author: Nicholas, C. J.

text:
    No. 11,432.
    Succession of Rosemond Troxler.
    Though the issues raised in an opposition to an administrator’s account may be such as to require to be disposed of by a direct action, the opposition may stand by way of notice.
    In proper cases where the result of a peuding suit is dependent upon the decision in another, proceedings in the first may be stayed to await that decision.
    The actions o£ an administrator should be subjected to full investigation. Whenever they appear of questionable legality ratification of the same should be established by very clear proof. Whenever practicable light should be thrown in aid of right.
    APPEAL from the Twenty-first Judicial District Court, Parish of St. Charles. Rost, J.

    On Motion to Dismiss.

      T. J. Semmes & Legendre for the motion:
    The judgment appealed from was rendered by the judge of the Twenty-first Judicial District Court in and for the parish of St. Charles.

      Appellant’s petition of appeal is addressed to the Twenty-sixth Judicial District Court, and his bond of appeal is made payable to the clerk of the Twenty-sixth Judicial District Court, a judicial district distinct and separate from the Twenty-first Judicial District.
    Where a petition is addressed to a tribunal different from that in which it is filed, held, the error is fatal. 6 N. S. 417, Watson vs. Tiera; 1 R. 96, Wadsworth vs. Harris.
    0. P. 575: “Appeal bonds in all cases of appeal shall be made payable to the clerk of the court which rendered the judgment appealed from.” 22 An. 133, Jaffray vs. Bruff.
    The judgment appealed from is rendered by the Twenty-first Judicial District Court. Appellant’s appeal bond is payable to the clerk of the Twenty-sixth Judicial District Court.
    No legal bond having been given, the appeal should be dismissed. 35 An. 363, Succession Calhoun.
    Grits. A. Breaux contra:

    The motion to dismiss is made because the petition of appeal and the bond furnished are addressed and made out to the Twenty-sixth Judicial District Court for the parish of St. Charles instead of the Twenty-first Judicial District Court, etc.
    The succession was opened in the District Court for the parish of St. Charles, known under the Constitution of 1879, as the Twenty-sixth Judicial District Court.
    In 1890 the State was redistricted, the number of judicial districts lessened, and St. Charles was assigned to the Twenty-first Judicial District.
    All the proceedings, except the judgment entered by the clerk, were entitled the “ Twenty-sixth Judicial District Court ” instead of the “Twenty-first,” but under the same original number and title of the docket and judicial district for St. Charles parish, including the exceptions filed to the opposition to be found at page 4 of the Record.
    It is evident that the error was merely clerical and a natural one under the circumstances, misleading no one.
    The appeal recites the title of the case, the judgment rendered and the court that rendered it.

      There can be neither ambiguity nor uncertainty as to the judgment appealed from; nor can there be as to the responsibility of the surety on the bohd. 35 An. 596, Klotz vs. McCready; 26 An. 318; 27 An. 271, 304; 45 An. 505.

      T. J. Semmes & Legendre Attorneys for Administratrix, Appellee:
    That the opponent can not attack sale of property made in 1882, for . the reason that he received from the administratrix in March, 1891, his share of the proceeds of such sale under a final settle - ment; that he has, thereby finally ratified it and is estopped from . questioning its validity unless for error or fraud, neither of which is alleged. 21 An. 231, Douglas vs. Manning; Id. 581, Borden vs. Hope..
    A receipt for money paid is not conclusive between the parties, but when the evidence offered is contradictory the receipt will stand. 29 An. 350, Haile vs. McGhee; 24 An. 318, Wells vs. Ernstein.
    A final settlement can not be attacked without alleging error or fraud in the settlement. 15 An. 535, Williams vs. Springfield; 31 An. 100, Manson vs. Hoffman; 32 An. 121, Beard vs. Cash; 38 An. 645, Barrow vs. Barrow.
    An heir or creditor who receives his share of the proceeds of a judicial sale thereby ratifies it, and is estopped from averring its nullity. 25 An. 54-125; 31 An. 100; 30 An. 838-947; 23 An. 17; 24 An. 253.
    A final judgment rendered by a court of competent jurisdi.tion and the public sale made by virtue of it can not be attacked collaterally. 39.An. 55; 20 Ah. 124; 19 An. 353; -6 R. 471; 25 An. 55; 28 An. 755.
    A purchaser at probate sale is not bound to look beyond the decree of the court ordering the sale to ascertain the necessity for the sale. 30 An. 891, Sharkey vs. Blankston.
    Where the proceeds of sale of succession property have been used to pay .the debts of an estate, an heir can not reclaim the property without first tendering the sum thus used. 9 An.- 84; 30 An. 878; 32 An. 91, 106,

      Gus. A. Breaux Attorney for Opponent and Appellant:
    There is no such thing as an estoppel in favor of an administrator or executor.

      Nor is there an estoppel in favor of a party for an act he could have been compelled to do. Ryan vs. Steward, 60 N. Y. 413.
    To give rise to an equitable estoppel there must have been a false representation of facts, not matters of opinion, made, with knowledge, to a party ignorant of the facts, with the intent they should be acted on, and the party must have been induced to act thereupon and changed his position for the worse. Bigelow on Estoppel, p. 552; Am. and Eng. Ency., Estoppel, pp. 12 et seq.

    The instant opposition is one to an administratrix’ account. The receipt given was fully susceptible of explanation.
    The ratification of a transaction which is illegal and a nullity is a recognitive and Confirmative act; unless it is shown to have taken place with a full knowledge of the circumstances, and formal intention to cure the radical vices contained in it, and with which it is infected, by an unreserved sanction and approval, it can not avail. 43 An. 382.
    The opposition is an answer (Sue. Romero, 28 An. 607) and is therefore a direct attack upon the issue tendered by the tableau. But an order of sale can be attacked collaterally. Succession Thompson, 42 An. 121. .
    An administratrix having funds more than sufficient to pay the debts of the succession can not sell real estate. 44 An. 383.
    A debt due the wife for separate funds collected by her husband during marriage is a community-debt and must be paid by the community. C. 0. 2372; Downs vs. Morrison, 13 An. 379;- C. 0. 2403; 12 An. 604; 12 An. 222.
    Where the property sold is exclusively the separate property of the husband the administratrix can not legally be a purchaser. ■ O. C. 1146; Acts 1854, p. 155.
    In the instant case the opponent is an heir; the account is rendered to him. and he is entitled to be heard.
    The account of an administrator is rendered to the creditor and heir of the estate \^hich he administers. 15 An. 228;-24 An. 435.
   The opinion of the court was delivered by

Nicholas, C. J.

Rosemond Troxler died in August, 1880, leaving a widow, several children and one grandchild, Rosemond Troxler, Jr., child of a predeceased son. Three of the children were minors, and of these their mother was appointed and qualified natural tutrix. The grandchild was also a minor and his mother was appointed as his tutrix.

Upon the application of the widow an inventory was taken of the property of the succession on the 25th and 26th of October, 1880.

This property, as appears by the inventory, was valued at ten thousand seven hundred and eight dollars and seventy-two cents, and was all described as community property. The recapitulation shows:

Total value of real estate................................................................................ $4,300 00
Total value of crops ............................................................................................ 2,600 00
Total value of movable property...................................................................... 1,828 15
Total value of active credits left by deceased, consisting of promissory notes, debts due said deceased by verbal obligation, and cash............... 1,980 57
Total amount...............................................................................................$10,708 72

In December, 1881, Mrs. Marie Troxler (the widow) filed a petition in which she alleged that the inventory which had been taken was erroneous, and that it was necessary that a new one should be made. She further averred that in order to settle the succession it was necessary that an administrator be appointed.

The inventory asked for was made on the 24th and 27th January, 1882, and the applicant was, after advertisement and delays, qualified as administratrix.

In the second inventory a certain tract of land which had been described in the first as community property was declared to be and inventoried as separate property of the deceased, and valued at three thousand dollars, and a one-fourth interest in a certain sugar house which likewise had been mentioned as belonging to the community was declared to have been erroneously so described and was inventoried as separate property of the husband and valued at five hundred dollars.

The sugar crop, which had been estimated at the sum of two thousand six hundred dollars, had been in the meantime manufactured and had netted not the amount stated, but the sum of one thousand and ninety-four dollars and ten cents, and the rice crop netted one hundred and forty dollars and ten cents instead of two hundred and twenty-five dollars, the sum it had been expected to realize.

In March, 1882, upon the application of the widow, who represented to the court that all of the property dependent upon the sue-cession of her late husband (save that mentioned as separate in the second inventory) was community property, she was placed in possession of the same as usufructuary. Simultaneously with the application just mentioned she prayed for a sale of the separate property, declaring the sale to be necessary to pay the debts of the succession.

The property was sold under an order of court rendered upon this prayer, and at the sale the widow became the adjudicatee at the price of three thousand dollars.

On the 1st of June, 1882, the administratrix filed a petition in which she declared that as survivor in community she had claimed and been awarded the usufruct during her natural life of the proper y depending upon the community between herself and her husband; that the separate property as shown by the inventory consisted in a sugar plantation and the undivided one-fourth of a sugar house thereon; that she had caused said property to be sold according to an order of court to pay debts, and from said sale she had realized the sum of three thousand dollars, and that she presented a tableau showing the proper disposition to be made of that fund. She prayed that notice of the filing of said tableau be given by publication, and by personal service upon the heirs, and that all parties te ordered to show cause why the tableau should not be homologated and the administratrix authorized to ¡make payments accordingly.

In the tableau referred to the administratrix charged herself with the sum of three thousand dollars, as proceeds of the sale of' the separate property, and she proposed to account for that amount by paying out of that sum five hundred and five dollars and ninety - three cents, which seem to be the entire costs of the administration of the husband’s succession, and twenty-two hundred and seventy-three dollars and seventy-one cents as an amount due to the administratrix individually by her husband’s succession for a like amount of her separate funds received by h;r husband for her account, which had never been turned over to her, but had been expended by him.

The tableau closes by the following recapitulation and statement:

Amount of assets..................................................................................................$3,000 00
Amount of debts.........................................................................................:...... 2,889 64
Balance for distribution.................................................................................... $110 36
The beirs are five in number, making the share of each.................................... $22 07

At the foot of the tableau we find the following statement:

I have examined the above and foregoing tableau and found the same to be correct, and have no objection to the same being homologated. ' . . . . .

St. Charles, May A. D. 1882.

(Signed) ' Justine Bourgeois. ■

Francois Troxler.

Edouard Troxler.

Louisiana Troxler.

F'. St. Martin. ■

And under these signatures the following:

The within petition being considered the prayer thereof is granted.

Ss. Charles, May 81, A. D. 1882.

' (Signed) M. Hahn, Judge.

We find no. order homologating this tableau.. Justine Bourgeois and Francois Troxler, who signed the above consent, were the tutrix and under-tutor of the minor Rosemond Troxler, Jr. This minor was emancipated and relieved from the disabilities which attach to minors on the 14th January, 1889, by judgment of court. Subsequently to this he signed the following receipt:

Received," parish of St. Charles, March 8, 1891, from Mistress Marie Polimine Troxler, widow of the late Ros:-mond Troxler, administratrix of her said husband’s succession, the sum of thirty-one dollars and ninety cents, being amount due me as per tableau of distribution and interest thereon, filed June 1, 1882, as heir therein by representation of my father, Lucien Troxler, thirty-one dollars and ninety cents.

Rosemond Troxler.

In October, 1891, he filed an opposition to the tableau of distribution which had been filed in the succession of his grandfather by the administratrix. ■ -

In this opposition he averred that he only became of age in the year 1891; that he opposed the tableau because it failed to account in any manner for the large personal property shown to have belonged to the estate in the hands of the administratrix Which was much more than was sufficient to have paid any debt existing, and the sale of the real estate was illegal and unwarranted, because as there was in existence and in the hands of the administratrix funds and personal assets belonging to the community and estate of the deceased more than sufficient to pay all indebtedness alleged to be due she could not legally ask for the sale of real estate, the separate prope ty of the deceased, to reimburse to herself her alleged paraphernal dues even if real, and this indebtedness was exclusively that of the community. That the sale to the administratrix was invalid, illegal, null and void because, further, as the judicial representative of the estate she could not purchase it at a sale provoked of the separate and sole property belonging to the estate. That the order of sale rendered March 1882, was illegally and improvidently issued and was a nullity.

The prayer of the opposition was that the tableau be rejected, annulled and set aside; that the sale of the real estate be decreed null and void and of no effect.

The administratrix excepted to the opposition on the ground—

1. That opponent could not attack the sale described, for the reason that he received from her in March, 1891, und'er a final settlement then made, his share of the proceeds of said sale; that he ratified it and is estopped from questioning its validity.

2. That said settlement can not .be set aside unless it be for error or fraud, neither of which is alleged.

8. That he can not attack by an opposition the sale described in his petition; that a direct action is necessary.

4. That the property described in his opposition now belongs . to J. 0. Triche; that all parties in interest are not before the court.

5. That the decree of the court under which the sale was made can not be attacked collaterally.

On the trial judgment was rendered in favor of the administratrix and against the opponent, and dismissing the opposition.

In passing upon the cas 3 only one issue was examined and disposed of by the court. It held that the receipt given by the opponent as explained by his testimony was a complete ratification of the acts of the administratrix under Article 1875 of the Civil Code.'

Opponent has appealed, and the administratrix has moved to dismiss the appeal upon the ground—

1. That the petition for appeal is not addressed to .the court which rendered the judgment appealed from, it being addressed to the judge of the Twenty-sixth Judicial District Court instead of the Twenty-first Judicial District Oourt.

2'. That the bond of appeal is made payable to the clerk of a district different from the one in which the case was tried and decided, said case having been tried and decided by the Twenty-first Judicial District Court for the parish of St. Charles, and the said bond being made payable to the clerk of the Twenty-sixth Judicial District Court for the parish of St. Charles.

The designation of the district as the Twenty-sixth Judicial District was an immaterial clerical error. The proceedings were all carried on in the Judicial District Court of the State of Louisiana for the parish of St. Charles. The petition of appeal was addressed to that court, and the bond was made payable to the clerk of that court. That was sufficient (see Clark vs. Comford, 45 An. 502).

The motion to dismiss must be and is overruled.

The district judge having expressly referred to the testimony of the opponent in connection with the receipt, it may be well, as it is not long, to state it. He stated: I was given no written statement (no written papers were submitted to me) at the time I signed that receipt. The nature of the settlement made with me on March 3, 1891, explained nothing to me. Mr. Triche (the person acting for the administratrix in the matter of the payment) told me at that time that that was my money, and that he wanted to pay it. • I was shown none of the succession papers, and was told nothing about them.” On cross-examination he stated that the account of the administratrix was not shown to him; that he figured the amount of interest due him- — -he knew what he was about — he did not remember what was the result of the calculation; he received frbm Mr. Triche thirty-one dollars and ninety-cents. That his grandmother promised to. give him one hundred dollars; he told Mr. Triche at the time of the settlement that his grandmother had promised him one hundred dollars. Triche told him that was all she gave him to give him; then he took it. That the settlement is incorrect, because she gave the others one hundred dollars and she promised his mother to give him one hundred dollars, so his mother told him; that he did not know to what he was entitled; he did not say the settlement of March 3 was incorrect; he did say his grandmother promised his mother one hundred dollars; he knew nothing about it; he knew that his grandmother gave her other children one hundred dollars, because she told his mother and she told him; that he did not know what he was entitled to as heir of his grandfather; he did not know what the debts of his estate amounted to; lie was 22 years of age; came of age on the 5th of February, 1891; he knew that a proper settlement of the estate, according to law, would show what he was entitled to, and he had employed a lawyer to find that out.

J. 0. Triche (who, as we have said, was the party representing the administratrix in the payment), being placed upon the stand, deposed that he showed the opponent the account in the succession of Troxler, and that he took the figures therefrom and computed the interest thereon; that he (witness) took the account and took the amount therefrom for his calculation and he told the opponent the amount.

This witness is a son-in-law of the administratrix, and is, we presume, the party referred to in the pleadings as the present owner of the property whose sale is attacked, he holding it by purchase from the administratrix after she had herself bought it. Opponent’s counsel is in error in stating that the aco of sale to J. 0. Triche was never offered in evidence, and that it is improperly in the record. The act was offered and admitted over opponent’s objection (see page 38 of the transcript) and a bill of exception was reserved.

We are of the opinion that the issue which the opponent tendered and seeks to have disposed of touching the legality of the sale made in the matter of the succession of his grandfather can not, at this time and in the present form, be passed upon; that a direct action for that purpose would be necessary, and, inasmuch as the property appears to have passed into the hands of a third person, that it would be proper to make him a p rty to tha: suit. 15 An. 228, Cather vs. Kerr; Succession of Sanchez, 41 An. 506.

If such an action were brought, and should terminate favorably to the plaintiff, the direct result of the decision would be to do away with the account filed by the administratrix. That account is not a general settlement of the affairs of the succession of Rosemond Troxler, carrying with it, as incidental thereto, a full and complete settlement of the community of acquets and gains. The account is nothing more than a proposed application of the fund or price arising from the succession sale of a specific piece of real estate, which belonged to the separate estate of the deceased, and of which she had become the adjudicatee, to the payment of a claim alleged by the administratrix to be due to her by reason of her husband having received and expended and not accounted for certain of her paraphernal funds, and to the further payment of the entire expenses of the administration of the succession.

The administratrix singled out one particular act in her administration and made it the basis and. sole basis of the account she filed.

There has been no attempt even up to date to liquidate-the community, and, prior to her appointment as adminis'ratrix, the widow had caused herself, by an ex parte order, to be placed in possession of all the community property as usufructuary, under the act of 1844. Succession of Fitzwilliam, 3 An. 489; Succession of Bringier, 4 An. 389; Day vs. Collins, 5 An. 588.

At the time of the death of her husband very considerable prop - erty, real and personal rights and credits, were left belonging to that community.

The property of the separate estate, consisting of a small plantation and an interest in the sugar house, which were inventoried together at thirty-five hundred dollars, was subsequently purchased by her, at a succession sale which was made upon the ex parte application of the administratrix, as necessary to pay debts by the administratrix, at three thousand dollars.

The small balance left after payment of the expenses of administration and the claim of the widow is declared to be the amount due to the heirs of the (husband, and it is the receipt by the opponent of the one-fifth of this amount upon which the District Court acted in reaching its conclusions.

Prima facie the receipt and expenditure by a husband of the paraphernal funds of the wife would give rise to a debt by the community, and would be primarily payable out of community assets (Lawson vs. Lawson, 12 An. 604; Downs vs. Morr son, 13 An. 379) . We say prima facie, for the husband’s separate estate might, under exceptional circumstances, be held liable for a claim of that character as for a debt due by himself individually.

The manner in which the succession of Troxler has been conducted has not been such as to impress us as calculated to lead up to correct legal results. It will be seen from the recitals made that even should plaintiff fail in an attempt to have the succession sale set aside-, he would still be in position to question the application of the price as attempted to be made, unless by some act of his own he has deprived'himself of that right. If he has done so, it would be upon the theory of- a ratification by him of everything which had been done. We are not satisfied that opponent at the time he received the money had such a knowledge of the situation as should bind him by ratification. Rives vs. Bernard, 13 La. 168; Bennett vs. Bennett, 12 An. 254; Williams vs. Palace Car Co., 40 An. 93; Rist vs. Hartner, 44 An. 382; Breaux vs. Sarvoie, 39 An. 246.

As between the parties to transactions whose legality is fairly de-' batable, the doctrine of ratification should not be' too rigidly applied. Light should be permitted to be thrown in as far as possible in aid of right. We are exceedingly doubtful whether opponent was aware that the property which was sold had been dealt with as the separate property of the grandfather, or whether he knew the circumstances under which the funds of the grandmother had been received by him, or how they had been applied. In commenting upon the administration of the widow, we leave matters completely at large, our 3 emarks being intended simply as explanatory of our reasons for doing so. We think the ends of justice would be best attained in this case by subjecting the administration to full investigation and to the tests of law.

Although in this case the legality of the succession sale can not be passed upon the opposition filed is not without some effect upon that question. In the Succession of Bartlett, 21 An. 532 (on rehearing), an opposition which was dismissed for want of jurisdiction was none the less held good as a notice, and in the Succession of Sanchez, 41 An. 506, the court, referring to thd opposition in that case, recognized that accounts could sometimes be properly withheld from homologation to await judgment in another suit, which, when decided, might have a controlling influence on the pending case.

In the case at bar we feel satisfied that all the claims for succession expenses have been paid by the usufructuary, whose duty it was to have done so long ago, and that the payment of no debts will be held up by the non-homologation of the account for the present.

Eor the reasons assigned it is ordered, adjudged and decreed that the judgment of the District Oourfc be and the same is hereby annulled, avoided and reversed, and this case is hereby remanded to the lower co. rt for further proceedings according to law, with leave granted to the opponent to amend his pleadings.

Rehearing refused.


source: Caselaw Access Project

author: McEnery, J. Breaux, J.

license: Public Domain

text:
    No. 11,374.
    John R. Cawthon vs. W. E. Kimbell et al.
    An amended answer is permitted when it amplifies a general denial and enumerates the reasons why plaintiff should not recover and does not change therelief prayed for in the original answer, and is really in the furtherance of justice.
    An heir to whom a slave has been donated is bound to collate the value of the slave notwithstanding he was emancipated.
    The heir who accepts a donation and takes possession of the property can not repudiate the title under which he holds said property, retain the .same, and claim exemption from the obligation of collating. The donation may he null as not being in conformity to law regulating the manner by which they should be executed, yet the informality per se of the act can not be urged by the donee to the prejudice of the other heirs.
    On application pop Reheaping.
    The grandson it is claimed owed as a collation to the succession of his grandfather the value of a slave.
    The only evidence offered in support of the title by donation was a receipt under private signature signed by his mother in 1861, who acknowledged receipt of the slave from her father (who was the grandfather of plaintiff).
    The donation was null for matters of form.
    The nullity was not cured by the delivery of the slave.
    A donation inter vivos of real property, null for want of form prescribed by law can not be confirmed by the donor years after the death of the donee, and after the, slave donated had been emancipated.
    The confirmative act consists of the donor’s testimony in a suit mter alios to the effect that he had made the donation.
    The grandfather’s testimony was not given with the view of confirming the donation or with the intention of charging his grandson with the value of the slave.
    The grandson does not owe collation, as he (or his mother) never had title to the slave.
    The judgment of the District Court is annulled in order that settlement may be made with plaintiff without deducting from his portion any amount claimed as collation for the value of a slave.

      Barksdale, J. PPEAL from the Third District Court, Parish of Claiborne.

      John A. Richardson for Plaintiff and Appellant:
    The plea of payment admits the existence of the debt, if defendant does not make good his plea. 3 N. S. 273; 12 L. 397; 14 An. 54; 25 An. 182.
    After-pleading payment defendant can not withdraw the plea to deny the debt. 26 An. 630.
    An amendment to an answer will not be allowed which substantially changes the defence. 30 An. 1099.

      The plea of payment admits the debt, and any amendment that would throw on plaintiff the burden of proving the debt changes the defence and is not admissible.
    An act shall be passed before a notary public and two witnesses of every donation inter vivos of immovable property, of slaves or incorporeal things, such as rents, credits, rights or actions under the penalty of nullity. 0. 0. 1523, Code of 1825 (this is the same article as 1536 of the present code, only the words “ of slaves” are omitted). 34 An. 448; 23 An. 242; 22 An. 359; 4 N. S. 468.
    The donor can not, by any confirmative act, supply the defects of a donation inter vivos null in form; it must be executed again in legal form. C. 0. 2273 (2253).
    The heirs or assigns of the donor, during his, the donor’s life, can not confirm or ratify donations null in form. O. O. 2274 (2254) ; 6 R. 229.
    A donation of a slave in 1861 null in form, the donor dying in 1888, the burden of showing a ratification or confirmation of said donation rests on the party whose interest it is to establish the fact.
    Slaves donated prior or during the war, and liberated before the death of the donor, while in the possession of the donee, are not subject to collation. 29 An. 495; 34 An. 443; 40 An. 334.
    In 14 L. 352, Barton vs. Burton, the court, acting on the presumption that the law of Georgia on the subject of donation was the same as ours, held (p. 356) that slaves received as gifts (without an act of donation) were the objects of donation, and subject to collation according to the laws of Louisiana, and held, and forced the collation of the same, in a proceeding like this. Vide 19 L. 263, Gillespie vs. Day.
    40 An. 334, Succession of R. H. and Sarah J. Hallie — the question here being almost identical to the one at bar, the question of the collation of slaves in which there was no written act of donation. The court held that the fact there was no written act was “ insignificant,” as no one disputed her right to them, and she acted as the owner. Here Mrs. Stewart admitted she received the slaves, but resisted the collation for the reason there was no written act of donation. The court held she must collate. In the case at bar, plaintiff admits in the record she received the slave as stated in the receipt, bnt resists collation for it because the act was not passed before a notary. We submit that is “insignificant,” as no one is disputing the title, and she acted as the owner and should collate.'
    We also refer the court: 3 An. 522; 9 An. 291; 34 An. 440; 36 An. 744; 10 An. 504.
    The plaintiff admits that “Mrs. Emily Oawthon received one thousand five hundred dollars, as shown by receipt attached to answer, to be accounted for in some way (out of the succession of John Kimbell), if subject to collation under the law.” This admission precludes and estops plaintiffs from urging any defects in the title that Mrs. Oawthon may have had to the negro. He admits that his mother received this negro from John Kimbell as an advance, and that she was to account for it out of the estate of John Kimbell. The expression “ if subject to collation under the law” had reference exclusively to the question of the “emancipation of slavery before the death of the donor,” and can not refer to the question of title to' the slave.
    Representation, which takes place in the case of a child coming to the succession in place of his father deceased before the opening of the succession, should not be confounded with transmission, which takes place when the father, called to the succession, dies after it is opened, without becoming full heir by acceptance. He transmits his right to his heir, who can not exercise it without accepting his succession, since the right forms part of it. He, then, who comes to the succession by representation comes suo jure, and who comes by transmission alieno jure.

    Representation is limited to descendants, and to brothers and sisters and their descendants. So, representation can not take place in favor of the cousins of the deceased (7 N. S. 336) ; nor is it admitted at all in irregular successions, except in the case of a natural child. O. C. 923; Succession of Debreuil, 25 An. 372.
    The question is, does this plaintiff inherit in his own right or is it by . representation? for it may be claimed-.under Art. 1240* C. C., that he comes in in his own right and. is not required to collate gifts, etc., made to his mother, While our. contention is, he inherits by representation, and is compelled.to collate, etc.

      C. C., Art. 1240: “In like manner, the grandchild, when inheriting in his own right from the grandfather or grandmother, is not obliged to refund the gifts made to his father, even though he should have accepted the succession; but if the grandchild comes in only by right of representation, he must collate what had been given to his father, even though he should have renounced his inheritance.”
    The case of Oalhoun vs. Crossgrove, 33 An. 1004, cited by plaintiff, does not apply to the facts of this case. In that case it is a “debt” which is the object of collation, while in the case at bar it is “an advance ” that the plaintiff is called on to account for. The court, in the Crossgrove case, strongly intimates that if the amount had been given as “an advance” the decision would have been otherwise.
    Defendants insist that this plaintiff comes in “ by representatives,” and is bound to collate the property mentioned in the receipt by taking less. They rely on Succession of Meyer, 44 An. 871.

      Joel W. Holbert Attorney for Defendant an 1 Appellee:
   The opinion of the court was delivered by

McEnery, J.

John Kimbell was twice married. By the first marriage there were five children; by the second four. The first wife died in 1851, and the second marriage 'was celebrated in May, 1853. John Kimbell died in 1888, leaving the second wife surviving.

Emily Kimbell, issue of the first marriage, married A. L. Cawthon. John R. Cawthon, the plaintiff, is the issue of this marriage. His mother died in 1861, and his father in 1863.

The plaintiff instituted this suit against the surviving widow and the heirs of the second marriage, alleging (hat John Kimbell, his grandfather, brought twenty-eight hundred acres of land and some lots in the town of Homer and some personal property into the second community which was his grandfather’s separate property, and valued at thirteen thousand four hundred and fifty dollars, and is entitled as heir of John Kimbell to one-eighth of all this property and one-sixteenth of the personal property acquired during the second community, and in his possession at the time of his death.

His one-eighth interest is valued at one thousand nine hundred and five dollars. There was a partition of the property among the heirs of John Kimbell by the second marriage. This partition is attacked, and there is a prayer for it to be declared null and void, and that the land be restored to the succession of John Kimbell.

This land, it is alleged, embraced fifteen hundred acres, the balance remaining after having made donations to his children, and which the second wife and the four children by-the second marriage partitioned among themselves. He prays for a moneyed judgment for his interest in all the property, with five per cent, interest from the death of John Kimbell, his grandfather, in default of returning the property to the succession.

In answer the defendants admit plaintiff is the heir of John Kim-bell and plead a general denial, and averred that he had no interest in the succession of John Kimbell, as he had received more than his share in the estate of his grandfather during his lifetime, and that his mother had been settled with for her share in the estate of Oynthia Kimbell, her mother, and prayed that plaintiff’s demand be rejected.

Before the case was set for trial the defendants filed a lengthy amended answer amplifying their original answer. This amended answer in no way changes the substance of the original answer, but enumerates the reasons why plaintiff should not recover by alleging that the land claimed by plaintiff was disposedjof during John Kim-bell’s lifetime; that the personal property perished during his lifetime ; that his mother had received an advance from the estate of John Kimbell, and was bound to collate the same.

There is no allegation of any fact in the answer that could not be proven under the original answer. It does not in any way change the original answer, and in the sound discretion of the court it was permissible in the furtherance of justice, as there was no injury to plaintiff or prejudice to his rights. The amended answer contains allegations also that are only legal inferences from facts stated. There was ' judgment rejecting plaintiff’s demand, and he has appealed.

The statement in the record shows that John Kimbell owned in his lifetime two thousand acres of land. The deeds show that he •disposed of one thousand seven hundred and fifteen acres, but there was error as to one hundred and twenty acres in the description, this amount not having been sold or parted with. This left four hundred and five acres on hand at his death. The defendants, however, admit that there were four hundred and sixty-nine acres on hand at the time of his death, which were partitioned among the four heirs and widow. The movables amounted to four hundred and fifty dollars. He gave to his children, exclusive of amount given to plaintiff’s mother, seven thousand three hundred and eighty-five dollars. Add to this the amount given to the plaintiff’s mother, the sum of fifteen hundred dollars, and the value of the land and the personal property of the succession, the amount to be distributed would be the sum of eleven thousand three hundred and ninety-two dollars, each heir’s share being one thousand four hundred and twenty-four dollars, which shows that the plaintiff has received more than his portion of his grandfather’s succession.

The plaintiff attacks the donation made to his mother because it does not conform to Article 1536, Revised Civil Code, which says that “ an act shall be passed before a notary public and two witnesses of any donation inter vivos of immovable property or incorporeal things, ”Letc.

The real contention is in relation to the donation of the slave.

The act of donation Í3 as follows:

“ Claiborne, La., received of John Kimbell the sum of seven hundred dollars in full of my interest in the succession of my mother, Cynthia Kimbell, deceased, and the sum of three hundred dollars in full of my interest in the estate and succession of my brother, John Randolph Kimbell, deceased, and the sum of fifteen hundred dollars, to-wit: a boy Billy, at thirteen hundred and fifty, and one hundred and fifty in money, to be charged to me from John Kimbell as his property in his succession and estate, this the 4th day of June, A. D. 1861. Emily Kimbell.”

“ I authorize my wife to sign the above and bind herself.

“A. T. Cawthon.”

The above receipt shows that the donation was' executed and therefore accepted by the donee. C. 0. 1541.

The plaintiff contends that as the donor in his lifetime never confirmed this donation to supply the defects in the original act, it null and void, and no title to the property ever passed from him. So far as the donee is concerned, he can not retain the property and attack the donation, escaping the obligation of accounting for the same.

Having accepted the donation and being in possession of the effects donated, as to him it is perfected. In the case of Gillespie vs. Day, 19 La. 263, it was held that where the father made a verbal donation of a slave to a son, and at the death of his son as one of the members of a family meeting he advised that the property be sold as the-property of the minor child of the deceased, he can not claim back either the slave or the proceeds, although the donation per se did not divest him of title. In the instant case in a judicial proceeding the grandfather acknowledged the donation to his daughter to the property donated in order to confirm title to the same to his grandson in the matter of his tutorship. We think the principle enunciated in the case referred to appropriately applies to this.

But independent of this the rule is universal in jurisprudence that a party can not retain the thing and repudiate the title by which he holds possession of it. Therefore if the plaintiff wants to participate in the succession of his grandfather he must account for what he has. received as an advance in said succession. He can not retain the advance and come in and participate and thus destroy that equality which the law says must exist among the heirs.

The emancipation of the slave did not relieve the plaintiff from the obligation to collate that which his mother had received from his grandfather’s estate. The property — the slave — was inherited by him from his mother and was a part of her estate when she died.

The donation of the slave was made in pursuance of Arts. 1361 and 1362 of the Code of 1825, which say:

Art. 1361. “ When slaves have been given, the donee is not permitted to collate them in kind; he is bound to collate for them by taking less, according to the value of the slaves at the time of the donation.”

Art. 1362. “Therefore the donation of slaves contains an absolute transfer of the rights of the donor to the donee in the slaves thus given. They are at the risk of the donee, who is bound to support their loss or deterioration, at the same time that he profits by the children born of them; and if the donee dispose in good faith of all or any of the slaves, the action of revendieation for recovering the ■slaves on the part of his co-heirs for the collation due to them will not lie against those who are the purchasers or holders of the slaves.”

The donation of the slave invested the donee absolutely with title to him. He was at his risk, and he must collate his value no matter in what manner the donee lost him, whether by sale, death, by theft,' ■or by emancipation.

But this is no longer an open question. The jurisprudence on this point is firmly fixed. Slaves donated and lost by emancipation while in the possession and ownership of the donee do not relieve the donee from the obligation of collating their value. Ventress vs. Brown, 34 An. 457; Succession of Hale, 40 An. 335; Succession of Meyer, 44 An. 871.

We find no error in the judgment appealed from.

Judgment affirmed.

On Application 'fob Rehearing.

Breaux, J.

The careful attention heretofore given to this case relieves us from the necessity of restating all the facts.

We will only restate those facts material to a decision of the question remaining an issue between the parties to the suit.

Counsel for the plaintiff admits that all the points in the ease heretofore decided were correctly decided, except one, he contends.

The excepted and disputed point relates to the alleged donation of a negro.

In the year 1861 the mother of plaintiff," authorized by her husband, executed a receipt for the slave valued at thirteen hundred and fifty dollars, and one hundred and fifty dollars in money as an advance upon her share, to be accounted for in the settlement of her father’s succession.

Her father, the alleged donor, was not a party to the receipt, and there is no evidence, other than this receipt, of an intended donation.

The defendant pleads ratification. This alleged ratification consisted of testimony of plaintiff’s grandfather, given in a suit brought by J. A. Cawthon et al. vs. J. B. Cawthon, to which the witness, John Kimbell, the said grandfather, was not a party and in which none of the issues of the case at bar were involved. He deposed that he held the receipt in question, showing that his daughter had been placed in possession of the slave as stated in the receipt.

The receipt was not in the form required to establish a donation inter vivos of property it is contended was donated.

It is elementary that in a donation form is of the essence, and that to have a binding force the act shall be passed before a notary public and two witnesses, of immovable property, including under the law, slaves at the date of the donation.

We have said that donations inter vivos are solemn contracts, subjected to certain forms, without which they are inexistent.

To form a particular importance is given, as it completes and gives life to the act; forma dat esse rei.

The solemnity is established by the notarial act.

The offer of the donor and the acceptance of the donee are valid after signing the act.

The alleged donor was not at all a party to the receipt.

As a donation it was originally an absolute nullity. It was not translative of title.

Whether there was a confirmative act, confirming in effect the donation alleged, is the next question at issue.

If there was no confirming act there was no donation.

We have already stated that the act of confirmation urged by counsel for the defendant is the deposition of the donor, in a suit, in which the plaintiff, the heir of the alleged donee, was not a party.

The testimony of the alleged donor was not given, after it had be - come evident that he was aware of any defect of form, and that it was Ms intention, by testifying as he testified, to confirm a donation.

In support of defendant’s contention that there was confirmation of the receipt in question, giving it the effect of an act of donation, we are referred to a number of cases as applying.

The first cited case is that of Gillespie vs. Day, 19 L. 263.

The- defendant Day claimed the price of a slave he alleged had been loaned or given by verbal agreement to his son.

The court held that, conceding the title to have been previously in him, and that the verbal donation per se was insufficient to divest him, yet the defendant as a member of the family meeting advised the sale of the property and suffered the slave to be sold as the property of his son, and in the act of partition in the record, signed by the defendant, the price of the slave is set down as forming part of the estate which came into his hand as tutor of the minor. The slave as donated property was not involved.

The contest related to the proceeds of the sale.

It was so ranch in cash, the father and tutor had judicially admitted (in proceedings, in effect contradictory), was owned by his son.

■ The court held him bound by his declaration without regard to any intended donation of a slave. There was virtually a manual gift of an amount in cash. A delivery de manu in manum.

In Deschapelles vs. Lebarre, 3 An. 522, a donation void in form, confirmed by the heirs, was held valid under the special provision of the code authorizing the heirs to confirm a donation. Under that article heirs may be held bound by their voluntary execution of the donation.

Prom that decision we quote: “ The title of the heirs of the donee to the property donated was rendered perfect by confirmation” by the heirs.

An entirely different question from that involved on this point in the case at bar, in which the heirs of the donee have never confirmed the contract of donation by any act or declaration whatever.

In Ventress vs. Brown, 34 An. 457, and in Succession of Hale, 40 An. 335, the form of the donation was not involved as between the donor and donee. In the first case — that of Ventress — the confirmation had been made by the heirs of the donor under Art. 2274 of the Civil Code.

In the second case — that of the Succession of Hale — the right of the donee to the slave was not questioned at all. She, the donee, contended that the emancipation of the slaves relieved her from the obligation of collating slaves donated to her, and rested her defence principally upon that ground.

In the case under discussion, the point is raised that the writing is not the writing of the donor; that it is only a receipt of the alleged donee.

To sustain the plea of donation would add an obligation to be discharged by the heir of the alleged donee many years after the opening of the succession and after the loss of the property not donated in compliance with the required form.

. The possession of the slave by plaintiff’s mother, and the fact that the delivery dates about the time the receipt was executed, are not equivalents to confirming acts.

The terms of the law are absolute, and delivery of the property ■ does not give validity to a contract of donation null for the want of form. Baudry de Lacantiniere, Vol. 2, p. 872; Toullier, Vol. 4, p. 472.

Judge Mathews, for the court, said, in the ease of William vs. Horton, 4 N. S. 469 : But according to our law in relation to titles by which property is held, a written instrument is required in order to transfer slaves from one proprietor to another; and when the evidence offered in support of title to them is an act of donation, to give it validity it must appear clothed with all the formalities required by law and sanctioned by an authentic deed. Mere possession is not evidence of title. * * *

“ In this species of contract forms appear to assume the place of substance.”

In Harlin vs. Leglise, 8 R. 194, this court reiterated that which had been decided in the 4 N. S. 469, that an omission of form is not cured by the delivery of the slave.

In Packwood vs. Dorsey, 6 R. 331, the reasons for the judgment were given at some length.

It is useless to repeat them. It will suffice to state the general propositions discussed.

The donation of real property must be executed before a notary and two witnesses.

A donation, null, can not be ratified by any confirmative act on the part of the donor and the voluntary execution of the donation by the donor will not prevent him from sustaining the plea of nullity.

In the decision the court controverts the doctrine of Toullier, that a void donation can be rendered valid by ratification, express or implied, on the part of the donor.

It leads, the court says, in that case, to an absurd conclusion, that while under the law no express confirmation or ratification can render valid a donation under private signature, it can be made so by the tacit ratification resulting from the voluntary execution of it by the donor.

“ It would, moreover, render completely inoperative the positive provision of our law, that a donation, null for want of any of the requisite formalities must be made anew in legal form. This provision alone surely excludes the idea that a void donation can be rendered valid by any ratification, either express or tacit, on the part of the donor.”

A long list of names of French commentators expressing views different from those of Toullier is copied in the body of the opinion.

The decisions of this court just reviewed accord with the commentators who differ from Toullier.

If we were to accept the doctrine of the latter, i. e., of Toullier, this case would not fall under its grasp, for there was no ratification, either expressed or implied, such as could cure the nullity pleaded by plaintiff.

We have considered this question with care, and have reached our conclusion despite our desire to affirm our previously expressed opinion upon this point.

Our former decree remains unchanged, except in so far as may be necessary in order to carry out our views as herein expressed.

Our learned brother of Che District Oourt, as usual with him, has carefully cast the account of the heirs and made the following statement:

Value of lands.........................................................................................................$1,467
Value of movables................................................................................................... 450
Amount paid Mrs. Key.......................................................................................... 1,000
Amount paid Mrs. G. I. Kimbell........................................................................... 1,000
Amount paid Mrs. Jones.................................................................................... 1,000
Amount paid Mrs. W. E. Kimbell .......................................................................... 800
Amount paid Mrs. Andrews............................................................................... 1,035
Amountpaid Mrs. S. L. Kimbell .........................................................................1,140
Amount paid Mrs. Nelson................................................................................ 1,000
$8,892

Counsel for the plaintiff and appellant, regarding these and other items involved, says in his brief:

“There is only one question or point which we claim is in error in coming to its conclusion in this case.

“The other points decided are correct law, but the whole decision is based on the point we claim the error consists, Having accepted the donation and being in possession of the effects donated, as to him, it is perfect.’ If the court is correct in this proposition, the decision is correct; if incorrect, then the case is with the plaintiff.”

We do not understand that the defendant and appellee dispute the correctness of these and other items of the account.

The whole contest centred in the question of collating, vel non, the value of a slave, not donated in due form.

In the present condition of the case another judgment must be entered; in view of the admissions of the correctness of certain items, presumably it will be final, before the court of the first instance.

The debits and credits will now be established and balances fixed, and the amount coming to each heir settled.

It is therefore ordered, adjudged and decreed that our former decree in this case be avoided and reversed, and it is further ordered, adjudged and decreed that the judgment appealed from be reversed and set aside, and it is now ordered, adjudged and decreed that there be judgment for plaintiff, decreeing that he is not obliged to collate the thirteen hundred and fifty dollars, value of the slave for which his late mother executed a receipt in 1861.

It is further ordered, adjudged and decreed that this ease be remanded to be tried in accordance with the views herein expressed.

The defendant and appellees are condemned to pay the cost of appeal.

Those of the District Court are to be paid by the party cast on final decision in that court.


author: McEnery, J.

text:
    No. 11,531.
    Ferdinand Gumbel & Co. vs. J. A. Boyer and Sheriff, and J. A. Boyer vs. Clifton Cannon, Sheriff (Consolidated) .
    The holder of a concurrent mortgage note has the right to assert his preference for payment on theiprocecds of the sale of the mortgaged property over the transferrer, the payee of the note, by third opposition.
    While it may not be necessary to make the mortgagor a party, it is not fatal to the proceedings if he is made a party defendant, and a personal judgment prayed for as against him. These matters concern the mortgagor and in no way affect the mortgagee, who is interested only so far as the opposition is concerned with contesting the iDreference claim of the third opponent.
    If the agent of the maker of a mortgage noto has no funds of the principal in his possession there is no reason why, on the request of the principal, ho can not buy for his own account the mortgage note and hold it as security for the amount advanced for the principal.
    If the agent has money of the principal in his possession and purchases the note, and makes a payment thereon with the funds of the principal, this payment will be considered as having been made by the principal, and the mortgage will be extinguished by confusion to the amount of the payment.
    A mere indorsement of the note carries with it the mortgage security.
    The offer of testimony to show in what manner the agent acquired the note is not a contradiction of the indorsement when it is restricted as to whether the agent purchased the note for his own account with his funds, or for his principal with the latter’s funds.
    APPEAL from the Tenth District Oourt, Parish of Avoyelles. Coco, J.

      O. H. Couvillon for Gumble & Co., Plaintiffs and Appellees.

      Wm. H. Peterman and Clegg & Thorpe for Boyer et al., Defendants and Appellants.
   The opinion of the court was delivered by

McEnery, J.

Ferdinand Gumbel & Oo., cotton factors and commission merchants in the city of New Orleans, alleging themselves to be the owners of a promissory note for the sum of three thousand three hundred dollars secured by vendor’s privilege and special mortgage on certain property situated in Avoyelles parish, dated 8th December, 1891, payable on demand with eight per cent interest, intervened, by way of third opposition, in the suit of the vendor against the vendee, Joseph Y. Moreau, to foreclose the mortgage and enforce the vendee’s privilege, claiming a preference in the proceeds of sale over the vendor, the transferrer of the concurrent mortgage note held by third opponents.

Exceptions were filed of no cause of action and misjoinder of parties. The theory upon which the exception of no cause of action is based is that the mortgage note held by Gumbel & Co. is a separate special mortgage. But this is not a fact. It is a concurrent mortgage note, and the proceeding by third opposition to share in the proceeds was proper.

The defendant, Moreau, was joined in the suit instituted by third opponent. This may not have been necessary, but it was not fatal. It in no way affected the defendant, Boyer. Nor did the prayer for a personal judgment against Moreau, the mortgage debtor, concern him. Moreau is not complaining. The defendant, Boyer,is only interested in the proceedings against the property or its proceeds. So far as these are involved he is properly before the court, and has no interest whatever in the personal judgment prayed for against Moreau.

J. A. Boyer, the vendor, answered, denying that the third opponents had any privilege or mortgage on said property described in the petition]]entitlmg him to be paid in preference to the vendor and and transferrer of the note. Boyer, with leave of court, amended his answer and declared that the intervenors and third opponents never purchased said note from him, but paid the same for the mortgagor, thus extinguishing and destroying the mortgage.

The third opponents objected to the filing of the amended answer on the ground that it altered and changed the substance of the original answer. We do not perceive any alteration of the original answer. That denied that the opponents had any mortgage or privilege on the property, and the amended answer only set out the particular fact on which the general averment in the answer was based.

Under these circumstances the amended answer was properly allowed to be filed.

The law applicable to the controversy herein is well settled.

There is only question of fact involved, and the sole question is whether Gumbel & Co. acquired the note subject to a credit of one thousand five hundred dollars and seventy cents, which was paid out of funds in their hands belonging to Moreau, the maker of the note.

The transfer of the note and the indorsement thereon does not prevent this inquiry, as the transfer and ownership of the note is not questioned.

Testimony was improperly rejected to show the fact stated above, the judge ruling that the indorsement on the note could not be contradicted.

Boyer sold the property to Moreau for three thousand three hundred dollars, payable on demand, and on a credit for the balance of the price.. The several payments were evidenced by promissory notes payable to Boyer and secured by vendor’s privilege and special mortgage.

The following letter was addressed to Gumbel & Co. by Moreau:

“Oottonport, La., December 21, 1891.

Messrs. F. Gumbel & Go., New Orleans:

“Dear Sirs — I havebought Mr. J. A. Boyer’s plantation at Moreauville, with saw-mill and cotton gin. He will call on you in a day or two with a mortgage note of three thousand three hu dred dollars; but I paid on said note three hundred dollars. Please pay the three thousand dollars for me, and should I not have that amount to my credit hold the note against me until I ship all my cotton. I have three hundred and thirty bales and have shipped three hundred, and will ship the balance as soon as possible. * * *

“Yours truly,

“ J. V. Moreau.”

To this letter, Gumbel & Co. replied as follows:

New Orleans, December 22, 1891.

“ Mr. J. V. Moreau, Oottonport, La. :

Dear Sir — In reply to your favor of the 21st instant, we will say we must decline in complying with your request, for two reasons : first of all, we will not pay the mortgage' note of Mr. J. A. Boyer, drawn by you in his favor, and, secondly, we can not recognize your letter of above date, as it is neither written or signed by you.

“ Now, if you will write us to buy the note in question, and write and sign the letter yourself, all will be satisfactory. We will buy the note and hold it until you ship enough cotton to cover.

“ Mr. J. A. Boyer understands the situation.

Awaiting your reply, we remain,

Truly yours,

“ Ferdinand Gumbel & Co.

“ P. S. — Write your own letter

Moreau answered this letter as follows:

“ Oottonport, December 29, 1891.

“ F. Gumbel & Go., New Orleans, La.:

“ Dear Sirs — Please find enclosed bill of lading for four bales of cotton; also, please go and buy my note of J. A. Boyer, which is in Mr. Charles Hernandez’ hands, and keep the said note until paid, and send me a receipt for the note, or you hold it for security and I will ship enough to pay all due you, if the roads don’t get bad.

“ Very ¡ espectfully,

“ J. D. Moreau.”

These letters, which were introduced by the plaintiff in the executory process, show that Gumbel & Co. declined to pay the note for Moreau, as his factor or agent, but consented to purchase it on their own account, and hold it as security for the money advanced, as an accommodation to Moreau.

In the admitted testimony, and even in that rejected, there is nothing to contradict the meaning of these letters, which undoubtedly show that, at the request of Moreau, Gumbel & Co. purchased the note and positively declined to pay it for account of Moreau.

The indorsement on the note-is as follows: “For value received, I hereby transfer the within note to Ferdinand Gumbel & Co., with all the rights and interests I have in said note, without recourse against me.”

This indorsement added nothing to a simple indorsement, which carries with it all the security of the note.

The testimony which was rejected was introduced to show that the mortgage debtor, the maker of the note, notwithstanding the agreement in the letters, had paid with his own means, through Gumbel & Co., his agents, the three thousand dollars balance due on the note. This testimony would in no way contradict the indorsement, as its transfer to Gumbel & Co. is not at issue. Their right to sue on the note is not questioned. They are by the pleadings recognized as the legal holders of the note. It is certain that if Gumbel & Co. had no funds in their hands at the time they bought ths note of the defendant Boyer, they had the right to purchase the same for their own account. And if they purchased the note, and paid the credit indorsed on it out of the funds of their principal, it is to be considered as having made the payment, and the mortgage would be canceled to that amount.

Prom the indorsement of payments on the note, it appears that Moreau paid only one thousand five hundred dollars and seventy cents on it after the first payment of three hundred dollars, before it went into the hands of Gumbel & Co.

Now, if in the check of Gumbel & Co. to Hernandez, who held the note for collection for Boyer, this one thousand five hundred dollars and seventy cents credit was included, and was paid out of the funds of Moreau in their hands, they could only, of course, buy the note subject to this credit, and would be entitled to share in the proceeds concurrently for the balance due, provided the note was purchased for their own account, and not solely for Moreau as his agent, for whom they advanced the money, and to whom they charged the same in their account.

These facts the defendant Boyer' should have had an opportunity of presenting, if they existed as alleged by him.

We have not discussed each exception to testimony noted in the record, as the objections all go to the same purpose, and under our ruling all of the rejected testimony should have been received in evidence.

Boyer, at the sale of the property, was the last and highest bidder. He tendered to the sheriff the costs and the balance due on the second mortgage note held. The sheriff decliaed to finally adjudicate the property to him, because of his failure to comply with his bid by paying the entire amount demanded in the writ of seizure and sale, and also because he was ordered in the third opposition of Gumbel & Co. to retain the entire proceeds in his hands for final distribution. The sheriff could not do otherwise than obey the mandate of the court, and the defendant Boyer’s speediest remedy was for a rule against the sheriff to adjudicate the property to him and to make him a deed to it.

The relief prayed for by Boyer was denied, and he was ordered to comply with his bid, and in default thereof to again sell the mortgaged property. From this judgment Boyer took a devolutive appeal.

The defendant Moreau has not appealed, and we can not disturb the judgment as to him.

It is therefore ordered, adjudged and decreed that the judgment appealed from, so far as it involves the issues between third opponent and plaintiff Boyer in the executory process, be annulled, avoided and reversed, and it is now ordered that the case may be remanded to be proceeded with according to law.


text:
    No. 11,530.
    J. A. Boyer vs. Clifton Cannon, Sheriff. Gumbel & Co., Intervenors.
    A party who has been declared by a judgment of court, as having failed to comply with his bid, and has not suspensively appealed therefrom, is’without interest to enjoin the subsequent sale of the property under an order of court made in pursuance of said failure to comply with the terms of the sale.
    PPEAL from the Tenth District Court, Parish of Avoyelles. Coco, J.

      Wm. H. Peterman and Clegg & Thorp Attorneys for Plaintiff and Appellee:

      Fieri facias, unsupported by judgment, will be enjoined at suit of any person whose rights or interests in or upon the property seized may be injuriously affected. C. P. 296; 19 An. 189; 31 An. 134; 30 An. 800; 33 An. 222; 34 An. 89.

      One who claims only preference on the proceeds of a legal sale of the property seized is without interest to oppose such injunction.
    A party can not intervene in a suit except for the protection of his own rights; and if his demand does not grow out of the principal action and is not specially permitted by law, it must be dismissed. 2 An. 462; 28 An. 241; 0. P., Art. 190.
    A writ of ft. fa. can not issue in a proceeding in which no judgment has been rendered; nor can property be sold under a ft. fa. partly for cash and partly upon terms of credit. Arts. 641, 680, 681, O. P.
    A writ of ft. fa. can be stayed only by injunction. 19 An. 189.
    Where the sheriff has advertised and is proceeding to sell property in a manner not in conformity with the decree of the court, his action may be enjoined. 31 An. 134; 30 An. 800; 34 An. 89; 33 An. 222.
    Except in a case of trespass on real estate, a claim for damages can not be made in an intervention against one who does not reside in the parish where the principal action is pending.

      G. H. Oouvillon Attorney for Intervenors, Appellants:
    Plaintiff in injunction must prove the allegation of his petition. 19 An. 276.
    A mortgagee can not enjoin the sale. If it be null it does not affect his rights; if it is valid his remedy is by third opposition. 26 An. 246, James vs. Breau, Sheriff.
    An injunction granted on an allegation of ownership to real estate, the plaintiff failing to prove title, the injunction should be dissolved.
    An error in the advertisement, which can be rectified by merely calling printer’s attention, can not cause irreparable injury. The injunction should be dissolved with damages.
    It is the duty of plaintiff in execution to see that the property is properly advertised under his writ.
    Plaintiff in execution can no longer control his writ when third persons have acquired rights under it. If he wants to suspend the judgment operating against him his remedy is by appeal.
   The opinion of the court was delivered by

McEnery, J.

Many of the facts to the proper understanding of this case are stated in the ease No. 11,531, of Gumbel & Co. vs. J. A. Boyer et als., just decided. Ante., p. 762.

The defendant in that case took a devolutive appeal. The defendant, Boyer, refusing to comply with his bid, the sheriff, in pursuance to the decree, advertised the property for sale. In doing so, he advertised the property as being sold under a fi. fa. instead of a writ of seizure and sale, issued in pursuance of an order of seizure and sale. Eor this reason the defendant, Boyer, enjoined the sale. Gumbel & Co. intervened; objection was made to their intervention. It was properly overruled, as they had an interest in the sale of the property to realize the amount of the concurrent mortgage note which they held.

There was no personal judgment rendered in this case under which a fi. fa. could issue. This is not denied, and it is admitted that the proceeding was irregular, but the defence is that it was the fault of the printer, and that the defendant has' shown no irreparable injury, and was not the owner of the property, and had no interest in arresting the sale.

The decree of the District Court was that the defendant, Boyer, had not complied with his bid, and the property was ordered to be again offered for sale. This judgment was nob suspensively appealed from, and there was nothing in the way of its execution. Boyer was therefore a stranger to the proceeding under the order of court, and was without interest to arrest the sale of the property.. The second order to sell was in effect an interlocutory order carrying into execution a judgment not arrested by a suspensive appeal. Whan vs. Irwin, 27 An. 708; State vs. Judge, 30 An. 229; Boutte vs. Executors of Boutte, 30 An. 177; State ex rel. Remington Paper Co., 45 An. 1418; Murphy vs. Murphy, 45 An. 1482.

It is therefore ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and reversed, and the injunction issued herein be dissolved at costs of plaintiff in injunction.


author: Watkins, J.

text:
    No. 11,525.
    State of Louisiana vs. Bob Robinson.
    On the completion and empaneling of a jury, the jeopardy begins; hut it begins only "when the panel is full; until full, the jeopardy is not perfect.

      Without a complete jury the defendant can not be conducted to the period of his jeopardy; but after the jury, being- full and complete, is sworn, and added to the other branch of the court, and all the preliminary things of record are ready for the trial, the defendant has reached the period of jeopardy from the repetition of which the constitutional provision protects him.
    APPEAL from the Sixth District Court, Parish of Richland. Ellis, J.

      M. J. Cunningham, Attorney General, for the State, Appellee:
    The trial court is vested with discretion to continue a case if it thinks justice requires it, and it is also a matter resting within its discretion whether, pending the trial, it will delay the proceedings for the purpose of enabling the State or the defendant to bring in additional testimony. State vs. Vigoreux, 3 An. 309.
    To entitle a defendant to a plea of autrefois acquit it is necessary that the former acquittal be a legal acquittal by judgment upon trial, for substantially the same offence, by the verdict of the jury. State vs. Hornsby, 8 Rob. 583; IBish. Or. PL, par. 809.
    Robt. Whetstone Attorney for Defendant and Appellant;
    A plea of autrefois acquit is of a mixed nature, embracing both law and facts, and should be submitted to a jury. 42 An. 414; Wharton Crim. Law, 568.; Bishop Crim. Pro. 742, 816.
    The State and accused having declared their readiness to go to trial under a valid indictment, trial begun and the jurors sworn and the indictment read, an abandonment or continuation of the case, and a discharge of the jury by the district attorney over defendant’s objection, bars a subsequent prosecution for the same offence. Art. 5, Const.
    All authorities agree that the jeopardy of an accused does not begin until the jury is fully empaneled and sworn. 43 An. 515; 1 Bishop Crim. Law, Secs. 1014, 1015; 1 Wharton Crim. Law, See. 590.
   The opinion of the court was delivered by

Watkins, J.

The accused was indicted at the September term, 1893, for the crime of larceny, and he was placed on trial, and a jury were duly empaneled and sworn, and the indictment read.

At this stage of the proceedings the district attorney requested a temporary suspension of the trial for the purpose of preparing an application for a continuance in order to enabl í him to procure the testimony of an absent witness. This application was granted, the proceedings were temporarily suspended, the motion for continuance was filed, argued and submitted, the ease was continued for the term, and the jury empaneled to try the case were discharged — the defendant objecting and retaining a bill of exceptions to the rulings of the judge.

At the February term, 1894, the defendant objected to going to trial, on the ground that he had been once in jeopardy, and was discharged and released from further prosecution, by reason of the continuance of the cause, under the circumstances detailed, and to that end he filed a plea of previous jeopardy.

This motion was overruled and he retained a bill. Over his objection the trial was thereafter proceeded with, he was found guilty, was sentenced to eighteen months’ imprisonment in the penitentiary, and from that sentence he prosecutes this appeal.

The question propounded is, whether the accused was put in jeopardy by the empaneling of the jury of trial, and the reading to them of the indictment — no testimony having been adduced — and did the discharge of the jury and the continuance of the case operate his release from further prosecution — the continuance of the case and the discharge of the jury being over the defendant’s objection and exception.

It appears, as matter of fact, that the principal witness on behalf of the State had been duly summoned, but was not found by the sheriff, and that certain depositions which had been taken before an examining magistrate and deposited in the clerk’s office were missing and could not, after diligent search, be found.

In order to obtain this testimony, the district attorney had requested a continuance of the case, and the judge assigned as the reason for granting it that the application proceeded upon the theory that the State was surprised that a part of the public archives of the clerk’s office could not be produced, and that this fact did not evidence want of due diligence on the part of the district attorney in not having previously advised himself of the loss, as that officer had the right to presume the reeord was in its proper place.

The question of discretion in the judge to grant or disallow the continuance depends, however, on the main question of whether the circumstances related disclosed that the defendant was in jeopardy at the time it was granted; for, if he was, the judge had no discretion in the premises, and if there was no jeopardy, he had.

An examination of the authorities has satisfied us that the defendant’s plea is good and should have been maintained.

Mr. Bishop defines ¡jeopardy thus: “If after the jury have been sworn, and thus the jeopardy has begun, the court, contrary to true practice, discharges them without a verdict, this is, in law, equivalent to an acquittal; and, on motion, without plea, the prisoner is entitled to be set at liberty.” 1 Bishop’s Crim. Prac., See. 821.

Again that author says: “ When on the completing and swearing of the panel, the jeopardy of the accused begins; and it begins only when the panel is full; until full, the jeopardy is not perfect. In other words, without a jury set apart and sworn for the particular case, the individual defendant has not been conducted to his period of jeopardy. But when, according to the better opinion, the jury, being full, is sworn and added to the other branch of the court, and all the preliminary things of record are ready for the trial, the prisoner has reached the period from the repetition of which our constitutional rule protects him.” 1 Bishop’s Orim. Law, Secs. 1014, 1015. ■

In support of this proposition many authorities and State decisions are collated, and we have examined all and cite the following, viz.: Wright vs. The State, 7 Indiana, 824; Morgan vs. The State, 18 Ind. 215; McKenzie vs. The State, 26 Ark. 334; Hines vs. The State, 24 Ohio Stat. 134.

In treating of “ the essential elements of jeopardy,” the following is stated in the American and English Encyclopedia of Law, viz.:

“ If there be not a complete panel of jurors, the trial is a nullity, and jeopardy does not attach; and a trial without a jury is void and not a putting in jeopardy.

“The jury is said to be charged with the prisoner when the twelve jurors are duly empaneled and sworn; and when the jury are thus sworn to try the accused on the charge preferred, jeopardy attaches. If it attaches for a moment only, it is sufficient to put the accused within the provision of the Constitution.” Yol. II, p. 933, Jeopardy, Sec. 4, pars. 4, 5.

Of the authorities quoted as supporting that theory, we cite the following, viz.: Bell vs. The State, 44 Ala. 393; Grogan vs. The State, 44 Ala. 9; Newson vs. The State, 2 Kelly (Ga.) 60.

But the principle is stated- in People vs. Webb, 38 Cal. 467, with more accuracy and - elaboration than any other given case, and the opinion of the court is supported by an array of authorities, English and American.

On the foregoing authorities we consider it a settled principle that after a jury has been set apart and sworn for the particular case, the defendant has been conducted to his period of jeopardy, and is entitled to the protection of the constitutional bar, in case the jury be set aside against his objection.

But this rule is not an absolute one, and applicable to all cases alike. There are exceptional cases to which the foregoing principles do not apply; as, for instance, when there is any illegality in the composition of the jury; or a disqualified person is found on the panel; or the jury are known to have been guilty of misconduct; for any of which causes the verdict might be set aside. The rule invoked and applied in this ease is that where there is a completed jury duly empaneled and sworn to try the issue joined — and to the legality of which no objection is urged — the accused is, at the moment, placed in jeopardy.

But there is no conflict between the principle announced and that stated by the court in State vs. Nash, 46 An. 194, to which we adhere.

For these reasons we are of opinion that the verdict and sentence pronounced against the defendant should be annulled and reversed.

It is therefore ordered and decreed that the sentence and judgment appealed from be annulled and reversed, and it is further ordered and decreed that the plea of previous jeopardy be sustained and the defendant set at liberty.