author: Todd, J. Fennee, J.

text:
    No. 9134.
    N. King Knox vs. The City of Baton Rouge.
    It is essential to the validity of bonds issued by a municipal corporation, that the ordinance creating the debt represented by them, should provide the means for paying the principal and interest of the same.
    Nor is this requirement met by the fact that the bonds were issued in lieu of a cash subscription for stock in a railroad, ■which subscription was to be paid by moans of a special tar. The provision for the payment of the stock was not available for that of the bonds.
    Nor does the consent of the qualified voters, of the town or city, to the issuing of the bonds dispense with this requirement, where the ordinance, under which they issued, defective with respect to the requirement, was never submitted to the voters for ratification.
    A PPEAL from the Seventeenth District Court, Parish of East Baton Jl\_ Rouge. Sherburn, J.

      David B. Bcvrroiu and W. F. & JJ. O. Mellen for Plaintiff and Appellant.

      ~E. 11. Fajrrar and J. II. JBechwith for Defendant and Appellee.
   The opinion of the Court was delivered by

Todd, J.

This is a suit on eight bonds of the city of Baton Rouge, issued on the 1st of November, 1858, payable in twenty years from date, aggregating $9500, with interest.

On the 3d of August, 1857, an ordinance was passed providing for the subscription, by the city of Baton Rouge, of fifty thousand dollars in the stock of the Baton Rouge, Grosse Tete and Opelousas Railroad Company, payable in five current instalments of $10,000 each, to meet which, a tax on the- landed estate within the city'was levied and each tax-payer, in payment of the tax, became entitled to an equivalent amount of said stock. This ordinance was ratified by a vote of the tax-payers. It was passed under the provision of an Act of the Legislature, No. 175 of 1852, providing for the subscription by municipal corporations to the stock of corporations undertaking works of internal improvements.

Before the first instalment of this subscription became due, on the 5th of March, 1858, the Legislature passed an act authorizing the mayor and board of selectmen of the city of Baton Rouge to issue their bonds for fifty thousand dollars, payable in twenty years, bearing six per cent interest, in lieu of the subscription of the same amount, payable in five years, voted by the tax-payers of the city of Baton Rouge in favor of the said railroad company.”

The question of issuing the bonds authorized by this act was submitted to a vote of the qualified voters, who voted in favor of it, and, thereupon, an ordinance was passed by the municipal authorities directing the bonds to be issued, which was accordingly done.

There was judgment in tlie lower court in favor of the defendant and the plaintiff has appealed.

The main defense relied on by the city, is, that the evidence in question, under which the debt was created and the bonds issued, did not provide means for paying the principal and interest of the debt, as required by Act of 1853 — now constituting sections 2448, 2449 and 2450 of the Revised Statutes.'

It is manifest that, if the bonds in question are subject to the operation of the act referred to, tins defense must prevail, as in the ordinance under which the bonds were issued, no provision is made for the payment of either their principal or interest.

Nor does the act under which the ordinance was passed prescribe any mode for the payment of the bonds, and in such case it has been settled by frequent adjudications of this Court, that the Act of 1853 becomes operative, and where its requirements aro not complied with the bonds are void. Benham vs. Carroll Parish, 28 A. 343; Smith vs. Madison, 30 A. 461; Young vs. Police Jury, 32 A. 392.

It is, however, contended that for similar reasons these bonds are not affected by the Act of 1853.

I.

The first is that the ordinance under which they issued did not create the debt against the corporation represented by the bonds, but that the debt already existed at the date of the bonds and was created by the ordinance of August, 1857, providing for subscription of $50,000 in the stock of the Baton Rouge, G-rosse Téte and Opelousas Railroad, and that this ordinance and the Act of 1852 authorizing it made special and adequate provision for the payment of the debt.

A critical examination of the ordinance and legislative acts referred to, satisfies us that the debt purporting to be evidenced by the bonds in suit is not the same debt created under the ordinance of 1857.

As stated, the object of that ordinance was to authorize the subscription of stock in the railroad mentioned. The sinn subscribed, as stated, was $50,000, payable in equal instalments. The instalments were to be paid by means of a tax on the “landed property ” within the limits of the city. One section of the ordinance contained the following provision.

“ Be it further ordained, etc., That separate receipts for said tax shall be given to the tax-payers, which shall entitle them to an equivalent amount in the stock of the railroad company, and whenever the amount of the tax receipts shall not correspond exactly with the amount of a share or any number of shares in the railroad company, it shall he lawful for the holder of the receipts to complete the fraction to an amount equivalent to a share, by payment, in cash, of the deficiency.”

And the Act of 1852, under authority of which the ordinance was passed, provides as follows:

Sec. 4. Be it further enacted, etc., That if any subscription be made under the terms of this act, the stock so subscribed shall not belong to nor be administered by the parish or municipal corporation by which the subscription shall be made, but said stock shall belong to the taxpayers who shall have paid therefor; and the tax receipt of each taxpayer shall entitle him to a certificate transferable by delivery from the corporation to which subscription has been made, for an amount equal to the amount of his ta,x paid; Provided, however, that said police jury or municipal corporation shall be empowered to require such bond and security, and in such stuns from the sheriffs or collectors of said tax, as they may deem necessary.”

It. is evident, under these provisions, that the amount to be paid, for the stock in question, was not a debt proper against the corporation itself, binding on its property, or to be satisfied out of the taxes collected from all the tax-payers, but one to be paid by the landed proprietors voting to ratify the subscription; and that the stock was not to belong to the city but to become the property of these landed proprietors, who were alone authorized to administer it.

There were no bonds to be issued for the instalments, but they were payable in cash and without interest.

The Act of i 858 authorized the city to issue its bonds, due in twenty years, bearing six per cent interest, payable semi-annually, in lieu of the instalments for'the stock subscription. The provision to meet the instalments by the levy of the special tax could certainly not be invoked to pay the principal and interest of the bonds, for, as stated, that was a special tax against the landed proprietors, whereas the bonds purport to be the debt of the city, to be satisfied out of its property and the general taxes. Besides, such provision was wholly inadequate for the bonds, inasmuch as the subscription amounted only to $50,000, and the bonds and accruing interest, till their maturity, to at least $110,000.

There was no authority whatever in the Act of 1858, nor in the ordinance under it, for utilizing or rendering available any security or means provided in the Act of 1882 and the ordinance of 1857, for the payment of the stock subscription authorized thereunder, but the Act of 1858 simply authorized the issuing of the bonds in lieu of the instal-ments for the stock, and by its terms made the bonds the debt of the corporation.

There is nothing, therefore, in this view of the subject that relieves the bonds from the operation of the Act of 1853.

II.

Next, it is urged that authority for the issuing of the bonds and proper provision for their payment may be found in an act approved March 20, 1856,' entitled “An Act granting the city of Baton Rouge power to issue bonds for fifty thousand dollars.”

We see no connection whatever between this act and that of 1858 and the ordinance under the latter act.

The Act of 1856 contained no authority to issue bonds in aid of the railroad in question, nor for any other work of internal improvement, but provided only for bonds to the amount of $50,000, to be issued and sold for corporate purposes or for the use of the corporation, and by its very terms limited them to such purposes or use. This act cannot, therefore, by the most strained construction, have the slightest bearing on the bonds in question.

III.

Lastly, it is contended by plaintiff’s co.unsel that the inhibition contained in the Act of 1853 is directed alone against “the constituted authorities of incorporated towns and cities,” and other municipal corporations; and that, inasmuch as the issuing of the bonds was ratified by a majority of the voters in the city of Baton Rouge, the debt was not created by the constituted authorities of the city, but was the act of the corporation or its members, and that the inhibition in question would not in such ease apply.

Whatever force, if any, there may be in this proposition, it is not now before us for consideration, for in point of fact there never was any ratification by the qualified voters of Baton Rouge of the bonds as they were issued, that is without provision made for their payment.

The corporate authorities, before passing the ordinance directing the issuing of the bonds, submitted to the voters the question, “ Whether or- not, under the act, the bonds of the city shall be issued to said company,” etc. And after that question had been decided affirmatively by an election, they proceeded to pass the ordinance under which the bonds were issued, but which ordinance was never submitted to the people for approval. The people or voters, therefore, even could they have done so, never waived the requirement of law imposing on their agents the duty of providing in the ordinance creating the debt the means of its payment.

Won constat that if the ordinance as passed, defective in this respect, had been submitted to the voters, it would have been approved by them. The power, therefore, to contract the debt passed, under the enabling Act of 1858, to the .constituted authorities of Baton Rouge, subject to the requirement of the Act of 1853, referred to.

For these reasons, we conclude that the bonds were issued without observing this essential condition to their validity and are, therefore, void.

Tf void on account of this radical defect, it is useless to discuss the proposition, or cite authorities to sustain it, that the bonds could acquire no validity by reason of their subsequent assignment to a third person for value.

The judgment of the lower court is, therefore, affirmed, with costs.

On Application foe Reheaking.

There is no inconsistency "between the doctrine of the original opinion in this case and that of United States vs. bl ew Orleans, 8 Otto, 396. The reasons in the latter case for bolding that the act of the Legislature there involved was independent of the provision of the Act of 1853, requiring cities and towns, in creating debts, to provide in the same ordinance the means of payment, were special and do not apply to the enabling act here involved.

Fennee, J.

We have carefully examined this application, without finding occasion to change any of the views expressed in our original opinion. The only point requiring comment is the suggested inconsistency between our opinion as to the operation and effect of the Act of 1853 and that expressed by the Supreme Court of the United States in the case of United States vs. New Orleans, 8 Otto, 396. If this inconsistency were real, it would give us serious pause, because of our desire to preserve all possible harmony with the jurisprudence of that high tribunal. But there is no such inconsistency. We freely concede that the statute referred to was not a limitation upon the power of the Legislature to authorize the municipal authorities to create debts without provision in the ordinance of the means of payment. The question is, whether the enabling act here presented Aid confer such authority.

In the case above mentioned, the Supreme Court of the United States found that the enabling act there involved conferred the authority, for the reason assigned by the-Court “that the Act of 1854 prescribed the details of the ordinance which should be passed by the city in the execution of the authority conferred, and that the ordinance passed conformed to them.”

A reference to the Act of 1854 will show that it provided in terms that “the ordinance authorizing .such subscription shall contain the following provisions, to wit — going into a minute detail of the required provisions, including some as to the means for paying the interest of the debt contracted. The Court had powerful reason for holding that an ordinance conforming to all the requirements of the act was a valid exercise of the authority conferred, which was special and independent of the general statute of 1853. But the enabling act involved in the instant case presents no such features and falls within the doctrine announced by us in the case of Oubre vs. Donaldsonville, 33 A. 386, to -which we referred in our original opinion and to which we adhere.

Rehearing refused.


source: Caselaw Access Project

author: Fenner, J. Manning, J. Poché, J.

license: Public Domain

text:
    No. 9007.
    City of New Orleans vs. The New Orleans Water-works Company.
    The exemption from taxation of defendant’s property by its charter, passed in 1877, is unconstitutional, and the city’s demand for taxes is sustained.
    To the extent that the exemption was the consideration of defendant’s obligation to supply free water to the city, defendant is entitled to relief.
    The exemption was not the sole, but only part oí the consideration of the obligation to supply free water.
    This partial failure of consideration entitles defendant to relief to the precise extent thereof, which is accomplished by condemning the city to pay for its water to the value of the taxes recovered.
    APPEAL from the Civil District Court for the Parish of Orleans. Moivroe, J.

      Olías. F. Buck, City Attorney, and Wynne Bogers for Plaintiff and Appellant.

      Albert Voorhies, Thos. J. Semines, Henry B. Kelly, Blcme & Butler, and Breaux & Hall, contra.

   The opinion of the Court was delivered by

Fenner, J.

The Act of the General Assembly, No. 33 of 1877, is the charter of the defendant company, and is entitled “An Act to enable the City of New Orleans to promote the public health and to afford greater security aqainst fire, by the establishment of a corporation to he called the New Orleans Water-works Company,” etc.

The act provides for the transfer from the city of New Orleans to the company of “the water-works and all the property appurtenant thereto,” then belonging to said city.

It confers upon the defendant sundry valuable privileges, amongst others, “that it shall have for fifty years the exclusive privilege of supplying the city of New Oilcans 'and its inhabitants with water from the Mississippi river, or any other stream or river, by means of pipes and conduits,” etc., and to charge therefor.

The eleventh section of the act, which is directly responsive to the purposes declared in the title, provides:

That the city of New Orleans shall be allowed to use water from the pipes and plugs of said company now laid, or hereafter to be laid, free of any charge, for the extinguishment of fires, cleansing of the streets, and for the use of all public buildings, public markets and charitable institutions, and that the said company shall place, free of any charge whatever, two hydrants of the most approved construction in front of each square, where a main pipe shall be laid at a suitable distance from each other, from which a sufficient quantity of water may be conveniently drawn for the extinguishment of fires, for watering the streets and cleansing the gutters, and for any other public purpose; that on the squares which do not front on the river, the hydrants shall be placed on opposite sides of the streets, at an equal distance from each other and the corners. It shall be the duly of the. said company, whenever main pipes shall be laid, to supply water for all the purposes herein mentioned at all times during the continuance of this charter; and in consideration thereof the franchises and property of said, New Orleans Water-toorlcs Company, used in accordam.ee with this aet, shall he exempt from taxation — State, municipal and pan-ocldal.

By an amendment of the act, the exemption from State taxation was repealed.

The city of New Orleans brought the present Suit to recover $11,-484 87, amount of taxes levied on the defendant’s property for the year 1881.

Defendant, in its answer, pleads, in bar of plaintiff’s. action, the ex-empti'on granted by the foregoing act; and then, reconvening, demands' that-in case the-plea of exemption- should be overruled, .the city should be condemned to pay the value of the water used during- the year for which the tax' was levied.

Judgment was rendered in favor of the city for the tax claimed and in favor of reconvenor against the city for the value, of the water, via: the sum of forty thousand two hundred and eighty-one dollars and eighty-seven cents.

The correctness of the judgment for the tax does not admit of question.

The courts organized under the Constitution of 18G8 repeatedly decided that neither municipal authorities nor the State Legislature could validly exempt property from taxation, either by commutation of such taxes, or in any other manner, unless the property was actually used for church, school or charitable purposes.” See, specially: City vs. Lafayette Insurance Co., 28 A. 756; Louisiana Cotton Manufacturing Co. vs. City, 31 A. 440; City vs. Louisiana Savings Bank, Id. 827; also: 27 A. 376, 646, 648; 28 A. 498, 512; 31 A. 292, 637, 519.

This jurisprudence has been followed by this Court, as at present organized. State vs. Louisiana Savings Bank, 32 A. 1137; City vs. New Orleans Sugar-shed Co., 35 A. 549.

To the extent that this subjection to taxation destroys or impairs the consideration upon which rests the contract of defendant to supply free water to the city, defendant is undoubtedly entitled to relief; but to that extent only.

The position of defendant, impliedly though not expressly approved by the judge a quo, is that the exemption from taxation was the sole consideration of the defendant’s obligation to furnish the city with free water, and that when the city elected to claim its taxes it released the defendant from its entire obligation to furnish water free and became bound to pay for all the water used, even though exceeding, as it does, three-fold the taxes.

Such is not our view.

While the free water supply is declared by the act to be the consideration, and doubtless the sole consideration, of the exemption from taxes, the act does not declare, nor do we think it means, that the exemption is the sole consideration of the obligation to supply the. water to the city.. On the contrary, we consider that the latter is a principal and fundamental provision of the contract, the consideration of which is found not only in the exemption but in all the valuable privileges conferred by the act. i

This is so clear to.our minds from the reading of the entire act, and from the nature and purposes of the stipulation, as indicated by the title, that we deem it unnecessary to elaborate our reasons. The.result is, that defendant has suffered, not a total, but only a partial failure of the consideration of its contract and is entitled to relief only pro tanto.

The principle governing the relief is well espressed by Mr. Parsons: “Where the consideration fails only in part, xuinciples analogous to those which govern’ an inquiry into the adequacy of a consideration woxüd he applied to it. If there were a substantial consideration left, although much diminished, it would still suffice to sustain the contract. * * * If the consideration and the agreement founded upon it, both consisted of several parts and a part of the consideration failed, and the appropriate part of the agreement could be apportioned to it, then they might be treated as several contracts, and a recovery of money paid be had accordingly.” 1 Parsons Contracts, 402; Franklin vs. Miller, 4 A. & E. 605; Roberts vs. Havelock, 3 B. & Ad. 404.

There could not be a clearer case for the application of these principles than this.

Defendant’s obligation to furnish water to the city is unrestricted as to amount, and it appears that the, city has actually used and the defendant has furnished, water to the value of more than forty thousand dollars. The extent to which the considei'ation has failed is exactly the amount of the city’s claim for taxes. If the city shall be condemned to pay defendant for that amount of water, exact justice will be done and defendant can claim no more.

But for the nature of the city’s claim being for taxes, compensation would preservo the exact status quo.

We regret that the city’s financial condition prevents the judgment against her from being the immediate equivalent, but the la.w regards interest as the only compensation for the delay which defendant may suffer in the collection of its judgment.

We observe that in the sugar-shed case we allowed the defendant a judgment in recouvention for an amount slightly exceeding the city’s claim for taxes. It may he that, in that case, the exemption was the sole consideration of the bonus; but in any event, the difference between the two claims was so slight that the view now presented did not attract our attention. City vs. New Orleans Sugar-shed Co., 35 A. 549.

It is, therefore, ordered, adjudged and decreed that the judgment appealed from be amended by reducing the principal of the amount allowed defendant on its reconventional demand from $40,281 87 to $11,484 87; and that, as thus amended, the same be now affirmed, defendant. to pay cost of this appeal.

On Application fob Rehbaking.

Manning, J.

Wo permitted oral argument on this application chiefly because our decision was based upon a construction of the company’s charter that had not been presented at tins bar. The argument against-it resolves itself into a single proposition, i. e. that the 11th section of the Act distinctly and in terms declares the water supply to be the consideration of the exemption from taxation, which declaration the Court can neither enlarge, restrict, nor otherwise alter, and the inevitable consequence is that the exemption having become inoperative, there c.an no longer be a free water supply of any quantity whatever.

Regarded from this standpoint it is manifest then that these two things — the exemption and the water supply — were considered exact equivalents, and it was the intention of the parties and the legislature that they should so he held. It might be that in the fluctuation's of values the taxes should not always be the same, or that in the needs of the city or its profusion in using water the supply would vary, so that a year might come when the taxes will preponderate, over the cost of the water supply as greatly as the latter does now over the former. Contingencies of this kind were foreseen, but the principle was stamped in the Act that however unequal arithmetically these two sums might he, they should bo equal in the contemplation of the statute and that the one should he the- exact equivalent of the other.

This is sufficient answer to the contention that the exemption is the sole consideration for the water supply, but a review of the statute in all its parts and of our construction of it impresses us with a settled conviction that the exemption was not the sole consideration but the privileges conferred as well.

The legislature was creating a company with large powers and valuable privileges, and extending the exercise of them through half a. century. The city was transferring to this company all of her interests, pecuniary, sanitary, protective, etc. For such grants, and for exemption from the burden of taxation, a free supply of water for all the city’s purposes might be considered a reasonable equivalent, but nothing less; and when a part of the one equivalent is withdrawn, equity requires that only a pro rata part of-tlie other should no longer be free.- This adjusts the debt each owes the other as nearly as we can -adjust-it. It-would be perfect equity that the one -should compensate thfe'other, bdt the law interposes and declares a tax not compensable.

The rehearing is refused.

DissbntxNG Opinion.

Poché, J.

A second examination of this case and a careful study of the position taken by counsel representing the defendant company, have led me to the conclusion that we had erred in a portion of our first opinion and in the flecree rendered. Hence, I think that a rehearing should have been granted. There is, and there can be,'but one opinion as to the nullity of the exemption of taxation and that, therefore, the tax claimed by the city must be enforced.

But the very reasoning which leads to that conclusion should, in my opinion, carry with it a declaration of the complete nullity of the contract, of which the tax exemption was one of the considerations, unless it can be made to appear that the act provides for or contemplates other and distinct considerations for the stipulated free supply of water to the city by the defendant company.

In my opinion, the reverse of that proposition clearly appears from a proper construction of the true meaning of section 11 of the Act (No. 33 of 1877) which is the only section or part of the act in which reference is made to the free supply of water to the city.

In that section, after providing that the city of New Orleans shall be allowed to use water, * * free of charge, for the extinguishment of fires, cleansing of the streets and for the use of all public buildings, public markets and charitable institutions, the law maker used the following explicit and unambiguous language: "It shall be the duty of the said company, wheresoever main pipes shall be laid, to supply water, for all the purposes herein mentioned, at all times during the continuance of this charter; and in consideration thereof the franchises and property of said New Orleans Waterworks Company, used in accordance with this act, shall be exempt from taxation,” etc.

It cannot be successfully denied that the “purposes herein mentioned ” in the last part of the section refer to the free supply of water for the extinguishment of fires, cleansing of the streets, and for the use of all public buildings, public markets and charitable institutions.

There is no other language or provision in the act to which this reference could possibly apply. The language used fills out the continuation of a leading idea and the conclusion of a stipulation which is the main feature of the section. It could, therefore, refer to no other purposes already mentioned in the act or to be mentioned further on. That being the case, there is less doubt as to the subject matter to which the subsequent words “and in consideration thereof” refer to. It is more than plain, that they refer to the corresponding obligation of the company to supply water free of charge for the purposes herein mentioned.” Hence, the section must- have been intended to, and it does beyond a doubt, create a complete and independent contract between the city and the company. The contract, as thus shaped and created, has reference to no other portion of the act, which is complete as an act without the contract contained in the section — as complete as the contract itself stands without any reference to any or to all of the othei provisions of the act.

Hence follows, in my opinion, the irresistible conclusion, that the consideration furnished by one of the contracting parties having utterly tailed, the entire contract must fall.

I have carefully, but in vain, sought for any other consideration in the act "which the city is made to contribute in compensation of the free water supply stipulated in its favor by the provisions of the eleventh section of the act.

There is no force in the suggestion that such a consideration is found in the valuable prerogatives and exclusive privileges conferred to the company. No language in the act justifies such a conclusion. On the contrary, language may be found which excludes even the implication that the act contemplated a free supply of water to the city for any other consideration than that stipulated in section 11. Thus we find that section 5 provides: That the said waterworks company shall own and possess the privileges acquired by the city of New Orleans from the Commercial bank: that it shall have for fifty years * * * the exclusive privilege of supplying the city of New Orleans and its inhabitants with water,” etc.

By this plain and unambiguous language the city is placed on exactly the same footing as its inhabitants,” and is to be regulated by the same laws of supply and demand. In the case of Waterworks vs. Sugar Refinery, we recently expounded the meaning of the privilege conferred by that section and we restricted the scope of its meaning to selling water.”

Besides, the obligation which rests on all large cities to supply then-inhabitants with .water, coupled with the fact that the city was anxious to be ridden of the burden which she had inherited from the Commercial bank, were serious and sufficient considerations for the charter to a corporation which furnished its own means for such a vast, useful and indispensable enterprise and paid the city the full value of the franchises transferred t,o it.

The grant of exclusive privileges was guarded and checked by the reserved power of controlling the company’s charges and in limiting the rate of its annual revenues, as shown by the provisions of section 15 of the act.

It is therein provided that the net profits of the company shall not exceed ten per cent per annum, and that in order to regulate this matter the city council, through a committee, shall have access to the books of the company; and that in case of a revenue in excess of the limitation, the city council .shall have the power to reduce the rate of charges for water supply, so as to accomplish the end proposed; and it is also provided that the company shall not exact charges exceeding those now paid by the city, reserving to the latter the power of enforcing compliance by the writ of mandamus. The whole tenor of the act distinctly conveys the conclusion that, with the exception of the provisions contained in section 11, the city has no greater privileges in the matter^of water supply than all other consumers of water within her limits; and that quoad this company she occupies precisely the same position which she has always held towards the gas company or any other corporation created for the purpose and vested with the power of furnishing any commodity to “ the city and its inhabitants.”

For those reasons, I respectfully dissent from the conclusions of my associates of the majority.

Todd, J., concurs in this opinion.


author: MANNING,^.

text:
    No. 9069.
    Joseph A. Bourg vs. Louis Lopez et al.
    Consolidated.

      An agreement by which one transfers to another certain movable property with the proviso and condition that this latter is to sell it, pay himself what the transferror owes him, and distribute the residue to certain named persons, is not a sale, and the transferee does not thereby become tbe owner of the property. He is at most a bailee or trustee.

      A seizure under JL fa. of this property by a judgment creditor of the transferror is lawful, and an injunction by the transferee restraining the sale of it, will he dissolved with damages.
    PPEAL from the. Nineteenth District Court, Parish of Terrebonne. 1L Goode, J.

      Jos. P. ILornor, Jh\ TF. Baker and J. B. Winder for the Appellee.

      O'Sullivan <& Blake for the Appellants.
   The opinion of the Court was delivered by

MANNING,^.

Bourg issued execution upon his judgment against Lopez and Martinez, and seized the undivided half of certain sugar and molasses. Hobert intervened, claiming the sugar and molasses as owner, and obtained its release on bond, but did not injoin the sale or seek to stay it. The sheriff was proceeding with his execution, when an injunction was then sued out, and is the second suit.

Hobert’s intervention asserts that he is the lawful owner and possessor of the property by virtue of am act of transfer and sale, the consideration of which was Lopez’ indebtedness to him for advances to malee and take off his crop, and to pay his hands for labor. lie disclaims in terms relying upon his superior privilege, and avers that “his right is based on that of ownership under and by virtue of the act of sale and transfer,” and the Act was introduced in evidence.

'Phis Act recites that Lopez is indebted to Hobert in the sum of $9 19.84 for advances, “and in order to effect a settlement with him, Lopez transfers and delivers to him” the sugar and molasses, “provided Hobert ships the crop and out of the proceeds, after paying himself, shall pay the hands, and shall pay what remains to Martinez for services as overseer.” Hobert appears and accepts this “ agreement,” as if is therein called, acknowledges possession of the produce, and binds himself to appropriate the proceeds as above set forth.

This is not a sale. It has no element of that contract. It did not divest ownership, and therefore did not transfer it. Neither is it a giving in payment. Full dominion over the property, with power to do with it as he listed, is not conferred by the instrument. It cannot rightly be called a pledge, but if it were, that would not protect the property from the pursuit of other creditors. Augé vs. Variol, 31 A. 866; Pickens vs. Webster, Ibid, 870; Hornor vs. Dennis, 34 A. 389. Like the contract in Herold vs. Stockwell, 32 A. 951, it has no name, and is at most a bailment whereby Hobert bound himself to distribute the proceeds of the sale to named persons in sequence, and thus held as trustee for them. Martinez is the last beneficiary. He is to be paid the residue after Hobert and the hands are paid, and he is one of the solidary debtors of JBourg. The writ of fi. fa. issued against Lopez the owner and him. The seizure was not wrongful, and the injunction was properly dissolved.

It must be observed Hobert makes no claim of privilege, lien, pledge, or other right for the security of the debt Lopez owes him. He is no longer a creditor of Lopez, but absolute owner of specified property by a recorded title. He will have nothing less or else, and it is because he is owner that the seizure of his property to pay another’s debt is tortious and should be stayed.

His title fails him. He is not made owner thereby. The judge awarded fifty dollars damages as attorney’s fee and twenty-four dollars as general damages in dissolving the injunction, and reserved to Hobert. the assertion of any privilege he may have upon the property.

The counsel of Bourg complain of this reservation, but we think it was properly made.

Judgment affirmed.

Rehearing refused.


author: Bermudez, C. J.

text:
    No. 8909.
    Mississippi, Terre-aux-Bœufs and Lake Borgne Railroad Company vs. L. H. Wooten.
    The light to "build branch roads and to expropriate for the purpose* Conferred by a charter to a railroad company, is embraced within the .title of its charter, which reads: “An to incorporate the Mississippi, Terre-aux-Bceufs and Lake Borgne .Railroad Company, and to define its powers and authoritj."
    The expropriated owner, through whose land the road is built, has a right of passage across it to go from one part to another.
    Where such owner has failed to adduce sufficient evidence in support of' his claim for damages, his right to assert and prove such should be reserved.
    APPEAL from the Twenty-fourth District Court, Parish of St. Bernard. I/mcmdais, J.

      E. D. White, E. I). Saunders and J. Lombard for Plaintiff and Appellant.

      John Eay for Defendant and Appellee.
   The opinion of the Court was delivered by

Bermudez, C. J.

This is a proceeding to expropriate the defendant of a strip of land which the plaintiff claims to need to build a branch road.

The defenses are: that the expropriation is not authorized by plaintiff’s charter, the title of which is not expressive of the right claimed; that even then, the amount tendered as the value of the land and compensation for damages is by far inadequate, as the land and damages are fully worth $8500, for which judgment is asked.

The case was tried by a jury, who allowed $100 and no damages.

From the judgment on the verdict the plaintiff appeals.

I.

The title of the act of incorporation of the company reads: “An Act to incorporate the Mississippi, Terre-aux-Bceufs and Lake Borgne Bail-road Company, and to define its powers and authority.” V. Act 20, E. S. 1877, p. 24.

By the third section of this act, the line of road described is to commence at “a point about fifteen miles below the' city of New Orleans, in the parish of St. Bernard, and known as the Terre-aux-Boeufs landing; following the Terre-aux-Bceufs road to a point where the late Mexican Gulf Bailrdad branches off from the said Terre-a,ux-Boeufs road and thence to the lake, the terminus of the present ro*d; with such other branches as the company may deem proper and expedient to create and facilitate business.”

The line of road which the plaintiff sues to expropriate commences in New Orleans and runs so as to intersect the main road as laid down in the charter.

It is unnecessary to determine whether the right to build a main road, and to expropriate for that purpose implies that of building branch roads, and to expropriate to that end, as the charter in the present case is explicit on that subject.

The question presented for solution, is simply whether that power to build branch roads and to expropriate to that end is expressed in the title of the act of incorporation.

The title of the act explicitly announces the creation of the corporation and the definition of its powers and authority

It is unnecessary to say whether this title includes one or more objects, as the act was passed under the constitution of 1868, which authorized the adoption of acts hawing several objects.

It is settled by abundant authorities, resting on sound reason and principles, that the title of an act is not required to enumerate all the particulars, incidents and details by which its object is to be carried out. The Constitution requires only that the title should announce its general object. The provisions in the body of the act, such as are ancillary to accomplish the purpose of the act and come within its purview, which are incidental or germain thereto, are considered as covered by the title, where its language is broad enough to include the same.

In the present instance, the, corporation is given the right to build branch roads and to expropriate for the purpose of constructing them. That right is a power, is one of its privileges, is part of its authority and is clearly included or embraced within the title as expressed. Cooley, C. L. pp. 144, 146; Bishop on Written Laws, § 36a; 28 A. 38, 199, 722; 31 A. 338; 32 A. 90 ; 33 A. 63.

II.

The area of the strip sought to be expropriated is some two-thirds of an arpent. The tender made as its value was $100. This was refused. The defendant claims that it is worth $150, and that the damages to be sustained by him can be set down at $7500 as the value of the rear portion of his land or plantation, considered as totally destroyed by the railroad in front of it, and $500 as the loss in value of the front part; the whole aggregating $8150.

The theory and only ground upon which the defendant contends that he is entitled, besides the value of the land sought to be expropriated, to the damages set forth, is that, after the road will have been built, he will have no right to cross it for the purpose of cultivating his plantation and other purposes.

It is needless to pass upon that question, as the plaintiff emphatically admits the right which clearly exists in defendant. '

The brief of counsel distinctly says:

“It is not true that the company will have the legal right to refuse defendant a right of passage over its right of way. It would not have such right, the rear portion of the plantation being inclosed by the construction of the road, even if it were absolute and unconditional owner. A railroad company is not in the full sense of the term absolute owner of the right of way. It acquires under expropriation no right which it cannot hold, but would be compelled forthwith to retro-cede to the expropriated owner, ft does not, therefore, acquire the right of prohibiting the owner from crossing the right of way to reach the portion of Ids land inclosed by the construction of the road. As the defendant’s plantation is not severed in two portions, each iuaees-sible to the other, the only cause of damage which he alleged in his pleadings, is shown not to exist.”

The right to cross the road being thus unequivocally recognized, the apprehensions of the defendant must be deemed altogether groundless.

The defendant further claims that he was not allowed the full value of the land, and the cost of fencing and gates alongside the road.

The difference between the amoimt tendered and that claimed as the value of the land, is fifty dollars, which a jury of freeholders of the vicinage thought should not be allowed.

The answer does not specify as an element of damage, the cost of fences and gates, hut evidence was received without objection on the subject.

The proof does not appear to establish sufficiently the necessity or cost of the same. It is no doubt on that account that the jury made no allowance. The defendant should not, however, be prejudiced by that want of proof, and his rights whatever they be to such and any other damages not passed upon here, should be reserved.

This is not a case in which we should interfere to quash the verdict of the jury otherwise, which seems to have done justice.

It is, therefore, ordered and decreed that the verdict and judgment hereon, be amended by inserting therein a reserve of the rights of defendant, if any, hereafter to claim such damages and the value of such fences and gates, and that thus amended, said verdict and judgment be affirmed at the costs of plaintiff.


author: Poché, J. Bermudez, C. J.

text:
    No. 9052.
    Succession of Eliza P. Macias.—Octave Anfoux and others Intervenors.
    A sale of succession property made under an order of court to pay debts, on the application of creditors, is a judicial sale.
    The purchaser at such a sale, when it appears that the court was of competent jurisdiction, is not bound to look beyond the decree recognizing its necessity.
    APPEAL from the Civil District Court for the Parish of Orleans. Lazarus, J.

      Jos. P. Rornor and F. W. Balter for Plaintiff and Appellee.

      Albert Voorhies for Defendants and Appellants.
   The opinion of the Court was delivered by

Poché, J.

This appeal brings up a rule by a purchaser at a judicial sale of succession property for possession of said property, which is withheld from him by 0. Anfoux, in actual possession of the same.

In the latter’s answer to the rule he is joined by Théophile Anfoux, executor of the succession, and by Delphine Imbert, who charge nullity of the judgment ordering the sale at which plaintiff in the rule became a purchaser, on the main ground that the same property had been previously sold and adjudicated to Delphine Imbert, which sale had been made under the order of the same court, hut had uot been completed on account of the auctioneer’s illegal refusal to perfect her title.

Alleging her readiness to comply with the terms of the adjudication to her, Delpliine Imbert urges that 0. Anfoux is her keeper under her alleged title, and together with the executor who joins in her defense, she resists the rule for possession.

The rule was maintained and intervenors have appealed.

The record shows that the succession property was offered for sale at the instance of creditors under an order of court, for the purpose of paying the debts of the succession, and was at the first offering adjudicated to the intervenor, Delphine Imbert, who is represented in the auctioneer’s return as having failed to comply with the terms of her bid.

On a petition of a creditor reciting these facts, the court issued a second order for the sale of the succession property. At the offering made thereunder the property in question was adjudicated to the plain-iff in this rule, to whom the auctioneer executed an authentic act of sale.

In their efforts to assail the latter’s title and to defeat his demand for possession of the property thus acquired by him, intervenors are met with a judgment of a court of competent jurisdiction ordering the sale of the property in contest, and they have to encounter the well established rule of our jurisprudence which protects a purchaser in good faith at a judicial sale made under the orders of a court of competent jurisdiction.

In addition to the grounds of nullity herein above stated, their main contention is that in the proceedings which resulted in the second offering of the property, the executor was uot made a party and that he was a necessary party.

To this a ready answer is, that the executor is always before the court and that he must be legally held as cognizant of all proceedings affecting the succession which he represents. Hence it is, that Article 990 of our Code of Practice authorizes the sale of succession property to pay debts at the instance of creditors, without the mention of the representatives of the estate; and that Article 992 applies these rules to all successions administered, by administrators.

It is, therefore, apparent that the court had jurisdiction in the .premises, and that the proceedings contained .all the elements of. a valid judgment. Beyond this the purchaser had no other inquiry to make.A purchaser at a sale made under such a judgment is not.bouDd to look beyond the decree recognizing its necessity. No rule in our jurisprudence rests on more solid ground, or is sanctioned by more abundant direct- authority. Nesom vs. Weis et al. 34 A. 1010; Duckworth vs. Vaughn, 27 A. 599; Succession of Vaughn, 26 A. 150; Wright vs. Cummings, 19 A. 353; Succession of Gurney, 14 A. 622; McCullough vs. Minor, 2 A. 466; Lalance’s Heirs vs. Moreau, 13 La. 431; Pintard vs. Deyrio, 3 N. S. 32.

The issue tendered by intervenors involves defects and irregularities which all preceded the, judgment under which the sale- was effected: hence, it cannot be tried under these proceedings.

Judgment affirmed.

APPLICATION FOR REHEARING.

Bermudez, C. J.

We did not propose, to say, in our previous opinion, that creditors of a succession had a right to proceed and obtain ex parte an order for the, sale of property to pay them, for that would have been running counter the well seated jurisprudence which requires a contradictorary proceeding in such cases. 26 A. 804; 10 A. 238; 3 A. 408; 3. R. 35; 5 R. 98; 10 R. 458; 29 A. 560; 33 A. 343.

We, simply considered that, if the- petitions and orders under which the, property in question was decreed to be, offered and re-offered for sale, were open to attack on that ground,, surely neither the executor nor the first adjudicatee could be listened to do so, and this for obvious reasons.

They were, intervenors, and as such c.ould raise no issue, not susceptible of being legally formed between the, second adjudicatee and the mere possessor or occupant, or keeper without any title, and not permissible under the pleadings. They must join either or resist both.

Hence the objections to the inadmissability of proof in support of the averments of the intervenors, were properly sustained.

The executor and the first adjudicatee cannot be allowed to find any fault with the first proceeding, by the creditors for the sale of the property, as they are themselves, in their intervention, that the sale made was regular. If such was the character of the first proceeding, it is also that of the second, which was necessary as a furtherance of the prior one. 32 A. 265,.

Of course an executor is always before the court and deemed cognizant of pleadings affecting the succession which he 'represents; but this does not mean that ex parte proceedings acquire an immediate binding effect on him, the mouthpiece of tlie creditors-and heirs.

If anything of the kind be illegally done, to which valid objection exists, the law does not leave him without remedy to prevent the infliction of the unauthorized wrong. Should he fail to invoke the same seasonably, and were the others concerned to acquiesce in his direliction by their silence and inaction, and should innocent parties acquire rights, could he not and those he represents, be viewed in the light o a, defendant, present in the parish, where a judgment rendered against him without citation has been executed"? C. P. 612.

Our decision was, like that of the district court, simply to the effect, that, as between the plaintiff in rule and the mere occupant of the property, the former was entitled to possession, 'in furtherance of the adjudication and compliance with the terms thereof, without prejudice to any adverse rights which the intervenors might have and assert in a proper proceeding.

Rehearing refused.


author: Todd, J. Poché, J.

text:
    No. 9173.
    Succession of Kate Townsend.
    An appellant,[in his petition for an appeal, is not bound, to name the appellees, but it suffices that he prays that the parties in interest be cited and makes such reference to the proceeding* that the clerk cannot be misled as to the parties to be cited.
    The failure of the clerk to cite, under such a prayer, is no ground for the dismissal of the appeal.
    When a third party appeals from a judgment and relies, exclusively, on errors of law to sua tain his appeal, of which an assignment is seasonably filed in this Court, the appeal cannot be dismissed because the evidence was not taken down on the trial in the lower court and no statement of facts was made in lieu thereof.
    A judgment in which a woman, who is not made a party to the proceedings, is declared to be a lewd person, and is ordered to be ejected summarily from premises which she occupies, is a nullity, and will be reversed on the appeal of such person, in so far as she is concerned therein.
    VPPEAL from the Civil District Court, for the Parish of Orleans. Houston, J.

      Tlws. It. Hosier, Attorney of absent heirs, for the Appellee.

      Jos. P. Hornor and F. W. Baker for Defendant and Appellant.
   On Motion to Dismiss.

The opinion of the Court was delivered by

Todd, J.

The following are the .grounds of the motion which we will consider seriatim.

1. That the proper parties to the appeal were not named and cited.

The appeal was granted on petition in which the. judgment and proceedings immediately relating thereto were designated and all parties in interest asked to he cited, and the judgment on its face showed who were the parties to the proceedings. If no citation was issued to these parties, whatever the appellee’s remedy might he, the omission should not cause the absolute dismissal of the appeal. Bredenburgli vs. Behan, 32 A. 561,

Besides Sykes, executor, the only defendant in the rule on which judgment was rendered, has answered the appeal and the attorney for absent heirs, the sole plaintiff in the rule, for whom alone a citation might he required, has appeared in this Court to make the motion in question.

' The. second and third grounds may be considered together. They are, substantially, that the record is incomplete in not containing the evidence on the trial of the rale, and the omission is not supplied by a statement of facts.

■ The appellant was no party to the proceedings in the lower court, hut from an inspection of the record it is obvious that she is the one to he chiefly affected by the judgment, and her interest therein is not questioned. She has filed in this Court an assignment of errors, which shows on its face that her complaint against the judgment and her appeal in fact is based exclusively upon alleged errors of law patent on the record and which must he considered independently of any fact that the evidence might have established. In such case the transcript nee“d not contain either the. evidence adduced in the court below or a statement of fact. O. P.897; 13 L. 83.

4. There is in the record an assignment of errors, as above stated, and it was filed in time.

5. The last ground, that the formalities for an appeal have not been complied with, is too vague and general to require attention.

The motion to dismiss is, therefore, denied.

On the MERITS.

Poché, J.

This appeal is taken from a judgment rendered on a rule on the testamentary executor of the deceased, ordering him, and on his default the sheriff, to eject the appellant herein from certain premises belonging to the succession, on the ground that she and other lewd women were 'Occupying said premises in the pursuit of their unlawful and immoral avocation.

Appellant was not made a party to tlie proceedings, and she was allowed no opportunity of being beard by counsel or otherwise, in a trial which culminated in a judgment which declares that she is a lewd woman and condemns her to be .ejected immediately and summarily from premises of which she had undisputed possession.

Hence, she brought this appeal under the provisions of our law which confer the right to third persons, not parties to a suit, of appealing from the judgment rendered in the case, if they have been aggrieved by the same. A woman wlio is decreed to be a lewd person and is condemned to be ejected from tbe house which she occupies, is beyond a doubt aggrieved by such a judgment, and unless she was allowed a legal opportunity to be beard in her defense tbe judgment must fall.

This consideration rests on principles of law and justice too well established in our jurisprudence and in that of all civilized nations, to require any reference to authorities in its support at this stage of jurisprudence.

Appellee’s argument that, because the rule was not taken against appellant, because her rights were not acted on, and because she figures only as an incident in the judgment which orders the executor to perform certain acts, she has no ground of complaint and is entitled to no relief, is absolutely without force. In our opinion, every one of those reasons presents a serious ground of complaint on the part of this appellant, who appears to us to be the main incident in the judgment rendered ostensibly against tbe executor, but which in reality produces its most vital effects on the rights of appellant.

We note appellee’s arguments in the denial of appellant’s right to this appeal, but they have already been considered and finally disposed of in our opinion ou his motion to dismiss this appeal, and in our opinion in the matter of the State ex rel. the present appellant vs. the judge who rendered this judgment.

The judgment is manifestly erroneous and unjust to this appellant.

It is, therefore, ordered and decreed that the judgment appealed from, in so far as it affects the rights of appellant, be annulled, avoided and reversed, and that she be allowed her costs.


author: Manning, J.

text:
    No. 9026.
    F. M.Hotard et al. vs. The Texas and Pacific Railway Company.
    Tn a suit for damages occasioned by a wrongful act, prescription commences to run. not from the time the act was done, hut from the time when damage was sustained in consequence of it.
    "Where an act under private signature has been recorded upon due proof of its execution, and the original has been withdrawn from the Recorder's office by the party to whom it-belongs, a third person wishing to mahe it available against such party may introduce in evidence a copy of such record. It is the best evidence attainable by him.

      A. railway company that lias destroyed a levee for its own convenience and v iihout authority, building another at a different place, which gives way shortly thereafter, is responsible for tho damages consequent thereon.
    A PPEAL from the Twenty-sixth District Court, Parish of Joffer-N Jl. son. Hahn, J.

      O. W. Besangon and Sambola <& Diteros for Plaintiffs and Appellees.

      Kenna/rd, Howe & Prentiss for Defendant and Appellant.
   The opinion of the Court was delivered by

Manning, J.

The object of this suit is to recover damages for injury to the gardens of plaintiffs caused by a crevasse iu April, 1883. Tbe crevasse is alleged to be owing to tbe excavation and removal of a levee which had protected them, and which extended from a j>oint near the boundary line between Algiers and McDonoughville four or five hundred yards up the river. The petition charges that this levee was ent away and the earth removed by the defendant company for its own benefit, and that the earth thus removed was used to make grades for its track, switches, etc., and that these acts were malicious.

The plaintiffs have no connection with one another except that they are companions in misfortune. There are eighteen of them. Each is owner of his separate parcel of ground. Their petition prayed judgment for a round sum — seventeen thousand nine hundred and forty dollars — to be apportioned among them according to a statement annexed, whereon each is set down for the amount of his damage, and mention is made of the kind of vegetables or fruits in cultivation when the damage was suffered.

There was judgment below on a verdict of a jury for seven thousand and thirty-five dollars, distributing it among tbe plaintiffs (after five of them had been eliminated by an exception to jurisdiction) and specifying the sum for which each had judgment. The plaintiffs’ brief calls our attention to a motion to dismiss on the ground that each claim is separate from the others, and no claim is above one thousand dollars. We do not find any motion for dismissal, and should not sustain it if we did. The defendant for its and their convenience made no objection to the joinder of plaintiffs, if indeed a valid one could have been made, and now that the plaintiffs have profited by it in saving costs, the defendant is fairly entitled to have the advantage of it also. In point of fact two of the plaintiffs prefer each a claim for more than a thousand dollars.

Prescription was pleaded. The levee was dug' and removed in or before March, 1882. The crevasse occurred more than a year thereafter, April, 1883. The suit was filed in June of same year. Prescription commences to run, not from the time of the wrongful act, but from the time when damage was sustained in consequence of it. Mestier v. Opelousas R. Co. 16 Ann. 354.

The name of the company that commenced the building of this road was the New Orleans Pacific Railroad, which was consolidated with and merged in the Texas and Pacific on June 20, 1881. The deed is in the common law form of conveyance, and not a notarial act. The acknowledgment of it was made before a Commissioner of Deeds in New York in September 1882. The plaintiffs introduced in evidence the conveyance book in which that deed is recorded, or the pages containing it. Objection was made that the best evidence of the consolidation was the original deed, which was not pretended to be lost or destroyed, and none other could be admitted. The brief of the defendant states that the original was not deposited with the Recorder.

The plaintiffs are thus shewn to have produced the best evidence attainable by them. The document belonged to the defendant. The original had been withdrawn from the public records by the defendant, or rather had never been deposited among them. It had been recorded, says the brief, to give it effect as against third persons. It must equally enable third persons to make it effectual against the company. This deed shewed that the defendant had taken the place of the former company in June 1881. The act complained of was done after that date.

The defendant further urges that cutting the lbvee was a lawful act because authorized. The police jury had passed an ordinance in the Spring of 1881 granting the right of way over any road or street of which the jury has Control, and providing that any fences, buildings, or other obstructions standing upon any of them shall be removed and rebuilt by the .company; to which is also given permission to build wharves, depots, warehouses, etc. upon and in front of its riparian property. No mention, is made of levees except that the company shall maintain at its own expense the levee on or in rear of the land occupied by its terminus.

Not only is there no permission given to cut the existing levee, hut the obligation of maintaining a particular levee is expressly imposed. It is therefore not necessary to say whether, the statute of 1880, when it authorizes police juries to make necessary laws for the repair, preservation, and protection of levees, can be understood to confer authority for their destruction and demolition; nor to enquire if the power to regulate the manner in which a levee may be cut for rice flumes or other purposes, can be construed as including the total removal of the levee among the other purposes.’ The ordinance cannot cover the act of the defendant even under the most latitudinarian construction. Conceding to the police jury the fullest control over the levees', permission was not given by the ordinance to do what the defendant has done, and the reading the ordinance makes manifest that the jury had no such act in contemplation.

Nor can it be conceded that because it was more convenient for the railway to change the line of the levee, therefore it could rightfully dig up the existing levee and make another where it washed to have it. If the levee built by the company instead of the old one which it destroyed, had withstood the floods, doubtless uo one would have questioned its right. But it did not withstand them. The defendant contends that it gave way under the overwhelming force of the elements — that the river was at the highest stage till then known, and was irresistible. We can never know whether the old levee would not have likewise given way, hut we do know that the particular part of this levee that did give way was that newly built by the defendant. That part of the old levee both above and below the excavation stood the pressure of the wind and waves. The excavated part was as good as those above and below. Two witnesses say that the new levee -was as good as the old. They admit a levee covered with grass is stronger than one that has not such protection, and there is no dispute that the old levee was thus streugthened, and the new was not. There seems no reasonable doubt that the crevasse was owing to the destruction of the old levee, and there is no escape from the liability for damages occasioned thereby.

We have scrutinized the verdict to ascertain whether the damages and loss of profits are based exclusively upon the speculative opinions of witnesses and upon their estimates of supposed profits, and find the jury have judiciously abated the exaggerated claim as set forth in the estimates annexed to the petition. We perceive the difficulty of an entirely accurate, computation, and as that difficulty would scarcely be less for us than for tlffim we shall not disturb their finding.

Judgment affirmed.


author: Bermudez, C. J. EenneR, J. Manning, J. Bermudez, C. J.

text:
    No. 8995.
    Victoria H. Dickson and Husband vs. H. P. Dickson et al.
    On Third Opposition of M. L. Dickson.
    Property composing the community "between husband and wife accrues, at the dissolution of the community by the death of one of the spouses, in full ownership to the survivor and to the heirs of tho deceased eventually, subject to a usufruct in favor of the former and always burdened with the claims of creditors of the community, who can subject it to tho payment of their debts.
    The surviving spouse and the heirs can mortgage their undivided share or interest in the real estate thus acquired. Tho mortgage creditor, in seeking payment of his claim (there being no creditor of the community), is entitled to be paid out of the proceeds of sale of such interest, in preference to any claim of the heirs against the .surviving spouse not recorded at the date of the mortgage.
    The partnership or community, which may have been formed after the dissolution, between the surviving spouse and the heirs, is not to be likened to that once existing between husband and wife. Claims arising nftor dissolution of that community between the spouses, do not enjoy the rights and privileges attaching to claims against the conjugal community property.
    An improper allowance of interest on the decree can bo corrected and stricken out. without granting a rehearing.
    APPEAL from the Second District Court, Parish of Bossier. Drew, J.

      J. D. WatKns for Third Opponent and Appellant.

      Land <& Land, J. TT. Shepherd, B. J. Looney, and Merrieh, Foster & Merrick, contra.

   The opinion of the Court was delivered by

Bermudez, C. J.

The third opponent claims to he paid, by preference to all others, out of the proceeds of the sale of half and more of the property herein sold to effect a partition between the widow and heirs of Michael Dickson.

She alleges that after the death of said Michael Dickson she loaned to his widow the amount claimed, which was secured by the latter by mortgage on her interest in certain described real estate which was herein sold; that her claim is liquidated by judgment and that she is entitled to payment of it in preference to the heirs of Michael Dickson.

Her pretensions are resisted by all the parties to the partition suit, who contend that Mrs. H. P. Dickson could not, and did not, give the opponent a mortgage susceptible of out-ranking the claims which they have against her, and that this Court has so held; that the interest of Mrs. Ii. P. Dickson in the property is completely absorbed by such claims; and that nothing remains for the opponent to take.

The lower court sustained the defense and rejected the third opposition. From the judgment thus rendered the opponent appeals.

The facts are simply the following:

Michael Dickson was married. During his marriage, community property for a large amount was acquired. He died leaving no debts, and seven children the issue of his marriage. At his death, his widow took possession of all the property which was acquired during the community, and his heirs of age accepted his succession unconditionally. Five years after his death his widow borrowed from the third opponent the sum of ten thousand dollars and secured its reimbursement on her interest or share in the real estate thus acquired. This creditor, at maturity remaining unpaid, brought suit against the widow. One of the heirs intervened to resist the claim. Judgment was rendered in favor of the plaintiff, on appeal to this Court, recognizing her mortgage and directing that the property mortgaged be sold to pay the debt, interest and costs recognized by the judgment appealed from. 33 A. 1244.

It is that debt and that mortgage thus judicially recognized which this opponent now seeks to enforce by payment out of the proceeds of the property mortgaged.

There is no dispute about the existence of the judgment, or about the want of proper inscriptions and reinscriptions required to keep the debt and the security alive.

The suit in which the third opponent intervenes asking payment, was brought by and between the widow and heirs as co-proprietors of the real estate, for a partition; the usufruct of the widow over the half of her children having been judicially declared forfeited and, therefore, having ceased.

Differences betioeen the co-partitioners having arisen in that suit, the matter came up before this Court and was finally adjusted by a decree liquidating and settling their respective rights, the one against the other. The third opponent was not then a party, in her individual capacity, to that litigation. 33 A. 1370.

The defendants in the, opposition conte,nd that the opponent is es-topped and concluded by what was said by this Court in its opinion in that case. This cannot be, for the reason that she never appeared in those proceedings otherwise than as tutriz, and never asserted her claim therein as a creditor, and the decree of the Court does not adjudicate on that claim.

But it is insisted, as a new proposition eventually, if the opinion in that case does not operate as an estoppel or res acljudieata, that the opponent never acquired a mortgage on the interest of the widow in the common property which authorizes her to recover her claim out of the x>roceeds of the property mortgaged and sold, by preference over the heirs as creditors of the mortgagor.

Indeed, it is claimed that the interest of the widow in community is residuary and that in a partition of the succession property her obligations to the heirs, her co-partners, must be first satisfied out of the mass of the common property; that, as after such satisfaction there remains no residuum in her favor, there is nothing to which the special mortgage granted by her on her interest in a particular tract of land once belonging to the community can attach.

Such is not the law of Louisiana. The jurisprudence expounding it has, by a long line of precedents,, well sustained on principle and reason, uniformly established the reverse. A survey of that jurisprudence justifies the unequivocal annomicement that the following propositions have been recognized as law and constitute rules of property from which no departure can bo sanctioned:

Property acquired by the industry of either or both of the spouses, during the existence of the community, becomes common property and is liable for community debts.

At the dissolution of that community by the death of either of the spouses, the property they acquired vests, in the absence of adverse ante-nuptial stipulations, in the surviving spouse and in the heirs of the deceased, in the proportion of one-half in the former and of a like share in the latter, collectively or jointly.

If the community has creditors, they can have the community liquidated, or pursue the widow and heirs if they have accepted it, and subject the property to the satisfaction of their debts by divesting the title thus acquired.

If the community has no creditors, the title which the widow and heirs have acquired, the former as surviving partner in community the latter as heirs, becomes absolute and indefeasible. The widow and the heirs continue in the quiet ownership of the property.

In either ease the widow and heirs can mortgage their interest in such property, if it he real estate, a.nd the creditor acquiring such mortgage is entitled in case of non-payment to have it seized and sold to satisfy liis claim, subject to he expropriated or out-ranked only by creditors of the community and of the succession of the deceased spouse, and whose mortgage was recorded anterior to his own, the succession creditors, however, to he paid out of succession property.

The authorities invoked by the appellees go only to the extent of declaring that the widow, or surviving spouse in community, while the succession of the deceased is under administration and before its creditors are paid, cannot mortgage her share in any specific piece of real property acquired during the community, to the prejudice' of creditors of that community and of the succession. Those authorities are not destructive, but merely restrictive, of the right of the widow and of the heirs to sell or to mortgage.

In the very early case of Gale vs. Davis, 4 M. 653, the Court said:

“ The moment that the husband or wife dies, the title to one-half of the common property vests immediately in his or her heirs. They become joint owners of the whole, together with the survivor.”

In the subsequent case of German vs. Gay, 9 La., 382, the Court said:

“According to our understanding of the Code, the distinct interest of the parties attaches at the dissolution of the marriage, subject, however, to the right of the wife or her heirs to renounce and thereby exonerate herself from the payment of the debts of the community. * * * His (the husband’s) authority as master of the community ceases on the dissolution of the marriage. The right of the heirs of the deceased party then attaches to have a partition of the effects, subject to the payment of the debts.

Again, in Hart vs. Foley, 1 Rob. 381, the Court said:

“After the death of one of the spouses the community, in a legal sense of the word, is terminated. Each party is seized of one undivided half of the property, subject to the payment of debts.”

In the case of Ware vs. Jones, 19 A. 428, the Court distinctly announced that the hoirs of the deceased become seized of the property of their ancestor at the moment of his death.

The surviving widow is seized of one-half of the community property and the heirs of the other. The title vested continues in them, subject to be divested at any time by the creditors or the administrator for them.

The widow and the heirs take the estate absolutely, subject to the debts and charges against it, and all that is meant by residuary rights is, that tile property is thus encumbered.

They are not the less the owners of the property because it is followed by and subject to the charges against it.

This doctrine was uniformly recognized and applied by this Court in a number of cases, in which the right of the widow and of the heirs was admitted to mortgage, and the right of the creditor to enforce his claim against them with the security. 4 M. 653; 7 L. 157, 222; 17 L. 238; 1 R. 380; 5 R. 299; 7 R. 404; 2 A. 30; 3 A. 562; 19 A. 167; 21 A. 253; 22 A. 185, 264, 24 A. 264; 26 A. 260; 27 A. 503; 30 A. 93; 31 A. 493; 32 A. 162, 848, 972; 33 A. 151, 584, 1244.

In the same sense are the Spanish and French authorities, to which much weight is due. 4 Febrero Adicionado, p. 228, No. 29; 2 Troplong Mar. Contr. No. 854, pp. 133-5; 13 Toulliér, No. 211, 245; 3 Troplong, No. 1081, p. 218; 3 Troplong Priv. and Mort. p. 392, No. 818; 3 Mar-eadé, p. 180, No. 258; see Articles 986-996, French Code of Practice; C. N. 803; 2 Zacharioe, pp. 136-7; 2 Troplong Priv. and Hyp. p. 175, No. 468 (ter. et al.)-, 2 Paul Pont. Priv. and Hyp. p. 634, No. 633; Id. p. 638, No. 636, et al.-, same author, Vol. I, p. 291, No. 301.

When the surviving widow and the heirs of the deceased husband continue in possession, their co-ownership and enjoyment is not a prolongation of the community which liad existed between the spouses. That community, dissolved by the death of the first dying spouse, is not revived and continued between the survivor and the heirs of the departed one, who own by a different title and are governed by different laws.

The condition of the surviving spouse and of the heirs, in such a case, can well be likened to that of husband and wife, once common in property, subsequently judicially separated in property, and who nevertheless continue to own and hold in common.

Claims may subsequently arise in favor of the heirs, co-proprietors, against the mother; but they do not acquire, and do not enjoy, the. rights and privileges attaching to claims by creditors of the community, so as to out-rank creditors of the widow, becoming such after the death of the husband and acquiring a mortgage on her half of the real estate once belonging to the' partnership of acquets and gains. The claims of the creditors of the community are one thing, and those of the heirs inter se, or against the widow after the dissolution of the community, are another. Such claims, on the part of the heirs, could outrank such mortgage, creditors in the event only of their previous registry, a feature totally lacking in the present controversy.

The character of the community or partnership which it is claimed was formed and continued between the heirs and the widow, has no significance in this litigation, so as to affect the rights of the third opponent as a mortgage creditor of the widow.

Whatever the laws be which regulate among themselves, or even as to third persons, the rights of heirs owning and holding in common inherited property, they cannot be legitimately extended to property thus owned and held by heirs and the surviving partners in community. No interpretation of the word rulo, found in Article 1290, R. C. C., can justify such construction of the laws on the subject. That word exclusively refers to matters of form for the purpose of effecting a partition between or among the owners mentioned in the law.

A first recorded mortgage on real estate produces the important effect of out-ranking all such as are subsequently inscribed, and a fortiori claims which are not registered and which, even if registered, would not on that account create a mortgage. Of this character are those of the heirs in this case.

Laws creating privileges and legal mortgages are to be strictly construed. Accordingly, no privilege or legal mortgage, or right equivalent thereto, can be urged and recognized by the courts unless the law creating it bo pointed out and such law bo found, when examined, as really creating it and operating as claimed.

The heirs who, after the dissolution of the community, continue to own in common with the surviving spouse, where the latter lias a right of usufruct over their share, are not allowed by law a legal mortgage on the property of their parent as a substitute for the security to which usufructuaries are subjected.

Even if the law did grant them such mortgage, it was not recorded, and could not, therefore, be made to operate to the opponent’s injury.

Permitting their claims to out-rank the opponent would be virtually to recognize in their favor a legal mortgage and giving to it the force and effect attaching formerly to a tacit mortgage, when such mortgage has had no existence as such since January 1, 1870, in this State. It would be judicial legislation, in the teeth of express constitutional prohibition which forbids, in negative terms, the existence as to third persons of unrecorded mortgages. Constitution, 176.

In tlie caso at bar, the title acquired by the widow and heirs was absolute as there existed no community debts. The mortgage, consented by the widow on her interest, which is one-half and one-fourteenth, is a valid mortgage and ranks all the claims which her children may have against her for any cause, and which were not secured by mortgages and recorded previous to the registry of the mortgage consented by her in favor of the third opponent.

The district judge is not at fault for ruling as he has done, for he was guided by the dictum in the partition suit, 33 A. 1370, under part III of the opinion, from which this Court recedes as a proposition of law. The Court there distinctly .said that the questions raised touching the validity and effect of certain conventional and judicial mortgages which were created by or against Mrs. H. P. Dickson on her interest in the community property, were of no importance, and it therefore abstained from passing formally upon them, dismissing them from its attention by simply uttering the remarks or considerations which constitute the dictum in question, which is of no effect as regards the third opponent in this case. Whether justified or not in that case, the announcement is not binding on the opponent, who was not a party to the proceeding, in any manner so as to be personally affected thereby.

It is, therefore, ordered and decreed that the judgment appealed from be reversed; and,

It is now ordered, adjudged and decreed that there be judgment in favor of the third opponent, Mattie L. Dickson, recognizing her as a creditor for eight thousand one hundred and seventy dollars and sixty-five cents ($8170 65) and interest, as claimed of Widow II. P. Dickson, and as such entitled to be paid the same by preference over all others, out of the proceeds of the sale of the interest or share of the said Widow Dickson, namely, one-half and one-fourteentli of the property mortgaged and sold herein to effect a partition, with costs in both courts.

DissektiNg Opinion.

EenneR, J.

This is the same partition suit which was before us two years ago, and in which we rendered the opinion and decree'reported at p. 1370, 33 Annual.

In that case, the holders of conventional mortgages granted by Mrs. H. P. Dickson upon her interest in specific community property, and standing in identical case with the present opponent, were parties, and asserted the same rights with reference to their mortgages which the opponent here asserts with reference to her own. In disposing of the questions thus necessarily arising, we said: “Much learning and ingenuity are expended in discussing the validity and effect of certain conventional and judicial mortgages which were created by or against Mrs. H. P. Dickson upon her interest in the community property. Tn the view we take of this case, these questions are of no importance. They are sufficiently disposed of by the following considerations : The interest of the widow in community is residuary only, resembling the interest of an individual partner in the partnership property. It can only be ascertained and defined after the settlement of the marital partnership.

“ From the date of Michael Dickson’s death, this entire estate, movable and immovable, has belonged to Mrs. Dickson and the heirs of Michael Dickson as partners in community. As legal usufructuary as well as administratrix, she has had the use and administration of the entire property, entitled under the law to all the revenues for herself, but under the obligation, at the termination of her usufruct, to produce in such condition as the law requires, the property susceptible of perfect usufruct, and to account for that used or consumed by her in the exercise of the imperfect usufruct. All the property or its equivalent held by her in indivisión, and administered and nsecl by her, must enter into and form the basis of the settlement and partition; the debts due by the partnership must be paid; the accounts of the partners must be settled and their respective interests ascertained, and according to these interests the partition must be made. The residuary interest of the widow, thus finally ascertained and settled, is the only source to which her individual creditors, whether secured by mortgage or not, can look for satisfaction of their claims. Inasmuch, therefore, as under these circumstances the mortgages referred to cannot affect the obligation of the administratrix and usufructuary to account to her co-partners and cannot prejudice the rights of the heirs to have the interests coming to them under such accounting satisfied out of the entire mass of the community, it follows that the validity or invalidity of said mortgages are matters exclusively between Mrs. Dickson individually and the mortgagees, and do not figure as factors in this partition.”

I am at a loss to conceive, upon what ground it can be said that the above passage was a mere dictum, “not necessary to the decision of the cause.” Tf it was not necessary in that case to pass upon the rights of mortgage creditors there asserted, neither is it necessary to pass upon the rights of opponent as asserted here.

In my humble judgment, with clue deference to the majority of the Court, their opinion herein does not grapple with the true question in this case, nor is it touched by any of the decisions quoted.

The general proposition is not disputed that, at the dissolution of the community, the surviving partners and the heirs of the deceased partner become undivided proprietors of the community property, subject to the payment of the community debts. They become so precisely in the same manner and on the same principle declared, in reference to heirs inter cese, by Art. 1292 of the Code, which says:

“When a person, at his decease, leaves several heirs, each of them becomes an undivided proprietor of the effects of the succession, which forms among the heirs a community of property, as long as it remains undivided."

This “community of property” is subject to be terminated by “partition” which is defined to he a “division of the effects, of which the succession is composed, among all the co-heirs, according to their respective rights.” C. C. Art. 1293.

The right of every co-heir to such a partition and the manner in which it is to be made are recognized and specifically defined in the following articles of the Code. It involves a conqdete accounting between the heirs, which must include not only “the sums which each of the co-heirs owes to the deceased,” but also “those which each of the coheirs may have received or disbursed on account of the succession,” and “those which each of the co-heirs may owe by reason of damages or injury which have been caused by his fault to the effects of the succession.” C. C. Art. 1350.

The Code distinctly provides that, in the formation of the aetivo mass, it is to include not only the property movable and immovable remaining in the succession or the proceeds of sale thereof, and the sums to he collated, hut also the debts due by the heirs on account of succession funds which may have been received and converted by them as above indicated. Art. 1356.

■ From this- aetime mass, the deductions pointed out in Art. 1359 are to be made, and the balance is to he divided according to the interests of the heirs. Of course, the shares of the heirs who owe nothing are to be first satisfied out of mass, while the shares of the heirs who do' owe, are to he diminished by the amounts so due by them.

Thus is ascertained the final*share coming to each heir.

The Code recognizes the power of each heir, during the pendency of the indivisión or “community of property,” to affect his interests by “ mortgages, liens or privileges,” but, it expressly provides that “ the mortgages, liens or privileges existing against one of the co-proprietors, shall, by the mere fact of the judicial partition, attach to the shares allotted to him by the partition, and cease to attach to the shares allotted to his co-proprietors.” Art. 1338.

It would have been impossible for the legislator to declare in plainer terms that co-'. eirs in indivisión, although they are “undivided proprietors”'of all tlio effects of the succession, hold the same subject to the necessity, not only of settling succession debts, but also of a full accounting between themselves : that their Anal shares are only determinable after such settlement and accounting j and that any mortgages, which they may grant upon their individual interests, will attach only to their shares as thus Anally determined.

That like principles apply to the case of an unsettled community,T think, does not admit of serious question.

A reference to our former opinion and decree in this case, will show that we applied them in all their length and breadth. 33 A. 1370.

1 cannot think that we erred,in so doing.

If the widow and heirs be regarded merely as co-proprietors, these rules apply ex vi terminorum of Art. 1290 of the Code. If the community effects bo regarded as the property of a dissolved, but unsettled partnership, it is elementary that like rules apply and that one partner cannot alienate his interest in particular assets or in the whole estate, to the prejudice either of creditors or of his co-partners. Claiborne vs. Creditors, 18 La. 501. Indeed it is difficult to understand upon what grounds of law or reason rules should be applied to the interest of the widow in this unsettled community, different from those applicable to the interests of the heirs, her co-proprietors.

The case presented is this: A large community estate fell to the widow and heirs, several of the latter minors. It consisted of immov-ables and of movables of great value. The widow, as administratrix of the succession and as legal usufructuary, entered into the possession of the entire estate. She converts into cash all the movables, exceeding in value her entire share, and appropriated it to herself. She then mortgaged for her individual debts her share of the imhiovable property. But for this mortgage, it would not be disputed that upon a set--tlement with the heirs by partition, the debt due by the widow for the community funds, received and converted by her, would form part of tlie active mass, and that the immovables, or proceeds thereof, would go to the heirs to the extent necessary to make them equal with the widow.

It is claimed, however, that by reason of this mortgage, the mortgagee succeeds to rights which the widow would not_ havelhad, and may withhold one-half the proceeds of these immovables from the accounting due to the heirs.

The answer is: Nemo plvs transferre potest quam hahet. The very case is presented which was anticipated in Gestae vs. Florane, 31 A. 496, where, in discussing the effect of a mortgage .granted by the widow on a particular immovable of an unsettled community, this Court said: The heir, as well as the creditor, is entitled to have the administration of the succession, as an entirety, completed. Non constat Jbut that the widow has already received her full half of the"entire succession; and if a mortgage given by her upon parts of its remaining property were held good and the property alienated by its foreclosure, the heir would be denuded of his inheritance.”

I am aware that the decisions are conflicting as to the right of the surviving partner in an unsettled community to mortgage her share in particular assets; but, conceding that right, no decision exists holding that such mortgage by a widow administering the entire community, could defeat her obligation to account to the heirs, or could have effect to reach more than the share of such_community resulting to her after such account and settlement made according to the law regulating partitions.

If such be the law, a more efficient recipe for “denuding heirs of their inheritance” could hardly be devised.

I, therefore, dissent from the opinion aud decree.

DisseNting Opinion.

Manning, J.

I fully concur in the dissenting opinion of Mr. Justice Fenner, but even if I did not agree with him'upon the law as stated by him as a general proposition, I should still join him in dissenting, because I think it has already been announced as tlio law of this particular case.

This identical partition suit was before this Court in 1881, and a decree was sent down, so minute in its directions that it covers two printed pages of the Report. Dickson Case, 83 Ann. 1378-9. The lower court obeyed the instructions from here, and this appeal is from its judgment, rendered in conformity to them, and in execution of the law governing partitions, thus distinctly enunciated to the judge below for his guidance in the further progress of the suit.

The majority opinion holds that the plaintiff was not a party to the suit, when it was here before, in her capacity of mortgagee, although she was a party to it in another capacity,but the opinion then rendered dealt with the whole question, as is manifest from the quotation from it incorporated in Justice Fenner’s dissent just read, which announced that under the circumstances, that had already been amply set forth, the mortgage given by the defendant Hannah could not affect her obligation to account to her copartners, and could not prejudice the rights of the heirs to have their interests satisfied and therefore those mortgages did not figure as factors in the partition.

Now comes one of the parties to that suit, alheit not then claiming as mortgagee, and insists that her mortgage shall figure as a very important factor in that partition, and her claim is allowed and enforced. I cannot approve it.

ON Application i?or Rehearing.

Bermudez, C. J.

A re-examination of this case has served only to confirm us in the correctness of our views previously expressed. Our decree must, however, he modified.

The amount duo opponent on the day of sale in capital and interest was $18,533 33, subject to credit aggregating $10,362 68, which left a balance of $8170 65, on which interest was improperly allowed.

The error can he corrected without granting a rehearing.

It is, therefore, ordered that our previous decree be amended by striking therefrom the words “and, interest,” which follow the amount allowed and that thus reformed, it remain undisturbed.

Rehearing refused.


author: Poché, J.

text:
    No. 9172.
    Jean Pomez vs. J. B. Camors & Co.
    A party ailing for an account of money and securities entrusted to another cannot, in tbo progress of trial, be allowed to shift his position and assume in argument that the prop* erty in question had been pledged and had been tortiously disposed of by the pledgee.
    A debtor who transfers securities in full ownership to his creditor in settlement of the latter’s claim, with the right of redemption -within a specified time, loses all lights and titles of ownership to that property if he fails to redeem within the prescribed delay. Such a contract is one of sale and not of pledge.

      APPEAL from the Civil District Court for tlie Parisli of Orleans. Rightor, J.

      W. S. Benedict for Plaintiff and Appellant.
    P. E. Théard & Sons for Defendants and Appellees.
   The opinion of the Court was delivered by

Poché, J.

Plaintiff sues for an account of certain sums of money and of seeirrities alleged to bave been placed by him in the hands of defendants during the course of extended transactions which ho had with them, and of which they kept the accounts by mutual consent.

The defense is a general denial coupled with the averment that defendants, having issued execution on a judgment which they held against the plaintiff, they obtained garnisment process on several parties who were supposed to hold and control property of their judgment debtor. The answers of the several garnishees showed that the property of plaintiff’s, which they respectively held, had been pledged to them to securePomez’s indebtedness, and that the property thus pledged was barely sufficient in value to secure their respective claims. Whereupon defendants entered into negotiations with plaintiff, which resulted in their acquiring in full ownership, all tire securities for which he sues, on condition of their settling his indebtedness to the garnishees, and other debts to third persons, of payment to him of the sum of three hundred dollars, and of giving him satisfaction of their judgment. They then allege that a few days thereafter, at the. urgent request of plaintiff, and with a benevolent intention of assisting him, they agreed to give him the right of redeeming- his securities within a delay of three or four months, by reimbursing the various amounts which they had paid out for him, and by paying their judgment, reduced by consent to about two-thirds of its amount, in capital and interest, and that on his failure to thus redeem his securities, they had exercised the right of ownership on the same, and had disposed of them as their lawful property. Heneo they owed him no account.

The evidence is simply overwhelming in support of that defense.

It shows to our entire satisfaction that the contract entered into between the parties was one of sale and giving in payment, modified by an agreement of the right of redemption in favor of plaintiff, to be exercised within a specified time.

The right of redemption was not exercised within the prescribed delay, and the defendants then became the absolute owners of the securities in question.

On appeal, plaintiff strenuously contends that tlie contract was one of pledge, and Ms whole argument is directed to show a violation of that contract by the defendants, by means of the sales which they made, on private terms, of the pledged property, without the consent of the pledgor, and without legal authority.

His pleadings do not set forth a contract of pledge, and partake more of the nature of a demand for an account from an agent or other “ negotiomm gestor." His whole reliance in his attempt to shift his position from the attitude of a principal calling his agent to an account (.0 that of a pledgor complaining of the tortious act s of his pledgee, can be attributed to the following incident:

On the day that plaintiff obtained from defendants the right of redeeming his values, he was allowed the privilege of offering them for sale on the market, with a view to accelerate the -final settlement, and to that end he was furnished a detailed list of the securities by the defendant’s book-keeper, who wrote at the bottom of the list, the words : “Pledged to J. B. Camors & Co.,” etc.

We are satisfied -with the^explanation of that error given by the defendants and by their book-keeper. The words iu question were written without the knowledge, consent or authority of the. defendants,' by the book-keeper, in ignorance of the real nature- of the transactions, and under the mistaken idea that his employers’ claim would thus be fortified. Such an acknowledgement by a mere employe could not have the effect of changing the nature of the defendants’ tenure in the premises. We can but repeat our clear conviction that their possession was that of owners, for valuable consideration, subject only to a well defined,.and restricted right of redemption in favor of plaintiff, their transferee. .

The fact, shown by the record, that on receiving^thc securities,'defendants proceeded at once to enter satisfaction of their judgment, whichj the debtor accepted, is a very important and significant circumstance.

Had [theymnderstood their position under the contract to be that of pledgees, and therefore as creditors, they would certainly not Jhave destroyed one of the principal items of their claim, but would on the contrary have taken every precaution to maintain, their judgment in full force and vitality. Having disposed of their own and lawful property, defendants owe no account to plaintiff or any one else.

Judgment affirmed.