text:
    No. 7750.
    Citizens’ Bank vs. Alexis Ferry and Wife.
    Up to tlie moment of its adjudication by tlie sheriff the property of a debtor which has been seized under éxecution may be validly sold, or mortgaged by him, subject to the rights of the seizing creditor. And if tbe seizing creditor waives his lights in favor of a mortgage executed by the seized debtor, such mortgage will, after being recorded, rank any mortgage subsequently put on the property by the seizing creditor who bought it in.
    A mortgage creditor effectively accepts a mortgage in his favor either by taking the mortgage notes, or by an authentic act. The transfer of a note transfers everything accessory to and securing the same.
    A mortgage not recorded for some time after its execution is, from the moment of its record,' superior in rank to any mortgage subsequently executed.
    APPEAL from the Fourth Judicial District Court, parish of St. James. Bufel, J.
    Armand Pitot and St. M. Bérault for plaintiff an d appellee :
    First — -The possession of the sheriff did not divest Alexis Ferry of his ownership, which continued until the adjudication made, on the 12th of February, 18G8, to his wife.
    ■"Ownership and the possession of a thing are entirely distinct.” C. C. 488. Down to the moment of adjudication the debtor remains the owner of his seized property. C. C. 663.
    Possession is not necessary or essential to the contract of sale or of mortgage, 28 An. 650-1, nor to an action of partition, C. C. 1243, for it is not the possession, but the ownership which is the basis of the sale, mortgage, and partition.
    Counsel for plaintiff quotes also, in connection with the above, C. 0. 3267-8, 476, 483,1879, 2423, 2424, 1881; 28 A. 650; C. C. 2428, 1895, 1940, 3399, 3459 ; C. P. 690, 694, 656, 657, 658 ; C. C. 1757,1754.

      Second — By mere operation of law, and therefore “ according to law,” the mortgage was accepted and acquired by the bank at the moment of its execution, on the 4th February, 1868.
    By the delivery of notes, on the 4th of February, 1868, the law presuming that the notes were delivered to the bank on the day of their date, and that the receipt of the notes operated eo instanti, the acceptance of the accessory mortgage. C. C. 2615.
    “ H¡e who has once acquired the ownership of a thing by one title cannot afterward acquire it by another title.” C. C. 487.
    As to unilateral contracts and acceptance, see C. C. of 1825, articles 1758, 1773, Í774, 1798,1805; Pothier’s Obligations No. 9; Pothier’s Préts No. 20 ; 11 M. 217 to 220 ; H. D. p. 938, Nos. 3, 7, 2, and 251-3-4 ; 2 L. 552, 547 ; 13 L. 254, 267 ; 6 R. 143,150 ; 7 Al. 349 ; 9 An. 130 ; 11 Al. 402 ; H. D. p. 1001 ; No. 9, p. 1002; No. 16 ; Code Napoleon, art. 2127 ; La Cour de Lyon, arret du 9 Mai, 1837 ; Dalloz, An. 1838, II. 7 ; La Cour de Cassation a jugó ¡’affirmative, arret du 5 Aout, 1839, eh. c. IY. Sivey 39 I. 753 ; 23 A. 272 ; 16 A. 437 ; 24 A. 36 ; 23 A. 357 ; 30 A. 39; Louque’s Digest, p. 436 ; (e) No. 6.
    ,A mortgage is binding on the parties to it. C. C. 3312, 3315, 3316, 3522. '.That Madame Ferry was a party to the act of 4th February, 1868. See C. C. 3314, 3315, 3316, of 1825 ; 28 Al. 661-2 ; 26 Al. 552-3 ; 22 Al. 336-7.
    F. P. Poché for defendant and appellant:
    'First — A valid mortgage cannot be imposed on an immovable by the-owner thereof pending its seizure by the sheriff. C. C. 3300 ; 5 M. 268 ; .7 La. 487.
    Second’ — A mortgage recorded months after the owner who had executed it had ceased to be owner, and not accepted by any one, is not binding on the property. 20 A. 488 ; 29 A. 321; 30 A. 11.
    Third — We hold that the act of February 4th, 1868, registered on the :23d of April, 1868, was ineffectual as to any third party dealing with Mrs. Ferry, touching said Home-Place plantation, which became her property under the adjudication of the sheriff on the 12th of February, 1868,
    Fourth — Nor will it avail the plaintiff to say that E. J. Gay & Co. were informed by the recorder’s certificate in the act of May 24th, 1871, ■of the existence of the Citizens’-Bank mortgage, resulting from the :act of February 4th, 1868. Our answer is dictated by the' court in :20 A. 204 and 427, and 25 A. 180 : “ A recital of a pre-existing mortgage cannot supply the inscription.”

   The opinion of the court was delivered by

DeBlanc, J.

In November 1867, Mrs. Ferry obtained, against her (husband, a judgment separating her in property from him, and condemning him to pay her over one hundred thousand dollars, the ,re-imbursement of which was secured by legal mortgage.

In January 1868, and by virtue of a writ of ft. fa. issued in execution of that judgment, the sheriff seized a plantation belonging to the husband, and which — pending that seizure — the latter mortgaged to the 'Citizens’ Bank, to secure the payment of a loan of nineteen thousand ■dollars.

This loan is evidenced by an act passed before the recorder of the parish of St James, who certified — at its foot — that it was duly recorded on the day it was passed ; but it was shown — on the' trial — that it had been inscribed in the book of mortgages on the 23d of April, two months ■•and eleven days-after ¿he,seized and hypothecated property had. been, by the sheriff, adjudicated to Mrs. Ferry, in partial satisfaction of the-writ issued on her judgment.

The amount of that loan — the reality of which is not disputed in the-pleadings — was represented by four notes delivered to Alexis Ferry, two of which are now, and have been in the possession of the Citizens1" Bank since, and — we have reasons to believe — before the 4th of January 1869.

In July 1873, Legendre — as the attorney-in-fact of the bank- — accepted the mortgage granted by Ferry in 1868, and which — as we have-already said — was recorded on the 23d of April of that year ; and — in December 1875 — said bank obtained an order commanding the seizure- and sale of the morgaged property, to satisfy the two notes held by it..

Gay & Co — the creditors of Mrs. Ferry — enjoined the execution of that order, on the grounds:

1. That the mortgage sought to be enforced by the bank is null,, because it was executed while the property on which it bears was in the-sheriff’s possession and under seizure. •

2. That it was accepted by the bank long after Mrs. Ferry had-given — on the property seized — two other mortgages securing their-claims, and which were duly recorded, one on the 21st of February 1870,. the other on the 29th of May 1871.

3. That the mortgage, consented toby Ferry in favor of the bank, was recorded only after he had ceased to be, and after his wife had become the owner of the hypothecated property.

The injunction was dissolved, Gay & Co. condemned to pay- — as. damages — the sum of three hundred and fifty dollars, and they, have-appealed.

Mrs. Ferry intervened in the act of mortgage from the husband to-the bank, subordinated to that mortgage every right which she had! oru the property described in said act, and — by an express stipulation— gave it precedence over her own judgment. It was eight days after this-important stipulation, that the hypothecated property was adjudicated-to her.

Nearly two years after that adjudication — on the 19th of February-1870 — Mrs. Ferry granted to Philip Buchanan, and on the property which she had thus acquired, a mortgage which he — on the 4th of January 1876 — transferred to Gay & Co., who already had^ — on said property — a mortgage consented in their favor, by that lady,.on the 24th of May 1871.

In the last-mentioned act — that of the 24'th of May — from Mrs.. Ferry to Gay & Co. — there is a clear and absolute-acknowledgment of the existence and registry of the mortgage granted to the bank, and "that acknowledgment was based on not l'ess than the recorder’s certiff-cate, which was annexed to said act. Is this not more than the mere-recital, which — as held by this court — cannot supply the inscription of the mortgage ? Here, we have the recital, the certificate and admission of registry.

In his brief — but only there — the distinguished counsel who represents the plaintiff in injunction contends that the bank has not shown that Eerry has received either the amount specified in the act, or any other amount. That fact is not denied in the pleadings and fully established by an authentic act. Gay & Oo. claim that — so far as they are concerned — the assailed mortgage is a nullity, not because it was given without consideration, but for the reasons already mentioned and which we now proceed to discuss.

Who will pretend — the counsel asks — that, pending the seizure of his immovable property, the seized debtor can legally transfer title* thereto ? His title, it is manifest, can be divested but by the sheriff’s adjudication, and — down to that adjudication — he can alienate or encumber his property, as he pleases, without — however—prejudice to the rights acquired by and under the seizure.

O. P. 663 ; C. U. 491 (483).

“ The property seized ” — the counsel adds — “ must be taken in actual-possession of the sheriff, and the incapacity of the debtor to alienate or mortgage the same, attaches at the very moment of the seizure.” As taught by Pothier, the sheriff does not possess, he merely detains-; and — after assimilating his detention to that of lessees and depositaries, he says:

“ Il en est de méme d’un gardien ou commissaire ótabli a une saisie, soit de meubles, soit de fruits pendans par les facines, soit méme á la saisie réelle d’un heritage. Oe gardien ou commissaire n’a qu’une simple garde des choses saisies, auxquelles il est ótabli gardien ou com-missaire ; il n’en a aucune possession. Il les dótient pour et au nom de la partie saisie ; et c’est la partie saisie qui continue d’en avoir par lui la possession, jusqu’á ce qu’elle en soit dópossódóe par la vente et adjudication des choses saisies. Notre Coutume d’Orlóans en a une disposition en Tart. 3, oú elle dit: ‘Main de justice ne dessaisit personne.’”

G’est aussi ce qu’enseigne Pomponius á l’ógard des diffórentes es-péces de saisies, de Mens, qui ótaient en usage par le droit romain.

“La saisie, que des cróanciers font des meubles, ou méme des heritages de leur dóbiteur, ne lui on fait pas perdre la possession,, comme nous l’avons vu supra.”

Traite de la Possession, Nos. 15,16, 78.

As justly remarked by the",bank’s counsel, the theory of their opponent is daily refuted by the many private sales from seized debtors, to third parties, who employ the price of sale to pay the seizing credit- •or’s claim, and where one can sell, he can mortgage, subject to the limitation affecting his right of alienation.

C. C. 3300 (3267),'3301 (3268).

The bank’s mortgage — we are told — was not accepted according to .law. It was granted on the 4th of February 1868, and — according to the evidence — was twice accepted — first, when the notes which it secured, were delivered to and taken by the bank — that was before the dates of •the mortgages granted to Buchanan and Gay & Co. — and, afterward, by an authentic act passed on the 9th of July 1873.

C. C. 2645 (2615).

Was that last acceptance indispensable to the validity and enforce■ment of the mortgage ? It was not. In and by the act which evidences that mortgage, the bank — as urged by its counsel — contracted no obli•gation, but — on the contrary — an obligation was, therein, stipulated in favor of the bank, and accepted by it before the date when Buchanan and Gay & Co. became the creditors of Mrs. Ferry.

Could that mortgage be accepted otherwise than by a notarial act ? It could be and it was accepted by the transfer, delivery and receipt of the notes — inasmuch as the transfer of a credit includes every thing which is an accessory to the same — as suretyships, privileges and mortgages — and had the loan not been represented by notes, the mortgage could have been accepted, or rather its acceptance signified by the institution of a suit to foreclose it.

C. C. 2645 (2615.)

In Millaudon vs. Allard, and Hill vs. Barbow, this court held that •a mortgage executed and recorded, though not appearing to have been

• accepted, takes precedence of a posterior mortgage accepted and recorded before the acceptance of the first, and in “ Ellis vs. Simms et al.,” "“that the delivery of the note completed the contract, and that the ac•ceptance of the note was an acceptance of the mortgage securing its payment.”

2d L. 552; 6 R. 150 ; 2 A. 251.

It was held by the courts of Lyon and the Court of Cassation :

“ That the pure and simple acknowledgment of a debt, with an ^hypothecary encumbrance, can constitute an unilateral contract, and be regularly made by the debtor alone, and that the creditor in whose favor ■•such an acknowledgment was made, and who wishes to take advantage of it, is not bound to accept it by notarial act.

“ That the creditor’s acceptance of the hypothecary inscription consented in hie favor by an unilateral act, reverts — as to its effect — to the date of the inscription, even though — between that date and the acceptance — rights may have been acquired on the mortgaged property, • and by third parties.”

Journal du Palais — année 1839 — vol. 2 pp. 125-6-7-8.

According to the terms oí the act of 4th of February, the loan from the bank to Ferry preceded the mortgage from Ferry to the bank, and — “in Bradford vs. the Heirs of Brown,” commenting on an act which — as that referred to — had been signed but by one of the interested parties, this court said: “ When the price has been paid beforehand, the vendor — thereafter—is the only person who binds himself and contracts the obligation: his signature is therefore required, etc. The assent of the vendee, when he is admitted by the vendor to have paid the price, cannot be denied by the vendor. He is estopped, by his deed, from denying what he has therein solemnly admitted.”

11 M. 219 ; Rogion, p. 1529.

It is lastly contended by Gay & Co. that — on the 12th of February 1868 — when Mrs. Ferry purchased the plantation — the bank’s mortgage was not recorded, and that she acquired it free from the encumbrance ; but she was a party to the act by which that mortgage was granted, and — by her own consent, under her own agreement, the plantation passed into her hands subject to the mortgage given by her husband, and to the privity conceded by her. Up to the 23d of April, when the bank’s mortgage was duly recorded, it remained without effect as to third persons; but it was long after that inscription that Gay & Co. became the creditors of Mrs. Ferry, with full and acknowledged notice of .the encumbrance bearing on her property.

C. C. 2236 (2233), 3342 (3314), 3343 (3315); 22 A. 336 ; 26 A. 552 ; 28 A. 661.

Of the several defenses suggested by their counsel’s ingenuity, not one is tenable.

It is, therefore, ordered, adjudged and decreed that the judgment appealed from is affirmed with costs.

Rehearing refused.


source: Caselaw Access Project

author: Manning, C. J.

license: Public Domain

text:
    No. 7846.
    The State ex rel. M. J. Sheehan vs Judge of the Fifth District Court.
    Under the constitution of 1879 this court is clothed with jurisdiction, by writ of certiorari, to revise the proceedings of all inferior tribunals in cases where no appeal lies.
    A recorder of the city of New Orleans has full power to determine whether a prisoner, arrested by his warrant under a criminal charge, is or is not entitled to bail, and no district court can internóse by the writ of habeas corpus, and disturb the recorder in the exercise of the said power, and itself determine the question of bail.
    A recorder has such interest in maintaining the jurisdiction of his court over a question which the law has entrusted him with, that he has authority to use any of the legal writs necessary to enable him to uphold his jurisdiction.
    Application for a' writ of certiorari.

      A. D. Henriques for relator :
    First — That exclusive criminal jurisdiction in the parish of Orleans, being’ vested in the First District Court and in the Superior Criminal Court, no civil district court could exercise such jurisdiction. Constitution of 1868, art. 83 ; Act No. 124 of 1874.
    Second — That if a court has no criminal jurisdiction it cannot issue a writ of habeas corpus to have effect in a criminal case. 4 A. 427 ; 3 M. 42 ; 6 L. 427 ; 15 A. 347, 565.
    Third — That the Supreme Court has jurisdiction under the constitution of 1879 to issue writs of certiorari to revise the action of the judge of a civil district court, and prevent him from exercising jurisdiction in a matter growing out of the administration of a penal statute. 1 Cal. 152 ; Bacon’s Abridg, vol. 2, pp. 165-6 ; 40 Cal. 476 ; 3 D. and R. 35 ; Hales P. C. vol. 2, p. 215 ; 2 N. H. 208 ; 11 Mass. 465-; 4 Mass. 670 ; 5 Binney, 26, 27 ; Ohitty’s Crim. Law 1, p. 371, edition of 1832 ; Archbold 1, p. 728, edition 1860; Bacon’s Abridg. ed. of 1843, vol. 2, p. 162.
    R. Stewart Dennee, for Ullrich, intervenor, contra :
    First — -That relator had no interest. 30 A. 1174 ; C. P. 15.
    Second — That this court is without jurisdiction to review the action of the district court in granting the writ of habeas corpus. C. P. 792 ; 9 A. 522; 1 A. 413; 15 A. 347; 10 A. 426 ; Constitution of 1879, art. 115.
   The opinion of the court was delivered by

Manning, C. J.

The relator Sheelmn is the recorder of the First Recorder’s Court in this city. One Hugo Von Ullrich was arrested by his warrant, issued upon an affidavit made before him by Henrietta Von Ullrich, charging him with breaking and entering a dwelling-house, armed with a deadly weapon, with the intent to commit murder. The arrest was made on the 8th of this month, and it appears from the recorder’s statement that on the 11th Ullrich was arraigned before him and pleaded not guilty.

The recorder had no authority to arraign the prisoner, nor was the latter obliged to enter any plea before a court that was without jurisdiction to try him. The recorder had to determine whether the party under arrest was entitled to bail, and he had fixed the 17th as the day for considering that matter.

Meanwhile the prisoner applied to the judge of the Fifth Court for a writ of habeas corpus, and for an order admitting him to bail, and obtained both, .whereupon the relator prayed from this court a writ of certiorari to bring up the proceedings taken before the judge of the Fifth Court in order that their validity may be inquired into.

We have explained heretofore the nature and purpose of this writ, and have shewn how it could not be invoked under previous constitutions, although distinctly provided for by the Code of Practice. State ex rel. Seale v. Recorder, 30 Annual, 450. It is not unlikely that decision suggested the importance of conferring upon this court the power to issue writs, by means of which revisory power could be exercised over 4he inferior courts. Const. 1879 art. 90. It is therefore wholly irrelevant -to cite decisions of this court, to the effect that we can exercise no authority over the proceedings of inferior tribunals in which no appeal would lie to this court. Since the constitution of 1879 went into effect, -this court has been clothed with power to revise the proceedings of all inferior tribunals in cases where no appeal lies ; that is one of the functions of this writ, which was dormant until the new constitution vitalised it.

By the Act of 1859 a recorder of New Orleans has full power to inquire into and determine whether a prisoner, arrested by his warrant under a criminal charge, is or is not entitled to be bailed. 'Sess. Acts 1859, p. 210. The respondent assumes that, since district judges have the power to issue writs of habeas corpus at the instance of all persons in actual custody in their respective districts, Const. 1879 art. 115, therefore he had authority to entertain the application of the prisoner, and to order the writ to issue, and to adjudge that bail should be taken, and .to fix the amount of it.

We do not think so. If that were true, a court having jurisdiction of the trial of crimes, as well as one having cognisance only of the arrest of criminals, their commitment, and their release on bond from imprisonment, might and would have its jurisdiction invaded at any time before or during trial, and before a verdict, and have the prisoner -taken from its custody. Conceding that the constitution of 1879 is in force quoad the district courts of Orleans at the present time, treating the present case as if art. 115 were now operative, we do not think a district judge can interpose, under the power thus conferred on him, in a •criminal investigation which the recorder had authority to make, and was making. Interminable confusion, and constantly recurring conflict, would ensue from a different ruling.

Objection is made to the want of interest of the relator in the subject matter. He is not without interest in maintaining the legitimate jurisdiction of his court over a question, the decision of which the law had entrusted him with," and the district attorney, who is the representative of the State, informed us at bar that he objected to the granting the writ by the respondent when there was no question of the form and regularity of the mittimus.

There is no question here of that kind — none that the recorder had not authority to proceed as he was proceeding, or that he was not competent to determine whether the prisoner should be bailed. The bare question presented is whether under the general authority to issue writs of habeas corpus, a district judge can interfere with a recorder while exercising jurisdiction confided to him in determining whether a given offence is bailable. We are of opinion that he cannot.

It is not difficult to conceive of cases where the investigation or determination of the, bailable or non-bailable quality of the crime might be unreasonably postponed, and the imprisonment of an accused person be thus improperly prolonged pending such investigation. In such case a prisoner is not remediless. He has the right to apply to this court for relief through the medium of the appropriate writs which the law has provided in order to enable it to exercise and enforce that supervision over the inferior tribunals which the new constitution has accorded to it.

It is ordered and decreed that the orders and judgment of the Fifth District Court granting the habeas corpus and fixing the amount of bail-bond are sat aside, and that the recorder, the relator, proceed to ascertain and determine whether the offence with which the prisoner is charged is bailable, and if yea, to fix the sum of the bail-bond, and that the prohibition heretofore made herein is perpetuated at the respondent’s-costs.


author: White, J. Spencer, J.

text:
    No. 7508.
    State ex rel. Isidore Newman vs. the Board of Liquidation.
    There is nothing in the constitution of 1879 which curtails or abolishes the duties and functions of the Funding Board as created by Act 3 of 1874, so far as those duties and functions relate to the issue of consolidated bonds in exchange for valid outstanding obligations of the State, of the description specified in that act, and the acts supplementary and amendatory thereof.
    ^PPEAL from the Fifth District Court, parish of Orleans. Rogers,.

    T. A. Flanagan for relator :
    The intent and effect of the constitution of 1879 does not terminate the existence of the Funding Board created by Act 3 of 1874.

      J. O. Egan, Attorney-General, and FT. N. Ogden, Assistant Attorney-General, for defendant and appellant.
   The opinion of the court on the application for mandamus was delivered by White, J., on rehearing by Spenoeb, J.

White, J.

The relator seeks by mandamus to compel the funding of certain warrants which were outstanding and fundable under the provision of the Funding Act No. 3 of 1874. The lower court made the-mandamus peremptory. The State thereupon averring its interest in the .matter, took a devolutive appeal. We have been favored with no brief,, or even oral suggestion of error in the judgment appealed from by the-law officers of the State. We see no reason to disturb the judgment,, which is therefore affirmed.

On Rehearing.

Spencer, J.

We were induced to grant a rehearing in this cause upon suggestion of the Attorney-General that at the time our decree-was rendered affirming that of the court a qua the Funding Board had been abolished by effect and operation of the constitution of 1879.

In his brief on rehearing it is also suggested that plaintiff’s suit was premature, in that he should have first obtained judgment on his-warrants, and then have proceeded by mandamus. No such exception or defense was made below, and we have held that if not urged in limine-it came too late. See State ex rel. Durant vs. Board of Liquidation, 29 An. 77.

The Funding Board was created by Act No,'3 of 1874. Its duties were, in substance, to examine into the outstanding debt of the State existing in the form of bonds and warrants issued prior to January,. 1874, and, if found valid, to fund them at sixty cents in seven-per-eent consolidated bonds. Provision was made by that act and others supplementary thereto for testing the validity of. these debts before the courts.

Relator on 7th January, 1879, took this proceeding to compel the-board to fund certain warrants issued prior to January, 1874. The-board answered through the Attorney-General by a general denial. There was judgment February 1,1879, declaring the warrants valid, etc., and ordering the board to fund them.

It also appears that the board acquiesced in this' judgment, as it had a right to do, it not appearing that the warrants fell within the classes designated as doubtful by Act No. 11 of 1875. After the decree, the board executed the following receipt to Newman :

“ New Oeleans, March 19,1879.
Received in State obligations six thousand two hundred and forty- . seven 50-100’ dollars, to be converted at sixty per cent.
“ Signed ALLEN JUMEL, Auditor,
Ex-officio Secretary.
Approved,
“ Francis T. Nicholls, President.”

On 15th April, 1879, the State by the Attorney-General took a de-wolutive appeal from the decree. On hearing we affirmed the judgment below.

The only question we now deem it necessary to notice is that stated, to wit, how far and to what extent have the existence and functions of the Funding Board been affected by the constitution of 1879 ? It is to be remarked that that board consists of State officers, the Governor, Lieutenant Governor, Auditor, etc., all of whom continue under the con,-stitution of 1879, as under that of 1868.

There is not in the constitution of 1879 any direct provision referring to this subject. It is absolutely silent so far as making any reference to this board or its duties eo nomine.

Article 254 declares that the constitution of 1868 and all of its amendments are superseded by that of 1879. Article 1 of the ordinance on the State debt fixes the interest on the consolidated bonds of the ¡State at two, three, and four per cent, and provides for stamping them to that effect, and grants the privilege to holders to exchange them at •■seventy-five cents for a four-per-cent bond. Other provisions restrict taxation to six mills. The ordinance relative to “ relief of delinquent •taxpayers” excludes from funding in the three-per-cent bonds therein provided for warrants issued prior to first January, 1874.

The argument of the Attorney-General is that the effect of these provisions is inconsistent with the functions of the Funding Board as fixed by Act No. 3 of 1874, and that therefore the board is abolished ; that the board can only issue a seven-per-cent bond, whereas the constitution fixes the interest of consols at two, three, and four per cent.

We have seen that the funding act provides for funding only warrants issued prior to its passage; and that the constitution of 1879 studiously excludes these warrants from the funding scheme it provides, limiting its operation to warrants issued after first January, 1874. Now is it not manifest that the only reason for thus excluding valid warrants issued prior to first January, 1874, was that'they fell within the scope of the Funding Act No. 3 of 1874, and were fundable in consols ? Any other view necessitates the conclusion that the convention intended to repudiate all valid and legal warrants issued prior to January 1,1874! We are not disposed to adopt such a construction, so unjust, and so violative of fundamental principles. We are confirmed in our views that such was not the intention of the framers of the constitution by the following considerations: It was known to the convention that there were outstanding and unfunded good and valid obligations of the '■State, issued prior to first January, 1874, to the amount of nearly half a million (see Auditor’s Beport of 1880, p. 136), and there were no •stronger reasons for repudiating these obligations than those of 1876. The convention evidently contemplated that these obligations would be put into the form of consolidated bonds, and would then fall under the operation of the ordinance fixing and reducing the interest on such bonds. The constitution nowhere suspends the issue of consolidated bonds; it contents itself with reducing the interest thereon. We see no conflict between the constitution of 1879 and Act No. 3 of 1874, so far as relates to the issue of consolidated bonds. Both may exist together. Consolidated bonds may be issued in the form and manner prescribed by the latter, but when issued they fall under the operation of the debt ordinance of the constitution.

Article 258 of the eonstituticn directs that “all rights, actions, prosecutions, claims, and contracts, as well of individuals as of bodies corporate, and all laws in force at the time of the adoption of this constitution, and not inconsistent therewith, shall continue as if said constitution had not been adopted.”

We find, therefore, nothing in the constitution of 1879 which curtails or abolishes the d ities an 1 functions of the Funding Board, so far as those duties an 1 functions relate to the issue of consolidated bonds in exchange for valid outstanding obligations of the State of the description specified in that act and the acts supplementary and amendatory thereof.

It is therefore ordered that our former decree remain undisturbed.


text:
    No. 7657.
    Succession of Jennie A. Walker.
    If in a testate succession there he neither debts nor legacies to pay, nothing to execute, the appointment of the administrator is inoperative.
    The mandate of an executor, and the powers which it gives are to be strictly construed.
    The nearest male relative of a minor being bound to take charge of the tutorship under the penalty of incurring damages, is entitled in applying for the tutorship to take at once suoli conservatory measures as are necessary for the protection of the minor’s property.
    APPEAL from the Second District Court, parish of Orleans. Tissot, J.
    E. Bermudez and J. Timony for petitioner, Ames :
    First — A mother who contracts a second marriage without the advice of a family meeting, loses ipso facto the tutorship of her minor children, and is deprived of the power of appointing by will a tutor to such issue.
    Second — Where there are no debts to pay, and no legacies to satisfy, the appoinment of a testamentary executor is inoperative.
    Third — A forced heir is a creditor of the succession for the legitime
      which remains after the payment of the debts, and as such has a right to require security from the executor.
    J. E. Wallace and E. North Oullom, contra:
    Eirst — Provisional tutors are unknown to the law.
   The opinion of the court was delivered by

Manning, C. J.

Jennie Ames was left a widow in . 1875 with one child, then and now of tender years. She intermarried with Samuel Walker, and died in August 1879, there having'been no child of the second marriage or none surviving. Her will was offered for probate by Dr. Walker, her surviving husband, who was appointed therein executor with seizin, and tutor to her child.. By express direction of the testatrix he was dispensed with giving bond in either capacity. The inventory of her property amounts to about twenty-seven thousand five hundred dollars, and consists of notes, bonds, jewelry, plate, furniture, and cash ex-oept thirty-five hundred dollars of real estate.

William P. Ames, a paternal uncle of the child, opposed the issuing of letters testamentary to the executor as unnecessary, there being neither debts nor legacies to be paid ; and contested the validity of the mother’s appointment of her second husband as tutor to the child of the first marriage, on the ground that'she had not been retained as natural tutrix prior to the second marriage, and had thus lost the faculty of appointment. He claims the tutorship of right as the nearest male relative of the minor — prays meanwhile to be appointed tutor ad hoc — and sought and obtained a judicial sequestration of the movable effects pending the litigation.

The answer of Dr. Walker disputes the validity of Ames’ appointment as tutor ad hoc — asserts the validity of his wife’s appointment of himself as executor and tutor, and prays leave to qualify in both capacities without bond, and for the setting aside of the sequestration. Each attacks the other as unfit for either appointment, and nearly the whole testimony is directed to the establishment of the truth of the charges and counter-charges made in the pleadings. We shall confine ourselves to the examination of the legal questions presented.

Ames had capacity as paternal uncle and nearest male relative to contest the validity of the testamentary appointment of another as tutor without being designated or appointed tutor ad hoc. Such tutors are directed to be appointed in certain cases of partition, but there is no provision for the appointment of a representative of a minor with that designation under the circumstances of this case, nor need there be. Being an uncle and the nearest male relative, he in that capacity opposed the appointment of one who was seeking the tutorship,'and claimed it for himself. The appointment as tutor ad hoc was superfluous.

The judgment recognised his claims and appointed him tutor, to be 'qualified according to law, and also held the appointment ot Walker as ■ ■testamentary executor to have been validly made, and so adj udged — -the appointment of the latter as tutor by the will being annulled.

Ames appeals from the judgment quoad the recognition of Walker’s executorship, and Walker, so far as we are advised by this record, did not appeal, nor has he prayed in this court any amendment of the judgment. But we are informed in the discussion at bar that Walker has ■obtained an appeal which is in another transcript, and his counsel therefore insist that the judgment upon the tutorship is not before us, and Ames’ counsel agree with him as to that, but claim that that part of the judgment, not being examinable, must stand. We shall not review any part of the judgment, not complained of in this record. The will contains nothing but the institution of her child as her universal heir, and the appointment of her husband as executor find tutor, and it is conceded there are no debts. An administrator will not bo appointed to an intestate succession when there are no debts. Ia Story’s Sue. 3 Ann. 502 the court said, the succession had no debts, and we are at a loss to discover any one useful object to be attained by embarrassing the succession with the unnecessary administration. And it must be observed three of the heirs to that succession were minors.

Is the rule different when the succession is testate, and the executor -claims the right to be qualified ?

The duties and functions of an executor of a will are imported by his 'title. He is to execute the will, paying the debts of his testator and his legacies, and carrying into effect his testamentary dispositions. If there be no debts or legacies to pay — in a word, nothing to do — nothing ■to execute — it would seem he is without function, and his appointment is inoperative. This court so said in the plainest language — the appointment of an executor with seizin is not a testamentary disposition independent of any other. * * His mandate, where it is not

■enlarged by the will,-is limited to the execution-of the legacies contained in the will, and to the payment of the debts, and the powers which it gives are to be strictly construed. There being no -testamentary disposition to execute, and no debts to pay, the appointment of the executor has become inoperative. Succession of Dupuy, 4 Ann. 570.

The French law has been interpreted in the same way ; — le mandat eonféré par le testateur a l’exécuteur testamentaire ne peut étre obliga-toire pour les héritiers qu’autant qu’il se trouve des légataires qui aient intérét a son aceomplissement et que la, ou son accomplissement ne peut étre d’aucune utilitó aux légataires, lá aussi les héritiers, dont il entrave le droit de propriété, peuvent le faire cesser á leur gré. 13 Merlin Rep. _ verbo Héritiers.

Les pouvoirs de l’exécuteur testamentaire expirent lorsqu’ils sonfc devenus sans utilitó par la délivrance des legs aux légataires et qu’il n’y a plus d’instances pendantes dans lcsquelles il ait intérét á intervenir.. Journal du Pal. 1860 p. 445.

In our case it is not a question when the powers of an executor' cease, but shall they begin at all ? We have seen in Dupuy’s case it has. been held that the appointment should not be operative when there are no debts to pay and no testamentary disposition to execute.

The counsel for the executor concede as much in their brief, and ask the questions, “ who is authorized to take possession of the property T the tutor acl hoc ? The answers are ready. Not the tutor acl hoc, since-there is not such person designated by law in such case to represent the-minor, but the tutor, regularly appointed and qualified.

The difficulty in the mind of the judge of the lower court seems to-have been in reconciling''the rule, that a succession can only be accepted for a minor with benefit of inventory, with the pretension of the party applying for the tutorship in this case, and for the possession of the property in antagonism to a named executor. That difficulty vanishes ■when it is remembered that we are dealing with a succession admittedly without debts, and with a will that of itself shews there are no legacies. There is no need to repeat the well-settled principle that the law does not permit a succession to be accepted for a minor otherwise than with benefit of inventory, nor to say that the appointment of an executor must be operative when there are debts to pay and legacies to discharge, since in this case there are neither the one nor the other, but only a recognition by testament of the one heir who at law is entitled to the-whole estate..

Objection was made to the right or power of Ames to provoke a-judicial sequestration of the property. We are very clear that his power was ample. He is the nearest male relative, and bound under penalty of incurring damages to take charge of the tutorship, Civil Code, art. 286, and was therefore bound, in applying for the tutorship, to take at once any conservatory measures that were necessary for the protection of the minor’s property. Therefore

It is ordered and decreed that the judgment of the lower court ratifying and confirming the appointment of Samuel Walker as testamentary executor of his late wife, and setting aside the judicial sequestration of the movable effects of her succession, is avoided and reversed, and it is now ordered that the application of Samuel Walker to be qualified as testamentary executor of Jennie A. Walker is denied and dismissed, and that the sequestration is maintained and continued in fcree-until a qualification of a tutor to the minor heir to whom said effects-ma.y be lawfully delivered, Samuel Walker paying the costs of this appeal.


author: Marr, J.

text:
    No. 7822.
    Succession of Dominique Coco. On Oppositions to the Tableau of the Administrators.
    The claim of the heirs of the wife for restitution of her dowry is a debt of the succession of the husband j and it must be placed, as such, on the account of the administrators of his succession.
    Payments made to the widow by the administrators of the succession of the husband, without imputation must be applied to the debt due her for restitution of her dowry, and not to her share of the proceeds of community property in their hands.
    "The mode of applying partial payments stated and explained.
    "Where the marriage contract fixes the shares o£ the spouses, respectively, in the community in proportion to the values brought by each into the marriage, the liability of tbe succession of tbe wife for the debts of tbe community must be in the same ratio, in the absence of a stipulation to the contrary.
    One of the heirs who was a debtor of the succession for advances, having been adjudicated a bankrupt, tbe difiere me in his favor, if any, between his distributive share and bis indebtedness to the succession, passed to the assignee, and not his distributive share.
    ‘The administrators will he liable for any loss that may result from tlieir failure to comply with the order of the court, which required them to take notes with two sureties, for property of the succession sold by them.
    Administrators are responsible for debts due the succession, no longer collectible, which they might have collected by proper diligence.
    Where the husband, out of tbe means of the community, gave to each of his children a sum of money, and the wife, at the same time, gave to each of her children, by a former marriage, an equal sum winch she received from her husband for that purpose, neither the wife nor her succession is liable to tbe succession of the husband for the sum so given to her children.
    ^PPEAL from the Parish Court of Avoyelles. Hall, J.
    Aristide Bárbiu and Thos. H. Lewis for administrators, appellants :
    First — There is• clearly an absolute want of jurisdiction in the parish court to hear and adjudge such a contestatio litis. The succession of Melazie Ledoux is practically a party plaintiff, and the succession of Dominique Coco a party defendant. The judgment of the parish court, overruling the plea of prescription, and ordering the claim to be placed upon the tableau, has precisely the same legal effect as would be a decision by the district court, if the opponents had sought in that tribunal to obtain a judgment against the administrators by a direct action. One is as much the basis of res adjudi-cata as the other.
    Bad the Sheldon heirs brought an action before the district'court praying judgment for the sum, it seems plain] that that tribunal could have taken jurisdiction of the case ; and there being no such thing ,as a concurrent jurisdiction between these two courts, the authority ■of the district court must be exclusive. It is, however, proper in ¡such .eases .to present an opposition before the parish court for the purpose of notice, and to stay the homologation until the subject-, matter can be litigated before the courts of competent jurisdiction ; such has been the practice. Con. arts. 85-87; succession of Bingay, 22: An. 101; Bynum, Adm’r vs. Bynum, Adm’r, 24 An. 126-453 ; Chopin vs. Eorstall, 28 An. 303,716 ; Flournoy vs. Flournoy, 29 An. 737.
    Second — If the court is of opinion that the parish court properly exercised its jurisdiction over this claim, then the plea of ten years-prescription is interposed by the administrators and several of the heirs of Dominique Coco. The action to enforce a payment of this, claim is pei’sonal in its nature, and prescriptible by the lapse of tern years. C. C. 3544.
    Third — The measure of diligence required of an administrator is that-of a prudent man in caring for his own estate.
    A. B. Ilion and E. J. Joffrion for defendant and appellee ;
    First — Administrators are responsible for the amount of uncollected’ notes in their hands which they have negligently failed to collect and also for any loss resulting from a failure lo obtain securities for a debt due the succession which it was their duty to obtain.
    Second — A controversy arising'out of the adjustment of matters which) necessarily form a part of an administrator’s account- is one over-which the parish court must have jurisdiction to^pass upon those-matters in order to be able to homologate the account. Any other-interpretation, if carried out, would deprive the parish judge of all. jurisdiction over successions above $500 in value.
   The opinion of the court was delivered by

Marr, J.

Dominique Coco, a widower, and Mélazie Ledoux, a., widow, were married in 1851. She brought into the marriage, and constituted as her dowry, property and effects valued at $18,739 51; andi his property was valued at $92,708. One of the clauses of the marriage-contract is as follows:

“II existera une communauté de gains et d’acquéts entre les futurs-époux, et la part ou portion des époux dans la dite communauté sera róglée et déterminóe d’aprés la régle de société, en égard a l’apport de-chacun, ainsi que cet apport est établi dans le présent eontrat. Sauf' cette modification la dite communauté existera selon les dispositions du. Code Civil de cet état relativement á ce sujet.”

In 1860 Coco gave $3000 to each one of his fourteen children ; and,, at the same time, Mrs. Coco gave to each of her two’ daughters $3000,. which she received from her husband for that purpose. That is, $48,000-of community funds were divided, per capita, among the sixteen, without distinction between her children and his.

On the 12th September, 1864, Dominique Oooo died ; and two of his ' sons were appointed administrators of his succession. They distributed the cash on hand ; and, in 1867, they sold the separate property and the community property, on terms of credit, under order of the court, which required them to take the notes of the purchasers, with two good sureties; and, in 1870, they divided a large sum of money, giving to each one of the full heirs $4000.

. In 1875 Widow Coco died ; and in September, 1877, the administrators filed their first account, which was provisional. Subsequently a compromise was made between the administrators and some of their co-heirs, the result of which was the withdrawal of this account, and the substitution for it, on the same day, by consent, and by leave of court, of what they style an “ account and partial settlement of the estate of Dominique Coco, deceased, and community interest of his surviving wife, Móiazie Ledoux, also since deceased.”

It appears by this account that the administrators ignored the right of Móiazie Ledoux to restitution of her dowry. They charge themselves with $65,681 09, received for account of the community, of which they allow, as the widow’s share, -¡| or $8210 13. They charge her with $11,-363 91, amount of her notes, and interest, given for community property and separate property purchased by her, and cash paid her at different times; and they also charge her with $4068 73, half the community debts, leaving balance due by her $7222 51. It also appears that the purchaser of part of the real property of the community failed to comply with the terms, and it has not been sold; that the administrators hold the notes of some of the heirs for $4570, for real property of the ■ community purchased by them, and other notes for $1479 42, for movables of the community; that there are debts to. a large amount due the community, not collectible; and that the administrators also hold the notes of some of the heirs, for a large amount, for separate property of their father, purchased by them, secured by mortgage.

Oppositions were filed by the heirs of Móiazie Ledoux, and by the heirs of Dominique Coco who were not parties to the compromise. The heirs of Móiazie Ledoux admit all the items, aggregating $11,363 91, as charged in the account, except one for $4457 77, purporting to have been paid to her, on the 10th September, 1867, by Adolphe D. Ooco, one of the administrators. They allege that this sum was not paid to her;; and that her receipt for it was obtained “ by undue and unfair representations.”.

They allege that she was not liable for half of the community debts, but for her part and portion, only, as fixed by the marriage contract.

That the administrators were bound to charge themselves with the whole amount of the notes due for community property, for the reasons that the order of court required them to take the notes of the purchasers, with two good sureties, which they failed to do ; and that the distributive shares of the heirs, makers of the notes, exceed the amount of the notes ; that the distributive share of Adolphe D. Ooco, a debtor of the community, exceeds the amount of his indebtedness ; and that the administrators are bound to charge themselves with the amount.

They also show that of the property brought into the marriage by Mélazie Ledoux, her dowry, there were slaves, valued at $6750, which were lost by emancipation; and her garde-robe, valued at $800, not chargeable to the husband, leaving $11,189 51, due for her dotal rights, with interest from the 12th September, 1865, or one year after the death of Coco, which they insist should be allowed, and placed to her credit in the account.

The heirs of Dominique Coco claim that the -succession of Mélazie Ledoux should be charged with the $6000, given to her daughters, in 1860 ; that the administrators are accountable for the debts not collected ; and that they are chargeable with the full amount of the notes for property of the succession, as so much cash for distribution.

The administrators excepted to the jurisdiction of the parish court to entertain the demand for restitution of the dowry they and their co-heirs plead prescription against that demand ; and they alleged that they were not liable for the debt due by Adolphe D. Coco, because, in 1868, he was adjudicated a bankrupt, and was finally discharged in 1869.

It was admitted on the trial that the debts reported as not collectible were properly so classed, except nine items, to which the oppositions were restricted.

The parish judge homologated the account with respect to the heirs, parties to the compromise, who had consented to and accepted it. He was of opinion that the administrators should be charged with the notes given for the community property and the separate property, and theamounts dueby Adolphe D. Ooco, Valery Ledoux, andE. Alexander ; and that they must bring into the account, for distribution, $568, cash in hand belonging to the community, omitted through error. He decided that Mélazie Ledoux was liable for half the community debts, and was entitled to of the property and effects of the community ; that she was not liable for the $6000 received by her from her husband ; and that she was properly charged with the $4457 77 paid to her in 1867. He maintained jurisdiction with respect to the dowry; overruled the plea of prescription ; and ordered the claim to be placed to her credit, with interest from the date at which it became exigible. He also decided that, in addition to the value of the dotal slaves and the garde-robe, there must be deducted from the dowry $2796 56, for deficiency in the property and effects mentioned in the marriage contract, and for debts ■and taxes due by the wife at the time of the marriage subsequently paid by the husband ; and he ordered the -administrators to amend their account in accordance with these views.

The administrators and the heirs of Coco appealed ; and the heirs ■of Mélazie Ledoux in answer to the appeal, prayed that the judgment be so amended as to strike from the account the $54457 77 attacked in their opposition ; and to fix her proper share of liability for the debts of the community.

First. The plea to the jurisdiction is not well founded. It is manifestly impossible to settle the account of the administrators without determining the dotal rights of Mélazie Ledoux. Her heirs were cited by the aclministrators to show cause why the account, which exhausted her ■credits, and left a balance against her of $57222 51, should not be homolo-gated. It was their right to show that the succession of Dominique Coco was indebted to Mélazie Ledoux for her dowry ; and that this debt had been improperly left out of the account, by the administrators, just as they had the right to show any other error in the account to their prejudice. We shall see, hereafter, that the greater part of the $11,-363 91 charged to Mélazie Ledoux in the account, was necessarily, and by law imputable to this debt, and extinguished it before her death.

Second. It was admitted on the trial that the community property and the separate property of Dominique Coco were sold by the administrators, in 1867, by order of court which required them to take the note's of the purchasers, with two good sureties ; and they did notcom-■ply with the order in tins respect.

Of the notes for $1479 42, given for movables of the community, and not paid, about one third the amount is due by the heirs ; and some ■of the heirs are also indebted for movables of the sepai’ate estate. All the notes remaining unpaid, for real property of the community, amounting to $4570, were given by some of the heirs styling themselves ■“Coco Fréres and these same brothers were the purchasers of the greater part of the real property of the separate estate of Dominique ■Coco, for which they gave their notes for $40,550 ; on account of which •.they hare paid only $14,597 86.

It is not difficult to understand why this succession has remained so long under administration.. It is, indeed, time that it should be closed ; and we shall endeavor to expedite the settlement. Nearly sixteen years 'have elapsed since the death of Dominique Coco, thirteen years since .the property was sold, and four years since the death of the surviving ■widow. And yet part of the community property has not been disposed ■of, nor has it been put in condition to be partitioned; and there are motes not collected, which must have been due for at least ten years, and which amount now, in capital and interest, to over $50,000.

It would be premature now to hold the administrators personally liable, absolutely, for all these notes ; but they must all be brought into the account, and distribution made as if they were paid. The distributive shares of the several heirs, makers of some of the notes, must be' applied to th'e payment. It may be that their respective shares will be-in excess of their indebtedness ; and, in that case, there will be no occasion to look to the administrators, personally, in their stead. But some of the unpaid notes were made by strangers to the succession ; and the-administrators must answer to their co-heirs, and to the heirs of Mela-zie Ledoux for any loss or deficiency which may have occurred, or which-may hereafter occur to them, by reason of the failure to take the notes-of the purchasers, whether heirs or strangers, with two good sureties,, as the order of the court required. The administrators must make-settlement and distribution of the entire community, so far as it is represented by money collected, and by notes which have matured ; and the-separate estate of Dominique Coco must be settled and distributed in-the same manner.

Third. When Adolphe D. Coco went into bankruptcy he was bound-to surrender, not any amount to which he might have been entitled as an-heir or as a creditor, but his rights in and against the succession. The-debt in question, which was represented, originally, by his notes to his father, can be regarded in no other light than as an advancement to him,, to be collated ; and nothing would have passed to the assignee except the difference in his favor, if any, between his rights and claims against-the succession and his indebtedness to the succession. If this indebtedness exceeds his rights and claims against the succession, it may be that the excess will be covered by the discharge in bankruptcy, but the discharge cannot otherwise, or to any greater extent, relieve him of his obligations to the succession. This indebtedness must be brought into the account for settlement and distriburion ; and his distributive share, and his fees and commissions as administrator, and any debt or demand he may have against the succession must be applied to the payment.

Fourth. The proof satisfied the parish judge, and it satisfies us, that of the nine debts claimed as collectible, the greater part were really not collectible. Our attention is specially called to the note of Martin Couvillier for $200. The testimony of Ferdinand B. Coco, one of the administrators, is that “ this claim was abandoned by agreement. My father had sold him a tract of land, and it proved to bo deficient in-quantity. Couvillier was threatening a suit to make the estate responsible for the deficiency. Ho would have succeeded in the suit to the-best of my knowledge and belief; and according to the advice of the attorneys of the estate I agreed to surrender the $200 in settlement ot the matter.”

There is no testimony to contradict this ; and there is no reason tc* doubt the entire good faith of the administrators in making this compromise.

We agree with the parish judge that the administrators must be-charged with the amounts due by Yaiery Ledoux and E. Alexander. No-effort. was made to collect these debts ; and the proof shows that they-might have been collected by proper diligence. We observe that the-amount due by Yaiery Ledoux is stated'by the parish judge to be $550.. According to the account of the administrators the amount is $615 52.:. Whatever it may be, it must be carried into the account as cash for dis- - tribution.

We think the parish judge erred in not changing the administrators; with $185 95 due by the convent. The proof is that-this was for'sugar - and molasses furnished to the convent; that the Superior objected to-the prices charged ; and that no effort was made to collect the debt by-suit. This must also be charged to the administrators, and distributed:as cash.

Fifth. By the terms of the- marriage contract the part or portion of-the spouses, respectively, in the community, was to be determined ancb fixed by the law of partnership d’apres la régle de société, in proportionate the values brought into the marriage by each. In the absence of an-, express stipulation to the contrary the liability of partners, inter sese,\ for the debts of the partnership, would be in the same ratio as their-shares, respectively, in the profits. As Mélazie Ledoux brought into the-r marriage $18,739, and the property of Coco was valued at $92,708, the-whole capital, or unity, would be composed of 111,447 parts. Her part-. of the profits would be expressed by the fraction and his part by ■ iuiii' -^e debts the- community being- $8137 46, her part would be-'in™7 ^at sum’ or $1368 25; and his part would be or $6769 21.. The parish judge erred in charging her with half the community debts.,,, and in fixing her share in the community at N™- Her share must bej fixed at and her part of the debts at $1368 25:

Sixth. ’ We know of no principle which would make-Mélazie Ledoux: liable for the $6000 received by her from her husband, and.given by her-to her daughters, one of whom was then the wife of Ad-ol’phe D. Coco.. No doubt this distribution -was a family arrangement, consented to by" both parties. Coco disposed of $42,000, at the same time, in favor of.' his children ; and he seems to have considered it an act of simple justice-; •to his wife, as he was taking out of the community so large a sum,for-gratuitous distribution among his children, to make similar and equals disposition in favor of the daughters of his wife. Nothing indicates the? intention, on the part of either of them that, this money should be ac■counted for between the husband and the wife, or that it should be > brought back into the community. If the §6000 are to be charged to ■ her succession, the §42,000 must be charged to his succession, and the ■whole of the §48,000 must be brought back into the community for ••settlement and distribution. If this should be done her part would be ■§8071, instead of the §6000 she received ; and his succession would be ■.indebted to her succession in the sum of §2071, being the difference between the §42,000 disposed of by him, and the part to which he would have been entitled, under the marriage contract, as partner in community. Neither Mélazie Ledoux, nor her heirs, who alone could pre-■fend to have been prejudiced by this disposition, have made any complaint ; and the parish jüdge properly rejected this claim by the heirs •of Dotninique Coco.

Seventh. There is no proof in the record tending to show that the i'eceipt of Mélazie Ledoux, for §4457 77, was obtained by undue or unfair representations. Her signature was admitted ; and it was witnessed 'by her brother Valery Ledoux. He testified that he did not see any money paid to her, and that none was paid at the time of giving the re•ceipt. But this does not prove that the money was not paid at some other time, out of the presence, and without the knowledge of Ledoux. It was a transaction between one of the administrators, Adolphe D. ‘Coco, and his mother-in-law ; and they both might have preferred to ■have her brother witness her signature without acquainting him with ■the particulars.

The receipt was not absolutely conclusive. It might have been impeached, or explained ; but it is prima facie evidence that the money ■was paid, as acknowledged. In the absence of proof to the contrary it is conclusive ; and the parish judge properly rejected the opposition to rthis item.

Eighth. By the stipulations of the marriage contract, and the terms ■of the Civil Code, article 2368, specially referred to in the contract, the restitution of the dowry could not have been enforced until one year •after the dissolution of the marriage, which occurred, by the death of Dominique Coco, on the 12th September, 1864. Deducting from the dowry, §18,739 51, the value of the dotal slaves, the garde-robe, and ■the §2796 56 for deficiency and for debts paid by the husband, as shown !by the testimony, there remained, at the death of Dominique Coco, ■•§8392 95, for which his succession was accountable to his surviving widow, in restitution of her dowry. This balance was a debt due by his succession, not exigible until 12th September, 1865, but nevertheless a ••debt, secured by mortgage on all his immovables, and privilege on his ■movables.

There is no pretense that the administrators, or the succession, owed Mélazie Ledoux any debt except for restitution of her dowry;. They were, indeed, answerable to her for her share in the community,., converted by them into money and notes ; but this liability was not a.debt in the ordinary sense. Her interest in the community was proprietary ; as survivor she was the owner of her part or portion of the' community property or proceeds. The payments charged to her in the-account, aggregating $11,363 91, or so much as may be necessary forthat purpose, must be imputed to the debt owing to her by the succession, a burdensome debt, a debt bearing interest, and secured by legal! mortgage and privilege ; and they could not have been treated as advancements to her on account of her community rights, which were un-liquidated, without her consent, or, at least, without such imputation,having been expressly made by the administrators at the time the payments were made.

These payments, where the dates are given in the account, are as* follows: 14th November, 1864, $300; 27th January, 1866, $60; 19th> August, 1866, $50 ; 10th September, 1867, $4457 77 ; 6th November, 1867„, $50; 13th July, 1870, $732 ; 15th February, 1873, $100. The other payments,., amounting to $5614 14, are without date ; but as they consist, except a • small item of $50 72, of her notes and interest given for property of the-’ community and separate property of Coco purchased by her, it is fair to-assume that they were charged to her as cash at the time of the large • distribution, 13th July, 1870. From the amount of interest charged on these notes, it would seem that they must have been settled about that • time.

A payment made before the maturity of a debt must be imputed to ■ the principal, where no interest has accrued. The administrators were ■ not compelled to make any payment on account of the dowry before the 12th September, 1865 ; but they were at liberty to pay at any time when they had means. The $300 charged on the 14th November, 1864,. must be imputed to the $8392 95, remainder of the dowry at the death of Coco, leaving balance $8092 95, bearing interest at five per cent from.' the 12th September, 1865.

The rule governing partial payments, as sanctioned by numerous-decisions of this court, may be thus stated : Where the payment exceeds or is equal to the accrued interest, it is imputed to be the aggregate of principal and interest, due at the time it is made; and the balance ■ becomes a new principal, bearing interest from the date of such payment ; and so, with each successive payment that equals or exceeds the • interest due. Where the payment is less than the accrued interest, no ■ rest is made until there is a payment which suffices to discharge the interest that has accrued. In such cases the interest is calculated up to the date of the payment which equals or exceeds the accrued interest;. cand all the payments up to that date are deducted from the •amount of principal and interest due. The balance becomes a new principal, bearing interest from the date of the last payment; and so :-with the successive payments. Hynson vs. Maddens, 1 N. S. 572 ; Union Bank vs. Lobdell, 10 An. 130 ; Bird vs. Lobdell, 10 An. 159; R. C. C. article 2164.

It is obvious, in this case, that the payments of 27th January and 19th August, 1866, were not equal to the interest. Interest must, therefore, be computed from the 12th September, 1865, to the 10th Sep“tember, 1867, on the balance of the dowry, $8092 95 ; and from the -amount of principal and interest then due, the three payments of 27th -January, 19th August, 1866, and 10th September, 1867, aggregating $4567 77, must be deducted. Interest will be computed on the balance, from the 10th September to the 6th November, 1867, when a payment • of $50, exceeding the interest then due, was made ; and so, with each ■^.subsequent payment until the debt is extinguished.

On the hypothesis that the other items charged to Mélazie Ledoux in *ihe account, amounting to $5614 14, are to be imputed on the 13th -July, 1870, the entire debt for restitution of the dowry would be extinguished at that date, and there would be a balance of some $1550, or, '«including the $100, charged under date 15th February, 1873, a total of, ?say, $1650, to be added to her part of the debts of the community, ''«fixed'at $1368 25, and to be deducted from her part and portion in the ■ccommunity. These figures depend upon the dates of the several payments, which the account does not show ; and we have made the foregoing statement merely to show the manner in which the account must be stated, and the principles upon which the several payments, or items «charged to the debit of Mélazie Ledoux in the account, must be im<puted and applied.

The judgment of the parish court, in so far as it is in conformity vwith the views herein expressed is affirmed; and it is annulled and «reversed, in so far as it conflicts with this opinion and decree ; and it is •now ordered, adjudged, and decreed that the administrators of the succession of Dominique Coco, Ferdinand B. Coco and Adolphe D. Coco, within thirty days after the filing of a-copy of this opinion and decree ■4n the clerk’s office of the proper court, in the parish of Avoyelles, -make and file an amended account or tableau of distribution, in conformity with the views herein expressed ; «that this cause be remanded •for further proceedings according to law, and to the principles laid ■down and stated in this opinion, and that the costs of this appeal be paid •by the succession of Dominique Coco.


author: Spencer, J.

text:
    No. 7768.
    State of Louisiana vs. Caroline Williams.
    Where “ an unknown person ” is charged as principal in the first degree, in the commission of a rape, it is unnecessary to charge that the party committing the rape was a male.
    Formal defects apparent on the face oí an indictment must be urged by demurrer or motion to quash.
    When an indictment charges one as present, aiding, and assisting in the commission of a felony, the charge against the principal should be in form and substance sufficient to maintain his conviction.
    The use of the word “ violently ” in place of “ forcibly ” in an indictment for rape, does not vitiate it. It is an equivalent word, and conveys the legal idea aptly, which is sufficient. The tendency of modern criminal jurisprudence is to look rather to substance than form, to ideas rather than words.
    APPEAL from, the Superior Criminal Court, parish of Orleans. Whitaker, J.
    No brief for the State.
    J. J. Poley for the defendant:
    First — An indictment for rape is fatally defective which fails to charge that the act charged was done by force. Russell, vol. 1, p. 675 ; Blackstone, vol. 4, p. 210 ; 30 A. 1250 ; 39 Me. 322 ; 7 A. 519 ; Constitution of 1868, article 79 ; 29 A. 589 ; 10 A. 195.
    Second — That it must appear from the face of the indictment that the unknown principal was a male capable of committing rape.
    Third — If the indictment does not conclude against the form of the statute, and the offense is only prohibited by the statute, and not by the common law, it is insufficient, and no judgment can found on it. 2 Hawk Pleas of the Crown, ch. 25, sec. 116; 2 Mass. 116.
   The opinion of the court was delivered by

Spencer, J.

The defendant was indicted, tried, and convicted as a principal, in the second degree, in the crime of rape. The indictment •charges in substance “that a certain person,” to the jurors unknown, “ with force and arms, in the parish of Orleans, etc., in and upon one Helen Monaghan feloniously and violently did make an assault, and her, the said Helen Monaghan, then violently and against her will, feloniously did ravish and carnally know ; and ¡the grand jurors, etc., further present that one Caroline Williams, etc., with force and arms, etc., feloniously was present, aiding, abetting, and assisting the said person, etc., the felony aforesaid to do and commit, contrary to the form of the statute, etc.”

From a judgment sentencing her to imprisonment for life, defendant appeals.

Her counsel relies upon the following points for reversal of the sentence:

First. That the charge against the principal in the first degree does not contain the'essential words “ by force,” or “words equally significant; ” that the word “ violently ” is not synonymous with or the equivalent of “ forcibly,” and does not, therefore, aptly express the idea of the law in its definition of rape, which is defined to be “ having unlawful and carnal knowledge of a woman forcibly and against her will.” Bláckstone, b. 4, p. 210.

Second. That the charge against the principal in the first degree should have been that his act was against the form of the statute, etc.”

Third. That it should judicially appear from the face of the indictment that the unknown principal was a male capable of committing rape..

The two last-named objections have, we think, little force in them. The charge is that an unknown person did commit the crime of rape. IE so, then the inference is inevitable that the person was capable of so doing.

If there was any force in the second objection, it comes too late in a motion in arrest. It is a formal defect (if defect it is), apparent on the-face of the indictment, and should have been urged by demurrer or-motion to quash, before trial. R. S. 1064.

The first point presents more difficulty. It is true that where an indictment charges one as present, aiding, and assisting another in the-commission of a felony, the charge against the principal in the first degree should be in form and substance sufficient to maintain his conviction.

The only question as to its sufficiency in the present case arises out-of the use of the word “ violently ” in place of “ forcibly ” or “ by force.”’

It is not claimed that the indictment must follow, ipsissimis verbis,. the language of the common-law definitions. But, it is claimed, and justly, we think, that where these words are not used their substitutes must be synonymous or equivalent, and apt for the expression of' the legal idea involved in the definition.

This precise question, i. e. the use of “violently” in place • of' forcibly,” in charging rape, was presented in the case of the State of Maine vs. Black,” reported in 39 Maine, 322. The Supreme Court of that State in that case held that the word “violently ” was not an equivalent of “ forcibly,” and did not convey with technical accuracy the idea of' force, as involved in the crime of rape. We are not able to agree with that court in its conclusions on this question of philology. Webster defines “violence” as, in its primary sense, meaning “physical force,”' and “ violently” he defines as signifying with force,”’ “forcibly. ”

We think, therefore, that where it is charged that the person unknown did violently and against her will feloniously ravish and carnally know ” Helen Monaghan, the words do convey aptly the idea that the act was done “ by force ” or “ forcibly.” The tendency of modern jurisprudence is to relax the strict technical rules of the common law, and to look rather to substance than form, to ideas rather than words.

We think there is no error in the judgment appealed from, and it is •affirmed.

Rehearing refused.,


author: White, J.

text:
    No. 7763.
    Heirs of William Porter vs. Margaret A. Hornsby.
    •'Objections on the trial of a cause to the offering of testimony taken t ader commission, based upon defects of form in the execution of the commission, com1 j too late when a rule to show cause why the testimony should not be read on the trial has been made absolute without objection.
    The prescription of five years bars nullities of form in the proceedings leading to the probate of a will.
    Where an attorney of heirs was regularly appointed, but absented himself from the State before the entire conclusion of the mortuary procee lings, such absence does not render null a sale validly made under a decree of the probate court. A purchaser at a probate sale, regularly ordered and made, is protected by the decree, and by the prescription of ton years.
    The filing by an executor of a statement of debts, is an acknowledgment which interrupts prescription, and suspends its course during administration.
    APPEAL from the Thirteenth Judicial District Court, parish of Concordia. Hough, J.
    George S. Sawyer for plaintiffs and appellants :
    The judgment appealed,.from is erroneous for the following reasons, viz.:
    Eirst. The prescription of five years has no application. The will under which the testamentary executor qualified and sold the property now sued for by plaintiff was absolutely null, and, therefore, all subsequent proceedings under it were equally so. 1 Rob. 48; 5 Rob. 483 ; 6 An. 242 ; 2 An. 726 ; 28 An. 697 ; 29 An. 660.
    Second. A probate sale of real estate founded on such proceedings cannot form a just title to serve as the basis of the ten-years pre■scription. 10 La. 663 ; 24 An. 251; 28 An. 697 ; 30 An. 660 ; 10 La. 285 ; 30 An. 560.
    Third. The evidence shows that the ancestor of defendant was not a purchaser or possessor in good faith ; but, on the contrary, that the sale was made by collusion and fraud between him and the executor.
    O. Mayo and Z. York for defendants and appellees:
    Though the will may have been probated on insufficient proof, the order of the probate court ordering its execution is primarily valid, and the purchaser is protected by the decree of sale.' C. C. 1507; 10 Am 684; 1 Bob. 50.
    The prescription of five years bars the attack for informalities in the-probating of the will, and in the judicial sale.
    The debts of the estate, for the payment of which the property was ordered to be sold by the probate court, were recognized by the executor and not prescribed. 29 An. 493 ; 30 An. 853 ; 31 An. 713.
    Defendants have held by public and uninterrupted possession, under a just title and in good faith, for more than ten years.
    The charge of collusion and fraud is shown to be entirely without foundation.
   The opinion of the court was delivered by

White, J.

The plaintiffs sue to recover the ownership of a certain plantation. The facts upon which the controversy turns are as follows : William Porter, a resident of the parish of Concordia, died there in 1859. At the instance of A. T. Welch, on the 9th of February, 1859, his nuncupative will, by private act, was admitted to probate, and Welch appointed testamentary executor, an order having been rendered appointing an attorney of absent heirs and for an inventory: The inventory taken showed assets amounting to $51,154 93, consisting of two-pieces of real estate, valued, respectively, at $7600 and $6750, the-balance being slaves, and movable rights or credits. The inventory was signed by the attorney for absent heirs. In March, 1862, the executor filed a statement of debts, praying for publication thereof, and for notice to the attorney for absent heirs. The «attorney for absent beirs-accepted service of the petition and statement, which showed debts to the amount of $6525 86. Nothing further appears to have been done until January, 1866, when the executor, representing the existence of debts, prayed a new inventory and a sale ; the order was granted ; the new inventory taken showing property to the amount of $7034 11, which was sold and adjudicated on the 21st March, 1867, to B. B. Hornsby, under or through whom the defendant holds. The claim of plaintiff is-based upon the following propositions:

First. That the.proof upon which the will was probated was not. such as the law required, rendering, therefore, the probate absolutely null and void.

Second. That the executor not having the seizin, was without authority to sell the real estate.

Third. That there being no attorney for absent heirs, the sale was null.

Fourth. That there were no debts, and the proceedings were in fraud of the heirs, and intended to deprive them of their property.

1. We think there can be no doubt, although three of the witnesses testified on the application of the executor for the probate of the will, that the testimony was not sufficient to have justified the admitting the will to probate. However, we do not think this fact of material importance, because there is evidence in the record showing the will to have been formally executed. The proof results from the testimony of one of the subscribing witnesses, who was not examined at the time of the probate, and who has abundantly made out the validity of the will. This witness was examined under commission, and certain exceptions or objections to the admissibility of the testimony, growing out of the mode of execution of the commission, as well as to the admissibility of the evidence, are pressed in the brief of counsel; but, we think, they are untenable; that to the mode, because on a rule taken to show cause why the depositions should not be read on the trial the court made the rule absolute, and no bill of exceptions was reserved ; that to the testimony itself, because we think it self-evident that if the plaintiff has a right to disregard the probate and trial of the decree therefor as null on account of the insufficiency of the evidence upon which it was rendered, the defendant, must, as a matter of course, be allowed to defend by showing the formality and validity of the will. One of two conclusions seems inevitable: either the decree of probate is prima facie binding, or it is not. If it is, then this suit being a collateral attack is without foundation. If it is not, then, of course, the party holding up the will as a muniment of title must be allowed to establish its validity. But apart from this consideration, the prescription of five years, which has been pleaded, is, we think, applicable. Miller vs. Miller, just decided.

2. This objection is, we think, covered by the text of C. C. 1668.

3. As we have seeD, an attorney of absent heirs was appointed and signed the inventory, and also had notice of the filing of the statement of debts. It is now contended that he never qualified or took the required oath; and that he had left the State when the second inventory was taken and the sale ordered. We consider it questionable whether such facts would be good ground for nullity. Heirs of Herri-man vs. Janney, 31 A. 276. But at all events the attorney having been appointed, the facts relied on would not be sufficient to take the purchasers out of the protection afforded by decree of the probate court ordering the sale, or render inapplicable the ten-years prescription which has been specially pleaded.

4. There is nothing to .controvert the statement of debts, which has, on the contrary, been supported by evidence on the trial of this cause, and which, we think, was properly admitted. It is said that the debts were prescribed when the application for sale was made; but such clearly was not the case. The filing of the statement of debts was a recognition of the claims by the executor, which suspended prescription during administration. Maraist, Syndic, vs. Guilbeau, Administrator, 31 A. 713, and authorities there cited.

Judgment affirmed with costs.

Rehearing refused.