text:
    No. 6766.
    Succession of H. Pinard vs. Peter Holten et al. On Opposition of Mrs. Holten.
    Property purchased during marriage by the wife, in her own name, with her separate money, which she has always kept, the administration of which has never been under the husband’s control, is her paraphernal property, and can not be seized by any of the husband’s creditors.
    Where the validity of a wife’s title to property bought by her during marriage is assailed, and the property is claimed by the husband’s creditors as community property, the wife may prove by parol evidence that the property was purchased by her with her separate funds.
    The omission to state in the act of sale to a wife, of property bought by her during marriage, that it was bought with her paraphernal funds does not prejudice her title or increase the burden of proof which the law imposes on her in the vindication of her title.
    Testimony given by a witness in one trial can not be introduced to impeach his evidence given in a subseauent trial, unless a proper foundation for it is laid by stating to the witness, at his examination on the second trial, what he had testified on the former trial.
    Profits derived during marriage from the use of paraphernal funds under the control of the wife, are paraphernal.
    APPEAL from the Sixth District Court, parish of Orleans. Rightor, J.

      Louque & Fernandes for plaintiff and appellant.

      Cullom & Castellanos for defendants.
   The opinion of the court was delivered by

Marr, J.

Under a writ of -fieri facias issued on a judgment in favor of the administratrix of Henry Pinard against Peter Holten, the sheriff seized and advertised for sale the undivided half of a lot of ground.

Mary Ann Coeller, wife of Peter Holten, filed a third opposition, claiming to be the owner of the property seized, and she obtained an injunction against further proceedings. She alleges, in her petition, that she acquired this property of Eisenman, by purchase, for five hundred dollars in cash, with funds derived from the income and revenue of her separate, personal, paraphernal estate, which she alone administered, independently of her husband, and which never came under his administration; that she has had real and actual possession of the property since the twenty-fifth of June, 1874; and that no other person has any claim or right of ownership to the same or any part thereof.

The administratrix answered by general denial; and she prayed for the dissolution of the injunction-with damages.

On the first trial in April, 1-875, there was judgment perpetuating the injunction. A new trial was granted, pending which, the judge died. His successor in office heard the same witnesses on the second trial, in April, 1877, and rendered judgment decreeing third opponent to be the owner of the property seized, and perpetuating the injunction ; and the administratrix appealed.

The testimony shows that Mrs. Holten had served continuously in the same family, at Louisville, from the twelfth to the twenty-first year of her age. That she left her earnings in the hands of her employer until she was about to remove with her father to New Orleans. That she had no expenses except for clothing ; that she married Peter Holten in 1869, about a year after her removal; that she never allowed him to have possession or control of her money; that he had been on the police force, had been addicted to drink and was fond of betting on horse races, at which he was not successful; and that she bought the small quantity of furniture with which they went to housekeeping. Holten was flour inspector in 1873, but it is not shown what he earned, or that he saved any thing, or that he had either property or regular-calling.

Mrs. Holten was a hardworking woman; she kept house without a servant, and made and saved whenever she could. She says her husband supplied the money for housekeeping purposes. Her brother-in-law, Patrick Holten, took her money and speculated for her in city claims and securities, making from $300 to $400 profit for her. He made several returns to her, and when he was taken sick with his last illness he sent her, by his brother, James Holten, in March, 1874. the amount remaining in his hands, seven hundred dollars. James Holten testified that he had heard Patrick advising his sister-in-law to buy property with this money to keep it out of the hands of her husband.

It was shown that Mrs. Holten lent money to different persons, $550 to her brother to assist him in establishing a store at Bayou Goula ; to James Lewis sometimes $50, sometimes $100, sometimes as much as. $150 ; and to other persons, at different times, smaller sums. She testified that she gave money to Patrick.Holten, to be used in speculating for her account, whenever he called for it; and that he accounted and' made returns to her, sometimes in sixty, sometimes in ninety days.

In June, 1874, Lewis found an opportunity to buy some lots adjoining his property and near the place at which Mrs. Holten lived. He haci not cash enough to make the payments and, knowing that Mrs. Holten had money, he proposed to her that she should join him in the purchase. The price of the three lots was $1800 ; and Mrs. Holten, considering the-investment a good one, gave him $1000; and he made and completed the negotiation. The lot in question was one of the three, and the price paid was $1000 in cash. The conveyance was made, by notarial act, on the twenty-fifth of June, 1874, to Lewis and Mrs. Holten, authorized and assisted by her husband. The other lots were purchased of Stewart, as Lewis testified, but the title was not produced, nor is it in question in this case.

If the testimony was admissible and the witnesses are to be believed, the proof is clear that Mrs. Holten purchased this property with her own separate, paraphernal means, which she alone administered, and which she never permitted her husband to handle or administer.

Counsel for the administratrix objected, on the trial, that the testimony was not admissible, on several^grounds, all of which may be thus stated:

1. That the act of sale under which Mrs. Holten claims, which was recorded in the conveyance office, showed the property seized to be community property.

2. That the act contains no declaration that the purchase was made with the wife’s paraphernal funds, or that the property was purchased for her own or separate benefit.

3. That- the act of sale can not be changed or supplemented, nor can title to real property be proven by parol testimony.

First. The presumption is that all property acquired during marriage,. by husband and wife or by either, belongs to the community. This, however, is a general rule subject to exceptions; and the presumption may be overthrown by proof. The recording of an act conveying property to the wife, which actually belongs to the community, certainly does not give additional credit to the husband; nor does it show that the property belongs to the community. It merely creates a presumption, and every one knows it is but a presumption, dependent on proof which must be sought elsewhere'than in the act or in the registry. See Savenat vs. LeBreton, 1 La. 520; Dominguez vs. Lee, 17 La. 295 ; Terrell vs. Cutrer, 1 Rob. 367; Stroud vs. Humble, 2 An. 930 , Metcalf vs. Clark, 8 An. 286.

Second. The two remaining objections may be considered together, and they have both been passed upon authoritatively by this court. In Terrell vs. Cutrer the precise objections were:

1. That a married woman who wishes to invest her paraphernal funds in the purchase of property must, in order to prevent its becoming a part of the community, declare, by notarial act, that she purchases for her sole account, and from what source she obtained the money given in payment.

2. That parol testimony is not admissible to prove that the purchase was made with paraphernal funds.

The court held that the law does not require the title to be by authentic act; and that the testimony was admissible. 1 Rob. 368.

In Savenat vs. LeBreton the proof was that the lot of ground in question was conveyed to the husband by the aunt of his wife, on account of a sum of money deposited with the aunt, inherited by the wife. The court held that the lot was the paraphernal property of the wife, and she recovered it from the vendee of her husband. This decision was under the Spanish law ; but the court said our Codes would, perhaps, be more favorable to the matrimonial rights of the wife than the former Spanish laws. 1 La. 523.

In Metcalf vs. Clark it was again urged that the investment of the paraphernal funds should be expressed in the act by which the wife claims to have acquired the property. The court said : “ The objection does not appear to us to be founded in law. * * * The wife, if required, would be bound in all cases to prove the reality of the sale to her dehors the act.” 8 An. 287.

As the taking of the title in the name .of the wife does not, in a contest with creditors, create even a presumption that she made the purchase with paraphernal funds, the declaration to that effect in the act is of no force or value, nor does it relieve her of the burden, nor does the omission of any statement to that effect add to the burden which the law imposes upon the wife, to prove dehors the act, the facts necessary to establish a separate title in her. It is the proof of the fact, not any declaration of the fact, that she made the purchase for herself, with her paraphernal funds, that vests the title in her to the exclusion of the community; and that fact may be proven by any testimony which would be admissible in a judicial tribunal to establish any controverted fact. In Edwards vs. Edwards, 29 An. 597, where the creditor of the husband relied solely on the legal presumption, resulting from the fact that the property was acquired during the marriage, we held that parol evidence was properly admitted to rebut that presumption.

On the second trial the counsel for the administratrix offered to introduce the testimony given by some of the witnesses on the first trial, to rebut and contradict their testimony given on the second trial. This was objected to on the ground, as stated in the bill of exceptions, “that counsel for defendant has not placed said witnesses on their guard. ”

We think the court did not err in rejecting this testimony. It is elementary that a witness can not be impeached by proof of contradictory statements made on some other occasion, without first laying proper foundation, by directing his attention to the former statements and giving him a fair opportunity to explain them if he can. The only foundation laid in this case was the statement made to Mrs. Holten, by her own counsel, who, at the beginning of his examination, on the second trial, said: “ I will ask you precisely the questions that were asked you before. ” This is not the foundation which the law contemplates ; but if the counsel for the administratrix had made this statement, in his cross-examination, it would have been wholly insufficient. He should have informed her precisely what she answered on the former trial, not .what questions had been asked. To tell a witness that the same questions would be asked, does not inform him what answers he made; and it would have been most extraordinary if the witness, after the lapse of two years, had answered the same questions in the same language, or even to the same effect, in a minute cross-examination.

Although the testimony was properly rejected, we have read it, and compared it with that given on the second trial. There are some discrepancies, particularly as to dates and amounts, with respect to which memory is necessarily and proverbially treacherous; but the material facts are not contradicted : that Mrs. Holten had and brought with her from Kentucky more money than she paid for the property seized; that she administered this money alone, without the interference, or agency of her husband ; that she made frequent loans to different persons ; that Patrick Holten speculated with her money, on her account, and made profits for her ; and that in March, 1874, a few months before she made this purchase, when Patrick was no longer able to attend to business, he sent to her by James Holten seven hundred dollars, the money remaining in his hands belonging to her.

The legal presumption that this property belongs to the community simply because it was acquired during the marriage is completely destroyed by the testimony in this case, which is not contradicted ; and on a question of fact we should not be justified in disregarding the conclusions of two district judges, who successively tried the case, and who saw and heard the same witnesses, the one two years after the other. It was not shown that the community had any means or property. The advice of Patrick Holten to his sister-in-law, coupled with what is proven with respect to Peter Holten’s habits, makes it improbable that he had saved much from his- earnings, or that he furnished the money which Mrs. Holten lent on so many different occasions, or that with which Patrick Holten speculated so successfully for his sister-in-law, or the $>1000 which she gave to Lewis to pay her part of the price of the property in question.

If during the marriage Mrs. Holten had saved the earnings of her needle, or of any other work or labor, and had invested them in property, it would have belonged to the community, because the labor, skill, and industry of husband and wife beiong to the conjugal partnership ; but the profits derived from the use of her money, the fruits of her paraphernal means, always administered by herself alone, did not belong to the community; and the property purchased by her with her separate paraphernal means, is also separate, paraphernal; and it is not liable for the debts of the husband or the community.

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


source: Caselaw Access Project

author: DeBlanc, J.

license: Public Domain

text:
    No. 6300.
    Nathaniel Montross vs. Samuel Jamison.
    Where property sold at public sale is bought by three persons in indivisión, each being entitled, by agreement among themselves to a certain undivided portion of the property, any one of the common owners who has paid his share of the adjudicated price, has a right to demand from the sheriff a deed of sale for his undivided portion; and no one of the co-proprietors is entitled to oppose the demand on the ground that the taxes on the property have not been paid,
    APPEAL from the Fifth District Court, parish of Orleans. Cullom, J.

      A. & W. Voorhies for the N. O. National Banking Association.

      Armand Pitot for the Citizens’ Bank.

      T. Gilmore & Sons for the Hibernia Bank.
   The opinion of the court was delivered by

DeBlanc, J.

In and by a rule filed on the 16th of November, 1875, the Citizens’ Bank prays that the civil sheriff of the.parish of Orleans, be ordered to complete and give to said bank a deed of sale for the two undivided fifths of the property known as the Imperial — the whole of which, on the 18th of February 1873, was sold under execution, and adjudicated — as an entirety — to Paul Fourchy, for the New Orleans National Banking Association, the Hibernia National Bank and the Citizens’ Bank.

The adjudicatees paid in full the amount called for by the writ under which said property was seized and sold, and — between them— they fixed as follows the proportion of each of them in the Imperial: the Citizens’ Bank two fifths, the Hibernia one fifth, the New Orleans National Banking Association, the balance. Under subsequent proceedings by the creditors in the first and aforesaid execution, the whole of the same property was again seized and advertised for sale. At the second sale, the two fifths previously adjudicated to the New Orleans National Banking Association were purchased by one of the seizing creditors.

That Banking Association alone opposes the granting of the order sought to be obtained by the Citizens’ Bank. Its opposition is based on the grounds:

1. That the Imperial was adjudicated as a whole, not in parts; that but one title can be given, for the whole — to the three purchasers, and that no separate title can be given to each of them.

2. That the taxes due, or which — from the recorder’s certificate, appear to be due on said property, have not been paid.

3. That — as the proportion of the New Orleans National Banking Association in the Imperial, was again seized and again sold — at the suit of the creditors by whom it had already been seized and sold — a decree allowing the demand of the Citizens’ Bank, might be invoked by those creditors as a bar to any attempt — on the part of the New Orleans National Banking Association, to compel a completion of its title under the adjudication of the 18th of February 1873.

Of these several grounds, not one is tenable.

It is admitted-r-by the New Orleans National Banking Association— that, after the adjudication to Fourchy, then acting for the three banks, the proportion of each of the banks was fixed by and between the interested parties, and — by that mutual agreement, fhe plaintiff in rule-became the owner of two undivided fifths of the Imperial. At that time and under that agreement, would the New Orleans National Banking Association have objected to the completion and delivery, by the sheriff, of a separate deed of sale to each of the purchasers, for the acknowledged share of each of them in the joint purchase? Assuredly not. That bank can not justly, now, raise an objection, the maintenance or dismissal of which can neither increase nor reduce its rights.

The Citizens’ Bank has bought — that is shown by the return on the ' writ: of the property adjudicated to the three banks, the Citizens’owns the two fifths, that is thrice j udicially admitted — : of the proportion of the price for which it was liable, the Citizens’ Bank has paid every cent, that is proven. That bank is asking, not the recognition of a disputed title, but the- evidence of a title disputed by none, recognized by all. Under what rule of law or equity, could we ignore and disregard the sheriffs adjudication, the payment of its price, the parties’ agreement as to their respective shares, and suspend the issuance to plaintiff of the muniment of its title ?

The naked allegation that the taxes due on the Imperial have not been paid, is contradicted by facts and presumptions, by tax-receipts, the silence of the sheriff, the inaction of the collector. The certificates of recorders — here and elsewhere — often show, not what is due, but what was due. This, however, is no concern of the New Orleans National Banking Association, and — inasmuch as the collector does not complain, we take for granted that the bank has settled to his satisfaction.

If, as contended by the Banking Association, it has not forfeited or lost the title which it appears to have acquired.on the eighteenth of February 1873, the apprehension, that our degree on the rule might impair that title, or prevent its completion, is certainly unfounded. Far from inflicting the apprehended injury, that decree — if its effects extend beyond this controversy, could only be construed as the recognition of a common title, a fraction of which is claimed by appellants.

The facts disclosed on the trial justify the judgment of the lower court, and that judgment is affirmed with costs.


author: Spencer, J.

text:
    No. 6810.
    Edmund Brown vs. Emile Bouny et al.
    Where the property o£ a succession is sold by a mortgage creditor under executory process, without making the succession a party to the proceeding, and no fraud is shown, and it appears that the money was applied to the debts of the succession, the heirs can not annul the sale, and recover the property, without tendering to the innocent purchaser of the same, the price he had paid for it.
    APPEAL from the Fifth District Court, parish of Orleans. Rogers, J.

      E. K. Washington for plaintiff and appellant.

      Jerome Meunier and 21 Gilmore & Sons for defendant and appellee.
   The opinion of the court was delivered by

Spencer, J.

Plaintiff alleges in substance that he is the son and heir of Mrs. Causay Brown, who died in the State of Mississippi about the twenty-ninth April, 1873. That she owned certain property in New Orleans on which Bouny held a mortgage granted by her. That on the fourth May, 1874, Bouny sued out executory process, and sold said property without said Mrs. Brown or her succession having any legal notice thereof. That the property was adjudicated to the other defendant, McQuade, for $1389 at said sale. He alleges the nullity of the sale' for the reasons stated, and cites Bouny and McQuade as defendants. Both defendants excepted that the petition disclosed no cause of action, and McQuade further excepted that restitution or an offer of restitution of the price paid by him was a condition precedent to plaintiff’s action of nullity. On the trial of this exception plaintiff and defendants each offered in evidence the record of the seizure and sale case referred to.

The notices of judgment and of seizure, the sheriff’s returns state, were served at Mrs. Brown’s domicile in New Orleans by leaving them with plaintiff, her son, she being absent. The record of this seizure and sale shows that McQuade bought the property for $1389, and paid the cash, which was applied first to the costs, then to the taxes due on the property, and the balance, $1018, to the writ, which was not fully satisfied thereby. The plaintiff does not dispute — -but, on the contrary, admits— that this mortgage debt was a just one. H& does not allege that the property brought less than it was worth. It is indisputably proved that the proceeds of this sale went to pay just debts of Mrs. Brown; to wit: her taxes and this mortgage claim. There is no pretense or allegation of fraud in the defendants. Under this state of facts, it is almost elementary that plaintiff, who is the heir at law of the seized debtor, can not wrest this property out of the hands of an innocent third purchaser without restoring or offering to restore the amounts thus paid by him. It is very questionable whether, even if he had tendered the amount, ho could recover the property, without .alleging and proving that he was injured by the sale. See Barrett vs. Emmerson, 8 An. 503 ; Stockton vs. Donnay, 6 An. 581.

Even a minor whose property has been alienated without the forms of law — or in violation of law even — can not recover it back without restoring the advantages he may have received. See 6 N. S. 684; 21 An. 385 ; O. C. C. 2226.

He who seeks equity must do equity. No court under the facts disclosed by this record would give the plaintiff this property without first requiring him to make restitution, and when this want of restitution or offer of restitution was set up by way of exception the court properly sustained it.

The judgment is affirmed, with costs of both courts.


text:
    No. 6605.
    Louis Fix vs. Succession of Mrs. W. H. Dierker.
    In a possessory action the plaintiff’s title to the property in contest is put at issue, and therefore its validity may bo judicially inquired into.
    A tax-sale of property, sold under an assessment made in the name of a deceased person to whom the property had not actually belonged, and without any notice served on any person in interest, is utterly without effect; and no judgment subsequently rendered on monition, can impart any validity to the title passed by sueh a sale.
    So much of the price, paid by a purchaser of property at a void tax-sale, as was really due on the property for taxes, he is entitled to be refunded.
    APPEAL from the Second District Court, parish of Orleans. Tissot, J.

      Louque & Fernandes and T. A. Flanagan for plaintiff and appellant.

      W O. Denegre for defendant.
   The opinion of the court was delivered by

DeBlanc, J.

Plaintiff alleges that, on the 23d of October, 1875, he acquired, at a tax-sale, two lots of ground situated in the city of New Orleans, assessed in the name of Henry Dierker, and sold for the taxes thereon due in 1873. Those lots, which — together—had been assessed at from nine to thirteen thousand dollars, were purchased by plaintiff for less than five hundred.

Whose property was thus sold? Was it the property of Henry Dierker ? It was not; it was that of his widow and children, a portion of which was acquired from plaintiff himself, by Mrs. Dierker, after the death of her husband, and for five thousand dollars. As to that portion, Eix knew that the lot seized as belonging to the husband, was and had not ceased to be the property of the wife.

The sales from the collector to Eix were confirmed by the Auditor. Relying on those deeds, and on a judgment rendered on a monition published by him, and by which those sales were homologated, he filed — in the Second District Court — a petition in which he prayed to be placed in possession of the property so acquired by him. He died, and Mrs. Fix is now prosecuting — in her own name and as tutrix of her children, the ftuit commenced by her husband.

She contends that her action is büt a possessory action, and that defendant can not inquire into the validity of the title acquired by Louis Fix. This, evidently, is a mistake, and why ? Because, to succeed in her application, the first condition imposed upon her by the law which she invokes, is “ that she shall present her title to either the parish or-the district couft.

In this case, what are the facts ? Henry Dierker died on the third of March, 1870. His property, if any he had, passed to his legal representatives. His wife died after him, and the two lots purchased by plaintiff were inventoried as her property. She bought one of those lots from plaintiff, and built on both at a cost of ten thousand dollars.

Though it does not appear that, at any time, Henry Dierker owned any portion of that property — though it appears that, from March, 1870, whatever he may have owned descended to his children, those lots were, in 1872, assessed in his name, and — thereafter—twice sold by the same collector and for the same tax. A son of Dierker wanted to pay the taxes and advised his mother to pay them. No — said Fix — let them sell the property.' I will buy and return it to you. It was sold, he bought and refused to either return it, or allow the widow and son of Dierker to redeem it.

Two sales of that property were made by the tax-collector. According to his declaration, he annulled the first. Previous to the first of said sales, on the 22d of January, 1875, his clerk prepared a notice, addressed to Henry Dierker, who died about five years before, calling for the payment of the tax alleged to be due by him, another notice, one of seizure, addressed as the other to one who had ceased to exist, was also prepared by said clerk, and — through him — the collector heard that both of said notices had been served on Mrs. Dierker. After the first sale and its cancellation, the property — if seized at all — was seized, advertised for sale and sold without notice to either the dead man, his widow or children.

In June last, we held at Opelousas, and we adhere to that decision, “ that, as the assessment stands in lieu of a judgment, where there is no assessment or judgment against the true owner, there can be no valid sale. That such a defect is a radical one,” and — as a matter of course — one which can not be cured by monition. Ante p. 509.

Of what plaintiff has paid, he should bere-imbursed what was justly •due, but that, and perhaps more, has been offered to him, and that he has refused to accept. The property, the possession of which is now •claimed from the public administrator, never was in that officer’s possession, and to that property Eix had no title.

The facts and the law justify the judgment appealed from, and that .judgment is affirmed with costs.


author: Spencer, J. Manning, C. J.

text:
    No. 6466.
    Celina Boutté, Wife, etc., et al. vs. Executors of François Boutté et al.
    Where two separate appeals from two separate decrees are granted on the prayer of one petition, and the appeal bond only refers to one of the decrees, the appeal from the decree not referrod to in the bond will bo dismissed.
    One who has been improperly made a party to an appeal is not qualified to ask that the appeal be dismissed.
    One who was not a party to the suit in tho court below, can not bo made a party appellee to it.
    'The widow andhoirs of a decedent have aright to intervene and appeal from a judgment affecting the possession or title to real estate belonging to the succession, even when the executors of the decedent are parties to the judgment, and have appealed from it.
    •A party to a partition suit who has taken a devolutive appoal from the judgment ordering the sale of the property to effect the partition, can not, after the property has been sold, susponsively appeal from a decreo of court ordering tho sheriff to put the purchaser of the property into possession of it.
    A wife is sufficiently authorized to take an appeal when her husband joins her in the petition for it.
    When all the appellees are actually cited, it does not matter that the petition for appoal does not set forth the names of them all.
    When the order for a devolutive appeal, and appeal bond are filed within a year from the date of the judgment appealed from, the appeal will be maintained, although it appears that tho citations of appellees were not served until after tho expiration of the year.
    'The probate court has no jurisdiction of a suit.brought by the heirs of one succession, against the executor of another succession, for a partition of property which belongs, in certain undivided proportions, to both successions.
    To maintain a suit for partition, the heir who brings tho suit must make each ono of his co-heirs a party to the proceeding. Every person interested, must bo made parties to the suit.
    In a suit for the partition of real estate owned in part by tho heirs of a succession, the executor of tho succession has no legal power to represent either the heirs, or the succession.
    APPEAL from the Second District Court, parish of Orleans. Tissot, J.

      McEnery, Mils cl Mils and 21 A. Bartlett for plaintiffs and appellants.

      J. Ad. Hosier, E. Bermudez, and J. Meunier for defendants and* appellees.
   The opinion of the court on the motion to dismiss was delivered by Spencer, J., and on the merits by Manning, C. J.

On Motion to Dismiss.

Spencer, J.

Plaintiffs, as heirs of Charles P. Boutté, brought this-suit against certain of their co-heirs, and against the executors of Frangois P. Boutté, for partition of certain property in New Orleans, owned one third by Charles P. Boutté and two thirds by Frangois P. Boutté. The widow and heirs of Frangois P. Boutté were not cited or made-parties to this suit.

On fifth August, 1875, judgment was rendered decreeing a sale of the property and partition of the proceeds. On fourth of December,, 1875, the property was sold by Guinault, auctioneer, and purchased by Mrs. Anais Berens. The executors of Frangois P. Boutte refused to give possession to the purchaser, and she thereupon took a rule on the auctioneer to show cause why he should not put her in possession. This rule was made absolute on fourth February, 1876. The executors still-refusing, she proceeded against them for contempt, but they were discharged by the court. Thereupon the purchaser, Mrs. Berens, took a. rule on them to show cause why the sheriff should not put her in possession. This rule was made absolute, and the sheriff ordered to put her in possession, by decree of date May 25,1876.

On thirty-first May, 1876, the executors of Frangois P. Boutté, his widow and heirs, by motion in open court took a suspensive appeal from* this order or decree of twenty-fifth May, 1876, directing the sheriff to-put Mrs. Berens in possession, and gave bond for $10,000, the amount-fixed by the court.

On twenty-ninth July, 1876, the same parties (executors, widow and heirs of Frangois P. Boutté), by petition, took a devolutive appeal from the judgment of partition of date August 5, 1876, and also from the-decree on rule against the auctioneer, of date February 4,1876, and gave bond. Other appeals or motions for appeal are in the record, but seem to have never been perfected by the parties asking them, and need not be further considered.

We have then before us—

First — A suspensive appeal from the judgment of twenty-fifth May, 1876, on rule against the executors of Frangois P. Boutté, taken by motion in open court.

Second — A devolutive appeal from the judgment of fifth August, 1875, decreeing sale and partition. Appeal taken by petition.

Third — A devolutivo appeal, by same petition, from the decree of fourth February, 1876, on rule against the auctioneer.

Mrs. Berens has filed motion to dismiss all these appeals, on grounds some of which will be hereafter stated.

We shall dispose of the three in inverse order, beginning with the third one, the appeal from the decree against the auctioneer. It was taken by petition. We find no bond of appeal. This third appeal was obtained by the same petition arid order as the second above named, ■but the appeal bond only mentions the judgment of partition of fifth August, 1876. It does not cover the decree of fourth February, 1876. The appeal so far as relates to this decree of fourth February against the auctioneer must therefore be dismised.

The second appeal, as above stated, is taken from the judgment rendered fifth August-, 1875, ordering sale and partition, in this suit of “ Celina Boutté et al. vs. Executors of Frangois P. Boutte.” Mrs. Berens was no party to that suit in the court below. She can not therefore be cited and made parly appellee in this court. She was improperly cited, and not being a party to the appeal, she has no right to move its dismissal, except so far as to have herself dismissed as improperly made a party. See 21 An. p. 117, Succession of Tyson.

It is therefore unnecessary to consider the various objections urged, by her to appellants’ appeal from this judgment of fifth August, 1875. She is not in a position to urge them, and is not legally before this court. A person not a party to the record below, may be an appellant but never an appellee.

The first appeal above stated, to wit: That from the decree on the rule against the executors of Frangois P. Boutté, ordering the sheriff to put Mrs. Berens in possession, was taken by motion in open court by the executors of Frangois P. Boutté, who were parties in the court below, and by the widow and heirs of same, who toere not parties in the court below.

We see no reason for doubting the right of the widow and heirs, alleging injury to themselves from the order or decree of twenty-fifth May directing the putting in possession of Mrs. Berens, to appeal therefrom. The executors, in proceedings affecting the title or possession of the real estate, do not necessarily represent the widow in community and heirs at law. The conditions of the appeal bond are in accordance with the Code. Art. 579. But the executors seem to us to stand in a different position. We agree with the counsel for Mrs. Berens, that for them the right of appeal from said order did not exist. They were parties defendant in the partition suit, wherein was rendered a decree directing the sale of the property. If they desired to prevent the execution of that judgment they should have appealed suspensively from it. They saw proper not to do so, and have taken only a devolutive appeal, which left the judgment, so far as they are concerned, executory. The mandate of the court for the sale accordingly issued, the property was sold, and adjudicated to Mrs. Borens. The decree or order directing her to be put into possession was only one step more in execution of the original judgment.

It is therefore ordered, first, that the motion to dismiss the appeal from judgment of twenty-fifth May, 1876, bo overruled as to the widow and heirs of F. P. Boutté; and sustained so far as his executors are appellants. These executors, however, are ex necessitate appellees in the appeal taken by the widow and heirs. The appeal having been taken by motion in open court, and the bond being in favor of the clerk, all parties to the record not appellants are appellees. Second, that the motion of Mrs. Berens to dismiss the appeal taken from the judgment of partition of date August 5,1875, be disregarded and overruled, she not being a party thereto. Third, that the motion to dismiss the appeal from decree of fourth February, 1876, directing the auctioneer to put Mrs. Berens in possession, be sustained, and the appeal dismissed.

On Motion or Celina Boutté to Dismiss Appeal.

The record in this case is very voluminous — unnecessarily so. It is confused. There are no le«s than thirty parties to it; and not less than six appeals, or attempts at appeals embraced within it. But as we stated in the opinion rendered on the motion of Mrs. Berens to dismiss, there are but three appeals before us, to wit:

First — That from the order directing the auctioneer to put Mrs. Berens in possession, of date February 4, 1876.

Second — That from the order of twenty-fifth May, 1876, directing the civil sheriff to put Mrs. Berens in possession.

Third — That from judgment of partition of date August 5,1875.

In the opinion heretofore rendered we overlooked the motion of Mrs. Celina Boutté to dismiss. She adopts the objections of Mrs. Berens. We have already dismissed the appeal first above described. We have already considered the objections of Mrs. Berens to the second appeal, and as Mrs. Boutté urges and can urge none others than those of Mrs. Berens, it is unnecessary to refer again to this second appeal. But Mrs. Boutté occupies a different position from Mrs. Berens as to the above named third appeal. She is a party to it. Mrs. Berens was not. We must therefore consider the objections, which we declined to do for Mrs. Berens.

First — It is objected that Lucette Aleix is not authorized by her husband to take this appeal. The petition of appeal is that of the wife and of the husband. He joins her in it and this is sufficient.

Second — It is further objected that the executors of Charles P. Boutté are not cited as appellees. They were not parties below. Nor is the executor a necessary party to a suit for partition of an estate.

Third — The petition of appeal does not set out the names of all the appellees. It asks that all the parties to the suit be cited. Id cerium est quid redire cerium potest. They were all cited.

Fourth — The judgment of partition appealed from was signed Aug. 5,1875. The petition of appeal was filed twenty-ninth July, 1876, appeal granted and order signed August 1,1876, and bond filed August 3,1876. The citations were served after the expiration of the year. The order of appeal was granted, and bond filed within the' year. This suffices,-10 L. 150.

The motion to dismiss is overruled.

On the Merits.

Manning, C. J.

Charles and Francois Boutté were brothers, and owned an improved lot in this city together, but in unequal parts. Charles owned one third only — Frangois, the residue. Charles died leaving thirteen heirs. Afterwards Frangois died, leaving a widow and twelve children, and his executors duly opened his succession. Some of the heirs of each brother were and are minors. This improved lot is their only property, but it is valuable, being appraised at forty thousand dollars.

Nine of Charles’ heirs are plaintiffs in this suit, and the executors of Frangois, and the four other heirs of Charles are defendants. It is an action of partition, instituted before the Second District Court of New Orleans.

The question of jurisdiction has been pretermitted in the printed briefs on both sides. Nevertheless we think it decisive of the controversy. There has been great doubt and incertitude in the profession as to the forum which has cognisance of- partitions under the constitution of 1868, and there was good reason for it. The counsel of Mrs. Berens, ■the adjudicatee of the property at the sale under the decree for partition, refers us to art. 1022 of the Code of Practice as conclusive of the dispute — all partitions of succession property shall be made by the court of probates of the place where the succession is opened. But this is not a partition of succession property. It is property the partition of which one succession, a distinct entity, claims of another.

All successions, says the constitution, shall be opened and settled in the parish courts, art. 87. And therefore the succession of each one of the brothers by itself, and apart from the other, must be made in the court having probate jurisdiction. No one would think of mingling the two successions in a common mortuary proceeding, because the decedents together owned property in common. This distinction seems to have been in some sort in the mind of the draughtsman of the petition, though he failed to act on it. He did not allege that the succession of Charles Boutte was opened in the Second court, and that certain property belonging to its heirs was required to be partitioned among themselves, for in that case the Second court would unquestionably have had jurisdiction of the partition of the property of that succession, i. e. of the one third of the improved lot. The allegation is, that certain named persons own property in common with the succession of Erangois Boutté and other named persons — that these co-proprietors own it in certain designated proportions — that the petitioners are unwilling to remain any longer in a state of indivisión with their co-proprietors, and ask for a partition. Here is not a succession to be settled, and property, exclusively its own, to be partitioned among the heirs to that succession. If after Charles’ death, Erangois, who survived him, had immediately thereafter sued the succession of Charles for a partition of this property, can it be doubted that the court of ordinary jurisdiction would- alone have had cognizance of the action ? How is the case altered when, Erangois being also dead, a partition is sought of the property owned by two distinct juridicai beings? The Second Court had not jurisdiction of the action, just as it is without jurisdiction of an action of partition between two individuals, who are majors and own property in common in their own right.

But if it had jurisdiction, it had not the proper parties before it. The Codes say; — the suit for partition ought to be instituted by the heir who wishes the division and the co-heirs or their representatives must bo cited. Civil Code, art. 1252 new no. 1329. The heir desirous of obtaining a partition shall present his petition praying that his co-heirs be cited. Code of Practice, art. 1024.

None of the heirs of Erangois Boutte are parties to this suit, and his executors are without authority to represent them, and without power to represent the succession in a suit of this kind. The heir is not bound by the judgment of partition if he was not a party to the suit in which it was rendered. Guidry case, 16 La. 157. All the parties interested in the property to bo partitioned must be parties to the suit which demands the partition. Kendrick’s case, 19 La. 36. Chalon v. Walker, 7 Annual, 477. In this last case, like the one before us, the executor alone was cited, and though there was a dissenting opinion read by Justice Preston, he concurred with the court on that point, saying — the action for partition is undoubtedly a real action, and the heirs should have been made parties to it.

It is said in appellee’s brief that the succession of Erangois Boutte is insolvent, and as his heirs have no interest, they need not be made parties to this suit. The record does not allege or shew its insolvency. But assume that it is insolvent, then its property can be sold to pay its debts under an order of sale from the probate court. One does not resort to an action of partition of realty to obtain the sale of property in which creditors alone are interested. The plaintiffe treated the suc-cession as solvent by suing for a partition of its realty. But a better ^answer is, that this suit is not a proceeding in settlement of a succession, but a proceeding to separate the interests of one succession from the interests of another succession, leaving each of them to be separately settled in the probate court after that separation is effected. The articles of the Code, and the decisions of this court, cited by the appellee, have reference to cases wherein the co-heirs of the same succession are seeking to divide property which is common to all of them, and which they derived from a common ancestor.

The order of May 25 1876 directing the sheriff to put the purchaser in possession, and the judgment of August 5 1875 decreeing a partition •of the property by licitation, are erroneous, and therefore

It is ordered adjudged and decreed that the judgment of the lower •court decreeing a partition and sale of the improved lot owned by the •two successions of Charles and Erangois Boutte, and the order to the sheriff to put Mrs. Berens in possession thereof, are annulled, avoided, -and reversed, and that the appellee pay the costs of this appeal.


author: Manning, C. J.

text:
    No. 6835.
    State ex rel. J. S. Ray, Public Administrator, vs. the Judge of the Parish Court of Ouachita Parish.
    "Whore an executor’s account, which he prays to bo homologated, is opposed in several particulars, and the oppositions aiter adjudication below, are appealed to, and finally passed on by this court, and all the issues involved in the account definitively settled, the executor can not appeal from, a subsequent decree of tho lower court, homologating the account as settled by the judgment of this court
    APPLICATION for a mandamus.

      John Say for relator.
    Defendant for himself.
   The opinion of the court was delivered by,

Manning, C. J.

James S. Ray, the public administrator of Ouachita iparish and ex officio dative testamentary executor of the succession of J. M. Harris, filed his final account which was duly advertised, and by him prayed to be homologated. One of the creditors, a former opponent of various charges against the succession made by the exe.cutor,. moved the court for its homologation in accordance with the prayer of the executor. It was unopposed, and no creditor, heir, or legatee complained of any part of it. There was judgment of homologation, and the executor applied for an appeal which was refused. Thereupon a. writ of mandamus was obtained from this court in the usual form.

The judge of the parish court answers that his judgment was precisely what the executor prayed, and that he can not appeal from a judgment which, both in form and substance, was identically that recited and demanded in his pleadings.

Some time previous to these proceedings, the executor had filed a-provisional account which was opposed, and the contestation thus formed was reviewed by us at the last term at Monroe. Succession of Harris, 29 Annual, 743. The whole litigation was before us then, and the various items opposed were examined with unusual minuteness of detail, and the account was corrected in many particulars. The only item not finally adjudicated then, was the executor’s commissions, as to-which there was judgment of nonsuit.-

The'account, subsequently presented to the parish court and now-before us, appended to the judge’s answer, is but a correction of the one previously filed and opposed. The changes made are those directed by this court to be made. The decree then rendered had accomplished all that was desired or needed by the parties, and the adjudication of' the several claims, both of executor and opponents, was final. It appears however that the account, amended as we ordered, was advertised as a final account, and the opponent of the account in its original shape was the creditor who now moved its homologation in its amended form, and we are at a loss to perceive who has just cause of complaint. The executor obeyed the mandate of this court in making the corrections, and the opponents had obtained all they could in the way of correction.

The motive of relator in praying ,the appeal is stated to bo to cure the informality and illegality of a decree of homologation rendered-without the exhibition of vouchers, proofs, etc. But the trial upon that proof had already taken place. ¥e considered it on appeal, and rendered a final decree upon every item except one, and the record itself contains the proof necessary to sustain that one in the absence of any opposition. It would seem indeed that the filing of our decree, rendered on the opposed account, was a termination of the controversy, and the-executor had but to settle the succession in accordance with it. No other trial was needed unless the opposition to the executor’s commisrsions formed the only remaining issue, and no farther objection appears to have been made to that item. If this were an account, for the first time now presented to the parish court, and never before examined, and ■adjudicated, the case would be different. But we have seen it is otherwise.

The peremptory mandamus is refused at the costs of relator.


text:
    No. 5452.
    Charles F. Bevens vs. Meyer Weill et al.
    Redundancies in pleading will, on motion to that effect, be stricken out.
    Before a judgment creditor, having a privilege on certain immovablo property which has been really sold by his debtor to a third person, can seize and subject that property to his judgment, he must first bring a revocatory action and have tho sale of the property annulled.
    A valid sale of property may be made with a right of redemption reserved by the vendor.
    Tho owner of property which has been illegally seized under aft. fa. and offered for sale, will forfeit his claim for damages on account of the illegal seizure, if he himself h..s so acted, as to countenance the sale of the property under such seizure.
    APPEAL from the Fifth District Court, parish of Orleans. Cullom, J.

      Geo. L. Bright for plaintiff and appellee.

      Singleton & Browne for defendants.
   The opinion of the court was delivered by

Manning, C. J.

W. M. Pinckard improved certain lots in this city, owned by him, by the erection of buildings upon them, and executed a note to one Yanderwort, a builder, for five hundred and seventeen dollars and fifty-five cents, with acknowledgment of the builder’s lien upon the property. This note and acknowledgment was duly recorded January 14 1873. Two days afterward, the defendant Meyer Weill became the owner of the note.

While the buildings were being erected Pinckard borrowed nine thousand dollars from the plaintiff Bevens which was expended upon them, but this was insufficient to finish thorn. On February 17th. 1873, Pinckard sold the whole property to Bevens for the sum thus borrowed, the buildings being then uncompleted, but it was stipulated in the act of sale that the vendor reserves to himself the right of redeeming the property until the 20th. of February 1874 by re-imbursing the vendee the price paid by him, i. e. $9000 together with taxes, insurance premiums, etc. Bevens on his part agreed to finish the buildings. It appears however that the residence was habitable, since Pinchará occupied it as the tenant of Bevens.

This Act, thus passed by the parties, contains the recital of several mortgages and privileges which rest upon the property, and among them is the Yanderwort note. Pinchará states in his testimony that Bevens gave the notary money to pay this note, but the notary ‘robbed it’, to use his own expression. The act recites that all the parties holding these privileges and mortgages appeared before the notary (E. G. Wells) and released them, and authorized the Recorder of mortgages to erase them. Yanderwort was one of them, and he signed the act. The notary further recites that the vendor had produced before him four of the notes, secured by mortgage and privilege, and authorized the cancellation of them.

In due time Weill brought suit upon his Yanderwort note againsi Pinchará, claiming his privilege and praying its recognition, and setting forth its improper erasure from the mortgage-book. He had judgment accordingly, and issued execution upon it, which was levied upon the buildings, and they were advertised for sale. Bevens injoined the sale on the ground that the property seized belonged to himself. That is the suit now before us.

Weill, answering, denies that Bevens is the owner, and charges that the conveyance by Pinchará to him, though in the form of a sale, was in reality a security for the payment of a debt. The history of Weill’s acquisition of the note is then given, and a recital of an alleged promise to pay by Bevens is made, and the improper erasure of the privilege is set forth at great length. The plaintiff moved to strike from the answer all that part of it, and the court refused the motion, and plaintiff reserved his bill.

The motion should have prevailed. The pleading of defendant is vicious because of redundancy. The sole question for consideration is, had Weill the legal right to seize property, the title to which was in Bevens and was real in its character, and force a sale of it, without first attacking the sale in a revocatory action. The authorities are very numerous and ancient that he can not. They were reviewed and commented on by us during the last term. Gaidry vs. Lyons, 29 Annual A.

There was no simulation in the conveyance from Pinchará to Bevens. The parties frankly disclose the real nature of their act. It was a sale with a right of redemption, the time within which this right could be exercised, being prescribed, and the consequences of not exercising it being fully apprehended by both of the contracting parties. Pinchará says in his testimony that the time for redemption had passed, and the property belonged to Bevens. Bevens says the property is his, but Weill, or any other person claiming a privilege upon it can have it upon paying what he paid for it. Being the property of Bevens, it could not be legally seized to satisfy a judgment against Pinckard without other preliminary proceedings than those taken in this case. The holder of a privilege is not without remedy. He has a hypothecary action for its •enforcement.

The seizure of the buildings, separate from the ground, is not made one of the grounds of injunction, and it is unnecessary to remark that such seizure was illegal.

The judgment of the lower court perpetuated the injunction without damages. The plaintiff prays an amendment of the judgment, and an allowance of damages in accordance with the prayer of his petition. We should grant that prayer if it did not appear from the testimony that the plaintiff had encouraged the attempted sale of the property as a whole, as a means of realizing the amount it had cost him. It could not have been contemplated or desired by him that a seizure should have been made of the improvements apart from the ground.

The judgment is affirmed.


author: Egan, J. Spencer, J. Manning, C. J.

text:
    No. 6763.
    Succession of L. H. Tabarry.
    A mortgage creditor of a succession, whose debt has not been novated, having failed to take any action in a court of ordinary jurisdiction to foreclose his mortgage, can not ask for the revocation of an order of sale of the mortgaged property, granted by the probate court on the prayer of the administratrix, on the ground that the property no longer belonged to the succession, but belonged to a third person, who, in purchasing the property from the decedent, had assumed to pay his, (the creditor’s) debt.
    APPEAL from the Second District Court, parish of Orleans. Tissot, J.

      E. Bermudez and A. Robert for plaintiff and appellee.

      Louqiie & Fernandez for administratrix and defendant.
   The opinion of the court was delivered by

Egan, J.

Mrs. Tabarry, administratrix of this succession, obtained from the Second District Court of the parish of Orleans, where the succession was opened, an order for the sale of certain real estate, inventoried in the succession, for the purpose of paying debts. Tabarry had, while living, mortgaged this property to secure the payment of a certain promissory note for twelve hundred dollars, besides interest. John Carson, as the holder and owner of said note, took a rule upon the administratrix to show cause why the order of sale obtained by him should not be revoked and annulled for the reason that the succession “ is not the owner of the property,” by reason of the fact that Tabarry subsequent to the execution of the mortgage, had sold the lots of ground covered by it to one Aymes, who had in the act of sale assumed to pay the note of Tabarry held by Carson. The original mortgage imported confession of judgment, andccntained tho pact de non alienando: It is neither alleged nor proved that there was novation of the debt, that Carson accepted Aymes and released Tabarry, or that he has any other rights of mortgage on the property than those created by Tabarry. So far as the evidence discloses, he is still the creditor of the succession for the full amount of the principal of the note, certain amounts of interest having been paid and so indorsed on the note, which was extended each time, “ without novation,” as appears from tho indorsements. No objection to the sale is urged on any other ground ; no claim of right to sell under the mortgage instead of under the order of the probate court, but only the single objection that “ the succession is not the owner of the property and that Aymes, who had assumed to pay Carson’s debt, is the owner. We are at a loss to perceive what right exists in Carson under this state of facts to oppose the sale in question in this manner. If the fact which he judicially admits by his allegations be true, no sale of the property in the succession can affect his right to sell it or have it sold under his mortgage as the property of Aymes, even 'had he released Tabarry and accepted Aymes as his debtor, as he did not, for the only note which he holds is that of Tabarry, to secure which, the mortgage was given, and novation is expressly stipulated against , each time the interest is paid. The administratrix could only sell such interest, if any, as the succession had, and whatever amount the sale would produce would inure to the benefit of the creditors of the succession, Carson among them, according to their respective rank, so that any fund derived from the proposed sale would go to swell instead of diminishing the means of payment of the debts of the succession, while upon the hypothesis of the plaintiff in the rule a sale of the property mortgaged to him in the hands of another person, who was really the true owner, could not in law affect either his rights or those of tho true owner who asserts no right in this proceeding and makes no complaint. Were it however, true that Carson has an interest to be heard in opposition to the proposed sale, it is well settled that the only legal mode by which he could do so under such allegations would be by injunction, to obtain which he must make oath and give bond as required by law. There is no other legal mode of preventing the execution of the order of courts of justice, whether probate or other. The right which the plaintiff in the rule asserts is not in or under the succession, but adverse to it. It is not a complaint by a creditor or other party interested that the administratrix is proceeding irregularly or illegally in the administration of succession property; but that she is treating and administering as property of the succession that which is not; and on which the plaintiff alleges he has certain mortgage rights adverse to the interests of the succession. From his standpoint we think the probate court was without jurisdiction to grant him relief by rule, petition, or otherwise, and that he either has no standing in law or that his rights should have been asserted in another court, and certainly by a different proceeding. It is suggested in the brief of appellee, but we find no motion in the record that this appeal should be dismissed for want of what is termed a counter letter and an answer of Aymes to the plaintiffs’ rule, which were offered in evidence and for filing in the court below, but rejected, to which rejection the counsel for the administratrix took a bill of exceptions at the time, and which documents do not appear in the record. We can not consider this objection thus taken; nor is it necessary under our view of the case. The documents the want of which is complained of would only militate against the plaintiff in the rule if they were before us, and are not necessary to the determination of the cause. From the statements in the record and bills of exception it appears that the counter letter was a written admission by Aymes of the unreality of the sale by Tabarry to him, and that what is termed his answer to the rule amounted to the same thing. We think that whether the latter be considered a technical answer or not, both it and the so-called counter letter were legal evidence and should have been admitted to show that the act of sale from Tabarry to Aymes was a mere formal, without being a real title, and that the property was therefore in the succession. For that purpose the date of execution of the writings was immaterial. They would have bound Aymes, who could not after have disputed the right of the administratrix and succession to the property in question; and treated merely as evidence of title in the succession and of the right to sell it as its property that both papers should have been received in evidence, at least. That they were not so received was the fault of the appellee, who as a creditor of the succession had no legal right to make the objection that his means or sources of payment as such were thus increased instead of being diminished as he seeks by this proceeding to do. The present case looks to us very much like the attempt on the part of a mortgage creditor who has by his own laches or delay suffered the jurisdiction of the probate court for the sale of mortgaged property to attach to evade and avoid the consequent effect of the subjection of the proceeds to the ordinary rules of distribution under the succession law. The judgment of the court below sustained the rule and revoked the order of sale. We think this was error, and that upon the showing made the administratrix was entitled to the order of sale. From the judgment revoking it under the rule of Carson the administratrix has appealed, and we think rightly.

It is therefore ordered and adjudged that the judgment of the court .below be and it is avoided and reversed, that the order for the sale of .the property in question be reinstated and enforced, and that the appellee pay the costs of both courts.

Concurring Opinion.

Spencer, J.

I prefer to rest my concurrence upon the proposition that the party should have proceeded by injunction, and therefore in court of ordinary jurisdiction.

On Application for Rehearing.

Manning, C. J.

The application for re-hearing not being accompanied by a printed statement of the points and authorities on which the party founds his application, and time to file the same not having been applied for, as required by Rule IX of this Court, the re-hearing is therefore refused.


text:
    No. 6689.
    Henry Ellerman vs. John McMains et al.
    A municipal corporation authorized by its charter to construct wharves on its river front, and impose wharfage dues for the use of its wharves, has the right to collect such dues, proportioned to the vessel’s tonnage, on all vessels that land at, , and make use of the wharves constructed by such corporation. The collection of such dues does not violate any provision of the constitution of the United States.
    Where a municipal corporation, under the express authority of an act of the Legislature, is clothed with the exclusive right to collect wharfage rates from all vessels that shall make use of its wharves, the right is a vested right, and can not be abrogated, or impaired, by any subseciuent act of the Legislature.
    APPEAL from the Third Justice’s Court, parish of Orleans. Laresche, J.

      F. D. Xing for plaintiff and appellee.

      Chas. 8. Mice for defendant.
   The opinion of the court was delivered by

Manning, C. J.

The defendants are the owners of the steamboat Martha, which was wholly built in this State within seven years last past, and is of more than one hundred tons measurement. The plaintiff, as lessee of the City of New Orleans of the wharves on the Mississippi river in its front, claims fifty-six dollars from the boat and its owners for the use of the wharves. The defendants claim exemption from liability for these charges under an Act of 1874, wherein it is enacted that any steamboat or other water craft, wholly built in the State of Louisiana, of .more than one hundred tons measurement, shall not pay to any corporation fees for wharfage, provided that such exemption shall not extend beyond seven years from completion or registration of the vessel. Acts, p. 261. The plaintiff alleges the unconstitutionality of that act. The court so adjudged, and the defendants appeal.

The right of the City to establish charges for the use of the wharves constructed by her was conferred in the charter of 1836. Acts, pp. 33, 36. Similar grants of power were made in 1870, Acts, ex. sess. p. 35, and in 1871, Acts p. 147. Large sums have been expended by her authorities in the construction and repair of the wharves, and it is now no longer disputed that where the charge made by the corporation is for services rendered, or for conveniences provided, it can be lawfully imposed. The Supreme Court of- the United States say in a recent ease - — where a municipal corporation of a State has by the laws of its organization an exclusive right to make wharves, collect wharfage, and regulate wharfage rates, it can charge and collect wharfage, proportionate to their tonnage, from vessels and steamboats mooring and landing at wharves constructed on the banks of a navigable river. Where it is clearly a duty or tax or burden, which in its essence is a contribution claimed for the privilege of entering the port, or remaining in it, or departing from it, imposed by the authority of the State, and measured by the capacity of the vessel, it is conceded to be prohibited. But where it is only a charge for services rendered, or for conveniences provided, it is lawful. The prohibition to the States against the imposition of a duty of tonnage was designed to guard against local hindrances to trade, and carriage of vessels, not to relieve them from liability to claims for services rendered. The tax or duty is laid by the sovereign. The charge for the use of the wharves is made by the proprietor, and it is the same whether made by the State, a municipality, or a private individual. The Keokuk case, reported in Albany Law Journal, Dee. 1877, p. 390.

The exclusive right to regulate and make improvements to the wharves, and to lease them, having been thus lawfullv conferred upon and delegated to the City, it became the private right of the corporation and not subject to divestiture without due legal process and compensation therefor, as contradistinguished from a public right which may be abrogated by the State at its pleasure. ' The right to acquire, hold, and dispose of property, though originally derived by a corporation from, the legislature, is not subject to the absolute control of that Body. “The rule upon the subject, says Cooley, we take to be this. Where corporate powers are conferred, there is an implied compact between the State and the corporators, that the property -which they are given the capacity to acquire for corporate purposes under their charter, shall not be taken from them and appropriated to other uses. If the State grants property to the corporation, the grant is an executive contract which can not be revoked. The rights acquired, either by such grants or by any other legitimate mode in which such a corporation can acquire property, are vested rights, and can not be taken away.” Const. Lira. 238. And another writer thus clearly defines the distinction between the authority of the legislature over public and private rights of a corporation ; — “ Over all its civil, political, or governmental powers, the authority of the legislature is in the nature of things supreme, and without limitation, unless the limitation is found in some peculiar provision of the Constitution of the State. But in its proprietary or private character, the theory is that the powers are supposed, not to be conferred primarily or chiefly from considerations connected with the government of the State at large, but for the private advantage of the particular corporation as a distinct legal personality ; and as to such powers, and to property acquired thereunder, and contracts made with reference thereto, the corporation is to be regulated quoad hoc as a private corporation, or at least not public in the sense that the power of the legislature over it is omnipotent.” Dillon’s Munic. Corp. \ 39. The Act of 1874 was a partial revocation of the grant previously made to the City, and was hot within the power of the legislature to make, for if it could revoke the grant as to vessels of over a hundred tons that were built in a particular place, it could revoke it as to vessels of any tonnage that were built at any place, and thus the legislature would effect the divestiture of a vésted right. The State can not take away •property or rights of this kind arbitrarily and without process of law or compensation, under the guise of encouraging the building of. water craft within her own borders. If she can give the use of the wharves, free of charge, to boats because they have been built within the State and to encourage that handicraft, she can likewise give them free of charge to every vessel that is manned by natives of the State in order to induce her citizens to become hardy sailors and ‘ brave the terrors of the deep.’ The act, under which the defendants claim exemption from liability to the payment of wharfage, being unconstitutional, is null and void, and judgment was therefore correctly rendered against them and the Steamboat Martha for the sunuclaimed by the plaintiff.

Judgment affirmed.


text:
    No. 6760.
    Succession of Jean C. Bollinger. Opposition of Paul and Mathieu Ballatin.
    The community formed by a man’s second marriago can not bo held liable for the value oí property belonging to a former community, sold by him during his second marriage, unless it be proved that the proceeds of such property were expended for the benefit of the second community.
    The debt due by a father to his children by a former marriage, for their half of the proceeds of the community property sold by him, is exigible against his succession, and its payment can not be defeated or delayed by any claim of usufruct made by the surviving widow of his second marriage.
    Where a legacy in full property left by a husband to his widow is reduced, under article 1752 of the Civil Code to one of usufruct merely, the usufruct shall embrace ono fifth of the husband’s whole estate.
    APPEAL from the Parish Court of St. Bernard. Parish. Morales, J.

      Sambola & Duoros for opponents and appellees.

      Joseph Duvigneaucl for Widow Bollinger.
   The opinion of the court was delivered by

DeBlanc, J.

Jean Christophe Bollinger died on the thirteenth of January 1876. He married twice: his first wife, Anne Marie Baudoin— died on the first of December 1851, leaving as her legal representatives two grandchildren — Jean Paul and Mathieu Ballatin. On the twenty-sixth of April 1855, four months and twenty-six days after the demise of his first wife, he married Christine Solomé Keiffer, from whom he had two children.

After that second marriage, three slaves belonging to the community which had existed between the said Bollinger and his first wife, were sold at auction for $1625, which he received. His grandchildren claim, as due to them, one half of the proceeds of said sale, and one half of the price of movables left by their ancestor.

We have not found, in the record, the evidence of any sale of any movable proven to have belonged to the first community above mentioned, and neither their alleged price, nor their appraised value can be allowed. As to the slaves, they were the common property of Bollinger and Ms grandchildren; but — though they were sold and paid for during the existence of the second community — it was not shown that the price paid for them was expended for its benefit, and — under the settled jurisprudence of our State, that community can not be charged therewith. 10 R. R. 18 ; 2 A. 44; 11 A. 297 ; 22 A. 513 ; 26 A. 606.

There is no doubt, however, that one half of the price oE those slaves — eight hundred twelve dollars and fifty cents — is due to Jean Paul and Mathieu Ballatin by the succession ,of Jean Christophe Bollinger, and that the usufruct claimed by his surviving widow and under his will, can neither retard nor affect the payment of that claim.

Not only is the transcript prepared without care, but one of the most important documents introduced in evidence — the deceased’s will'— has not been copied in the transcript. We learn from the parties’ counsel and from the recital in one of the judgments appealed from, that a legacy from the deceased husband to the surviving widow has been reduced, in accordance with art 1752 of the R. C. C. from a legacy of property to one of usufruct.

In so fat as it decrees that reduction, all the parties are disposed to acquiesce in the judgment of the lower court; but the widow complains of the clause in said judgment which limits her usufruct to exclusively the share of the deceased’s estate, which accrues to the children of their ■marriage. In this, she is right. The very article of the Code relied upon by the counsel and the Court to reduce her legacy provides that, “ in no case shall the portion, of which the donee is to have the usufruct, exceed the fifth part of the donor’s estate.”

With the limitation placed upon it by the judgment, the usufruct allowed to the widow is not that which the parties’ counsel and the Court recognize that she is entitled to, but only that which she would have had without the testament and under the law. The legacy7 — this is conceded — was properly reduced and reduced to its legal proportion. As to the exercise of that right, it was improperly limited to the share inherited by the widow’s children from the succession of their father, and —in the words of the Code — must be extended to the fifth part of the testator’s estate.

It is, therefore, ordered, adjudged and decreed that the two judgments rendered and signed in the parish Court of St. Bernard, on the thirty-first of May 1877, be and they are hereby annulled, avoided and reversed, and — proceeding to render such judgments as should have been rendered by said Court—

It is ordered, adjudged and decreed that Jean Paul and Mathieu Ballatin be and they are hereby recognized as creditors of the succession of Jean Christophe Bollinger for eight hundred and twelve dollars and fifty cents, to be paid to them in due course of the administration of said succession, with fivo per cent per annum interest thereon from the thirteenth of January 1876 until paid, and that they be classed as such.

It is further ordered, adjudged and decreed that the legacy from Jean Christophe Bollinger to his surviving widow be and it is hereby reduced, from a legacy in full ownership, to one in usufruct, and that the right of usufruct herein and hereby granted to said widow be by her exercise'd and enjoyed on the fifth part of the nett balance which. shall constitute, after its final settlement, the estate of Jean Christophe Bollinger.

It is further ordered, adjudged and decreed that, for the faithful discharge and fulfilment of her obligations as usufructuary, and only as regards that part of her usufruct which bears and which is to be exercised on the share of the aforesaid estate not inherited by her own children, the widow shall give security as required by law.

It is further ordered, adjudged and decreed that the costs of the. appeal be paid by Jean Paul and Mathieu Ballatin, the costs of the lower Court by the succession of Jean Christophe Bollinger, and that all the rights of said grandchildren, as heirs of said deceased, are specially reserved.

And — inasmuch as the provisional account filed on the second of August 1876, by Mrs. Widow J. C. Bollinger, as testamentary executrix, has not been finally passed upon in the lower court,

It is further ordered, adjudged and decreed that this case be remanded to said court, to be proceeded with according to this decision, and according to law.


author: Marr, J. Egan, J.

text:
    No. 5331.
    E. Marqueze & Co. vs. S. Fernandez & Co.
    Whore a draft Is drawn in favor of the payee on a certain fund to arise from the sale of property then in the drawee’s hands, and the payment of the draft, by its own terms, is postponed to the payment, (out of the same fund), of a debt due the drawee, the drawee, who has not accepted the draft, is only liable for whatever balance of the fund may remain, after the payment of his own debt.
    (The drawee is not estopped from disproving erroneous statements made by him to the holder of a draft as to the amount of the drawer’s funds in his hands, or as to the extent of his claim on those funds, when his statements have not induced the holder to alter his position to his prejudice.
    APPEAL from the Fourth District Court, parish of Orleaus. Lynch, J.

      Lacey & Butler for plaintiffs and appellants.

      A. & W. Voorhies and Geo. L. Bright for defendants and appellees.
   The opinion of the court on the original hearing was delivered by Marr, J., and on the rehearing by Egan, J

Marr, J.

This is a suit against the drawees of a draft of which the following is a copy:

“$582 06 New Orleans, October 21, 1873.
“Yourselves being paid, out of proceeds of my rice, pay to the order of E. Marqueze & Co. five hundred and eighty-two dollars and six. cents, value received, and charge the same to account of
“ C. Escande.
“ To S. Fernandez & Co., New Orleans.”

The petition charges, substantially, that C. Escande, a resident of the parish of Plaquemines, and others, for his use and benefit, had ■shipped sundry lots of rice to Fernandez & Co., and that Escande, being indebted to Marqueze & Co. in a large amount, gave them this draft on ■account. That when the draft was given defendants agreed to pay it ■out of the proceeds of the rice in their hands, they, however, first to pay themselves the sum of about $1200.

That, subsequently, on sundry occasions, defendants informed petitioners that they had sold the rice, and that the proceeds were sufficient to pay the $1200 and the draft held by petitioners; and they promised, repeatedly, to pay it. Notwithstanding their agreement and promises, defendants failed to pay any portion of the draft.

The defendants pleaded a general denial; and the court below rendered judgment in their favor, from which plaintiffs appealed.

Bonnecaze, of Marqueze & Co., testifies that when Escande came to their store he demanded a settlement. Esqande said he had no money, but that he had some rice in the hands of Fernandez & Co., and some drafts drawn by planters against rice which was unsold. He gave the ■draft, and said Fernandez & Co. would pay it when the rice was sold. Bonnecaze said, you have given such drafts to other parties, and I will go with you and see if Fernandez & Co. will pay this draft. “ Mr. Fernandez said, I will pay you first, and so as not to forget it I will put it down in my check book.” He took a pencil and put it down in his check book. “I asked him if he thought he would have enough to pay this draft, and he said there would bo plenty.”

Bonnecaze also states that he would not have taken the draft but for this assurance. He sent his book-keeper to see if the rice had been sold. “ I sent a dozen times, and he always said the rice was not sold. In the meantime, I could not collect the balance of my claim against Escande, because I was waiting for a settlement of this draft.”

He says the debt to be paid to Fernandez & Co. first was about $1200, and “ that was distinctly understood,” from Escande and Fernandez & Co.

. After this he met Fernandez at the .Union Insurance Company. This was about three months after the date of the draft, and a very short time before the suit was brought. “We had a talk about this draft. He jold me the rice was sold, but the account sales was not made. I asked him if he had enough to cover us. He said yes. Then I left.

■ “-He always answered me that the account sales was not ready. One •day I went there and asked Mr. Fernandez for payment, because it was preventing me to collect the balance of the money. He says, come in the afternoon. I'returned in the afternoon, and Mr, Fernandez says, there is nothing left to pay your draft.”

Belloeq, book-keeper of Marqueze & Co., testifies that, after Bonneeaze returned from the first interview with Fernandez, he sent him to-see Fernandez, and malee it sure. “ Mr. Fernandez told me that he had some rice on hand for Mr. Escande, but it could not be sold ; but there-was plenty to protect our draft, and no other draft would be paid before-this one. He always said there would be plenty to pay this draft after he -was paid.”

This witness saw Fernandez several times after the rice was sold; and Fernandez always gave the same answer, that there had not been time to make out the account sales. He said the draft would be paid as-soon as the account sales were made out.

J. J. Fernandez, one of the defendants, when asked if he had ever told Bonneeaze or' Belloeq that he had money in hand belonging to Escande, and that he would pay this draft, says:

“I could not have said so, because the account sales were not made up. It was impossible for me to say so, because Mr. Barrois attends to that department. It was impossible for me to say there was money, because Mr. Barrois is the one that attends to that.”

He says he did not tell any one how much Escando owed his firm, and he could not without having the account sales in his hands. Before, he saw Bonneeaze, Escande was indebted to Fernandez & Co. $3200 or $3300. I knew we had so much rice, but I did not know what we would receive. No doubt if Mr. Escande had sent us all the rice we-(would) have had enough; but he (sent) rice to others.”

He does not remember what he said to Belloeq, but it was the same-that he had told Bonneeaze. Escande requested him, if there was any thing left after paying Fernandez & Co. to give the preference to Marqueze & Co.; and that was the agreement. He exhibits the account-■ showing balance against Escande, $369 19, and testifies that it is correct.. The only other witness is Barrois, who proves nothing except that the-account is correct; and that Escande was all the time since February,, 1873, indebted to Fernandez & Co.-

The account shows total credits $3255 13,’ of which four items are drafts of other persons indorsed to Fernandez & Co. — one credited nineteenth November, and three on the thirtieth November, 1873, aggregating $1627 40; three items under date thirty-first December, for rice received third, sixth, nineteenth September, aggregating $1376 01; and the other items, from thirty-first May to thirtieth June, inclusive, aggregate $251 72. On the debit side the entries beginning eleventh February, and end the fourteenth October; and they aggregate, including interest to twentieth January, 1874, $3624 32. It is not easy to see how Fernandez & Co. could have supposed, on the twenty-first October, the date of the draft in favor of Marqueze & Co., that there would be plenty of money to pay their entire debt and this draft also; and it is equally ■difficult to understand how they could have made so great a mistake in so small an account. Instead of there being a surplus in their hands, there was a deficit, a balance due of $369 19; and if to this the amount of the draft, $582 06, be added, it will be seen that they were mistaken by $951 25 in the condition of an account footing $3624 32, every item of which had accrued, and must have appeared on their books, a week before the draft in question was drawn.

Besides, Fernandez & Co. must have been somewhat annoyed by the frequent calls of Bonnecaze and Bellocq, to inquire about this business; and there must have been some reference to the account in order to see how it stood. ■ It is strange that the same answer was always made, that there would be plenty to pay the draft; and, after the rice had been ■sold, the same answer was made, and Marqueze & Co. were put off with the statement that Barrois had not had time to make up the account ¡sales. It would have been the work of a short time only for a clerk to ■have made out the entire account; ¿md it could have been no great affair to have made up the account spies of three lots of rice, two of sixty-one barrels and three sacks each, and one of forty-three barrels .and three sacks.

The condition of this account and the testimony of Fernandez indicate that Fernandez & Co. expected to receive more rice from Escande than they had on the fourth October, and this expectation, probably, induced Fernandez to tell Bonnecaze, in the first interview, that there would be plenty to pay the draft. No doubt this statement caused Marqueze & Co. to take the draft; and that statement was confirmed by subsequent statements of Fernandez, during a period of three months, and in answer to direct inquiry. Marqueze & Co. considered the ultimate payment of the draft a certainty; and they had no reason to entertain any doubt on that subject.

Counsel for defendants refer to the act of 1858, now article 2278 of the R. C. C., which prohibits parol evidence of a promise to pay the debt of a third person. This is the same in substance as clause two, section four, of the English statute of frauds, which has been adopted in most if not in all of the States of the Union, which requires written proof of a promise to “ answer for the debt, default, or miscarriage of another.” It is well settled, in England and in the United States, that this statute does not apply to the promise of a debtor to pay the debt, or part of it, at the request of the creditor, to some other person or persons ; nor to a. promise to pay over to a third person, as directed, money remitted by or collected for the person so directing. In other words, this requirement of the statute is limited to collateral undertakings, as surety or .guarantor, to pay a debt to wliich the promisor is otherwise a stranger; and the liability of the drawee of a bill of exchange may be proven by his acts and declarations without writing or formal acceptance. Parsons on Contracts, vol. 8, pp. 24, 26.

The position of Fernandez & Co. is less favorable to them than it would have been if they had accepted this draft formally, without qualification, and in writing; because, in that case they would have been bound only according to its tenor and terms; and if nothing remained after paying the debt due themselves they would not have been liable on the draft. But they certainly did, by their conduct and statements cause Marquéze & Go. to receive and to rely upon this draft, and to regulate their conduct toward Escande, their debtor, accordingly. The legal effect is precisely the same as if Fernandez & Co., when Bonneeaze and Escande called upon them, had written on the face of the draft, “ there will be funds in our hands sufficient to pay this draft, and we accept it payable when the rice is sold ;” or if, after the rice was sold, they had said in writing: “¥e have funds in hand sufficient to pay this draft, and will pay it when the account sales is made up.” The first statement induced Marqueze & Go. to receive the draft, with the full assurance that it would be paid when sales were made; and this was confirmed by frequent subsequent statements, which lulled these creditors into a false security, and prevented further efforts to collect that much at least of the debt originally due by Escande.

The draft is not ordinary commercial paper; but it is a mandate, qualified and conditional in its terms; and it was in the power of Fernandez & Co. to have made then' liability wholly dependent on the contingency of the sufficiency of funds to pay it. They have dealt with it in such a manner as to incur all the liability of unqualified acceptors; and it is their own fault if the result is a loss to them of the whole amount.

It is therefore ordered, adjudged, and decreed that the judgment appealed from be avoided and reversed; and that plaintiffs, appellants, do have and recover of defendants, appellees, S. Fernandez & Go., and Salvador Fernandez, and Joseph J. Fernandez, the individuals composing said firm, in solido, the sum of five hundred and eighty-two dollars and six cents, with interest at the rate of five per cent per annum from judicial demand, twenty-third January, 1874, until paid, three dollars and three cents costs of protest, and costs in both courts.

On Rehearing.

Egan, J.

A careful re-examination of this case satisfies us that our former decree was erroneous, and that of tho district court rejecting the demand of plaintiffs correct. We think that, giving to the evidence upon the subject of the promise to pay the draft sued on the largest limit, it amounts to nothing more than a promise to pay according to the terms and tenor of the draft itself; which were, “yourselves being paid (which means being first paid) out of the proceeds of my rice, pay to the order of E. Marqueze & Co. five hundred and eighty-two dollars- and six cents.” Thus, by its own terms, the draft affected the plaintiffs with notice, which they also had otherwise, that the drawer was indebted to the defendants, who were his commission merchants, and who had a privilege upon the proceeds of the rice, and that this indebtedness must be paid before any thing would remain for the payment of the draft sued on. No written acceptance appears upon the draft, although the evidence of the plaintiffs themselves shows that it was presented the day it was taken. It was given on account of an antecedent debt at the instance of plaintiffs themselves, and before the defendants had been seen or conferred with on the subject. The only hesitancy in taking the draft seems to have been, not on account of its being payable after the debt of the defendants, but because the drawer had given two other drafts against the same fund in favor of other persons, and, therefore one of the plaintiffs and the drawer, Escande, went together to the defendants for the 'purpose of-arranging with them, to pay this draft in, preference to the other drafts given by Escande, and not in preference to the debt of Escande to the defendants. Although the defendants declined to accept the draft, even according to its tenor, in which the plaintiffs acquiesced, and still retained the draft to take their chances of its payment, the defendants took a memorandum of the request of Escande that this draft should be preferred to the others given against the same fund. This is all, even according to the plaintiff’s own evidence as to what transpired at that time. To that is referable, and by that should be interpreted, all the other subsequent evidence and conversations had between the parties, or their agents, in relation to the draft. So that it is manifest that the plaintiffs took and retained the draft knowing that its payment could be expected, and was to be made, only out of the proceeds of rice of the drawer in the hands of the drawee for sale, and, also, only after a known and existing debt of the ■ drawer to the drawee should he first paid. There is no evidence that there was any surplus, that the rice brought more than the amount due to the defendants by Escande at the time the draft was given. On the contrary, it is distinctly shown by a well supported and detailed account in the record that the entire proceeds were absorbed and a large balance still due to the defendants on their own debt. All the other evidence relates to alleged subsequent conversations with one of the defendants, not in relation to any acceptance of the draft, but when the plaintiffs sought information as to the probabilities and time of payment. Even accepting as true every statement made by the plaintiffs’ witnesses, the admissions of the defendants, both as to the amount of their own debt and the sufficiency of the proceeds of the rice to pay plaintiffs’ draft, are clearly shown to have been incorrect and made in error of fact (if made at all), and as they in no manner altered the situation of the plaintiffs, or put them “in duriori casu,” the defendants are not estopped from showing the error, and are not bound by the admissions, even if made. Upon this, subject, however, the plaintiff’s evidence is loose and unsatisfactory, and is directly contradicted by that of the defendants, which we think, on the other hand, is consistent with all the other evidence in the case, and by the undisputed facts and the probabilities, and it was, besides, easy for the plaintiffs’ witnesses to have been mistaken, and to have inferred more than was said or meant from language and conduct which we must interpret by the light of the known facts of the case. The alleged admissions as to both the amount of the defendants’ own debt and the proceeds of the rice, if made at all were made without reference to the books or accounts of sale, and by one of the defendants who neither kept nor had charge of either, and who, in the nature of things, could not be expected to be familiar with them without an examination, while as we have seen those books and accounts themselves, and the evidence of the book-keeper and accountant of the defendants, within whose especial knowledge they were, negative the truth of any such admissions. One of them is detailed as a mere Canal street conversation, away from defendants’ place of business and not in business hours, between one of plaintiffs and one of the defendants alone, and the others are hesitatingly and unsatisfactorily put forth by the clerk of plaintiffs as conversations between himself and one of the defendants alone, while all are flatly and emphatically denied by the other party to the conversations. We think these come properly within the class of “ loose conversations ” had under circumstances when it would be impossible to convict the witness of perjury, and which, assuming that the witnesses were of equal credibility (and that the defendants are not supported by other known or admitted facts, as we think they are), would still leave the plaintiffs’ case in so much doubt that they can not recover, and such was the opinion of the judge below who heard and knew the witnesses.

It is therefore ordered and adjudged that our decree heretofore rendered be avoided and set aside, and the judgment appealed from be and it is affirmed with costs of both courts.