text:
    No. 3220.
    Field F. Montgomery v. All the World.
    The parish court that has granted an order of sale of property belonging to a succession, has jurisdiction of a monition suit by a purchaser of the lands sold under its orders.
    The party opposing a monition, is, for all legal purposes, the plaintiff in the action, and he must, therefore, establish his averments by proof.
    APPEAL from the Paxish Court, parish of Madison.
    Crawford, Parish Judge. F. D. Farrar, for plaintiff and appellant.

      James T. Coleman, for opponent and appellee.
   Wyly, J.

The plaintiff, the purchaser at probate sale of certain property sold by the administrator of the succession, of William De Griffin, under order of the Parish Court, of the parish of Madison, sues out a monition and seeks to have his title confirmed and homologated. Mrs. Eugenia Rossman, wife of Charles B. Allen, claiming to be the universal legatee of said William De Griffin, opposed the monition on the grounds' that the order under which the sale was made, was informal and void as against her; that the court' granting it was without jurisdiction, the claim of the creditor demanding the sale being for $4600, exclusive of interest, an amount beyond the jurisdietion. of the parish court; that there were “irregularities, illegalities and other defects in the proceedings, advertisements, and in the time and manner of the sale of said lands, which will be shown on the trial of this opposition;” and that a devolutive appeal has been taken irom the decree ordering the administrator to make the sale.

This opposition was maintained and the plaintiff has appealed.

The evidence shows that the advertisement of the monition was sufficient, that the property was correctly described, and the price at whicli it was sold was truly paid.

If the recitals of the deed of sale made by the administrator were untrue, it was incumbent on the opponent to show it.

The party opposing a monition is to all legal intents the plaintiff, and must establish his averments by proof. Fortier v. Zimple, 6 An. 54.

The court ordering the sale had jurisdiction. It was granted by the parish court on the application of an acknowledged creditor, under articles 990, 991 and 992 of the Code of Practice.

The irregularities iu the sale complained of by the opponent have not been proved.

It is therefore ordered that the judgment of the court a qua be avoided and annulled, and it is ordered that there be judgment lor the plaintiff, confirming and homologating his title to the following lands in the parish of Madison, to wit: “ Section throe (3) and lots four (4), five (5) and (6), in township fifteen (15), north of range fourteen (14) east, containing eleven hundred and forty-two (1142) acres.

It is further ordered that appellee pay costs of the appeal.


source: Caselaw Access Project

author: Taliaferro, J.

license: Public Domain

text:
    No. 3248
    Succession of Mary Smith, Henry Newell, Opponent v. Sallie P. Smith.
    A notarial act executed by tbe wife, whereby she agrees to postpone the rank of her mortgage on the property of her husband to that of a creditor, is null and of no effect as against her, if the evidence shows that she signed it under threats made "by her husband.
    In a case like this, where a creditor is seeking to enforce a subsequent mortgage on the ground that the wife, who holds the prior mortgage, has postponed her preference to him, it is incumbent on the creditor to show that the postponement was her own voluntary act. The fact that no threats were heard by the notary at the time of signing tlio act of postponement of the wife’s mortgage to that of the creditor, does not impair or weaken the statements of the wife that she was compelled to sign the act under throats of her husband that ho would drive her off the place if slio did not sign it.
    APPEAL from the Parish Court of East Baton Rouge.

      Posey, J. Andrew 8. Herron and Greves & Pupree, for opponents, appellees.

      B. B. Ohaney, for administrator, appellant.
   Taliaferro, J.

Hpon a tableau filed by tbe administrator of tbe estate .of Mary Smith, a claim of Sallie Smith, a creditor, was placed and assigned a rank by priorty of mortgage superior to the mortgage ■of Newell who opposed tlie tableau on that account. The opposition was sustained aud Mrs. Smith has appealed.

The facts seem to be that the mortgage of Sallie Smith stood ■originally first in rank on the books of the mortgage office of that parish; that she-waived and postponed her mortgage, in favor of Newell so as to let his mortgage take precedence, and that that operation took place in this wise: Newell, a merchant, made advances of supplies to Mary Smith, and Alexander Smith, her agent, to enable her to make a crop in the year 1867. Newell at the end of the year received nothing in payment for his advances, accepted a note made payable first November, 1868, secured by what he was informed was a first mortgage on his debtor’s plantation. He advanced supplies again for the year 1868, taking another mortgage in February of that year, to secure himself. Finding afterwards that Mrs. Sallie Smith had a mortgage on the same property of prior rank to his mortgages, he threatened Mary Smith and Alexander Smith, her agent, and the husband of Sallie Smith, that unless he was given the first mortgage he would institute proceedings against Mary Smith for obtaining goods under false pretences. Accordingly Sallie Smith executed an act by by which lier.i mortgage was postponed to that of Newell. Sallie Smith states under oath as follows: “I did not execute and sign the act of relinquishment of first mortgage in favor of Henry Newell, of my own free will and accord. My husband made me do it. I refused to do so but my husband said I must do it. My husband told me that if I did not sign it, Mr. Newell would institute a criminal prosecution against Mrs. Mary Smith. I derived no benefit from the supplies received from Newell, was not here at the time, but at Jackson. Mrs. Mary Smith was my husband’s mother.”

Gross-examined.- — “My husband threatened me when Dupree and Mr. McGrath came out for me to sign; no one present at the time ho threatened me, but I told his niece and his mother. My husband told me if I didn’t sign I should not stay on the place. Do not remember what else he told me. I knew at the time that Newell had furnished provisions to Mrs. Mary Smith. My husband lived at Mrs. Smith’s at the time the mortgage was given to Mr. Newell, and at the time of the relinquishment I was also there. We came there in December, 1867.”

If fraud and dishonesty were practiced upon Newell, he has utterly failed to show that this married woman had any participation whatever in it. There is nothing whatever to contradict her statements in regard to the duress under which she was placed, and the compulsion under which she signed the act giving precedence to Newell’s mortgage. McGrath, the notary before whom the relinquishment was signed, testified that the act was read to all the parties and that all seemed to know what he came -for, and adds that if there were any threats it was not in his presence.’’ The fact of no one being present, when the threat was made, as stated by the wife, that she should not stay on the place if she refused to sign the act, it is urged, renders her testimony weak and shadowy. We do not so regard it. Threats of that kind are not likely to be made in public, for the purposes for which they are made would thereby he more likely to he defeated. Certainly no consideration was received by Sallie Smith for postponing-her rights on Mary Smith’s property to those of Newell. Her mortgage-was of record prior to the time of the execution of those in favor of Newell. He therefore, on legal contemplation, had notice of its. existence. It was, however, no impediment to his exercising his privilege upon the crop of 1867, which ho complains was run off and his lien thereby lost. His lack of diligence and losses resulting therefrom should not he compensated at the expense of the party with whom he is contesting when he fails to show that that party contributed in any manner to the injuries he complains of. Iu requiring the wife’s mortgage to he postponed in his favor he appears to have been, willing to inflict' wrong upon another in order to repair wrongs done upon himself. We are of the opinion that the act of relinquishment executed, as the testimony shows, under compulsion and against the will of the party executing, is null and void.

It is therefore ordered, adjudged and decreed that the judgment appealed from he annulled, avoided and reversed. It is ordered, further, that the opposition of Newell he overruled and dismissed; that the mortgage debt of Sallie Smith against the succession he recognized as entitled to priority of mortgage on the property mortgaged ; and that the administrator’s tableau be homologated, the costs, to he paid by the succession.


author: Ludeling, C. J.

text:
    No. 3134.
    Dennis Lynch, etc. v. Heirs of Hugh Lynch.
    A donation inter vivos of the usufruct of an immovable must he in writing. O. 0.1523. Parol* evidence is, therefore, inadmissible to establish a verbal donation to the usufruct of a. lot of ground.
    To constitute a valid donation of a usufruct, the donor must he capable of acquiring the property at the time the donation takes effect. Therefore, a donation of a usufruct made in favor of a slave is void and of no effect.
    APPEAL from the Ninth Judicial District, parish of Rapides.

      W. B. Hyman, attorney at law, judge acl hoc, in place of Osborne, J., recused.

      Byan & White, for plaintiff and appellant. T. 0. Hanning,. for defendants and appellants.
    This case was tried.by a jury in the court Deiow.
   Ludeling, C. J.

The plaintiff alleged that he was formerly the slave of Hugh Lynch, who died in Rapides parish; that, in consideration of long and faithful service to him, said Lynch placed petitioner in possession of a certain lot of ground in the town of Alexandria, and gave him the usufruct of the lot and buildings thereon during petitioner’s life, and that said Lynch bequeathed the usufruct of the lot and buildings to him by his last will. He further alleges that the heirs of Hugh Lynch had advertised the lot and buildings aforesaid for sale as a.part oí the property of the succession of Hugh Lynch, and he obtained an injunction to prevent the sale. The case was tried by a jury, who rendered a verdict in favor of the plaintiff, and the defendants have appealed.

On the trial, the plaintiff offered several witnesses to prove that the usufruct of the square of ground and house mentioned in the petition had been verbally given to him. The defendants objected to this testimony, on the grounds that the donation of the usufruct of immovable property could only be made in writing, and that a verbal donation could not be legally established. The objection was overruled and the testimony was received, and the defendants reserved a bill of exceptions.

The ruling was erroneous. Article (4G2) C. C. declares: “Incorporeal things, consisting only in a right, are not of themselves strictly susceptible of the quality of movable or immovable, nevertheless they are placed in one or the other of these classes, according to the object to which they relate, and the rules hereinafter established.’’ Article (463) says: “ The following are considered as immovable, from the objects to which they apply: The usufruct and use of immovable things; a servitude established on real estate,” etc. And article (1523) declares: “An act shall be passed before a notary public and two witnesses of every donation inter vivos of immovable property or incorporeal things, such as rents, fights, credits or actions, under the penalty of nullity.”

Therefore, the objection should have been sustained and the testimony excluded. And as the plaintiff offered no other evidence to sustain his pretensions, there must be judgment against him on this ground, if there were no other. But the record shows that the plaintiff had not the capacity to acquire the property in question, either at the time it is alleged the verbal donation was made or when Hugh Lynch died, and that his pretensions are without the slightest foundation in law.

It is therefore ordered and adjudged that the judgment of the lower court be reversed, that the verdict of the jury be set aside, and that there be judgment in favor of the defendants dissolving the injunction, with one hundred dollars damages and costs of both courts.


author: LUdeling, C. J.

text:
    No. 3154.
    Catherine M. Berry, Wife, etc. v. Thomas D. Marshall.

      A. mortgage is not prescribed so long as the primary obligation is in force, notwithstanding it lias not been reinscribed witliin ten years.
    A. private agreement between the maker of a note in favor of the wife of another and her husband to the eifecfc that her husband, as the agent of his wife, was authorized to receive payment of the note, is inadmissible in evidence on the trial of a suit to enforce payment of the note.
    hfor is the evidence of a witness that he paid one thousand dollars, by direction of the maker of the note, to the husband, as the agent of liis wife, admissible on the trial of a suit by the wife to recover the amount of the note as her separate property, because, if admitted, it would not prove that the husband was authorized to receive the money for his wife, and therefore, if the payment to the husband were proved, it would, not prove that it inured to the benefit of the wife who was seeking to enforce the payment of her . separate claim.
    APPEAL from the Seventh Judicial District, parish of Avoyelles.

      Miller, J. T. Overton, for plaintiff and appellee.

      Wadüill & Barbin, for defendant and appellant.
   LUdeling, C. J.

This is a suit against the maker on a note secured by a mortgage. The defense is payment and the plea that the mortgage had prescribed by non-reinseription within ten years.

As the suit is against the defendant who is in possession of the mortgaged premises, we do not perceive what difference it would make to defendant if the mortgage bad perempted. It can not be prescribed so long as tbe primary obligation exists. But tbe mortgage had not perempted, as ten years bad not run since its registry.

On tbe trial, tbe defendant offered a j>rivate agreement between himself and bis father, tbe husband of the plaintiff, for tbe purpose of proving tbe agency of tbe plaintiff’s husband and authority to receive payment on tbe note, which was objected to and excluded on tbe ground that it was res inter alios aeta and totally irrelevant. Tbe ruling was correct.

Defendant offered tbe testimony of J. U. Payne, taken by commission, to prove that tbe firm of Payne, Huntington & Co. bad paid Roger B. Marshall one thousand dollars, as the agent of his wife, by sanction of defendant, which was objected to as irrelevant. Tbe objection was sustained, and tbe testimony was rejected. We think tbe judge a qtio was right in saying tbe evidence was irrelevant, for, admitting tbe firm aforesaid did pay tbe sum stated to t))e husband, supposing him to be tbe agent of bis wife and authorized to receive tbe money, that does not prove the fact in question — the authority of tbe husband to receive the money for his wife. She was separated in property from her husband and had the administration of her own affairs, and the money paid to her husband is not shown to have inured to her benefit; in fact, the contrary is sworn to by the wife, and the note was not in the possession of the husband. Pinckney v. Mulhollon, 6 R. 40; 10 M. 310; 4 An. 526, Pew v. Labythe et al.

Another bill of exception was taken to the ruling of the judge a quo, excluding’ the testimony of William Taliaferro and Thomas D. Marshall, offered to prove that plaintiff’s husband acted as her agent in paying taxes and other debts and in collecting notes and other' debts due by her. We fail to discover tho value of this evidence, if it wore in the record. Because A has authority to collect a certain note or a dozen notes due B, it does not follow that ho has a right to collect any other notes, not in Ms possession or under his control. An authority derived by implication can not be extended. The possession of the note is the authority of the agent to collect it, if he act under an implied and not an express mandate. There is no error in tho judgment.

It is therefore ordered that the judgment of the court a qua be be affirmed, with costs of appeal.


author: Lttdeling, C. J.

text:
    No. 3172.
    C. H. Slocomb v. John R. Williams—Third Opposition of W. E. Leverich, Curator of E. J. Walsh.
    A third party can not "be permitted to claim the proceeds of tlie sale of property and at the same time and in the same action attack tho legality and regularity of the sale itself. Questions of fraud and simulation by which a judgment has been obtained can not be examined by the Supreme Court if only made for tho first time in the petition for an apjical. Constitution, article 74.
    A third opposition, founded on a judgment, can not be maintained if more than ten years liavo elapsed since its rendition and it has not been revived. In such a case tho plea of prescription will be maintained, and tho third opposition will be dismissed.
    APPEAL from the Ninth Judicial District, iiarish of Rapides.

      Orshorn, J. T. 0. Manning, for plaintiff and appellee.

      IT. S. Losee, for third opponents, appellants.
   Lttdeling, C. J.

C. II. Slocomb, having obtained a judgment on mortgage notes against John R. Williams with recognition of his mortgage, caused the lands mortgaged to be seized and advertised for sale. On the second of October, 1869, Leverich, curator, filed a third opposition, claiming to be entitled to be paid by preference out of tho proceeds of the sale. On the same day the property was sold, and George Jonas, being the last and highest bidder, claimed the right to retain in Ms hands the amount of two special mortgages which were older than the mortgage under which the sale was made, offered to pay the remainder of the price in cash to the sheriff, and demanded a. title. The sheriff refused. The purchaser took a rule on him to compel him to make the title. Alter hearing in chambers, the judge ordered the sheriff to make a title to the purchaser.

Some days after this the third opponent took a devolutive appeal from this order on the rule against the sheriff. In his petition of’ appeal, the third opponent alleges numerous grounds for annulling the order, but as these issues were not made before the court a qua, and this court has not original jurisdiction, we can not notice them, even if they were not inconsistent with the allegations contained in his petition of opposition. One can not be permitted to claim the proceeds of the sale and at the same time attack the legality or regularity of the sale.

The Louisiana State Bank also filed a petition, wherein it alleges that the property was sold fot much loss than its value, and that the parties concerned in the sale colluded together to defraud said bank and other creditors; that the order or judgment was ex parte, erroneous, null and void, and the sale was illegal, “ simulated, fraudulent, null and void,” and therefore it prays for an appeal.

How these questions can be passed upon by this court, when made for the first time in a petition for an appeal, it is difficult to perceive. The motion to dismiss the appeal of this party, on the ground that the appeal bond is not signed by any surety, must prevail. C. P.

After these irregular proceedings on the part of the bank and Leverich, the third opposition filed by Leverich, curator, was fixed and called for trial. The third opponent objected and took a bill of exceptions to the ruling of the court ordering the trial to be proceeded with, on the ground that an appeal had been taken from the order rendered on the rule against the sheriff. It can hardly be necessary to say that the objection was frivolous.

On the merits of the opposition, it will be necessary to notice only one of the four grounds set up against the pretensions of the opponent, and that is that the judgment itself is extinct. _ By Leverich’s own averment it appears the judgment was recorded on the thirty-first of October, 1855, and it has never been revived. The plea of prescription of ten years must be sustained, and the opposition dismissed.

It is therefore ordered that the judgment of the lower court be affirmed, with costs of appeal.


author: Taíiarerró, J. Howe, J.

text:
    No. 1870.
    P. Poutz v. Theard Brothers.

      A. merchant, who purchased a lot of cotton in Hew Orleans, classed as low middling ky his own agent, who afterward shipped it to Havre, Hrance, and sold it as low middling, is not entitled to a reclamation from the vendor in damages for false packing, ky which the inside of the kales is inferior in quality to that of the outside.
    APPEAL from the Fifth District Court, parish of Orleans.

      Leaumont, J. A. (& M. Voorhies, for plaintiff and appellee.

      J. Ad. Rosier and R. M.' McOaleb, for defendants and appellants.
   Taíiarerró, J.

The plaintiff sues defendants for damages sus•tained in a purchase of cotton which he alleges was fraudulently packed, the cotton on the outside of the bales being of good quality, while the interior was composed of trashy, dirty, rotten and inferior -cotton. Tlie answer is a general denial. The plaintiff had judgment against the defendants in sólido for $1072, with legal interest from .judicial demand. The defendants appealed.'

This ease is very similar in its character to that of Poutz v. Jones, recently decided by this court. In this case, like that, the cotton was shipped to Havre in France, and the testimony of witnesses residing there was taken under commission. The defendants have in the record evidence to show that the cotton alleged to have been fraudulently packed was composed of “sample” cotton, and that it was so represented to the broker who bought for the plaintiff. One of the defendants is positive and emphatic in his testimony that these samples in packing were not placed to show a better quality outside than in the inside; that all the cotton in these bales was sound cotton; that there was no false packing and no unsound cotton put in; that this is the first reclamation made against defendants’ pickery for false packing, etc. The testimony of the foreman of the pickery is much to the same effect. Some other testimony relating to the mode of putting up ■sample cotton, difference in price between sample and original cotton, is added on the part of the defendant, but which has but little bearing on the point at issue.

Now, on the other hand, two of the Havre merchants to whom the •cotton was shipped, swear directly the reverse of what the defendants ¡and their foreman did. One of these, merchants says: “ Of the lot of forty bales marked II B, thirty were opened and their interior found to be composed of rotten cotton, of bad quality, full of earth, and of entirely inferior quality to the upper and lower layers, or the rest of the cotton composing the bale.” The other merchant says: “Of forty bales marked H B, thirty bales, on being examined, were found on the •outside to conform to the cotton invoiced, but the interior of these bales was mixed cotton, dirty and of a very inferior quality.” These merchants, it is shown, were interested in the matter, the shipment being made on joint account of the merchants and the plaintiff.

Three sworn cotton brokers of Havre testified in the case. These men had no interest whatever in the controversy. One of these brokers says: “On opening the thirty bales, we found the interior of •each to bo composed of bad cotton, trash, store sweepings, etc. The four sides and the ends of the bales contained one layer of cotton of fine quality, and the bad cotton, trash, etc., inside depreciated the value of the bales in the estimation of myself and colleagues fifty centimes or ten cents gold per kilogram, or five cents gold per French pound.” Another of the brokers testifies to the same effect. The third is not explicit. He says he recollects having examined several lots of cotton shipped by the Expounder, some of which were very .bad, but after the lapse of time could not recollect the particulars of the examination. The plaintiff’s own evidence corroborates that of the merchants and the brokers. We tbink the plaintiff has fully made out his loss in the transaction, and that'the judgment of the lower court does justice between the parties.

It is therefore ordered, adjudged and decreed that the judgment of 1 the district court be affirmed with costs in both courts.-

On Rehearing.

Howe, J.

The evidence in this case shows that the plaintiff bought bales of “samples” of cotton from defendants in New Orleans at tbe price of “samples;” that tbe plaintiff’s agent classed them as “low middling;” that the plaintiff shipped them to Havre invoiced as “low middling,” sold them there as “low middling,” was forced to pay a reclamation, but after paying it still realized in Havre the price of “samples.”

It was tlie plaintiff’s agent in New Orleans and not tbe defendants, wbo classed the property as “low middling’;” it was the plaintiff and not the defendants who invoiced and shipped it as “low middling;” it was the plaintiff and not the defendants who sold it in Havre as “ low middling.”

The manner, therefore, in which the bales were put up, whatever may be thought of it, inflicted no legal damage on the plaintiff. Ho-bought “samples” here and realized the price of “samples” in Havre. The failure of his plan to sell the cofctoh as “low middling” can not be attributed to the defendants.

It is therefore ordered that pur judgment heretofore rendered be set. aside. It is further ordered that tbe judgment appealed from be avoided and reversed, and that there be judgment for defendants with costs in both courts.


author: Howell, J.

text:
    No. 3247.
    J. A. Payne v. E. Spiller, Administrator.—Warren & Crawford, Intervenors.
    Privileges in favor of tbe furnisher of supplies to a plantation spring only from the law that-confers them. They can not be the subject of contract. An acknowledgment of the administrator that the creditor has a privilege on the crop made hy the estate which lie is administering can not, therefore, he recognized as conferring alien on the cotton made on the place, unless it be shown that lie, tlie creditor, has furnished the supplies to-make it,
    APPEAL from the District Court, parish of Livingston.

      Bilis, J. K. J. Kllis, for plaintiff and appellee.

      T. O. W. Kills, for defendant and appellant.
    TP. B. Kemp, for intervenors and appellants.
   Howell, J.

Plaintiff sues for the balance of an account for supplies and cash advanced to make tbe crop of 1867, and claims a privilege on. the proceeds thereof.

To this demand the administrator pleads a general denial, and claim s in reconvention twenty-one bales, or the proceeds, which were inventoried in the warehouse of plaintiff as the property of the succession, and were sold by plaintiff and not accounted for.

Warren & Crawford, judgment creditors of the succession, intervened to resist plaintiff’s demand, on the ground that the administrator could not bind the succession, but is personally liable. Judgment was given in favor of plaintiff, and the other two parties appealed.

The record shows that Levi Spiller, before his death, in the early part of 1867, contracted with plaintiff, a merchant in Baton Rouge, for supplies necessary in making the crop of that year; that after his death the arrangement was continued by the administrator; that prior to and soon after Levi Spiller’s death, twenty-one bales of his crop of 1866 came into the possession of plaintiff, ffve thereof having been placed there by himself and sixteen by the widow alter his death; the sixteen were shipped by plaintiff to New Orleans, and the net proceeds, with those of one bale of the crop of 1867, credited on the account in suit. The five wore seized in the suit of another party, and, by consent, the plaintiff sold them and now holds the proceeds. He claims that the widow and administrator authorized him to sell the sixteen bales of the crop of 1866 and place the proceeds to the credit of the account against the succession, but admits that at the time he received them the succession owed him nothing.

Having contracted, as ho testified, with the deceased to advance on and for the crop of 1867, it was not in the power of the widow and administrator to so change the agreement and dispose of the property as to extend the privilege accorded by law to the injury of other creditors of the succession, which is admitted to be insolvent. A privilege of this kind can not be created by contract. It springs only from the law, and must be enforced under the law. The cotton on which plaintiff has a privilege has been sold in the succession, and he must be referred to the account of the administrator to obtain that privilege, and must be held to account for the proceeds of the cotton sold by him upon which he has no privilege. To give him credit for the whole of those proceeds, as set out in his own account, might prejudice other concurrent or superior privileges, as suggested by the administrator.

Under the pleadings and the evidence, the proper judgment will be one in favor of plaintiff for the whole of his account, so far as legal, less the proceeds of one bale of the crop of 1867, with privilege of furnisher of supplies on the proceeds of the crop of 1867, and judgment pi favor of the succession ordering him to account for the proceeds of the cottou of 1866, which seem to amount to more than those of the crop of 1867. According to his testimony, he has charged, by contract, twelve per cent, on the whole amount of his account, and, in addition, he has charged commission, on his account. This is illegal, and he must, under the law, forfeit all interest.

It is therefore ordered that the judgment appealed from he reversed, ' and that plaintiff have judgment against Elisha Spiller, administrator of the succession of Levi Spiller, deceased, for seventeen hundred and nineteen dollars and eighty cents ($1719 80), with the privilege of a furnisher of supplies on the proceeds of the crop of 1867, and costs in the lower court, to he paid in due course of administration. It is further ordered that on the reconventional demand of defendant, there he judgment ordering plaintiff to pay to defendant any surplus in his hands of the proceeds of the twenty-one hales of cotton of the crop of 1866 over those of the crop of 1867, coming to him hy virtue of the privilege accorded to him herein, without prejudice to the rights of others thereon. It is further ordered that the intervention of Warren & Crawford he dismissed, at their cost; plaintiff and intervenors to pay cost of appeal.


text:
    No. 3092.
    Eliza Corrie, Testamentary Executrix, v. Estate of James Billiu.

      A promissory note that has not boon properly stamped with the required amount of internal revenue stamps can not be admitted in evidence on the trial of the case, nor can the judge who is presiding authorize the plaintiff to stamp it in his presence. In such a case the note must be stamped by the revenue collector of the district, and the fine must be either paid or remitted by the collector before the note can bo received in evidence. 14 U. S. Statutes at Largo, page 1.
    APPEAL from the Third District Court, parish of Lafourche.
    Train, J. Bush <& Good, for plaintiff and apoellee.

      JB. W. Blaloe. for defendant and appellant.
   Howell, J.

This is an action upon two promissory notes, to which ■the defense is that one of the notes is prescribed and the other is dependent on a condition reprobated by law and not yet happened. A record from the United State Provisional Court for Louisiana was ■offered in evidence to show interruption of prescription, and was ■objected to on the ground that said court was not known to the law. The objection was properly overruled. See the case of Burke v. Tregre, 22 An. 629.

Objection was made to the introduction of the second note, because it was not stamped according to law,; and to the ruling of the judge a quo, permitting plaintiff to affix and cancel the stamp before the court, a bill of exceptions was reserved.

Plaintiff relies on the act of Congress, thirtieth June, 1864, see. 163 {13 Statutes at Large, p. 295), to sustain the ruling of the judge. This section was repealed by the act of July 13, 1866 (14 Statutes at Large, pages 143-4, section 9), which provides that no written instrument requiring a stamp shall be used as evidence in any court until stamped as prescribed by law, that is, by the collector of the district upon payment of the penalty or remission by said collector. The objection, therefore, should have been sustained and the note excluded. Without it, there is nothing to' authorize judgment for its amount.

It is therefore ordered that so much of the judgment appealed from as relates to the note for $360, dated March 21, 1864, and due at one year, be reversed, and that as.to this note there be judgment against plaintiff as of nonsuit, and that as thus amended the judgment be affirmed, with costs in the lower court; plaintiff to pay costs of appeal.

liehearing refused.


author: Wyly, J.

text:
    No. 3137.
    T. S. Marionneaux et als. v. Police Jury of the Parish of Iberville. F. N. Marionneaux v. Police Jury of the Parish of Iberville. F. L. Marionneaux v. Police Jury of the Parish of Iberville. Thomas L. Billings v. Police Jury of the Parish of Iberville. F. Silvert Marionneaux v. Police Jury of the Parish of Iberville. (Consolidated.)
    If express power is given by law to tbe police juries to raise money by taxation for building roads and bridges, no other mode of raising the money for that purpose can be exercised by them. Therefore, bonds issued by the police jury for the purpose of raising funds to build a bridge or road are not binding on the parish, because the jury is not authorized by law to issue bonds for such purpose.
    APPEAL from the Fifth District Court, parish of Iberville.

      Posey, J. Parróte & Pope, for plaintiffs and appellees.

      Zenon Zabauve, J. H. Pills and A. & P. P. Talbot, for defendant and appellant.
   Wyly, J.

The police jury of the parish of Iberville, in these cases, is sued on its notes giv en in renewal of certain bonds issued by it on tbe twenty-sixth day of July, 1859, for the purpose of raising funds to construct certain roads and bridges in the parish of Iberville.

The defense is that with the proceeds of said bonds the police jury purchased slaves to construct said works, and that it was without authority to issue its bonds for said purpose or for any purpose. The court gave judgment for the plaintiffs in these cases, and the police jury has appealed.

We think the judgment erroneous. The powers of police juries are limited, and they can not bind tbe parishes further than they are autVorized to do so by express law. Tbe power to borrow money or * to issue bonds as a means of raising it, has not been conferred on police juries. They have the power to raise money by taxation for the purpose of building roads and bridges, and when the means for the exercise of the granted power are given' in precise terms, no other means for its exercise or for raising funds can be implied. The case of Etnile L. Breaux v. The Parish, of Iberville, lately decided, presented, the same question, and we held that the parish of Iberville was not bound on the notes or bonds issued by the police jury for the purpose of raising funds to build roads and bridges. We see no reason to-depart from our ruling in that case.

It is therefore ordered that the judgment herein be reversed and annulled, and that there be judgment for the defendant, the plaintiffs-paying costs of both courts.


text:
    No. 3140.
    Charles W. C. Walker v. Andrew J. Cruikshank, Executor.
    A proposition of tiie executor to pay a note against tiie succession lie represents "before it is proscribed, if tiie holder will throw off the interest, is sufficient to interrupt the current of prescription.
    APPEAL from the Ninth District Court, parish of Rapides.

      Orsborn, J. It. A. Hunter, for plaintiff and appellant.

      My an <& White, for defendant and appellee;
   Taliaferro, J.

The plaintiff sues the executor of Olcott on a promissory note for $646 82, dated eighteenth of January, 1862, payable one day after date, with eight per cent, interest from date, and made payable to the plaintiff or order.

The defendant’s answer contains a general denial, and he pleads the-prescription of five years.

There is a motion to dismiss this appeal on two grounds: First, that the appeal was made returnable to the Supreme Court at Natchitoches at its August term, 1870, instead of New Orleans, as the law directs; second, that the petition of appeal was served upon the defendant in the parish of Grant, where he resides, by a deputy sheriff of the parish of Rapides.

There is no force in the first ground taken. As to the other, there is no evidence in the record showing the residence of the defendant to be in the parish of Grant. The motion to dismiss is overruled.

On ti-ie Merits.

• The question is as to the plea of prescription. Yarborough, a witness on the part of the plaintiff, testifies that in the spring of 1866 he called upon Cruikshank for payment of the note and that the latter replied: “If .you will knock off the interest, I will give you a sight draft for the amount.” The witness not being authorized to throw off the interest, declined the proposition. At the time this interview took place prescription had not accrued. The proposition of the defendant to pay the principal of the note surely was a recognition that the sue-cession of Olcott owed it, and consequently an interruption of prescription occurred. A promise to pay the debt was not necessary to interrupt the prescription.

The testimony of the executor is to the effect that he did not promise to pay the note; but his statements are equivocal and evasive, and wanting in that directness and clearness which mark the evidence given by Yarborough. His evidence clearly preponderates.

It is therefore ordered, adjudged and decreed that the judgment of the district court be annulled, avoided and reversed. It is further ordered that the plaintiff recover from the defendant, in his representative capacity of executor of J. H. Olcott, deceased, the sum of $646 82, with eight per cent, interest per annum from the eighteenth of January, 1862, until paid, and all costs of suit.

Rehearing refused.


text:
    No. 3144.
    Mrs. L. Laforet, Widow Beatty, v. Emile L. Weber.
    The failure of the sheriff to return a writ of fieri facias within the time fixed by law is presumptive proof of his liability for the debt, but this presumption may be overthrown by evidence going to show that he was authorized by the attorney of the seizing creditor to retain the writ in his hands.
    In case of a conflict of testimony between two witnesses on opposite sides of the case, the one testifying directly the opposite of the other about a fact, the opinion of the judge a quo, who heard both witnesses, is entitled to great weight, and his decision as to the preponderance of the testimony will he followed by the Supreme Court.
    APPEAL from the Seventb District Court, parish of West Feliciana.

      Miller, J. Thomas Butler and Collins & Bealce, for plaintiff and appellant.

      Wielcliffe & Fisher, for defendant and appellee.
   Ludeling, C. J.

This action was brought to make the sheriff, Edward Weber, and his sureties liable for not having returned the fieri facias within the delay required by law.

The failure of the sheriff to return the writ within the time fixed by law is prima facie proof of his liability for the debt, but in this case the sheriff alleged, and offered evidence to establish, a legal excuse— that he aeted under the advice and direction of the' attorney of the party in whose favor the writ was issued. The sheriff and the attorney alone have testified in this ease. The former states positively that the attorney authorized and instructed him to retain the writ in his hands, while the attorney denies it as positively.

The question to be decided being one of fact, the opinion of the judge a quo, before whom the witnesses testified, is entitled to great weight. 6 La. 31; 13 La. 412; 3 An. 163 ; 21 An. 115, 139, 169,.782.

It is therefore ordered that the judgment of the district court be affirmed, with costs of appeal.


author: Howe, J.

text:
    No. 3228.
    Lewis, Nauson & Co. v. Homer, Rex & Tracy.
    If the answers of the garnishee to interrogatories are sufficiently clear and comprehensive to • inform the plaintiff of the facts of the case, they will not be overruled in the appellate court on the suggestion of counsel that they are evasive, especially if no motion has been made in the court a qua to have them taken as confessed.
    The exception to the capacity of the plaintiff must be pleaded in Ivniine lites. If the defendant goes to trial on the general issue, it is too late to urge the exception of the capacity of the plaintiff or of the intervenor to stand in judgment.
    APPEAL from the Thirteenth District Court, parish of Tensas.

      Hough, J. Farrar & Beeves, for plaintiffs and appellants.

      Julius Aroni, for defendants and appellees.
   Howe, J.

On the sixteenth January, 1867, Charles De Greek & Cocommenoed an action against Homer, Rex & Tracy in the district court of Tensas parish, and attached certain assets in the hands of Julius Aroni and J. W.' Collier. Property was also attached in possession of other parties. Aroni & Collier, then the attorneys of Homer’ Rex & Tracy, had in their hands property belonging to their clients,, and in order to release the property attached in the possession of the other parties, a release bond was furnished, with Julius Aroni as surety, with the agreement that the assets in the hands of Aroni & Collier' should remain in his possession till the final decision of the case, to-indemnify him as such surety in case of liability.

On the first of February, 1867, Lewis, Nauson & Co., the plaintiffs-at bar, commenced this suit by attachment against the same defendants, and made Aroni & Collier garnishees. Julius Aroni answered,, making a full statement of the assets in his. hands belonging to defendants, and the conditions under which he held them. J. W. Collier adopted the -answers of Aroni. Chester H. Krum, as assignee in bankruptcy of Rex and Tracy, intervened to claim their share of the-property attached.

The court below gave judgment in favor of plaintiff against Homer-for one-third of the debt, and' against Aroni & Collier for one-third of' the cash admitted to be in their hands subject to the settlement of the-suit of De Greek, firstly above mentioned, and in favor of Krum,. assignee, for the balance of the.rcash in the garnishees’ hands, with the-same condition.

The plaintiffs appealed, and state in this court that they make'but two points: First, that they are entitled to judgment for their whole claim against Aroni & Collier because their answers were palpably evasive; second, that the judgment in favor of Krum was erroneous.

First — We see nothing evasive in the answers of the garnishees. They contain a full, plain, perspicuous statement of the property and claims of the defendants in the hands of the garnishees. The question propounded was: “Are you indebted in any manner to the firm. of Homer, Rex & Tracy, or have you any property, assets or claims in your hands or under your control belonging to the said firm? ” It is true that in strictness of grammar, the clause of this question referring to indebtedness is not clearly responded to; but it is quite evident that the plaintiffs and their counsel were fully informed of the facts of the case by the answers. They made no allegation of indebtedness; made no motion to take the interrogatory as confessed, and on the trial offered the answers as a part of their own evidence. It was oyer the assets revealed by these answers that the contest was waged, and the point now presented seems an after thought.

Second — In answer to the intervention of Krum, the plaintiffs pleaded first a general denial, and then an exception to his capacity as assignee. They then went to trial on the merits, without requiring a decision on this dilatory exception, and thus waived it. 11 An. 633; 14 An. 520. Moreover, the evidence introduced, without any objection, makes it certain that Réx and Tracy were bankrupts before the case was tried, and reasonably certain that Krum was their assignee. The second point, then, that Krum’s capacity was not established, and that the judgment as to him was erroneous, is not well taken.

Judgment affirmed.

Rehearing refused.


author: Taxiaiveh.ro, J. Ludeling, C. J. Wyly, J.

text:
    No. 3166.
    T. H. J. Richardson v. R. A. Hunter.
    A judgment rendered against a party wliose domicile and residence is not in the parish where the court is held, is null and void, because the court is without jurisdiction rations personce. In such a case consent of the defendant can not give jurisdiction. Act of 1861, amending Article 162 C. P.
    APPEAL from the Ninth Judicial District, parish of Rapides..

      Orsborn, J. Wm. A. Seay, for plaintiff and appellee.

      B. J. Bowman, for defendant and appellant.
    Reporter. — -This case was first before the Supreme Court at Natchitoches in August, 1869. At that term of the court a rehearing was-granted and the cause was remanded, with instruction to the court a qua to try the question of the domicile of the plaintiff, who is seeking to annul a judgment against him on the ground that he was not a resident of the parish where the suit was brought at the time it was. rendered. On the new trial in the court below the domicile of the plaintiff in the action of nullity was found to be in a different parish from that where the court was held and that where the judgment was given. An appeal was again taken by the defendant and the judgment of the court a qua annulling the judgment was again affirmed.
   Taxiaiveh.ro, J.

This is an action to annul a judgment rendered against the plaintiff in favor of the defendant. The judgment sought, to be annulled was rendered by the judge of the Ninth District, sitting in and for the parish of Rapides, at the March term, 1866. In that suit the defendant, T. H. J. Richardson, the plaintiff in this action to annul, was sued as a resident of the parigh of Rapides, and citation was served upon him in the parish oí Sabine by a deputy sheriff of the parish of Rapides. An exception was filed and sustained. Before the adjournment of the court for the term .an agreement was made between-the attorney of Hunter and Wilson Richardson, holding himself out as the agent and attorney in fact of T. H. J. Richardson, whereby it was settled that judgment should be rendered against T. H. J. Richardson for $3251 72, with stay of execution respectively on one-third of the debt one year, on one-third two years and on the other third three years. The original indebtedness of Richardson to Hunter, it seems, was by note for $4898 54, due December 23, 1861, and upon an open account for $543 02, running from May, 1861, to June, 1862. This indebtedness, by the compromise and consent judgment,- was reduced to $3251 72, and to become exigible as already stated in one, two and three years. The judgment thus rendered on the twelfth of March, 1866, the plaintiff in the present action filed his suit to annul on the fourth September, 1867. The defense is that the plaintiff’s remedy was by appeal from the judgment complained of, and not having availed himself of that right within the year this action of nullity is prescribed and the matter becomes res judicata. It is further answered that the judgment was rendered by the consent and at the instance of the authorized agent and attorney in fact of the plaintiff, and that subsequently to the rendition of the judgment the plaintiff has ratified it. On the trial of this action to annul, the lower court gave judgment in favor of the defendant and the plaintiff prosecutes this appeal.

It is not clearly established that W. L. Richardson was the agent and attorney in fact of T. H. J. Richardson. It is shown that in some other judicial proceeding he acted in that capacity, but it is clear that he was without special power to authorize him to represent and bind the plaintiff in the matter of the judgment of twelfth March, 1866. Evidence is introduced to show a ratification of that judgment, but the evidence we can hardly deem conclusive. The plaintiff called on J udge Manning, the attorney of the defendant, Hunter, not long after the term of court at which the judgment was rendered, and thanked him for having treated him with such consideration, and said he was greatly indebted to him lor his kindness, speaking in reference to the favorable terms extended to him.

The defendant testified that a letter was shown to him by the plaintiff’s attorney, the purport of which was a proposition by the plaintiff to the defendant to accept a transfer of the yearly lease of his land until the judgment should be paid. This proposition, it seems, was declined on the ground that it was too indefinite, as no specific sum was named for the annual payments. The proposition expressed in this letter we should rather regard, under the circumstances, as a kind of conditional ratification, which is no ratification at all. The person who assumed to act as the attorney in fact of the plaintiff testified as a witness, that when, a short time after the arrangement was made and the judgment rendered, he informed T. H. J. Richardson of what had been done, he became very angry and requested him to consult an attorney as to whether the judgment could not be avoided. We are not prepared to determine that a full and decided ratification, had there been one, could give validity to a judgment so rendered. The plaintiff and defendant resided and had their domiciles in different parishes. The eoiirt was without jurisdiction ratione personal, and the .parties could not, by consent, confer j urisdiction. The defendant was not cited and judgment was rendered against him without his knowledge or consent. See act of 1861, amendatory of article 162 of the Code of Practice, and the case of The State v. Watkins, 21 An. 258.

It is therefore ordered, adjudged and decreed that the judgment of the district court be annulled, avoided and reversed. It is further ordered that there be judgment in favor of the defendant, declaring null and void the judgment rendered against him on the twelfth of March, 1866, in the suit numbered one hundred and forty-nine on the docket of the district court for the parish of Rapides. And it is further ordered that the defendant and appellee pay all costs in both courts.

On Application por Rehearing.

Ludeling, C. J.

The application for rehearing is granted, and the judgment of this court rendered on the twenty-third day of August is set aside j and, in the interests of justice, we are constrained to remand this case to the district court to try the question of the domicile of the plaintiff, T. H. J. Richardson.

On Second Application.

Wyly, J.

This is a suit to annul a judgment on the ground that the same was rendered without citation and without the knowledge or consent of T. H. J. Richardson, the defendant therein, by the Ninth District Court, parish of Rapides, which was without jurisdiction rationepersonal, the said Richardson being domiciled in the parish of Sabine.

The case was before this court at Natchitoches on the twenty-third day of August, 1869, and the judgment of the lotver court annulling the said judgment was affirmed; the case was subsequently remanded on the application for rehearing, to try the question of the domicile of' T. II. J. Richardson, the plaintiff in this suit and the defendant in the-judgment sought to be annulled.

At the second trial in the court below there was judgment for the plaintiff, and the defendant has appealed.

An examination of the evidence satisfies us that the domicile of' Richardson was in the parish of Sabine and the Ninth District Court,, parish of Rapides, was without jurisdiction ratione persones on the twelfth day of March, 1866, at the time the judgment sought to be-annulled was rendered against him.

Por the reasons assigned in the opinion of this court on the twenty-third day of August, 1869, it is ordered that the judgment of the court a qua, annulling the said j udgment, be affirmed, with costs


author: Wyly, J. Howell, J.

text:
    No. 3206.
    Louisa Lane v. C. Roselius, and J. C. Hughes, Sheriff.
    Tn an appeal taken from a judgment dissolving an injunction without damages, the surety-on the injunction bond having no interest in the appeal is not a necessary party thereto; • therefore, the appeal will not be dismissed because the security on the bond is not made a party.
    If the thing sold is allowed to romain in the possession of the vendor, the presumption is-that the sale is simulated; and, as against third parties, this presumption must be overcome by proof. Therefore, if the evidence shows, as in this case, that the vendor still retained possession of the plantation sold, and that the vendee was without the means at ■ the time of the sale to make the purchase, as set forth in the title, which was placed on record, and also that she had knowledge of the mortgages upon it at the time, the mortgage creditor may be allowed to seize and sell the property without resorting to a-. direct action to annul the sale.
    APPEAL from Ninth District Court, parish of Natchitoches.

      Lewis, J. C. Chaplin & Son, for plaintiff and appellant.

      Jach & Pearson- and N. 0. Myers, for defendants and appellees.
   Wyly, J.

The defendants and appellees move to dismiss this appeal because the surety ou the injunction bond has not been made-party to the appeal, the appeal having been granted on motion and the bond being given only in favor of the defendants.

It is not necessary to mention the surety on the injunction bond in the motion for appeal, nor to cite him; he is a party to the appeal, if taken either by the .plaintiff in injunction or by the defendant in injunction.

When the appeal is taken by the defendant, it must be considered as not only embracing the plaintiff bub also his sureties on the injunc- ■ tion bond, who by a fiction of law (act twenty-fifth March, 1831), are.considered as plaintiffs in injunction. 4 An. 514.

Where the appeal is taken on motion by the plaintiff, as in this ease; his sureties ou the injunction bond will be considered as parties appellant. 10 An. 347. The motion to dismiss is therefore overruled.

The plaintiff enjoined the defendants from selling a tract of land known as the “Kingsberry Lane” tract, in the parish of Natchitoches, on the ground that she is the owner of it, having.purchased the same by public act from Kingsberry Lane on eleventh May, 18C6. She alleges that she paid for said plantation $2000 cash, and gave her four notes, each for a like amount, maturing respectively at one, two, three and four years from date; and has been from the time of her said purchase to the present time in open and actual possession of the property, residing thereon.

The defendant, C. Roselius, denied generally the allegations of plaintiff, alleged that the plantation seized is really and in fact the property of Kingsberry Lane, his mortgage debtor, against whom he obtained-the order of seizure and sale enjoined by the plaintiff; that she is not and never was the owner of said property, that her ownership is only nominal, that the plantation actually belongs to Kingsberry Lane, who has continued the possession thereof, using the name of plaintiff, who is his concubine and former slave, for the purpose of fraudulently concealing his property from the pursuit of his creditors and from seizure and sale under his mortgage. He further alleged that the transfer to idaintiff was simulated, that Kingsberry Lane was at the time insolvent to the knowledge of the plaintiff, and that she knew of the existence of his mortgage. He prayed that the injunction be dissolved, that the title of the plaintiff be declared simulated, that the plantation be declared to belong to Kinsgberry Lane and subject to his mortgage, and for $1000 damages. The court dissolved the injunction without damages, decreed the sale simulated, and that the plantation' belongs to Kingsberry Lane, and as such subject to the seizure of the defendant. The plaintiff has appealed.

The evidence shows that the plaintiff and Kingsberry Lane both lived on the plantation before and after the sale, and that they still reside there; that the act of sale from the latter to the former was by notarial act, and it was duly recorded before the registry of the act of mortgage under which the defendants are proceeding. It is also shown that she leased out the land or part thereof in I860, also in 1867 and 1868.

The witness, Robbins, testifies he was present at the time the act of sale was passed from Kingsberry Lane to Louisa Lane. Ho saw $2000 in twenty dollar gold pieces paid to Kingsberry Lane by Louisa Lane, after having been counted by witness and another witness; the money was lying in the lap of Louisa Lane and she asked some one to count it, and he, witness, was then asked to help count it. He saw more than one note given at the time the act was passed, to the best of his knowledge. He was asked to witness the notes. Does not know how many notes were given, but they were given in part payment for the land.’

Where the thing sold remains in possession of the vendor, the presumption is that the sale is simulated, and as against third persons this presumption must be overcome by proof. C. C. 2456.

Where the vendor and vendee live on the premises sold, possession follows the recorded title. 3 N. S. 337; 19 L. 349.

The act of sale was in due form and recorded prior to the mortgage under which the defendant claims, and it is proved that part of the price was actually paid and notes executed for the balance. A price was paid, and, although it may be fraudulent, there was a real sale, which must be set aside by a direct action, before the property can be subjected to the writ of the defendant. 19 An. 53; 20 Ad. 41; 18 An. 732.

■ Entertaining this view of the case, it becomes unnecessary to pass on the bills of exceptions taken by the plain tiff. '

It is therefore ordered that the judgment of the court a qua be avoided and annulled, and it is ordered that the injunction herein be perpetuated and that the defendant pay all costs. .

On Rehearing

Howell, J.

A motion is made to dismiss this appeal, granted on motion in open court, upon the ground that the surety on the injunction bond has not been made a party to the appeal.

The judgment appealed from dissolved the injunction without damages, and made no reference to the surety on the bond. No one complains of the judgment in this respect, and hence the surety can in no way be affected by any judgment which can be rendered on this appeal. Having no interest in the appeal, he is not a necessary party, and the motion must fail.

Further examination of the record nas induced a change in otir estimate of the evidence in the cause. The defendant, C. Roselius, having a mortgage upon the land of Kingsberry Lane, in the parish of Natchitoches, obtained an order of seizure and sale, the execution of which was enjoined by Louisa Lane, who set up title of anterior date to the registry of defendant’s mortgage. The defense is that said title Is simulated and fraudulent.

It is satisfactorily shown that Louisa Lane is the concubine and former slave of KiDgsberry Lane, and was without means of her own to make the alleged purchase. The studied forms so ostentatiously observed in making the pretended transfer and the two subsequent acts of lease, are, under the circumstances, confirmatory of the presumption against the reality of the transaction, and were apparently adopted as a part of the machinery to accomplish the purpose. Both parties were at the time, and still are, living on the premises, and Kingsberry Lane has since acted the part of owner. The effort to show that Louisa. Lane possessed sufficient funds or means to purchase and hold such property was a failure, while she was aware of the existence of defendant’s mortgage and of the embarrassed condition of her alleged vendor. The evidence objected to was properly admitted under the pleadings.

It is therefore ordered that the decree heretofore rendered by us be set aside, and that the judgment of the district court be affirmed, with costs.


text:
    No. 3079.
    Isaac Levy v. E. B. Mentz, Sheriff, et als.
    A mortgage that has not been reinscribed within ten years frojn the date of first inscription^ loses its rank as a mortgage, and the subsequent mortgages on the same property that have not been perempted take rank from their respective dates of registry. 21 An. 204, 427 ; 22 An. 402.
    Tn líe matter of construing and interpreting the statutes of the State respecting the titles-to and the liens on real property, the rule is well settled that the courts of the United States will give to such statutes the interpretation which they have received by the State courts. The State courts of Louisiana will not, therefore, bo bound by a decision of the Supreme Court of the United States on a question of the registry of a mortgage, under a statute of the State, when such decision is adverse to the construction given to such statute by the State courts.
    APPEAL from Third Judicial District, parish of St. Mary.

      Train, J. Cotton & Levy, for plaintiff and appellant.

      Legendre <& PocM, for defendant and appellee.
   Ludeling, C. J.

Isaac Levy claims to be paid out of the proceeds of the sale of property mortgaged to defendant, on the ground that his mortgage is superior in rank to that of the seizing creditor.

The mortgage, under which Levy claims, originally granted to Gabriel L. Fusilier and other creditors of J. A. Frere, was recorded on the ninth day of September, 1846, and an act affirmative of and supplemental to the original act was inscribed in the book of mortgages on the ninth of September, 1850, and the original act of mortgage; was reinseribed on the eighth day of November, 1865.

The mortgage under which S. Theriat, defendant, claims was recorded on the fourth of February, 1861, and reinscribed on the eighteenth of April, 1870.

Hnder this state of facts it would seem clear that the plaintiff’s mort-' gage had perempted. “The effect of the inscription of mortgages., ceases even against the co. .racting parties, if the inscriptions have not been renewed before the expiration of ten years, in the manner in which they were first made.” C. C. 3369. And it is the “duty of the-Recorder of Mortgages, or person acting as such, to cancel and erase„ on the simple application in writing to that effect, by the owner, creditor of the owner, or other party interested, all inscriptions of mortgages which have existed or may exist on the records for a period exceeding ten years, without a renewal of such inscriptions,” etc. Acts of 1843; Revised Statutes, sec. 450,

We have been referred to a decision of the Supreme Court of "the United States, reported in 8 Wallace p. 299, in -which, that exalted tribunal held that, in Louisiana, knowledge of an existing mortgage was equivalent to, or dispensed with, registry; and the counsel for the opponent earnestly urges that we should follow their interpretation of the laws of Louisiana. It does not appear that the Supreme Court of the United States had their attention directed to article 3369 of the Civil Code, or to the amendment to article 3333. But, be that as it may, it seems well settled that in construing local statutes respecting real property, the federal courts are governed by the decisions of the State tribunals. Thatcher v. Powell, 6 Wheat. 119; 8 Peters 220; 9 Cranch 87; 5 Cranch 22; 16 Peters 455; 7 How. 812.

By the failure to reinscribo his mortgage within ten years after its recordation the plaintiff lost his rank, and the mortgage of the defendant took precedence over it. 21 An. 204; 21 An. 427; 22 An. 402. *

It is therefore ordered that the judgment of the lower court be affirmed, with costs of appeal.


text:
    No. 3192.
    Executors of John Bird v. Thompson W. Bird.
    Tlie appeal will be dismissed if taken from a judgment that is not signed by the judge, notwithstanding the parties have filed a written consont thereto, because no appeal will lie from a judgment until it is signed by the judge, and the consent of the parties will not cure this omission.
    APPEAL from the Fifth District Court, parish of West Baton Kouge.

      Posey, J. Samuel P. Groves, for plaintiffs and appellees.

      Barrow <& Pope and Fuqua & Callihan and White & Bober tson, for defendant and appellant.
   Wyly, J.

We discover in the record two judgments; one rendered ■on the thirteenth and signed on the twenty-third December, 1869; the other appears to have been rendered on the nineteenth day of December, 1870, and was not signed.

The parties have filed an agreement, in which they state that the appeal herein is from the judgment of the nineteenth December, 1870, and they agree that this shall be considered the true and bona fide judgment appealed from, and for which the appeal bond was given; that the judgment of thirteenth December, 1869, was signed through error on the twenty-third of the same month, it having been at the time set aside.

We can not revise the judgment of the court of the nineteentn December, 1870, notwithstanding the consent of the parties, because not being signed it was incomplete. The signature of the judge was essential, and the agreement of the parties can not supply the deficieny.

It is therefore ordered that the appeal herein be dismissed at the costs of the appellant.


text:
    No. 3123.
    State of Louisiana v. Charles Hemard.
    .A. person ovming a cotton picltory can not avoid the payment of the license imposed on. cotton pickeries "by tlie revenue act of 1869, on tlie ground that he does not nse it except for the purpose of picking and cleaning his own cotton, which he has purchased to sell again. In such a case ho is as much liable to the State for the license as though ho used it for picking and cleaning cotton for other persons for which he charged a commission*
    APPEAL from the Third District Court, parish of Orleans.

      Emerson, J. 8. JBelden, Attorney General, for the State.

      E. Howard HcCaleb, for defendant and appellant.
   Howe, J.

This is an action to recover a license imposed on the cotton pickery of the defendant. There was judgment for plaintiff, -and the defendant has appealed.

The act of 1869, under which the license payable in 1870 is claimed, provides that there shall he levied and collected an annual amount as •a license * * * of five hundred dollars 18 * * from each •cotton press, pickery or junk shop. § 3, No. 19, p. 148.

The statement of facts in the record is as follows:

'‘Plaintiff proved that the defendant was the owner of a cotton pickery on Prexet street; that he had at said place the machinery and implements used by Gotton pickers. The defendant proved that he used said cotton pickery, machinery and implements solely for his ■own nse and benefit; that he had taken and paid license as a eommisision merchant during the years 1869 and 1870; that he was accustomed •to buy good, bad, wet, damaged and muddy cotton; that when lie purchased damaged, injured or unmerchantable cotton, he cleaned .and prepared it for market in said cotton pickery, and sold it for his •own account; that all the cotton so prepared and cleaned by him in said establishment was his own property; that he constantly and persistently refused to pick and prepare damaged cotton for cotton factors and commission merchants and for other parties; that all the work •done by him in said establishment in the year 1869 and 1870 was solely ■for himself and on his own property.”

Witnesses acquainted with the business also testified that the business carried on by defendant differed from that of cotton pickers ■or keepers of cotton pickeries in two respects, viz:

“First — That keepers of cotton pickeries cleansed and prepared damaged cotton for cotton factors, merchants and others, and received ■a commission or compensation therefor; in other words, that they worked for others and handled the property of others; whereas, defend.ant worked only for himself and on his cotton, and refused to do this work for others.

Second — That cotton pickers or keepers of cotton pickeries opened the hales of cotton delivered to them by factors and others, picked tbe ■cotton, separated the bad from tbe good, put them up in separate packages, bales, etc., and returned them to the factor, merchant or to whomsoever it belonged, and received a commission therefor; that defendant cleansed and prepared damaged cotton bought by him, and after having cleansed, picked and prepared it for market, put it up in such manner as he pleased, and sold it for himself and received the proceeds therefor.”

It is urged on behalf of appellant that he does not keep a cotton pickery in the sense of the statute, as quoted, and that he is not therefore liable in this case. We can not assent to this view. The evidence recited above clearly shows that the defendant is the proprietor of a cotton pickery; that he uses it, in the way all pickeries are used, to put damaged cotton in order; that such use is a part of his business or occupation; that he pursues this part of his occupation for the purpose of gain, and that he, therefore, comes entirely within the clause; of the statute under which this action is instituted.

Judgment affirmed.


text:
    No. 2272.
    Dr. Armand Mercier v. The New Orleans and Carrollton Railroad Company.
    To enable a party to recover damages for injuries caused him by a collision with, a street car* lie must show tliat he exercised a reasonable degree of pruclonco aud caution in endeavoring to avoid the accident. If, on the contrary, the evidence shows that the person injured by such a collison, while the car was in motion on the tract, failed to exercise a reasonable degree of prudence, which if he had done the accident would not have occurred, he can not recover damages from the company for the injuries received, either to his-person or his property, even though the driver of the car he himself at fault.
    APPEAL from the Seventh District Court, parish of Orleans.

      Col-lens, J. C. Eoselius and 0. JDufour, for plaintiff aud appellee.
    WjST. Euait and L. JS. Simonds, for defendant and appellant.
    This ease was tried by a jury in the court below.
   Ludeling, C. J.

The plaintiff claims $10,000 damages for injuries to his person and to his buggy and horse, caused by a collision with one of the cars of defendant in 1867. There was judgment against the defendant for $7041, and the defendant appealed.

Prom the plaintiff’s own statement in the record, it appears that he was going along Erato street, across St. Charles street, towards the swamp, in his buggy, with the top thrown back, so that he could, clearly see all around him; that he was driving at a slow trot; that, he crossed the first track safely, but before clearing the second track at car going up toward Carrollton struck the hind wheel of the buggy ánd broke it, throwing him out and inflicting a wound on the loft elbow and injuring two fingers of the right hand; that he saw the car-approaching at a fast trot; saw the driver apparently making change,. with his face turned from him; that he called to the driver of the caito stop, and on perceiving that the driver did not turn or appear to-hear him, he called out a second timo; that he proceeded across the track leisurely, neither attempting to check his horse or quicken his-speed; that when he called to the driver the second time the latter turned, hut it was too late, the car was not stopped in time to prevent the accident.

From his own statement it appears the plaintiff saw the danger, and yet he incurred the risk. He could have avoided it by stopping until the car had passed, or by quickening the pace of his horse, but lie chose to do neither. He called upon the driver, who did not see the danger, to do what it was his duty to have done. Whether the defendant was in fault or not is not material in this case, as it is clear that the plaintiff’s heedless conduct directly contributed to the collision. 9 An. 441; 8 An. 48; Knight v. Pontchartrain Railroad Company, 23 An.

It is now well settled that if a party injured might have avoided the accident by the exercise of a reasonable amount of prudence, and he did not do it, he can not visit his own indiscretion or want of judgment upon the other party, even though that party be himsolf in fault. Redfield on Railways, 119, § 117.

It is therefore ordered and adjudged that the verdict of the jury be set aside; that the judgment of the district court be annulled, and that there be judgment in favor of the defendant rejecting the plaintiff’s demand, with costs of both courts.


author: Taliaferro, J. Taliaferro, J.

text:
    No. 3215.
    L. Bloom v. T. F. Dixon.
    In tlie sale of a liouse and lot, tlie vendee took a special mortgage on a tract of land "belonging to the vendor, to secure himself against a mortgage of a third party standing against the house and lot. The vendee was subsequently compelled to pay the mortgage against the house and lot. He afterward brought suit against the vendor on the special mortgage, to reimburse himself for the outstanding mortgage on the house and lot which he* had been compelled to pay. On trial of this suit it was shown that the whole transaction» was based on an illicit paper currency commonly called Confederate money.
    Held — -That the contract having no legal foundation to rest upon, could not "be enforced by-the courts.
    APPEAL from tbe Fiftli Judicial District, parish of East Feliciana.
    Posey, J. Preavx & Fenner, for plaintiff and appellee.

      Kernan & Pyons and Charles MeVca and Gross & Hardee, for defendant and appellant.
    This case was tried by a jury in tbe court below.
   Taliaferro, J.

The defendant sold to the plaintiff, on the tenth of October, 1863, a house and lot in the town of Jackson, Louisiana, for $8000. Dixon, the vendor, obligated himself to pay two notes of $1000 each given by Kinear, the vendor of Dixon, to Mrs. Hagerman, from whom Kinear purchased the same property. There was a mortgage on the property to secure the payment of these notes. Dixon in his contract with Bloom executed his own obligation in favor of Bloom for $2080, and secured the payment of it by a mortgage on three hundred and ten acres of land. This was done to secure Bloom against the outstanding mortgage against the property in favor of Mrs. Hagerman. It seems that Dixon paid one of these notes; but the other being unpaid, Mrs. Hagerman proceeded under her mortgage to have the property seized and sold. It was purchased by Bloom, and for the payment of the debt he entered into a twelve months’ bond. He then sued Dixon in the present action upon the obligation in favor of Mrs. Hagerman, which he was forced to take up, and prays that the tract of land mortgaged to him as an indemnity be sold to pay the indebtedness incurred by the failure of Dixon to relieve the property sold by him to Bloom from the aforesaid mortgage in favor of Mrs. Hagerman.

The defense is want of consideration and illegality in the contract. In the court below the plaintiff had judgment in his favor, and the ■defendant has appealed.

It is clear that the transaction was illegal, the price having been paid in an illicit paper money, irsually called Confederate money. The defendant swears that he never received anything from the plaintiff or any one else for the property but Confederate money; that the sale and the mortgage to Bloom were made the same day and form ■one transaction. The witness Reinberg saw the money paid by Bloom to Dixon, and says it was all Confederate money.

The plea of prescription it is not necessary to examine.

It is therefore ordered, adjudged and decreed that the judgment of the district court be annulled, avoided and reversed. It is further ordered that there be judgment in favor of the defendant, and that the suit be dismissed at plaintiff’s costs.

On Application for Rehearing.

Taliaferro, J.

Bloom was not subrogated to the rights of Mrs. Hagerman in the note of Kinear, upon which she proceeded to foreclose the mortgage given to secure its payment. Bloom did not pay this note, but permitted the property mortgaged to be sold, and became the purchaser. The note was extinguished by the sale. Bloom was without recourse upon Dixon, because the mortgage given by him on the tract of land in favor of Bloom was for an illegal consideration, and therefore hull.

Rehearing refused.


text:
    No. 3184.
    Aristide Miltenberger v. Estate of James W. Pipes.
    •The heirs of an estate who apply by petition for an appeal from a judgment in favor of a creditor against the estate, must make the estate a party appellee. Otherwise the appeal will be dismissed on motion for want of proper parties.
    APPEAL from tlie Fifth District Court, parish of Iberville.

      Posey, J. Barrow <& Pope, for plaintiff and appellee.

      Favrot, Chamberlin <& Damon, for defendants and appellants.
   Howe, J.

The motion to dismiss must prevail. The judgment was rendered against the “estate of James W. Pipes,” on the fifteenth January, 1870. The only appeal before us was taken by petition by •certain heirs of Pipes, who had renounced his succession. Even if they had an interest to appeal they have not caused any representative of the “estate of James W. Pipes” to be cited as appellee, and the estate is, therefore, not before us. The citation to “ Mrs. Susan Pipes, widow of James W. Pipes,” does not bring the succession into this ■court. The fault is attributable to the appellants.

Appeal dismissed.

Rehearing refused.


author: Taliaferro, J. Howe, J.,

text:
    No. 3103.
    State ex rel. Samuel Smith & Co. v. Antoine Dubuclet, State Treasurer.
    A. warrant, issued by the Auditor of Public Accounts in favor of a creditor of the State on tbe State Treasurer for money due, is not a bill of credit, nor is it such a negotiable instrument as entitles the holder to the protection of the law merchant. An innocent third holder of such paper can not therefore claim the protection of the law merchant against the charge by the State itself that such warrant was obtained through error and fraudulent practices by the original holder on the Auditor of Public Accounts, hfor can the third holder invoke the doctrine of estoppel against the State on the ground that the Auditor, as the fiscal agent of the State, having recognized the validity of the claim and given the warrant of the State therefor, the State was estopped from inquiring whether the consideration for which it was given was good and valid or not.
    APPEAL from Eighth District Court, parish of Orleans.

      Dibble, J. Dea, Finney <& Miller, for relators and appellees.

      8. Belclen, Attorney General, and John IT. Few, for defendant and appellant.
   Taliaferro, J.

The plaintiffs proceed against the State Treasurer by mandamus to compel him to pay a certain State warrant for $12,120, which they hold as transferrees of one Isaacs, to whom the warrant was issued.

In answer to a rule nisi, the Treasurer answered, that at the time the warrant was presented for payment, there were no funds in the treasury wherewith to pay it. That before the warrant was presented he was instructed by the State Auditor not to pay it, as it had been issued through error upon counterfeit coupons of bonds of the State of Louisiana, and had no legal force. That he can only pay out money upon the order of the Auditor; and, as in this case, when his authority to pay is revoked, he is without power legally to perform the act. The rule was made absolute and the treasurer ordered to pay to the relators the amount of the warrant, and that he pay costs of the proceedings. An appeal from this judgment -was taken on the part of the State. It is established clearly that through the fraud and knavery of Isaacs, practiced upon the Auditor, he, through error, issued the warrant upon State bond interest coupons proved to be spurious and forged instruments. The relators, who are bankers and dealers in money, purchased the warrant from Isaacs, and contend that as they acquired ownership of the warrant in good faith and for a valuable consideration, the State is bound to pay them the .amount called for by the warrant, whatever may have been the circumstances under which it was issued. They aim to assume the position of innocent third holders, and invoke the principles of the commercial law to protect them. They seem, however, to rely mainly on the doctrine of estoppel. They insist that the warrant having been issued by the properly authorized officer of the State, and being an order by the State through its proper agent for the payment of a sum of money to the payee or to his order, the State thereby acknowledged its obligation to pay the specified sum; and having put the instrument into circulation as a negotiable one, the State is estopped as to the relators, holders in good faith for a valuable consideration, from setting up error and fraud to vitiate and repudiate the act. We are referred to various authorities as sustaining these positions.

We see no sufficient reason for ascribing to the instrument in question the character of commercial paper under the law merchant. True, it is payable to Isaacs or order, but this single feature of a negotiable instrument does not, we apprehend, clothe the third holders of this warrant with all the special rights and immunities which, on grounds of policy and in the interests of commerce, they would be entitled to under the commercial law as bona fide holders of a promissory note or a bill of exchange. The warrant simply authorizes the treasurer to pay Isaacs or order a certain sum for certain coupons of interest presented by him for payment. It is not of the nature of a bill of credit. It was not designed to circulate as a commercial security. It was obtained by imposition and fraud of a «riminal character, commenced by the perpetration of an infamous crime. It was given in good faith towards the payment of a public debt. It proved to be utterly without consideration. It was essentially null and void when in the possession of Isaacs. It fell to ashes in his hands. Could it become anything better in the hands of a subsequent holder i Could Isaacs give it life and force by transferring it ? Considerations of the public welfare and of public order seem to answer these questions in the negative. The strongest ease cited by the council of the relators, and the one most relied upon by them as authority on the subject of estoppel, is that of Moran v. Miama County, found in 2 Black’s Reports, p. 723.

In that case the question was whether the county was liable upon coupons which it was alleged in defense, the county had no right to issue. We agree that the county after receiving the money for its bonds was very justly estopped from setting up its want of right to issue the bonds or the coupons when called upon to pay them. But what did the State of Louisiana receive for the warrant issued to Isaacs? Was it the supposed credit for $12,120 it expected to have on its public debt fox coupons ? Certainly not. The State was not benefited one cent by issuing the warrant. There is then no analogy between the two cases. Is the State powerless to protect itself from so shameless a fraud? Because through imposition successfully practised upon the Auditor, he stated that the State owed the amount expressed by the warrant, shall it be estopped from declaring and proving the fraud, and from alleging that on that account it does not owe the sum claimed.

On the other hand, the alleged equitable claims of the relators do not appear on examination to be as strong as represented. It is part of the history of the period during which they acquired this warrant, and it was a matter of publie notoriety that extensive frauds had been committed upon the fiscal department of the State government, and that the predecessor of the .present incumbent of the Auditor’s office was complicated with those frauds.

A state of things existed which was well calculated to render dealers in securities of that kind cautious. It was a matter of no surprise during this state of uncertainty and doubt, when it was ascertained that large quantities of spurious coupons had been manufactured, and that the fraudulent act by which the warrant was obtained had been accomplished. The testimony of Levy, a broker of the city, is significant in regard to the suspicion that arose in his mind with respect to this warrant, while it was in the hands of Isaacs. Levy undertook to sell the warrant for Isaacs, but afterwards declined having anything to do with it, because as he states, “the manner of the man and his anxiety to sell the warrant below the market rate awakened my suspicions.” Yery soon afterwards one of the relators, Kelshaw, bought the warrant. In his testimony he said on cross-examination: “I have not been in the habit before purchasing warrants of going to Mr. Graham in order to inquire into the validity of warrants. Mr. Smith, the senior of the firm, did. I have done so since I bought this warrant about four points below the market prices.”

Under all the circumstances and the surroundings of the transaction by which the relators became the owners of the warrant, we can< scarcely think they exercised the degree of circumspection and care that ought to be expected from prudent men.

There are four bills of exceptions in the record. Three of them-relate to evidence introduced by the defendant to establish-the spurious character of the interest coupons. As these instruments were subsequently admitted to be forgeries, it becomes unnecessary to-examine the bills of exception taken on the admission of the evidence.. The other bilL of exceptions is to the admission of the testimony of Levy as to what passed between him and Isaacs in regard to the warrant. The relators objecting that this was res inter alios. The objection was properly overruled. The evidence went to show that the warrant was hawked about for sale under suspicious circumstances, a. fact which the defendant had, under the pleadings, a right to show.

We conclude that the relators should not be allowed to recover.

It is therefore ordered, adjudged and decreed that the judgment of the district court be annulled, avoided and reversed. It is further-ordered that the rule taken by relators be dismissed at their costs in both courts.

Howe, J.,

concurring. I concur, on the grounds that, first, there-were no funds in the treasury at the time of the demand made by relators, and therefore no right in them to the summary remedy of mandamus; and second, that, under the circumstances of this case to-allow the mandamus to issue would be practically to permit a citizen, to sue the State, without her permission, upon a disputed claim.

Rehearing refused.


text:
    No. 3232.
    Wm. White, Administrator, Joseph J. Daigle, and H. B. White, for use, v. Thompson W. Bird.
    AH privileges in favor of merchants for supplies furnished to a planter, to have effect against-third persons, must he recorded in the boot of mortgages and privileges in the mortgage office of the parish where the property to be affected is situated. Constitution, art. 123-
    APPEAL from the Fifth District Court, parish of West Baton Rouge..

      Posey, J. Barroio & Pope and White <& Bobertson, for plaintiffs- and appellees.
    ■ Samuel P. Greves and A. S. Herron, for third opponent, appellant.
   Ludeling, C. J.

The sugar and molasses made on the plantation of Bird having been seized, Arthur Thebout, a commission merchant,, filed a third opposition, alleging that his claim for supplies furnished-for the-use of the plantation was a privileged debt.

There are several objections urged by the seizing creditors against the pretensions of the third opponent, but we deem it necessary to notice only one, to wit: That the opponent’s account not having been recorded in tlie book of mortgages and privileges,- be had no privilege-which could affect third parties. Article 123 of the Constitution declares, among other tilings, that “no mortgage or privilege shall hereafter affect third parties unless recorded in the parish where the property to be affected is situated. The tacit mortgages and privileges now existing in this State shall cease to have effect against third persons after the first of January, 1870, unless duly recorded. The General Assembly shall provide by law for the registration of all mortgages and privileges.”

In 1869 the General Assembly passed a law directing how mortgages and privileges should be recorded. Article 3093 Revised Statutes.

The provision of the Constitution is unambiguous — “nó mortgage or privilege shall hereafter affect third parties, unless recorded in the parish where the property to be affected is situated.”

The account of the third opponent has not been recorded. He can not, therefore, assert any privilege so as to affect the rights of the seizing creditors.

It is therefore ordered and adjudged that the judgment of the district court be affirmed, with costs of appeal.


text:
    No. 3293.
    State of Louisiana v. Southern Bank.
    Banks organized under the free banking law of the State of Louisiana are exempt by said' act from paying to the State or any of its municipal corporations. A license for carrying on the business of banking. The acceptance of the privileges of this law by any individual or company in the State amounts to a contract between such person or company and the State, which can not afterward be infringed or impaired by the State.
    Article seventeen of section three of the revenue law of 1869, which imposes a license on persons engaged in banking under the free banking law of the State, is in conflict with, section ten of article one of the Constitution of the United States, and is, therefore, void-
    APPEAL from Third District Court, parish of Orleans.

      ¡Emerson, J. S. Balden, Attorney General, and Hornor & Benedict, for the State.

      O. Bosélius and Alfred Phillips, for defendant and appellant.
   Ludeling, C. J.

This suit is to compel the defendant to pay one thousand dollars as a license for the year 1S70, for the privilege of banking.

The bank avers that by its charter and the law authorizing free banks to be established (which forms a part of the charter), free banks are exempted from paying a license for carrying on their business.

There was judgment in favor of the plaintiff, and the defendant has appealed.

It is admitted by the Attorney General that this question was decided in the case of New Orleans v. Southern Bank, 11 An. 42, but he insists, in the brief filed, that we should overrule it. In that case the court said: “We must, therefore, conclude that this section was intended for the security-of the capitalist and an assurance to him that, if he invested his money in the banks, under this general banking law, his stock should be taxed at the same rate as other personal property. So far, then, this section possesses the force of an obligation, binding alike upon the State and all municipal and other corporations deriving their authority from this State.

We are unable to concur with those who contend that this opinion is erroneous.

To induce capitalists to invest their funds in institutions which would meet the public wants, the Legislature proffered that they might do so, upon certain terms and conditions and under the liabilities and penalties stipulated. The proposition was accepted. It is, therefore, a contract, binding upon the State as well as the bank.

“ A contract between the State and individuals is as obligatory as any other contract. Until a State is lost to all sense of justice and propriety she will scrupulously abide by her contracts, more scrupulously than she will exact their fulfillment by the opposite contracting party.”

In Fletcher v. Peck, 6 Cranch 135, Chief Justice Marshall said: If an act be done under a law, a succeeding Legislature cau not undo it.”

. Article seventeen of section three of the revenue act of 1869, which imposes a license tax upon the occupation of defendant, is violative of section ten of article one of the Constitution of the United States. .

It is therefore ordered and adjudged that the judgment of the court •a gw be avoided and reversed, and that there be judgment rejecting the plaintiff's demand, with costs of both courts.


author: Ludeuing, C. J.

text:
    No. 2610.
    Joseph H. Balch v. Ann Young, Widow and Tutrix.
    The law does not require that the acceptance of a contract must he expressed on its face, nor is it essential that the act be signed by the party in whose favor it is made. The acceptance may result from his acts in availing himself of its stipulations or in doing some act which indicates his acceptance.
    APPEAL from the Fifth District Court, parish of Iberville.

      Posey, J. Talbot & Petit, for plaintiff and appellee.

      Barrow & Pope, for ■defendant and appellant.
   Ludeuing, C. J.

The plaintiff sues to annul a sale of rights and credits, on the grounds that he was intoxicated when he made the sale, and that Young, the vendee, never accepted the sale.

There is no evidence in the record to prove the first ground. The acceptance of a contract need not be expressed in it, nor is it indispensable that the act be signed by the party in whose favor it is made. The acceptance may result from his acts in availing himself of its stipulations, or in doing something which clearly indicates his acceptanee. In tliis case Young had the act of sale prepared by a lawyer; it was signed and recorded by the plaintiff, who was the recorder, and then delivered to Young, who placed it among his papers, where it was found after his death. 13 La. 267, Amory v. Black; 4 An. 162; 3 An. 523, Ryder v. Frost; C. C. 1811.

It is therefore ordered and adjudged that the judgment of the district court be avoided and reversed, and that there be judgment in favor of the defendant, rejecting the plaintiff’s demand, with costs of both courts.


text:
    No. 3160.
    Desire Sompayrac, Wife of A. Lecomte, and Executrix, v. Succession of E. L. Hyams.—Pauline Flauner, Third Party.
    la this case a mortgage creditor, represented by his executor, obtained an order of seizure and sale of tlie property mortgaged. Another mortgage creditor took a devolutive appeal from tlie order of seizure, on the ground that there was no authentic evidence of the appointment as executor, that the executor was not authorized under tho will to dispose of tho property, and that the sum for which the order was issued included compound interest. Held — That if these facts were admitted the third party, a mortgage creditor, would not bo injured, because if he held a superior mortgage he would be entitled to the proceeds of the sale in full satisfaction thereof; that if his mortgage was inferior in rank he would be entitled to the residue after paying tho older mortgages; that not being injured by the Bale of the property mortgaged he could not, therefore, as a third party, obtain an appeal from the order of seizure and sale.
    APPEAL from the Ninth District Court, parish of Natchitoches.

      R. 0. Myers, Parish Judge, in place of the District Judge,- absent. William M: Levy, for -plaintiff and appellee.

      R. Safford, for third party, appellant.
   Ludeling, C. J.

In November, 1869, Desiré Sompayrac obtained an order of seizure and sale against a plantation belonging- to the succession of E. L. Hyams, situated in the parish of Natchitoches. From this order Pauline Flauner, a third party, alleging that she was a mortgage creditor of the property seized, and that she was injured by tbe order of seizure and sale, took a devolutive appeal from tbe order of seizure and sale.

We are unable to discover bow tbe appellant could be injured by the order of seizure and sale, even if the allegations made in her counsel’s brief be admitted, that there is no authentic proof of the .appointment of the executor, or that he had authority under the will to dispose of the property, and that the sum for which the order issued includes compound interest.

The appellant is not a party to the order of seizure and sale. If her mortgage be first in rank, the sale could not affect her rights; and if her mortgage be not superior to plaintiff’s, she could claim the surplus of the proceeds of the sale, over the amount legally due on the mortgage.

It is therefore ordered that the appeal be dismissed at the cost of the appellant.


text:
    No. 2246.
    F. G. Barriere & Co. v. Widow Mathilde Fortier.
    An agent’s aiitbority to sign a promissory note for Ms principal must be express and special,, and on tba trial of tbe caso under tbe general issue the burden of showing tbe agent’s, authority to siga the note falls on the holder.
    APPEAL from the Seventh District Court, parish of Orleans.

      Col-'lens, J. A. Tj. Tissot, for plaintiffs and appellees.

      Trist & Oliver, for defendant and appellant.
   Taliaferro, J.

The defendant is sued on a promissory note for $592 10, which purports to he signed by an agent.acting for the defendant. The defendant pleads the general issue. Judgment was rendered in the court below for the plaintiffs, and the defendant appealed. There is no evidence in the record showing that the person who signed the note was authorized by the defendant to do the act. Under the pleadings it was incumbent upon the plaintiff to make this proof.

It is therefore ordered, adjudged and decreed that the judgment of the district court be annulled, avoided and reversed. It is further ordered that judgment he rendered in favor of the defendant as of. nonsuit, the plaintiffs paying costs in both courts.