text:
    219.
    Manheim Berwin v. John L. Gauger.
    ‘Tlie trardon or proof falls upon tlie defendant, wlien lie alleges want or failure of consideration of tlie note sued upon.
    APPEAL from the Fourteenth Judicial District Court, parish of Rich-land.

      May, J. Wells c6 Williams and Ml. Millenl, for plaintiff and appellant.

      Miehardson & MeMnery, for defendant and appellee.
   Howe, J.

This was a suit upon a promissory note. The defense set up was fraud and want of consideration. A reconventional demand was also pleaded. There was judgment dismissing the plaintiff’s demand as in case of nonsuit, and he has appealed.

We are constrained to think that the judgment was erroneous. The plaintiff’s case was fully made out by the note itself, and by his answers to interrogatories propounded by defendant and introduced by plaintiff without objection, as appears by the note of evidence. The defendant has not successfully contradicted this array of proof, nor established the affirmative allegations of his answer, the burden of proving which was upon the defense. His own testimony is loose and vague, and the other testimony on his side is insufficient to eke out his case.

It is therefore ordered that the judgment appealed from be reversed and the demand of defendant dismissed, and that plaintiff Manheim Berwin recover from defendant John L. Gauger the sum of $857 20, with eight per cent, per annum interest from February 27, 1867, and costs of both courts.

Rehearing refused.


source: Caselaw Access Project

author: Ludeling, C. J.

license: Public Domain

text:
    No. 215.
    Parish of Morehouse v. Parish of Richland.
    After tlio passage of the act of the twenty-ninth of September, 1868, creating tho parish of Richland, the people living within the limits oí that portion of the new parish which was-detached from the parish of Morehonso were required to pay the taxes due by them to tho authorities of tho parish of Richland. This act being valid, the parish of Morehouse had no right to collect taxes thereafter from the people thus detached.
    APPEAL from the Fourteenth Judicial District Court, parish of Rich-land.

      Bay, J. W. M. Oonvpton, district attorney pro tom., and J. d¿ 8. D. MoJEnery, for plaintiff and appellant.

      Todd & Potts, lor defendant and appellee.
   Ludeling, C. J.

. On the twenty-ninth of September, 1868, an act of the General Assembly was passed creating the parish of Richland, By a provision of the act the taxes which were due by the people living in tho territory detached from' Morehouse to form Richland parish, when the collector of taxes for Richland parish should be commissioned, were to be collected by said tax collector, and he is directed to pay the State taxes to the State Treasurer and the parish taxes to the treasurer of the parish of Richland. The plaintiff claims the money thus collected and paid into the treasury of the parish of Richland.

We are at a loss to imagine by what right the parish of Morehouse sets up a claim to the taxes collected from the citizens of Richland and paid into the treasury of said parish under the authority of an act of the General Assembly which is unquestionably valid.

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


author:
Ludeling, C. J
      Wixy, J.,

text:
    No. 197.
    B. W. Smith v. E. L. Henderson et als.
    Ono judgment creditor may attack the judgment of another creditor of the common debtor and show its nullity on the ground that its consideration was based on an obligation given for the sale of slaves.
    A judgment that has been given predicated on a slave contract ot a slave consideration is null and void, and its enforcement or execution by the court that rendered it is prohibited by article 128 of the constitution of 1868. Ritióle 149 of the constitution, which declares all judgments valid and binding which were rendered by the courts of the State during the period of the late civil war, only gives validity to such iudgmonts as were based on a lawful consideration. It having been first settled hy the highest judicial tribunal of the State, and afterward enacted into the organic law by the convention which framed the constitution, that an obligation or contract predicated on slaves was illegal and void, it is therefore hold that judgments of inferior courts which were rendered before these decrees and enactments were made, based on contracts or obligations for the sale of slavos, wore absolutely null in themselves, and that all such judgments are included in the prohibition of article 128 of the constitution.
    APPEAL from the Fourteenth Judicial District Court, parish of Morehouse.

      Orawfonl, J. ¿3. Q. Parsons, for plaintiff.

      G. T Dunn, for defendants.
   Ludeling, C. J

The record in this case was destroyed with the court house hy fire, and the parties have submitted this appeal on a statement of facts

It appears that Henderson had a judgment against Benjamin Temple and others. That having issued execution, under this judgment, and seized all the property of said Temple, B. W. Smith, another judgment creditor of Benjamin Temple, enjoined the sale, on the grounds that the judgment was based on obligations given for the price of slaves, that the property seized was subject to a judicial mortgage resulting from the registration of his judgment against Benjamin Temple, that the property seized was insufficient to satisfy both judgments, and that the sale thereof would result to his injury, and lie prayed that the judgment of Honderson might be annulled', and that his injunction might he perpetuated.

A motion to dissolve this injunction, on the face of the papers, was filed, and the prescription of one j^ear against the right to sue for the nullity of the judgment was pleaded. That admitted the truth of the allegations of the petition.

The question presented for decision is, whether one judgment creditor, with a judicial mortgage on property of the common debtor, can interpose to prevent the execution of the judgment of another creditor, on the ground that said judgment was rendered on obligations given for the price of persons, when it is shown that the property of the common debtor is insufficient to pay both judgments.

The plaintiff contends that under the jurisprudence of this State, settled before the adoption of the constitution, such obligations were invalid and void, and that article 128 of the constitution declared them null and void, and prohibited the courts of this State from enforcing all such obligations.

The defendant, on the other hand, invokes article 149 of the constitution as recognizing the right to enforce all judgments rendered between the twenty-sixth of January, 1801, and the date when the constitution was adopted

It is evident that this construction of article 149 of the constitution would make it conflict with articles 127 and 128 of the constitution. These articles declare that “ all contracts for the sale of persons or for Confederate treasury notes are null and void,” and they prohibit the courts of this State from enforcing such contracts.

“A judgment neither creates, adds to nor detracts from the debt of the party against whom it is rendered. It only declares its existence, Axes its amount and secures to the creditor the means of enforcing its payment.” 10 R. 412; Gustine v. Union Bank of Louisiana, 18 L. R. 414; 9 Rob. 119

It is a necessary step to enforce obligations, and without which courts can not enforce them.

If, therefore, the courts lend their aid to execute judgments they necessarily enforce the contracts which form the basis of the judgments.

In construing a law or a constitution, we should so interpret it as to make all its parts harmonize if possible. The construction contended for by defendants should be rejected, therefore, if the article be susceptible oí any other which will make it harmonize with articles 127 and 128 of the constitution

Article 149 was intended as a statute of repose in all matters when not inconsistent with the provisions of the constitution itself. It was intended to cure defects in proceedings resulting from the supposed want oí authority in the officers in power in the State during the rebellion, and after, up to the period when the constitution was adopted, and all other defects which it was competent for the State, in the exercise of its limited sovereign power, to cure. But it was not designed to apply to judgments or judicial proceedings radically null. Eor instance, it could not have been intended to validate a judgment rendered on a forged instrument, or a judicial sale without any judgment or order whatever. At the period when the convention which framed the constitution was convoked, it had been repeatedly decided that obligations for the sale of persons were invalid. The convention manifested its approval of those decisions by incorporating in the constitution articles 127 and 128. If the jurisprudence of Louisiana on the subject of obligations for slaves and for Confederate money had not been regarded as correctly settled, in accordance with the views expressed in Wainright v. Bridges and other eases, it is quite certain that those articles -would not have been incorporated in the constitution ; for, if those obligations were valid, the convention had not the power to impair them under the Constitution of the United States. They had not the power to impair the obligation of a contract, whether evidenced by a note or judgment.

It can not be presumed that the members of the Constitutional Convention were ignorant of the fact that before this court had decided the case of Wainright v. Bridges, judgments recognizing the validity of obligalions for slaves had been rendered throughout the State; nor can it be presumed that, knowing this, the Convention intended that courts should enforce these contracts which were in judgments, when they emphatically declared all contracts for the sale of persons null and void,” and prohibited their enforcement by the courts of this State. What is clear in one part of the law may be called iu aid to explain what is doubtful in another. C. C. art. 17.

But this question has already been decided. In Henderson v. Montgomery, this court said: “We consider that there is nothing now to sustain an appeal; that the judgment or order appealed from being in conflict with the fundamental and paramount law of the land, is an utter nullity, and the parties must be left where they were when it was struck with nullity. 18 An. 211.

In Thomas v. Hacket, we held that a twelve months’ bond, on which a fieri facias had been issued, and a part of it had been collected, was invalid, and we ordered the cancellation of the mortgage resulting from its registry because it was given for slaves sold at a sheriff’s sale. 21 An. 164. In Sandidge v. Sanderson, 21 An. 757, Satterfield v. Spurlock, 22 An. 771, and numerous other cases, this court has perpetuated injunctions arresting the sales of property under orders of seizures and sales, on the ground that slave contracts could not be enforced in this State. And in Henderson v. Mutual Insurance Company, we held that ■one judgment creditor could attack the judgment of another creditor of the common debtor and show that the judgment was a nullity because predicated on Confederate money, the court said: “Admitting the correctness of the legal position assumed by him, he is successfully met by the plea to the validity of his judgment which is not yet executed. His answers to the interrogatories leave no doubt that the said judgment was based on a contract or agreement the .consideration of which was Confederate money, and is therefore null. To render the di cree -asked for by him would be to enforce a prohibited agreement. Article 127 Constitution; 23 An. Thus the question has been decided in almost every shape that it could be presented.

It is therefore ordered and adjudged that the judgment of the district court be annulled, and that there be judgment in favor of the plaintiff perpetuating the injunction, and for costs of both courts.

Wixy, J.,

dissenting. The plaintiff, a judgment creditor of Benjamin Temple, of date June, 1869, enjoins the execution of the other judgment creditor, Mrs. E. L. Henderson, of date and registry June, 1866, on the ground that the property of Temple, the common debtor, seized by the defendants, will not be sufficient to pay both judicial mortgages, the defendant’s (Mrs. Henderson) mortgage being prior in rank according to registry; but that her judgment is based upon a debt for the price of a slave and can not bo enforced by the courts, and that the sale of the property thereunder will damage the plaintiff, it being the only property of said Temple,

The proceeding seems to be anomalous. It is not an action to annul the judgment, whose execution the plaintiff, a third party, has restrained by the writ of injunction sued out by him. Temple, the common debtor, is not made party to this attack upon the judgment of Mrs. E. L. Henderson against him. If the plaintiff succeeds in having the judgment, attacked in this collateral manner, declared a nullity, the decree will not have the force and effect of the thing adjudged between Mrs. Henderson and her judgment debtor, Temple. The man whose property has been seized by his judgment debtor will not have the benefit of-the decree invalidating the judgment against him, under which the seizure was levied. The only law we have authorizing a third party to oppose the sale of property under a judgment of court is to be found in the Code of Practice.

Article 395 declares that “this opposition is a demand brought by a third person, not originally a party in the suit, for the purpose of arresting the execution of an order of seizure or judgment rendered in such suit, or to regulate the effect of such seizure in what relates to him.”

- Article 396 declares that “such opposition may take place in two cases:

“I. When the third person making the opposition pretends to be the owner of the thing which has been seized.

. “II. When he contends that he has a privilege on the proceeds of the thing seized and sold.”

If the third person claims the property he may enjoin the sale, and in such proceeding this opposition shall be considered as a separate demand. C. P. 400, 398.

“If, on the contrary, the opposition be made on the ground that the third opponent has a privilege which entitles him to be paid in preference to the party making the seizure out of the proceeds of the sale of the property, as when there are several seizures or conflicting claims on the same property, such opposition may be made by motion, of which due notice must be given both to the party who has made the seizure and to the sheriff; and the court, without requiring anv security from the third opponent, shall direct the sheriff to retain in his hands, subject to further order, the proceeds of the sale.” C. P. 401.

The right of this third opponent does not arise under either of the provisions of article 396. He does not claim the thing, and therefore has no right to oppose and enjoin the sale. He does not claim a privilege on the proceeds of the sale superior to Mrs. Henderson, the seizing creditor; if ho did, it would be no cause to enjoin the sale. A senior mortgage creditor can not prevent the sale of the common debtor’s property under a seizure of the junior mortgage creditor. His remedy, under article 401, is on the proceeds in the hands of the sheriff.

Here the plaintiff, without ever causing, execution to issue on his own judgment, proposes to suspend the execution of Mrs. Henderson’s judgment against her judgment debtor, Temple, on the mere suggestion of a defense which Temple never cared to oppose to his creditor, Mrs. Henderson, at the trial in 1866.

Here the third opponent, under a judgment in 1869 on a debt contracted in 1866, seeks by a collateral attack to have the debt on which Mrs. Henderson’s judgment was based for a slave, contracted before the war, long anterior to his own claim, declared an absolute nullity, notwithstanding article 1993 of the Revised Civil Code declares that “no creditor can, by the action given by this section, sue individually to annul any contract made before the time his debt accrued.” From the evidence I have no doubt that the debt for the slave, on which the judgment of Mrs. Henderson is founded, was long anterior to the time the debt of the plaintiff was contracted.

This court has repeatedly decided under the article quoted that an inquiry into the consideration of an anterior contract can not be instituted by a creditor subsequently acquiring rights against the same debtor.

The judgment of a court of competent jurisdiction unappealed from, where the parties have been cited, is not and never can be an.absolute nullity. It can only be attacked in the action of nullity provided by the articles of the Code of Practice under the title “ Of the nullity of judgments.”

Article 604: “One may demand the nullity of a judgment for any of the causes provided in this section, even if no appeal have been taken from the same or if the delay for taking the same have expired.”

Article 605: “The causes for which the nullity of a definitive judgment maybe demanded are two-fold: Those that are relative to the form of proceeding, and those that appertain to the "merits of the question tried.”

The vices of form are detailed in article 606.

Article 607 declares that “a definitive judgment may be annulled in all cases where it appears that it has been obtained through fraud or other ill practices on the part of the party in whose favor it was rendered; as if he obtained the same by bribing the judge or the witnesses, or by producing forged documents or by denying having-received the payment of a sum, the receipt of which the defendant had lost or could not find at the time, but has found since the rendering of the judgment.”

It is not pretended that the judgment enjoined is affected by vices of form. C. P. 606. There is no allegation that it was obtained through fraud or other ill practices of Mrs. E. L. Henderson, or is liable to nullity under article 607, C. P. Indeed, the debtor in the judgment sought to be declared a nullity is not a party to this proceeding, and the plaintiff does not pretend to sue under the articles of the Code of Practice under the title “Of the nullity of judgments.”

I think the proceeding most extraordinary and such as is not warranted by law.

We can not get before the court the consideration of the debt-merged in the judgment in. the proceeding before us. The inquiry can not be instituted except by opening the judgment in the manner provided by law. The action of nullity is the only mode provided by law to revise a judgment after the time for appeal has passed; and until it is legally opened for revision we can have no legal knowledge-of the evidence on which it was rendered.

“ A judgment is the highest evidence of a debt, and the title merges, in the judgment. So, where judgment is had upon a note, the latter is merged in the former, from which only by its reversal or rescission can it be severed. So, too, a judgment in an action on which a judgment is rendered is merged in the latter; the debtor can not then plead against the 'claim thus merged in the judgment any prescription but that which bars the latter.” 9 La. 418; 1 An. 372 ; 3 An. 386; 7 An. 334; 9 An. 339; 12 An. 736; 14 An. 205, 231, 261; also authorities, collated, Hen. Dig. 72C, No. 6.

All irregularities or defects in the proceedings anterior to judgment, except the entire want of citation, must be corrected by appeal or in some direct proceeding instituted to set aside said decree. 2. R. 503.

There is no doubt of the slave consideration of the debt on which the judgment attacked was based. It was a delense that might have been urged at the trial; it can not be urged now as a ground for-injunction. The writ of injunction may be used as a means to protect a person in the*enjoyment of some right or thing already in possession, of the party suing it out. It ought not to be used merely for the purpose of suspending indefinitely the execution of a judgment of the court that has not been annulled and is not sought to be annulled, according to the nrovisions of the Code of Practice.

The fallacy of the reasoning of the counsel of the plaintiff is in supposing that a judgment is but the evidence of a debt, and that its slave consideration or the slave consideration of the note on which it was based may be judicially ascertained independently of the articles of the Code of Practice, and when ascertained it may be declared an absolute nullity, or its execution may be indefinitely suspended, as in the case before us, by a third party without an action of nullity.

I do not think the court ought to entertain irregular, suggestions of the invalidity of judgments and perpetually bar their execution. I think a judgment is not only the most solemn evidence of an indebtedness, but it is also the fiat of the sovereign peremptorily commanding its payment. It is the mandate of the State ordering the enforcement of the debt found to be due the creditor after full hearing of the parties and the evidence, which debt becomes merged in the judgment and can not be severed therefrom.

The judgment whose execution has been arrested by the injunction of the plaintiff has already been enforced, so far as the courts of the State are concerned. The debt already had the fiat or warrant of the sovereign for its enforcement. In 1866 the judgment became final; it acquired the force and effect of the thing adjudged. There was no prohibitory law at that time forbidding the courts from giving the sanction of the State to debts for the price of slaves. No prohibitory law subsequently enacted can affect the judgment rendered in 1866. If article 128 of the Constitution be held to have that effect it will deprive the plaintiff of her mortgage right, which she had previously acquired; it will impair the obligation of a contract and violate the Constitution of the United States, the paramount law of the land. But I do not believe that article 128 has any application to the judgment before us; it applies to contracts to be enforced subsequent to the adoption of the Constitution. So far from intending to invalidate judgments existing at the time of the adoption of the Constitution, I think it was the express purpose of the framers of our Constitution to validate them. Article 149 of the Constitution I regard as conclusive on this point. It declares that: “ All rights, actions, prosecutions, claims, contracts and all laws in force at the time of the adoption of this Constitution, and not inconsistent therewith, shall continue as if it had not been adopted; all judgments and judicial sales, marriages and executed contracts, made in good faith and in accordance with existing laws in this State, rendered, made or entered into between the twenty-sixth day of January, 1861, and the date when this Constitution shall be adopted, are hereby declared to be valid, except the following,” etc.

I therefore feel it my duty to dissent in this case.


author: Howe, J.

text:
    No. 269.
    Catherine D. Dowd v. Elstner, Kinsworthy & Co.
    In this case three parties, A, B and C, formed a commercial partnership, each placing in the firm to his individual credit, .and to be under bis individual control, an equal amount of the capital stock. By an article of the partnership it was acknowledged that threo thousand dollars of the capital stock belonging to C was borrowed from D, for which the firm bound itself on its dissolution to pay. At or before tlie‘dissolution of the firm C drew out all his capital, including the amount which was owing to D. After the firm was dissolved, D brought suit for the throe thousand dollars against each member of the firm on the promise and acknowledgment in the articles of partnership. Held — That D could not recover because the article of the partnership which acknowledged the indebtedness to D gave to C the exclusive control of his own capital in the partnership, which he had withdrawn before suit was brought.
    Held further — That under the allegations in the petition of D that she loaned the money to C individually, evidence to show the fact that C had withdrawn the same before suic was brought was admissible in a suit to hold the firm liable.
    APPEAL the Tenth Judicial District Court, parish of Caddo.

      Levisee, J. Land á Taylor, I or plaintiff and appellant.

      Nutt <& Leonard, for defendants and apptllee's.
   Howe, J.

The plaintiff alleged in her petition, filed April 28, 18C9, that the defendants’ firm, composed of J. C. and W. II. Elstner and B. H. Kinsworthy, was organized in 1806; that she loaned and advanced to B. H. Kinsworthy the sum of three thousand dollars to enable him to-furnish the amount of capital ho contributed to the partnership; that when the partnership was actually formed, on the twenty-sixth of April, 1866, the firm of Elstner, Kinsworthy & Co. credited petitioner with the sum of throe thousand dollars, and bound itsolf in writing to pay the same whenever the partnership should ho dissolved, and that the partnership was dissolved on the first of May, 1867. She therefore demanded the amount with interest.

J. C. Elstner and W. II. Elstner answered by a general denial, and the curator ad hoe of B. H. Kinsworthy filed a similar deiense.

There was judgment for defendants, and plaintiff appealed.

The only evidence offered by plaintiff consisted of the written articles of partnership of the defendants’ firm, dated April 26, 1866. It was admitted that the firm was dissolved in May, 1867. The third article of the agreement of partnership is the one on which plaintiff relies, and is in these words:

“It is agreed between the said parties that the cash capital to he employed by them in the said copartnership business shall be the sum of twenty-seven thousand dollars ($27,000), now already invested in the said business, which is hereby acknowledged and recognized as standing to the credit of the following named persons on the books of the said firm, as follows, viz: The sum of eighteen thousand dollars ($18,000) to the credit of the said John C. Elstner, nine thousand dollars of which is to represent the interest of the said John C. Elstner, and nine thousand dollars of which is to represent the interest of the said William Ii. Elstner, and the sum of six thousand dollars to the credit of David R. Coulter, for the use and benefit of Rebecca J. Kins-worthy, and the sum of three thousand dollars to the credit of Catherine D. Dowd, amounting together to the sum of nine thousand dollars, which is to represent the interest of the said Burton H. Kinsworthy, who is to have the control of the same, and is to have the benefit of all profits arising from the same.”

On the part of the defendants it was proved that after the partnership was dissolved in 1867, its affairs were put in liquidation and -that B. H. Kinsworthy withdrew from the assets his share of the capital ■stock ($9000), of which the amount loaned him by plaintiff and mentioned in the article above quoted ($3000) formed a part, and this before the commencement of this suit.

The plaintiff reserved a bill of exceptions to the admission of the testimony to show that B. H. Kinsworthy had thus drawn out his ■share, on the ground of irrelevancy; but we think the objection was properly overruled. The plaintiff, herself, alleges that she loaned the sum sued for to Kinsworthy, and the only evidence she offers of a liability of the firm to her for the amount is the article above quoted. But this article gives Kinsworthy the control of the share of capital recognized as his, and it was certainly relevant to show that he drew the amount from the liquidation before the plaintiff ever signified her intention to make a claim under the stipulations of the articles of partnership, to which she was not a party.

Nor do we perceive any error in the judgment appealed from. The plaintiff loaned her money to Kinsworthy. She was no party to the agreement of April 26, 1866, under which she claims. She never accepted its stipulations, except by instituting this suit three years afterwards, and after the firm had been liquidated aud the amount she had loaned -to Kinsworthy, and which he had contributed to the partnership, had been refunded to him as the person entitled to control it.

Judgment affirmed.


author: Howell, J.

text:
    No. 238.
    Ruth Rains v. John Chaffe & Brother et al.
    A third person ■who claims by way of third opposition the proceeds of the sale of property is not required to mate oath to the facts upon which he bases his demand in order to arrest the proceeds in the hands of the sheriff pending the inquiry.
    Either the party to the suit or his attorney may mate oath to the absence of the district judge from the parish.
    APPEAL from the Fourteenth Judicial District Court, parish of Richland.

      Bay, J. Todd & Brigham, for plaintiff and appellant.

      Garrett & Garrett, for defendants and appellees.
   Howell, J.

The first question presented in this case is, whether or not a third person claiming by opposition the proceeds of a sale, upon which he asserts a superior right, must make oath to the facts upon which he basis his demand and arrests said proceeds in the hands of the sheriff. The articles of the Code of Practice, 395-403, authorizing the proceeding and regulating its exercise and effects, make no such requirement, and we are aware of no law which does. The statute relating to the subject permits either the party or his attorney to make oath as to the absence of the district judge. R. S., § —.

It is therefore ordered that the judgment appealed from be reversed, and this cause remanded to he proceeded with according to law, defendants and appellees to pay costs of appeal.


author: Wxlx, J. Wyly, J.

text:
    No. 88.
    M. M. Calderwood, Executrix, v. William Calderwood et als.
    Tlie price, the thing and the consent are essential elements of the vente a remore as well ae of an unconditional sale.
    The right of redemption constitutes a resolutory and not a suspensive condition, and the purchaser, therefore, "becomes at once proprietor, and can exercise all the rights of property, including the right of disposition.
    The consont, which is the essence of the contract of sale, consists in the concurrence of the vendor’s volition to sell a particular thing for a particular price and of the vendee to purchase the same for the same price.
    "When, therefore, J". C. made a contract with "W. C. in the form of a sale of lands, hut by a counter letter of even date it appeared (1) that the real intent of the parties was to secure the payment of a debt which remained unextinguished; (2), that the amount of tlio nominal price over and above this debt was not serious; (3), that the vendee, so-called, was not invested with the right of disposition; and (4), that there was really no consent of J". C. lo sell or of "W". C. to buy. Held — That the effect of the two instruments together was to constitute an antichresis, and not a vente a, remere.
    In the absence of the stipulation respecting interest permitted by K. C. C. 3180, the disposition of tbe revenues of the pledged immovable is governed by article 3176.
    Parol evidence is inadmissible against or beyond what is contained in the acts, and in regard, to what may "have been said before, at the time of or after their execution.
    Property in litigation can not be alienated to the prejudice of the claimant.
    APPEAL from the Fourteenth Judicial District Court, parish of Ouachita.

      Bay, J. Stubbs é Gobb, for plaintiff and appellee.

      Garrett & Garrett, for defendants, appellants.
   Wxlx, J.

On the twenty-eighth of May, 1866, John Calderwood made a contract in the form of a sale with his brother, William Calderwood, in reference to certain stores and other property in Monroe, and at the same time a counter letter was executed and signed by them in order “to certify and explain the true intent and object of the parties to said act of sale, to wit: whereas, Johu Calderwood is indebted unto William Calderwood in the sum of twenty-four hundred and seventy dollars in United States treasury notes for services; now, therefore, the aforesaid sale and transfer is made to secure and guarantee the payment of said sum of money. And the said William Calderwood does hereby obligate himself not to sell any part of said above described property without the consent of John Calderwood, and that when any part of said property shall have been sold, the price to the extent of twenty-four hundred and seventy dollars shall be retained by said William Calderwood, and the remainder shall be paid or turned over to John Calderwood, his heirs or assigns, provided tho said John Calderwood shall first return to William Calderwood, his heirs or executors, his note given for the credit portion of the price or secure him against the payment th r of. And the said William Calderwood does hereby further obligate himself, his heirs and executors, to retransfer unto John Calderwood, his heirs or assigns, or legal representatives, the property aforesaid whenever he, the said William Calderwood, shall have been paid the twenty-four hundred and seventy dollars, and that he will not mortgage or encumber said property to the prejudice of said John Calderwood, his heirs or legal representatives. ’ ’

The plaintiff, the executrix and universal legatee of John Calder-wood, sues to compel the retransfer of the property according to the stipulation of the counter letter, alleging that by the rents derived from said property since twenty-eighth of May, 1866, William Calder-wood has received largely more than the amount for which the property was given to him in pledge.

The defendant, William Calderwood, denies that the contract was a pledge, but contends it was a sale, with the right of redemption — rc vente a réméré; that as owner, the fruits or revenues belong to him, and he is not bound to reconvey the property until the repayment of the twenty-four hundred and seventy dollars as stipulated, which the plaintiff has failed to tender.

He sought by parol evidence to prove that this was the intention of the parties, and the court very properly rejected the evidence of- the witnesses. Parol evidence will not be admitted against or beyond what is contained in the acts, nor on what may have been said before or at the time of making them or since. C. C. 2256. Looking beyond the mere form of the contract, we see in the counter letter the real intention of the parties. In that instrument we see that the creditor is put in possession of certain immovable property as a security for his. debt, but he can not sell it or mortgage it. He is not invested with the right of disposition, which is the essence of the ownership of a thing. Use, usufruct and the right of disposition are the elements of perfect ownership. By the counter letter this right of disposition, which is necessary for a sale, remains in John Calderwood; it was not delegated to William Calderwood, because he could not consent to a sale to any one else; the consent had yet to be given by John Calder-wood, notwithstanding the contract.

We do not see in the contract the obligation of the buyer to pay tho price as mentioned in tlie act of sale, to wit: the note for $4030; this was not a serious engagement according to the terms of the counter letter. It was not intended to he paid.

But the strongest position is, the contract wants the consent of the parties in relation to the sale itself. The essence of the contract of sale consists in the concurrence of the seller’s will to sell a particular thing for a particular price, and of the buyer to buy it for that price; there can be no contract of sale if it appears, as in the counter letter, that the intention of the parties is neither to buy nor to sell, but rather to disguise another contract under the false appearance of tile contract of sale. See Cushing’s Translation of Pothier on Sales, pages 1, 11, 17, 22, 25.

The idea of a sale is utterly precluded if effect be given to that clause of the counter letter which says: “ Whereas, John Calderwood is indebted unto William Calderwood in the sum of twenty-four hundred and seventy dollars in United States treasury notes for services. Now, therefore, the aforesaid sale and transfer is made to secure and guarantee the payment of said sum of money.’?

It is also precluded if effect bo given to the other clause, which says in substance the right to consent to a sale still remains in John Calder-wood; it is not invested in William Calderwood. The ownership is not transferred if the right of disposition or the right freely to consent ■to a subsequent sale and to exercise it independently is not conveyed in the contract. Then wheu a sale shall have been effected on the ■consent of John Calderwood, by another clause of the counter letter William Calderwood is not to gee the price, he is only to receive the amount due him by John Calderwood, to wit: $2470. Again, there is another stipulation precluding William Calderwood from encumbering the property and binding him to reconvey ’the paper title, the apparent title, to John Calderwood, his heirs or legal representatives, whenever he, William Calderwood, shall have been paid.

In every one of these leading stipulations of the counter letter the idea prevails that John Calderwood owns the property, and has put it in possession of William Calderwood merely to secure the debt subsisting in favor of the latter for $2470. Not one word is said in that instrument, in which is to be found the true intent and object of the parties, according to their express declaration, about the payment of the $4030 represented by the note of William Calderwood as part of the price. They refer to that note as a document to be given up when the real purpose of the contract shall have been accomplished, to wit: when William Calderwood is paid and the property is returned to John Calderwood. No hint or intimation is conveyed in the counter letter that William Calderwood is upon any contingency to become the true owner.

If the contract be a sale what is the use of talking about securing a subsisting debt of $24701 That being paid as part of the price, ceased to be a debt; by the sale the obligation -would he discharged, which the sole purpose of the counter letter, it seems, was to preserve and to secure.

Looking to the instrument wherein the parties have reposed their-true intention and object, we say there was neither an intention to. buy nor to sell, but rather to disguise the contract of pledge under the-false appearance of the contract of sale. It is the real, not the. apparent, .contract which is sought to be enforced and which should he enforced. f

If there was no sale for want of the essential elements, there can not he a modified or conditional sale — a sale a réméré.

The price, the consent and the thing are just as essential in the vente a, réméré as in an unconditional sale.

Authorities are not wanting in support of this position. Favard, verbo,. “Faculté de Racliat,” says: “The stipulation of the faculty of redemption-in the contract of sale does notprevent the property or proprietorship of the tiring from being transmitted in entirety to the purchaser. It is in this respect that the sale with the right of redemption differs from -the-contract of pledge or antichresis, which gives the pledgee only the-possession of the thing pledged, and the right to reap the fruits and revenues until the termination of the pledge.” Laliaye’s Notes to-Code Napoleon, article 1659. Dalloz on sale, No. 825, says: “ The-right of redemption constitutes a resolutory condition and not a suspensive. In consequence the purchaser becomes immediately proprietor. lie can exercise all the rights of property. He can sel!, subject to a resolution, in case the right of redemption he exercised.. Until the exercise of the right of redemption it is the purchaser alone who can dispose of the property.”

Wo have thus seen that the right of disposition or the proprietorship, of the thing never passed out of John Calderwood; consequently the-fruits and revenues thereof belong to his succession. William Calder-wood holds the property, which is immovable, by a contract of pledge,, disguised, however, under the form of a sale. It is an antichresis by which contract he acquires “the right of reaping the fruits or other-revenues of tlie immovables to him given in pledge, on condition of deducting annually their proceeds from the interest, if any be duebim, and afterwards from tlie .'principal of his debt.” Revised Civil Code, article 3176.

The evidence shows that the rents and revenues derived by William Calderwood under this contract exceed the amount of his debt and interest, together with the taxes, necessary repairs and other charge» paid by him. The debt for which the property was given in pledge being thus discharged, the antichresis has terminated. The property should be returned to the owner, and the pledgee should be required also to restore the amount of the rents received by him in excess of the sum which he is entitled to retain as pledgee. “The fruits of the pledge are deemed to make a part of it, and therefore they remain, like the pledge, in the hands of the creditor, but he can not appropriate them to his own use; he is bound, on the contrary, to give an account of them to the debtor or to deduct them from what may bo due to him.” Revised Civil Code 3135.

It appears, however, that on the thirteenth day of February, 1869, William Calderwood sold the property involved in this suit to Mrs. F. A. Richardson, the other defendant herein, and she claims it in this controversy by virtue of said purchase.

From the evidence, we entirely concur with the district judge that that conveyance was collusive, fraudulent and simulated; that this pretended purchaser was merely interposed to defeat the plaintiff, who had already set up claim in court for the property, and had caused it to be sequestered. “ The thing claimed as the property of the claimant can not be alienated pending the action so as to prejudice his right. If judgment be rendered for him, the sale is considered as the sale of ■another’s property, and does not prevent him from being put in possession by virtue of such judgment.” Revised Civil Code, art. 2453.

From the evidence, we are not able to determine the exact amount of fruits or revenues derived by William Calderwood from the property in excess of the amount he was entitled to receive under the contract of pledge. We think that he has undoubtedly received more than was ■sufficient to discharge his antichresis, and that the court a qua did not ■err in entering judgment for the property in favor of the plaintiff, and in reserving her right to claim in a separate action the fruits and revenues received by the pledgee in excess of the amount due under the contract of pledge.

It is therefore ordered that the judgment herein be affirmed, with costs. Revised Civil Code, articles 3133, 3152, 3176, 3177, 3178, 3179, 2439, 2464; 1 N. S. 417; Livingston v. Story, 11 Peters 377; 10 An. 691; 3 An. 252; 8 La. 14; 8 N. S. 136; 2 An. 265; 7 An. 579; 9 An. 278.

The Chief Justice was recused in this case.

On Application por Rehearing.

Wyly, J.

Having decided that the contract was not a sale, but a pledge of immovable property, it follows that the owner of the thing owns the revenues thereof. The owner of the debt or claim owns the interest or fruits thereof. It is very true that by article 3180 R. C. C., the creditor and debtor in a pledge of immovables may agree that the fruits or revenues shall be compensated with the interest in whole or in part, and that “this covenant may be performed as every other not prohibited by law.” But in the absence of such a covenant in the contract of pledge, shall we say that the owner of the thing shall not have its fruits 9 It was perfectly lawful for the creditor to agree that his debt shall not bear interest, the principal being secured by the pledge, but shall we say that he did so in the absence of a covenant to that effect? Because article 3180 permits the creditor and debtor in a pledge to stipulate that the revenues of the thing shall compensate or set off the interest, shall we say that the parties availed themselves of that privilege, in the absence of a clause to that effect in the contract of pledge 9 Persons are presumed to contract in reference to the law. The pledge of a movable is a pawn, the pledge of an immovable is an antichresis. B. C. C. 3135.

“The creditor acquires by this contract (antichresis) the right of reaping the fruits or revenues of the immovables to him given in pledge, on condition of deducting annually their proceeds from the interest, if any be due him, and afterwards from the principal of his debt.” B. C. C. 3176. The contract being a pledge of immovables, is regulated by this article, in the absence of the stipulation or covenant permitted by article 3180. The law regulates the effect of a contract except in such cases as the same may be modified by the covenant of the parties under the law permitting the said modification. The parties have not modified the antichresis in the case before us by a covenant under article 3180, and we therefore conclude that it must be regulated by article 3176. We see no reason to grant a rehearing.

Beliearing refused.


text:
    No. 198.
    The State of Louisiana v. Fred. Endom.
    'Those parts of section twenty, twenty-one, twenty-two and twenty-three of the revenue law of 1869, which authorize the levying and collecting of a specific tax on drays, wagons, carriages, etc., in proportion to the number of animals used in drawing them, are contrary to article 118 of the constitution, and are therefore null and void.
    'Such tax is a license on the particular calling, but if it were not it would still be obnoxious to the constitution, which requires that all licenses on the same occupation or calling .shall be uniform, while the classification according to the number of animals used in -drawing any particular vehicle imposes greater or less burdens on one person than another pursuing the same occupation.
    APPEAL from the Parish Court, parish of Ouachita. JR. J. Caldwell, Parish Judge.

      W. W. Farmer, District Attorney, and A. JL. Slack, District Attorney pro tern., for the State, appellant.

      Stubbs & Cobb, for defendant and appellee.
   Ludeling, C. J.

This is an action to enforce the collection of $170 for licenses for the year 1870, under the enumerations or classifications twentieth, twenty-first, twenty-second and twenty-third of section three of the act number 114 of the General Assembly of 1869.

The defense is that the portions of section three of the act aforesaid are unconstitutional.

The parts of section three referred to read as follows:

“There shall be levied and collected an annual amount as license, first,” etc:

Twentieth — From every dray, cart, one horse wagon, used for hire, ten dollars.

“Twenty-first — From every dray, wagon, truck or other vehicle, used for hauling lumber, produce or' material of any kind, drawn by two or more horses and used for hire, twenty dollars.

“ Twenty-second — From every public or private hack, or other vehicle drawn by one horse and used for hire, ten dollars.

Twenty-third — From every public carriage, stage or omnibus, drawn-by two or more horses, used for hire, twenty dollars. From each private carriage or buggy drawn by one horse, five dollars; and when drawn by two horses, teu dollars.”

It is contended by the defendant,that this is a direct and specific tax on the articles enumerated, while the attorney for the State insists-that it is a license for the exercise of an occuiiation or trade.

It is called a license at the beginning of section three, and that section is in that part of the law relating to persons, trades, professions and occupations subject to taxation. On the other hand, from the terms of the law the license is to be levied and collected from tlio ohjeets enumerated. But it is immaterial whether it be a specific tax, or tax on trades, occupations, etc. In either case it violates the constitution. It was no doubt intended to be a tax on occupations or trades. In that event it is a license for the right or privilege to pursue the several callings taxed, and the tax for this privilege must be the same for all persons who eDgage in the business, without reference to the amount of capital invested or business done. If A keeps one dray and B keeps two drays, they both follow the same occupation or business, and it would be unequal to tax one more than the other for1 the privilege of engaging in it. To do so would be not to tax the-business, but the drays owned by each.

We think, with the parish judge, that the evidence shows that defendant is following several different occupations; but wo are constrained to declare that the parts of section three of the act number 114 of the General Assembly of 1869, numbered twentieth, twenty-first, twenty-second and twenty-third, are unconstitutional, null and void. Art. 118, constitution.

It is thereforoi ordered and adjudged that the judgment of the parish court be affirmed.


author: Wyly, J. IIowell, J., Howe, J., Lcdegigg, C. J.,

text:
    No. 181.
    H. Ware & Son v. A. P. Morris.
    To constitute a salo there must be a consent to sell, that is, tlie vendor’s volition to sell and the vendee’s to buy must concur.

      A. document in tlie form of a sale, but shown by a counter letter to have been executed with no intention either on the part of one party to buy or of tho other to sell, can not be a» contract of sale.
    It may be lawful to secure a debt by an instrument in tho form of a contract of sale, but such an instrument is not in reality an act of sale, biit of pledge or hypothecation.
    "Where such an hypothecary right merely exists, an action .by the pretended vendee for tho land can not be maintained, nor will the pretended vendor be estopped from showing the merely hypothecary character of the contract by the fact that he had gone into bankruptcy without surrendering the land on which the right had been granted.
    APPEAL from the Fourteenth Judicial District Court, parish, of Morehouse.

      Pay, J. Newton <£ Hall, for plaintiffs and appellants.
    R. G. Parsons and J). 0. Morgan, for defendant and appellee.
   Wyly, J.

On the sixth day. of April, 1867, the plaintiffs and the defendant made a contract in the form, of a sale, in which, for the price of two thousand dollars, the defendant conveyed to the plaintiffs the plantation described in the petition, together “ with all the crops, stock, mules, horses, agricultural implements and all the buildings and improvements thereon.” On the same day they executed and signed the following counter letter, explaining the true intent and real object of said contract, to wit:

“ This agreement, made and entered into this sixth day of April, 1867, between Allen P. Morris, of-the parish of Morehouse, State of Louisiana, of the first part, and Henry Ware & Son, a commercial firm of the city of New Orleans, State of Louisiana, of the second part witnesseth: That whereas the said A. P. Morris has this day drawn a draft on. tho said H. Ware & Son dated this day and payable to his own order on tlie first day of January, 1863, for tho sum of twenty-two hundred and thirty dollars, and as security for the payment thereof has given to said H. Ware & Son a deed of certain land, by act passed before E. Gr. Wells, notary public for the city and parish of New Orleans. Now, this private agreement is made between, .tlie parties hereto of the first part and second part, viz: The said parties of tho second part are to accept the said draft of two thousand two hundred and thirty dollars and are also to discount tlie same or procure it to be discounted, for which they are to^he allowed and are to receive a commission of five per cent, and interest at the rate of eight per cent, per annum, and are to place the net proceeds of said draft to the credit of said A. P. Morris on their books, subject to liis order, and on the payment of said draft by said party of the first part, with interest after maturity at the rate of eight per cent, per annum, and the fulfillment of the obligations hereinafter entered into by the party of the first part, then the said parties of the second part are to reconvey to said A. P. Morris the land so sold by Mm to said parties of the second part, without further payment by him, the party of the first part, except the payment of drawing the necessary papers therefor and of the United States internal revenue stamps to be placed thereon; and the said party of the first part hereby binds and obligates himself to ship or cause to be shipped to said H. Ware & Son all the cotton raised during the current year on the two plantations in the parish of Morehouse known as the Rimes and Otterson places, which he is cultivating in connection with J. B.Nott and M. A. Bray, to be sold by said H. Ware & Son on commissions; and if the cotton so shipped during the current year does not amount to two hundred bales, then he is to allow to said H. Ware & Son commissions which, with the commissions on that which he does so ship, shall amount to a sum equal to what the commissions would be on two hundred bales of cotton, estimating four hundred and fifty pounds per bale and the price at the price at which middling cotton may be sold or quoted at in New Orleans on the first day of January, 1868, and the commissions to be two and one-half per cent, on that amount.

“ In witness whereof the said parties have hereunto set their hands and seals the day and year first above written.

[n. s.] “A. P. MORRIS,

[l. s.] . “II. WARE & SON,

“By H. WARE.”

Under the contract, as explained by the counter letter, the possession of the property continued in the defendant, Morris. The plaintiffs now bring this petitory action for the property and aver that they are tbe bona fide owners thereof by virtue of the said deed of the sixth ■day of April, 1867; they also claim the rent thereof from 1867, which is admitted to be worth one thousand dollars per annum.

The defendant pleaded the general denial and averred that no real •contract of sale was executed by him to the plaintiffs; that the act purporting to be a deed of conveyance was not intended to divest him -of the ownership of the property, but was executed merely as security for a certain draft drawn by the defendant for $2230, which the plain'tiffs were to accept and discount and place the proceeds to his credit, •they being his commission merchants; that the parties did not consider said contract a sale, but simply as evidencing a hypothecary right to secure the advances to be made by the plaintiffs to enable him to carry on his plantation and raise a crop of cotton, which was to be shipped to them and sold qn commission.

The court rejected the demand of the plaintiffs, and they have •appealed.

Looking to the “private agreement” or counter letter to see the true purpose of the parties, we have no difficulty in determining that there was no sale of the property described in the petition. If effect be given to. the recitals and stipulations of that instrument, the idea of a sale is utterly precluded. If Morris was selling his land and mules and stock and plantation implements, as the deed purports, in order to raise $2000 to buy plantation supplies, what was the. use of drawing the draft maturing on the first day of January, 1868, to be accepted by H. Ware & Son at the expense of five per cent, commissions and to be discounted at a further expense and the proceeds placed to his credit 9 Why raise money on such exorbitant terms ? Why incur these heavy charges and also bind himself to ship all his crops and guarantee II. Ware & Son in two and a half per cent, commissions to be derived from the proceeds of at least two hundred bales, whether he raised that number or not 1 Why pay three hundred dollars in commissions and discount, and also bind himself to give them commissions on $20,000 worth of cotton, merely to get $2000 in supplies, when that was already his, received as the price of the sale 1 Would a sensible or reasonable man sell property the rent of which is admitted to be worth $1000 per annum for the paltry sum of $2000, and then, in order to get the price, submit to discount and commissions amounting to $800 in the aggregate ?

What was the situation of Morris on the hypothesis of a sale 9 lie was bound as drawer of the draft which he gave H. Ware & Son five per cent, commission to accept, and he had neither land, mules, horses, stock, farming implements — none of the property described in the act of sale of the sixth of April, 1867. Assuming there was a sale what effect can be given to that clause of the counter letter which declares» “ that whereas the said A. P. Morris has this day drawn a draft on the said H. Ware & Son, dated this day and payable to-his own order on the first day of January, 1868, for the sum of two thousand two hundred and thirty dollars, and as security for the payment thereof has ■given to said H. Ware & Son a deed,’’ etc ?

If the proceeds of the draft to be accepted and discounted were intended to be given to Morris as the price of his property, where was any debt to be secured 9

If Morris continued to owe the debt which the counter letter says was intended to be secured, there was no sale. The seller gets the price and owes the buyer nothing for giving it to him. The property conveyed is deemed the equivalent for the price. Looking to the counter letter to learn the real purpose of the parties, we do not see ¡their consent to make a sale; there was not the concurrence of the seller’s will to sell and the buyer’s to buy a particular thing for a particular price. There can be no contract of sale where it appears, as in the counter letter before us, that the intention of the parties was neither to buy nor to sell, but rather to disguise another contract under the false appearance of the contract of sale. Pothier on Sale, paragraphs 31,38.

We had occasion to examine this subject very fully in the case of Calderwood v. Calderwood, lately decided, where there was disguised irnder the form of sale a contract of pledge or antichresis, which was discovered only in the counter letter.

Here a hypothecary right is given under the false appearance of a contract of sale, possession being retained by the ostensible vendor.

No doubt it is lawful to secure a debt under an apparent act of sale, but it is nevertheless a pledge or hypothecary right which really vsubsists between the parties, concealed, however, behind the false appearance of the contract of sale. In such a case the title never passes; the real contract may be a pledge or a mortgage — the apparent one a sale.

The reason a mortgage or pledge may be good under the form of a sale is, the latter combines all the rights of perfect ownership, and this necessarily embraces hypothecary rights of every description, and also possession. As every right appertaining to the thing is conveyed in the contract of sale, there is no reason why the conveyance of the hypothecary right embraced in that instrument should be lost, merely because it is made to appear that the owner did not intend to pass the other rights of property accompanying it in the act of sale. Wolf v. Wolf, 12 An. 529.

The real character and effect of a contract is determined from its constituent elements,‘and where it appears that the intention of the parties v'as not to sell nor to buy, as in the case before us, but merely to secure a time draft which the planter had given to his commission merchant to be discounted and the proceeds placed to his credit, by granting an hypothecary right upon liis plantation, the contract amounts to a mortgage notwithstanding it is clothed in the form of a sale

The character of the contract in this case is easily determined from the counter letter, where the real purpose of the parties is expressed. Between the parties the counter letter is as operative as if its recitals and stipulations had been expressed in the notarial act. We apprehend that if such had been done this suit would never have been instituted;, the purpose and object of the contract would have been too apparent for doubt.

But the plaintiffs contend that the defendant is estopped from disuniting their title to the property in controversy because, when subsequently becoming embarrassed and surrendering his property in bankruptcy, he did not surrender the property in dispute, and declared that he had disposed of it; that this amounts to a judicial admission that they are the owners thereof.

This is carrying the doctrine of estoppel too far, we apprehend. The moment the decree of bankruptcy is declared the bankrupt ceases to liave the right of disposition or to possess proprietary rights in the property belonging to him at that time. Even sales made by the bankrupt within four months of his bankruptcy are often avoided. Now if the plaintiffs were creditors of the defendant, with hypothecary rights upon the property in dispute, at the time he was declared a bankrupt, no act of Ms could defeat Ms creditors in the bankrupt court. Even if he had designed it, he could not have conferred any greater rights upon the plaintiffs than they already possessed. It was not in Ms power to do so.

If he was false to his oath, withholding the property in controversy from his hilan, and declaring he had disposed of it, it was the duty of the plaintiffs, as honest men, knowing its true situation, to step forward and disclose its true condition. They ought to have caused this valuable property, the rent of which is admitted to be worth $1000 per annum, to be placed on the schedule of the bankrupt, and ask for the two thousand dollars due them out of its proceeds. This was due to tlie other creditors who knew not of the counter letter, and it was also due to the plaintiffs themselves as honest men.

We have seen that the contract of the sixth day of April, 1867, did not divest the defendant of the ownership of the property, although it gave the plaintiffs an hypothecary right thereon to secure the payment of the draft which they accepted for him. Will it require serious argument to prove that the acts and declarations of a bankrupt can not divest him or his creditors of the property which he owns at the time he filos his schedule in bankruptcy? Surely not. If the surrender was the civil death of the bankrupt as to the property he owned at the time, fixing the status of his creditors in relation to his estate, surely no act of his thereafter could affect the succession or give creditors preferences or mortgage rights which they did not possess before it was opened. The rights of his creditors were as thoroughly fixed by this civil death as if it had been the natural death of the defendant.

We think the plaintiffs come with bad grace to claim, under their contract with the defendant, property yielding an annual revenue of one thousand for the paltry sum of two thousand dollars, or for merely indorsing his draft for that amount; and also that their title is not enhanced by the perjury and attempted fraud, if such there be, of the defendant while partaking of the advantages of the bankrupt act and seeking its relief from his embarrassments.

In Collins v. Pellerin, 5 An. 99, where certain cotton presses were sold by the defendant to the plaintiff for $1500, and possession retained by the vendor, it was held not to be a sale, because the counter letter showed that the act of sale was executed merely to secure the loan of $1500 made by Pellerin to Collins for twelve months from date, and on the default of the return of the money by the borrower within that period the sale was to be absolute and irrevokable.

In that case, involving the same principle, springing from a state of facts almost identical with the one before us, Chief Justice Eustis, as the organ of the court, remarked: “It is clear to us that the contract between the parties was not a sale with the power of redemption, but merely an hypothecary action. The sum of $1500, we think the eviT denee shows, was far less than the value of the objects, and the circumstance of the vendor’s remaining in possession we consider as a distinctive sigu of the real nature of the contract. The want of delivery of the thing sold by the vendor is held by civilians to be a badge of simulation, and as depriving the contract of the essential characteristics of a sale. Redeemable sales, unaccompanied by delivery of the thing sold, of which the considerations are inadequate, courts are bound to consider, without sufficient evidence to the contrary, us-contracts for which the thing nominally sold stands as security and nothing else.”

The contents of the counter letter we think authorize the conclusions, of the district judge.

Judgment affirmed.

IIowell, J.,

concurring. I concur with Mr. Justice Wyly that the-act of sale and counter letter, construed together, do not constitute and were not intended by the parties to be an actual sale, but merely to-secure the rights and interests of plaintiffs as the merchants and factors of defendant. The only difficulty in the case grows out of the-defendant’s admission on the trial that he did not place the property in controversy on his schedule in bankruptcy because he had disposed of it to the plaintiffs.

The record shows that he made his surrender after the institution of this suit, and it may be that he considered that under article 2453 R. C. C., which says “ the thing claimed as the property of the claimant can not be alienated pending the action so as to prejudice his right,’’' he was not authorized or justified in placing this property on his schedule, and that as the State court had jurisdiction of the question-of its title, it should there be settled. Be this as it may, I can not say that, under all the circumstances, the admission in the evidence (and uot in the pleadings) is such, an estoppel as will conclude his right to-make the defense set up in this case.

The admission, as contained' in the record, is not necessarily an admission of a sale, and if a construction can be placed on it other than such as must convict him of fraud, such a construction should be-adopted, as fraud is not presumed. The words “disposed of” may only have been used by him to mean such a disposition as shown in*, the pleadings herein, and to be settled in this suit.

The counter letter explains the disposition made of the property,. and we arc not informed wliat report lie made of it to the bankrupt court. What may be the effect, as to creditors, of his failure to place this property on his schedule, and what his duty was in making his surrender, are questions, in my opinion, not before this tribunal.

Howe, J.,

concurring. It is sometimes said that a sale may be made to secure a debt. I think the expression inexact. A contract in the form of a sale may be so made, but it is not a sale. It is an hypothecation of some sort, defined or innominate.

I concur in the decree affirming the judgment of the lower court.

Lcdegigg, C. J.,

dissenting. The plaintiffs sue for a tract of land, and produce as the muniment of their title a notarial act of sale, perfect in form. The defendant denies that a real contract of sale was made, and that it was never intended to divest the title of defendant by said act of sale. And my learned brothers assuming this to be true, hold that there was no sale for the want of consent. I say with due respect that they assume that the parties did not intend a sale, for, in my judgment, the record flatly contradicts the statement. In the notarial act of sale it is recited “that for and on the terms and conditions hereinafter set forth and expressed, he (A. P. Morris) does by these presents grant, bargain, sell, convey and assign, set over and deliver, with full warrantee, * * * unto II. Ware & Son * * * the following described property,” etc. The deed further recites that “said vendor declares that he is married, and that his wife is absent from the city of New Orleans j nevertheless he hereby binds and obligates himself to furnish the formal and ■ legal renunciation of all her rights of dower in and to the herein conveyed property, within thirty days from the execution of these presents,” etc. The act of renunciation was in due time passed, in which she renounced all rights to the property “conveyed.”

In the counter letter it is recited that “as security for the payment of a draft for $2000,” he “has given to said Ware & Son a deed of certain land by act passed before E. G. Wells, notary public for the city of New Orleans. Now, this private agreement is made between the parties of the first and second part, viz: The said parties of'the second part are to accept the said draft of $2030, and are also to discount the same or procure it to be discounted, for which they are to be allowed and are allowed to receive a commission of five per centum and interest at the rate of eight per centum, and are to place the net proceeds of said draft to the credit of said Morris, on their books subject to his order, and on the payment of said draft by said party of the first part, with interest after maturity at the rate of eight per cent. per annum, and the fulfillment of the obligations hereinafter entered into by the party of the first part, then the parties of the second part are to reconvey to the said A. P. Morris the land so sold by him to said parties of the second part, without further payment by the party of the first part, except the payment of the expenses of drawing the necessary papers,” etc.

This language, to me, is as unambiguous as it is possible to make it. A. P. Morris sells the land for the price stipulated; it is immaterial whether that was the $2000 stipulated in the notarial act, or only the net proceeds of the draft accepted by Ware. & Son and discounted, as stipulated in the counter letter, and the said vendor reserved to himself the right to redeem the property on the terms stipulated in the counter letter. Whether these obligations assumed by the vendor in the counter letter should be discharged or not, depended upon the choice of the vendor. They depended upon a potestative condition only, and Ware & Son could not have enforced them against the will of A. P. Morris. This was the contract made by the parties; it was the law unto themselves, and this court has not the right, though it has the power, to make a now contract for them. C. C. 1945. But if there be any ambiguity in the- contract, construing the public and private acts together, the deed must bo construed against the defendant, because it is only as a sale that the contract of the parties can have any legal effect.

“When a clause is susceptible of two interpretations, it must be understood in that in which it may have some effect, rather than in a sense which would render it nug ,tory.” C. C. 1951.

If it was not a sale it afforded no security to Ware & Son for the acceptance or advance of $2000.

It is nota mortgage, very surely, which is “a right granted toa creditor over property of the debtor for the security of his debt, and gives him the power of having the property seized and sold in default of payment. C. C. 3278, 3279, 3280. It is equally certain that it is not an antichresis, which is a pledge of real property. C. C. 3133, 3134, 3135.

The defendant’s counsel call it an hypothecary right. I know of no such right except it flows from a mortgage, or, perhaps, the antichresis. But article 1956 of the Civil Code informs us that “when the intent of the parties is doubtful, the construction put upon it by the manner in which it has been executed by both, or by one with the express or implied assent of the other, furnishes a rule for its interpretation.”

The record shows that the defendant did not pay the draft, nor did he ship his cotton as stipulated in the counter letter. But that he went into bankruptcy, and in that proceeding he admitted judicially and under oath that he did not own the property in question by not placing this property on the schedule of his property surrendered, and during the progress of the trial of the present suit he admitted that lie had not surrendered this property in hankiuptey, “because he had previously disposed of it to the plaintiffs.” Can there be a doubt after this that it was the intention of the vendor to sell and of the purchaser to buy the property? To do so we must suppose that the defendant perjured himself, when he gave in under oath a list of his property to the register in bankruptcy, and that he falsified the truth when he admitted that he had previously disposed of the property to the plaintiffs. It is the part of charity to believe his statements were true, and especially when the acts in question themselves corroborate his statements.

It is asked, why did Morris draw his draft for $2030, and agree to pay five per cent, per annum interest thereon, if the contract were a ■sale ? The answer is obvious. Because he reserved the right to himself to redeem the property, and in that event he was to pay the draft with interest and commissions and perform the other obligations assumed in the counter letter. Because the bargain was a hard one for defendants, is no reason for us, in this suit, to abrogate it. There is no question of lesion or usury in this case, nor is there any question of the sanity of the defendant. The question is simply do the two acts already referred to constitute a sale or not? I have no doubt of it, and I know of no law which would authorize this court to annul it •except for lesion, if that were proved, and proper pleadings and parties had been made for that purpose. “ Judges should be astute in furtherance of right, and the moans of recovering it.” If the plaintiffs can not recover in this suit, I know of no means by which they can secure their debt. I therefore dissent.

Tauxatteruo, J. I concur in the dissenting opinion delivered by the Chief Justice in this case.


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    No. 212.
    John T. Ludeling v. S. Boozman and J. B. Fluker, Administrator.
    An acknowledgment of a promissory note may lie proved Tby parol testimony so as to interrupt tlie current of prescription.
    APPEAL from the Fourteenth Judicial District Court, parish of Morehouse.

      Say, J. JD. O. Morgan, for plaintiff and appellee.

      Todd & Srigham, for defendants and appellants.
   Howe, J.

This is an action on a promissory- note, and the defendants, who have appealed, make but one point here — tho prescription of Jive years. The note matured in 1859, and citation was served in this case in 1867.

The plaintiff testified that the defendant Boozman acknowledged the debt in 1862, again in 1864, and again in 1866, and these statements are fortified by a reference to events which would be likely to fix the dates-approximately in the memory of the witness.

The defendants attempt to criticise the accuracy of these dates; but it is only necessary to remark that even if the events did not occur at •the exact times mentioned by plaintiff, but at the times fixed by defendants, yet acknowledgments made at the times fixed by defendants would constitute a chain of interruptions which would have prevented prescription from being acquired.

One of the defendants attempts to contradict the testimony of thelilaintiff on the question of acknowledgment, but his attempt does not appear to be very successful. We may add that he set up in the court below the defense of want of consideration of the note, attempted to prove it by his own testimony, and then abandoned it. He also filed a purely frivolous exception, which is also abandoned. It can not be-expected that such tactics will inspire the court with much respect for the sincerity and good faith of a litigant; but, on the contrary, they must operate against him in case of a conflict of testimony. On the whole, 'we do not think the judge a quo erred in his estimate of the-, weight of proof.

Judgment affirmed.

Ludeling, C. J., recused.


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    No. 201.
    G. S. Mayo et als. v. L. G. Duke, Curator.
    The duty imposed on curators of vacant estates by article 1134 It. C. C., of inaldug publication in two newspapers in the city of Hew Orleans of the death, the name, surname,, place of birth and death of the deceased, whoso succession ho administers, does not apply to or affect the right of the heirs to be recognized as such. If, therefore, this duty is omitted or neglected by the curator, the heirs may still be recognized by comptyiug with the requirements of tlio law in such cases.
    APPEAL from the Parish Court of Catahoula. JL B. Taliaferro,. Parish Judge.

      Richardson <& Boatner, for plaintiffs and aprjellants..
    J1 F. Hughes, for curator.
   Howell, J.

The plaintiffs ask to he recognized as tlio heirs of William Burns, deceased, aud that the defendant as curator be ordered to-render au account of his curatorship and pay to them such sums as may he due to them as heirs. The answer is a general denial and a> special denial that plaintiffs are in any way entitled to the property of William Burns, deceased.

The judge a quo refused to recognize them as heirs on the ground that the curator had not complied with the requirements of article-1134 R. C. C., which directs curators within a certain time to make-publication in two newspapers in New Orleans of the death, the name, surname, place of birth and death, etc., of the deceased whose succession he administers, if the heirs do not appear in person or by attorney.

We think the learned judge made a misapplication of this provision of law. It certainly imposes a duty on the curator, hut the observance or non-observance of it is not intended to affect the right of heirs to apply to be recognized as such. This they have a right to do at any time upon certain conditions and formalities required of themselves and not of the curator. R. C. C. 1192-1194; C. P. 997-1005.

In this case the evidence is satisfactory that the plaintiffs are the only heirs of the deceased, William Burns, whose succession is administered by the defendant, and under article 1193 R. C. C., and articlo 1003 C. P., they must, under the allegations of their petition, be' recognized as such, and the curator ordered to render an account to them and pay.

It is therefore ordered that the judgment appealed from be reversed, and that the plaintiffs be recognized as the heirs of William Burns, deceased, and the defendant ordered to render to them, within thirty days from the date of filing this decree in the lower court, a faithful and exact account of his administration and pay over to them the amount due them according to law.

Mr. Justice Taliaferro took no part in this decision.


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    No. 232.
    Hodge Rabun v. L. Cage, Administrator.
    Evidence tending to show that the plaintiff admitted, that the defendant or his agent had settled or liquidated the indebtedness, or the greater portion thereof, is admissible under the general issue.
    If evidence has been offered and received on a former trial, the plaintiff can not urge that ho is taken by surprise if it be offered again. Nor can tho defendant urge such objection in case the plaintiff has offered evidence which has boon received on tho former trial. Tho rule applies with equal force to both plaintiff and defendant.
    APPEAL from the Eleventh Judicial District Court, parish of Jackson.

      J. F. Pierson, attorney at law, Judge ad hoc.

      J. & J. W. Toimg, for plaintiff and appellee.

      J. FI. FLamlette, John Pay and Kidd cG Smith, for defendant and appellant.
   This case was tried hy a jury in the court below.

Ludeling, C. J.

This case was before us in 1869, and we then remanded it because we thought the evidence in support of the claim against an estate unsatisfactory, when taken in connection with tho evidence of the defendant, tending to show that plaintiff had admitted that the balance due him was about $1500.

On the second trial the defendant offered J. Y. Allen to prove that shortly before the death of Cage, plaintiff, who had come to see Cage to have a settlement, said that Cage had had ninety-eight hales of cotton belonging to plaintiff; that Cage had sold it for about $10,000, and that that would make “them very near even, possibly lacking $1000.” And defendant also offered C. W. Allen to prove that soon after the death of Cage, Rabun, when speaking of the situation of the pecuniary relations existing between himself and Cage, stated ■deceased and he were about even. This testimony was objected to on the ground “that it was irrelevant, illegal and for the purpose of establishing a fact not alleged in the pleadings, and also for the purpose of impeaching the testimony of Hodge Rabun without having laid a basis therefor.” The objection was sustained on the ground that “the evidence tended to prove extinguishment [of the oblr ations] without pleading it,” and the defendant took a bill of exceptions.

The answer was a general denial and a plea in reconvention.

The suit is for an account on the part oí Cage as agent for Rabun, and tor money loaned him. The testimony tended to show that plaintiff had admitted that the agent had accounted for or liquidated the claims for money received tor the cotton and loans, except a comparatively small portion thereof, and it should have been received. Evidence of the same declarations had been received on the former trial, and therefore the plaintiff could not pretend to be taken by surprise.

The evidence offered by the plaintiff to prove that Cage had sold cotLon belonging to plaintiff, and that he had not accounted for it, was objected to on the ground that the allegations of the petition did not justify the proof that they sued for the price of the cotton sold to Cage, and not for an account.

The rule is elementary that the proof must correspond to the allegations. And it can not be denied that the pleadings in this case are inartistic. But one of the most valuable features of our systein of jurisprudence is the simplicity with which parties are permitted to biing their rights beiore the tribunals of justice. The technicalities which in other countries embarrass and obstruct the progress oí justice are unknown to it. All it requires is that each party shall so state his grounds of attack or defense that the adversary shall not be taken unawares, and that the judgment which may be rendered will enable him, for or against whom it has been given, to protect himself by the plea r£S judicata. These are the only objects to be obtained by pleading.

It is manifest that the defendant could not have been surprised by the evidence which had been received on a farmer trial, and it is evident a judgment in the case would be a bar to any other action for an account for the proceeds of the cotton. 5 An. 531; Frierson v. Erwin, 10 An. 528; 12 An. 795, Lowry v. McCoy.

As we can not weigh the evidence of J. Y. Allen and C. W. Allen, which is not before us, we are constrained to remand this case again.

It is therefore ordered that this case be remanded to the lower court • to be tried anew, in conformity to the views herein expressed, and that the plaintiff and appellee pay costs of this appeal.


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    No. 262.
    State of Louisiana v. Martin Tally.
    Tlio jury, in a verdict of manslaughter, have nothing to do with fixing the punishment. [Evidence which goes only to the mitigation of punishment, and is conceded not to constitute any legal excuse, is therefore irrelevant and not admissible.
    The jury are the judges of the law aud the facts, hut when sitting on the trial of a criminal cause, they should talc© the law ns given them by the judge. The jury may, however* disregard the construction of the law as given by the judge.
    APPEAL from the Tenth Judicial District Court, parish of Caddo,

      I/si’isee, J. James 8. Ashton, district, attorney, lor the State.

      James W. Ikencan, J. 0. Moncwre and A. IF. O. Hieles, tor defendant and appellant.
   Howe, J.

The defendant was indicted for murder, found guilty of manslaughter and sentenced accordingly, and has appealed.

We will examine the points in the order in which they are presented in the appellant’s biief. He contends:

First — That the judge a quo erred in not permitting tlie defendant to prove how the killing oí F. W. Tally, the lather ot the de.endant, by O’Neal, whom the defendant killed, occurred, the State having admitted that O’Neal had killed said F. W. Tally.

The judge excluded the testimony on the ground that the killing of defendant’s father by O’Neal in August, 1870, could lurn sh no legal excuse tor the killing of O’Neal by defendant in April, 1871. We do-not thiuk the judge erred; and, indeed, we do uot understand the defendant as ela ming here that tlie iacts offered to bo shown, if shownj could do anything more than go to the alleviation of punishment. But the jury in this case have iound a verdict of manslaughter, and for the practical purposes of this case we must look at the offer of proof from the point ot view of this verdict-. Now, in manslaughter the jury-have nothing to do w th fixing the time of imprisonment, and therefore any evidence which goes to a mitigation of punishment only, and. is conceded to constitute no legal excuse, is irrelevant before the jury.

Second — That die court erred “in excluding the dying declarations of F. W. Tally, the lather of defendant, offered for the purpose of showing the influences under which the defendant acted in killing-O’Neal, and as producing in his mmd the belief that his father was. murdered by O’Neal.”

The judge excluded the testimony for the reason that it had adready been shown that F. W. Tally was killed by O’Neal on tlie sixteenth August, 1870, and the killing in this case took place on the eighth day of April, 1871, and the suggestions of the dying man to hi,s son could! not, under such circumstances, constitute any excuse after so long a delay, if at all.

The answer we have given to the first point is an answer to this, and ' we do not think the judge erred.

Third — That the judge erred, while discussing with counsel the admissibility of the testimony thus offered, “in characterizing the killing of O’Neal as a murder.” The judge in the bill of exceptions says in reference to this point: “The court referred necessarily to the specific facts by way of stating its reasons in ruling a question ot evidence raised by defendant, and they were necessary.” We take this statement of the judge as true, and with his explanation we tail to perceive any error. The conclusion from the whole hill is, that the judge declared that the fact that O’Neal was a murderer would not justify his murder, a proposition of law, tho enunciation of which could afford the appellant no ground of complaint.

Fourth — That the judge erred in his charge to the jury in reference to their being judges of both law and facts. We may here remark that we can not notice the affidavits which appear annexed to the record relating to ihe disputed question as to what the judge charged on this point. Nor can we pass upon the hill of exceptions found at page five of the record, which refers to a paper which appears to be lost, and without which the bill is incomprehensible. Nor can we notice the reqnest to charge on this subject at page nineteen, which Avas refused, as the appellant took no exception to such refusal. We find, howeve'r, at page twenty, that the judge charged the jury “that they Avere judges of the law and fact, but they are expected to receive the law as given them by the judge.”

We see no error in the charge aboAre quoted. The jury are judges of the law and fact, hut the judge is required to give them a knowledge of the law applicable to the caso. R. S. § 991. It would be a vain thing for him to give them this knowledge if they Avere.hot to receive it. On the contrary, they are expected, and ought, as a rule, to receive it, though they are under no compulsion to do so. State v. Ballerio, 11 An. 81; State v. Scott, 11 An. 429; State v. Scott, 12 An. 386; 17 An. 71.

Fifth — “ That the court erred in permitting the jury, in their retirement to consider of their verdict, to have in tlieir room Wharton’s Criminal Law to consult in relation to their verdict.”

The facts implied in this proposition are not certified to us in such a way that we can apply the law to them. The judge refused to sign a bill of exceptions in Avhich they were recited, and the only bill in which they are alluded to is one taken to such refusal. The appellant, who has taken no steps to compel the judge to certify the facts in the proper form, can not complain. But we deem it not improper to remark that we see no force in the point, if it be presented.

Sixth — “That the court erred in refusing to grant a new trial after it was discovered that the written charge of the court, prepared at the request of defendant’s counsel, had been lost, as well as the charge given at the request of the district attorney and excepted to.”

We do not find any such, reason given in tlie motion for a new trial 'in tlie record, nor anything to show that the document was lost at the time the motion was heard, or that the matter was ever brought in any way to the attention of the district judge as a reason for a new trial ■or in any other view. We can not say, therefore, that he erred, for ■this reason, in refusing the motion for a new trial.

Judgment affirmed.

Rehearing refused.