order for such assessment and collection of the special tax was not made prior to the repeal, the mandamus to enforce the same w-ill not lie, and that the silence of the judgment as to the order must be construed as a denial of the tax, and a bar to subsequent proceedings to claim one. On this point this Court held, in 32 A. 887:

“ We do not consider that the insertion in the judgment, that a tax shall be assessed and applied to the payment of this judgment, adds any force to the claim of the Relator for a mandamus. The law, in existence at the time it was rendered, directing such an insertion, forms as much part of the judgment, without being so embodied, as the formal incorporation of its provision does. The Relator has acquired no right by the insertion which he would not have had otherwise.”

It is then clear to our mind, that Relator has the right to enforce the payment of his judgment, by the levy and collection of a'tax in accordance with the law, and to the extent of the taxation in force at the time his contract was entered into, and which, as above stated, formed a part of the contract. This principle is so firmly established and so frequently decided, that it is now regarded as the fixed jurisprudence of the State as well as the Federal Courts, and needs no elaboration or citation of authorities, forming, as it does, an axiomatic, legal and constitutional truth.

The limit of taxation fixed by the law at the time the contract was entered into, is the measure of Relator’s remedy at this time. That limit has not been reached, nor will the tax herein directed to be levied be exceeded thereby, and we, therefore, cannot disturb the judgment of the lower court.

The judgment appealed from is, therefore, affirmed; defendants to pay the costs of both Courts.

Dissenting Opinion.

Bermudez, C. J.

The rate of Parish taxation for the years 1875 and 1876, and anterior to 1871, was ten or fourteen and a half mills, and the maximum of taxation powers had been reached by the parochial authorities during those years.

Under the laws in existence and under the authority in Lafitte vs. Morgans, 29 A. 1, and in Shannon vs. Lane, 33 A. 490, the rate of parish taxation in this State, from the years 1871 to 1876, was four mills.

During the years of Relator’s alleged contract, 1875 and 1876, there was actually levied a tax of ten and fourteen and a half mills, respectively, thus far exceeding the limit of taxation, as restricted by la w.

The Relator is not entitled to a tax in excess of that limited by the law, in existence at the time of his averred contract.

The mandamus should, therefore, be refused.

Poché, J.,

dissenting: I concur in the opinion of the Chief Justice.

On Application for Rehearing.

Fenner, J.

The contract, on which Relator’s judgment is founded, is dated December 11th, 1874.

His rights are regulated by the law in force at the date of his contract.

The question for solution is, what 'was the law in force on December 11th, J.874, as affecting tho power of parishes to levy taxes, and the rights of creditors to exact the levy thereof, for the purpose of paying their claims'?

The Act of 1869, authorizing the Judge, whenever he rendered a judgment against a parish, to order a levy of taxes sufficient for its payment, had not, it is true, been expressly repealed.

But in 1872, nearly three years prior to the date of Relator’s contract, tho legislature had enacted tlio following :

“ Nor shall the Police Jury of any parish levy a tax for any parish puiposes, except to pay indebtedness incurred prior to the passage of this Act, during any year, which shall exceed one hundred per centum of the State tax for that year, unless such excess shall be first sanctioned hy a vote of the majority of the voters, oto.” Acts of 1872, p. 56.

The exception sxiecifically stated, with reference to “ indebtedness incurred prior to the passage of this Act,” can leave no possible doubt of the legislative intention to apply the limitation, fixed therein, to all indebtedness, of whatever nature, incurred after the passago of the Act-, anil to restrict within the samé limit, tho operation of the Act of 1869. To hold otherwise would he to defeat, and to render of non-effect, the manifest purpose of the law.

In other words, the latter Act repealed hy implication the Act of 1869, in so far as it authorized Judges to require the levy of a tax exceeding the limit therein fixed, in satisfaction of judgments rendered for indebtedness incurred after its passage.

Tho next question is: What was the limit of taxation established hy the Act of 1872 9

This question was determined, by our predecessors, who hold that tho Act of 1872 limited tho power of parochial taxation to four mills on the dollar. Lafitte vs. Morgans, 29 A. 1.

We have already had occasion to express our approval of that decision. Shannon vs. Lane, 33 A. 490.

The limit of taxation thus fixed by law at the date of Relator’s contract, and the enlargement of that limit to ten mills, authorized by the Constitution of 1879, liad both been exhausted hy the parochial authorities at the date of the -mandamus herein applied for, and it is, therefore, impossible to grant the relief demanded hy Relator in the present case.

Tlie principles announced in the original opinion herein are correct, bnl the error consists in the assumption that the limit of taxation, at the date of Relator’s contract, was 14-J mills, instead of 4 mills.

It is, therefore, ordered, that our former decree herein ho annulled and set aside; and it is now ordered, adjudged and decreed, that the judgment appealed from he annulled, avoided and reversed, and that Relator’s demand he rejected, at his proper cost in both Courts.

The Chief Justice, and Roché, J., concur in this opinion and decree, without reference to principles embodied in the previous opinion of the Court-

Levy, J., absent.


text:
    No. 8547.
    J. P. Broadwell vs. S. P. Raines, Sheriff, et als.
    Where a contract states that A has bargained, sold and delivered to B a certain plantation, describing it, together with everything on the place, “ the titles to said property (real and personal) to he made at their convenience, as per their private agreement,” the contract is not a sale hut a more agreement to sell.
    In default of compliance, on the part of the contingent purchaser, with the conditions imposed hy private agreement upon him, he acquires no title, and nothing immovable hy destina, tion can he seized as the property of the conditional jmrehaser hy his creditors.
    APPEAL from the Eleventh Judicial District Court, Parish of Natchitoches. Pierson, J.

      Watkins & Scarborough, for Plaintiff and Appellant.

      William 11. Jack, for Defendants and Appellees:
    When all the matters set up have been passed upon in another suit, they form the basis of an estoppel. 28 A. 625.
    A partyis estopped from contradicting in a subsequent action what he has judicially admitted to he true iu a previous action between the same parties, (23 A. 764) a fortiori when in the first case he has sworn to a given state of facts.
    A debtor who points out property is estopped from objecting to the sheriff’s action. 13 A. 461.
    Plaintiff in attachment is estopped from afterwards setting up that the property attached did not belong to defendant. 28 A. 60.
    In order to annul a judgment a direct action of nullity must be instituted, etc. 15 A. 279, 273.
    If a person he possessed in good faith and just title as owner of a movable thing during three successive years without interruption, he shall acquire the ownership of it hy prescription unless the thing was stolen or lost. C. C. 3506; 4 U. S. 388; 11 K. 16 ; 12 K. 536; 2 A. 996 * 16 A. 275; 20 A; 338 ; 22 A. 586.
    When one of two innocent persons must suffer a loss through the misconduct of another, the loss ought rather to fall upo&him. who put it in the power of the third party to inflict the injury. 27 An. 46; .Ibid, 592.
    When the testimony of two witnesses is contradictory, the one swearing affirmatively and giving a detail of circumstances will preponderate. 26 An. 678 j 12 An. 129; 2 An. 1007.

      ^Plaintiff should make hia case certain, tomakeifc probable is not enough. 22 An. 378; 19 An. 121; 15 An. 268.
    The failure of plaintiff to prove the facts essential to recover, is not cured by the evidence of the defendant, leaving the fact doubtful. 17 An. 294.
   The opinion of the Court was delivered by

Poché, J.

A statement of the main facts underlying this complicated litigation, will facilitate a proper understanding of the issues presented in the pleadings.

In January, 1873, plaintiff, Broadwell, placed L. N. Lane in possession of a plantation which he owned in the Parish of Natchitoches, under the following agreement or stipulation :

Natchitoches Parish,
“ Pré Au.v Olere, January 1, 1873.
I have this day bargained, sold and delivered to Lafayette N. Lane, the plantation lately occupied by Thomas Hunter, and better known as the Pré Aux Clerc place, with twelve mules, two wagons, such farming utensils as may be on the place, corn in crib, etc.
“ Pities, to said property (real and personal) to be made at our convenience, as per our private agreement.
(Signed) J. P. Broadwell.”

The private agreement referred to in. the instrument, was that Broadwell should facilitate Lane in the cultivation of the plantation, by making the necessary advances, in consideration of which, the crops of cotton wore to be disposed of under Broadwell’s control, the proceeds to be applied, first, to the reimbursement of his advances, and next, towards the payment of the purchase price; that after thus paying $4,000 to $5,000, in a reasonable time, and assuming- the payment of the balance of the purchase price, which was $20,000, Lane was to receive complete titles to the property described in the instrument.

Under this agreement, Lane took possession of, and cultivated the plantation for seven years, during- which he paid nothing on the purchase price, and at the end of. which he was heavily involved in debt to Broadwell and to numerous other creditors.

In February, 1830, eleven of his creditors brought suits against him, and in each suit attachments w*ere issued, resulting in the seizure of some ten mules, some horses, and other movable property situated oh •the plantation occupied by Laue.

Broadwell intervened in each of those suits, for the purpose of defeating the attachments; in some suits he claimed the property attached as his, and in others he merely alleged fraud and collusion between Lane and the attaching creditors.

• In several cases his intervention was dismissed on exception, in the remainder he withdrew his intervention on his own motion.

A short time after the institution of these suits, Broadwell brought two separate suits against Lane.

The first was for the purpose of obtaining possession of his plantation, and movable property thereto attached, on the ground of Lane’s failure to execute his part of the contract stated herein above ; in that suit the property attached by the creditors was sequestered.

Tiie other suit was for a debt due him by Lane, and under it were attached 11 mules, 500 bushels corn, and other movable property distinct from the property sequestered in Ills first suit.

Subsequently, he dismissed his first suit, and prosecuted the second to judgment, but released the eleven mules from his attachment.

In the meantime, the eleven creditors’ suits ripened into judgments, recognizing their attachments. In execution of their judgments, the movable property previously attached was seized and offered for sale, whereupon, Broadwell filed the present suit, for the purpose of asserting his ownership of the projierty seized, and of enjoining the sale thereof as the property of Lane.

Defendants excepted in substance :

1. That Broadwell was estopped from urging his ownership to the property under seizure, by his judicial admission or averments in his attachment suit, under which he had attached this identical property as belonging to Lane.

2. That as to Broadwell, the various judgments renderedin favor of Lane’s creditors, and sustaining their attachment of this property, had the force of the thing adjudged, and were binding on him, by reason of his intervention in said suits.

The exceptions having been referred to the merits, they defended under the general denial, coupled with the special averments that Lane was the owner of the property under seizure, and on trial, judgment was rendered in their favor.

As we are not informed by the District Judge on what grounds lie rested his judgment, we are left in the dark as to what disposition he made of defendant’s exceptions, and are left without the means of even conjecturing which of the multifarious defenses prevailed in the ■opinion of the Court. Hence, we shall proceed to review them all.

1. The first ground of exception urged by the defendants is easily disposed of, by referring to the record, which shows that the items of property attached by Broadwell, in his second suit, are totally different and distinct from those involved in the present controversy; which ■were sequestered in his first suit, in which he described and claimed-them as Ms property. Hence, his pleas are perfectly consistent, and no averment or statement, in either of his two suits against Lane, can, in the slightest degree, militate against the rights which he seeks to enforce in this suit.

2. As no one of his interventions in the creditors’ attachment suits was ever tried on the merits, hut as they were all disposed of either on exception, or on his own motion of dismissal, the issues presented therein cannot he said to have been finally adjudicated, and hence, the judgment rendered in favor of each creditor cannot he held to he res judicata as to Broadwell.

We, therefore, now reach the question of the ownership of the property under seizure.

The evidence shows that the items of property claimed hy him, were placed hy him as appurtenances attached to the plantation which he placed in the possession of Lane in 1873, and lienee it is clear that the ownership of these things must follow the ownership of theimmovahle or plantation to which they were attached ; and in this connection we note that 'the seizure of the better part of that property, working animals and implements of husbandry, separately from the land to which they were attached, was tolerated in the teeth of a positive prohibitory law. C. P. 645.

This brings us to the consideration of the nature of the contract, under which Lane obtained possession of the plantation in January, 1873.

The mere reading of the instrument, which we have transcribed in the first part of this opinion, is conclusive on our minds, that this was not a sale, but a mere conditional promise to sell.

The first, part of the agreement seems to convey the idea of a sale, hut the reference to the titles, which are to he made at a future time, shows clearly that the contract was not translative of property, and did not operate a mutation of title.

This conclusion is fortified and crystallized into certainty hy the uncontradicted testimony of Broadwell, explaining the intent of the parties under the private agreement referred to in the instrument, and quoted in our statement of facts.

Throughout the record, it appears that such -was the interpretation given to the contract hy the two contracting parties themselves, and such was the evident understanding of the defendants themselves, as evidenced hy their failure to seize the plantation itself as the property of their more than insolvent debtor.

We, therefore, construe the contract between Broadwell and Lane, as a promise to sell the plantation and appurtenances, under certain conditions which were never fulfilled hy Lane, hy reason whereof, the sale was never perfected, and the property, which was the subject matter of the contract, never changed ownership. Knox vs. Payne & Harrison, 13 A. 361; Garrett vs. Crooks, 15 A. 483.

Our conclusion is, that there is error in the unexplained judgment of the lower court, whether it was intended to rest on tlie exceptions or on the merits of this case.

It is, therefore, ordered, that the judgment of tlie District Court be annulled, avoided and reversed; and it is now ordered, adjudged and decreed, that there be judgment in favor of plaintiff, recognizing him as tlie lawful owner of the following items of property, seized as the property of L. N. Lane, to-wit: Ten mules, one sorrel horse, named Ajax, thirty head of cattle, seventy head of sheep, seed of (180) one hundred and eighty bales of cotton, fifteen plows, fifteen sweeps, ten bull-tongues, ten barrows, two carts, and four wagons, and that the injunction restraining the sale in execution of said property in defendants’ judgments against L. N. Lane, he made perpetual, at the costs of defendants in both Courts.

Justice Levy is recused in this case, having been of counsel.