author: Watkins, J.

text:
    No. 10,062.
    Moses Schwartz vs. W. S. Saiter.—The New Orleans, Spanish Fort and Lake Railroad Company, Third Opponent.
    A contractor’s privilege attaolies to constructions and works erected on soil that is dedicated to public use.
    A lessee is not responsible for losses that are occasioned by fire, without his fault or neglect.
    Although a purchaser who buys, without qualification, an unexpired lease, assumes the obligations of the lessee, yet he is relievable therefrom if be should be deprived by the lessor of the enjoyment of the lease.
    The contractor’s privilege attaches to constructions and works that have been erected on the leased premises under a contract with a lessee, in. the place of others that have been destroyed by fire during the term of the lease, without his fault or neglect.

      APPEAL from the Civil District Court for the Parish of Orleans. JRightor, J.

      Bernard Titohe and T. M. Gi',1 for Plaintiff and Appellee:
    1. The privilege of the lessor does not prevent the sale of the things subject to his privi* lego by an ordinary judgment creditor. 27 Ann. 482; 31 Ann. 870; 31 Ann. 865.
    2. The railroad company obtained judgment against Saiter, decreeing the property in question to be Saiter’s, subject to its lien; seized and advertised the same as his. They are bound by their judicial averments and actions, and forever estopped from contradicting the terms of their own judgment. 4 Ann. 416; 5 Ann. 18; 26 Ann, 186-7; 27 Ann. 315-16; 14 Ann. 140; 29 Ann. 171, 353; 30 Ann, 1147; 28 Ann. 60-1; 23 Ann. 764.
    3. No stipulution between the company and Saiter, to which Schwartz was not a party, can affect Schwartz’s right.
    4. That the insurance money which the company permitted Saiter to collect, and use pro tanto, was not sufficient to restore the property destroyed by fire, can vest no right in the company to claim the works constructed by Schwartz.
    5. (a) Questions not raised by the pleadings in the lower court cannot be considered here (C. P- 895), and judgment not prayed for cannot be granted.

      (b) Schwartz’s judgment against Saiter imports absolute verity and cannot be collaterally attacked. 38 Ann. 812; 36 Ann, 831, 533: 32 Ann. 896.
    (c) If considered, the judgment will be found valid.
    6. (a) Plaintiff waived his peiemptory exception and plea in bar by not requiring decisions thereon before going to tbe merits.

      (b) If not waived, plaintiff having restrained Schwartz from enjoying the lease, cannot profit by its own wrong.
    7. (a) Though Schwartz cannot sell the soil, he may sell the buildings and works put upon it by him, and
    (6) Is entitled to the first privilege upon the proceeds of the sale. 30 Ann. 361; B. G. C., 3249.
    8. The property in dispute is on a public street, or highway, of the oitv of New Orleans. 2 Ann. 770; 10 Per. 662; Dillon on Mun. Corp., XVTI.
    No presumption from mere lapse of time can be made to support a nuisance which is an encroachment on the public right.
    No private occupancy for whatever time, and whether adverse or by permission can vest a title inconsistent with that of the city or the public. Dillon Mun. Corp., Sec. 520, 521, and p. 503, note; 3 Pa. (Penrose and ‘Watts), 253; 1 B. I., 25D, and authorities cited, in Dillon Mun. Corp., Sec. 531, note.
    The railroad company itself does not assert that the property is on its premises, but on or adjacent to the Spanish Port grounds.
    The title deeds of plaintiff company make no proof whatever of its ownership of the dis puted ground.

      Robert Mott and Marry M. Mali for Third Opponent and Appellant.
   The opinion of the Court was delivered by

Watkins, J.

This is a third opposition, coupled with au injunction against the sale of certain personal property as that of the judgment debtor.

Schwartz obtained judgment against W. S. Saiter, individually, and as lessee of opponent’s property, known as the Spanish Eort, for an amount due on open account for material furnished and by him employed in the construction of certain building's at or adjacent thereto, which enclose the machinery for operating' the electric light; in building certain cisterns, and laying the foundations for the machinery, etc.; with recognition of his contractor’s and vendor’s lien thereon.

A detailed bill is made a part of the petition, and is referred to in the judgment for particulars of description.

This property was seized under execution — and also Saiter’s rights under his lease from opponent — and advertised for sale.

The railroad company makes opposition on the following grounds, substantially, viz:

That it had leased the Spanish Fort and railroad property to Saiter for a term of years, expiring on the 31st of December, 1885; and that, at the execution of the lease contract, there were on the premises an electric light boiler, dynamo, pipes, cisterns and other appurtenances, and also a building in which this electric light machinery was contained. That there are now upon the premises similar, if not the same, items of property. That it has a judgment against Saiter for a largo balance due on rent, and a lien and privilege on said plant, which primes that of Schwartz. ‘

Subsequently opponent amended its opposition and, in the alternative, asserted ownership of the property and averred Schwartz to be its vendor and warrantor, and that on that account he could not seize it as Saiter’s.

It averred that the said lessee had’ contracted to insure the premises and property leased for its benefit, and restore same in good condition at the expiration of the lease; that the building containing the dynamo and other machinery was destroyed by fire, and the dynamo and machinery injured thereby, and Saiter replaced the building and repaired the machinery; and for the repairs, replacement and materials furnished, the seizing creditor claimed a first lien and privilege, and obtained a judgment therefor when lie was not entitled to it. That, at the time he furnished materials and did the work, he knew that it was opponent’s property and that Saiter was its lessee and gave it no notice, and did not procure its assent thereto ; that his claim is not valid on that account; and said services and materials furnished- do not affect the property with a privilege.

It avers that, notwithstanding the electric light machinery, building, etc., are not covered by the judgment, nor included in the sheriff’s inventory of property seized, they were included in the seizure and advertisement of sale.

The opponent’s injunction forbade the sale of all the property that was seized and advertised for sale, except Saiter’s nnexpired lease, and it was adjudicated to Schwartz for $ 125.

At a subsequent stage of the proceedings opponent filed, as a peremptory exception, founded on the law, and as a plea in bar of Schwartz’s right to recover on his judgment at all, the following, viz:

That there remains unpaid, on its judgment against Saiter for rent, a balance of $8,000, in addition to repairs, taxes, licenses and insurance premiums due, and Schwartz became bound for the payment thereof, by virtue of his purchase of. Saiter’s unexpired lease, one of the obligations of which was the return of the property in like good condition as when received — hence his judgment became extinguished by confusion, he having taken the lessee’s place in the contract, which imposed the duty on the latter of replacing the property in the condition it was when entered into.

Schwartz, in his answer, denies that the property replaced in the stead of that which was destroyed by fire is situated within the Emits of what is known as Spanish Fort, and the contention of his counsel is that it was erected in a public street, or, in what was denominated as a public street of the city, and, as such, dedicated to public use; and therefore opponent is without.right, title or lien in the premises.

Schwartz admits his purchase of Saiter’s unexpired lease at sheriff’s sale, but avers that he was prevented by opponent’s injunction from obtaining possession of the leased premises thereunder during its continuance, and from, in any manner, using or enjoying the same, and claims his exoneration from liability for the obligations of the lessee— whatever they may be — on that account.

I.

It must be borne in mind that the seizure was of personal property exclusively, and of Saiter’s unexpired lease, which terminated on December 31st, 1885; and that our jurisdiction is restricted, in this character of action, to the property seized and the determination of the rights of the contestants thereto or the proceeds thereof. For this reason it is not our province to decide whether the soil on which the building and electric light plant are situated is a locus publicus or not. That question is not, however, a serious one, as our predecessors held that because the soil, upon which a building is erected, cannot be sold to pay the cost of its erection, it by no means follows that the building itself may not be. The 3249th article of the Civil Code gives the lien ‘ upon the building and upon the lot of ground,’ and then proceeds to provide for the case where the lot of ground belongs to another than the party having the work done, and when, therefore, it is not alienable in satisfaction of the debt. We think the spirit of this article requires us to recognize the lien on the building.” 30 Ann. 361, McKnight vs. Parish of Grant.

The claim made in that case aud recognized was for materials furnished a.nd work performed in the construction of a jail that plaintiff had built on a square of ground that had been dedicated to public use.

In that instance the contractor dealt with the police, jury, a public corporation, while in this he dealt with the lessee of a private corporation. In the former the building was erected on a public square, while in the latter it is claimed to have been built in a public street.

There is a complete parallel between the two cases. But, if there is not, it is quite evident that both contestants occupy the same attitude with reference to the enforcement of their respective liens on the property; and that the seizing creditor holds such relation to opponent’s title as to preclude his questioning his ownership of the property leased to Saiter — Schwartz having been one of the directors and principal stockholders of the company that conveyed it to the opponent, and acted as its agent in negotiating and consummating the sale. Under this state of facts it would violate equity to permit Schwartz to take advantage of any defect in opponent’s title, or avail himself of any possible deficit in the quantity of property sold.

II.

With regard to opponent’s contention that it was the duty of Saiter, under the contract of lease, to replace, at his own expense, the building and machinery that were destroyed or injured by fire; and that he> as lessee, was without right or power to make a contract with Schwartz for their construction, and bind it therefor, it would seem to be sufficient answer to refer to the following clause in the contract, viz :

“And it is expressly understood and agreed that the said party of the second part shall be held liable for any damage or loss of any property of whatsoever description, excepting only{ that destroyed) by fire, the acts of the elements, vis mayor, and reasonable wear and tear.” This provision of the contract is in exact conformity with the law, which declares that “ the lessee is only liable for the injuries and losses sustained through his own fault.” R. C. C. 2721.

“ He can only be liable for the destruction occasioned by fire, when it is proved that the same happened either by his own fault or neglect, or by that of his family.” R. C. C. 2723.

There is no averment in the petitions of opposition that the property of the company was injured or destroyed by fire through Saiter’» fault or neglect; and if, as alleged, the insurance was paid him, the inference is that the loss was not occasioned by his fault or neglect.

There is no force in the contention that the railroad company should be relieved from responsibility, because the lessee gave it no notice of the loss by fire, and of the necessity of replacing the building and machinery, because of its judicial averments of the loss and injury by fire, without any averment that same were occasioned through the lessee’s fault or neglect; and because it makes claim to the property put in the place of that which was lost and injured by fire.

It is a matter of no special importance whether or not Saiter collected and used the insurance money and failed to employ it in the replacement and repair of the lost and damaged property, as the effect of the stipulation of the contract on that subject, must necessarily be confined to the parties and cannot affect Schwartz. The company could have protected its lease by having required the lessee to place the insurance policy, as a pledge, in its possession ; and, having failed in this, it must suffer the loss sustained thereby.

III.

The next contention that we shall consider is that raised on the exception and plea in bar.

It is undeniable that the sale of the unexpired term of a lease includes the obligations as well as the rights of the lessee; and that a purchaser, who buys without qualification, obliges himself to discharge his obligations. 37 Ann. 587; 11 Ann. 433; 14 Ann. 213; 17 Ann. 1741 39 Ann. 743, Walker, Syndic, vs. McVean.

But Schwartz alleges that, on the 11th of August, 1885—the day subsequent to the one on which the unexpired term of Saitex’s lease was adjudicated to him — the opponent enjoined him from taking possession of said property; that its injunction remained in force until it was perpetuated in January, 1886; that in the meanwhile, the full term of the lease had expired; and that, by the immediate operation and effect of said injunction, he was deprived of the enjoyment of the lease,’ and must, of necessity, be exonerated from the lessee’s obligations.

This assertion is fully borne out by the record. The opponent’s injunction precludes its assertion against the purchaser of the implied obligations of the lessee. •

IV.

The contention of.opponent to the effect that a contractor, who furnishes materials and constructs a building upon leased premises, in pursuance of a contract with a tenant, has no lien or privilege on the property under lease, is supported by the authorities cited. 18 La. 70, Homan vs. Laurens; 2 R. 66, Sewell vs. Daplessis.

But the 3249th article of the Revised Civil Code contains a provision not found in the corresponding article of the Code of 1825. It is in these words, viz:

The above named parties, (i. e. architects, contractors, etc.,) shall have a lien and privilege upon the building, improvement or other work erected, etc., * * * * * * and if such building, improvement or other work is caused to be erected by a lessee of the lot of ground,, in that case the privilege shall exist only against the lease and shall not affect the owner.”

We are not aware of any decision of this Court that has ever given an interpretation of this article; but it- is reasonable to infer, from the provisions quoted, that the lease contemplated is one of property that is unimproved; that the owner thereof shall not be affected by any construction subsequently erected thereon by the lessee, and which was not originally part of the “property under lease;” and that the contractor who erected it has a privilege thereon as an integral part of the “lease.”

Antecedent to the revision of the Code in 1870, the contractor had no such privilege. It is not awarded against the lessee, but against the lease. The quoted paragraph declares that it shall not affect the owner.

The employment of these terms clearly indicates its purpose and object to be that the construction forms a part of the lease, and that the privilege of the contractor attaches to it. In this manner it could be made effective. But should it be held that such a construction or work became the property of the lessor of the lot of ground*, free of the contractor’s lien, it would be deprived of all force and efficacy, as nothing applicable to it would remain.

There is a provision in the contract of lease to the effect that, at the termination of the lease, all repairs and improvements made by the lessee shall become the property of the lessor; but that “ the buildings and constructions put upon the property, shall belong to the lessee,’.’ etc.

It is, therefore, obvious that, if the constiuctions under consideration had been intended or designed to replace those lost and destroyed by fire, the lessee would have a seizable interest in them; hence we must conclude that, inasmuch as the loss by fire was not occasioned by Saiter’s fault or neglect, and as he was not bound to make their replacement, Schwartz’s seizure was justified, and must be maintained to that extent.

Schwartz’s judgment covers all the property that is mentioned in the itemized account as having been either constructed or repaired; but we are of the opinion that it should be restricted to the constructions that were erected in replacement of those which were destroyed by fire.

V.

In respect to opponent’s contention that his lessor’s lien primes that of the contractor, it is only necessary to cite, in answer, the 3267th article of the Code, which declares that the contractor shall be paid “in preference to other priviledged debts of the debtor, even funeral charges,” etc. R. C. C. 3267.

The contractor’s privilege is, therefore, first in rank, quoad the new constructions and works, and should be paid from the proceeds of their sale in preference to opponent’s lessor’s lien; but his lien does not attach to the property of the lessor which he repaired or improved under a contract with his tenant.

It is therefore ordered, adjudged and decreed that the judgment appealed from be amended in so far as to reject and disallow the privilege of the seizing creditor for material furnished and work performed, in the repair of the property under lease,’’ and to maintain and perpetuate the opponent’s injunction to that extent.

And it is further ordered, adjudged and decreed that in so far as said judgment recognizes and enforces the contractor’s lien of the seizing creditor on the new buildings and other works erected in the re- - placement of those which had been destroyed by fire, and which contain the electric light machinery and apparatus, that the opponent’s injunction be dissolved and it be affirmed.

The cost of appeal is taxed against the seizing creditor and appellee.

On Application ppr Rehearing.

Both appellant and appellee desire a rehearing on some points of minor importance.

Without stating theni in detail we will simply say :

1st. That the effect of the judgment of, Schwartz against Saiter, both as to the debt and privilege, is confined to those litigants and does not have any bearing or influence on the demands of third opponent.

This is elementary.

2d. A simple perusal of our opinion will disclose the fact that the seizing creditor’s, mechanic’s and contractor’s lien, for materials furnished and work performed in making repairs and constructions, was the principal question that was discussed therein.

It is difficult to understand how a vendor’s lien could he seriously asserted against the material contained in a building or the parts thereof, and which have become thus indistinguishable.

3d. It has been settled by numerous decisions — and is not an open question — that an appeallant, who succeeds in obtaining an amendment favorable to himself of the judgment appealed from, is entitled to have the cost of appeal taxed against the appellee.

This is true of the instant case.

4th. But the appellant claims that, as it was the plaintiff in third opposition in the court below, and a general judgment went against it therein, from which it has obtained relief in part in this Court, and thus procured the perpetuation of its injunction against the seizure pro lanio, it is entitled to have the costs of the court a qua taxed against the appellee.

In this view we think its counsel are correct.

It is the rule of law that if the plaintiff recover any portion of his demand, he is entitled to cost. Had the judge a quo rendered the judgment we have pronounced, it would have carried cost in plaintiff’s favor; and as our decree sustains its demands in part and ah initio, it must have a like effect.

5th. The further contention of appellant’s counsel is that one decree should be supplemented so as to limit the portion of Schwartz’s judgment that is to be enforced against the property it subjects to his contractor's lien.

This is a reasonable and proper request.

Having restricted his seizure and lien to the constructions established in the replacement of those which had been destroyed by fire, the amount of Schwartz’s demand therefor should be likewise restricted, so that he should receive from the proceeds of sale when made nothing in excess thereof, in case a larger sum should be realized.

But this amount can be easily ascertained from the judgment of the lower court, and Schwartz’s account, whieh forms a’part thereof; and hence it is unnecessary that a rehearing should be granted for that purpose.

It is therefore ordered, adjudged and decreed that the following items of indebtedness of W. S. Saiter to and in favor of Moses Schwartz, seizing creditor, shall be collected from the proceeds of the sale made in pursuance of our judgment and decree and no others, viz;

Building' enclosing- machinery and one cistern........$650 00

Roofing and tinner’s work........................... 75 00

Building- foundation...................."............ 60 00

Labor in erecting and constructing same............. 125 00

cr. $910 00

By amount of value of old dynamo.................. 125 00

Amount balance.............■.................$785 00

It is further ordered, adjudged and decreed that the cost of the lower court be taxed against the seizing creditor and appellee; and that, as thus limited, our former decree remain undisturbed. Reheariug refused.


source: Caselaw Access Project

author: Bermudez, C. J.

license: Public Domain

text:
    No. 10,138.
    Charles F. Johnson & Co., Mrs. A. V. Witkowski, Subrogee, vs. Boice & Frellsen, and J. W. Frellsen, vs. Mrs. A. V. Witkowski and Husband, and Sheriff.
    (Consolidated.)
    A husband cannot testify in a case i*i which his wife has an interest involved.
    The transferrer of a judgment who sells all his rights to it and to all suits growing out of it, warrants the existence of the debt at the time.
    If the judgment has been previously extinguished and was not in existence as a claim at the date of the sale, the vendor is bound to restore the price to the purchaser.
    The transfer of a judgment does not bind the judgment debtor, unless it has been notified to him or it is clearly shown that he had knowledge of it.
    The mere filing or plaoingthe transfer among the papers of the suit and recording of it in the books of the parish recorder, are not equivalent to the notice required by law, which must bring home to the debtor knowledge of the fact.
    A debtor who settles with his creditor previous to notification or knowledge of the transfer is discharged from the debt.
    APPEAL from the Eighth District Court, Parish of East Carroll. Deloney, J.

      W. G. Wyly for the Appellant.

      J. M. Kennedy and O. J. & I. S. Boatmen for the Appellee.
   The opinion of the Court was delivered by

Bermudez, C. J.

The object of the first suit is to revive a judgment, and that of the second is to suspend the execution of that judgment meanwhile.

The ground of resistance by the defendant is that the j udgment has been extinguished.

From a judgment refusing to revive and perpetuating the injunction, this appeal is taken.

It appears that the judgment sought to be revived was rendered on notes in favor of C. F. Johnson & Co. It is claimed that subsequently it was transferred by that firm in liquidation by one of its members to Mrs. Witkowski, who, it is alleged, was the owner of the notes.

Since the institution of the present proceedings and joining of issue Mrs. Witkowski has transferred all her rights in and to the judgment to one Herman Wilczinski, who by order of court was substituted to her and permitted to proceed in the prosecution and defense of the two suits.

Frellsen, one of the defendants in the original suit, and who is the plaintiff in injunction proceeding, contends that the alleged transfer of the judgment by Johnson & Co. to Mrs. Witkowski is null for various reasons, and that even were it valid, it is barren of effect because it was not notified to him. He therefore concludes that the settlement which, in ignorance of that transfer, he avers to have since made with Johnson & Co., has discharged him from the debt.

On the trial, the ostensible plaintiff by substitution, Witczinski, offered as a witness Simon Witkowski. Objection was made on the ground of his being the husband of Mrs. Witkowski, the first transferree, who had an interest at stake in the suit.

The objection was answered by saying that, as Mrs. Witkowski had ceased to have any interest involved, in consequence of her transfer of her rights in the suit, the opposition was groundless.

The district judge sustained the objection and refused to allow the witness to be heard.

There was no error in the ruling.

Mrs. Witkowski appears to have sold by authentic act to Hermann Wilczinski all her rights in and to the judgment and the two cases fertile reviving of the same and for an injunction, above mentioned, and all other suits growing therefrom, etc.

Upon production of this act an order was obtained, as already said, to substitute Wilczinski to Mrs. Witkowski, after issue had been j oined in the two cases.

- The sale of these rights by Mrs. Witkowski, though the same be unexpressed in the act, implied a warranty of the existence of the debt, evidenced by the judgment, although it did not include, as a matter of coarse, that of the solvency of the debtor, for this has to be specially stipulated. R. C. C. 2646, 2647.

It therefore follows that, as she was a warrantor of the existence of the judgment debt sold to Wiiczinski, she had an interest at issue, which existence was denied in the suit to revive. It is manifest that if the ground urged by Frellsen is well taken, viz: that the judgment debt had been extinguished, Mrs. Witkowski, as warrantor of that claim, would be liable for reimbursement to her evicted vendee. R. C. C. 2500 and sec. 9 ; 2 Ann. 880; 7 Ann. 268; 13 Ann. 336.

This would be the case even if she had known or strongly suspected the insolvency of the debtor at the time of the assignment; for then the law provides that the contract would be rescinded and the assignee compelled to restore the price. R. C. C. 2649.

As Mrs. Witkowski had an interest involved in the litigation consisting in the recognition and maintenance of the debt, the existence of which she had warranted, it is clear that her husband could not be permitted to testify, either for or against her. E. C. C. 2281.

The record contains another bill to testimony affecting the genuineness of Mrs. Witkowski’s signature to the transfer to her, but the view which we have taken respecting that instrument renders it useless to pass upon that bill.

The next question to be considered is, whether the judgment sought to be revived and the execution of which is enjoined, was or not extinguished previous to notice or knowledge of the transfer to her.

Frellsen strenuously charges the nullity of the transfer which was apparently made of the judgment by the original plaintiffs to Mrs. Witkowski, and urges in support several grounds, which it is needless to consider.

Admitting that the transfer.was truly and legally made, it does not follow that from that fact the settlement which Frellsen claims to have made with those plaintiffs, previous to knowledge, has not discharged him.

The transfer, in order to invalidate that settlement, ought to have been notified by the original plaintiff, or at least by the subrogee to the judgment debtor.

The law on the subject formally declares that if previous to the notice having been given of the transfer, either by the transferrer or the transferree, the debtor should have made payment to the former, he will be discharged from the debt; R. C. C. 2644.

In answer to this defense Mrs. Witkowski retorts that Frellsen had notice of her title to the judgment at the time of the alleged settlement by him with Johnson & Co. (March 9, 1878), because the act of subrogation to the judgment was and had been on file and in the papers of the suit and also been duly recorded. She alleges no other notice.

Conceding this to be true, it does not follow that the filing and recording are in law equivalent to the notice required by the Code, which must consist in something more.

The law does not require any particular form of notice, but it demands that notice be given. The object of the notice is as well for the protection of the transferree as for that of the debtor, in order to prevent an improper payment, thus securing the rights of the transferree to payment and those of the debtor against loss and to a legal discharge, in case of payment or settlement. It matters not iu what manner knowledge of the transfer is brought home to the debtor, provided it be clearly shown that he knew that his former creditor was diverted of his right and that such knowledge was properly conveyed. The notice or knowledge was indispensable. 6 N. S. 286, 297; 17 L. 471; 18 L. 414; 8 R. 259; 9 R. 207; 12 R. 409; 4 Ann. 356; 13 Ann. 384; 14 Ann. 384; 26 Ann. 302.

It has consequently been held that the record of an assignment in the office of a parish judge is not notice sufficient to bind third persons (5 N. S. 181); and that knowledge in the judgment debtors’ attorney of record of the assignment of the judgment is not sufficient notice. 9 Ann. 225.

The transfer in question to Mrs. Witkowski purports to have been made on December 27, 1876. It is not claimed or shown that it was in any manner notified to Frellsen, or that he had any knowledge of it previous to the institution of the suit to revive. The consequence of the omission is therefore, under the verj terms of the law, that if Frellsen has made any settlement with Johnson & Co., who had obtained against his firm, his partner and himself in solido 1he judgment in question, before he had any knowledge of the transfer to Mrs. Witkowski, he has satisfied his debt, and that neither Mrs. Witkowski nor her transferree can obtain a revival of the judgment.

Now the evidence is clear that on March 9, 1878, Frellsen made a settlement with Chas. F. Johnson & Co., by which, in consideration of the amount acknowledged to have been paid, he was discharged by them of all claims against him, whether included or not in the account on which the receipt and discharge was signed by P. Prudhomme,- the partner who represented with authority the partnership in liquidation in the transaction.

The objection that Frellsen cannot claim' a discharge under Article 2644, R. C. C., because such is obtained only on payment and not at all on compromise, has no force.

A creditor, if he choose, can extinguish part of his claim by remission and accept payment of the debt, as reduced, in full of what it previous was. A part payment discharges as well as a payment in full by consent of parties. R. C. C. 2130.

These views relieve us from passing on the title of Mrs. Witkowski to the notes on which the judgment was obtained, and on the question of her obligation to account for the property originally seized when the suit was brought, aud which was released on a bond signed by her as surety.

We therefore conclude that, as the judgment sought to be revived and executed was satisfied and extinguished previous to notice and knowledge of the transfer to Mrs. Witkowski, the finding of the lower court must be maintained.

Judgment affirmed.


author: Fenner, J.

text:
    No. 10,145.
    Peoples’ Brewing Company vs. John Bœbinger et al.
    Under the rules of the Civil District Court an injunction proceeding against the execution of a judgment is filed and treated as part of tbo suit in which the judgment enjoined was rendered. In such a case, after judgment rendered in the injunction proceeding, where neither appeal requires any "bond except for costs, appeals from both judgments may be well taken under one order and one bond fixed by the court. 30 Ann. 801; 36 Ann. 963.
    Inaccuracies in an order or bond of appeal in describing the judgments appealed from will not invalidate the appeal if the description contains statements suflicient to identify the judgments referred to.
    Defendants were sued to deliver a list containing subscriptions of various parties to 800 shares of the stock of plaintiff corporation of the face value of $50 per share, and in default of such*delivery, for judgment condemning them to pay the value of said list.
    Held, that the utmost consequence which the law could attach to defendants’ default in non-delivery of thelist could not exceed a personal obligation to discharge the liabilities of the subscribers in accordance with the terms of their subscriptions; aud that a judgment condemning them to pay $40,000 cash on such default, where the subscriptions were on terms of credit, and without recognizing orjj.reserving their right to receive the stock subscribed for, is manifestly insupportable.
    The foregoing robs the injunction proceedings of all significance.
    APPEAL from the Civil District Court for the Parish of Orleans, Tissot, J.

      Branch K. Miller for Plaintiff and Appellee.
    <71 Q. A. Fellows for Defendants and Appellants,
   Motion to Dismiss.

The opinion of the Court was delivered by

Fenner, J.

The plaintiff, alleging itself to be a corporation, obtained and confirmed a judgment by default against the defendants condemning them to deliver up certain subscription lists within 24 hours after the judgment should become final, and in default of such delivery within said time, to pay to plaintiff $40,000, with right to execution for said sum at the expiration of the delay without delivery of the lists. The judgment was signed on December 16, 1887, and on ■January 7, 1888, fi. fa. was issued under which the sheriff was proceeding when arrested by an injunction issued on the petition of defendants.

The petition for injunction denied the corporate existence of plaintiff, and made its alleged president, E. Ehrensing, a party individually, together with the sheriff. In this latter proceeding judgment was rendered dismissing the action and dissolving the injunction.

Under the rules of the Civil District Court, injunction proceedings to enjoin the execution of judgments are “treated as parts of the original suits out of which they arise,” and are “ docketed and numbered as parts of such suits.”

1-Ience, desiring to appeal from both the original judgment and that in the injunction proceeding, defendants applied for and obtained a single order of appeal from both, directing the furnishing of a single bond fixed at $250, which was executed, and under these proceedings the appeal is brought up.

Various grounds are assigned for dismissing the appeal, which, however, may be summarized as follows :

1. That the two appeals could not be embraced in one order of appeal or supported by a single bond.

We think the appeals are fully protected by the equitable rule announced in Succession of Clark, 30 Ann. 801, and affirmed by the present bench in Succession of G-eddes, 36 Ann. 963. Under the rules of the Court, both judgments were rendered in the same suit; the two judgments were so closely related to each other that the ends of justice will be advanced by considering them together. The first judgment is appealed from only devolutively, and the second did not condemn the appellants to pay any money or deliver anything. Therefore, a bond for costs was all required in either case, and as said in Clark’s case, ‘‘ the costs are as fully secured by one bond with sufficient security in a sufficient amount as by any number of bonds.”

So far as the distinctness of parties is concerned, it is more apparent than real.

The sheriff is a nominal party without interest and need not be considered.

It is evident that Ehrensing is enjoined as the party representing the original plaintiff in executing the judgment, and the only reason why he is not sued in the capacity of president of the Brewing Company is because defendants expressly deny the corporate existence of said company.

The suggested difficulty of adjusting the costs under one bond for two separate judgments was considered and disposed of in Clark’s case. The only effect of separating the appeals would be to increase the costs.

2. It is claimed that both the order and bond of appeal are defective for want of sufficient description of or reference to the judgments appealed from. We have examined the order and bond and find that both give correctly either the date of rendition or the date of signature of each judgment in such manner as fully to identify the. judgments referred to. Pasley vs. McConnell, recently decided.

The motion to dismiss is, therefore, denied.

On this Merits.

As appears from our opinion on the motion to dismiss this appeal is taken from two judgments, which we shall consider separately.

I.

The substance of the petition,'on which the first judgment was rendered, is that the defendants Bcebinger and Auer had obtained subscriptions to the stock of plaintiff company to the amount of 800 shares of the par value of fifty dollars each, and that the list of said subscriptions had been delivered into the possession of plaintiff’s secretary ; that subsequently said Bcebinger and Auer had obtained possession of said list, through certain false pretenses, and had refused to return the same; that said list was of the value to petitioner of $40,-000, and judgment was asked condemning said defendants to deliver' said list within 24 hours from finality of judgment herein, in default of which that they be condemned in soKdo to pay to petitioner the sum of $40,000. Judgment by default was taken and confirmed according to the prayer of the petition. A new trial was applied for and refused, and after the lapse of 24 hours from the signature of the judgment execution was issued against defendants for $40,000.

We need not go iurther than to say that the alternative part of the judgment cannot be sustained. The allegations of the petition and the evidence on which the default was confirmed show that the list contained subscriptions by unknown persons to stock of the company to the amount of, say, $40,000, payable only as the price of 800 shares of the stock of said company, to be delivered to the subscribers on such payment, and payable only partly in cash and partly at certain deferred periods. Manifestly the utmost consequence which the law could attach to the defendants’ abstraction and non-delivery of the list could not exceed a personal obligation to discharge the liabilities of the subscribers thereon in accordance with the terms of their subscriptions and the list could not have a greater value to petitioner or to anybody else than would result from such discharge. A judgment condemning them for such a default to pay $40,000 cash, and without even a reservation or recognition of their right to demand and receive a corresponding amount of stock, is certainly unsupported by any consideration of law or equity.

We decide and even express an opinion upon no other question in the case except that the judgment as rendered cannot be maintained, not even suggesting whether any other, or what other, judgment might have been rendered. We think the ends of justice require that the judgment should be reversed and the case remanded for further proceedings according to law upon the default taken and without prejudice to the rights of defendants to set the same aside on filing answer.

II.

The foregoing decision robs the injunction proceeding from the judgment in which appeal is also taken, of all significance. We need not consider or disturb it.

It is therefore ordered, adjudged and decreed that the judgment confirming the default rendered on December 2, and signed on December 16, 1887, be and the same is hereby reversed and set aside, and that the case be remanded to the court below for further proceedings on the default taken without prejudice to the rights of defendants to set the same aside on filing answer.

It is further ordered and decreed that the judgment in the injunction proceeding be affirmed — costs of appeal to be divided between appellants and appellee.


author: Todd, J.

text:
    No. 10,124.
    A. V. Davis vs. T. K. Green, Tax Collector, et als.
    Art. 214 of the Constitution of the State of Louisiana is self-acting, in so far as it confers directly upon the levee commissioner, authority to levy a tax of five mills for levee purposes, in their respective districts.
    The only legislative action contemplated under Art. 214 of the Constitution is the division of the State into levee districts and to provide for the appointment or election of levee commissioners.
    APPEAL from the Ninth District Court, Parish of Tensas. Young, J.

      J. If. Luce for Plaintiff and Appellant.

      Steele, Garrett & Dagg for Defendants and Appellees.
   The opinion of the Court was delivered by

Todd, J.

The issue in this case is the legality and constitutionality of the five mill district levee tax, for the year 1887, amounting to two hundred and ninety-four dollars and seventy-five cents, levied for said year, on the property of plaintiff, situated in the parish of Concordia. The collection and enforcement of said five mill tax by the tax collector of Concorda were enjoined as being illegal and unconstitutional. ’ •

Two alleged levees of said five mill tax, for the year 1887, were made : one by the General Assembly under Section 8 of Act No. 44 of 1886, and one by the board of levee commissioners, for the Fifth Louisiana Levee District, in August, 1887.

The grounds of objection to tbe levy made by tbe Legislature are that the Legislature, under Art. 213 and 214, could not levy such tax itself, and that such a levy by the Legislature violated Art. 203 of the Constitution.

The objections to tbe levy made by tbe levee board are that there was no legislative act and grant authorizing and empowering the levee commissioners to assess such tax, and that Act 44 of 1886 not only conferred no such authority, not only repealed all that part of Act 33 of 1879, which did confer such authority, but in letter and effect restrained and prohibited such a levy by the levee commissioners. The sheriff and levee board answered, putting plaintiff’s petition at issue, prayed that demand of plaintiff he rejected and for dissolution of the injunction. The district judge decided the tax levied by tbe levee commissioners to be valid and constitutional and dissolved plaintiff’s injunction. Plaintiff prosecutes this appeal.

Waiving the consideration of the charge of the illegality of the tax levied by tbe General Assembly and the uneonstitutionality of tlie act referred to, under or by which the tax was levied, if the ground upon which the attack is made against the tax levied by the levee commissioners should prove untenable, there would be no reason to disturb the conclusion reached by the judge of the first instance.

Itis sufficient if the tax imposed by either authority be found legal and constitutional. Article 214 of the Constitution reads :

The General Assembly may divide the State into levee districts and provide for the appointment or election of levee commissioners in said districts, who shall in the method and manner to be provided by law have supervision of the erection, repair and maintenance of levees in said districts, to that effect it may levy a tax not to exceed five mills on the taxable property situated within the alluvial portions of said districts subject to overflow.”

It has been judicially determined that the power to levy the tax maintained in this article is strictly conferred on the levee commissioners. Railroad and Steamship Company vs. Cage, sheriff, 34 Ann. 506.

The sole question for determination is, whether a legislative grant or authority is necessary to the exercise of that power by the levee commissioners.

It seems to us that this question was virtually solved by the same decision referred to. This Court, in that case, where the sole issue was the constitutionality or legality of a levee tax, imposed by the levee commissioners, after deciding that such a tax could not constitutionally be levied by the General Assembly, proceeds to say (quoting) : “ But such a tax could be levied by the levee commissioners and would be equal and uniform throughout their territorial limits.”

The same decision, after quoting from Article 214 the words “ to that effect it may levy a tax not to exceed five mills on taxable property within the alluvial portions of said districts subject to overflow,” again proceeds:

“ Now to which of the two powers enumerated in the first portion of the article do the words “ to that effect ” apply 9 Evidently not to the power of the Legislature to divide the State into levee districts, but on the contrary, they must refer to the power of the levee commissioners to build, repair and maintain levees. Hence, we conclude that while the pronoun it is inartistically used in the language granting the taxing power the convention undoubtedly intended to confer the taxing power under Art. 214 directly to the levee commissioners.”

It is true that in the case of the tax involved in that decision there was a legislative act (83 of 1879) authorizing the levy by the commissioners, and the act 44 of 1886, referred to in the pleadings, contains no such provisions, but the Court in the same decision in treating of the act of 1879, and article 214 declared substantially that the article was framed with special reference to the act and with the undoubted intention of giving it constitutional effect and vitality and secure its efficiency to the people to be affected thereby.

In the face of such expressions and judicial construction, we attach no significance to the repeal of the act of 1879, and the silence of the act of 1886 touching the authority of the commissioners to levy the tax.

The constitutional grant was all-sufficient and self-operative, and no'expression of the legislative will or permission was needed.

If the power to impose this tax was conferred by the Constitution on the levee commissioners it was their right and doubtless their duty to exercise it, and there is therefore no force in the contention that the Legislature in levying the tax directly by statutary enactment virtually prohibited the exercise of such authority by the commissioners.

One of the subjects of paramount importance before the convention that framed the Constitution was that of levees, and the necessity of protection from overflow of the alluvial lands of the State. The efficacy of any system of protection that could be devised would essentially depend upon a prompt and speedy raising of adequate means for the construction and maintenance of the required works. Doubtless it was concluded that it was safer and wiser to confer the power to provide the funds in small bodies from the endangered districts that could seasanably realize the exigency and by prompt action and speedy levies meet it, than to jeopardize the entire system of levee protection by depending exclusively on the precarious and dilatory action of the Legislature, which met once only in two years, for the required means.

For these reasons the judgment of the lower court is affirmed at the costs of the plaintiff in both courts. ’


text:
    No. 10,133.
    Mrs. Sarah J. Ball et al. vs. Mrs. Julia M. Ball and Charles W. Ball, Executors.
    The will contained the following clauses:
    The money collected from my life insurance “will more than pay every debt I owe on earth, andas T desire, leave my property to my heirs, to be equally divided among them according to the laws of the State of Louisiana,
    “ I leave to my brother, Dr.-J. W. Ball, $2500, and to my sister, M. J". McK., $1500, which my executors will pay out of the first moneys realized from my estate.”
    Held, that the insufficiency of the insurance money to pay the debts and tbe necessity of paying the legacies out of the> property, furnishes no ground for rejecting the legacies. The expectation and desire expressed in the first clause are entirely subordinated to the command expressed in favor of the special legatees, to whom the testator seems to have desired to give a preference even over creditors hy directing their payment out of the first moneys realized.
    Even if the two clauses were contradictory, the last written would prevail under Art. 1728 Iiev. Civil Code.
    APPEALfrom'the Fifteenth District Court, Parish of West Feliciana. Yoist, J.

      W. W. Yealce for Plaintiffs and Appellees.

      Wielcliffe & Fisher for Defendants and Appellants.
   The opinion of the Court was delivered by

Fenner, J.

William Ball died leaving a will, of which he appointed the defendants to be executors. They opened his succession, qualified as executors, and made a partial administration of the estate, of which they filed a provisional account which was homologated, but the administration has never been completed and no final account has been rendered.

The will contained the following special bequests: I leave to my dear brother, Dr. Immer W. Ball, twenty-five hundred, and to my dear sister, Mary J. McKnight, fifteen hundred dollars, -which my executors will pay out of the first moneys realized from my estate.”

Dr. Immer W. Ball died subsequently to the testator, and the plaintiffs are admitted to be his heirs.

They demand in this action, on appropriate averments, that defendants be ordered to file a full account of their administration within a delay fixed, and, in default thereof, they pray for a judgment against said executors in tbe amount of the special legacy aforesaid due to their ancestor.

The sole defense is, in substance, that under a proper construction of the will, the legacy aforesaid is not due and payable.

This contention is based on the clauses of the will. The testator left several policies of life insurance in the hands of creditors as security for debts due them, whicli he mentions, and then proceeds as follows : “ I have two policies of $5000 each in the Massachusetts Mutual Life Insurance Company, made payable to my executors. This, together with the four others, making in all $50,000, were made for the benefit of my creditors, in order that my .real estate and personal property should go to my family clear of incumbrances or debt of any kind, and if these policies are all paid, of which I have no doubt, they will more than pay every debt I owe on earth, and, as I desire, leave my property to my heirs, to be equally divided among them according to the laws of the State of Louisiana.”

This is immediately followed by the special bequests heretofore quoted.

Now defendants show that all the assets of the succession have been consumed in the payment of debts except the real estate and personal property attached thereto, and they claim that the heirs are entitled to hold this property free from contribution to the special legacies aforesaid.

It is doubtless true that the testator expected that his insurance money would pay all his debts and perhaps leave a surplus to be applied to the special legacies; but his error in this respect cannot modify the positive disposition in favor of the legatees, to whom, indeed, he seems to have desired to give a preference even over creditors by directing his executors to pay them “out of the first moneys realized from my estate.”

Even if there were inconsistency between the two clauses quoted, Art. 1723 of the Civil Code would give effect to the one containing the special legacies as being the last written. But there is no inconsistency ; the desire and expectation expressed as to result of the liquidation of his estate, are entirely subordinate to the positive command to pay the special legacies. We are not at liberty to conjecture what would have been his wish on this subject if he had foreseen the actual result of this liquidation. We must take his will as he has written it. Gum in verbis nulla ambigiétas esi, non debet admitti vohmtatis qucestio.

The legatee, Dr. Immer W. Ball, never made any renunciation, express or implied, of his right under the will, and his mere failure to demand payment during his life-time cannot operate to deprive his heirs of their legal rights.

Judgment affirmed.


author: Poca, J. Todd, J.

text:
    No. 10,116.
    Charles A. Denis vs. A. C. Gayle et al.
    The action of a creditor to have a judgment recognizing a homestead in favor of his judgment debtor, declared inoperative and void, for the reason that the conditions which were the motive of the judgment, have ceased to exist, must not be confounded with the action for the nullity of a judgment as provided in Section 3, chapter 5 of the Code of Practice.
    Such an action rests on the principle that if anything should happen to destroy the force of a judgment, it will cease to have effect either against the parties or their heirs.
    The debtor who claims a homestead under Act 52 of 1865 must combine in him at least three conditions : he must own the property, he must occupy it as a residence, and he must have a family dependent-upon him for support. A judgment declaring a property as his homestead on those conditions will cease to have effect as soon as the conditions, or any one ot them, cease to exist.
    On proper showing such a judgment will be declared inoperative and avoided.
    As soon as the judgment becomes inoperative, the judicial mortgages which had been properly inscribed against the owner of the property, recognized as his homestead, and which were dormant, become executory against the property even in the hands of a third possessor by virtue of a sale from the original owner.
    The owner of a property exempt from seizure as his homestead cannot sell such property free of the mortgages inscribed against it before the sale. He has the legal right to sell the property, but it passes to the purchaser burdened with the judicial mortgages duly inscribed against the vendor.
    APPEAL from the Fifteenth District Court, Parish of Pointe Coupee, Foist, J.

      Thos. II. Reives for Plaintiff and Appellee.

      TV. W. Leake for Defendants and Appellants:
    A judgment, affirmed on appeal, recognizing a homestead right under Sec. 1691 etseq. ft. S., constitutes res judicata. 35 Ann. 322,917; 37 Anu. 223.
    The district court cannot annul a judgment of the Supreme Court. 37 Ann. 341; 2 La. 9.
    To the action of nullity none can be parties except those who were parties to the judgment sought to be annulled. 15 Ann. 273.
    To annul a definitive judgment, plaintiff must allege that it has been obtained through fraud, or other ill-practices. C. !P. 607,
    The action to annul a judgment is preecribed by one year. 32 Anu. 409; 31 Ann. 467; 29 Ann. 106; 28 Ann. 578.
    A mortgage on property exempt under the homestead act cannot be enforced; and the owner of such property may sell the same, free from the mortgage he has imposed on it. 29 Ann. 330.
   The opinion of che Court was delivered by

Poca, J.

The main question presented for discussion in this ease is to determine whether the owner of an immovable which has been judicially recognized as his homestead under the act of 1865 (Eevised Statutes of 1870, Section 1691,) can sell such property free of judicial mortgages duly inscribed against him .in the parish wherein the property is situated.

Plaintiff, as the transferree of two judgments rendered against the defendant Gayle, seeks to enforce the judicial mortgage resulting therefrom against a tract of land and improvements thereon, now owned by the other defendant, J. L. Kingsbury, under a sale made to him in February, 1883, by Gayle, which property had been judicially declared to be exempt from seizure, as the latter’s homestead in the suit-entitled Ben Gerson & Son vs. A. C. Gayle, Wheeler and Pierson intervenors, reported in the 34th of Annuals, p. 337.

The relief which he prays for is a decree declaring that by reason, and as an effect, of the sale made by Gayle to Kingsbury, the judgment rendered in the suit above mentioned and reported in the 34th Annua], p. 337, had become inoperative and'of no effect, and should, therefore, be avoided, and declaring further that the judicial mortgage resulting from the judgments herein above recited, inscribed before the date of said sale, attaches to and effects said property as having been acquired by Kingsbury subject to said mortgage.

Defendants first pleaded the following exceptions:

1. Want of jurisdiction in the district court to annul a judgment rendered by the Supreme Court.

2. The misjoinder of Kingsbury as a party to this suit, because he was not a party in the judgment sought to be annulled.

3. That the demand for nullity is inconsistent with an action to enforce a judicial mortgage.

4. Want of proper parties, because Ben Gerson and Wheeler and Pierson were necessary parties.

5. No cause of action, because the petition contains no allegation of fraud, error or ill-practice in connection with the judgment sought to be annulled, the correctness of which is not even questioned.

6. The prescription of one year.

Their exceptions having been overruled, defendants filed a general denial, reserving the benefit of their exceptions, and they now appeal from a judgment in favor of plaintiff.

At a glance of the exceptions filed by defendants, it appears that they are predicated on a misapprehension of the true nature of plaintiff’s demand,. and that they could apply only to an action of nullity under the provisions of Section 3, Articls 604 et seq. of the Code of practice, for causes existing previous to or contemporaneous with the rendition of the judgment sought to be annulled.

But, as suggested by defendants themselves in their fifth exception, the present action involves no charge of fraud, error, ill-practice or other ground of nullity as characterizing the judgment to be herein discussed, at the time that it was rendered, or in any way connected with it at the date of its rendition. Plaintiff does not, in any manner, question the correctness of the judgment in its disposition of the issues then tendered to the Court for solution ; hence he does not put at issue the right of Gayle to his homestead as therein recognized under the conditions and circumstances then existing. His contention is simply that the reasons on which the judgment was founded, and from which it derived its vitality, having ceased to exist, the judgment itself having exhausted and completed its entire mission, has become extinct, without force or effect or life. The issues which he now tenders had no being or existence at the time that the judgment was rendered, hence they were no elements in the consideration of the cause, and therefore the judgment could not be res adjudícala as to his present cause of action, which has arisen since the rendition of the judgment, and is entirely disconnected with, or independent of, the state of the case then disposed of.

In the case of Lemunier vs. Mc.Cearley, 37 Ann. 133, which involved the contested custody of a child, aDd in which the defendant was met with a judgment entrusting her with such custody “temporarily or for the present,” as an argument that she was thereby stripped of that right at the date of the case then on trial, this Court said : “ The restriction in that judgment, whether right or wrong, could not and did not compel a like restriction in the judgment now before us under different conditions and state of facts, as we have shown, and whilst we may recognize it as res adjudicada as to the matters and issues there existing, it can have no legal effect upon those now shown in the instant case. For, as stated, we think there is no cause for any limitation or restrictions over the rights of the defendant touching the care and control of the child.”

The same principle came under the consideration of this Court in the case of Davidson vs. the City of New Orleans, 32 Ann. 1248, in which the following conclusions were expressed: “It is easy to conceive, * * * and it is plain, that cases may arise in which causes, occurring subsequently to the rendition of judgments, may render their execution illegal and inequitable and violative of rights not within the contemplation of the Court when the judgment was rendered, and not intended to be foreclosed thereby.” And in that opinion plaintiff’s right to sue for a decree declaring a judgment previously rendered against her inoperative was recognized.

On the merits in the same case, reported in 34 Ann. 170, the nature of the cause was held-to be “ a suit to have that judgment declared1 inoperative, because of what lias occurred since it was pronounced, and which could not have been pleaded before it was rendered.” And sustaining plaintiff’s contention the Court recognized the principle involved in her demand in the following language : If the parties have appealed from the judgment aDd it is confirmed by the sentence of a competent superior tribunal, they shall be bound forever by it thereafter; yet if anything should happen to destroy its force, it will cease to have effect, either against the parties or their heirs.”

It is on that principle that plaintiffs present action rests and on its strength his suit must be sustained, as unaffected by defendants’ exceptions, which were properly overruled. Calvett vs. Williams, 35 Ann. 322.

On the Merits.

The facts alleged by plaintiff are fully substantiated by the record, and hence the question to be discussed is purely one of law.

In support of their proposition that under the sale to Kingsbury, Gale’s property, which had been judicially recognized as his homestead, passed free of the judicial mortgage resulting from the judgments in favor of Ben Gerson & Son and of Wheeler and Pierson, defendants rely almost exclusively on the decision rendered by our immediate predecessors in the case of Yanwickle vs. Landry, 29 Ann. 330. Such was the practical result of that decision. But in the opinion is to be found the following language : “ It is conceded that a party, in whose favor a certain quantity of property has been adjudicated as exempt from seizure, may sell the exempted property, and his vendee would acquire a title, unincumbered by the mortgage-granted before such adjudication.” If, as the terms of the opinion seem strongly to indicate, the conclusion reached by the Court had been conceded by the parties, it is not a violent presumption to consider that the principle did not emanate from the Court, and that the dictum is not precisely a judicial precedent.

But be that as it may, the case is liable to j ust criticism, as having-gone far beyond the plain scope of the homestead act of 1865. In-another part of the same opinion the following declaration is made and is actually used as a consideration tending to the conclusion adopted by the majority of the Court: “ If we cannot decree the enforcement of the mortgage now because of a legal obstacle, if the law exempts the property from seizure so unqualifiedly that a mortgage voluntarily imposed on it by the debtor is held not to bind it, and if the exemption H so complete that the owner may convey the property by an unincumbered title, it would seem that no future contingency can revivify a mortgage thus declared extinct.”

But a mere reference to the statute is sufficient to show that none of the premises of the proposition can find any sanction in its plain and unambiguous meaning ; and that the act contains no language to justify even a suspicion of any legislative intent to impair or affect in any manner the existing laws of Louisiana on the binding force and effect of mortgages, either legal, judicial or conventional.

Hence, the provisious of law which declare that the judicial mortgage which results from the inscription in the proper office of a valid final judgment, takes effect and may be enforced against all the immovables which the debtor actually owns or may subsequently acquire have not been attested or otherwise impaired by the enactment qf that statute. Civil Code, Art. 3328.

Its title is an act "To exempt from seizure and sale a homestead and other property,” and in its body it purports or attempts to do nothing more.

Thehomestead which it exempts from seizure and sale is defined to be “ one hundred and sixty acres of ground and the buildings and improvements thereon occupied as a residence iind bona fide owned by the debtor, having a family, or mother or father, or person or persons dependent on him for support.”

Under the plainest rules of construction the debtor -who ciaims the exemption must combine in himself four indispensable conditions :

1. I-Ie must be the bona ;fide owner of the land.

2. He must occupy the premises as a residence.

3. Pie must have a family or person or persons dependent on him for support.

4. The property must no.t exceed in value two thousand dollars.

Numerous adjudications of this Court are authority for the assertion that the absence of any one of those conditions in the debtor will defeat his claim for exemption, and that to entitle him to the homestead all the conditions must co-exist at the very time that the claim is propounded. Tilton vs. Vignes, 33 Ann. 240; Gallagher vs. Payne, 34 Ann. 1057; Bossier vs. Sheriff, 37 Ann. 263.

Hence it follows that if subsequently to the judgment which recognizes the exemption, any one or all of the conditions which were required to justify its rendition should cease to exist, the light to the •ho m es i ead m ust fall.

Under a proper construction of the statute the judgment does not create a homestead, and under it the debtor does not acquire a vested right to the homestead. The judgment must be construed as a declaration of the co-existence of the conditions of the law which authorizes the exemption, and which must be understood as written in the judgment.

In the case of Culvitt vs. Williams, 35 Ann. 324, the Court said : “ It is a judgment which the Court, by reason of its continuing jurisdiction, over the subject matter, can revoke on a proper showing and thus render inoperative. No reservation of the power to that effect was necessary in the original decree. It exists and can be exercised as a matter of course.’’

Under the authority of our laws on the subject of judicial mortgages the legal effect of the two judgments now owned by plaintiff was a judicial mortgage against Gayle’s property, now under discussion, from the moment that they were inscribed in the proper office; and the effect of the judgment which recognized his right to the same as a homestead was to suspend the execution of the judgment against that property, as long as the conditions under which the law granted the exemption continued to exist in fact and in law. The judicial mortgage which resulted from those judgments has the following effects:

1. “ That the debtor cannot sell, engage or mortgage the same property to other persons to the prejudice of the mortgage which is already made to another creditor.”
2. That if the mortgaged thing goes out of the] debtor’s hands, the creditor may follow it in whatever hands it may have passed, in so much that the third possessor of it is obliged to pay the debt for which the thing is mortgaged, or to relinquish it to be sold, that the ■creditor may be paid out of the proceeds thereof.” * * * Civil Code, Art. 3397.

Now, by the sale and delivery of the. property to Kingsbury, Gayle became at once stripped of two of the essential conditions under which the property had been judicially declared to be his homestead. He then ceased to own it, and also to occupy it as a residence; and at that very moment the judicial mortgage which attached to it and which had not been cancelled or in the least impaired by the homestead judgment, followed the property as an incumbrance in the hands of the new owner. At the moment that the exemption ceased, the mortgage, which had been only dormant, not extinct, became executory, with all its pristine force and vitality. Having severed all his connections with the property thus sold, Gayle could no longer extend over it a shield of protection in the shape of an exemption from seizure and sale, which was personal to himself.

Iiis rights were then restricted to the proceeds of the sale, and these were not screened from the pursuit of his creditors under his homestead judgment. How then can it be argued that the land which had ceased to be his property could be shielded in the hands of a third person, under the effect of a judgment rendered inoperative by his own acts ¶

It is thus made manifest that the views expressed in the YanWickle case find no sanction in the fundamental principles of our laws ; and an examination of all the subsequent decisions of this Court on the statute now under discussion shows that they all fairly antagonize the spirit of that decision, which can be considered as practically overruled.

The views expressed and the conclusion reached by the Court in the case of Chaffe & Son vs. McGehee & Co., 38 Ann. 278, squarely bear out this assertion and settle our jurisprudence adversely to the doctrine of the casein qxxcstion.

The homestead law is therein expounded as follows: “ Hence the homestead only exists sub modo, and * * * a mortgage will bind the debtor’s property against everything but homestead rights, and though inoperatiue as long as the property is subject to the conditions constituting the homestead ; it will become operative the moment those conditions cease to exist. Thus, a judicial mortgage, while inoperative against the pre-existing homestead, would xxnqxxestionably attach to the jiroperty when it ceased to be a homestead.” * * * The decision in the case of Hardin vs. Wolf, 29 Ann. 333, which defendants invoke as sustaining the theory of the YanWickle opinion, cannot avail them, because that case was in terms and completely overruled in the decision of Nugent vs. Carrxxth, 32 Ann. 444, by the same Bench which had rendered both the YanWickle and the Hardin opinions ; and thxxs the doctrine, since uniformly followed, which reqxxires a strict construction of homestead and other exemption laws, was solidly consecrated.

All these considerations lead forcibly to the conclusion, adopted by the lower court, that the judgment which recognized the property now in suit, as Gayle’s homestead has since become inoperative, and that it should, therefore, be avoided, in so far as plaintiff’s judicial mortgage is concerned, and that the property passed to the purchaser burdened with said mortgage.

Judgment affirmed.

Dissenting Opinion.

Todd, J.

Plaintiff is the transferee of two judgments against the defendant Gayle rendered in favor of Ben Gerson & Son and Wheeler & Pierson, respectively, and duly recorded in the mortgage office in the parish of Pointe Coupee, where certain immovable property of the judgment debtor was situated.

Ben Gerson & Son, before the transfer of their judgment to the plaintiff, attempted to enforce it against the said immovable property then in possession of Gayle, the debtor, but by a decree of this Court rendered on appeal, the property in question was declared to be the homestead of Gayle, and as such exempt from seizure. See Gerson vs. Gayle, 34 Ann. 337.

Subsequently to this decree Gayle sold the property to Kingsbury, his co-defendant, and by reason of this sale by the judgment debtor, and his removal therefrom, the plaintiff, as the owner of said judgments and subrogee of the judicial mortgages claimed to result from their inscription, seeks by this action to have the said decree of this Court, recognizing Gayle’s homestead on the property, declared inoperative and void, and the property now legally subject to the mortgages ; and this presents the sole issue for our determination.

In the case of VanWickle vs. Landry, 29 Ann.330, it was expressly hold {quoting):

That a mortgage on property exempt under the homestead act cannot be enforced; and the owner of such property may sell the same free from the mortgage he has imposed upon it.”

In that case the property was declared free from a mortgage that the debtor himself had sought to impose upon it, and where the act of the debtor, in giving the mortgage, might have been reasonably construed as waiving the exemption under the homestead. A fortiori would the exemption apply to a mortgage not expressly consented, but resulting from the operation of the law.

If the property was free from the mortgage whilst it was occupied as a homestead, and if it was not inalienable — as was likewise held— it would seem to follow as a logical sequence, that if sold, or when-sold, it would be sold and acquired by the purchaser free of mortgages.

This decision has never been overruled. It is, however, claimed that the cases of Hardin vs. Wolf, 29 Ann. 333, and Chaffe & Sons vs. McGehee, 38 Ann. 278, are opposed to it.

The question determined in the first case mentioned was, whether the rights of homestead or the exemptiou thereunder could be waived ; and whilst it was held that it could not be waived in advance by the debtor, yet we find in one of the concurring opinions delivered, it was expressly held that the property subject to it could be sold.

In the other case (Chaffe vs. McGehee) the debtor had abandoned the homestead and moved out of the State, but the title to the property still remained in him. It had never been sold or disposed of, and under these circumstances it was held that it was subject to seizure. This was a material condition which distinguished it from the instant case.

The question involved in the present litigation has, in my opinion, been settled, and settled adversely to the plaintiff.

Holding these views, I therefore dissent.


author: Pooué, J. Fenner, J.

text:
    No. 10,114.
    Joseph Holz vs Louis Fishel et al. Edward C. Palmer vs. Thomas Duffy, Sheriff, et al.
    (Consolidated.)
    An order granting to an appellant additional delay for filing iiis transcript after the return day, inadvertently, in contravention of the rule of the Code of Practice (Art, 883), vrilt be rescinded by the Supreme Court on its own motion, and cannot save the appeal.
    Such an order, obtained on the fourth judicial day after the return day, is an absolute nullity. In making motions for extension of the return day, appellants must be careful to be ■within the plain requisites of the law, or else they will eventually be deprived of any relief granted inadverí ently.
    A proceeding filed by the appellant in the appellate tribunal on the last day of grace, stating the cause not under his control by which he was prevented from filing his transcript iu time, but which contains no prayer for an extension, cannot avail him.
    APPEAL from the Civil District Court for the Parish of Orleans. Voorhies, J.

      Singleton, Browne & Choate for the Appellees.

      F. MicMnard for the Appellanis.
   Motion to Dismiss.

The opinion of the Court was delivered by

Pooué, J.

The ground of tiro motion is that tire transcript was filed too late.

The appeal was returnable on the 16th of January last, and the transcript was not filed before the 15th of February following; But appellant relies on an order of tin's Court, rendered on January 20th, extending the return day, thirty days from that date.

Appellee mates the point that the application for delay was itself made too late, and that the order granted thereon was inadvertently and wrongfully issued.

From the minutes, it appears that this Court was in session on the 16th, 17th. 18bh and 19th of January, and thence it is clear that under the provisions of Article 883 of the Code of Practice, the application for an extension of the return day should have been made at che latest on the 19th.

But in answer to that position, appellant contends that he is protected by certain proceedings which he filed in this Court on that day.

In those proceedings he alleged that the clerk of the lower court had failed, when called upon, to deliver to him a transcript of appeal in the case, or to furnish him with a certificate of the reasons which liad prevented him from completing the transcript. Whereupon he prayed for writs of certiorari and mandamus on the clerk for relief in connection witli the transcript, or for the required certificate, and for a writ of prohibition, intended to lestrain the execution of the judgment during the pendency of his proceedings.

For reasons unnecessary to mention here, his counsel concluded not to piess his proceedings for the writs above stated, and on the next day he filed his motion for delay, accompanied by a proper certificate from the clerk of the lower court. In his proceedings, filed on the 19th of January, appellant’s counsel did not pray for an extension of the return day, and such an application was not made before the following day, the 20th of January.

The question piesented for discussion is, therefore, to determine whether the proceedings filed by appellant on the 19th of January can avail him to save his appeal under the provisions of Article 883 of the Code of Practice.

The rule is as follows : “ If the appellant has not filed in the Supreme Court, on the day appointed by the inferior judge, the record from tiie court below, and was prevented from doing so by any event-not under liis control, lie may, either in person or by attorney, apply to the court, before the expiration of three days, * * * and demand a further time to bring it up, which may be granted by the court if the event causing the delay be proved to its satisfaction,”

This is a rule of law from which the Court cannot depart, and by -which it is stripped of all discretion in the premises. No other showing can be made, and no other proceeding can be invoked to follow the path thus clearly indicated.

Hence this Court has uniformly enforced the rule according to its plain and unambiguous import and meaning. Vancampen vs. Morris, 6 Rob. 79; Brickell et al vs. Conner et al, 10 Ann. 235; Farmers, etc., vs. Strawbridge, 24 Ann. 126; Redmond vs. Maun, 23 Ann. 373.

In the case of Rhea vs. Steamer Simonds, 15 Ann. 712, the transcript was filed on the fourth judicial day after the return day, and that was held too late, and the appeal was dismissed.-

This is precisely the case here, as to the application for delay, and hence this appeal must share the same fate, unless it be saved by the proceedings of January the 19th.

As herein above stated, those proceedings did not contain a prayer for, and were therefore not followed by, an order of extension of the return day, and hence they must be held as nought under the requirements of the rule as established by the Code and as construed in our jurisprudence.

Section 3 of Rule 3 of this Court reads: “ Motions for extension of time to file the transcripts must be supported by affidavit of the clerk of the lower court, or of counsel, or of the mover.”

Hence it follows that the certificate of the clerk, which the latter was alleged to have refused him, was not the exclusive support which appellant needed for an application for delay.

JBy means of his proceedings, appellant informed the comt of the •cause, not under his control, by which he had been prevented from bringing up his appeal in time, but he failed, or omitted to pray for the only relief which could avail him under the provisions of the Code. Under the plain requirements of the rule, and in keeping with judicial construction of the same, it is clear that even the order of this Court granting the writs prayed for could not have been construed as a prayer for and an extension of time.

A similar conclusion would follow, if the prayer of appellant, that his affidavit and his motion predicated thereon, be taken in lieu of the transcript, had been granted. Nothing but an extension of time cau be substitued for the transcript.

A similar excuse was made by tbe appellant in the case of DeBouchel vs. Husband, 34 Ann. 102, in which an application for an extension of time had been made and an order therefor obtained, after the expiration of the three days of grace. His excuse was that' the District •Judge had, by an exjparte order, illegally dismissed his appeal, which he had succeeded to re-establish only after the expiration of the three judicial days. The excuse was undoubtedly more weighty than the reasons relied upon by appellant in this cáse, but in obedience to the strict mandate of the law the court said:

“ The appellant was in fault, and he must bear the consequences.”
Whatever has been the action of the District Court, it was the •duty of the appellant to have procured the transcript required bylaw, if possible, and to have seasonably filed it in this Court: or, he should, -at least before the expiration of the delay, within which he should have filed the transcript, have made a proper showing here, for an extension of time to bring up the transcript. He has don'fe neither,” and the appeal was dismissed. Lacroix vs. Bonin, 33 Ann. 119.

In the case of Pierce vs. Cushing, 33 Ann. 401, the appellant urged that by reason of the voluminous record he had been prevented from having it completed in time, the court answered: This cannot justify the filing of the record beyond the delays and extensions prescribed therefor. There was a special remedy provided by law for cases of appeals attended with such difficulties, of which the appellant twice or thrice availed himself, and could have done so again by proper application.”

By presenting to this Court, on 'January 20, his formal motion for an extension of thirty days, supported by the required certificate, appellant tacitly admitted, as it is otherwise shown, that his proceedings of the day previous were not intended by himself as an application for additional delay to file his transcript. It is, therefore, inevitable to conclude that he has entirely mistaken his remedy, that the application of January 20 came too late, and that the order for an extension granted thereon must be considered as rescinded, and as null and void.' The court can grant no valid order in contravention of law, and when surprised, as in this case, into an error, * * * will rescind its own orders without special motion to that •effect. In making such motions, attorneys must be careful to be within the plain requisites of the láw, or else they will eventually be deprived of any relief which may be granted inadvertently.” Chrétien vs. Poincy, 33 Ann. 131; Succession of Kuntz, 33 Ann. 30; Exposition vs. Railroad Company, 38 Ann. 905.

“It is true that an appellate tribunal will always and firmly protect the constitutional right of appeal, but, on the other hand, the court must not lose sight of the legal rights acquired by an appellee through the omission or neglect of his opponent.”

Such is the condition of things presented here, and such must be the result.

This appeal is, therefore, dismissed at appellant’s costs.

Disskntino- Opinion.

Fenner, J.

Holz having taken a suspensive appeal from the judgments iu those cases returnable to this Court, appeared here on the last day allowed for return, after this Court had adjourned, and filed an affidavit setting forth the refusal of the clerk of the court to complete the record of the appeal or to give him a certificate showiug its non-completion, and with said affidavit filed the following motion -~ “ On nrqtion of F. Michinard, of counsel for Holz, etc., and the accompanying affidavit considered, it is ordered that this motion and affidavit be filed in lieu of the ordinary record, and that said appellant do, without delay, apply for the proper writs to obtain the record required by law.”

This motion was not acted on, owing- to the court’s not being iu session, but it is not thereby deprived of any effect to which it is entitled so far as timeliness of action is concerned.

At the same time he filed an application here for wiits of mandamus, certiorari and prohibition against the clerk.of the lower- court, designed to perfect his appeal.

This petition was handed to the Chief Justice, but no order was-made thereon and it was withdrawn.

On the following day IIolz filed in this Court the certificate and affidavit of the clerk, and applied for and obtained an order extending the return day for thirty days.

Without the previous proceedings above noted, the last named application and order would have come too late and would have had no-effect.

But I am compelled to regard the first motion and affidavit timely filed, as substantially an application for an extension until, by proper writs to be invoked “ without delay,” he could obtain the record. They could have had no other possible motive or purpose, and I consider them a substantial compliance with our rule.

In such matters we should not stick in the letter, but seek the spirit-, and meaning of the application.

Our rule is in the following terms : '‘Motions for extension of time to file transcripts must be supported by affidavit of the clerk of the lower court, or of the counsel, or of the mover. Such affidavit must state specifically the causes which prevented the completion of the transcript within the legal delay.-’

Now, here an affidavit was filed stating very specifically the causes of the non-filing, and it was accompanied by a motion, the meaning and purpose of which could be no other than to ask an extension of time. We have frequently held that the timely filing of such a motion, though made when the court is not in session, and, therefore, not acted on, suffices to protect the rights of the party. I think the appellant stood under such protection, and that our regular order of the following day was lawful and valid.

I, therefore, dissent from the opinion and decree herein.