text:
    No. 2711.
    M. Frank v. D. C. Hardee.
    A purchaser of r?.al estate assumed the payment of certain mortgage notes as a part of the price. He afterwards obtained from the holder, by an instrument i j writing, an extension of the time of their payment. Held — That the extension of time of payment of tbe notes by a contract in writing was not a novation of the notes and mortgage.
    The averments in an exception which has been taken as an answer to the merits, are judicial admissions, which binds the party making them, and judgment maybe rendered on such admissions, on motion, without a regular trial on the merits.
    APPEAL from Fifth District Court, parish of East Feliciana. Posey, J.
    .Ol Kernan ■& Lyons, for appellee. K. A. Oross and J. IfoVea, for appellant.
   Wyly, J.

In 1805, the defendant bought from Mrs. Jewell a house and lot in Clinton, Louisiana, assuming, as part of the price, the payment of certain mortgage notes, bearing on the property held by the plaintiff, the original vendor. He subsequently came to an agreement, in writing, with the plaintiff, in which it was stipulated that after paying the balance due on one of the notes assumed by him,, he was to have an extension of time on the other two, so as to make one-third thereof payable November 1, 1866; one-third November 1, 1867, and one-third November 1, 1868; the plaintiff, however, was to. retain the mortgage notes, and enter credit thereon as the installments were paid.

The defendant failed to comply with his stipulations, and the plaintiff instituted this proceeding on the two mortgage notes to-foreclose the mortgage, and to recover a personal judgment against him.

The defendant filed what he terms an exception, stating that the obligation, arising from his assumption of the notes had been extinguished by novation; that by an agreement had with the plaintiff subsequent to said assumption, the nature of said debt had been changed by extending the terms of payment so as to make one-third thereof to fall due first of November, 1866, one-third first of November, 1867, and one-third first November, 1868. 0:i motion of plaintiff’s counsel, the exception was taken as an answer on the merits; the defendant then filed an amended answer, repeating the averments of the exception, and setting up equities in favor of recovery on his-obligation arising from his assumption of the mortgage notes.

The plaintiff moved to strike out the allegations inconsistent with the exception, and for judgment on the judicial admissions contained in the exception taken for an answer. The court granted the order so far as to strike out the inconsistent averments, and proceeding to trial on the merits, gave judgment for the plaintiff. The defendant has appealed.

An examination of the record has satisfied us that there is no merit in the defense. The agreement extending the time was no novation; the averments of the exception taken as an answer, were judicial admissions sufficient to entitle the plaintiff to judgment on motion without a regular trial on the merits. They substantially admitted the liability of the defendant, but averred the extension of the terms of payment of the two notes till the first of November, 1866, first of November, 1867, and first of November, 1868. When the plaintiff moved for judgment in conformity to the terms averred by the defendant, there ceased to be any issue to be tried; it was too late then to ask for jury trial or set up new issues; the court should have given judgment on motion. 4 R. 144; 5 R. 447 ; 4 An. 407; 11 An. 746; 20 An. 137. Wo are satisfied that this appeal was for delay, and that-there is no serious defense to the case.

The plaintiff has asked for damages for frivolous appeal, and we think he should have them.

It is therefore ordered that the judgment appealed from be affirmed;, and that the plaintiff recover of the defendant one hundred and fifty dollars damages for frivolous appeal, and costs of both courts.


source: Caselaw Access Project

author: Taliaferro, J.

license: Public Domain

text:
    No. 1866.
    Emily L. Shiff, Tutrix, v. The Succession of Alexander Lesseps—Norbert Soulie, Intervenor.
    A contract between a planter and a factor or commission merchant, whereby the latter binds-himself to furnish the necessary supplies for the working of the plantation, not to exceed a specified amount, and to receive and sell the products of the place for the benefit of the-planter, is a contract of agency on the part of the merchant, which terminates at the death of the agent. By the death of the agent, in such a case, the planter is absolved from all. obligations to continue the contract, and the heirs of the agentare not bound on the contract. Such an agreement is personal, and not heritable.
    Where the agent of a planter has died, and the surviving wife forms a commercial partnership, with third parties, who assume the contract of agency which was terminated by the death of the agent, it was held by the court that the rights of the heirs to the estate of their* deceased father became fixed at his death, and that the surviving -wife, in her capacity of tutrix, could not bind their estate for liabilities of the new firm growing out of the contract of agency which terminated at the death of their father.
    APPEAL from the Second District Court of New Orleans. JDuvigneaud, J.

      L. Castora and C. Hunt, for intervenor, appellant. J?. H. Morgan, for appellee.
   Taliaferro, J.

This suit was instituted by the plaintiff in her representative capacity of tutrix to her minor son, sole heir of her deceased husband, Edward -Shiff, to enforce the payment of $15,294, with interest, by seizure and sale of certain mortgaged property belonging to the succession of Alexander Lesseps, deceased, and to Auguste Lesseps.

Norbert Soulié intervened, averring that he is the owner and holder of notes against the succession of Alexander Lesseps and Auguste Lesseps to the amount of $46,201; that these notes are a part of the same series to which belong those held by the plaintiff, amounting to $15,294, and which she is aiming to enforce the payment of; that all, these notes are of the same date, and their payment secured by a con•current mortgage. Tlie intervenor alleges that from the proceeds of the crops raised on the plantations mortgaged he has not received his pro rata share as he was entitled to under the contract between the Lesseps (father and son) and Edward Shiff, the factor, in his lifetime, of the Messrs. Lesseps. He prays that the claim of the plaintiff be rejected, or at least greatly reduced, and that ho have judgment against her decreeing that, in the event it should appear that plaintiff has any valid claim against the defendants, the same be paid over to him to the extent of $9067 93, with interest, etc.; and in default thereof, that he have, out of the proceeds of sale of the mortgaged property, the said amount, which he claims to be due to him from the estate of Alexander Lesseps and Auguste Lesseps, if not recovered from the plaintiff.

Auguste Lesseps also intervened, sustaining the position assumed by Norbert Soulié, and concluding with a prayer analogous to his.

The defense is, that the claims of the intervenor, if valid, are founded on transactions between him and other persons, to which the minor was not and could not bo a party; that if the intervenor have any just claim against the succession of Edward Shiff, ho must prosecute it in the regular way; that he can not defeat the plaintiff’s right to proceed in the collection of the mortgage notes belonging to the minor by setting up larger claims under the same mortgage.

There was judgment in the court below in favor of the plaintiff for the amount claimed, with an order that the mortgaged premises be .seized and sold to pay the debt, interests and costs, and that the intervention bo dismissed.

From this judgment the intervenor, Soulié, appealed

We learn, from a piretty voluminous record, that in the early part of the year 1859, the Lesseps (father and son), to secure the payment of an indebtedness to Edward Shiff of a little more than one hundred thousand dollars, executed ninety-eight promissory notes, of various amounts, and maturing at different periods. The notes were drawn jointly and severally to the order of and indorsed by Auguste Lesseps, and their payment secured by mortgage on two sugar plantations near New Orleans. It was agreed that Edward Shiff should be the commission merchant and factor of the mortgagors, to furnish the plantations with the usual and necessary supplies, not to exceed twelve thousand dollars annually, to sell the crops, and after first paying the expenses, to appropriate the net proceeds pro rata to the payment of the notes as they became due. Three crops only were thus appropriated — those of the years 1859, 1860 and 1861. Edward Shiff died in October, 1860, so that the crop of 1859 was the only one that he disposed of.

After the decease of Edward Shift, a new firm was established, under the name of E. L. Shiff & Co. The business of the two plantations was carried on in the same manner with the new firm as it had been conducted during the lifetime of Edward Shiff, and under the same contract. The new firm disposed of the crops of 1860 and 1861.

The intervenor predicates his claim upon the hypothesis that the decease of Edward Shiff made no change whatever'in the business arrangements entered into by him with the Lesseps, and consequently that his representative or heir continued to transact in his place and stead, the affairs of the two plantations, furnish them with supplies, sell the crops, and apply the net proceeds according to the stipulations in the written contract between the original parties. In other words, that the obligation entered into by Edward Shiff was heritable, and therefore obligatory upon the heir to execute it on the part -of his ancestor. Article 1994 of the Civil Code declares that, Every obligation shall be deemed to be heritable as to both parties, unless the contrary be especially expressed, or necessarily implied from the nature of the contract.”

The obligation entered into by Edward Shiff seems clearly to have been one of agency on his part. Then, as mandatary, his contract was at an end at his death. C. C. article 2996. The Lesseps were no longer bound by that contract. Their obligation to pay their notes was not changed; they were, however, at liberty to select another agent to perform the functions exercised by Edward Shiff. They seem to have done this. They continued the business with E. L. Shiff & Co., of whicli Arm the widow of Edward Shiff, it appears, was a member.

Auguste Lesseps, in,his testimony, says: “Mr. Shiff died in 1860. I came to the city and had a talk with Mr. Degruy on the subject. He said ho would continue the same transactions as before; by transactions he meant selling the crops of the Monsecours plantation, and paying the notes due on the plantation. Mr. Degruy told me when the house of E. L. Shiff was formed that it did not change my position at all, and that I should ship my crops to them; that the house of E. L. Shiff would always pay the notes given to the house of Edward Shiff & Co. and B. Soulé, the intervenor in this case, whenever they would have funds.”

We are at a loss to see how the minor heir of Edward Shiff is bound by this agreement between third parties. His mother, in her own right and individually, was a member of the Arm of E. L. Shiff & Co.,but as the natural tutrix of the minor, she was without right, if she had been so inclined, to involve the minor in the hazards and risks incident to mercantile adventure. To constitute a minor a member of a commercial Arm is, we imagine, unusual; and certainly it could only be done legally upon the consent of his relatives, duly convoked in family meeting, and after mature deliberation and reasons assigned for it; and lastly, after the approval of the proper court, by a formal judgment sanctioning it. None of these proceedings were taken. C. C. article 348. ,

We are referred to the case of Ferguson et al. v. Thomas et al., 3 N. S. 76, as a parallel ease with the one before us, and as sanctioning the ground taken by the intervenor. In that case Ferguson and Rich gave time to their debtors to pay certain bonds already due, on condition the debtors would, before a given time, furnish a certain amount oí cotton to pay the bonds. Ferguson & Rich, under the agreement, were to ship tlie cotton, and when sold, to apply the proceeds to the payment of the bonds. Rich died before the delay expired, and the debtors, when sued on their obligation, plead that the contract was personal to Rich, who was represented by his mother and heirs. The court decided differently. It regarded the promise as merely to make a dation en payement, and saw nothing in the agreement which gave it the character of a personal obligation. It said: “An engagement to ship cotton may bo performed by any one; the qualities of mind are not the leading consideration that induced the contract.”

In the case under consideration, the agency was personal to Edward Shiff. The relation of the parties was that of planter and factor. The contract was that of mandate. It ceased at the death of the mandatary, and was not heritable. His minor son did not, by effect of law, become the mandatary of the Lesseps. If, by the agency of Edward Shiff, he became liable to the intervenor, the latter has the right to pursue his heir, who succeeds to his father’s succession incumbered with its obligations. If, through the agency of E. L. Shiff & Co., the Mtervenor has been deprived of his portion of the proceeds of crops destined for the payment, rateably, of the notes secured by a common mortgage, Ms recourse is upon that firm. Holding notes to be paid concurrently with those of the minor, the sale of the mortgaged property upon the application of the plaintiff, acting for the minor, can work him no wrong, and he can not prevent the enforcement of the minor’s rights.

From these considerations, wo concur in opinion with the court below.

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


author: Wyly, J.

text:
    No. 1798.
    Sibley, Guion & Co. v. Fernie, Brothers & Co.
    An appeal will not lie from a final judgment until it is signed by tlie judge.
    APPEAL from Fourth District Court of New Orleans. Thcard, J.

      Campbell, Spofford & Ccvmpbell, for plaintiffs and appellees. Elmore & King, for defendants and appellants. W. W. Sandlin, for curator ad hoc.
   Wyly, J.

This is a proceeding against the sureties on a twelve months’ bond given for tho purchase of the property attached in suit No. 1707 of tlie same title as this suit, which property was sold on twelve months’ credit, on the order of court, pending the litigation in said attachment suit.

The judgment appealed from is not an interlocutory order, which need not he signed; it is a final judgment, and is incomplete without the signature of the judge. Our attention is called to the fact that it is not signed. The judgment is inchoate, and the appeal premature. 20 An. 500, 511, 583.

It is therefore ordered that the appeal herein be dismissed, at appellant’s costs.


text:
    No. 2584.
    S. Brou et al. v. Widow P. P. Becnel et al.
    A purchaser of land, slaves and movables may avoid that portion of the contract for which slaves formed the consideration, by showing the relative value of the land, slaves and movables at the time of the sale.
    In determining the relative value of the land, slaves and movables at the date of the sale, the estimate placed upon them by the assessors, for the year previous to and the year following the sale, should be taken as a basis, rather than the estimate of witnesses made ten years thereafter.
    APPEAL from Fourth Judicial District Court, parish of St. Charles. JBeauvais, J.

      Maurice Berault, for plaintiff and appellee. H. King Cutler, for defendant and appallant.
   Wyly, J.

This case was remanded to ascertain the relative value of tho slaves and other property sold to the defendants, and the amount, if any, for which the defendant, Mrs. Becnel, is liable for property other than slaves. See Brou v. Becnel, 20 An. 254.

The district judge, on the trial, came to the conclusion that the slave consideration was one-third the total amount of the purchase price of the land, slaves and movables, and rendered judgment accordingly. The defendant, Mrs. Becnel, has appealed.

That a debt, part for slaves and part for land and movables, may be apportioned, and can only be enforced fc>r that part of the consideraration which was not slaves, we regard as no longer an open question. Sandidge v. Sanderson, Soniat v. Patrick, and other decisions of this court rendered recently.

Indeed, the correctness of the ruling of the court, in this regard, is not questioned by the parties to this appeal.

The matter now presented for consideration is a question of fact.

What was the relative value of the slaves compared to that of the land and movables, at the time the debt was contracted ?

The evidence of the witnesses is conflicting; those offered by the plaintiff fix the value of the lan.d a,nd movables far beyond that of the slaves, while those offered by the defendant make an estimate to the reverse.

We find in the record an abstract of the assessment of the property in 1857, while it belonged to Mrs. Brou; also, an extract of the assessment roll of 1859, made after the purchase by Mrs. Becnel. . By the' former it appears that the total valuation was $46,300, of which $25,-800 was estimated as the value of the slaves; by the latter assessment roll it appears that the total valuation of the property was $44,200, of which $23,350 was estimated as the value of the slaves.

We also find the tax receipts for 1859 and 1860 showing the aggregate valuation of the slaves, land and other property, fixing the value of the slaves in each instance at $23,350, and that of the other property at a less sum.

The sale occurred in 1858; the assessors’ valuations, the year before and the two years succeeding the sale, in our opinion, fix a better standard to ascertain the relative value of the two classes of property than the conjectures of the witnesses, or their conflicting opinions, which we find in the record, and which were given nearly ten years after the sale of the property.

A careful examination of the evidence has brought us to the conclusion that the relative value of the slaves, at the time the contract was made, was equal to that of the land and movables, and as thus apportioned, the debt can be enforced.

The defendant, Mrs. Becnel, is therefore entitled to claim an abatement of one-half of the amount for which she was originally-liable.

It is therefore ordered that the judgment of the court below be annulled, and it is ordered that the defendant, widow P. P. Becnel, be condemned to pay the petitioner, Seraphin Brou, the sum of $2865 72, with eight per cent, per annum interest on the sum of $953 22 from the nineteenth of January, 1864, till paid, and on the further sum of $1912 50 from the nineteenth of January, 1862, till paid; that she be also condemned to pay the petitioners, E. Rochereau & Co., the sum of $1400, with eight per cent, per annum interest thereon from the nineteenth of January, 1862, and $1 874, costs of protest; that she be also condemned to pay the petitioner, Pierre Maspero, the sum of $1325 00, with eight per cent, per annum interest on $662 50 from the nineteenth of January, 1859, till paid, and on the further sum of $662 50 from the nineteenth of January, 1860, till paid, and also $1 50 costs of-protest; that she bo also condemned to pay the petitioner, Dransin Barthelmy Macarty, the sum of $662 50, with eight per cent, per annum interest thereon from the nineteenth of January, 1861, till paid, and the further sum of $4 25, costs of copies of notarial acts. It is further ordered that the vendor’s privilege and special mortgage be recognized as taking effect from the twenty-second of January, 1858, on the property described in the act of mortgage, and that the same be sold according to law, to pay the petitioners respectively the amounts stated in this decree. It is further ordered that the plaintiffs pay costs of this appeal, and that the defendant, Mrs. Becnel, pay-costs of the court below.

Rehearing refused.


text:
    No. 1416.
    Mary Jane Stinson, wife of Joseph Stinson, v. Mrs. V. O. Lelievre et al.
    "Where three lots of ground lying contiguous to each other in the city of New Orleans, designated as lots Nos. 1, 2 and 3, have been specially mortgaged to secare a debt, and it is. shown that lots Nos. 1 and 2, of the series, are incumbered by prior mortgages, and are entirely covered by a building used as a hotel, and that lot No. 3 forms the yard for the hotel, lot No. 3 can not be sold separately from that of Nos. 1 and 2 for the benefit of the-mortgage for which all three stand pledged.
    APPEAL from Sixth District Court of New Orleans. Leaumont, Judge of the Fifth District Court, presiding.

      Alexander T. Steele, for plaintiffs and appellants. J. Ad. Hosier, for defendants and appellees.
   Wyly, J.

The plaintiff purchased from Mrs. Jeter certain lots of ground and improvements, at the corner of Camp and South streets, fronting on Lafayette Square, known as lots one, two and three, the first two being covered by the building called the “Park Hotel,” and the third being the yard of that building on which its side windows and doors open.

Mrs. Jeter mortgaged all three of the lots prior to the sale, describing; them separately in the act. The defendants foreclosed this mortgage,, via ordinaria, and the writ of sale commanded the sheriff to seize and sell the property described in the act. He, however, only seized lot No. 3, and advertised it for sale when the plaintiff enjoined the sale on the ground that at the time of the execution of the mortgage, and. ever since the lots were and have been used as one property, to wit: a hotel, and the lot seized could not be sold separately without impairing the value of the property.

The court dissolved the injunction, and gave judgment, in solido, against the plaintiff, and her security on the injunction bond, for $1591 65 damages, $250 attorney’s fees and costs. The plaintiff and her surety have appealed.

The defendants contend that, as the lots are described separately in the act of mortgage, as the first two are covered by a prior mortgage, and as they originally had separate owners, although contiguous, they are, in fact, separate properties; and that, under their mortgage rendered executory against all three of the lots, it is not irregular and improper to seize and sell lot No. 3, separately from the other two.

The plaintiff, on the other hand, insists that all three of the lots are one property, and that the seizing creditor can not legally sell lot No. 3, the yard of the house, as a detached property, but must sell all or none. The question presented seems to be one of fact.

We find in the record the following admission, to wit: “The building called the Park Hotel covers lots l and 2, or the whole of said lots 1 and 2 are under a roof, and they have windows and doors opening on lot No. 3, and have no other yard except lot No. 3.” It appears to us that a hotel could not well bo conducted without a yard; and as the lot seized is admitted to be the only yard of the building, and that upon which the doors and windows open, it must necessarily be an injury to detach it from the other lots by selling it in the manner attempted by the defendants.

Under the admissions in the record, we regard all three of the lots as one property,'designed for the building and yard of the hotel, and that they can not legally be sold separately under the mortgage of the •defendants.

It is therefore ordered that the judgment appealed from be avoided and annulled, and that the defendants be perpetually enjoined from selling the mortgage premises separately and contrary to the writ •of sale. It is .further ordered that the defendants pay costs of both courts.

Mr. J. Ad. Rozier made the following argument on application for Tehearing:

I.

LAW OF THE CONTRACT.

Legal agreements having the effects of laws upon the parties, none but the parties can abrogate or modify them. Courts are bound to give them legal effect, according to the true intent of all the parties. C. C. 1940. Absolute ownership gives the right to enjoy and dispose •of one’s property in the most unlimited manner, provided it is not used in a way prohibited by laws or ordinances. C. C. 483. Individuals have the free disposal of the property which belongs to them, under the restrictions established by law. C. C. 476. The owner has •the rights of usus frnctm and abusus. Having the control of them in the most absolute manner, he can alienate it, in, part or in whole, he can modify or change completely the form, the destination and the mode of enjoyment, renounce or abandon it; these are attributes so • essential to the right of property that he could not renounce that right. Demolombe Distinction des Biens, vol. I, p. 460.

It would be idle to enter into inquiries as to whether the owner acted judiciously or not, since his control is absolute, including the right to abuse; wo must necessarily limit ourselves to the ascertain.ment of what law the parties have made unto themselves. The evidence of the contract in this cause is to be found in the authentic act of mortgage. Parol evidence can not be admitted against or beyond what is contained in the act. C. C. 2256. We must neither add nor retract, otherwise it would permit parties to set up a verbal mortgage which would infringe the disposition of the Code, “No proof can be admitted of a verbal mortgage,” 3272. A written instrument being of the essence of a mortgage. In this case it is pure and simple. Under the division, first, of the act, the lots Nos. one and two are described in the square composed within Girod, Camp, St. Mary, street and South street, Lafayette Square, described by Nos. one and two, on a plan drawn by Forstall, with the buildings and servitudes appertaining, known as the' Florance House, and under that of second, is •described, separately, under the denomination of a certain lot of ground, designated on a plan referred to, having the privilege of using in the rear a corridor three feet wide, opening on Camp street, which is reserved for the use and benefit of the lots one and two and No. 9, on said plan.

The dimensions of each lot is stated to be twenty-five feet by a depth •of eighty-seven feet, except lot No. three, depth ninety feet. Observe the word certain, which means a specific, determinate, independent lot from Nos. one find two. The same word is not used with respect to the other two lots, for the intention was to hold these lots as one entire property, for the evident reason that one house stood on both Mark, 'nothing is said in division second about the Florance House.

Had the intent of the contracting parties been to make the three lots one entire thing — a unity — the description would r.un thus: “ A certain lot composed within the square (already named) with eighty-seven feet front on Camp street, and seventy-five front on South street, Lafayette Square,” and ninety feet deep on the west side.

The mortgage imposed on-lot No. three, by the terms of the act, is ■pure, simple, absolute — hoe servabitur, hoe pro cauto habendum est. Tiie mortgagor is thus irrevocably bound, likewise his heirs and assigns. It is thus that you must always revert to the source and cause of the contract to determine the mode of execution, and that at the time of the formation of the contract, in order to ascertain the extent of the obligation. Proudhon des Personnes, vol. 1, p. 44. The mortgagor after this is no longer free — mutation of right has taken place — the vinculum juris is created, at the instant of the signing of the mortgage act. The destination of the things can not be changed — you can not afterwards create a principal, nor change an accessory. Nemo potest mutare consilium suum, in alterius damno, nor create a servitude.

It matters not whether the lot No. three, at the time of the contract, was an accessory of Nos. two and three — there is nothing in the act adverting to this. No instrument of writing recorded even.alludes to it — verbal testimony is inadmissible — any ambiguity, the. interpretation is against the stipulating party — verba intelligunt-ur contra proferentem, obsemütas, paeti, no cet venditori quia potest integra apertius dicere.

The lots Nos. one and two were plastered ovor with enormous mortgages, especially to the Citizens’ -Bank, 421 shares of the capital stock, for millions (we will give details), and other special mortgages, heavy in amounts, at the time the mortgage was executed by Mrs. Jeter to Widow 0. Lelievre & Co. (see act of mortgage), and therefore if the lot No. three was to be tacked on, made indivisible, appurtenant to the other two, a sine qua non that the mortgagee should bo enjoined from selling unless the three lots should be sold in block, we can readily conceive that Widow Lelievre & Co. -would have held on to their money.

In truth and in fact, the mortgagors in this very case did obtain their money by holding out the inducement that the lot No. three, being separate and distinct property from the other two lots, a first special mortgage on lot No. three would present the best security, inasmuch as it would sell better if sold detached from the other property, being more valuable to any one who held the other, and thus she could sell the lot No. three to advantage and get her money promptly and surely.

Merlin, vol. 14, Hypotheque, p. 126, that in these divers cases the hypothecary creditor has a right in law to make sale of the whole or of a portion of the immovable properties mortgaged, and to exact the payment of the totality of his debt, if they be sufficient.

In 3 La. 433, G-aiennio v. Questi, “the mortgagor can not complain that only part of the premises were seized, though he might object that this part was more than sufficient to satisfy the debt.” A mortgaged square can be sold in lots. Planche v. Gravier, 6 N. 599.

Even if lot No. three, at the time of the mortgage was indispensable for the utility of the hotel, there being no other yard, still the mortgagor had a right to dismember it. But where is the evidence that the hotel could not be kept without this yard ? On the contrary, we find that the three loteare entitled to the use of an alloy or corridor, in common, three feet'wide, opening on Camp street (28), and. that lot No. three is deeper than the others. The corridor was sufficient Ra-the hotel. As to the opening oí windows on lot three, it is not recognized by the act of mortgage, and oven if it could be shown that the owner had established a use on a particular part of his property iavor of another, still he had a right to mortgage and extinguish any such servitude. The intention to create a servitude for .the respective property will not suffice when such intention is not carried into effect. See Gottschalk®. De Santos, 12 An. 475. The court says : “ Neither was there anything said expressly about this-servitude in the mortgage of the three lots, nor in the sheriff’s sale to Lanouse when a title was made to him, after they had been sold to satisfy the mortgage, as then' the alley way was not expressly mentioned in the mortgage; unless is considered an apparent servitude, it was not necessarily one of the dependencies or appendages of the lots, and could not have been mortgaged with them, and consequently was not sold by the sheriff Lanouse, who could have no greater rights than Lambert, the mortIb. 475.

Moreover, it being clear that there was no servitude at tho time of the mortgage, the textual imovision of the Code, 947, is applicable here: “ An estate being mortgaged does not prevent the owner from establishing servitudes on it, saving always to the creditor the right of demanding his debt, if the establishment of servitude depreciates the value of the estate, or of causing the estate to be sold as free from all servitudes. If Mrs. Jeter, or her vendee, after she mortgaged the property to Widow Lelievre &- Co., created servitudes on the properties, she, as a creditor, has the right to sell it as free from all servitudes. Mortgage is a quasi alienation. Citizens’ Bank v. Armor, 11 An. 468.

But the plaintiff does not contend that there were servitudes on the lot No. three in favor of lots Nos. one and two ; she merely sets up that the three lots would sell bettor in block; see her petition (1); that the whole properties were one. If so, then all servitudes were extinguished by confusion. C. C. 779.

II.

Impossibility or Selling Lots Nos. 1,2 and 3, in a Block, owing to the Citizens’ Bank Stock Mortgage and other Conventional Mortgages.

The plaintiff, in injunction, alleges that tho judgment of Widow 0. Lelievre & Co. is secured by special mortgage on property worth ten times tho whole-amount they-claim; (3); it was incumbent on her to prove it; she did not even make any proof at all as to the value of these lots; the onus prodandi was on her, more especially as the defendant in'injunction proved the enormous amounts of incumbrances on lots Nos. one and two. Tho very first conventional mortgage on the two last mentioned lots (not on No. throe) was one in favor of tho Citizens’ Bank, to secure $31,500, interest and costs, in the capital stock of said bank, passed before Seghers, notary, eleventh February, 1837, (23), by Florance and Mrs. Jeter, who purchased from Florance, on the twenty-third February, 1853, (22, 23.) 2d. A special mortgage by Mrs. Jeter, to secure $16,350, interest and costs, per act notarial, thirtieth April, 1857. 3d. The special one granted by Mrs. Jeter, on tho eleventh of March, 1859, to secure $13,500, interests and costs;, mailing a total of $61,350, without computing interest, which, if added to the above, would exceed one hundred thousand dollars. Now, plaintiff alleges that the three lots were worth ten times the amount due Widow O. Lelievre & Co. What is that amount 7 Principal and interest, $7480. We see, then, by his own admission, that the three lots were greatly under her own valuation, by much more than even forty thousand dollars.

But this is not all; she ignored that there were 421 shares, of one hundred dollars each, of the capital stock of the Citizens’ Bank, secured by mortgage on these lots Nos. one and two alone. By section twenty-eight of the charter of this bank, all the.properties mortgaged to said bank,'as ■ aforesaid, are preserved as á pledge for the final payment of tho loan of twelve millions of dollars made by said corporation, until the final payment of all and every the bonds issued as aforesaid. The court knows, and is hound to take judicial cognizance of the fact, that only seven millions of these bonds were negotiated by the bank. The amount now due by the Citizens’ Bank on her bonds is four millions four hundred and thirty-six thousand sixty-six dollars ; and every foot of soil mortgaged to the bank, as aforesaid, is liable (including lots one and. two) to secure the payment of these millions of dollars.

Would the court force us to advertise these three lots in a block, incurring costs? Now, how could the properties ho sold in a block? Suppose the purchaser hid, at the sheriff’s sale, a price for the whole, could you say what portion of tho price he considered he had given for lot No. three ? The ascertainment of this would he indispensable, so as to know what amount of the price should be apportioned to the extinguishment of the first special mortgage on lot No. three. What mode could bo devised to figure it out ? None. The law provides none.

III.

DE NON ALIENANDO PACTO.

In the act of mortgage by Mrs. Jeter to Widow 0. Lelicvre & Co., “slio promises and binds herself not to sell, alienate, mortgage or incumber tho same (tho mortgaged properties) to the prejudice of the present act.’’

The purchaser and third possessor is not entitled to notice of the proceedings to enforce the mortgage containing the said pact. Smith v. Nettles, 13 An. 241; 8 An. 58 ; 9 Rob. 09, etc.

Mrs. Stinson, curatrix, was not a party to these proceedings; she had no right to interfere. The execution of the judgment and mortgage, according to the contract, was a matter solely against Mrs. Jeter; she alone could enjoin or interfere with tho proceedings under the writ. The injunction, on this ground alone, should have been dismissed.

IV.

MILITARY AUTHORITY.

General Sheridan v/as in command of tho Fifth Military District, under the reconstruction laws. He permitted lot No. three alone to bo sold,'and gave his authorization to tho sheriff therefor. In Humphrey v. Brown, 19 An. 158, relating toa seizure of property undo-r a fieri facias issued by a State court, it is laid down that the military order issued by him was paramount authority. In fact, he created "judges, and by the section three of the act of Congress, 1866, An Act to provide for the more efficient government of the rebel States,” it was madehis duty “to protect all persons in their rights of person and property, etc., and all interference under color of State authority, with the exorcise of military authority under tho act-, shall he null and void.”

v.

PLA1NTIEE NO INTEREST IN THE INJUNCTION; EVEN IE SIIE HAD, DID NOT COMPLY WITH THE REQUISITES OE THE LAW.

Having shown, the .pretensions of plaintiff unfounded, in toto, need we say that she sued out the injunction only the day before the property was advertised to be sold. She had made no opposition to the advertisement or the appraisement, and took no action in court adverse to the proceedings of the sheriff. By article 649 C. P., the debtor loses the right of pointing out to the sheriff, if he allows the sheriff to execute the writ and advertise for sale the goods seized, without exercising the right, if she had any.right, she thus waived it.

Iler intention was merely to hinder and delay. Her husband purchased the property of Mrs. Jeter, but has never paid her, as we find in the certificate of-mortgage that ho granted a mortgage to his vendor to secure the enormous sum of $80,352 90 on the properties hereinbefore referred to. Can she even be termed a nominal party! No, an inter-meddler, without the remotest possibility of its inuring to the benefit of any one. We further see a long list of judicial mortgages against her husband, amounting to $9,197 principal, add interest, which would be more' than double the amount Mrs. Stinson even figures, as one of these debtors. See pages 19, 20, 21, filled with the recital of them.

Here arises an important matter as to these judicial mortgages! They could not‘be extinguished unless the Citizens’ Bank, holding the first conventional mortgage, sold the lots one and two, on which alone stood this mortgage, which could alone rid the property of these mortgages. Widow Lelievre & Co., by selling the three lots in block, could not remove these incumbrances from the properties one and two. We humbly submit that the purchaser’s title would be defective — no bid would have been made. This, then, is another grave reason why Widow Lelievre & Co. could not sell in block the three lots.

Judgment of this court can not be executed since the appeal was heard in this cause, (for it has been a long time under advisement) the Citizens’ Bank has foreclosed her stock-mortgage, (the first conventional one), and the lots one and two were adjudicated to the said bank on the seventh day of September, 1868, for the sum of twenty-five thousand one hundred dollars. (See certified copies of these proceedings, annexed to this petition, and made a part hereof). It thus appears that the bank is the only party that is benefitted, and that other mortgaged creditors, whose mortgages by the fact of the sheriff’s sale are extinguised, receive nothing, and the absolute title is now in the bank.

The judgment of this court, under anj^ circumstances, is now impracticable.

Further, the appeal being only devolutive, Widow 0. Lelievre & Co. have executed their judgment and foreclosed their mortgage on lot No. 3, and having purchased it, they have sold it to a third party. (See sale of sheriff and acts of sales hereunto annexed and made a part hereof).

The actual results prove conclusively that the positions we took and are still contending for, we humbly submit, were and are correct, and that the assertion we make, in saying that the plaintiff in injunction had not the remotest possibility of an interest in the sales of the properties, as above demonstrated.

The enormous mortgages on the lots one and two made it an evident impossibility for Widow 0. Lelievre & Co. to sell the property in block. There was only one course to be pursued on their part; otherwise it would be a forfeiture of their rights under their first mortgage on lot No. one. According to the law of tlie contract, they exercised their rights; any other construction, we submit, impairs the obligation of contracts. ' • ,

As will be seen in the proceedings of foreclosure, Mrs. Stinson, through her attorney, on the twentyTfifth of February, 1808, made the following agreement: Please stay execution for sixty days, and if Mrs.' Stinson has not then satisfied the bank, you will continue the proceedings to sell the Florance Verandah Hotel.” (18.) Is this not a ratification of the sale of lots No. one and two of the lot No. one, and consequently an abandonment of the appeal herein? If correct, this court should dismiss this appeal. The agreement then, also, that Mrs. Stinson could not even satisfy the first mortgage on lots Nos. one and two. We would suggest that in questions as to the mode of execution of a judgment, the ruling of a lower court should not be interfered with, unless clearly erroneous.

Rehearing refused.


text:
    No. 1979.
    Laurent Uter v. Felix Dumonteil.
    Where no bills of oxception nor assignment of errors are attached to the record, and the appellant has filed no brief in the case, damages will be given the appellee for frivolous appeal.
    APPEAL from Seventh District Court, parish of Orleans. Gollens, J.

      Duvigneaud & lis'sot, for plaintiff and appellee. A. Pitot, Jr., for defendant and appellant.
   Wyly, J.

The plaintiff alleges that in the month of August, 1867, lie entered into a contract with defendant, F. Dumonteil, whereby he obligated himself to put up and set in back settings and gilt moldings, etc., in the confectionery establishment and ice cream saloon of the defendant, certain French looking' glass plates, enumerated and detailed in the account annexed to the petition, for the price of $2047 50; that by the agreement, he was to import said French looking glass plates, back settings, moldings, etc., and put them up in said establishment from the twentieth of September to the first of October, 1867; that he made the said necessary importations to fulfill his engagement, and in due time notified the defendant of his readiness to commence and fulfill his part of the agreement; that the defendant requested him to postpone it till the latter part of September, and he postponed it from month to month, at his request, until the eleventh of July, 186S, when he informed him that his orders had been executed, as ho had notified him several times, and that he had always been, and still was ready, to put up tlie looking glasses in accordance with their contract; that the defendant failed to comply with his part of the contract, after being put formally in mora.' The defendant pleaded the general denial. The court gave judgment for the plaintiff for the amount claimed, and the defendant has appealed.

The appellant has furnished us with neither a brief nor an oral argument in support of his defense.

An examination of the record has satisfied us that the averments of the plaintiff are fully established by the evidence, and that there is no error in the judgment. Ho has ashed for damages for frivolous appeal, and they should bo awarded him.

It is therefore ordered that the judgment appealed from be affirmed, and that plaintiff recover of the defendant one hundred and fifty dollars damages for frivolous appeal.


author: ‘Taliaferro. J.

text:
    No. 2724.
    William D. Birch v. William S. Bates.
    ' After prescription lias accrued, parol evidence is inadmissible to establish an interruption. Acts of 1858, No. 208, section it; 20 An. 293.
    In a proceeding under an order of seizure and sal© tho sheriff must give notice three days before he makes the seizure. Seizure first and notice afterwards is irregular, and will be set aside on appeal.
    'A sale of property by the sheriff, without giving notice to the seized debtor as required by law, is a nullity, and conveys no title whatever to the purchaser.
    APPEAL from the Sixth Judicial District Court, parish of St. Helena.

      Pilis, J. George H. Penn, for plaintiff and appellant. MeVea & Punter, for defendant and appellee.
   ‘Taliaferro. J.

This action is brought to rescind an order of seizure and sale. It seems that the defendant, Bates, being owner and holder of two promissory notes drawn by plaintiff on the fifteenth of December, 1857, payable respectively in one and two years after date, and secured by mortgage on two small tracts of land, took out an order of seizure and sale, under which, in December, 1867, tho land was sold, and Bates became the purchaser. Birch now sues to rescind the sale and to recover the property. The defendant had judgment in his favor in the court below, and the plaintiff has appealed.

The grounds of the action are that the notes were prescribed at the time the petition for the order of seizure and sale was presented; that no notice of the order was served upon him; that during the time the proceedings were going on by which his property was sold, he was absent from the State, and had no knowledge of them, and could make no defense. A series of credits, mostly of small sums, were indorsed on the notes, the first dated November 11, 1858, the second, on the tenth of November, 1866, and the last, on the sixteenth of that month and year. To each of these credits, the name of the defendant is affixed. It appears from the record that a proper notice of the order of seizure was, in the first place, issued and placed in the hands of the sheriff, who returned that the defendant, Birch, had left the State, and consequently that no service could be made upon him. Thereupon, soon afterwards, an attorney ad hoe was appointed to represent him. Subsequently the sheriff, after making sale of the property, indorsed on the writ the manner in which he had executed it. He recites that he received the writ on the twenty-second of October, made the seizure on the twenty-third, and on the twenty-fifth that he “ served a notice of seizure on W. D. Birch’s counsel,” and advertised the sale on the thirtieth, etc.

The note last due, viz: on the fifteenth cf December, 1859, having a credit bearing date November 11, 1858, was clearly prescribed at the time the next credit was placed upon it, November 10, 1866, unless the obligation was renewed by a subsequent recognition of the debt and a promise to pay it. Bates introduced himself as a witness to prove the acknowledgment of the debt by Birch, his promise to pay it, and the genuineness of the credits as indorsed on the notes. The plaintiff objected to this evidence; the court overruled the objection, and a bill of exceptions was reserved. We think the objection was well taken, and that the testimony should have been excluded. The act of March 18, 1858, sections 2 and 3, provides : “That hereafter parol evidence shall not bo received to prove any promise to pay any written obligation where prescription has already run, but that in all such cases the promise to pay shall be proved by written evidence.” See 21 An. 293, Offutt v. Chapman et al.

The notice required in cases of proceedings via executiva, is the notice that an order of seizure and sale has been rendered. This notice is served upon the defendant three days before the seizure is made, in order that he may pay the debt or otherwise satisfy his creditor to prevent his property being seized. The seizure first, and then notice of seizure, does not fulfill the requirements of the law. Where recourse is had to this summary mode of enforcing the payment of obligations, it has been frequently held that the plaintiff should be strictly required to comply with all the legal formalities under pain of nullity. 11 M. R. 607; 9 L. R. 542; 6 L. 6; C. P. article 735.

There being then no notice to the defendant, the proceedings had after the order was issued, are necessarily illegal and without effect.

It is therefore ordered, adjudged and decreed, that the judgment of the district court be annulled, avoided and reversed; it is further ordered that the sale of the plaintiff’s land, made by the sheriff on the seventh of December, 1867, be declared null and void, and that the plaintiff recover the same, and be put in possession thereof, without prejudice to the defendant to prosecute his claim under the order of seizure and sale according to law; the defendant and appellee paying-costs in both courts.

Rehearing refused.


text:
    No. 2726.
    Zoe Sharkey, Test. Ex., v. Leslie Bankston et al.
    If a party takes a devolutive appeal from a final judgment and gives bond, and altewards abandons it, lie can not be permitted to take a second appeal oj giving a new bond.
    APPEAL from Sixth District Court, parish of St. Helena. Ellis, J.

      George W. Penn, for plaintiff and appellant. T. di J. Ellis, for defendants and appellees.
   Wyly, J.

A motion is made to dismiss this appeal: First — Because the -plaintiff, having abandoned her devolutive appeal, returnable the fourth Monday of February, 1869, and extended by this court for two weeks, can not take a second devolutive appeal after the lapse of the time to which the first appeal was extended. Second — Because the plaintiff filed in the court below, after the time had elapsed for the return of her first devolutive appeal, her formal abandonment of her appeal in writing. Third — Because the second order of devolutive appeal was granted in plaintiff’s name, after the abandonment of her first appeal, and after her death, one of the counsel having obtained the second order of appeal in her name, and signed her name to the appeal bond, just forty-five days after her death, in the Charity Hospital.

After the lapse of the time at which the first devolutive appeal was made returnable, and the extension granted by this court, there was evidently an abandonment of the appeal, and the plaintiff, if alive, could not legally get a second order of devolutive appeal and give a second appeal bond in the court below. C. P. 594; Roberts v. Benton, 1 R. 100; Jenkins v. Bond, 3 An. 339; Brickell v. Connor, 10 An. 235.

The appeal is therefore dismissed.


text:
    No. 2767.
    State, ex rel. E. V. Fassman et al., v. The Judge of the Second District Court of New Orleans.

      An appeal will lie from an interlocutory judgment of tlie probate court, rendered on a rule against the executor to show cause why the sale of certain property should not be stopped, and a writ of mandamus will, on application, issue to the judge to send up the record.
    APPLICATION for a Writ of Mandamus.

      Albert Voorhies and J$. Howard McOaleb, for relators.

      JDuvigneaud, Judge.
   Taliaferro, J.

The relators complain that the judge of the Second District Court of New Orleans refuses to grant them a suspensive appeal from a judgment rendered by him on a rule against Bancker, executor, and others, to show cause why the sale of certain property of the succession of Henry Passman, deceased, advertised for sale, should not be stopped, and the sale proceeded with in conformity with an order of the court previously rendered.

Upon application to this court for a writ of mandamus, a rule nisi was granted, and the judge answered that he had rendered no judgment from which an appeal lies; that in the matter of the succession of Fassman, the testamentary executor obtained an order of sale of property of the succession, and, after the first offering, he assumed to have the property advertised for sale a second time, on terms different from those fixed by the order of the court; that upon the rule taken, he deemed it his duty to order the sale to be made in accordance with law and the order of the court.

We think the appeal should have been granted. The order rendered was in the nature of an interlocutory decree, which might work irreparable injury.

It is therefore ordered that the rule be made absolute, and that the judge of the Second District Court be ordered to grant the appeal applied for by the relators, and that it be made returnable to this court according to law.


author: Wyly, J. Taeiaeereo, J.,

text:
    No. 2607.
    Sinnot & Adams v. Gervais Schlater et al.—Sinnot & Adams v. David N. Barrow. (Consolidated.)
    "Where the evidence shows that the owner of a promissory note placed it in the hands of commercial agents for the purposes of negotiation, and the agents afterwards bring suit as owners, the maker of the note can plead all the equities in the suit that may exist against the original holder and owner, although it may be shown that the note came into their possession, as agents, beiore maturity.
    APPEAL from the Fifth Judicial District Court, parish of Iberville. Ü Posey, J.

      Benlinclc Egan, for plaintiffs and appellees. Barroxo &■ Pope, for defendants and appellants.
   Wyly, J.

Plaintiffs have sued the defendants as makers and indorsers of a promissory note for $3000, given to J. D. Clark for the. charter of the steamboat “Mattie Cook,” who authorized the charterers to make certain repairs to said boat, and deduct the cost thereof in settling said note.

The defendants admitted the signatures, and the correctness of the note, but claimed a deduction of $840, for costs of the repairs made, according to the agreement of Captain Clark, and alleged that at its maturity said note belonged to him, and if ever transferred to the plaintiffs, was so transferred after maturity, and is held by them only .for collection.

There was judgment for plaintiffs, and the defendants have appealed. The only question in this case is, whether the plaintiffs are the holders of the note before maturity for value, and without notice of the equities between the original parties to the instrument.

It appears that Clark was the master or agent of both the “Mattie-Cook” and “Homeyer;” that, in order to raise funds to pay in part the repairs to the Homeyer, he gave to Sinnot & Adams, commercial, agents of said boat, the note sued on, which they indorsed and negotiated in the City National Bank, and placed the proceeds thereof, less. $75, the amount of commissions and interest, to the credit on their books of said steamer Homeyer, or Captain Clark.

One of the plaintiffs, Sinnot, testifies that: “The note of $3000 was discounted in the City National Bank; after this, and when the note fell due, .Sinnot &. Adams paid the amount of said note, say $3000, to the City National Bank, which left the steamer Homeyer, or Captain Clark, indebted to us in the sum above mentioned.”

It appears to us, from the evidence, that Sinnot & Adams acted' throughout merely as commercial agents, and never owned the note,, nor did they ever hold it in pledge. The note was given to Clark by the defendants; he indorsed it to the plaintiffs for the purpose of raising funds to pay for repairs to the Homeyer; they, being commercial agents of the Homeyer, indorsed the note and got it discounted at the City National Bank, and after charging Clark $75, the amount Of commissions and interest, they credited his account with the proceeds— $2925; when the makers of the note failed to pay it at maturity, they took it up, and charged the $3000 advanced for. that purpose to the Homeyer, or Clark; after erasing their indorsement, and also Clark’s indorsement, they brought suit on the note in their name, but charged Clark the $20 cash for expenses to Plaquemine to bring the suit.

Now, if they owned the note, why did they charge Clark commissions for selling or negotiating it, and credit his account with the proceeds? If they owned the note, why did they charge Clark with the $3000 advanced to take it up after the makers failed to pay it? If they owned the note, why did they release Clark as an indorser by erasing his signature from the note after taking it up ? If they owned the note, why did they charge Clark the $20 cash expended in going to Plaquemine' to bring this suit ?

We hardly think an intelligent commercial firm of this city would charge commissions for indorsing and negotiating paper which belonged to themselves, and that they would so far forget their own interest as to place the proceeds of an asset belonging to them to the credit of another person. Nor do we think they would take up their asset at the bank to protect their name as indorsers, and charge another person with the amount of cash advanced to redeem that which belonged not to him, but to themselves. It is also quite improbable that Sinnot & Adams would erase Clark’s name as indorser, if they owned the paper; .and still more so that they would charge Clark with cash advanced by them to go to Plaquemine to bring this suit, if they owned the note.

Prom their own books, and from their own evidence, we have no ,doubt that Clark has the same ownership and control of the note that he had at the time it was given to him. Plaintiffs’ connection with it has evidently been that of commercial agents, acting for the party who placed it in their hands, charging commissions for negotiating it at the bank, and crediting the proceeds, and again charging the cash advanced to redeem it at maturity, and again charging all expenses incurred in instituting this suit to the party owning the note. Add to this the testimony of M. Pilcher, who says: After the maturity of this note, witness was present at a conversation had in the office of Pilcher & Barrow, between David N. Barrow and J. D. Clark; witness recollects that J. D. Clark called upon David N. Barrow at that time to settle this note, and Mr. Barrow offered to settle the note, if Mr. Clark would allow the credit of this account upon it; Mr. Clark refused to do it.” Add to this the evidence of David N. Barrow, who, at the maturity of the note, notified Captain Clark to meet him at the office of Pilcher & Barrow, who says that: Witness found Captain Clark there when he arrived, and immediately entered on the subject of that note; witness showed him this account, annexed to defendants’ answer, as well as the agreement he had made at the mouth of Red River, and which witness had with him, and told him that if he would allow that account, lie was ready to settle the balance of the note; Mr. Clark refused to do so, became very angry, and left the office. During that conversation in everything that Mr. Clark said he led witness to believe he was the holder of the note.”

From the evidence, we are satisfied that the plaintiffs only hold the note for collection for Clark, and that the defendants have the right to interpose any offsets or equities they have as against him. There is no doubt of the correctness of the account of $840 for repairs to the “ Mattie Cook,” and that the same was agreed to by Clark. The correctness of the amount of the note, except the amount of this offset, was admitted by the defendants, and judgment was entered against them, on motion, before the final trial in the court a qua. The contest, then, at the trial, was only as to the amount for which the defendants claim the aforesaid deduction.

We are satisfied that the judgment appealed from is erroneous.

It is therefore ordered that the judgment of the court a qua be reversed and annulled, and that there be judgment for the defendants, the plaintiffs paying costs of appeal and all costs of the court below arising since the entry of judgment, on motion, for the amount admitted to be due by the defendants.

Taeiaeereo, J.,

dissenting. The note belonged to the owners of the “Mattie Cook.” That is clear from the record, and the presumption that would otherwise arise that Clark was the owner is rebutted. Then, ab initio, the note did not belong to the owners of the Homeyer, and could not become the property of that company without a transfer or some legal process by which the title passed. Now, I consider that it is wholly immaterial whether Sinnot & Adams took the note unconditionally, as a credit -pro tanto on the debt the Homeyer owed them, or whether they took it with the condition that they would collect it, and, after paying the expenses of collection, pass the amount r ealized to the credit of the Homeyer.

The note was transferred by Clark in August, and it became due in October following. Clark indorsed the note over to Sinnot & Adams, ■either in their own right or as the agents of the Homeyer. In either case there was a transfer before the maturity of the note, and there is not the slightest evidence in the record showing that Sinnot & Adams, when they took the note, knew that it was entitled to the credit the •defendants contend for. Clark, I understand, was the agent for the Homeyer, and the agent also of the Mattie Cook. Sinnot & Adams were not the agents of Clark. The evidence is plain that he held the note as the agent of the'Mattie Cook.

It is clear to me that Sinnot & Adams were entirely satisfied that the note was good, and would be paid when' it fell due, and took it unconditionally. They credited the Homeyer with the amount of it, after deducting the discount they made on it when they negotiated it in bank; and when, at its maturity, it was protested, and they took it up, they were again in the same position they were when they first took it. Their going back upon Clark for costs of protest, etc., shows nothing that alters their position as bona fide holders, without notice of equities between the prior parties.

For these reasons, I dissent from the opinion of the majority of the court. • Story on Promissory Notes, page 222, section 195.

Rehearing refused. •


text:
    No. 2720.
    Tutorship of Jane Stokes.
    The s’gning of an appeal bond by the husband in a suit: where the wife is plaintiff, and Ms joining her in an assignment of errors filed in the Supreme Court, is not a sufficient complianoe with article 123 of the Civil Code. The authorization of the wife must be given either by the husband or the judge before the trial of the cause in the court a qua.

    An appeal taken from a judgment where the wife is plaintiff will be dismissed on motion, if it appears that she was not legally authorized to prosecute the suit in the court below.
    APPEAL from the Fifth District Court, parish of East Feliciana. Posey, J.

      Gross & Hardee and Pace, Poster c6 PI. T. Merrielc, for lilaintiffs and appellants. IleVea & Hunter, for defendant and appellee.
   Wyly, J.

Jane Stokes, wife of Wm. M. Lindsay, instituted this suit against Sothey Hayes, the surety on the bond of her tutor, to recover $968 14 and interest, the amount of the liability of the latter to her.

Her demand was dismissed by the court of the first instance, and she has appealed.

A motion is made to dismiss this appeal, for the reason that there is no evidence in the record of the authorization of the plaintiff by her husband to institute the suit, or to stand in judgment.

The plaintiff contends that, as the appeal bond is signed by her husband, and as he has joined her in an assignment of errors filed in this court, article 123 of the Civil Code, prohibiting the wife from appearing in court without the authority of her husband, has been sufficiently complied with.

We can not assent to.this proposition. The husband must appear with his wife, or she must exhibit her authorization before 'proceeding to trial on the merits. The signing of the appeal bond, and the filing of an'assignment of errors in this court, will not cure the defect existing at the trial in the court below — -the want of capacity of the wife to stand in judgment. 2 R. 12; 4 La. 259; 10 An. 504; 2 An. 140; C. P. 320, 321; Succession of E. H. Pomroy, 21 An. 576.

.She had no .authority .to institute the suit, to stand in judgment, or to.apply for the order of. appeal.

■ It is therefore ordered that this appeal be. dismissed, at appellant’s costs.


author: Howell, J.

text:
    No. 2653.
    Eliza C. Johnson v. Succession of A. J. Lowry et al.
    A mortgage loses its rank if it is not reinscribed within ten years.
    The fact that the records of the mortgage office are shown to have been removed from the place where thoy were usually kept, and the office closed for’two or three years, will not relieve a party from the effect of failure to reinscribe within the time required by law. In a case of this kind, recourse on the part of the party suffering, would lie against the officer for removing the records, and thereby putting it out oí his power to have the reinscription made.
    APPEAL from the District Court, parish of Madison. Farrar, J.

      Sparrow & Montgomery, for plaintiff and appellee. F. R. Farrar and A. R. & R. R. Ogden, for defendant and appellant.
   Howell, J.

The plaintiff instituted this suit against the succession of Lowry, for the purpose of enforcing her mortgage, and made WR. Hynes a party in order to subordinate his mortgage in rank to hers. Hynes’ mortgage was inscribed on the tenth of May, 1855, and rein-scribed on the sixteenth of November, 1865. The plaintiff’s mortgage was inscribed on the seventh of February, 1857, and was reinscribed on the twentieth .of March, 1866. According to these dates, the mortgage in favor of Hynes lost its rank, and that in favor of Mrs. Johnson took precedence; but Hynes contends that he was prevented by absolute impossibility from reinscribing his mortgage during the period from the spring of 1863 to the sixteenth of November, 1865, on which day he made the reinscription, and invokes the maxims: “ Lex neminem cogit ad vana sue impossibiKa,” and “ratione cessante cessat et ipsa lex.”

Admitting that these maxims can, in any event, be invoked against our laws of .inscription and registry, which we are by no means prepared to do, this case does not come within their jitst application.

.The proof of the impossibility to reinscribe is the testimony of the parish recorder, who testifies, on the seventeenth of June, 1868, that he has been recorder of Madison parish since 1850; that the office was closed some time in the spring of 1863; it was opened on the sixteenth of November, 1865; the records were, part of the time, in the swamps of Madison, and part in the parish of Franklin; the reinscription of Hynes’ mortgage was made on the day the office was reopened; the mortgage could not be reinscribed, unless it was done before the office was closed, in 1863. He knows nothing else.

■ This does not account ior the closing of the office and removal of the records to the swamps; nor does it show by whom it was done, or for what cause. If we are to resort to presumptions, they will not aid the recorder or benefit Hynes. To admit such facts as a legal excuse for non-reinscription, as required by positive law, will put it in the power of every parish recorder to control and destroy the rights of mortgages, The recorder, in this instance, may have made himself responsible in damages to Hynes, but certainly the facts can not affect the legal rights of Mrs. Johnson, resulting from the presumption of Hynes’ mortgage.

It is therefore ordered that the judgment of the district court, in favor of Mrs. Johnson, plaintiff, be affirmed, with costs.

Rehearing refused.


text:
    No. 2599.
    S. Woolfolk et al. v. E. Woolfolk.
    An appeal will not lie from an interlocutory judgment, where it is not shown that irreparable-injury would follow.
    Mere delay will not authorize the intervention of the appellate court.
    If the interlocutory judgment is erroneous it may he corrected on appeal from the final judg. ment in the cause.
    An injunction will not he dismissed on account of insufficient security, if it appears that the party will he immediately entitled to the same remedy; hut, the judge a qiio, may in his discretion permit additional security to he given.
    APPEAL from the Parish Court of Iberville. Moore, Parish.Judge..

      Samuel Mathews, aud Baee, Foster & F. T. Merrielc, for plaintiffs- and appellants. Talbot <& Fuqua, for defendant and appellee.
   Howell, J.

The heirs at law of Austin Woolfolk, deceased, obtained a judgment against their mother, the widow in community, decreeing a partition of the property held in common, fixing the respective shares or proportion of each of tbe parties, plaintiffs and defendant,, ordering the said property to be sold for the purpose of partition, and referring the parties to a notary to complete it. The order of sale was-issued to an auctioneer, and under it the property was advertised,, whereupon M. Hebert, as administrator of the successions of Thomas Mille and wife, and E. Durrive, for the use, etc., judicial mortgage creditors of the defendant, Mrs'. Woolfolk, enjoined the sale, and asked that the judgment of partition be annulled on the following grounds:

First — The parish court, which rendered the judgment of partition,, was without jurisdiction raiione materke.

Second — There is no such amount, as stated, due the plaintiffs, and if anything is due them, they have no mortgage.

Third — At the time said judgment of partition was rendered, and long previous thereto, petitioners had caused the interest of Mrs.. Woolfolk in said property to be seized under their writ of fieri facias, and the same was at the time in the custody of the law.

The defendants in the injunction moved to dissolve, on the grounds that the petition disclosed no ground for an injunction; that if the plaintiffs have any mortgage and privilege, they must exercise it as-. required by articles 401 and 402, C. P., and not by injunction; that if tbe judgment is null and void, it cannot prejudice any one, and by tbe same reason tbe parish court can not entertain jurisdiction of tbe injunction suit, and that tbe security on the injunction bond is insufficient.

Tbe motion to dissolve was overruled, tbe judgment signed, and five days allowed to furnish additional security. Tbe defendants in injunction, alleging irreparable injury, appealed.

A motion is made to dismiss tbe appeal, on tbe ground Chat tbe judgment is interlocutory, and not a final, one.

Tbe judgment is clearly an interlocutory one, tbe effect of which is to delay tbe sale and ultimate partition; but there is nothing in the facts or in the character of tbe property going to show that this delay will work an irreparable injury to tbe appellants. Mere delay will not authorize tbe interference of tbe appellate court. 11 M. 276; 12, M. 488; 3N. S. 25; 15 La. 521.

If the interlocutory judgment be erroneous, it may be corrected by appeal from tbe final judgment. 3 R. 457. Tbe refusal to dissolve on tbe face of tbe papers left tbe case as it was when tbe injunction was granted.

Tbe judge a quo believing tbe cause for injunction to be good and sufficient, did not err in permitting additional security to be given, as another writ could have been immediately granted. 3 N. S. 480; 4 N. S. 499; 8 An. 489.

We must determine whether an appeal lies before we can inquire into tbe correctness of tbe judgment.

It is therefore ordered that tbe appeal herein be dismissed, with costs.

Rehearing refused.


author: Howe, J.

text:
    No. 2655.
    William J. Kilbourne v. Henry Frellsen.
    To constitute a valid seizuro of a plantation cultivated as such, and occupied as a residence, the sheriff must, whether under attachment or fieri facias, take the# property into his possession and custody, and in case of attachment, the return must show that this rule has "been complied with. The statement by the officer that he has attached according to law, is not sufficient.
    The sale of a plantation by the sheriff under a judgment rendered on attachment without giving notice to the occupant or owner, is a nullity; but if the attaching creditor can show on tiial of the injunction taken out by the partv in possession under a recorded title, that the sale is simu'atad, the casemight be different
    APPEAL from tbe District Court, parish of Carroll. Farrar, J.

      W. G. Wyly and F. F. Montgomery; for plain tiff and appellant. If. Dubose, for defendant and appellee.
   Howe, J.

Tbe record in tbis case discloses tbe following facts:

On the twenty-fifth March, 1866, tbe plaintiff purchased, by notarial act, from Jefferson Hayden, a plantation in tbe parish of Carroll. About this time, and prior to tbe twenty-eighth of April, 1866, Gay-•den left the State and went to reside in Mississippi. On the twenty-■eighth of April, 1866-, Henry Frellsqn, the defendant, and Joím A. Steven-son, sued out a writ of attachment against' Gayden, and caused a curator ad hoc to be appointed, who wrote at the foot of the petition : ‘‘ I accept service and waive copy of citation and attachment.”

• The return of the sheriff upon the writ stated that he had “served the same by attaching the following described lands; ” and then gave a description of the plantation in question. He did not go to the plantation, or take actual possession of the place, or put a keeper thereon, ■or notify the occupants; but, as the record informs us, he made the ■attachment in the sheriff’s office, by writing up a description of the ‘land on his return, and’notifying the curator ad hoc.’’’

■On the ninth of -May, 1866; the act of sale from Gayden to plaintiff ■was recorded. On the thirteenth of October, 1866, judgment was rendered in favor of Frellsen and Stevenson, against Gayden, in the attachment suit, for $905 and interest, and the property attached was ordered -to be sold.

In January, 1867, a writ of fieri facias was issued, containing a description of the plantation, and in March, 1867, it was sold to the defendant, Frellsen. It appears that in making what was called a -seizure under the writ of fieri facias, the sheriff did not go to the place, “ but only seized the property,” as he states, “by copying the numbers of the land from the writ of sale directing the sale of the same in ■said suit; that he gave no notice to the occupants of the plantation, but did give notice to the curator ad hoc.”

The plantation was cultivated and occupied as a residence by the plaintiff in 1866, and by his tenants in 1867. He avers that he never heard of the pretended seizure and sale until about September, 1867, when he commenced the action now before us, to annul the judgment and sale, and to be quieted in his title. To this action the defendant Frellsen, answered, by a general denial and an allegation, that the sale from Gayden to plaintiff was a simulation, and by other defenses which appear to have been abandoned There was judgment for defendant, and x>laintiff has appealed.

We are constrained to think that the judgment appealed from was ■erroneous. The plaintiff’s title as to third persons took effect on the ninth of May, 1866. He occupied and cultivated the plantation during that season; and during 1867 his tenants were in possession for him. The public act of sale, its formal registry, and the vendee’s actual and continued possession gave him rights of which he could not be divested by a pretended forced alienation, conducted without regard to those elementary rules, by which, for the plainest reasons of propriety and .justice, forced alienations are controlled. ■ To constitute a valid seizure of a plantation in Carroll parish, cultivated as such and occupied as a residence, the sheriff must, whether under attachment or fieri facias, take the property into his possession and custody; pud in case of attachment, the return must showthat this rule has been complied with, ■and it is not sufficient for the officer.to state that he has “attached according to law.”

Page v. Generés, 6 An. 551; Stockton v. Downey, 6 An. 581; Boyle v. Ferry, 12 An. 425; Goubeau v. New Orleans and Nashville Railroad Company, 6 Bob. 347; Simpson v. Allain, 7 Rob. 500.

So far as the property claimed by plaintiff is concerned, there was, in reality, no attachment, judgment, seizure or sale; The 'record does not show that his title is a simulation, and it is not necessary,‘therefore, to decide what effect the fact of simulation, if established, might have had in the case.

For the reasons given, it is ordered and adjudged that the judgment of the district court be avoided.and reversed, and that there be judgment in favor of plaintiff, with costs in both courts; that-the sale of the plantation to the defendant, as mentioned and set forth in the petition, be annulled and set aside, and the plaintiff quieted in his title to the same.

Mr. Justice Wyly recused himself in this case.


author: Ludeling, C. J.

text:
    No. 2683.
    Liquidator of the Clinton and Port Hudson Railroad Company v. R. Whitaker.
    A decree of the Court ordering the liquidator of an insolvent corporation to collect the assets as spt cdily as possible is not prescribed by ten years.

      Per curiam: The judgment directs the liquidator to discharge a duiy attachod to his office. It is no. a moneyed judgment.
    APPEAL from District Court, parish of East Feliciana. Posey, J.

      8. P. Punter, for plaintiff and appellant. Gross & Pardee and Pace, Poster & P. T. Merrick, for defendant and appellee.
   Ludeling, C. J.

The plaintiff, under a decree ordering him to collect the assets of the insolvent corporation as speedily as possible, is seeking to enforce a mortgage against the defendant for stock subscribed. The defendant pleads the prescription of ten years against the judgment ordering the liquidator to collect, etc.

We are of opinion that the judgment in the case of the Gas Light Company v. Haynes is not prescribed. The judgment directs the liquidator to discharge a duty attached to his office. It is not a money-judgment. See 21 An. 250; ib. 44, and Liquidator of Clinton and Port Hudson Railroad Company v. Samuel Lee, recently decided.

It is, therefore, ordered that the judgment of the district court be annulled, that the plea of prescription be overruled, and that the case be remanded to the district court to be proceeded with according to law. It is further ordered that the appellee pay the costs of appeal.


text:
    No. 2718.
    Bertrand Haralson v. Mrs. Lucy Boyle.
    *Wiiore mules and other movable property, use d by the lessee in working the plantation, have been provisionally seized, at the suit of the lessor, for the rent of the -place, and released by the sheriff on bond, before judgment, the privilege of the lessor is not theieby lost, and the same property may be seized a second time and t old to satisfy the privilt ge recognized by ihe judgment, provided, the lessee has not parted with the possession and ownership-of the property more than fifteen days prior to the last seizure.
    The privilege on the movables of the lessee, for the rent of the plantation, can not be enforced by the lessor against an innocent third purchaser, if more than fifteen days have elapsed irom the date of purchase from the lessee, beiore the seizure.
    APPEAL from Seventh Judicial District, parish of West Feliciana.

      Miller, J. Collins & Lealce, for plaintiff and appellee. IF. D. Winter, for defendant and appellant.
   Taliaferro, J.

The defendant seized provisionally certain mules and other personal property belonging to Hale, as subject-to her privilege as lessor of a plantation to Hale. The lessee gave bond in the usual form for the forthcoming of the property, and the sheriff released it. Hale removed the property from the defendant’s plantation, and afterwards sold to Haralson six mules, which formed part of the property seized by the lessor.

About three months after the provisional seizure was made, the defendant in this suit obtained judgment against Hale, with recognition of the lessor’s privilege, and, issuing execution on this judgment, seized the six mules sold by Hale to Haralson, and they were advertised for sale. Haralson took out an injunction which is the foundation of the present action.

To the plaintiff’s petition in injunction the defendant'answered, averring her privilege and alleging the pretended sale from Hale to Haralson was fraudulent and simulated, no delivery of the properly having been made; that Haralson could not purchase to her detriment the property subject to her privilege; that the sheriff had no authority for receiving a bond and releasing the property, and that her privilege subsisted notwithstanding the release. In support of this position, the case of Blancliin v. The Steamer Fashion, 10 An. 49, is relied upon.

The plaintiff had judgment in his favor with seventy-five dollars damages, and the defendant appealed.

We think the defendant has failed to establish that the sale was simulated. The delivery of the property is sufficiently established. The deputy sheriff testified that he seized three of the mules in Haralson’s possession, and that Hale was in qiossession of the other three when he seized them. Other evidence in the record accounts satisfactorily for three of the mules being at that time, in Hale’s possession. The privilege of the defendant was not destroyed by the release of the seizure and the taking of the bond; hut in view of the facts that occurred subsequently, it is not easy to avoid the conclusion that the privilege was lost, as more than fifteen days elapsed after the property was removed from the defendant’s plantation and after it was sold to Haralson, before tbe second seizure was made: several months having intervened between the release and the removal and sale, and the time of the rendition of judgment against Hale. All this time the mules were not on the leased premises, and the greater part of it, they were in Haralson’s possession as owner. Article 2679 of the Civil' Code declares in regard to the,rights of the lessor that “in the exercise of this right (that of seizure of the lessee’s property), the lessor may seize the objects which are subject to it, before the lessee takes them away, or within fifteen days after they are taken away, if they continue to be the property of the lessee and can be identified.”

A bill of exceptions was taken by the defendant to the introduction of certain evidence relating to the sale from Hale to Haralson, but it is unnecessary to examine it.

It is clear that the defendant can not pursue the property in the hands of a third party after the lapse of the period of time during; which her privilege existed.

Whether the sheriff is liable for taking insufficient and illegal security on the bond is not a matter before us.

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

Rehearing refused.


text:
    No. 1793.
    W. W. King v. Mrs. Mary Cressap and her Husband.
    A parly who, having taken charge of another's furniture and dwelling house in New Orleans, under an agreement with the owner, in th.3 year 1862, shortly after tho city was captured by the military forces of the United States, must be viewed as a depositary, and t s such is responsible for the return of the goods when demanded by the owner. In a case like this, the depositary can not urge the disloyalty oí tho owner in bar of his right to recover. Nor does the Jaw require that a edizen 01 the United Stat“s, who made a deposit of his goods- and effects with, another, shall, before bringing suit, exhibit evidence of his loyalty.
    The question of loyalty is one tha1 an agent or depositary can not plead against his principal.
    A the lessor of a house and premises, made an agreement vente a reviere with B, the lessee, for his household goods and effects. A afterwards co looted the rent due from the lessee, and gave a receipt therefor. Held — That A, the lessor, by giving the receipt and receiving the rent acknowledged the simulated character of the sale, and when demand of restitution of the goods and furniture was made by the owner, the lessor was precluded by such acknowledgment from urging the venia a reviere in bar of the right to recover.
    A suit for the recovery of goods on deopsit, or thoir value, is in time if brought within one year from demand for restitution.
    APPEAL from the Third District Court of New Orleans. Féllowes, J.
    IF. A. JSlmore, for plaintiff and appellee. 2$. Howard MeCalelfor defendant and appellant.
   Wyly, J.

The defendants are sued for the value of furniture and household effects left on deposit with them by the plaintiff, on the eighth of October, 1862, in tbe dwelling bouse previously occupied by the plaintiff, on Third street, between Chestnut and Coliseum streets, New Orleans, which was owned by the defendant, Mary Cressap, as her paraphernal property, and administered, by her separately from her husband. The plaintiff alleges that the said Mary Cressap promised to preserve and return the said property to him when he again returned to this city, and the said II. B. Cressap, her husband, also promised that the things should bo faithfully returned. He alleges that the dwelling house occupied by him, under a lease, was the individual property of the said Mrs. Cressap, and all the acts of her said husband in relation thereto were as agent for his wife. That prior to the institution of this suit he demanded the return of his said property, but she and her husband refused to return the same to him.

The petitioner, also, alleges that prior to his departure from New Orleans, to wit: about the eighteenth of September, 1862, in order to protect his furniture and other household effects from danger, apprehended on account of his absence, he made a simulated vente ¿i, réméré, or sale with the right of redemption, of a portion of said furniture to the said II. B. Cressap •, that this sale was well understood by the said Cressap and his wife to be a simulation, made merely to protect his property from improper seizure or disturbance during his absence. That the'alleged consideration, to wit: the sum of five hundred and forty dollars, the amount of rent alleged to be due by him, was partially fictitious. That said parties, well knowing the simulation, so treated it by their subsequent acts. That disregarding the vente á réméré, and being in want of money, the said H. B. Cressap collected from the wife of the petitioner, who remained in possession of the property till the eighth of October, 1862, a sum for the rent due, to wit: one hundred and ninety-five dollars, as appears by his receipt filed with the petition; that by this receipt of money the simulation was acknowledged and the sale annulled.

The petitioner alleges that when his family left the house on the eighth of October, 1862, the said Mrs. Cressap herself took possession thereof, and also of the furniture and other household effects belonging to him left therein; and that she continued to administer upon said house and said effects in her own name and for her separate benefit.

In bar of recovery on this demand the said II. B. Cressap and his wife, Mary Cressap, both appeared and excepted thereto on the grounds—

1. That said King is without capacity to proceed in court without showing proof of his renewal of allegiance to the United States ;

2. That the petition sets forth no cause of action;

3. That said petition bases plaintiff’s demand on acts of simulation, an infringement of public policy, good order, etc.

The exception was overruled by the court, and the defendants severed in their answers. The court gave judgment dismissing the demand of plaintiff so far as H. B. Cressap is concerned, on the ground that his connection with the matter was merely that of agent for his wife; and gave judgment against her in favor of the plaintiff for three thousand dollars, with interest from judicial demand, the value of the property, estimated by the judge from the evidence adduced on the trial. From that judgment H. B. Cressap has not appealed. His wife, Mary Cressap, has appealed.

Our attention is directed to the bill of exceptions taken by the defendants to the ruling- of the court setting aside the exceptions of the defendants on the grounds — ■

1. That King- had no right to proceed in court until he showed proof that he had renewed his allegiance to the United States;

2. That there is no cause of action;

3. That the petitioner bases plaintiff’s demand on acts of simulation, etc.

We know of no law requiring a citizen to exhibit proof that ho has taken the oath of allegiance before he can institute a suit.

We think the petitioner clearly sots forth a cause of action. We do not think the petition bases plaintiff’s demand upon an act of simulation, although the act was referred to.

We think the action is clearly that of a depositor against the party receiving- the deposit. The court did not err in refusing to dismiss the demand; there is no merit in the bill of exceptions.

As the defendant, H. B. Cressap, did not appeal, we will not consider the defenses urged by him, nor the evidence introduced in support of his averments. We think the receipt of the eighth of October, 1862, and the judicial admissions contained in the exception filed by the defendants, to wit: the averment of simulated acts, etc., clearly estop them from claiming the reality of the vente a, réméró of the eighteenth of September, 1862. Indeed, the defendant, Mrs. Mary Cressap, has never urged its validity or that she held the furniture thereunder. That act was never consummated by delivery; the wife of the plaintiff continuing in the possession of the property until she paid the rent, evidenced by the receipt of the eighth of October, 1862, which was a clear acknowledgment of the nullity of the sale. There can be no doubt that the property was left on deposit on the eighth of October, 1862, and it was not delivered in pursuance of the simulated act referred to. '

The argument of King’s disloyalty, urged with so much zeal by the counsel for the appellant, can not avail him. When the deposit was made, both King and the defendants were citizens of this city. How his disloyalty on the one hand, and their assumed loyalty on the other, can operate a divestiture of his property in their favor, we can not comprebend. Indeed, this branch of the argument is unworthy of serious consideration.

The question is, was the furniture of the' plaintiff deposited with the defendant, Mrs. Mary Cressap, on tho eighth of October, 1862? It was certainly left in the house which she owned and administered separately from her husband, she being separate in property from him, according to her own evidence. And it is equally certain that she took possession of the property after it had been left there by Mrs. King.

We are of the opinion that she has incurred the obligation of a depositary, if not by a contract, af least by a quasi contract. If she was not authorized by her husband to make the contract, she certainly became liable for the property left in her charge by a quasi contract, without his authorization. 2 An. 2, and the authorities there cited,.

Tho district judge carefully reviewed the evidence, as appears in his written opinion in the record, and we are of opinion that he arrived at a correct conclusion.

The plea of prescription can not prevail, the suit having been brought by plaintiff within one year from the demand for the restitution of his property.

The other defenses urged are not of a serious character.

It is, therefore, ordered that the judgment appealed from be affirmed, with costs.

Kehearing refused.


author: Wxly, J.

text:
    No. 1804.
    A. W. Walker v. F. A. Ducros
    The change of executory proceedings to that of ordinary proceedings, by answer to tbo injunction taken out by the defendant against the order of seizure and sale, will operate a discharge ot the sureties on the injunction bond, and the sureties, having no further interest in the litigation, need not be made iiarties to the appeal from the judgment dissolving the injunction.
    The rule is now settled that where the consideration of the note is part land and movables and pari slaves, tne holder can only recover that portion which is ascertained to be due on the land and movables alter crediting the payments which have been made prior to emancipation, in the proportion that each bears to the entire contract. Saudidge v. Sanderson, 21 An. 757.
    APPEAL from Second District Court, parish of St. Bernard. Dugue, J.'
    ■ Stviribola & JDucros, for plaintiff and appellee. L. Castora, for defendant and appellant.
   Wxly, J.

In 1857, the plaintiff purchased a plantation and movables, together with fifty-eight slaves, in the parish of St. Bernard, for the total.price of $135,000, paying $25,000 cash, and executing to his vendor a scries of mortgage notes.

The defendant being the holder of one of these notes for the sum of $13,333 33, sued out an order of seizure, and sale, and the plaintiff enjoined it upon the several grounds stated in Ms petition of injunction, and Ms amended petitions. The case was before this court in 1866, and was remanded for new trial on a point of practice, as will be seen in 18 An. 703.'

• The judgment appealed from was in favor of tbe plaintiff, dismissing tbe demand of tbe defendant founded on tbe mortgage note, with five hundred dollars damages. Tbe defendant bas appealed. Tbe plaintiff’s counsel ask that tbe appeal be dismissed, without a motion to that effect, because tbe appellant bas. failed to make tbe sureties on tbe injunction bond parties to tbis appeal.

Tbe counsel for tbe defendant, on tbe other band, says tbe sureties bave no interest in tbe matter, tbe character of tbe action having been changed from an executory to an ordinary one.

We find in tbe answer of tbe defendant, filed in September, 1867, this averment: And now converting tbis summary proceeding into an ordinary suit, respondent prays that judgment be rendered,’’ etc.

Again, in tbe answer filed in October, 1867, which was in reply to a supplemental petition of tbe plaintiff, we find tbe following averment: “And persisting in bis determination to change tbis summary proceeding into an ordinary suit,” respondent prays, etc.

We think these statements in tbe pleadings of tbe defendant, changed tbe character of tbe suit to one concerning which tbe sureties on tbe bond are without interest; and being released by tbis voluntary change of tbe defendant, they could not become bound by subsequent statements of tbe defendant.

We think they bave no interest in tbe contestation now before tbe court, and need not be made parties.

. Tbe question on tbe merits is just tbe same as that presented in Sandidge v. Sanderson, 21 An. 757, where tbe consideration of tbe note was mixed, part land and movables, and part slaves.

After considering the learned brief filed by tbe counsel for tbe plaintiff, we have failed to discover sufficient reasons to change our ruling on tbis question. On tbis point the jurisprudence may now be considered settled. Tbe law in force at tbe time tbe payments were made must regulate tbe question of legal imputation. Payments on contracts of tbis character prior to tbe rebellion, in tbe absence of conventional imputation, must be considered as discharging, pro tanto, tbe whole debt.

Tbe debt evidenced by tbe note before us, having a consideration part for slaves, and part for land and movables, may be appertained, and can only be enforced for tbe part which was not for slaves.

As to tbe relative value of tbe land and movables, and tbe slaves purchased by tbe defendant for tbe aggregate price of $135,000, tbe evidence is quite conflicting and unsatisfactory.

Tbe witnesses for the'plaintiff estimate the fifty-eight slaves at tbe aggregate value of $80,000 or $85,000, and tbe land and movables at $50,000 or $55,000. On tbe other band tbe witnesses for tbe defendant estimate tbe value of tbe slaves at $58,000 to $65,000.

After carefully examining the evidence, we have arrived at the conclusion that the relative value of the slaves was about equal to that of the land and movables; and we fix the apportionment accordingly. We think, therefore, that the defendant should have judgment against tho plaintiff for one half the amount of the mortgage note held by him..

It is therefore ordered that the judgment appealed from be avoided and annulled, and it is ordered that the defendant have judgment against the plaintiff for the sum of six thousand six hundred and sixty-six dollars and sixty-six and two-third cents, with interest, at the rate of five per cent, per annum from the twenty-eighth of September,. 1857, till the tenth of December, 1860, and at tho rate of eight per cent, thereafter till paid, according to the stipulations in the note sued on, tho plaintiff paying costs of appeal, and the defendant the costs of the court below. It is further ordered that the mortgage securing, the-note be rendered executory to date from the twenty-eighth of September, 1857, and that the land and movables described in said act of mortgage bo sold according to lawfor the purpose of paying the amount for which the plaintiff may bo liable, according to this apportionment,, for tho remaining purchase price of said property.

Rehearing refused. .

Mr. Justice I-Iowell having been absent at the trial took no part in-, this decree.