text:
    No. 864.
    B. M. Johnson vs. Mrs. Julia Mayer et. al.
    It is not an inconsistency in pleading, in a direct action to annul, to allege that a sale is simulated, and ii not simulated that it is fraudulent.
    A pretended sale by an insolvent debtor to one of his creditors, will be set aside on the petition of any other creditor.
    APPEAL from the Tenth Judicial District Court, parish of Caddo. Bowman, J.

      T. Alexander and N. C. Blanchard for plaintiff and appellant.

      Land & Taylor for defendants and appellees.
   The opinion of the court was delivered by

Spencer, J.

This is a direct action brought by plaintiff against Mrs. Julia Baer (wife of Mayer), and her vendees, L. Bodenheimer and Mrs. Marx Baer, in which plaintiff charges that he is a judgment creditor of Julia Baer — that she was insolvent on the 11th December, 1874 — that on that day she executed what purported to be two acts of sale ; one of a house and lot in Shreveport, to L. Bodenheimer, and one of sixty-acre tract of land to Mrs. Marx Baer.

He charges that these “pretended sales were and are fraudulent simulations and shams, entered into by said parties respectively to defraud the creditors of said Julia Baer, etc. That said Julia Baer never delivered said property to said pretended purchasers, but has continued in possession of the same herself all the time — that the pretended consideration of said sales has never been paid, etc.” He further alleges “ that if said pretended sales had any reality or substance at all — which is denied — they were separately and collectively acts done in fraud of petitioner’s rights, knowingly and willfully by the parties thereto, etc.” “ That if said Bodenheimer and Mrs. Marx Baer were creditors,” the said acts gave them a fraudulent preference, etc. He prays that said property be decreed to belong to his debtor, and that said acts be annulled and avoided in so far as they affect him, etc.

Defendants, Mrs. Mayer and Bodenheimer, filed an exception of misjoinder, in this, that they could not be joined as co-defendants with Mrs. Marx Baer. This exception was manifestly not well taken so far as Mrs. Mayer, the vendor, was concerned — she was necessarily joined with her vendees as defendant. Indeed, we see no legal objection to the joinder of Bodenheimer and Mrs. Marx Baer as co-defendants, since they are charged with conspiring with the debtor to defraud her creditors. Williams vs. Hawthorne, 14 A. 625. But whether this be so or-not, it is unnecessary to decide, since before trial of the exception the-plaintiff dismissed his suit as to Mrs. Marx Baer. Bodenheimer has no right to complain of this, since it left him precisely where he claimed a right to be, i. e., to test his title separately and on its own merits.

The next plea filed by defendants was one to compel plaintiff to elect, between the two grounds of his demand, to wit: simulation and fraud,. on the ground that they are inconsistent. We have quoted the substance of plaintiff’s allegations. We see no inconsistency in saying that-a sale is simulated, and if not simulated, that it is fraudulent. It is very like claiming a right by two titles. It has been held not inconsistent pleading to claim to be owner of a thing, and if not owner a privileged creditor on it.

When sales are attacked by a direct action, there is no reason why the party may not demand relief from them by alleging simulation or fraud, or both. We are not disposed to hamper the remedies of creditors, who resort to direct actions, by doubtful technicalities. In the class of cases now under consideration, the widest latitude should be given them, for they are necessarily to a great degree uninformed as to the precise relation existing between their debtor and his coadjutors in wrong-doing — often they are compelled to strike in the dark. If the purchaser’s title is an honest one, it is better for him that the double test be applied in one, instead of two suits. Little ground is there for him to complain, when he is called upon by citation and petition to verify the truth and reality of his title. The prayer of plaintiff’s petition is broad ■enough, to cover our decree, whether we hold the sale to be simulated or -fraudulent.

Under the view we have taken of the merits of this ease, the plea of ■prescription bacomes immaterial, since "we think that there is rarely found in judicial proceedings a clearer, bolder simulation than is disclosed by this record.

We find the facts to be as follows Leopold Baer, a merchant of ¡Shreveport, died during the epidemic, in September, 1873. He left considerable property — real and personal — a stock of goods, and credits. He made his wife, Mrs. Julia Baer (now Mayer), defendant herein, his sole heir and universal legatee. The will was probated, and by order of court she was put into absolute and unconditional possession. From -that time she treated all the effects of the succession as her own — disposed of the goods, and collected the assets. -There were large debts ■outstanding against the estate for which she became liable, and several of them were put into judgment against her — among them that of plaintiff. The personal property all disappeared, and there were only three ■pieces of real property, to wit: the dwelling sold to Bodenheimer, the tract of land sold to Mrs. Marx Baer, and a store in Shreveport — the latter incumbered by special mortgages fully up to its value. The defendants’ counsel admit the existence of debts to amount of over $13,000 on 11th December, 1874 We think evidence shows a greater sum'. The only tangible property shown was the three pieces of real estate. The evidence satisfies us that after the depreciation in property took place in consequence of the epidemic and other causes in 1873 the debts exceeded considerably the property available for their payment.- Mrs. Julia Baer was insolvent. On the 11th December, 1874, by public act she sold her residence to Bodenheimer for $2400 — acknowledging one •third cash, and notes at one and two years for the balance, with interest; •she retains no mortgage or privilege. On same day she sold the sixty acres of land to her sister-in-law, represented by her husband, Marx Baer, for $1500 cash. The store, as we have said, was deeply mortgaged, -and afterward sold out for little over- half the mortgage debt.

Bodenhei-mer was a witness to the act of sale to Mrs. Marx Baer, was the intimate friend of the deceased, Leopold Baer, who was a mer■chant in good standing before his death in 1873. Bodenheimer was the partner of Levy, who, after L. Baer’s death, acted as agent and adviser ■of the widow, till her remarriage with Mayer. Mrs. Julia Baer, the vend- or of Bodenheimer, was living in the house at the time of the’ sale, and has ever since continued to live in it. She was not sworn as a witness. Bodenheimer was. He swears that the sale was bona fide. That the ■cash payment of $800 was the amount of a debt due him by L. Baer ■since 1869, for which he never took or had any written evidence. That ■he has never paid either of the notes given for the price. That he rented the house to his vendor at $30 a month ever since he purchased it, but-has never collected or demanded the rent up to date of his testimony,, over three years after he acquired the property. He says he paid the taxes and insurance on it; and he intended to have the rents credited on his notes. This in one place he assigns as a- reason for not paying-them, leaving the inference that his vendor was to take the price out in rents. In another place he says he did not pay them because there was a suit against him for about ten feet of the lot. That suit was preceded, by a trespass upon this property. The claimant tore down and moved a division fence. Before doing so he sent a messenger to Bodenheimer informing him of his intention, and asking him to come and see about it. Bodenheimer replied that “ he had nothing to do with it.” Mrs. Julia-. Baer, the occupant, protested violently against a man who would thus: “ possess himself of a widow woman’s property,” and said “ go and see Mr. Bodenheimer, he is the agent of my affairs.” The old adage is, “ in-vino veritas.” The same is true of anger. These are small and apparently trifling circumstances, when weighed against the high-sounding-periods of an authentic act. But straws are better indicators of the course of the wind than are the marble columns of some imposing temple. It is at unguarded moments that truth eludes the vigilance of fraud' and exposes it to detection. “ Trifles light as air” may become “ confirmations strong as proofs of Holy Writ.”

When we group all the facts of this case together — the insolvency of the debtor — the relations of intimate friendship between the parties— the stale debt (of more than doubtful existence) which is made to fill the role of cash payment — the continued possession of the vendor — the lease, with no payments of rent — the non-payment of any part of the-notes given for the price — the indifference of the purchaser as to improvements made upon the property, and as to a very flagrant trespass-upon it — the indignant ■ assertion of ownership by the vendor in a moment of forgetfulness — who can doubt, especially in the face of the legal presumptions of articles 2480 and 3556, No. 25, that this whole transaction is a bold and fraudulent simulation, gotten up and concocted for-the purpose of defrauding the creditors of Mrs. Julia Baer ? We do not doubt it, and shall so decree.

It is therefore ordered, adjudged, and decreed that the judgment-appealed from be avoided and reversed, and it is now decreed that the-sale made by Mrs. Julia Baer to Lazarus Bodenheimer, of the property described in plaintiff’s petition of date December 11th, 1874, be and the-same is declared a fraudulent simulation, and null and void, and that-the same is liable and subject to plaintiff’s judgment and mortgage.

It is further decreed that defendants pay costs of both courts, except, those incurred in the lower court by process against Mrs. Marx Baer.


source: Caselaw Access Project

author: DeBlanc, J.

license: Public Domain

text:
    No. 862.
    M. L. Scovel vs. V. M. Gill.
    He who contends that he is exonerated from an obligation on which he is sued, must prove the payment, or the fact which has extinguished the obligation.
    The possession by the creditor of property of his debtor, with the latter’s consent, for the purpose of paying himself out of its hire, is an acknowledgment of the debt which interrupts prescription.
    ÁPPEAL from the Tenth Judicial District Court, parish of Caddo. Boarman, J.

      Wise & Herndon for plaintiff and appellant.

      Win. A. Seay for defendant and appellee.
   The opinion of the court was delivered by

DeBlanc, J.

On the 15th of June 1872, J. L. Gill, acting as defendant’s agent, subscribed and endorsed two notes of each $833.33¿ c., payable to the order of his principal, one on the 1st of February, the other on the first of April 1873. Those notes passed into plaintiff’s possession, and — according to the allegations of his petition — before maturity and for a valid consideration.

The defence is that Y. H. Gill delivered to plaintiff his steamboat “ Flavilla,” to be run by him until enough money should be realized to liquidate the notes sued upon and other debts, and that her earnings were sufficient for the purpose,

In this Court, the prescription of five years is pleaded in bar of plaintiff’s action on the note which matured on the 1st of February 1873, and — unless its course has been interrupted — that plea must prevail, the citation in this case having been served on defendant on the 23d of March 1878.

The consideration of the notes, and the power of J. L. Gill to draw and endorse them are not disputed, and the questions presented are: ■

1. Did the earnings of the Flavilla suffice to pay those notes, and—

J. L. Gill, who is a brother of defendant, swore — on the trial — and we, here, transcribe his own words — that “ he had turned over the steamer Flavilla to' the plaintiff, to be run by him in the upper river trade, as he himself knew nothing of that trade. The understanding and agreement between them was that the earnings of the boat were to go to the payment of its indebtedness, and that — in said indebtedness— the notes sued on were included. Under that agreement, the boat was in defendant’s possession for about three months, and — under his management — made four trips, the gross earnings of which J. L. Gill estimates at over twelve thousand dollars. This estimate is based, partly on alleged admissions of the plaintiff and partly on conjectural calculations. He never — he said — leased the boat to Sale & Murphy.

Captain Scovel swore that he had no dealing with either J. L. or V. H. Gill, that the steamer Elavilla was turned over to him by Sale' & Murphy, to be — as it was — run for exclusively their account, that they paid the salaries-of the officers of the boat and other bills due by it, and received all its earnings. He did not render the settlement asked by J. L. Gill, for the reason that he had not been employed by him, but by Sale & Murphy, who advanced him fifteen hundred dollars, to settle for wages already due to the crew, when he took charge of the boat: its earnings were not sufficient to pay the current expenses and the money so .advanced. The boat sunk twice and they had to pay damages for the injury done to the- cotton on those occasions, but he did not state how much was paid.

J. L. Gill swore that he did not know whore Captain Scovel got the money with which he paid the crew. A member of the firm of Sale & Murphy swore that J. L. Gill agreed with them that — if they would furnish the money to pay the crew — they would be the agents of the Boat, Scovel would go on it as captain, and that — -out of its earnings — their advance, if made, would b'e the first paid. They made the advance, employed Scovel as captain at a fixed and stipulated salary ; a satisfactory statement of every trip was given to them by the Clerk ; that the season was bad and they did not get their money back.

What became of the statements which N. W. Murphy said had been regularly made to them by the Clerk of the Boat and which were satisfactory to them ? Are they still in existence ? Have they been entered on any book ? Are they or the book accessible ? Those statements would have been proper substitutes for the conjectures which fill this record.

Can we base our decree on plaintiff’s declaration as to the amount of what was received for freight — not by him — but by the firm of Sale & Murphy — -whilst the boat was under the control of the latter, as agents of Gill ? What did he declare ? That, when he took charge of the Elavilla, it was owing over three thousand dollars; their first trip up was light; he did not recollect what it amounted to, but thought it may have been from five to eight hundred dollars ; on another trip, which he also states to be the first, and which — we presume — was its return from the upper river, they brought’ out 1025 bales of cotton, on which their share of charges received was three thousand and seventy-five dollars ; they, thereafter carried to Shreveport a load of nine hundred bales, at from $2.50 to $6 by bale to New Orleans. How many at $2.50 and how many at $6, we are not informed. This cotton was reshipped to New Orleans at $1.50 per bale. After this, they made another trip ; had on board a considerable freight, the charges on which he estimates at from $2500 to $3000, but .the boat sunk, a good deal of that freight was lost and no charge paid. On their trip from Hood’s landing to Shreveport, they brought fifty bales, and- — from upper Bed Biver to Bargeton — five hundred. The costs of transportation on these two lots is not mentioned.

From the evidence adduced on the trial, we believe that the profits realized from the several trips did not exceed.................$7600 00 That, not including the damages which may have been paid for freight injured and lost, the expenses of the boat were at least.................................................... 6231 98

leaving a balance of.........................'...............$1368 02, less than required to satisfy the claim of Sale & Murphy, and that claim — it was expressly agreed — was the first to be paid out of the earnings of the Flavilla. The declarations of Murphy and Seovel that the steamer did not make enough to pay its current expenses and the claim of Sale & Murphy stand uncontradieted and contradict the plea of payment, which is not supported by the evidence.

“He, who contends that he is exonerated, must prove the payment or the fact which has produced the extinction of the obligation,” and this defendant has failed to do. C. C. 2232 (2229). Had those notes been paid, would he have left them in plaintiff’s possession, without even demanding their return or their cancellation ? That is highly improbable.

We think — as held by the district judge — that J. L. Gill, in giving the notes and in endeavoring to effect a settlement with Seovel in regard to said notes, was acting as the duly authorized agent of his brother, and — in that capacity — he acknowledged his brother’s indebtedness, and promised that it would be satisfied out of funds which he expected to recover from a suit then pending at New Orleans.- Not only did he, by words, acknowledge that indebtedness, but he did so by an act to which he himself has testified : in February 1873, when the first of the notes sued upon became due, he placed plaintiff in possession of the steamer Flavilla, for the purpose of securing the payment of those notes and of another claim, and that possession — which—in law and in fact — was a standing acknowledgment — continued until the latter part of April of that year. In Montgomery et al vs. Levistones, this Court held that “ the possession by the creditor of property of his debtor, with the consent of the latter, for the purpose of paying himself out of its hire, is an acknowledgment of the debt which interrupts prescription.” 8. A. 145. 2. Troplong, Nos. 534, 618. C. C. 3461 (3424).

In this case, prescription was suspended from the first of February until the last day of the month of April, 1873, and had not been acquired when, citation was served on the defendant. Under these circumstances»the plea of prescription can not be maintained.

It is, therefore, ordered, adjudged and decreed that the judgment of the lower court is annulled, avoided and reversed, and, proceeding to-render such judgment as should have been rendered below,

It is further ordered, adjudged and decreed that plaintiff — M. L. Scovel — do have judgment against the defendant — V. H. Gill — and recover of him the sum of sixteen hundred and sixty-six dollars and sixty-six and two-thirds cents, with interest thereon at the rate of eight per cent per annum, as follows : on one half of said sum from the first of February eighteen hundred and seventy-three, and on the balance from the first of April of the same year — (1873).

It is lastly ordered that the costs of the lower court and of the appeal be paid by defendant.


author: Spencer, J.

text:
    No. 858.
    G. M. Bayly & Pond vs. Stacey & Poland.
    Parties who have made a composition under the bankrupt act with their creditors, retain the right to sue in their own names, for whatever maybe due them.
    Where a defendant alleges as aground of defense, error, overcharges, and payment, and sets up a claim in reconvention on the basis of those allegations, he must set them forth with such particularity as to put the plaintiff on his guard, before he will be allowed to introduce evidence in proof of them.
    Replications, under our law. are not admissible, and all the allegations of an answer are open to any objections of law or fact.
    Pleas in reconvention reauire no service, and need not be put at issue by answer or default.
    In the absence of a written agreement by the defendant to pay eight per cent per annum interest, only legal interest can be recovered.
    APPEAL from the Tenth Judicial District Court, «parish of Caddo, Boorman, J.,

      T. F. Bell for plaintiffs and appellees.

      Nutt & Leonard for defendants and appellants.
   The opinion of the court was delivered by

Spencer, J.

Plaintiffs sue defendants -on account of certain debts paid for them and for goods sold, as shown by account annexed to petition.

Defendants excepted to plaintiffs’ right to sue, alleging that plaintiffs had become bankrupt, and were no longer authorized to collect the assets of Bayly & Pond.

This exception was not well taken. The evidence shows that plaintiffs did make a surrender, but entered into a composition with their creditors under the amendment of the bankrupt act, the effect of- which left them in possession and control of their assets for the purposes of collection. '

The [answer is a general denial, admission of the signatures of the drafts sued' on, but with special averments that they had done business with plaintiffs for some ten years; that on a fair settlement of accounts, said plaintiffe owe respondents a large sum, at least $5000, for this:. that said plaintiffs charged respondents in said accounts interest at ■twelve per cent per annum, and even higher, when only ñve per cent should have been charged; and, further, that in rendering accounts from time to time plaintiffs brought forward incorrect balances by charging in different accounts the same items and by making incorrect and improper charges against respondents, and by failing to give respondents credits to which they are entitled. They pray that plaintiffs’ demands, be rejected, and for judgment in reconvention for $5000. Plaintiffs filed an answer to this demand in reconvention, generally denying the same* and pleading prescription of one year.

On trial plaintiffs fully proved that the drafts sued upon represented the balance due by defendants to plaintiffs on a full settlement between them made June 12, 1875, and that the invoices of goods sold and sued for were true and correct, and interest computed at eight percent.

Defendants tendered or offered in evidence proofs which they declared were intended to prove the errors, payments over, charges, etc.,, alleged by them and their claim in reconvention.

To this plaintiffs objected on the grounds : That the allegations of error, overcharges, credits, etc., made in the answer, were too vague- and indefinite to admit of proof, and that any such defenses, based upon transactions prior to the settlement of June 12,1875, must be set. out with particularity and distinctness. The court sustained these objections (so far as relates to matters prior to June 12,1875), and defendants excepted. The court did not err. When one pleads error, payment, and the like, he must set them forth with such particularity as will put his opponent on his guard ; and a demand in reconvention must be made with the same specificness and certainty as that of a plaintiff.. This the answer of defendants did not do. It deals in generalities of the broadest kind, and does not disclose the particulars of the alleged errors, payments, etc., nor their dates, amounts, or ether circumstance..

But the defendant contends that plaintiffs answered his reconventional demand without excepting to its generality, or to want of certainty in pleas of payment, error, etc., and thereby waived all right to object to evidence in support of them. He cites the case of Ludeling vsFrellsen, 4 A. 534, in support of this proposition. That was a case where the plaintiff in injunction alleged that she was entitled to a specific sum as credit on the execution enjoined, but did not specify the date or manner of payment. The defendant in his answer specially traversed and denied this allegation, and “ expressly averred that all money ever paid * * * to your respondents was appropriated by your respondents according to express directions, etc.” The court held that these .special denials and averments by the defendant prevented his objection to evidence by plaintiff to prove the alleged payment.

But the present case is a very different one. Replications in our law •are not admissible, and all the allegations of the answer are open to any objection of law and fact. 3 N. S. 622, 687; 8 N. S. 141; 1 R. 335; 9 R. .504 ; 12 R. 648 ; 13 A. 412.

Pleas in reconvention require no service and need not be put at issue by answer or default. 1 L. 266; 2 L. 285; 3 L. 100 ; 10 A. 105.

The “ general denial ” filed by plaintiffs to defendants’ reconvention •was mere surplusage, and did not alter the attitude of the parties.

As we have said, pleas of payment, error, fraud in the answer, must 'be set out with reasonable certainty; as must also demands in compensation and reeonvention; and if not so pleaded can not be proved if objected to. 2 N. S. 84; 5 N. S. 18 ; 6 L. 75 ; 11 R. 347; 4 A. 381.

Instead of moving to strike out or excepting to such defective pleading, “ a more regular way is to permit the parties to go to trial, and reject on objection of opposite party any evidence to sustain them.” Jonau vs. Ferrand, 3 R. 364.

It is fully shown that the defendants received regularly from plain•tiffs statements of their accounts, had a full settlement on June 12,1875, and made no objections thereto until threatened with suit.

We have in this record as late as September 7,1875, a month after the last invoices sued upon, letter of the defendants to plaintiffs protesting their ability and determination to pay plaintiffs all they owed them, and especially the drafts sued upon. We see no error in plaintiffs’ claim ■since June 12,1875, sued upon. Our inquiry is confined to that.

We think, however, in the absence of written agreement to pay eight per cent interest the court below erred in awarding it. In this respect •the judgment should be amended.

It is therefore ordered and decreed that the judgment appealed from be amended by reducing the rate of interest allowed therein from eight to five per cent, and that as thus amended said judgment be affirmed ; •appellees paying costs of appeal.


text:
    No. 857.
    A. H. Van Loan vs. Wm. Heffner, Sheriff.
    One who claims a privilege on certain property has no right, merely on the ground of his having a privilege, to enjoin the foreclosure of a mortgage on the property.
    A building contractor who fails to record his contract, acauires no privilege on the-building, so far as third persons are concerned.
    Those are third persons to a contract who are not parties to it.
    APPEAL f-rom the Tenth Judicial District Court, parish of Caddo. Bowman, J.

      G. G. Henderson and J. W. Jones for plaintiff and appellant.

      W. H. Wise for defendant and appellee.
   The opinion of the court was delivered by

Spencer, J.

The assignees of the Southern Life Insurance Company caused the Shreveport University to be seized under &fi. fa. issued under a judgment for $22,500, in favor of said Insurance Company, which judgment recognized a special mortgage on said property.'

The plaintiff Yan Loan asks to enjoin that sale, on the ground that he has a superior lien and privilege on the property seized, as contractor and builder.

This allegation was no ground for injunction, which was of course wrongfully ordered to issue. His remedy was third opposition. He had no right to prevent the sale. This is elementary.

It appears that Yan Loan entered into a contract with the corporation known as the Shreveport University, on the éth day of December, 1872, whereby he agreed to make certain buildings on the property seized. He did the work, but never recorded his contract, which was one for several thousands of dollars. A few days after this contract, the Southern Life Insurance Company made a loan of money to the University Company, taking special mortgage to secure it on the property in question. A short time after, two other loans were made, secured by mortgage also. All these mortgages were duly recorded, The constitution of 1868 provides (Art. 123), “No mortgage or privilege shall hereafter affect third parties, unless recorded in the parish where the property to be affected is situated.” This provision has been carried into the Code of 1870, in even more emphatic terms, if possible.

The only question, therefore, open to controversy in this case is, Was the Southern Life Insurance Company of Memphis, Tenn., a third person ? The Civil Code, Art. 3556, No. 32, defines third persons, “ with respect to a contract or judgment,” as “ all who are not parties to it.” There is no pretense that the Insurance Company was a party to this building contract. It is said that Judge Egan, who acted as agent of the company under a special authority to accept the mortgage, must have known of this building contract, because the notary before whom it was passed was his law partner. Even if actual notice in such cases be equivalent to registry, this fact does not prove that notice, or that the Insurance Company was privy to it. No more does the asserted fact that Rev. Mr. Drain, who was the agent of the Insurance Company in negotiating this loan, knew or supposed that the money was to be used in building on the property. This belief or supposition would have rather led him to conclude there would be no builder’s lien, since the money was being provided to pay for the work. It is not stated iú the act of mortgage that such was the purpose of the loan.

The judgment below rejected plaintiff’s claim for priority, and recognized defendant’s mortgages as first in rank, but awarded no damages for the wrongful suing out of the injunction. We are asked to amend the judgment by allowing damages. We find in the record a petition, order, and bond for injunction, but no writ. Under these facts we decline to allow damages, as it may be that no writ issued.

Judgment appealed from is affirmed at cost of appellant.


text:
    No. 808.
    W. C. Martin vs. H. W. Kirkpatrick, Sheriff, et al.
    The homestead law of 1865 does not give to the family of a debtor any such rights in his property as will prevent him from making valid confessions of judgment on debts that are prescribed.
    Homestead laws exempting property from seizure and sale are wholly inoperative and void as to debts created before the passage of such laws.
    APPEAL from the'Eleventh Judicial District Court, parish of Claiborne. Graham, J.

      John 8. Young and George & Taylor for plaintiff and appellant.

      John Young for defendant and appellee.
   The opinion of the court was delivered by

Spencer, J.

On March 26,1872, R. L. Capus brought suit against W. €. Martin on two promissory notes, one for $380, due March 1,1861, and secured by special authentic mortgage on the lands hereinafter mentioned ; the other for $208 09 dated on and payable one day after February 7,1867. It is admitted that this last note was given as evidence of a pre-existing debt created prior to the homestead act of 1865. After defendant, Martin, had been cited he confessed judgment in writing on the back of the petition “for the principal of the notes; the judgment to be divided into five annual installments * * * * each installment to bear interest from their respective maturities,” etc. Judgment was entered up and signed October 23, 1872, reciting that “by rea«on of the law and evidence being in favor of plaintiff and against defendant, and by further reason of the confession of the defendant, it is ■ordered, etc.” The judgment is for the principal of the notes as provided in the confession, but with recognition of the mortgage securing the $380 note.

In February, 1877, no portion of this judgment having been paid, an execution was issued for the matured installments, and the sheriff seized 200 acres of the land embraced in the mortgage, the balance thereof having passed by deed to third persons.

Martin, thereupon, brought this suit; alleging “ that the rendition and signing of said judgment was procured by fraud and ill-practice on the part of Capus, and his attorneys, in this: that said suit was upon two promissory notes prescribed upon 'their face, etc., * * * one secured by special mortgage, which had- perempted,” etc. The substance of Martin’s attack on the judgment is that the mortgage was fraudulently procured to be recognized by the judgment, when it was not Intended or embraced in the agreement for the confession. The attack, both in the pleadings and proofs, is limited to the recognition of the mortgage.

Martin also enjoins the execution to the extent of 160 acres on a claim of homestead, under the act 1865.

Under the view we have taken it is matter of no moment whether the mortgage was or not properly recognized by the judgment, and we shall treat the judgment for the purposes of this ease simply as one in personam, rendered in 1872 upon debts existing prior to the homestead act of 1865. In that view the counsel of Martin argues :

1. That when this judgment was confessed in 1872 the notes sued on were prescribed on their face; and that the renunciation thereof resulting from Martin’s confession could not operate so as to impart to said notes the character of debts contracted prior to 1865, and thereby defeat -the right of homestead, an exemption created in the public interest for the benefit and protection of Martin’s family. In other words, so far as relates to this claim of homestead, said debts must be treated as of the date of the judgment in 1872. That Martin could not waive the homestead as it is said, was decided by a majority of this court in Hardin vs. Wolf, 29 A. p. 333. That as to this right of homestead the family of Martin are third parties, and Martin’s renunciation of prescription can not affect them.

2. It is further contended that if said judgment be considered only as an ordinary debt existing prior to the passage of the homestead act the latter is good against it.

1. As to the notes being prescribed at the date of the confession and judgment, that may or may not be true in fact. Prescription is only a means of extinguishing obligations, but must be pleaded to have that effect. A promissory note, since the maturity of which more than five years have run, is a valid, subsisting obligation, until prescription is pleaded against it by the debtor, or by his creditors if he be insolvent. Martin’s failing to plead prescription, his recognition and confession, simply continued in existence a pre-existing obligation. His right and power to do this is indubitable, so far as the act affected himself, his heirs, and legal representatives. But he could not do so to the prejudice of the rights of third persons acquired in the meantime. This brings us to the question whether Martin’s family occupy the position of third persons who had in 1865 acquired a right of homestead on Martin’s property. If so, he could not waive his right of pleading prescription to their prejudice.

Now, it has often been said that the homestead act is exceptional and in derogation of the general and universal rules of law, which make a man’s property liable for his debts ; that, therefore, it must be strictly construed, and can not be extended by implication.

When we turn to that act we find that its benefits can be invoked and claimed only “ by the debtor ” who occupies the land “ as a residence, and bona fide owns it, having a family, or mother, or father, or person or persons dependent upon him for support.” ;It is the debtor who is vested with this right. He alone c'an claim it and exercise it, upon the conditions stated. If it were the family in whom the right was vested, it would render the property subject to the right inalienable by the debtor, and the right could only be asserted in the name of those in whom it was vested.

2. The only remaining question is, Can the homestead act be pleaded against debts created prior to its passage ? This depends upon the question whether the act would, when so applied, impair the obligation of contracts ; and, therefore, whether it can be so enforced without violating the Constitution of the United States. This question has been finally and authoritatively settled by the Supreme Court of the United States, in a late opinion rendered at the October term, 1877, in the case of Edwards vs. Kearzy, and brought by writ of error from the Supreme Court of North Carolina.

By the constitution of North Carolina adopted in 1868, personal property to the value of $500, and real estate to the value of $1000, are exempted from seizure and sale “ under execution or other final process issued for the collection of any debt.” Edwards, subsequently to the going into effect of this constitution, obtained against the defendant three judgments upon debts created prior to the adoption of said constitution. The Supreme Court of North Carolina maintained the defendant’s homestead against the enforcement of these judgments, and the case was carried by writ of error to the Supreme Court of the United States, whose decision upon questions involving the interpretation of the Constitution of the United States commands our acquiescence. That opinion is elaborate and exhaustive, and the decree received the approval of all the judges. It holds that so far as relates to debts created before the adoption of the constitutional provision exempting a homestead said provision is inoperative and void, and forbidden by the Constitution of the United States, as impairing the obligation of contracts by destroying the remedy in material respects. “ The remedy,” says the Court, “subsisting in a State when and where a contract is made and is to be performed is a part of its obligation, and any subsequent law of the State which so affects that remedy as substantially to impair and lessen the value of the contract is forbidden by the Constitution, and is therefore void.”

We do not think this a proper case to inflict damages beyond that allowed by the lower court.

The judgment appealed from is affirmed with costs. '

DeBlanc, J. I do not concur in the opinion and decree of the Court, and reserve the right to hereafter file a dissenting opinion in this case.


author: Maer, J.

text:
    No. 802.
    State ex rel. New-Orleans Pacific Railroad Company vs. Francis T. Nicholls et al.
    "Where by an act of the Legislature bonds of the State are authorized to be issued and loaned to a eoi'poration, on condition that it shall pledge certain of its own mortgage bonds, payable forty years after their execution, to secure the State, the tender of bonds by the corporation, the payment of all of which is made exigible whenever there shall be a six-months default in the payment of the interest on any of said bonds, is not such a compliance with the law, as will authorize the corporation to demand the issue of the State bonds. The fact that the bonds of the corporation, tendered as a pledge, are dated before the passage of the law authorizing the loan, and that they are made payable, at the holder’s option, at another place in addition to that prescribed in the act, is immaterial.
    Where the act of the Legislature authorizing a loan of the State’s credit on the security of a certain mortgage, is silent as to the Question of the appraisement of the property covered by the mortgage, incase of its forced sale, it will be assumed that the Legislature designed that such a forced sale should only take place after the usual appraisement provided for by law.
    j^PPEAL from the Fifth District Court, parish of Orleans. Rogers, J.

      Kennard, Howe & Prentiss for plaintiff and appellant.

      J. C. Egan, Assistant Attorney General, and H. If. Ogden, Attorney General, for defendants and appellees.
   The opinion of the court was delivered by

Maer, J.

By act 68, of 1878, p. 105, the Legislature authorized and required the Governor to issue to the New-Orleans Pacific Railway Com•pany bonds of the State, to be signed by him and countersigned by the • Auditor and the Secretary of State, with the seal of the-State affixed, to an amount not exceeding two millions of dollars, to be for one thousand dollars each, having forty years to run, bearing interest at six per cent per annum, payable semi-annually, and having semi-annual coupons attached.

. ’ Section 2 of this act, as a guarantee for the prompt payment of the interest on these bonds, as it shall mature, and of the principal, on or before the expiration of the period during which they are to run, requires the railway company to deposit with the Auditor of Public Accounts, and to pledge to the State for that purpose its bonds, secured by first mortgage of all its property, real and personal, present and future, such deposit and pledge to exceed by one fourth, in each case, the amount of the State bonds delivered to the company.

“The said company, on resolution- of its board of directors, is authorized to make such a mortgage, and the same shall cover and ' affect as a first mortgage all property of said company, whether real or personal, present or future, now owned or hereafter acquired, and whether now constructed or hereafter constructed. The amount of bonds secured by said mortgage shall not exceed five millions of dollars, it being intended that one half of the same may be pledged to the State, as aforesaid, and the other half disposed of to other parties. The said mortgage bonds shall have forty years to run; shall bear interest at six per cent per annum; shall have semi-annual coupons attached, and said coupons shall fall due at or prior to the time at which the coupons of the said State bonds shall fall due; and the interest paid on its bonds by the company to the State as pledgee shall at once form a fund and be used to pay the interest on the State bonds which shall have been ■ issued to the company.

“ The said company shall further bind itself in said pledge to extinguish annually fifty thousand dollars of said State bonds, commencing live years after the completion of its line to Shreveport, and continue the extinguishment at such annual rate up to five years prior to the maturity of said State bonds; and during the last five years it shall, under the same pledge, agree to take up and extinguish one fifth each year of the amount of said State bonds then outstanding.”

Section 3 makes it the duty of the Auditor or other officer having custody of the mortgage bonds pledged by the company, when a sufficient sum is not provided by the company to meet a maturing coupon, to sell at public auction after ten days advertisement a sufficient amount of the mortgage bonds to pay such maturing coupon and the expenses of the sale.

Section 4 requires the issue of two hundred and fifty State bonds immediately on the going into effect of this act. Subsequent issues, up to the amount limited, are to be at the rate of ten thousand dollars per mile for every section of ten miles of the road graded, bridged, and metaled.

This act was approved eleventh March, 1878; and it went into effect from its passage: and, shortly after, the company demanded the bonds for $250,000. The Governor doubted the constitutionality of the act; •and the question was finally determined by this court, by a decree which declared the act to be not in violation of the constitution of th^ State. See the case, 30 An., not yet published.

On the first March, 1878, before the passage of this act, the company, by authority of a resolution of the board of directors, adopted on the sixteenth August, 1877, and of the acts of the Legislature, No. 14, of 1876, p. 28, and No. 12 of 1878, p. 37, confirming and amending the notarial charter, executed a first mortgage of all its property, real and personal, present and future, and its rights and franchises, to secure principal and interest of five thousand bonds, of one thousand dollars each, payable in New-Orleans or New York, at the option of holders, having forty years to run, bearing six per cent interest, payable semi-annually, with coupons attached, with waiver, in the act of mortgage, “ of the benefit of any extension, or stay, or appraisement laws now existing, or which may hereafter exist, in the States of Louisiana and Texas.”

By another clause in the act of mortgage it is expressly stipulated that “if the company, or its successors or assigns, shall, at anytime hereafter, after demand made, make default, or neglect, or refuse, or omit to pay the semi-annual interest on said bonds, or any of them, when the same shall become due, and if any such default shall continue for the period of six months, then, upon demand of any holder of any one or more of said bonds, the whole principal sum of each and all the bonds then outstanding, and intended to be hereby secured, shall forthwith become due, exigible, and payable.”

On the thirty-first May, shortly after the decision of this court de•claring the act of eleventh March, 1878, constitutional, the company tendered a notarial act pledging three hundred and thirteen of these bonds, and embodying the terms and conditions of section 2, of the act of eleventh March; and it demanded the issue and delivery of two hundred and fifty State bonds. The Governor was not satisfied with the terms and conditions of the bonds of the company and of the act of mortgage; and he declined to deliver the bonds of the State as demanded. Thereupon the company brought suit against the Governor, the Auditor, and the Secretary of State, to compel, by mandamus, compliance with its demand.

The answer alleges that the company has not complied with the obligations imposed upon it by law, conditions precedent to the delivery of the bonds of the State: “ Nor has the relator placed the State in the situation in which she is directed to be placed, by law, before any of the bonds authorized to be issued by act No. 68, of 1878, can be issued.

“ Respondents are public officers, with limited powers, acting under a special law, and are not authorized to vary from it, or exercise any discretionary power in the matter.”

Respondents specially object to the stipulation in the bonds making-them payable in New York at the option of holders; and to the clauses in the act of mortgage waiving the benefit of appraisement, and making the whole of the outstanding bonds due, exigible, and payable on the failure of the company to pay the interest due at any time for the space of six months: and they allege that “these variations from the law are of the most serious character, and will greatly injure the State, in view of the fact that the relators have disposed, or are authorized to dispose, to other persons than the State, of two millions and a half of similar bonds, secured by similar mortgage.”

The district court refused to grant the mandamus as prayed for, mainly' on the ground of want of authority to interfere with the discretion of the Governor; and the company appealed.

The Attorney General informs us, in his oral argument, that the Governor desires to make no question as to whether his power in reference to the issuing of these bonds is discretionary; nor as to the authority of the judicial tribunals to control him in the performance of his official duties. The Auditor and the Secretary of State, parties appellees, are charged with important functions with respect to the issuing of these bonds; and the judiciary has unquestioned power, in proper cases, to compel them to perform the ministerial duties absolutely required'of them, respectively, by law. We shall proceed, therefore, to consider the case, without reference to our authority to deal judicially with the-Governor, premising that judicial power is the creature of the law; and that it can not be enlarged by mere consent.

It is of no consequence that the bonds of the company, and the mortgage to secure them, are dated first March, 1878, anterior to the passage of the act of eleventh March, provided they meet the requirements of that act. By the acts of 1876, p. 28, and 1878, p. 37, and the resolution of the board of directors of sixteenth August, 1877, the company was fully authorized to issue its bonds to the amount of five millions, and to secure them by mortgage and pledge. Their validity is not. affected by the date; since the bonds are not obligatory, and the mort.gage and pledge are not operative until the bonds are actually issued. The terms of the mortgage are such that it secures any holder as effect■ually as if he had been an original contracting party, a mortgagee. It would not have been unwise for the company to have deferred the execution of the bonds and the mortgage until the act of eleventh March had become a law, in order to have made them in conformity with its terms and conditions.

Equally unimportant is it that the bonds are made payable in New 'Orleans or New York, at the option of holders, since their value as security to the State is in no manner thereby diminished, and their market value may be enhanced.

The serious question is whether the waiver of the benefit of appraisement, and the clause in the act of mortgage by which the whole of the outstanding bonds may become due and exigible at any time at the will of any holder of even one of them, by the failure of the company for six months to pay the interest due, impair the value of the ■security contemplated and required by the Legislature, as a pledge and /guarantee upon which the aid of the State is to be given to the company; whether these clauses in the act of mortgage are not a variation, ■a departure from the terms prescribed by the Legislature, by which the peril and liability of the State are increased beyond the risk which the Legislature intended and consented to incur.

The Legislature had the right to prescribe the terms and conditions, upon which the aid of the State should be granted to the company. A ■■gratuity, a donation to the company was not intended; and it was the •duty of the Legislature to see that the credit of the State, which it designed and consented to lend to the company, should be fully secured and protected. The mere reading of the act will show how carefully it ■seeks to accomplish this purpose. The amount of the first-mortgage bonds of the company is limited, and is small compared with the cost of -constructing the entire road; and one half only of those bonds is to be put upon the market, the other half to be reserved to be pledged to the State. These bonds are to have the same period to run as the bonds of -the State: they are to bear the same rate of interest, payable semi•■annually, at or prior to the time at which the interest on the State bonds will be exigible. When bonds of the State are issued to the company, the bonds of the company, for an amount exceeding by one fourth the amount of the State bonds so issued, are to be deposited with the Audit- or of Public Accounts, and be pledged to the State, secured by first ■mortgage on all the property of the company, present and future; and -to secure the State against the inconvenience of advancing even the semi-annual interest on its bonds, the officer of the State having the •custody of the pledged bonds of the company is required to sell, on short notice, a sufficient amount of them to make good any deficiency cr failure of the company to provide for the maturing coupons.

Again; the company is required to extinguish annually fifty thousand dollars of the bonds of the State, commencing five years after the-completion of the road to Shreveport; and, during the last five years of the running of the bonds, to extinguish, annually, one fifth of the remainder outstanding. It was not the intention of the Legislature to tax the overburdened people of the State by giving, or advancing temporarily, a single dollar to the company; and while it was deemed proper to aid the company in its great enterprise, the importance of which is-so manifest, by lending the credit of the State to secure the early completion of the road within the limits of the State, the terms and conditions upon which this assistance is to be granted are such that a compliance with them by the company would save the State from loss, or even inconvenience.

It must be assumed, as there is nothing in the act of eleventh March indicating a different purpose or intention, that the Legislature contemplated and designed that the mortgage and pledge should be, in all respects, in conformity with and should subject the property to the-existing laws of the State. By the existing laws the property of the debtor can not be sold for cash for less than two thirds of its value, as fixed by two sworn appraisers, one of whom may be selected by the-debtor, the other by the creditor. If two thirds of the appraised value-should not be bid, the property may be re-advertised and sold for whatever it will bring on twelve-months credit.

This is considered a wise regulation, since it prevents the sacrifice-of the property, and protects the creditor, who may not be able or willing to buy it for cash, against a sale which would be prejudicial to him by the insignificance of the price. The importance of this provision of the law can not be overestimated in this case, when it is considered in connection with the clause in the mortgage by which the entire mortgage debt may become due and payable, and the mortgaged property may be forced upon the market at any time, however unpropitious.

The clause by which the mortgage bonds may become due and exigible before the expiration of the forty years may be attributed to the difference between our law and the systems prevailing in the other States of the Union, with respect to the enforcement of mortgage rights ~ and to the fact that the.principal market for railway bonds is the great commercial emporium where our system is comparatively unknown. Under the system prevailing in the other States, generally, a mortgage-can not be foreclosed and the mortgaged property sold until the whole mortgage debt is due and exigible; and there is no doubt that the object of the company in inserting this clause was to enhance the market value of the disposable half of these bonds, by conforming to the usual stipulation in railway mortgages in the other States, by which the punetual payment of the interest is secured, under penalty of the immediate maturity of the entire mortgage debt, and the speedy foreclosure of the mortgage, and sale of the mortgaged property. No doubt this stipulation adds to the market value of the bonds; but the usual consequence is that the mortgaged property is sacrificed; and the holders of the bonds combine and become the owners of the property and franchises of the company.

Under our system it is not necessary for the mortgage creditor to wait until the entire mortgage debt is due. If any part of it be due he may proceed by executory process, without citation of the mortgagor, on an ex-parte order of the competent judge, in term or at chambers, under ' which the entire mortgaged property may be sold, within less than sixty days, for such sum in cash as will satisfy the matured debt, and the costs, and on terms of credit corresponding with the maturity of the remainder, which, to the extent of the price bid the purchaser, must assume and pay as it shall mature.

Under this system mortgage securities, having a long term to run, may not be so attractive to large dealers as they would be under a contract which would authorize any holder to have tne mortgaged property sold for cash, at any time, for the entire mortgage debt. But the State of Louisiana consented to advance its bonds to this company on terms and conditions which would be defeated by the maturing of the bonds of the company, and the forced sale of the mortgaged property for cash, at any time before the extinguishment of the bonds of the State. It was-not the object of the Legislature to enable holders to hasten the maturity of these bonds, nor to furnish the means of having the mortgaged property speedily sold for cash at whatever price. The entire purpose and design of the act of eleventh March was to provide a fund to meet punctually the current interest as it should accrue, and to insure the final payment and extinguishment of the two millions of accommodation bonds of the State having a period of forty years to run. The Legislature intended that the bonds of the State should be protected by the precise security prescribed in the act, leaving, that portion of the bonds of the company put upon the market to stand upon their own merits: and while the State could not avoid the risk of a sale of the whole of the mortgaged property to pay the entire mortgage debt, in the event of the failure of the company, at any time, to pay the semiannual interest, on the disposable half of the bonds, a sale in accordance with our law for cash to meet the matured part of the debt, and oh terms of credit corresponding with the part of the debt to mature, principal and interest, according to the tenor of the bonds, would be far less prejudicial to the State than a sale for cash without appraisement.

Under our system the rights of holders, especially those who seek permanent investments in mortgage securities, are better protected than they would be under a contract by which the entire mortgage debt may’ become due, on the failure of the mortgagor to pay the current interest as it matures, and the whole of the mortgaged property be sold for cash without appraisement. Such an accessory contract abrogates the principal contract as expressed on the face of the bonds; while our system respects the contract as thus expressed, and enforces it, as nearly as possible, by divesting the title and possession of the defaulting mortgagor, and subjecting the purchaser to his obligations, and making him pajunaster, to the extent of the price, in lieu of the original mortgngor. Under our system no express stipulation in the mortgage is necessary to enable the holder of any part of the mortgage debt to enforce the payment of whatever may be actually due, as well to himself as to other holders; and the mortgagor can not be crushed by the hastened maturity of the entire debt, which he contracted and intended to pay at the expiration of a long term.

It may be difficult, as urged by counsel for appellant, to negotiate the bonds of the company without a mortgage containing the clauses under consideration; but we can see no good reason for this, since our law affords every requisite facility for the enforcement of mortgage rights by process exceptional, speedy, and summary. It may be that these clauses are usual in railway mortgages of recent date in this and in' other States. Individuals and corporations contracting in their own right for tlreir own interest alone may make such stipulations and agreements as they think proper; and capitalists will judge and determine for themselves whether the security upon which they are invited to invest is satisfactory and such as they require. But those who contract with a sovereign State must submit to the terms which it chooses to prescribe; and when the Legislature, in an act so precise and minute in its details as that of eleventh March, 1878, declares the terms and conditions on which the State shall bind itself, there is no other department of the government that can change these terms and conditions, or undertake to say that any thing short of a strict compliance with them would meet and satisfy the requirements of the law.

The Legislature chose to require, for the security of the State, that the first-mortgage bonds of the company should have forty years to run, without qualification; and when the company agreed that these bonds, nominally having forty years to run, should, on failure to pay the interest, become immediately due and exigible, this was a qualification which the Legislature had not chosen to express in the act: which, for all that appears, was never submitted to the consideration of the Legislature; and to which the Legislature has not in any manner consented.

The officers whose duty it is, by the act of March 11, to execute and ■deliver to the company the bonds of the State for two millions have no power or authority to accept any other or different security than that required by the express terms of the act. The Governor, the Auditor, and the Secretary of State, defendants and appellees in this case, well said in their answer: “We are public officers, with limited powers, acting under a special law, not authorized to vary from it, or exercise any discretionary power in the matter.”

The judge of the district court did not err in refusing the mandamus; and the judgment appealed from is therefore affirmed with costs.


text:
    No. 788.
    McLear & Kendall vs. Succession of J. L. Hunsicker.
    The testimony of a party to a suit may be taken under commission, like that of any other witness.
    Payments made by a debtor without special instructions as to their imputation, will be imputed in accordance with the tacit agreement of the parties as disclosed by their dealings and correspondence.
    A debtor who receives, without objection, an account current from his creditor which imputes payments made by him to the less onerous part of his debt, is held to ratify by his silence the imputation of payment made in the account.
    APPEAL from the Fourteenth Judicial District Oourt, parish of Ouachita. Parsons, J.

      Franklin Garrett for plaintiffs and appellants.

      Frank P. Stubbs and W. W. Farmer for defendant.
   The opinion of the court was delivered by

Spencer, J.

This case was before us at the July term, 1877, and was remanded. See 29 A. p. 539.

It is a suit on four promissory notes, executed by the deceased, in favor of the plaintiffs, in the course of business between them — which course of business consisted in plaintiffs selling and furnishing to defendant carriages, wagons, etc., of their manufacture, from time to time as ordered by him, and remittances by defendant at like periods of sums of money in payment. Plaintiffs, from October, 1868, when these transactions began, to the close thereof, sold and shipped defendant goods of the character stated to an amount of nearly $7000, as shown by the accounts and proofs in this case. Defendant was to pay for goods at four months time, and for some of these invoices and in settlement of account he executed the notes in question, to wit: one for $821, due February 10-13, 1869 ; one for $899, due March 12-15,1869 ; one for $510, due June 11-14, 1872, and one for $500, due March 7-10, 1873. These notes so given, save and except the first one, at no time equaled the amount due plaintiffs on account; crediting them on the account, there always existed considerable and sometimes large balances due plaintiffs.

There is no room, under the evidence in this case, to doubt that plaintiffs furnished every dollar of the goods charged in their accounts ; nor is there more doubt as to the amounts of money remitted by the defendant, as payments of his indebtedness. The whole transaction is laid bare by the correspondence between the parties, and the other proofs in the record. The only real contest is that as to the imputation of these payments; plaintiffs contending that they should be made to the open or book account, and defendant’s administratrix that they should be-made to the notes. Plaintiffs sue on the notes, and defendant pleads payment. We may here remark tbat we do not think defendant’s bill of' exceptions to the depositions of plaintiffs as witnesses in their own behalf, taken under commission, is well taken. The law makes them competent witnesses, and we know no rule which excludes them from the-right to take their own testimony like that of other witnesses. When witnesses reside out of the parish, their evidence may be taken under commission. The law does not except parties to the suit.

There can be no doubt of the correctness of the proposition, that in the absence of an agreement, or of circumstances indicating a contrary intention, payments should be imputed, on debts due, rather than on those not due ; and of debts due, to those most onerous in preference to those less onerous. It is equally well settled that, as a general proposition, notes create a more onerous debt than open accounts.

It only remains for us to examine how -far those principles-have been varied in this case by the agreement's or consents of parties expressed or implied from the circumstances and course of dealing between them.

The correspondence between these parties shows that the $500 remitted by Hunsicker, and received by plaintiffs on February 22,1869, was applied as a payment on the $821 note. It is so expressly stated by plaintiffs in their letter of that date, signed by their clerk, McG-raw, and in which they urge their debtor to send forward the balance, $321, and $5 41 protest fees. Plaintiffs say in their testimony this letter was unauthorized by them ; but on the 18th March following the firm itself writes to Hunsicker, urging him to remit the balance, $326 41, due on that note.

On February 24th, 1870, plaintiffs write Hunsicker an urgent letter, saying his debt to them exceeds $4000, and that he must at once remit them at least $3000. On April 13th, 1870, they send him a statement of' his account showing on first April a balance against him on “ book account” of $3256 41. They add memorandum of the note for $899, and of a separate account of Kendall, for harness bought for Hunsicker, $284, showing, therefore, a total indebtedness of $4439 41. On June 24th, 1870, Hunsieker acknowledges receipt of the account, and makes earnest, •protestations of his wishes and anxiety to pay. In this statement of the “ book account ” the note for $821 is charged to Hunsieker and the $500 above referred to is credited. But the $899 note does not figure in it,, but is added as a memorandum at the bottom. Hunsicker’s credits by “ cash ” on this book account amount to $2250, and the last item thereof is $200, on 2d March, 1870. By this account this sum of $2250 was imputed to Hunsicker’s “ book account,” into which had been carried his note for $821. As we have seen, he received this account and made-no objection to the application of the payments. This amounted to a-consent on his part.

On August 1st, 1871, plaintiffs furnished Hunsieker another statement of accounts, which is a mere continuation of that of April 1st, 1870, and on which they credit him with additional “cash” remittances amounting to $1050, and also with a note (of one Ealk, we presume,) for $200. The $899 note is not charged in this account, but is again added as a memorandum below the “ balance on the book account.” Hun-sicker’s letter of August 21st, 1871, shows that he received this statement of accounts also, for he says, “you sent me a statement some time-back, but I have mislaid it. Please send me another, and I will try again, and see whether I can not get you some money together.” H^re-again by the tacit consent of Hunsieker these $1050 were imputed to the “ book account.”

Plaintiffs’Tetters of July 15, and November 21, and December 10, 1872, show receipts of $450 in money, which they applied, as they state, as follows : $250 on the $510 note and $200 to the Ealk note, which they returned to Hunsieker.

The only other payments made which can be imputed to the notes are as follows : $150 on March 17th, 1873, and $100 on March 24th, 1873, as shown by receipts of those dates, in which it is specified that these-payments are on account of notes.

In Hunsicker’s letter of date April 30th, 1873 — only a short time before his death — he clearly recognizes that plaintiffs are the holders of more than one of his notes which were due and unpaid. In the face of that letter, and of the proofs in this record, it can not be affirmed that plaintiffs are seeking to defraud his estate. Under the terms of that-letter and of the facts detailed above it would be exceedingly inequitable, as well as contrary to the proofs, to impute all his payments to his notes. We hold, therefore, that the payments must be imputed.to the accounts-between the parties, except in so far as the facts and circumstances indicate expressly a different intention ; for we think the payments were to be so imputed, by the tacit agreement of the parties, as disclosed by their dealings and correspondence referred to. The first note for $821 we think has been extinguished by payment and merger into account. The note for $510 is entitled to a credit of $250, of date say July 15th, 1872, and to the other note for $899, being oldest, we will impute the payments of $150 of date March 17th, 1873, and $100 of date March 24th, 1873 — -reserving plaintiffs’ rights to claim any amounts that may be due -on open or book account by suit hereafter.

It is therefore ordered, adjudged, and decreed that the judgment ■appealed from be amended so as to read as follows: “ That plaintiffs, McLear & Kendall, do have and recover of the succession of Jay L. Hunsicker, deceased, the sum of ($899) eight hundred and ninety-nine ■dollars, with eight per cent interest thereon from fifteenth day of March, 1869, subject to credits of ($150) one hundred and fifty dollars, as of date 17th March, 1873, and of one hundred dollars, as of date 24th March, 1873. That they also recover the further sum of five hundred ■and ten dollars with six per cent interest from 14th June, 1872, subject to a credit of two hundred and fifty dollars, as of date July 15th, 1872. That they also recover the further sum of five hundred dollars with six per cent interest from 10th day of March, 1873, together with all costs ■of. suit. And it is further ordered that plaintiffs’ right to sue for any amount due them on “book account” bo reserved, and that defendant pay the costs of this appeal.

Rehearing refused.


text:
    No. 809.
    R. G. Cobb, Curator, vs. T. P. Richardson, Sheriff, et al.

      A valid and legal decree of a parish court can not be arrested at the instance of the judgment dobtor, by an injunction issuing from any other court.
    The clork of the parish court in which a succession is being administered has authority to issue a ft. fa. for the soizure and sale of any property of the succession, previously sold on a twelve-months bond, and not paid for, without regard to its value.
    ■On the dissolution of an injunction issued at the instance of a curator ad hoc, damages will not bo allowed against the absent plaintiff; nor against the curator representing him, when it appears that the curator acted conscientiously.
    ^PPEAL from the Fourteenth Judicial District Court. Parsons, J.

      Cobb & Guuby for plaintiff and appellant.

      B. W. c6 B. Bichardson for defendants and appellees.
   The opinion of the court was delivered by

Spencer, J.

Under an order and decree of the parish court of Ouachita, rendered on application of the administratrix of the estate of Rofenschen, a house and lot (with other property) of said estate was sold, on second offering, at twelve-months credit, for $830, to D. F. Conover & Co., who, conformably to law, executed their twelve-months bond therefor, with R. G. Cobb and A. A. Gunby as sureties, and with special mortgage on the property.

The administratrix rendered her account and tableau of said estate, carrying thereon one T. N. Conor as á creditor paid by her to amount of $831 17 ; and charges herself with the proceeds of the sales of the property as cash. This account and tableau were duly homologated.

Said bond not being paid, execution was issued thereon by the parish, court, on December 10th, 1877. The principals on said bond being absentees, R. G. Cobb, one of their original attorneys, was appointed curator acl hoc and attorney, to represent them in the executory proceeding on the bond. The sheriff, under the H. fa., seized and advertised the mortgaged property, and gave the notices required to the curatcr. On the day of sale R. G. Cobb, curator of Conover & Co., applied to the district court and obtained an injunction against this proceeding on the following grounds:

1. The parish court issuing the writ is without jurisdiction raiione material, the amount of the writ and the value of the property sought to be sold being over $500.

'2. That the succession of Bofenschen had been settled anterior to the issuance of the writ, the administratrix discharged, and no succession existed in which an order could be issued by the parish court.

3. The parish court had no power or jurisdiction to appoint a curator ad hoc in a proceeding against D. F. Conover & Co.

4. That the parish court had no power to order the issuance of an execution on a twelve-months bond for an amount exceeding $500, and that the document upon which the writ enjoined was issued in this case was not a twelve-months bond as contemplated by Articles 719 and 720 C. P.

5. That there was no such proceeding on the docket of either the parish or district court of Ouachita, or other court, entitled estate of C. L. B. Bofenschen vs. D. F. Conover & Co. et al., and no writ of fieri facias can issue without the existence of such suit or proceeding, and on a judgment therein.

He prays for citation of the sheriff, of the legal representative of said estate, or other person claiming ownership of said bond. The sheriff, the administratrix, and T. N. Conor (to which last it seems said bond had been transferred in satisfaction of his judgment and claim against the estate of Bofenschen) appeared, and moved to dismiss the injunction with damages, for the reason that the district court had no jurisdiction, and was without authority to enjoin an execution issued by the parish court. This motion was sustained, the injunction dissolved, and suit dismissed without damages. Plaintiffs appeal, and defendants have prayed for an amendment of judgment as to damages.

If the writ was issued in this case by the parish court, under a legal and valid decree of that court, it is clear that the defendant in said writ ■can not enjoin it in any other court, whatever might be the rights of a third person, not connected with the writ, to do so. O. P. 617, 639 ; 11 A. 525 ; 4 R. 57 ; 12 R. 531 ; 18 A. 339.

There can be no doubt of the jurisdiction and authority of the parish court to decree and direct the probate sale of the property of successions; Constitution, Art. 87. Article 990 of the Code of Practice prescribes the mode and manner of executing these decrees, by directing that if on first offering the property does not sell, it shall be re-offered for what it will bring on twelve-months credit; “ provided, however, * * * the purchaser shall give a twelve-months bond, * * * such bond to have force and effect as a twelve-months’ bond taken in sales under writs of fieri facias, and the collection of such twelve-months bonds shall be ■enforced in the same manner as twelve-months bonds taken under Arts. 719 and 720 O. P. upon execution issued upon such twelve-months bonds by the cleric of the court which issued the order for sale of the property, and such clerks are hereby authorized and required to issue such executions on the demand of any person having legal right to control such bond.”

It is manifest, therefore, that the bond in question was taken in strict conformity to law, and in execution óf a lawful, valid, and constitutional decree of the parish court. The taking of said bond was but one step, one link, in the process of carrying into execution the said decree — just as the issuance of the commission to sell, the advertisement, the sale, wore so many successive acts in execution of it. It was not, and is not, fully executed until the money is realized; for to sell a thing is .to exchange it for money. So the execution issued on that bond is but another and further act in execution of the original decree of sale rendered by the parish court; and that court, being the court which rendered the decree, was the only court that could issue the process necessary to its execution. C. P. 617, 639 ; 11 A. 525.

If that court had jurisdiction and authority to render the decree, it necessarily had the authority to execute it, as'an incident, and regardless of the question of amount, just as if, in the settlement of the accounts of an administrator, tutor, or executor, it should decree him indebted to thé estate for more than $500, it could issue process to enforce its payment, or do any other act to make effective its orders. See 29 A. 506 ; Tertrou vs. Durand.

Taking execution on this twelve-months bond is not the institution of a suit, and has none of the characteristics of a suit. It is simply the ultimate execution of the decree directing the sale, the reduction into money of the property of the estate ; and it is not true to argue as do plaintiff’s counsel “that there is no judgment,” which serves as a basis ■for this bond and theji. fa. issued thereon.

The exception or motion of defendants was not to dismiss on the face of the papers. It was that the court was without jurisdiction, that the ft. fa. enjoined had issued from the parish court, and that the district court had no authority to enjoin it. On trial of this motion or ex■ception evidence was properly offered and admitted to show the truth of these allegations.

Holding the views we do, there can be no question of the right of the clerk to issue the ft. fa. In fact, Article 990 O. P. expressly provides that It shall be issued “ by the clerk of the court which issued the orders for sale of the property.”

The defendant has asked us to amend the judgment, by allowing the highest rate of damages, but we do not think it would be proper to do •so. The plaintiffs are represented here, and appear, only by a curator ad hoc, who was, we think, properly appointed to represent the absent defendants in execution. We can not inflict damages on B. G. Cobb personally, because he is not plaintiff in injunction, and besides we are not disposed to hold to personal responsibility officers of court who we must presume are without interest and acting conscientiously.

The judgment appealed from is affirmed, at costs of appellant in both courts.

On Application por Behearing.

The defendants ask a rehearing of this cause on the question of damages.

We have carefully reconsidered the views expresed by us in our opinion in this case, and see no reason to change them.

We have grave doubts as to the authority of a curator ad hoc, as such, to take out an injunction for and in the name of an absentee. He is not under bond for his faithful administration of the particular affair with which he is charged; and to hold the absentee or his property bound for damages resulting from the illegal acts of one who, in reality, has no mission or authority derived from him whom he represents, and who is not under bond to indemnify his principal, would be, we think, ■going further than our courts have ever gone. It has been held that a minor can not be held liable in damages for the tortious suing out of an injunction in his name by the tutor.

But it does not follow that because the damages can not be recovered of the minor or absentee in such cases that the injured party is without remedy, for he would have his separate action in damages against the wrongdoer, and perhaps against his sureties. But, as we said, this redress can not be had in the injunction suit, for the party is not before the court in his individual capacity.

The rehearing is refused.


author: Marr, J.

text:
    No. 789.
    Lola Blanton vs. John T. Ludeling et al.
    The alleged owner of property which has been sold at a tax-sale ean not maintain an action for its recovery, until he has tendered to the purchaser at the tax-sale the price paid by the latter, and which was applied to the payment of the taxes and costs due by the owner.
    APPEAL from the Fourteenth Judicial District Court, parish of Ouachita. Parsons, J.

      Cobb & Gunby for plaintiff and appellee.

      John T. Ludeling and John H. Dinlcgrave for defendants and appellants.
   The opinion of the court was delivered by

Marr, J.

The object of this suit is to have rescinded certain tax sales and the tax titles, under which defendants hold the land in controversy, and to have plaintiff declared to be the owner.

Plaintiff claims title under a deed, under private signature, the consideration of which is ten dollars, made by the assignee in bankruptcy of O. M. and W. C. Blanton, of the State of Mississippi, one of whom is the father, the other is the uncle of plaintiff. One of them was adjudicated a bankrupt, on a petition filed 28th February, 1868, the other on a petition filed láth December, 1868. The deed to Lola Blanton was dated 20th October, 1875.

The tax sales under which Ludeling purchased, and defendants claim, were on the 7th March, 1868, for Parish and State taxes, and on 16th May, 1868, for State taxes, due by the heirs of John Blanton, under whom plaintiff derives title.

Several exceptions were filed by defendants, one of which is fatal to this action; and that is : “ That no offer or tender has been made to the said Ludeling of the amounts paid by him at the tax sales at which it is alleged in the petition he acquired titles, and which sums were applied to the payment of the taxes and costs due by the owner or owners of said lands ; and that this is a condition precedent to the institution of a suit like the present.”

We incline to the opinion that ten dollars can not be regarded as a serious price for a tract of land such as that claimed by plaintiff, containing 335 acres. We very much question the right of an assignee in bankruptcy to dispose of the property of the bankrupts at private sale, without a previous order of the court. We think that, at the time this sale purports to have been made, in October, 1875, about six years after the right of action accrued to the assignee, he had no available right or claim against defendant’s claiming and holding adversely; and that his deed to plaintiff vested no greater right in her than the assignee himself had.

We think it proper also to premise, that the surrender in bankruptcy by one of the Blantons a few days before the first tax sale, and of the other Blanton several months after the last tax sale, were no obstacle to the sales. The twenty-eighth section of the Bankrupt Act, last clause, is as follows: “ Always provided: That nothing contained in this act shall interfere with the assessment and collection of taxes by the authority of the United States or any State.”

We think that when Bolton was appointed assignee of O. M. Blanton, on the 17th November, 1868, and of W. 0. Blanton, on the 19th April, 1869, the title of the bankrupts to the property in question had been, apparently and prima facie, divested by the tax sales made in March and May, 1868, which the State of Louisiana, in the exercise of her sovereign power, had a right to make, without regard to the bankruptcy of the owners ; and all that was left to their assignee was the right of redemption within the time and on the terms prescribed by the laws of the State; or, at his option, a right of action to recover the property for illegality in the tax sales, a right which was barred absolutely by the lapse of two years. We prefer, however, to place our decision upon the exception alone, which is no longer an open question.

In Daquin vs. Coiron, 6 N. S. 684, it was declared to be settled jurisprudence that where the property of minors was sold to pay debts of their ancestors, from whom they derived, they can "not recover on the ground of informality in the proceedings, without repaying the money which has been applied to their benefit.

This doctrine has been recognized and enforced in numerous cases, in which it was decided that the offer to return the consideration received is a condition precedent to the right of action to rescind a sale or a contract. Janin vs. Franklin, 4 La. 198 ; Bassett vs. Ballard, 19 La. 281; Stockton vs. Downey, 6 A. 581; Chambers vs. Wortham, 7 A. 113.

In Brown vs. Bouny, 30 A. 171, the mortgagor died, and the mortgagee proceeded via executiva, in ignorance of her death. The sale, the whole proceeding, was void; but the money was applied to the payment of the mortgage debt. The heir of the mortgagor sued to recover the property. This court recognized the doctrine as announced in Coiron vs. Daquin, and the subsequent cases cited above, and said: “No court, under the facts disclosed by this record, would give the plaintiff this property, without first requiring him to make restitution; and when this want of restitution or offer of restitution was set up, by way of exception, the court properly maintained it.”

In Barrow vs. Lapène, 30 A. 310, this doctrine is again and fully recognized. Plaintiff sued to recover his property sold for taxes; and he alleged that no taxes were due, because he had paid them himself. The exceptions were want of tender, and no cause of action. No proof was offered on the trial of these exceptions, and this court decided that the exceptions were not well taken, because there was nothing in the record to show that defendant was entitled to re-imbursement.

The amount of taxes paid by Ludeling, in this case, appears by the tax deeds and other evidence in the cause. These taxes were a lien on the land, binding the owners, and those claiming under them; and the restitution of this amount, or the offer to restore was a condition precedent to the right of action to annul the tax titles, and to recover the property. The district judge erred, therefore, in not maintaining this exception, and dismissing the suit.

The judgment appealed from is therefore annulled, avoided, and reversed; and it is now ordered, adjudged, and decreed that the exception number three, of want of tender or offer to return to Ludeling the amount paid by him at the tax sales of the land in controversy, be maintained, and that this Suit be dismissed, plaintiff and appellee paying the costs in this court and in the district court.

Rehearing refused.


author: Manning, C. J.

text:
    No. 795.
    Jurey & Gillis vs. Hugh Allison & Co. and Sheriff.
    Tax titles which are not mere simulations can not be attacked collaterally. They are presumed to be valid until annulled in and by a revocatory action.
    ^PPEAL from the Twelfth Judicial District Court. Smith, J.

      8. L. Mam and O. J. Boatner for plaintiffs and appellants.

      H. P. Wells for defendants and appellees.
   The opinion of the court was delivered by

Manning, C. J.

Hugh Allison & Co., judgment creditors of one Hair, with a recognized mortgage upon, his land, issued execution, under which the sheriff seized the land, and advertised it for sale. The plaintiffs unjoined, claiming title under a tax deed, confirmed by another deed, more than six months thereafter, from the Auditor. The judgment of Allison & Co. was obtained in December 1874. The deed of the tax collector to Jurey & Gillis is dated the ensuing month, and the confirmatory title of the Auditor in August 1875. The writ of fieri facias of Allison issued in 1877, and was injoined in March of that year.

The defendants pleaded the general issue, and in special defence, •aver that the tax title from the collector to the plaintiffs is a simulation— that no sale was made on the 6th of January as that deed recites — that the deed was not executed on that day, or in the presence of the witnesses whose names appear upon it, but in New Orleans, and at a subsequent time — that Hair remained in possession of the land, living on it as heretofore.

The plaintiffs excepted, and moved to strike from the answer all that portion that charged informalities and irregularities in the title, and the ■acts of the officer which preceded it. This was refused, but leave was reserved to object to the reception of testimony under those allegations. 'Objection was accordingly made, the testimony was admitted, and a bill was reserved.

The allegation of simulation is that the sale was not a reality — that fit was not intended to convey an actual title, but was only a pretence, while the real ownership remained in the party conveying, or in some •other person than the party to whom the conveyance was made. It is obvious that the defendants do not mean to plead that the title of the tax collector was of that nature. The substance of their plea is, that the tax title was void because of irregularities of the officer making it, and they can not change its character by misnaming it. It is not a charge of simulation, and therefore the authorities, cited by defendants ■•in support of their right to attack it under such a charge, are not applicable.

The objection of the plaintiffs to the testimony was that a tax title, ‘like a sheriff’s title, can not be disregarded, and the property conveyed 'by it can not be seized by a judgment or mortgagemreditor of the former owner, until he has first successfully attacked the deed in a direct •action for its revocation. This was held to be good law in Lannes v. Work. Bank, 29 Annual, 112. Since the present Constitution has been in force, our courts are required to consider tax titles as prima fade valid. They are placed on the same footing as titles acquired at judicial sales, • and are now subject to the same rules as sheriff’s deeds. Until annulled in and by the revocatory action, they are presumed to be valid.

The title of the tax collector was confirmed by the Auditor in August 1875, more than six months having intervened since the date of the first ■deed. The plaintiffs leased the property to Mrs. Hair for 1876, and were therefore apparently in possession under their title — were really so, if the lease was a verity. Being in possession of the land under the deed of the tax collector, and the confirmatory title of the Auditor, the seizure of the land under the process of the defendants was unlawful, and the injunction prohibiting its sale was rightly issued.

The judgment of the lower court dissolved the injunction. We shall reverse it.

It is ordered and decreed that the judgment of the lower court 'is avoided and reversed, and that the injunction is perpetuated, reserving to the defendants the right to attack the title of the plaintiffs in a direct action. It is further adjudged and decreed that the plaintiffs’ demand for damages is disallowed, and that they recover of the defendants their costs in both courts.

Rehearing refused.


text:
    No. 815.
    Eliza Snider et al. vs. W. N. Collins, Sheriff, et al.
    An appellant in whose favor a certain sum of money has been awarded by the judgment of the lower court, may at any moment abandon his appeal, and enforce, the judgment appealed from.
    APPEAL from the Eighteenth Judicial District Court, parish of Webster. Turner, J.

      J. D. Watkins for plaintiff and appellant,

      Watkins & McDonald for defendants and appellees.
   The opinion of the court was delivered by

DeBlanc, J.

In October 1877, Eliza Snider obtained, in her own and her children’s names, a judgment in which they are recognized as the owners of certain lands then in possession of one M. C. Smith. In and by the same judgment, the said Smith was allowed the sum of eleven hundred dollars for the buildings which he had placed on said lands.

From that decree, Eliza Snider et als. did not appeal, but N. C. Smith, and John C. Loze, called in warranty by him, did; and — under the order granted to that effect — they each filed a bond in the amount fixed for a suspensive appeal.

After the filing of the bonds, Smith transferred to Loze the judgment rendered in his favor, in October 1877, and — on the 2áth of January 1878 — the transferee caused execution to issue on said judgment. In so doing, he expressly renounced to, and abandoned the appeal taken by him and that taken by Smith.

On the 27th of February 1878, Eliza Snider filed a petition in which, she prayed that the writ of ft. fa. issued for the benefit of Loze be enjoined and annulled. No injunction was ordered, and — we presume— because slie had herself abandoned the purpose of enjoining the execution of the writ.

Acting under that writ, the sheriff seized the land of which Smith had been evicted and the improvements which he had built thereon. A notice of that seizure was served on a curator ad hoc appointed to Eliza Snider, and, on the 16th of March last, after advertisement and appraisement, the lands and improvements were adjudicated to John O. Loze & Co for three hundred and fifty dollars.

As we have already said, Eliza Snider’s petition for an injunction was filed on the 27th of February. Her demand was based on the grounds:

1. That — as soon as the appeal bonds were filed — the jurisdiction of the district court ceased and that of this court attached.

2. That — without first withdrawing the appeals taken — no execution could legally issue on the judgment appealed from.

We have found, in the transcript, a document in these words: “Plaintiff — Eliza Snider — prays that the judgment rendered in favor of M. C. Smith and against her, in the original suit, for $1100 for improvements, be decreed satisfied etc.”

This document does not appear to have been filed. Not a single word in the petition of the 27th of February suggests the satisfaction of said judgment, and that document — which may have been improperly transcribed in the record — is foreign to and disconnected from any issue raised in plaintiff’s pleadings.

The authorities relied upon by plaintiff are not applicable to the state of facts presented in this case. We admit “ that, when the Supreme Court has once acquired jurisdiction of an appeal, it can not permit the appellant to withdraw his appeal, without the consent of an already cited appellee: ” but it has never been held that one can not — after he has taken an appeal from a judgment — renounce to and abandon his appeal, and acquiesce in and execute the judgment.

In such a case, what is the appellee’s right? “He may obtain a copy of the record, bring it up to the appellate court, and pray either for judgment, or for the dismissal of the appeal.” In this instance, plaintiff has exercised that right.

C. P. 588, 589, 590.

In Savoie vs Thibodeau, we said that a party has the right to abandon his appeal, acquiesce in the judgment appealed from at any time, and enforce’it. That view, we still consider as correct. 29 A. 52.

Had the document, in which plaintiff alleges that the judgment transferred by Smith to Loze has been satisfied, been embodied in the prayer of her petition and formed a part of it: had that prayer been preceded by the reasons given in the brief as to how and when that judgment was extinguished, and that is by confusion, that defencewould not have been supported by the evidence adduced on the trial. That evidence shows that a judgment obtained by Smith against Eliza-Snider et als, was — by Smith — transferred to Loze, and executed by the-latter. That transfer neither did nor could extinguish plaintiff’s liability-under said judgment.

From the answer filed in this Court, we presume that the claim for damages, urged by defendants in the lower court, has been abandoned.. The fact that no injunction was ordered, has — it is probable — induced the defendants to abandon that claim.

No cause has been alleged, much less proven, which would have justified the granting of the injunction applied for, or authorized the granting of the execution issued, at the request of Loze.

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