author: Bkk.wudez, C. J.

text:
    No. 1049.
    A. W. Forbes, Executor, et al. vs. Mrs. M. T. Layton and Husband.
    Where a sale is made on credit to a married woman, of real estate, for a price exceeding twice the value of the property, and it is not shown that she administered her separate estate, and had means to invest, ample enough to enable her to make the purchase with a reasonable prospect of-paying the price, the purchase must be considered a speculation and made for the benefit of the community, and the pecuniary liability for the debt cannot be fastened upon her. Where, in such a case, the.payment of the purchase price • was secured by mortgage on property of a like value, owned by the wife, the mortgage is a nullity, because given in contravention of a prohibitory law, to secure a debt for which the husband or the community is responsible. Judgment affirmed.
    APPEAL from the Fifth District Court, Parish of Ouachita. Bicharclson, J.

      F. B. Stubbs, for Plaintiffs and Appellants :
    1. The wifo having the right to administer, personally, her paraphernal property, though she permit the husband to control and manage it, may withdraw it from his administration at will. C. C. 2384, 2386, 2387, 2391.
    2. The act of purchase by the wife, with the consent of the husband, was the resumption by her of the administration of her separate estate. 1R.367; 4R.194; 2Ani930; 5An.611j 8 An 286.
    3. A married woman having separate funds, or property, may resume, at will, its administra* tíon and iuvest and re-invest it. C. C. 2384; 9 L. 299; 11 K. 526; 2 An. 930-; 5 An. 611; 16 An. 213.
    4. The wife may not only invest her separate funds in hand, "but may buy property on a credit. C. C. 2361; 16 An 214 ; 33 An. 168. -

      5. The wife may buy at succession sale even beyond the extent of her interest in the estate, and the purchase will enure to her separate estate and will be paraphernal. Succession of Tan Eansellers, 6 An 803; 5 An. 119 ; 5 An. 742; 8 An. 236.

      6. A purchase at private sale, under provisions of Section 2359 R. S., by on© joint heir of the-interest of tlx© co-heirs, is licitation —a sale for partiii >n.
    7. Having, by tlie act of purchase, resumed the administration of lior separate estate, a married woman is, as well as other persons, estopped from denying it, for the purpose of defeatiug her obligations incurred to others, and in a manner predicated thereon. A married woman may be estopped. Bank of Lafayette vs. üiis. Brail', 33 An. 624.

      JBoatner & IAddell, for Defendants and Appellees.
   , The opinion of tlie Court was delivered by

Bkk.wudez, C. J.

This is an action to enforce the payment of the balance due on the purchase price of certain real estate said to have been acquired by the defendant for her individual and separate benefit. The-amount claimed is alleged to be secured by vendor’s privilege on the property sold and by mortgage on other property of the defendant.

Tlie defense is, that the purchase was not made by the defendant,, for lior own account, but for the benefit of tlie community existing between her and lieu husband; that the* debt contracted is the debt of the latter; that the security given for the payment thereof by mortgage on the property of defendant, is.illegal; that the debt did not enure to her benefit; that she did not. have the means to purchase, and did not buy, and that slie is hot, therefore, responsible'.

There was judgment, relieving tlie defendant from the debt, annulling the sale, and putting the parties in the condition in which they stood prior to the transaction.

- From the judgment thus rendered, the plaintiffs have appealed. They ask its reversal, only so far as it relieves the defendant from pecuniary liability, but, were the judgment affirmed in that respect, they remain satisfied witli the equitable decree of- the lower court. The defendant and appellee has not prayed for any amendment of the judgment thus brought up for review.

The facts disclosed by the record and by tlie admissions of the parties litigant, are the following:

Alice and Mary Mason, minors, became, bj- inheritance, in 1871, the owners of the undivided half of the Bry Plantation, near the City of ■ Monroe; the remaining half accruing, by like title, to the present defendant.

After compliance with the formalities prescribed by law-, to authorize the private sale of the property of minors in certain cases, the half of the'above named property was purchased by the defendant, with her husband’s authorization, for $27,000, tlie payment of this sum being secured by vendor’s privilege on the prop'erty sold, but, besides, by conventional mortgage on tlie half belonging to the defendant, who owned also a piece of land yielding as much as $1,000 annually. The revenues of all the paraphernal property of the defendant, which was under t.lie administration of her husband at the date, of the s.ale, were and have been insufficient to meet the notes sued upon in this case. As much as $9,474.54 were paid on the purchase price. The value of the property sold, at the date of the sale, and since, did not exceed $25,000 for the whole, at which it was appraised in the inventory. The purchase price exceeded by $2,000 double the value of the half interest sold. The annual revenues yielded by the whole land do not exceed two thousand dollars.

The bare statement of the facts of this case suffices to refute conclusively the pretensions of the plaintiff to fix a liability on Mrs. Layton. She had no paraphernal funds to invest; she, therefore, could make and made no investment by the purchase.

Had she possessed means ample enough to enable her to make the purchase, with a reasonable prospect of paying the price of sale, this action would present important, different features.

It is not even shown that, since the purchase, she resumed the administration of the other property which she owned previous to the transaction, or that she administered the half inherited and the half said to have been acquired by her.

In tile absence of such proof, the presumption is, that her husband has continued up to this day to administer her property, the revenues of which belonged to him and fell in the community. II. C. C. 2363, 2385, 2402, 2403.

We cannot sanction the- proposition, that from the fact of the purchase it must be inferred that the defendant resumed the administration of her estate. Such resumption itself is a fact which, like all other material facts, must be established.

We think that the questions at issue in this controversy come within the well considered, exhaustive and leading rulings in the 16 An. 214; 29 An. 75; and 33 An. 168, 609, so effectually, that we are justified, without further discussion, in holding that the property, said to have been acquired by the defendant in this case, for her individual account, cannot be so viewed, but must be considered as having been purchased for purposes of speculation, for the benefit of the community, and .that, therefore, the pecuniary liability for what remains due on the price cannot be saddled upon her.

As an irresistible corollary, it follows that the mortgage which she gave on the half inherited by her, must be treated as a nullity, as consented in violation of a prohibitory law, to secure the payment of a debt for which her husband is alone responsible. R. C. C. 2398; H. D. 868; L. D. 409.

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


source: Caselaw Access Project

author: Poohé, J.

license: Public Domain

text:
    No. 1033.
    The State of Louisiana vs. Miles Taylor.
    The State lias tlie constitutional right to appeal in criminal cases, where the indictment lias been quashed before it trinl, or held bad upon a demurrer, and whore it purports to charge an offense punishable with death or imprisonment at hard labor.
    In such cases the State is not required to furnish an appeal bond, as she cannot he condemned to pay costs.
    A judgment quashing an indictment on the ground of the unconstitutionality of the Statute under which the charge is brought, when the accused has not been tried, as to his guilt or innocence under the charge, will not be a bar to a subsequent prosecution of the accused under the same charge.
    Act No. 8 of the Extra Session of 1870, entitled an Act) relating to crimes and offenses, is not unconstitutional.
    APPEAL from the Tenth District Court, Paris]) of DeSoto. Logan, J.

      Wm. P. Hall, District Attorney, for the- State, Appellee.

      F. W. Sutherlin, for Defendant and Appellant.

      W. W. Farmer, on the same side, on the Application for a Rehearing.
   On Motion to Dismiss.

The opinion of the Court was delivered by

Poohé, J.

Defendant moves to dismiss this appeal, which was taken by the State from a judgment quashing an information presented against him, and relies upon the following grounds:

1. That the State has no right of appeal in criminal cases.

2. That no appeal bond has been given.

First. The information charges the accused with the crime of felonD ously severing produce from the soil of another, an offense punishable with hard labor or otherwise. Under the provisions of Art. 81 of the present Constitution, an appeal lies in such a case, without reference to the finding of the jury, or to the penalty actually imposed.

This proposition was sustained by us in the case of the State ex rel. Gabriel vs. Judge, 33 An. 1227, in which we gave the subject a very thorough investigation, and in which we were guided by decisions of this Court, rendered under the provisions of the Constitution of 1852, and in which we held that the provision of that Constitution, defining the criminal jurisdiction of this Court, was identical in meaning with the like provision in the present Constitution; and after a second examination of the matter, we conclude to adhere to our ruling in that case:

Counsel for the accused strenuously argues that the provision of the Constitution of 1852, which extended the jurisdiction of the Supremo Cour.t “to all criminal eases on questions of law alone, whenever the offense charged is punishable %oith death or imprisomnent at hard labor,” is not identical in meaning with, and does not establish the same rule as the corresponding clause of the present Constitution, which extends the jurisdiction of this Court “ to criminal cases on questions of law alone, whenever the punishment of death or imprisonment at hard labor may be inflicted,” and he urges us to reconsider our conclusions in the case quoted, which is the first decision on that point under the present Constitution.

Feeling and recognizing our liability to err, and willing at all times to rectify any error which we may have committed, we have re-examined the point, and have given due consideration to the arguments of counsel in the premises, in which he labors to prove that the expression “ may be inflicted,” is equivalent to and synonymous with the words “ is inflicted,” or the words “ actually imposed,” which are the words used in the Constitution of 1868, and in construing which the Court, under that organic law, properly declined jurisdiction of criminal cases, in which no penalty had been actually imposed.

But we pause, and must refuse to adopt counsel’s logic or reasoning, which involves the subversion of well established rules of grammar, and imposes on the mind the painful task of making a distinction without a difference.

Reaffirming ohr previous conclusions, and holding that the accused, in this case, would have the undoubted right to an. appeal, without reference to the verdict which may have been found against him, or to the penalty which may have been inflicted on him, we are now to consider whether the State has not the same right.

We know of no law, jurisprudence, or rule of construction, and we have been referred to none, under which the State, as a party litigant, has not the same right of appeal with its opponent, in the same case.

No word or expression in Art. 81 of the present Constitution, can be construed so as to exclude such right, and under similar provisions in the Constitutions of 1845 and 1852, the' right of appeal of the State, limited to cases “where the indictment has been quashed before a trial, or held bad upon a demurrer, and when it purports to charge an offense punishable with death or imprisonment,” has been frequently recognized. State vs. H. B. Ellis, 12 An. 390; State vs. Ross, 14 An. 364; State vs. Henry, 10 An. 207; State vs. Cheevers, 7 An. 40.

The reason for tlxe restriction of the right of the State to appeal to cases in which the accused had not been tried on the merits under the charge, was dictated by the rule of the common law, incorporated in the Constitution of the United States, providing that no person shall be subject, for the same offense, to be put twice in jeopardy of life or limb.

Holding that the present Constitution has re-established the rules of criminal jurisdiction which prevailed under the Constitutions of 1845 and 1852, we adopt the interpretation followed, and the restrictions placed in the decisions just quoted.

In his oral argument, counsel for defendant urged that the clause of Art. 81 of the. present Constitution, if held to confer the right of appeal in criminal cases to the State, was inoperative until the passage of an act of the legislature, directing the mode of appeal. The.same argument was made in the case of the State vs. Ross, 14 An. 364, in which the Court held that the right of appeal conferred by the Constitution, could not be defeated by legislative omission. The Same argument might apply to an appeal taken by the accused, and thus a sacred constitutional privilege could be destroyed by legislative inaction. The argument has less force in the present instance, in which we have a wise precedent.

Second. The objection resting on the failure of the State to furnish an appeal bond, can hardly be considered as serious.

By special legislation, all costs incurred in criminal prosecutions are to be paid by the respective parishes in which the offense ‘charged may have been committed. R. S. Sec. 1042. Hence, it would be a more than idle ceremony to exact of the State security for costs which are not chargeable to her.

It is well settled in American jurisprudence, that the sovereign never pays costs. This doctrine, which is an essential elefnent of our system of government, was recently recognized by us in the case of the State vs. Succession of Taylor, 33 An. 1271.

The motion to dismiss is, therefore, denied.

On the Merits.

The motion to quash the information was predicated on two grounds:

1. That at a previous term of the Court an indictment against the same accused, on the same charge, had been quashed on his motion, on the ground of the unconstitutionality of the Statute denouncing the offense.

2. That Act No. 8 of the Extra Session of 1870, under which the charge was made, is unconstitutional, as violative of Art. 114 of the Constitution of 1868, which required that every law should express its object or objects in its title.

We are not informed by the record which, or whether both, of those grounds were maintained by the District Judge, but, in our opinion, both are untenable.

First. As conceded by counsel for tlie accused, the first ground of • his motion is substantially the common law plea of “ autrefois acquit," and the essential element of its success is that the accused has once been tried on the charge presented against him. The trial must have settled the guilt or innocence of the accused, in order to justify either the plea of “ autrefois, convict ” or “ autrefois acquit," which cannot avail the accused if the indictment has been quashed and set aside, .on a question of law merely. State vs. Hornsby, 8 R. 583; State vs. Walters, 16 An. 400.

Now, as indicated in that portion of this opinion, considering the motion to dismiss, it appears that the judgment appealed from was not the result of a trial of the accused as to his guilt or innocence of the charge contained in the information, and that such was the case in the previous judgment of the court, quashing the indictment against him on the same charge. Hence, the first judgmentcannot be held as a bar to the prosecution of the accused under the same charge.

Second. The Statute, charged to beunconstitutionalis entitled, “An Act relative to crimes and offenses,” and it denounces several acts as crimes and offenses in law, and prescribes the punishment to be inflicted for each of said offenses.

As indicated in the title, the object of the legislator vms to provide for certain crimes and offenses, and that object is carried out in the body of the Act. True, the object could have been more artistically expressed, but the constitutional provision must not be strained to the extent of reproducing nearly the whole Act in the title, which would have been the case under the construction of defendant’s counsel, if every crime and every punishment denounced had been specifically referred to in the title of the Act. The Act treats of no other subject but crimes and offenses, and that is covered by tl.ie title.

Courts of this State have always been, and must always be, very loth to declare unconstitutional the acts of a co-ordinate branch of the. government.

As said by Chief Justice Marshall, in 6th Cranch, 87 : It is not on slight implication and vague conjecture that the legislature is to be pronounced to have transcended its powers, and its acts to be considered as void. The opposition between the Constitution and the law, should be such that the Judge feels a clear and strong conviction of their incompatibility with each other.”

Such is the rule which has guided our predecessors of this Court, and we shall not depart from their teachings. 2 M. 12; 5 R. 404.

Under this rule of construction, a Statute entitled An Act relative to slaves, and which treated of crimes committed by slaves, and pre-. scribed penalties therefor,” was declared not to conflict with a similar constitutional provision in the Constitution of 1852. State vs. Henry, 15 An. 297. See also, 12 An. 195; 13 An. 400.

It is, therefore, ordered that the judgment appealed from he annulled, avoided and reversed ; audit is now ordered, that the motion to quash the information filed in the lower court against Miles Taylor, he overruled, and that said information be reinstated on the docket of said c.ourt, for trial according to law.


author: Bermudez, C. J.

text:
    No. 1045.
    Alexander Weil vs. A. A. Zodiag.
    Where the parties claim to have leased certain premises from different agents of the owner for the same period of time, it is incumbent on the one who pretends to hold the lease first made, to prove that the agent whom he dealt with had authority to lease for the term that he did lease j that the lease was duly recorded, possibly even if the other party had knowledge of the lease, and acted fraudulently with the owner'or his representative. The ■plaintiff herein having failed in this respect, and the defendant having shown a valid written lease, the judgment of the lower court in Ins favor is affirmed.
    A FPEAL from the Third District Court, Parish of Claiborne. ham, J. (?r«-

      N. J. Scott and J. A. Bichardson, for Plaintiff and Appellant:
    The principal is responsible for the acts of his agent and bound by his contracts, if made ‘within tbe scope of his agency. C. C. 3021; 30 An. 587; 18 An'. 535 ; 6 It. 97; 7 li. 400; 4' : An 19; 8 IS. S. 200. ' >
    Tbe principal is hound by tbe contracts of the agent, although the agency is revoked, if the revocation is unknown to the party with whom he contracts. 18 An. 535; 1 An. 80; 2 An. 316. .
    Admissions of any facts made by an agent during-tbe continuance of his agency, relating’ directly to tbe business intrusted to him, is binding upon the principal. 2 An. 890. :
    Where the owner of real estate leases the same to one party and afterwards leases the same, property to a second tenant, tbe second tenant knowing of the first lease, the first lessee should hold the property.
    That where the owner of real estate aids and abets tbe second tenant, both knowing of tbe prior lease, although verbal, they agree to defraud and deprive tbe first lessee of tbe possession, they are co-trespassers and responsible.ia solido. Either can. be sued alone. 29 An. 113.
    A lease does not have to be reduced to writing and recorded, in order to affect third parties, - unless tbe owner transfers tbe property.
    That a party cannot, after be has knowledge of a verbal lease, enter into a written lease and record tbe same and plead such lease and registry against the verbal lease, accompanied by possession.
    Alease of real estate can be made verbally. C. C. 2683 ; 18 An. 90; 25 Ani 229.

      McDonald <& McDonald, for Defendant and Appellee:
    Possession nomine proprio is of the essence of the possessory action. A tenant cannot main- • tain the same. 32 An. 192; 2 An. 357; 10 Eob. 407.
    All sales, contracts and judgments affecting immovable property, are null and void, except as between the parties there, unless duly recorded. 30 An. 436, Civil Code, 2264, 2266.
   Tlie opinion of the Court was delivered by

Bermudez, C. J.

This is a suit to eject the defendant from certain premises, and to recover from him five thousand dollars damages for injury alleged to have been sustained, in consequence of his refusal to vacate, when notified to do so, viz: Dec. 31, 1881.

The plain tiif claims that he was the tenant of the premises up to the end of the year 1881, but that he previously obtained (in October) from the landlord’s agent, a renewal of the lease for the’ year 1882, entitling him to possession and enjoyment during that period.

The defense is, that the defendant is entitled to possession of said premisos for the same term, under a written lease from the'duly authorized agents of the owner of the property, which lease was, besides, ratified by the latter. ’ .

The case was tried by a. jury, who rendered a verdict for the defendant. From the judgment thereon, the plaintiff has appealed. .

The agent, to whom plaintiff refers, is a different person from the firm from whom defendant claims to have leased.

The evidence does not show that such agent, D. B. Hays, had authority from the owner, W. H. Chaffe, to lease the property, for the year 1882, to any one.

.His power to do so is not inferrable from the fact that he hadsometimes collected rent drafts of the landlord'on the lessee, or given his own receipt for other rent due, or that he had previously rented the place to tli© plaintiff.

It was incumbent on the party claiming the lease to the premises for 1832, particularly when met by an adverse claim, founded on a lease emanating from the owner himself, to have conclusively established authority in the agent to lease; and further, a lease from him prior to the formation of the second contract. We say nothing of the want of registry of the lease, to bind third persons. Such registry might have been an important ingredient in a controversy of tlio character of the present, one. It may, perhaps, be required, even against one shown to have known of the anterior lease, and to have concocted with the owner or his agent, to defeat rights acquired under it, unless in a suit for damages. 29 An. 213.

At any rate, the present defendant could, however, have had no knowledge of what had never occurred.

Neither does the record sufficiently establish, even if Hayes liad such authority, that he exercised it. Iu a litigated ease like this, in whióh neither the agent nor the owner have testified, the fact of the agency and of the renewal of the lease, should have been fully proved. The pressing testimony of the plaintiff on these points, can hardly be said to be corroborated by the circumstance of the “ nodding ” of. the agent and of the plaintiff, in presence of a witness, inquiring if Mr. Weil had settled tlie store for 1882.

The defendant has produced written authority from Chaffe to Camp, Davidson & Ferguson, to lease the premises; a written lease from the latter to him, and a written ratification by Chaffe of the lease thus made.

Had it been shown that Hayes had authority from Chaffe to lease for 1882, and had exercised that authority, before any contract for the same purpose between the last agents of Chaffe and the defendant, liad been entered into; that the lease had been duly recorded in time; the principles of law invoked by plaintiff’s counsel would certainly apply. SO An. 589; 29 An. 213.

The only remaining question would have been as to the damages claimed; but, in the absence of that material evidence, the plaintiff must fail.

It is unnecessary to pass upon the bills of exception taken to the charges of the District Judge to the jury. The testimony adduced, and the documentary evidence introduced, without objection on the trial, are before us. We can finally adjust the differences of the parties, -without, determining the merits of those bills. Even had the charges been erroneously given, this is not a suit which, on that account, should be remanded.

Judgment affirmed with costs.


text:
    No. 1036.
    Mary L. and Susan H. Mayo and Husbands vs. Nathaniel Brittan et als.
    In an hypothecary action by a minor, it is essential that his rights be previously liquidated by a judgment. On the trial of such a caso, a copy of the judgment, unaccompanied by the proceedings in the case in which Tendered, is inadmissible.
    In the absence of such proof, plaintiff cannot recover.'
    APPEAL from the Sixth District Court, Parish of Morehouse. Brigham, J.

      G. 3. Bilis and Todd & Todd, for Plaintiffs and Appellants:
    In an hypothecary action, to allege that the necessary legal demands and notices have been made is sufficient, without stating the exact time.
    An allegation stating that the debtor is dead, and tbe creditor has obtained judgment against tbe administrator or executor of the succession, is a sufficient allegation to show that the succession has been opened.
    It is not necessary to allege an interruption of prescription, or to specially plead the want of payment. These are special defenses.

      Prescription does not run against minors. C. C. 3522 and authorities there cited.
    As long as a principal obligation is kept alive, the accessory obligation does not prescribe.
    The reinsoription of a judgment interrupts presciiptiou against an hypothecary action on a judgment. 14 An. 106 ; C. 0. 3309, 3547, 3525 and 3527.
    A judgment cannot be annulled unless the action is brought within one year of the rendition of the judgment or the discovery of the fraud. C. P. 613; 6 B. 94; 11 B. 224; 7E. 92; 14 An. 196; 20 An. 274 ; 24 An. 206, 552 ; 28 An. 481.
    A party attacking a j udgment upon the ground of fraud or collasion, must make good his plea. 27 An. 496 ; 8 M 371; 2 4n 462 ; 4 ST. S. 368; 2 An. 885 ; 11 L. 139 ; 10 An 641.
    The minor has a legal mortgage upon his tutor’s property from the date that said property went in the possession of the tutor.
    The affidavit of the minor’s tutor, giving a list of the minor’s property and its valuation, duly recorded, prior to January, 1870, is a compliance with the Constitution of 1868, and Act !No. 95 of the Acts of 1869.
    Property purchased at the succession sale of the wife’s father, belongs to the community— though purchased by the wife if it greatly exceeds her heritable portion — and the community owes to the wife, the amount of her separate funds, which is imputed to the ex-tinguishment of the purchase price. 13 An. 557; 32 An. 454; 5 An. 688.
    “ Prom the moment of his second marriage, the natural tutor owes to his minor children the rents and revenues accruing on their share of the community property held and administered hy him.” 32 An. 186, and the authorities cited.

      Bussey d¡ Baff, for Defendants and Appellees.
   The opinion of the Court was delivered by

Bermudez, C. J.

This is an hypothecary action by emancipated minors, against the defendants, to subject the property described in tlie petition to tlie legal mortgage, which the plaintiffs claim to have had against tlieir father and alleged tutor, when the same passed from him. The defendants resist the suit first, on preliminary grounds; and next, on general and special defenses. From a judgment rejecting tlieir demand, the plaintiffs have appealed.

On the trial of tlie merits, the plaintiffs offered to prove the liquidation of their rights against their father, by a copy of the judgment rendered against his testamentary executor. Tlie defendants objected to the introduction of this evidence, on the grounds, that the whole record in which the judgment was rendered, should be offered and introduced at tlie same time, and that even then, it should be barren of effect as against them, unless the consideration thereof be proved contradictorily with them, inasmuch as they had denied the debt and the mortgage, and bad charged fraud and collusion.

To the overruling of the objections and to the. admission of the copy, the defendants excepted.

Tlie District Judge should have excluded the proof offered.

It is established by a long line of precedents, that it is an essential condition jirecedent, for the bringing of an hypothecary action by a minor to enforce bis mortgage rights, that he should have previously obtained a judicial liquidation of the same; the judgment therefor rendered to serve as the foundation of the suit. J2 An. 361; 29 An. 530 ; 7 R. 15; 6 R. 51 ; 13 An. 508 ; 19 An. 363; 15 L. 59. It was to establish this adjustment of the claims of plaintiffs against their father, that a copy of the judgment alleged by them was offered and admitted.

It is not accompanied by the judicial proceeding's or record in which it was rendered, wdiich it was necessary, at the same time, to have produced.

The rule is well established, both at common law and in our own system, that mutilated records cannot be accepted, to prove an adjudication on a subject matter, more particularly, when such adjudication is the basis of the action.

Says G-reenleaf, I, § 511 : “ The general rule is, that where a party intends to avail himself of a decree as an adjudication, upon a subject matter, and not merely to prove collaterally that the decree was made, he was to show the proceedings upon which the decree was founded.”

The whole record,” says Chief Baron Comyns, which concerns the matter in question, ought to be produced.” 4 Com. Dig., Tit. Ev. A. 4; see also 2 Philips’ Evid. 138, 139.

This doctrine was formally incorporated in our system, as far back as 8 N. S. 382.

In the Brown case, 3 An. 594, the Court endorsed the principle announced by Greenleaf; see also 2 An. 886; 19 L. 526; 30 An. 29, which are in the same sense.

The philosophy of the law is, that in such cases, the production of the proceedings is necessary to show that the judgment was regularly obtained, after citation, default, or appearance, upon evidence and not on confession, as otherwise, as to third persons at least, the judgment may be either a nullity, or such as cannot be considered even as prima facie. 3 An. 174 : 5 An. 715; II. D. p. 588, (3); 34 An. 31; 2 An. 544, 885.

Particularly should the proceedings be adduced when such third parties, not connected with the suit in which the judgment was rendered, have seriously charged .that it was obtained by fraud and collusion. It must seem that, under such circumstances, the parties relying on such judgmeut should not only not hesitate, but promptly exhibit the entire record for examination and scrutiny.

This view of the matter dispenses us from considering other bills of exception taken by the defendants.

We have carefully read the petition and the supplemental petition, as well as the exceptions filed thereto by the defendants, and are not satisfied that the plaintiffs have presented their pretensions with the clearness, precision and fulness which the law demands in such cases, in order to apprise the defendants, (who are third possessors sought to be held liable under a mortgage, at best, tacit, -when they purchased,) of the real and certain foundations upon which the plaintiffs predicate their claims. We say this merely to justify our decree, which, practically, will require a better statement of the plaintiffs’ causes of action in a recast proceeding.

In the absence of the evidence which we require, (the judicial record in this case,) the plaintiffs cannot recover. Neither can we affirm the judgment rendered in favor of the defendants.

It is, therefore, ordered, that the judgment appealed from be reversed, and that plaintiffs’ petition be dismissed, as in case of non-suit, appellees to pay costs of appeal.

Mr. Justice Todd recuses himself, having been of counsel.


text:
    No. 1063.
    Herrman Meyer vs. Wm. H. Fountain. Jos. Lemle, Intervenor.
    An adj udicatee at a tax sale cannot recover, in a petitory action, from purchasers of the same property at a judicial succession sale, where no tax deed is recorded at the date of the probate sale.
    Tax collectors are bound to deliver a certificate of adjudication, vesting a defeasible title, for registry. In case of refusal they can be compelled to issue one. The Auditor’s title, made two years after the sale, where the property is unredeemed, confers an absolute title confirmatory of the previous one by collector.
    APPEAL from the Fifth District Court, Parish of Ouachita. Richardson, J.

      R. Richardson and Thos. 0. Benton, for Plaintiff and Appellant.

      R. Gr. Gold) and Boatner & Liddell, for Defendant and Appellee.
   The opinion of the Court was delivered by

Bermudez, C. J.

Tins is a petitory action based on a tax sale. The defense is, that the property was purchased by Lemle, who is the intervenor, at a judicial sale of the succession real estate, there being, at the time, no registry of plaintiff’s alleged title; that the defendant acquired the land bona fide, and that it is not until after those conveyances had been made, that plaintiff’s title was recorded. From a judgment against him, the plaintiff has appealed.

The evidence shows, that on the 11th of March, 1878, Lemle bought the land for $430, from the succession of King, act recorded March 23, 1878; that on the 22d of November, 1879, he sold it to Fountain for $600, act recorded same day; that on the 16th of January, 1880, an Auditor’s tax deed was recorded in favor of plaintiff to the land in question, as adjudicated to him on Dec. 3d, 1877. The Auditor’s deed is dated Doc. 6th, 1879. The adjudication to plaintiff was for $27. He values the property at moro than $1,000, and claims $620 as rent, in addition.

It is apparent that when Lemle purchased the land from the succession of King, he had no notice that it had been previously adjudicated to the plaintiff by the tax collector, and that such is also the case with Fountain.

• In order to bind third parties, it is clear that the evidence of the title, which plaintiff claims to have acquired at the tax sale, should have been recorded, and that, in the absence of such timely registry, his pretensions cannot be recognized, unless he can show that he was dispensed from such recordation. To accomplish this, he points to Act 96 of 1877, Sec. 56, which is to the effect, that tax collectors are authorized to give a title to purchasers of property sold in pursuance of the Act. It also provides, that if the property sold is movable, the delivery shall be made at once, but if it consists of real estate, the delivery shall take place only on the expiration of the time fixed for the redemption of the same.

From the terms and tenor of this Section, the plaintiff argues, that as the law does not require vain things, and as it was impossible for him to have obtained a title to theland before tlie.expiration of the redemption delay, viz: two years, it was beyond human power to have put any written evidence of record previous to the judicial sale.

We do not read the law in the same light. It first authorizes tax collectors to give a title to purcliasers at tax sales, and next authorizes delivery of the property, and regulates the time at which it is to take place : at once, when movable ; two years afterwards, if immovable and unredeemed.

The collector, on receiving the price, was bound to give a certificate or proces verbal of adjudication to the purchaser, conferring on him a defeasible title. In case of refusal, he could have been compelled to do so by process of law. The very receipt which he probably gave, with mention of price and description, could have proved as a valid substitution. Either could and should have been recorded. The deed or title made by the'Auditor is intended to be a confirmation of that issued by the collector, and to vest a permanent or absolute ownership in the purchaser, positis ponendis.

An adjudicatee at a sheriff’s sale is placed in no better predicament. C. C. 2266; 21 An. 591; 22 An. 113; 1 An. 249 ; 3 R. 160; 11 L. 490; 2 R. 378 ; 32 An. 927, 1012.

Judgment affirmed with costs.


author: Fenner, J.

text:
    No. 1062.
    John D. Edwards vs. J. T. White.
    In an action to rescind a sale, based exclusively on the failure of the vendee to pay the last of two instalments of the price, and when the debt due for the prior unpaid instalment has been extinguished by the voluntary remission of the vendor, the action is only barred by ten years from date of default in payment of the last instalment.
    APPEAL from the Third District Court, Parish of Union. Graham, J.

      Ramsey & JSverett, for Plaintiff and Appellant:
    In a suit to rescind a sale for the non-payment of the latter of two instalments, the prescription applicable to defeat the action on the note for the first instalment cannot be supplied in bar of an action on the note for the last instalment, if the first note was extinguished and remitted at the time suit was instituted upon the last note.
    The plea of prescription, while a legal plea, is of strict law 5 it is never presumed 5 it cannot be supplied 5 and he who makes the plea nulst show clearly that he is within the pale of tlie law which grants him relief under it. 11 An. 511.

      Rutland & Kilgore, for Defendant and Appellee.
   Motion to Dismiss.

The opinion of tlie Court was delivered by

Fenner, J.

Plaintiff sues for the resolution of the sale of the land on tlie ground of non-payment of the price, and for fruits of said property at tlie rate of $150 per annum from date of sale, more than ten years. •

The property is valued at $800.

The ground of the motion to dismiss is, that the claim for fruits is manifestly fictitious and unsupported by evidence.

There can be no doubt, that in the event of success, in his demand for resolution of tlie sale, plaintiff would be entitled to fruits of tlie property from date of sale, at least, if he had received such fruits. Derepas vs. Shallus, 15 La. 371 ; Boner vs. Mahle, 3 An. 600.

Therefore, the claim for such fruits cannot be considered as absolutely unreal or fictitious, and the mere failure to prove them would simply authorize a judgment of non-suit. Motion denied.

On ti-ie Merits.

On July 19th, 1870, plaintiff sold the land to the defendant for the price of $800, represented by two promissory notes, one for $400, falling due January 1st, 1871, and the other for like amount, falling due January 1st, 1872. Neither were ever paid. In September, 1881, plaintiff voluntarily remitted the debt due on the first note, and returned it to defendant. He then brought bis action to resolve the sale, not for non-payment of the entire price, but exclusively for nonpayment of that portion represented by the second note.

The prescription of ten years is pleaded, and the question presented is, whether proscriptive term is to be counted from the maturity of the first instalment of the price, or only from the maturity of the second instalment, the failure to pay which is the sole breach of the resolutory condition alleged as the basis of the action.

In the case of George vs. Knox, 23 An. 354, which was a suit for resolution, on the ground of non-payment of several instalments of the price, the Court held that the right of action accrued on the failure to pay the earliest instalment, and- that the prescriptive term dated from that moment.

We are not now called upon to pass an opinion upon the correctness of that decision, because the case before us is different from it. In that case, Mr. Justice Wyly delivered a vigorous dissenting opinion, in the course of which he said : Suppose the plaintiff, anticipating the present ruling, had made a voluntary remission of the note maturing March 1st, 1858, which would have discharged it, and then demanded the rescission on the other notes to which the prescription of ten years was not applicable, could the action have been defeated by the plea of prescription ? Certainly not.” This is the precise course taken by the plaintiff herein, and we think Juge Wyly’s opinion that, in such case, the prescription is only counted from the default on the unextinguished note, is clearly correct.

What is the resolutory condition implied in the synallagmatic contract of sale 1 It is, that if either party shall fail to comply with his obligations under the contract, the other has the option of claiming the rescission of the contract. The obligation of the vendee in this case was to pay $400 on 1st January, 1871, and $400 on 1st January, 1872. On failure to pay the first instalment, plaintiff’s right of action to rescind undoubtedly accrued, but he was not bound to exercise it, and had the unquestioned right to condone that breach of obligation and to renounce the right of action arising therefrom; and this he has unquestionably done in this case. Payment of that instalment by the vendee, at any time, would undoubtedly extinguish plaintiff’s right of action for breach of condition in not paying it when due; and so the extinguishment of the obligation in any other mode, with the consent of the vendor, must have the same effect. After such extinguishment, no right of action to rescind remains in the vendor, except the right arising from the failure to pay the second instalment, and that action necessarily dates from the date of failure.

The distinction between the two cases is substantial. Had plaintiff not remitted the first note, and based his action on the failure to pay both instalments, the defendant could only have defeated the action (if not prescribed) by paying the whole amount of the unpaid price. But now, by paying at any time before judgment, the last instalment only, he could have put an end to the action of plaintiff and perfected his title to the property. 2 Delviucourt, p. 17, Not. 5 on C. N. Art. 1657.

We must regard the present action as arising from, and based ex'clusively on the breach of condition, resulting from default in payment of the last instalment, and only prescribed by ten years from that date, which had not expired when this suit was brought. As said before, we have no occasion to affirm or deny the correctness of the decisions relied on by defendant.

It is, therefore, ordered, that the judgment appealed from be annulled, avoided and reversed, and it is now adjudged and decreed, that plaintiff have judgment against defendant dissolving, rescinding and setting aside the sale of the land described in the petition, and decreeing that plaintiff is entitled to the possession and ownership of said land, and that plaintiff’s claim for fruits be dismissed as in care of non-suit. Defendant and appellee to pay costs in both Courts.


author: Todd, J.

text:
    No. 1041.
    The State of Louisiana vs. Ephraim Welsch and Daniel Webster.
    The District Judge has, in the selection of jurors, a discretionary power, which should be trusted to a great extent, and his ruling in such matters should not be disturbed unless manifestly erroneous.
    The Judge may have -referred to a witness of the defendants as a willing witness, in ruling over a point of evidence, in the trial of the case/ without thereby violating the principle that the Court must not comment upon the facts before the jury.
    APPEAL from the Fifth District Court, Parish of Richland. Richardson, J.

      J?. G. Hudson, District Attorney, for the State, Appellee.
    IF. N. Rotts and O. J. Boatner, for Defendants and Appellants.
   The opinion of the Court was delivered by

Todd, J.


text:
    No. 1066.
    W. B. Thompson & Co. vs. T. J. Freeman et al.
    1. The Articles of the Code, establishing a presumption of fraud against contracts entered into between an insolvent debtor aud his creditor, or other person having knowledge of his insolvent circumstances, do not constitute such insolvency aud knowledge, as the only grounds upon which contracts in fraud of creditors may be revoked, and do not exclude other evidence of fraud and collusion, and do not control the broad principle established by the Code, that every contract may he the object of the revocatory action, which was made with the common purpose, on the part of both parties thereto, of defrauding creditors, and which actually does injure and defraud them.
    2. Transfers made by the husband, in satisfaction of genuine paraphernal claims of the wife, are excepted from the general rules governing the revocatory action. Affirming 33 An. 532; 30 An. 745; 8 An. 485.
    A PPEAL from tlie Tliird District Court, Parish of Uuion. ham. J. Gra-.

      JRwmsey & JEverett, for Plaintiffs and Appellees.

      JRwtland <& Kilgore, for Defendants aud Appellants:
    A sale made to one not a creditor, by an insolvent debtor, is not presumed to be fraudulent, and in an action to annul it, the burthen of proof is on the party attacking it. C N. 538.
    A merchant in failing circumstances and under protest may sell his property to a bona Me purchaser. 22 L. 2C0.
    A debtor on the eve of insolvency may make a cash sale of movables. 12 L. 308.
    A debtor may intend fraud to his creditors by selling Ms property, yet Ms vendee must he a party to the'fraud to set the sale aside. 26 An. 467.
    But fraud is never presumed — it must he proved with legal certainty. 18 An. 123.
    Good faith in contracts is always presumed — the onut of proof is on him who alleges bad faith. 24 An. 299.
    To annul a sale on the ground that it was made in fraud of creditors, it must appear that the purchaser knew of the insolvency of the seller and bought with the intent to assist him to defraud his creditors when the sale was made for an adequate price, which was paid in whole or in part. Chas, and Wm. Bastían vs. L. H. Christesen et al- — lately decided in New Orleans.
   The opinion of the Court was delivered by

Fenner, J.

This is an action by plaintiffs, creditors of T. J. Freeman, to recover judgment against him for their debt, and at the same time, to revoke certain contracts by wbicli his property was conveyed to his son-in-law, J. C. Pryór, and to his wife, who are both made parties defendant.

There was judgment in the lower court, in favor of plaintiffs, against the defendant for a less amount than was claimed, and revoking the conveyance of property to Pryor, but rejecting the demand in revocation of the conveyance to the wife, Mrs. Freeman.

Plaintiffs, Pryor and Freeman, have all appealed.

I.

Plaintiffs complain of tlie reduction made in their claim against defendant. Plaintiffs held two notes of defendant, and also an open account against him, arising out of transactions prior to 1881. Defendant shipped them certain produce, the proceeds of which were applied by plaintiffs to the liquidation of the account, and the surplus was credited on the notes. They sued in this action, on the notes,' for the balance due thereon.

The answer was a general denial.

The Judge held that the credits due defendant should have been imputed first to the notes, as the most onerous debt. This decision might have been correct, had such defense been pleaded. But under the general denial, and in absence of special plea, defendant could not claim that the notes had been extinguished by payment. The plaintiffs were entitled to judgment for the amount claimed as due on the notes, with interest thereon at 8 per cent., as stipulated in said notes, and the judgment must be amended accordingly.

II.

Plaintiffs complain of the judgment, in so far as it rejects their demand to revoke the conveyance to Mrs. Freeman ; and Freeman and Pryor complain of the revocation of the conveyance to the latter.

The conveyances are attacked as having been made in fraud of creditors. The facts are as follows:

Freeman was conducting a planting and mercantile business in the Parish of Union. Pryor had married his only daughter about three years previously, and, from the date of his marriage, had lived with his father-in-law, and had acted as his clerk in his store, and had assisted him on the farm.

Freeman had, for several years, been doing business with plaintiffs, as his commission merchants; and, at the end of the year 1880, was considerably in arrears to them. In the spring of 1881, he visited them in New Orleans, for the purpose, of securing advances for the current year. Although plaintiffs were reluctant to grant them, yet upon Freeman’s representations as to his property, and as to his crop prospects, and especially upon his assurance that he was free from debt and owed not a dollar to any one except plaintiffs, the latter consented, and Freeman immediately received from them advances and supplies to a large amount.

Yery shortly after his return home, he executed a donation inter vivos in favor ox his daughter, Mrs. Pryor, of nearly the whole of his tangible property, except about 160 acres of land and some personal property, which, on the same day, he set apart and recorded as a homestead claim. Directly afterwards, he sold out to Pryor the goods and merchandise of his store, together with a lot of notes and accounts, for $1400. He subsequently transferred to Pryor another lot of notes and ‘ accounts, and seven horses and mules,for $800 ; and, then, to complete ali, transferred to Pryor his entire crop of 1881, in consideration of Pryor’s giving himself and wife a living during the year.

Tale & Bowling, creditors of Freeman, getting wind of these transactions, brought suit to annul the donation to his daughter. Judgment was rendered annulling the same, and, on appeal to the Circuit Court, was affirmed.

Immediately on the rendition of this last judgment, Mrs. Pryor, aided by her husband, executed a notarial retrocession to Freeman of all the property which had been donated to her; and, on the same day, Freeman executed, in favor of his wife, a transfer of that property, (or most of it) together with the property which he had previously set apart as a homestead, in settlement., as claimed, of a debt due her on account of her paraphernal funds received and used by him.

As a result of these flagitious transactions, Freeman stood before the world stripped of all his valuable property, worth not less than $8,000, with only $2,200 in money supposed to have been received from Pryor, which, if it had been paid and had not been spent, was in his pocket and beyond the reach of his creditors, while the whole of his property ■remains in the possession of his own family. Even counting the $2,290 as paid and remaining in his possession, he is left an undoubted insolvent, and without means sufficient to pay his debts.

We will not waste breath in detailing the consideration (forcibly stated in the opinion of the Judge a gun) supporting the self-evident conclusion from the above facts, that these transactions, from beginning to end, were conceived and executed with the sole and obvious purpose of committing a fraud upon the rights of creditors; that both Pryor and Mrs. Freeman must have been cognizant of this transparent purpose; and, indeed, that it was a collusive scheme in which all the parties participated to effect this unlawful purpose.

Pryor’s defense is confined to faint denials that he knew of the insolvency of Freeman. He does not expressly deny that he knew of the purpose to defeat Freeman’s creditors. The question of Freeman’s anterior insolvency vel non is of minor consequence. It is’sufficient to know that the effect of these transactions is to make him insolvent, and to defraud his creditors.

It is a mistake to suppose that insolvency of the debtor and knowledge thereof by the party with whom he contracts, constitute the sole ground upon which contracts can be annulled for fraud upon the rights of creditors. General dicta to that effect, found in decisions, are applicable to the cases in which they are uttered, when the parties are merely preferred creditors, or where insolvency and knowledge thereof were the grounds upon which the charge of fraud was based. In such cases, of course, the insolvency and knowledge are essential elements of proof. But it is well settled, that “the debtor’s property being the common pledge of his creditors, every act, device or machination, by which they are prejudiced, may form the subject of the revocatory action,” referring, of course, to “acts, devices and machinations,” to the fraudulent purpose of which the third persons were parties. Fennessey vs. Gonsoulin, 11 La. 424; Hempkin vs. Bowman, 16 La. 367; Barker vs. Phillips, 11 Rob. 190 ; Stone vs. Kidder, 6 An. 552.

In another case, the correct principle, patent on the face of the Articles of the Code, was more distinctly announced, as follows :

“ It is contended that the defendant, Beaman, was not a creditor, and that lie is not shown to have had knowledge of the failing circumstances of the vendors. We consider this Article 1979, (Bev. C. 1985) as merely establishing a presumption against the contract, whenever it is first shown that the obligee knew of the discomfiture of the obligor, and when, being a creditor, he gains an advantage over other creditors. But it does not exclude other evidence of fraud and collusion, and does not control- the broad principle established by the Code, that every contract may be an object of the revocatory action which was made in fraud of the rights of creditors.” Bhodes vs. Beaman, 10 La. 369.

Therefore, when satisfied, as we are in the present case, that the contract was made in execution of a collusive purpose between the parties to defraud and defeat creditors, and when the direct result of the contract is to leave the obligor insolvent, and actually to defeat creditors', we will not hesitate to frustrate such schemes by annulling the contract.

We confirm the conclusions readied by the District Judge, that the contracts with Pryor were fraudulent, within the spirit and meaning of the Articles, and that plaintiffs were entitled to have them revoked.

The case of Mrs. Freeman, however, presents different features.

The transfer to her purports to have been made in satisfaction of her paraphernal claims, and the jurisprudence is settled that such transfers are not subject to the ordinary rules governing the revocatory action, and that neither the pecuniary embarrassment nor the actual insolvency of the husband, nor injury to' the rights of creditors, present any obstacle to bona fide transfers in satisfaction of such claims, when shown to be real and genuine. The reasons for this distinction are well stated in the following cases: Levi vs. Morgan, 33 An. 536; Lehman vs. Levy, 30 An. 745; Judice vs. Neda, 8 An. 485.

And, although we believe that the purpose of the transfer, at the time when made, was to give her a preference over other creditors, yet if the parties had the legal right to make the transfer, the injury to creditors is damnum absque injuria.

It devolved, however, on the defendants to establish the reality of the paraphernal claims alleged to have been satisfied by the transfer.

For this purpose they offered to introduce in evidence what purported to be the original record in the succession of Isaac and Sarah Cole, which belonged to the Court of the Parish of Ouachita, outside of the District presided over by the Judge a quo. Counsel for plaintiff objected to the introduction of these papers, on the ground that they were not authenticated, and that there was no proof that they were the originals which they were claimed tobe. The Judge overruled this objection. We find no proof in the record to establish the genuineness of the papers, and we think, under the circumstances, the Judge erred in overruling the objection. Certified copies of the record should have been produced, or, at least, some official certificate or other proof, to establish that the papers were what they purported to be. A contrary rule would open the door to fraudulent substitution of papers. See Act No. 43, E. S. 1870; 1 Greenleaf Ev. § 502.

We do not feel justified, however, on this ground, to decide the case against Mrs. Freeman. Non constat, that the Judge, if he had decided this record to be inadmissible, might not have afforded the defendant time to produce proper evidence.

The case, as to Mrs. Freeman, must be remanded.

It is, therefore, ordered and decreed, that the judgment appealed from be amended as to the amount which defendant, T. J. Freeman, is condemned to pay to plaintiffs, so as to make said amount as follows, to-wit: the sum of $1,214.12, with interest at 8 per cent, per annum thereon, from June 7th, 1881, and the further sum of $1,785.51, with five per cent, per annum interest on $1,649.46, from July 1st, 1881, and on $122.10 from January 4th, 1882; that so much of said judgment as rejects the demand of plaintiffs to have the transfer fromT. J. Freeman to his wife declared null, be annulled, avoided and reversed. That said judgment, in all other respects, and as amended hereby, be affirmed; and that as to the claim for nullity of the transfer from Freeman to his wife, the cause be remanded to the lower court for further proceedings according to law; costs of this appeal to be paid by defendants.


text:
    No. 1053.
    Mrs. Louisa C. Bracey and Husband vs. J. E. McGuire, Sheriff, et al.
    A party signing a twelve months’ bond is not permitted, when execution issues thereon, under Article 720, C. P., to arrest the writ, on the ground that there was no seizure, advertisement and sale of the property in the case in which the bond was furnished, the bond reciting that all the requirements of the law had been complied with.
    By signing the bond, such party has cured all the irregularities, if any existed. 7 An. 542; 12 Rob. 209 ; 9 Rob. 185 ; 34 An. 205.
    Oral testimony is not admissible to contradict a written contract by the parties thereto, unless under charges of error, fraud, want of consideration, and the like. C. C. 2276, 1819 ; Greenleaf, Vol. I, § 284.
    APPEAL from the Fifth District Court, Parish of Ouachita. Richardson, J.

      R. G. Gobi), for Plaintiffs and Appellants.

      R. Richardson and Thos. 0. Benton, for Defendants and Appellees. •
   The opinion of the Court .was delivered by

Bermudez, C. J.


text:
    No. 1038.
    P. H. Toler vs. Mrs. M. D. Bunch and Husband.
    A joint proprietor is not liable to his co-owner for rent, on account of the occupancy of the land, in the absence of any contract of lease, and where such proprietor .cultivates not more than his interest of the land, without objection from the other co-owner. But such co-owner is not liable for improvements made by the other proprietor, except such as are necessary for repairs or the preservation of the property. 23 An. 150; 33 An. 297.
    APPEAL from the Fifth District Court, Parish of Richland. Richardson, J.

      Botts & Hudson, for Plaintiff and Appellee.

      R. Ray and Boatner & Liddell, for Defendant and Appellant.
   The opinion of the Court was delivered by

Todd, J.


author: Pocino, J. Told, J.

text:
    No. 1054.
    J. H. Mitchell, Tutor, et al. vs. W. S. Logan, Sheriff, et al.
    Hotes executed by a stockholder of the Citizens’ Bank to represent a stock loan, identified by authentic act with the original stock mortgage, are fully secured by the stock mortgage, which is binding as a loan mortgage, even on third parties, without an inscription of tlie new act in the proper office.
    The failure, neglect or refusal of a stockholder of that Bank to pay the stipulated instalment and interest on his loan when due, operates of itself a forfeiture of his right to renew his stock loan note, which thence becomes due and exigible, according to law, in capital and interest of ten per cent.
    An order of seizure and sale is not a judgment in tho legal sense of the term.
    Its only element, in common with a judgment, is the fact of its being liable to be reviewed on appeal.
    APPEAL from the Fifth District Court, Parish of Ouachita. Bichardson, J.

      B. G. Cobb and B. Bichardson, for Plaintiffs and Appellants :
    1. Tlie clerk has no power to vary or change the terms of an order of the Judge, in an order of seizure and sale, in the writ issued by him to the sheriff, under such order, directing the sale of the mortgaged property. He can neither increase or diminish the quantity of land or other property ordered to he sold, nor amount of money decreed to he due hy the Judge. The clerk is merely a ministerial officer.
    2. An order of seizure and sale granted hy the Judge, directing the sale of property, described as 1340 and 46-100 acres, on 0. river, mortgaged hy D., and other land situated at junction of bayous B. and DeS., 15 miles distant, mortgaged by D. & B., a planting partnership owning and working landand slaves, for a different and unconnected matters and purposes, in globo, to pay different debts, is illegal.
    3. That where there are two mortgages executed, one hy an individual and tho other hy a partnership, of whom said individual is a member, to the Citizens’ Bank, to secure stock subscriptions, said mortgage, being entirely independent of and unconnected with each other, the Bank cannot consolidate the indebtedness resulting from loans made under separate pledges of stock issued to the individual and partnership, in a proceeding against the individual. Different orders of sale must issue on the different mortgages. C. P. 732, et seq.

      4. Prescription of.10 years runs against a judgment in favor of the Citizens’ Bank, resulting from an order of seizure and sale duly signed and notice served, granted on petition with notes attached, and if said period elapse without executing or reviving the judgment, no new order or judgment can be rendered on same notes for same debt. C. C. 3347 ; 12 M. 696; 6 An. 447.
    5. There is nothing in the charter of the Citizens’Bank, or acts amendatory thereof, that exempts them from pursuing tho same formalities in obtaining and executing orders of sale on the mortgaged property of tlieir subscribers, that others are compelled to follow.
    6. When notes are given to the Bank for loans undecamortgage given for stock subscription, but at subsequent dates, and said notes or obligations are not recorded in tlie parish where the property is situated, nor any authentic act showing the amount of loans, third possessors and owners of the mortgaged property will only be affected by the stock mortgage for contributions on stock.
    7. Where the stock subscriber and loan debtor was a resident within the Confederate lines from 1861 till cessation of hostilities, the Bank could not capitalize the whole debt and charge interest at 10 per cent, from last payment, under lltli Section of Charter. Such cax)italization can only take place after judicial demand hy the Bank for payment.

      F. F. Stubbs, for Defendants and Appellees :
    1. Under the charter of the Citizens’ Bank-antl the mortgage contracts, the failure to meet the instalments of stock notes as they matured, places the debtor in default, and the whole loan, becomes exigible, with 10 per cent, interest from that date. -See. 24, 11.
    2. Any payments thereafter made are imputable to the interest, and nothing to the principal, until the entire interest is discharged.
    3. Two distinct tracts being mortgaged to secuio the stock notes, one for all of them and the other for only a portion, that hound for the whole may be first seized and sold for the debt and without seizing the other. The mortgagor cannot complain that only a part of the mortgaged property was seized. 3 La. 234.
    4. Executory process is not properly a suit, but merely the aid of judicial power to give force aud effect to what is equivalent to a judgment confessed, aud an order of seizure and sale is not a judgment in the true and legal sense of the term. 16 La. 254; 13 An. 256; 18 An. 186.
   The opinion of the Court was delivered by

Pocino, J.

Plaintiffs, as third possessor's of several tracts of land, formerly part of a larger tract owned by S. W. Downs, are seeking, by injunction, to arrest the sale of their property, seized under executory process at the instance of the Citizens’ Bank, under a stock loan mortgage, granted by said Downs, when he was the owner of said large tract of land.

In the case of the Citizens’ Bank vs. S. W. Downs et al., in which the order of seizure and sale complained of issued in March, 1879, the plaintiffs in this suit, defendants in the other, had taken an appeal to this Court, which maintained the executory process, in an elaborate opinion, in which is found a full and complete statement of facts, and a history of the claim urged by the Citizens’ Bank, under the law which incorporated that institution, and endowed it with unusual powers and prerogatives.

That opinion, rendered in 1879, by our immediate predecessors, to be found in the Opinion Book of the Court at this place, p. 536, has been of great assistance to us in the consideration and determination of the numerous points raised in the present case, which are ten in number, and are substantially as follows :

1. That there were two tracts mortgaged, viz: that owned by them, the original Downs’ Home Place and the Island Placo; that both were described in the Bank’s petition for the order of seizure and sale, and 227 shares of stock, alleged to be pledged, and that the clerk, in the writ, had only directed the seizure aud sale of the Downs’ Home Place, and 170 shares of the stock.

2. They deny that there is or over has been any mortgage to secure the six notes, bonds or obligations, or that said mortgage has ever been registered in Ouachita; and that if any such mortgage exists, they are third possessors without notice, and not hound.

3. That the notes are only an ordinary debt of Gen. Downs.

4. No writ of seizure and sale can issue on a stock mortgage.

5. By permitting the sale of the Arpen Tract, a part of the Island, property originally mortgaged, they released all the other property from liability for their claims.

6. That one-half the loan was secured by the mortgages on the Downs’ Home property, and that has been long since extinguished by Downs’ payments.

7. ■ That the Bank had no right to declare Downs in default, and charge him with ten per cent., etc. j that Downs was in the Confederate lines, etc.

8. That it was merged into judgment in 1868, and prescribed by ten years.

9. That the clerk had no right to change the terms of the writ from the order of seizure and sale, and direct less to be seized than the Judge had ordered.

10. Prescription against the calls duein 1873,1876 and 1878, of three, five and ten years.

First and Ninth. The first and ninth grounds, presenting one and the same point, will be considered together.

The record shows, that by means of two different contracts, Downs acquired two hundred and twenty-five shares of the Citizens’ Bank stock, and that in another act, by himself and his planting partner, he acquired seventy-five more shares; that the stock purchased by him individually, was secured by mortgage on the property now owned by plaintiffs in this suit, and the other stock was secured on other lands owned by the partnership. After the dissolution of the partnership, Downs remained the owner of 300 shares, of which 225 were secured on his Home Place, and the balance, (75) on the former partnership property, known as the Island property.

Under the charter of the Bank, and as amended by subsequent legislation, his shares were reduced to 227, affecting his property in the proportion of one-fourth on the Island Place, and three-fourths on the Home Place.

During the years 1837, 1833 and 1839, while Downs owned 243 shares of stock, he exercised his right, under the charter, of obtaining loans from the Bank, which loans aggregated the sum of $11,190, represented by six notes of various amounts, and which were, by payments, conformably to the charter, reduced to $5,818.60, to enforce the payment of which balance the executory process herein enjoined was resorted to by the Bank.

Under the law, the contract and the charter, the Bank was entitled to the seizure of all the tracts of land subject to its mortgage, as ordered in the order of seizure and sale, and as decided by our immediate predecessors, in the decision on the appeal above referred to. Holding- such an order, a seizing creditor lias the undoubted legal right to direct and control its execution, and to restrict the first levy to a portion only of the lands ordered to be seized by the order of the Judge.

If Downs were living, and yet the owner of these several tracts of land, he certainly could not complain that all of the mortgaged prop; erty had not been seized. Gaiennie vs. Questi, 3 La. 434.

It is difficult to conceive what greater rights have been acquired by the present owners, holding under his titles, subject to the mortgages existing previous to their purchase.

The objection that the seized debtors are not given all the credits to which they claim to be entitled, cannot justify an injunction of the entire seizure, especially as the evidence fails to show, to our satisfaction, that the seizing creditor had failed to allow them credit for all sums paid by their veudor and his author.

The act of the clerk, in compliance with the seizing creditor’s request, in directing the sheriff to seize less property than the order of seizure and sale called for, cannot be considered as an attempt to alter or change the order of the Judge, and is far from presenting an instance of “ a monstrous usurpation of authority,” as charged by plaintiffs’ counsel. In so doing, the clerk merely carried out the legal intention of the seizing creditor.

Second. Under the charter of the Rank, it is specially stipulated that the stock nnjj.'tgage required of all the shareholders, shall stand as full security for the loan or loans, and the interest thereon, which stockholders may obtain from the institution; and hence, it required no special act of mortgage to create the contemplated security for stock loan notes, which were, by notarial act, identified with the original act of stock mortgage.

It is now judicially settled, that the inscription of the act or acts of mortgage, in which it was stipulated that the stockholder shall be entitled to a credit equal to one-half of the total amount of his stock, is sufficient to create the loan mortgage, even as to third parties. Charter, Sec. 11; 2 An. 249 ; 3 An. 112, 063.

Third. The notes executed by Downs, under those circumstances, became, for those reasons, stock loan notes, and are secured by the mortgage stipulated in the charter; and it is, therefore, erroneous to charge that they were ordinary debts of Downs.

Fourth. We know of no law which deprives the corporation holding stock, or stock loan mortgages, represented by notes, identified by authentic acts, with a previous authentic act of mortgage, of the benefit of the law authorizing executory process, in the enforcement of ■a claim secured by an act importing a confession of judgment. Hence, we see no merit in this objection.

Fifth It appears from the record, that the Arpen Tract ” was formerly owned by the planting partnership of Downs & Brigham, and that it was included iu the mortgage to secure the stock purchased by ■'said partnership.

In the cases of Rind vs. Fluker, 22 An. 482, and of the Citizens’ Bank vs. Fluker, 23 An. 567, we are informed that the stock loan mortgage of 1839, affecting this tract of laud, was extinguished quoad this tract, by a judicial sale made a,t the instance of the Bank, at which sale the property brought a price exceeding the amount of tlie loan as it then stood. We are at a loss, therefore, to conceive how the Bank, in renouncing a claim extinguished under the law, could be construed as thus releasing all the other property mortgaged in its favor for the security of its claims. This 2>oint is reviewed and fully dist>osed of in the case quoted from Opinion Book, p. 536.

Sixth. A mere ins2Jection of the notes in suit, discloses the fact that the .payment of all six was secured by mortgage on Downs’ Home Place, and that three of them were additionally secured by mortgage on the Island Place. Hence, plaintiffs are manifestly in error in asserting that only half of the loan was secured on the lands which they now hold.

Seventh. Under the charter of the Bank, Sec. 11, it was expressly provided, that if any debtor, under a stock loan, should fml, or neglect, or refuse to pay the proportion of the capital and interest, as the same should become due and payable, then and in that case, the whole debt, capital and interest, inay be considered as due, and payment thereof demanded and enforced according to lawand by Section 24, ten per cent, on the loan was the rate of interest fixed; and it is elementary that this law was a part of Downs’ contract with the corporation. Hence, on the first of January, 1862, at the maturity of his •loan notes, his failure to ]>ay the stipulated instillment and interest, ■operated, of itself, a forfeiture of his right to renew under the charter.

Tlie argument that, by reason of the possession of New Orleans by the United States military authorities, which, as history informs us, occurred only at the end of April, 1862, cutoff communication between that city and the Parish of Ouachita, then under Confederate occupation, is evidently not serious, and is refuted by a mere statement of the ■proposition.

Fighth. The objection, that by executory 2U’ocess issued on this claim -in September, 1868, not followed by execution until the present order was granted in March, 1879, the stock loan was merged into a judgment, by reason of which it was extinguished by the prescription of ten 3rears, involves the proposition that an order of seizure and sale is a judgment in the full and legal sense of the term. It would be difficult to conceive of a more absolute legal fallacy, and an examination of the authorities cited in its support by plaintiffs’ counsel, satisfies us that this legal heresy finds no foundation in our jurisprudence. 12 M. 695 ; 2N. S. 32; 6 An. 446.

To the assertion that “ every element of a judgment enters into the executory process," the legal mind suggests a ready and easy answer : that the executory process lacks the following elements of a judgment:

1. It is not preceded by citation, the foundation of a judgment.

2. It creates no issue.

3. It decides no issue, and requires no answer or no default.

4. It adjudicates to the plaintiff no right which is not secured by* his notarial act, nor deprives him of any thus secured.

5. Its inscription in the mortgage office will, therefore, operate no judicial mortgage.

6. If the property mortgaged, and seized and sold under it, does not bring a price sufficient to satisfy the amount of the claim, the creditor cannot issue execution on such balance without first obtaining judgment thereon, contradictorily with his debtor.

7. It cannot support the plea of res judicata or Us pendens.

Other differences could be enumerated, but it would be an idle task, as we consider the point well settled in our jurisprudence, which recognizes in such orders but one element of a judgment, namely, the right of appeal, which can be taken either from the order of the Judge or from his refusal to grant the process. 16 La. 254, Harvard vs. Voorhies; 13 An. 256, Riley vs. Christie; 28 An. 186, Rousseau vs. Bourgeois ; 32 An. 977, State ex rel. Wise vs. Taylor, Judge.

■ We, therefore, conclude that the ten year prescription on judgments cannot avail plaintiffs in this case.

The plea of prescription of three and five .years to the contributions called for under acts of the legislature, seems to be abandoned on appeal, and is absolutely untenable, under the amendments to the charter.

After an exhaustive investigation of the evidence, and a mature consideration 'of the numerous obstacles interposed b3r plaintiffs to the collection by the Bank of a just and valid claim, protected by equity as well as law, we reach the conclusion that the judgment of the District Court, dissolving the injunction sued out by plaintiffs in this case, is righteous, legal and correct.

Judgment affirmed.

On Application for Rehearing.

Told, J.

The objection to the alteration by the clerk of tlie order of seizure and sale, in the particular of allowing the taxes in diminution of tlie credits admitted in the order, cannot bo considered under the pleading's, which do not set up this objection as a ground of injunction.

The complaint in the petition to the action of tlie clerk, under the instruction of the Bank’s attorney, was in reducing the amount of property to be seized. This point, too, was barely and obscurely referred to, even in tfie original brief of plaintiffs, and not at all in the brief of defendants, which indicates that it had not been asserted or relied on in the lower court.

All other points, referred to in this application, were disposed of in our original opinion, which we see no reason to change.

Rehearing refused.


author: Pociié, J. Todd, J.

text:
    No. 1037.
    Heirs of Thomas Nesom vs. Julius Weis et al.
    A sale of succession property, prayed for in order to pay the debts and to settle the various claims against the estate, by the administrator of a succession in which there are minors, and ordered by the court for the purpose of paying the debts, for the settlement of which the administrator has no available funds, is a sale to pay debt», and is valid as such.
    If, at such a sale, the tutrix being instructed by a family meeting to purchase for the minors property to the extent of their interests, buys property, which is adjudicated to her personally, without reference to her capacity, the property will ho held not to have been purchased for the minors, even if tlie auctioneer’s return is signed by tlie tufciix in her capacity as sueb.
    As the procos verbal is evidence of the sale, its recitals must control, and not the signatures of parties, which are unnecessary in law, and will, in such a case, he considered as surplusage.
    APPEAL from the Fifth District Court, Parish of Ricliland. llichardson, J.

      Oobb & Gunby and P. II. Toler, for Plaintiffs and Appellees.

      Boatner (& Liddell and B. O. Montgomery, for Defendants and Appellants:
    1. Minora claiming restitution in integrum must place matters in statu quo, and cannot recover the property in kind without refunding the price applied for their benefit. 6 S. 684; 8N. S. 210 ; 3 La. 544 j 9 La. 305.
    2. Under the Constitution of 1852 and the laws, the clerk of the District Court had no power to grant orders for tlie sale of succession property to effect a partition between minors.
    3. Our whole system of administration of tlie estates of minors is opposed to an anticipation of their means by purchases on credit. 11 An. 247.
    •4. "When a family meeting authorizes the tutrix to purchase land and slaves at a succession sale in which the minors were interested, up to the amount of theirinterestsiuthesuccession, and the tutrix buys property in her own name to nearly three times the interest of the minors, tlio purchase will, as to the minors, he such a nullity as is not susceptible of being ratified by them to the prejudice of rights of third persons previously acquired. 11 An. 247; 8 An. 442; 12 R. 3fr5 ; 8 La. 321.
    5. When the funds of the minors tobe invested is their residuary interest in a succession which owes large debts, and can not be ascertained before the sale of the succession property, the advice of the family meeting, that the tutrix be instructed to buy at said sale land and slaves, to an amount equal to the interest of the minors in said succession, is too vague and indefinite to be earned into effect, and is an absolute nullity. 5 La. 21.
    6. Any material variation from the instructions and advices of the family meeting by the tutor, in investing the funds of the minor, such as investing more money than advised, or purchasing on terms of credit, when the family meeting directs the purchase to be made for cash, or making a joint purchase with others when not advised, will be, so far as the minors are concerned, an absolute nullity; and the purchase will be considered a» having been made for the tutor individually. 4 An. 85; 5 R. 287; 11 An. 247.
    7. A transaction purporting to be an investment of minors’ funds, but absolutely null on the face of the papers, is no more subject to ratification than an illegal salo of his property by the tutor, when the effect of such ratification is to destroy or impair the rights of third persons previously acquired. 8 An. 442.
    8. When the tutrix is instructed to buy “land and slaves at a succession sale for her minor children, to the extent of their interest in that succession,” (which, after the settlement of the succession, is ascertained to be $7,500) and she buys at that sale in her own name, land and slaves, to the amount of $19,303, satisfying the difference by what is due herfrom the succession, the minors seeking to recover the*landmust tender their tutrix or her assignee the amount of her money which was expended in the acquisition.
    9. Where the administrator executed no title to property sold by him, but in his proces verbal of the sale made under order of court to pay debts, recites in express language that certain described property was adjudicated to Mrs. Delana Rebecca Jane Burt, and she afterwards signs tlie^rocrs verbal as tutrix, the recitals in the proces verbal will control the signature, and third persons who treat with her as owner will he protected. G-reenieaf,* § 23; 5 N-. S. 4; O. C. 2023.
   The opinion of the Court was delivered by

Pociié, J.

Plaintiffs claim, in a petitory action, the ownership of a tract of land alleged to be in the illegal possession of the defendants.

A statement of the salient facts which led to this controversy, is a necessary prerequisite to a proper understanding of the issues presented under the pleadings.

Abraham Nesom died in 1849, leaving some property, and' three minor children, (one of whom died yet a minor,) issue of his marriage with Rebecca D. Jane Albertson, who survived him, and was qualified ns natural tutrix of said minors.

Tilomas Nesom, a brother of the deceased, was appointed as administrator of the succession, and in an account of his administration, presented in 1852, it appeared that the succession funds in his hands amounted to $5,454. At the- death of his wife, Mary Van Hook, Thomas Nesom was qualified as natural tutor of their only child, Luenza Nesom, (who died without issue, at the age of eighteen years); and Tilomas Nesom then married his brother Abraham’s widow, from whom he had two children, Thomas and Martha, the plaintiffs in this case. He died in 1853, and his widow married Henry A. Burt, who became her co-tutor, in her double tutorship, of the minor children of Abraham and of Thomas Nesom, by his marriage with her.

In 1854, James Nesom, who had been appointed administrator of his brother Thomas Nesom’s succession, and tutor of his minor child, Luenza, presented to the probate court a petition, in which he recited the debts due by said succession, including the sum of $5,454 due to the succession of Abraham Nesom, another debt due to a merchant, and the claims of the minor, Luenza, in right of her mother’s separate estate, and of her share in the community; and in which he averred that a sale of the succession property was necessary, for the purpose of paying the debts and of effecting a partition, and he concluded, by praying for an order of sale of the succession property, for the “ pur-' pose of paying the debts and settling the various claims against the estate.”

On this petition, the following order was rendered : “ It is ordered, adjudged and decreed by the Court, there appearing a large amount of debts against the estate of Thomas Nesom, and no money on hand to satisfy the same, that the propérty comprising said estate and succession, both real and personal, be sold after due and legal advertisement, according to Articles 990, 991 and 992 of the Code of Practice.”

At the sale made in obedience to that decree, property, consisting of lands, slaves and movables, amounting to $19,303.30 was adjudicated to Mrs, Rebecca Jane Burt, and property of like description, amounting to $3,750, was adjudicated to James. Nesom, as tutor of Luenza Nesom. A day or two before the sale, family meetings, held in behalf of the minor children of Abraham and of Thomas Nesom, and in behalf of Luenza Nesom, had authorized and instructed the respective tutors of these children to purchase at the sale, for said minors, property to the extent of their respective interests and claims in and to the proceeds of said sale.

In hisproees verbal of sale, the administrator does not state that the adjudications made to Mrs. Burt were made in her capacity of tutrix, but the proees verbal is signed by herself and husband, as tutrix and co-tutor.

• She then remain ed in j>ossession of the lands claimed by plaintiffs, which she improved and cultivated, until the year 1863, when she sold them, as her individual property, to G-. & H. King, who subsequently mortgaged that property to Meyer, Weis & Co.

At the suit of the latter, in executory process, in 1877, these lands were adjudicated to Julius Weis, who sold them, in 1878,.to H. I). King, but the latter’s titles were recorded only after the institution of this suit against Weis, and II. D. King was then made a party herein, by an amended petition.

• Now, plaintiffs, in urging that the sale, of December, 1854, was a partition sale, and that the lands in suit were purchased by their mother and tutrix, for their account and benefit, under the advice of the family meeting- above referred to, allege the nullity of the sale to the Kings by their mother, in 1863, of the sheriff’s sale in 1877, and of the sale by Weis to King in 1878.

They contend, that if the sale of 1854 is held to be null as a partition sale, they own the lands in their right of inheritance from their father, Thomas Nesom, and from their sister, Luenza.

Defendants contend, that the sale of December, 1854, was a succession sale to pay debts, and is legal and valid as, such, and that the lands in suit were adjudicated to Mrs. Rebecca Jane Burt, in her own right, and not as tutrix, and they urge the validity of the subsequent sales made under her purchase.

They make other defenses, and urge other claims, which we deem it unnecessary to enumerate and consider, under the views which we have taken of this ease.

Plaintiffs were recognized as owners of the lands claimed by them by the judgment of the lower court, from which defendants have appealed.

The pivotal point of this case, as suggested by the foregoing state'rnent of the facts and pleadings, turns upon the construction of the succession sale of December 23, 1854, and will find its solution in the consideration of the two following propositions :

1. Whether the sale of December, 1854, was a partition sale, or a sale to pay debts.

• 2. Whether the-purchases of Mrs. Rebecca Jane Burt wore made in her own right and account, or for, and for the benefit of the minor children of Abraham and of Thomas Nesom, by his second marriage. ■

1. Under the unequivocal rules of our law regulating successions, it is clear that the proceedings provoked by the administrator have none of the elements of a partition sale, and that if his proceedings were intended to operate such a sale, they are absolutely null, and nó sale took effect thereunder.

In the first place, the administrator has no right, as such, to prov-oke a sale of the effects of the succession in an action for partition. 22 An. 309, Hebert vs. Hebert.

The proceedings were not carried on contradictorily between the owners of the property held in indivisión ; the minor, Luenza., was not a party ; the administrator, if considered as party plaintiff, having no interest of ownership in the property to be partitioned ; there was no prayer for the appointment of experts to report upon the possibility or impossibility of a partition in kind, and no suggestion of family meetings, for the purpose of fixing the terms and conditions of sale in behalf of the minors.

It is elementary, that the character or nature of the sale must be tested by the prayer of the petition, and by the decree rendered thereon. The administrator prayed for a sale to pay debts and to settle the various claims against the estate, under which language we fail to discover any reference to a sale for the purpose of effecting a partition among the heirs.

The debts due by the succession consisted of the amount due to the succession of Abraham Nesom, to the New Orleans merchant, and to Luenza Nesom, in the right of her mother’s separate property; the claims against the estate consisted of the share of Luenza in the community between Thomas Nesom and Mary Van Hook. The interest of the present plaintiffs was merely residuary.

For the purpose of settling such claims and of paying these debts, it was perfectly regular in the administrator to provoke a sale of succession property; and it was equally legal for the court to order such a sale. That such was the purport, the moaning and the effect of the order granted by the court, and quoted hereinabove, is mauifest from the mere reading of the decree, and is too plain for comment or discussion.

We are, therefore, clear, that the sale ordered by the court, and effected in December, 1854, was obtained, and was made for the purpose of paying the debts of the succession, and that, as such, it was a valid sale.

2. In our opinion, the record is almost as clear on the second proposition, as to the nature of the purchases made at that sale by Mrs. Rebecca Jane Burt.

In hisproces verbal of sale, the administrator is very particular in his recital of his various adjudications.

Touching all the purchases made for the minor, Luenza Nesom, the instrument mentions, with great care and caution, that the adjudications are made to James Nesom, as tutor of the minor, Luenga, Nesom ; whereas, no qualification is added to the capacity of Mrs. Burt, in the. several adjudications made to her. This very significant circumstance, coupled with the fact that Mrs. Burt represented, as tutrix, two sets of minors, whose respective rights differed in amount, as well as in character, and that no purchases, even if any were made in her capacity of tutrix, were stipulated to be in the name or account of either set of minors, leaves no doubt in our minds as to the intention of Mrs. Burt to buy the property in her own right. This circumstance may account for her failure to carry out the instructions of the family meeting, or in keeping with the advice of the family meeting, and she may have discovered that the purchase which she was making would far exceed the interest of said minors. But, be that as it may, her violation of the instructions of the family meeting, and her responsibility therefor, cannot be inquired into in this suit, and cannot affect the rights of third parties. This intention also appears from the manner.in which she improved, at great expense, and cultivated the land in question, and from the sale which she made of it in 1863, as her individual' property.

Jurisprudence, in keeping with the textual provisions of our law, has established the rule, that the adjudication at a succession sale, by the sheriff, auctioneer, or representative of the succession, is the completion of the sale; and it .needs not be followed by an act passed before a notary ■, the purchaser becomes the owner of the-article adjudged, and tire contract is from that time subjected to the same rules which govern the ordinary contract of sale. C. C. Arts. 2608, 2623.

The proces verdal of the auctioneer or representative of the succession, made in pursuance of his adjudications, and recorded, makes proof of itself, is evidence of the sale, and no act under the signatures of the parties is necessary to perfect it. 7 La. 468; 6 R. 26; 3 An. 150; 12 An. 164.

Hence, the signatures of Mrs. Burt and of her husband, being unnecessary to complete her titles under the proces verdal, could not, in law, add to, or detract any force or effect from the clear legal meaning of that instrument, and can and must be considered as mere surplusage.

■In the case of Carroll vs. Sheen, recently decided, 34 An. p. , Mrs. Carroll had purchased at a sheriff’s sale, property sold in execution of a claim belonging to the community between her deceased husband and herself, and had signed the sheriff’s proces verbal or deed of sale in her capacity of tutrix, but had not been thus described as adjudicatee in the body of the deed. To the claim of her children, that the property thus purchased belonged to them, we answered that the recital of the sheriff, and not the unnecessary signature of the adjudicate©, was the test of the nature of the sale and of the purchaser’s title.

Plaintiffs’ argument, that Mrs. Burt, having purchased, under the regime of the community, property exceeding by some $1,300 the aggregate amount of her various claims, personal and as tutrix, against the estate of Thomas Nesom, her purchases fell into the community, and were not her separate estate, is not pertinent to the issue raised in the pleadings under the petitory action. Plaintiffs’ recovery depends upon the alleged adjudication to themselves through their tutrix. Having failed to show such an adjudication, they cannot raise the question as to the nature of another party’s purchase.

It is immaterial to the validity of title which they set up, to inquire into the question as to whether thepurchase made by Mrs. Burt, enured to her separate benefit, and thus became her separate property, or not.

But conceding, for the sake of argument, that the property thus purchased had fallen into the community, and that defendants’ title could be affected thereby, the record shows that J. A. Burt joined his wife in the sale to the Kings, in 1863, and this would have operated a divestiture of the community’s title to the property.

Whether it be true, as urged by plaintiffs, that the sale of all the property was not necessary to the payment of the debts of the succession ; that less was due to the succession of Abraham Nesom and to the minor, Luenza Nesom, than was stated by the administrator; that Mrs. Burt has never settled for the purchase price of her purchases, are all questions of no concern to third persons purchasing from her.

It is now no longer an open question, that a purchaser at a sale under the order of a probate court, which is a judicial sale, is not hound to look beyond the decree recognizing its necessity. He must look to the jurisdiction of the court; but the truth of the record concerning matters within its jurisdiction cannot he disputed. Ilennen’s Digest, p. 1494, No. 5, and authorities cited.

There is no question as to the jurisdiction of the court which rendered the order of sale in this case.

It was incumbent on plaintiffs, as a condition of success, to make out ■a clear legal title to the property which they claim; they have not even succeeded to throw a reasonable doubt on that of their opponents, and hence, they must be defeated.

It is, therefore, ordered, adjudged and decreed, that the judgment appealed from be annulled, avoided and reversed; and it is now ordered, that plaintiffs’ demand be rejected, and their action dismissed at their costs, in both Courts.

On Application por Rehearing.

Todd, J.

The application for a rehearing treats the action as if it were one to annul the sale made in the succession of Thomas Nesom to Mrs. Burt. Far from this being the fact, the plain tiffs, in their pleadings, distinctly assert the validity of that saie, and claim that they are the beneficiaries thereof, because Mrs. Burt bought for them, and as their tutrix. It was needless, in the original opinion, to state that they could not set up the nullity of the very title of which they claimed the benefit, and of which they were demanding the enforcement in their own favor.

The issues they seek to raise in this application were not raised by the pleadings. Their effort is now directed to show that their claim is mainly based on the rights derived by inheritance from Luenza Nesom, when the record shows that, at the sale in question, the tutor of Luenza Nesom purchased for her, property to'the full extent of her interest; and it is not pretended that any part of the property so purchased for her was disposed of in the sale to King, and is involved in this suit. 1 On the contrary, it is stated in the brief of plaintiffs’ counsel, “ that the property sued for is part of the land adjudicated to plaintiffs’ mother and tutrix, and land their father owned before his marriage with her.”

The rights that Luenza Nesom may have acquired, by inheritance, from her mother, Mary Van Hook, or in the first community between her father and mother, is in no manner involved in this suit, the vital issue of which relates to the construction of the proves verbal of the succession sale, regarding which we see no reason to change our views. Wo say this much to relieve the Court from the charge of ruling anything in this case inconsistent with our previous decision, and particularly with the one cited in this application. The charge is unfounded.

Rehearing refused.


author: Fennee, J.

text:
    No. 1050.
    H. T. Smith vs. J. G. Huey and R. H. Jones, Sheriff.
    1. The tax for the satisfaction of judgments, under R. S. Sec. 3354, is not taxation by judicial authority. The tax is to be assessed by the parish officers named in the Statute, upon whom the legislature confers the power and imposes the duty to assess such tax, and the function confided to the courtis the purely judicial one of directing said officers to execute the legislative will. Affirming Plaquemines vs. Packard, 28 An. 199.
    2. In absence of special legislative provision, taxes are not subject to the prescription of three and five years.
    ApPEAL from the Justice of the Peace Court, Parish of Jackson.

      22. 22. 2Gdd, for Plaintiff and Appellee.

      J. 23. JETolsteacl, for Defendant and Appellant.
   The opinion of the Court was delivered by

Fennee, J.