48 La. Ann. 1254 | La. | 1896
Lead Opinion
The opinion of the court was delivered by
Defendants prayed that plaintiff’s demand be rejected, and that they be dismissed. They asked no affirmative relief; their prayer was purely defensive. There was no reconventional demand.
Only one judgment was rendered in the case.
It has been sometimes stated that the jurisdiction governing'a plaintiff’s demand is to be tested by that demand, and not by the defendant’s position before the court. Buisson vs. Staats, 9 An. 236; Gustine vs. N. O. Oil Co., 13 An. 510; Flood vs. Shamburgb, 3 N. S. 626; Succession of Hoover vs. York, 30 An. 754.
But defendants maintain that this doctrine has to be taken with limitations. They assert that though plaintiff’s present claim may be for a smaller amount than would properly fall under the jurisdiction of this court, yet it is dependent upon the existence and proof of the existence of a contract, which, as to its amount in its entirety, and as to its unpaid instalments, is within our jurisdiction.
That defendant in the lower court put at issue the existence and validity of that contract; that, therefore, the “ matter in dispute ” for the purpose of appellate jurisdiction, is the amount involved in that of the entire contract, whose existence or validity is so denied, and the unpaid instalments. That although the plaintiff may not (in form) present as a matter for investigation by the court, the existence and validity of the contract, yet he, in fact, tenders that issue as part of his case, and that wheri defendants’ defence is visceral to the attack, the whole matter is thrown open for the court’s action.
'We have examined the following authorities bearing upon this point:
In the case at bar the plaintiff presented himself as the holder and owner of all the notes remaining unpaid, given by Wooten to Weems. He attached them to his petition; he asserted that defendants had personally bound themselves for the payment of all these notes due and not due through an assumpsit of the same, thought they only asked a present personal judgment for twelve hundred dollars.
In spite of defendant’s denial of the existence and binding force of this assumpsit, they were, by reason of the court’s holding it to be valid and binding, condemned personally to pay the partial amount now claimed.
We think the judgment rendered in this case, so far as the question of the assumpsit is concerned, would be res adjudieata in any future suit between the parties upon the remaining notes amounting to over three thousand dollars. Louisiana State Bank vs. Orleans Navigation Company, 3 An. 294.
The mere division of the purchase price, which defendants are claimed to have assumed, into instalments, did not break the unity or singleness of their own contract, considered from the standpoint of its.existence and validity. Nesom vs. D’Armond, 13 An. 294.
Defendants are not parties to the notes; quoad them the suit ia upon the assumpsit.
Should this motion for the dismissal of appeal be sustained, all issues raised below would be withdrawn from our consideration.. Should the appeal be maintained and there be any issue in our opinion not cognizable by us, we can so announce on the final decree.
We are of the opinion that the appeal should stand; the motion to dismiss is therefore overruled.
Opinion on the Merits
On the Merits.
This case is the same one we had before us, and the motion to dismiss which, for want of jurisdiction, we decided on the
I.
The first thing to be considered is defendant’s exception to the capacity of J. B. Vinet, public administrator of the parish of Orleans, to be appointed dative testamentary executor of the succession of A. W. Weems, Sr., deceased, his contention being that he had no power or authority conferred upon him by law to qualify or act as executor of said succession, and. that he had, consequently, no capacity to institute this suit and stand in judgment.
For this position he assigns as a ground that Weems had no domicile or residence in the parish of Orleans at the time of his death, or prior thereto, and that he had no property situated in said parish at the time of his death. That, on the contrary, he was, at the time of his death, a citizen and resident of the parish of St. Tammany, and had been for a great many years prior to his death, and that his principal establishment was therein situated. That he never had, nor ever acquired a domicile elsewhere, and his succession was opened therein by his death, and that same could not be lawfully administered in the parish of Orleans.
From the foregoing it is clear that the want of capacity alleged consists in the fact that the public administrator of the parish of Orleans could not be legally appointed dative testamentary executor for a succession of a deceased citizen and resident of the parish of St. Tammany, not that his appointment was in itself irregular, or illegal, as not founded upon a proper order of court or the like.
On this question considerable testimony was taken which, in the view we entertain of the legal questions involved, will not be necessary for us to consider, and that view is that unless the appointment be absolutely void his acts can not be questioned by a litigant in a court of justice.
In Succession of Dougart, 30 An. 268, it was said:
“As to illegality of the appointment of the executrix it is only necessary to say that the question can not be raised in this indirect :and collateral way. Whether legally or illegally done she was appointed and qualified and must be treated as the lawful executrix vnntil her appointment is revoked in a direct action.”
In the matter of the estate of Altemus, 32 An. 364, it was said:
*1261 “It seems to be considered, and indeed we do not think it can be denied, that unless the appointment of administrator or curator is absolutely void the acts d ne by them in such capacities are legal and binding; for it is now elementary that the mere illegality of the appointment will not vitiate the acts done under it. This is so true that the law will not allow a suspensive appeal from a decree appointing such official, but declares that such decrees shall have immediate effect, and, therefore, regardless of the legality or the illegality of the appointment.”
In Cloutier vs. Lemée, Syndic, 33 An. 305, it was said:
“ Inquiries touching the legality of (the defendant’s) appointment are irrelevant. While actually exercising the office he must perform its duties, and the illegality of his appointment will not vitiate his acts.” Citizens Bank vs. Bry, 3 An. 633; Gradnigo vs. Moore, Curator, 10 An. 670; Dorsey vs. Vaughan, 5 An. 156; Beard vs. Gresham, 5 An. 611; Succession of Lehman, 41 An. 987.
On the foregoing authorities we are of the opinion that the defendant can not, in this collateral manner, attack the legality of the executor’s appointment, and that he has the undeniable right to institute this suit and stand in judgment, conceding for the argument that the testimony shows that his appointment was illegal on the ground stated.
If every party sued by a succession representative could litigate his capacity, its settlement might be indefinitely prolonged.
The judge a quo properly overruled the exception.
II.
The principal question for decision is whether, in the sale from W. L. Wooten to the defendants, on the 12th of January, 1893, the latter assumed the payment of the nine notes of the vendor, Wooten, and all of his obligations as purchaser of the property from the deceased
They deny that they incurred any personal liability for the- payment of those notes to Weems, the deceased, or to his executor since his death; and aver that they are third possessors of the property mortgaged to secure their payment, the enforcement of which can only be obtained in an hypothecary action. Or in other words, while they admit the binding force of the recitals of the deed under which they acquired the property, and that they became thereby bound for the amount of their vendor’s debt and mortgage as part of
They further aver that the stipulation of said deed did not constitute a novation of the debt by the substitution of themselves as debtors in the place of Wooten, the maker; and that during the lifetime of Weems they were never so considered, accepted or treated by him.
It appears from the act of sale that Wooten conveyed the proPetry to the defendant with full subrogation to all of his rights and actions against all previous vendors, for the price of six thousand seven hundred and ninety-nine dollars and fifty-six cents, of which the sum of five hundred dollars was paid in cash, and for the balance of said purchase price the said Bres and Richardson thereby assumed and agreed to pay nine promissory notes and interest thereon at the rate six per cent, per annum of six hundred dollars each, payable respectively in two, three, four, five, six, seven, eight, nine and ten years from the 28th of August, 1890, being nine of the ten notes given by the said Wooten as the purchase price of said land from said Weems, which notes are secured by mortgage and vendor’s lien on said land, and said mortgage and vendor’s lien were thereby kept in force and perpetuated until the full and final payment of said notes and interest.
The deed further recites that: “It is further agreed that the present purchaser shall have the same right (as that) given to said Wooten by the said Weems (of) calling in and paying any and all of said notes at their option, and at any time they may choose, on paying principal and interest accrued up to the time of such pay - ment or redemption.”
That act is one under private signature, and it bears the signatures of Wooten, as well as that of Bres and Richardson.
The parol testimony shows that this act of sale was executed immediately previous to the death of Weems, and that same was based upon the fact that Wooten had requested of Weems a ninety days’ extension of the payment of his second note, and that the defendants had consented to purchase the property at the price stipulated if the extension was granted. That Weems granted the
Objection was made by defendants’ counsel to the introduction of this testimony, on the ground that parol could not be offered to prove a state of facts at variance with the recitals of the act of sale. The judge a quo overruled the objection on the ground that this offer of testimony did not violate the rule of law invoked, because it was only intended to show that Weems was apprised of the assumption by the defendants, and had consented to extend the payment of the note, at the time past due, on the faith of it.
In thus ruling the judge committed no error. The obligations of the defendants to Wooten were incorporated in the act of sale, but Weems was not a party thereto and did not sign it. But being the holder of the notes and Wooten having applied for an extension of the one first falling due, Weems was interested to know his means of making payment when the extension should have expired; and what more likely than that he should have informed Weems of his intended sale to the defendants and of the terms of the same, and that Weems should have consented to the extension upon that ground.
The statement of Richardson was taken, also, without materially altering the force of the plaintiff’s evidence on that question.
We are of opinion that the evidence discloses the existence of negotiations between Weems and Wooten, with respect to the extension of the payment of the second note, which went to its maturity on the 28th of August, 1892, and the payment of which the defendants assumed in the act of sale from Wooten on the 12th of January, 1893, four and one-half months after its maturity.
A witness for the plaintiff distinctly states that “ when the second note came due (he thinks) there was an extension then. He (Wooten) concluded to sell out the island, and Richardson and Bres, who were friends of his, offered to buy the island if some short extension could be obtained on the note. Mr. Weems was willing, as
This statement makes it clear that Weems was still living when Wooten executed a title to the defendants, because Wooten’s signature is appended to the deed, and he subsequently died prior to the death of Weems.
If an extension of the second note had not been already agreed upon between Wooten, maker, and Weems, payee, with the knowledge and concurrence of Bres and Richardson, it is unlikely that Richardson should have employed the phraseology that he used in the act of sale which he prepared for the parties to sign — that is to say, that the sale was made in consideration of the sum of six thousand seven hundred and- ninety-nine dollars and fifty-six cents, of which five hundred and twenty-eight dollars and twenty-six cents was to be paid in cash, and the remainder to consist in the assumption of the payment of nine notes, one of which was then more than three months overdue.
Defendants’ counsel cites us to the following authorities as governing this branch of the case, viz.: Pothier on Obligations, No. 57; Story on Contracts, Sec. 130; Gravier vs. Gravier, 3 N. S. 207; Tiernan vs. Martin, 2 Rob. 523; Mitchell vs. Cooley, 5 Rob. 240; Wiggin vs. Flower, 5 Rob. 406; Citizens Bank vs. Miller, 44 An. 199; R. C. C. 1890, 1902, 1779, 2201.
Those decisions proceed upon the same line and are to the effect that stipulations pour autrui to be of avail must be accepted by the beneficiary; but they go no farther nor say anything more than is expressed by the Code.
It declares that “ a person may also, in his own name, make some advantage for a third person the condition or consideration of a commutative contract or onerous donation; and if such third person consents to avail himself of the advantage stipulated in his favor, the contract can not be revoked.” R. C. C. 1890. (Our italics.)
In our opinion the evidence satisfactorily shows that Weems consented to avail himself of the stipulation made by the defendants and that same is binding on them.
Complaint is made of the judgment having been rendered against the defendants in solido, whereas their contract is joint. This complaint is well founded and the judgment should be amended so as to make it only joint.
Complaint is also made of the judgment that it decrees plaintiff to have a right of pledge, whereas there is nothing in the contract to justify it.
This complaint is also just and well founded and the decree must be amended in this particular.
It is therefore ordered and decreed that the judgment appealed from be so amended that defendants be decreed jointly to pay the plaintiffs’ demand instead of in solido, and so amended as to eliminate all recognition of the existence of plaintiffs’ right of pledge.
It is further ordered and decreed that the judgment be in all other respects affirmed, and that plaintiffs be taxed with the cost of appeal.
Rehearing
On Application for Rehearing.
This is a suit on two promissory notes of six hundred dollars each which bear date August 28, 1890, and went to their maturity on the 28th of August, 1893, and 1894, respectively; same being the third and fourth of the series of ten notes which William M. Wooten subscribed to represent the purchase price of a tract of land, and upon which the vendor retained a lien and mortgage to secure their payment.
The object of this suit is to recover a personal judgment against the two defendants in solido for the amount of the two notes, and the recognition of the vendor’s lien and mortgage upon the land purchased by them.
The averment of the petition is, that on the 12th of January, 1893, the original vendee, Wooten, sold the mortgaged property to the defendants for a specified sum in cash, and their assumption in the act of sale of nine of said series of ten notes, as well as all of his obligations to his vendor, Alexander W. Weems; and that, since said sale and assumption, said defendants had paid the first one of the said nine notes, the payment of which they had assumed; that is, the one falling due on the 28th of August, 1891 — an 1 have defaulted in the payment of the next two, which form the basis of the present action.
Or, in other words, that they may be proceeded against by hypothecary action, but not by ordinary process or personal action.
On the trial this contention was rejected and judgment was rendered against the defendants, and same was affirmed by the unani - mous opinion of this court.
The propositions therefore which are presented for consideration on this appplication are: (1) Whether a judgment in this suit on the aforesaid notes would protect the defendants against further pursuit thereon by the creditors and heirs of Weems; (2) whether Weems, for whose benefit the assumption was made, had consented to avail himself of that advantage.
I.
On the exception, we cited a number of recent decisions of this court to the effect that the appointment of an executor can not' be attacked collaterally; that it can only be done by a direct action; that whether legally or illegally made, the appointment of an executor must be treated as lawfully made, until same has been judicially examined and annulled; that unless the appointment of an executor or administrator is absolutely void, acts done under it in such capacity are legal and binding; and it is elementary that mere illegality in the appointment of a fiduciary or public officer will not vitiate acts done under it. This is the universally accepted theory of interpretation. If parties litigant could at any time, as matter of exception or defence, raise the question of the simple illegality or relative nullity of an administrator’s appointment and traverse that issue by proof, the settlement of the successions would become practically interminable.
Certainly a litigant has no interest in that question, as he would be perfectly protected by the judgment pronounced.
On the contrary, he would have an interest in excepting to,
This rule obtains in other jurisdictions as well as in our own, as will be seen from an instructive opinion by the Tennessee court, Franklin vs. Franklin, 18 S. W. Rep. 61, in which it was held that if a court appoint an administrator upon insufficient evidence of the residence of the deceased “the appointment may be voidable, but it is not void.”
Counsel cites the ease of Moise, Tutor, vs. Life Association, 45 An. 736. That case is not pertinent, because it involved the legal right of a maternal uncle of certain minors residing in the city of New Orleans to receive appointment by the Oivil District Court as tutor for them and institute suit upon a policy of insurance against the defendant; and the court held that the appointee was without capacity to receive appointment or to stand in judgment for the minors. But the court, while thus holding, did not put its opinion upon the ground taken by the defendants’ counsel in this case, as will appear from the following extract therefrom, viz.:
“ We have no concern with the propriety of or validity of plaintiff’s appointment as tutor of the minors, nor with his right and power in that capacity to take possession of and administer the estate of their deceased parent, whose heirs they are, in this State.”
“ Guyol was domiciled and died in Kentucky, and so far as appears he left no property, real or personal, in this State. This policy of insurance is a mere non-negotiable evidence of a debt due by a New York debtor to a Kentucky creditor. The appointment by the insurance company of an agent in this State, through whom it may be sued, does not change the domicile of the company. Under no possible view can such a debt be said to have a situs, real or fieti-. tious, in this State.”
Applying to this, the principle announced in that case, the plaintiff had an undoubted right to take possession of the notes of Wooten, as the property of Weems, deceased, because they had been deposited in a bank of this city by Weems, for his personal account during his lifetime, and they there remained until delivered to the plaintiff as his executor.
The law declares that the place of the opening of a succession is fixed as follows, viz.:
1. “In the parish where the deceased resided, if he had a fixed domicile or residence in this State.
2. “ In the parish where the deceased owned inmovable property, if he had neither domicile nor residence in this State, or in the parish in which it appears by the inventory his principal effects are, if he have his effects in different parishes.
3. “ In the parish in which the deceased died, if he had no fixed residence, nor any immovable effects within this State at the time of his death.” Revised Civil Code, p. 935.
An examination of the evidence plainly shows, that Alexander Weems had, at the time of his death, “ no fixed domicile or residence in this State.” That he owned no immovable property in this State; and that the parish of Orleans is shown by the inventory, as well as by the parol proof, to have been the place where the notes given for his immovable property were situated, and which constituted “ his principal effects.”
It further shows that he did not die in this State, though he had made the city of New Orleans his abiding place previous to his departure from the State, and subsequent death.
On this showing with regard to the law, as well as to the evidence, it certainly can not be affirmed that the plaintiff’s appointment was an absolute nullity; for the law provides that “no testament can have effect unless it has been presented to the judge of the parish in which the succession is opened,” etc. R. C. C. 1644.
II.
On the second proposition the contention of the defendant’s counsel seems to be directed at the impossibility of Weems having accepted the stipulations of a deed which he never saw after same was executed; while, on the contrary, the opinion deals with Weems’ previous knowledge of the transactions which led up to the sale, with the terms of which he was fully acquainted; and more particularly with the three months’ extension of Wooten’s second
In counsel’s brief it is admitted that Weems left Louisiana in May or June, 1892; and died on the 18th of March, 1893 — never having returned to this State in the meanwhile.
It is further admitted — and the deed itself shows the correctness of the statement — that the act was executed and recorded on the 12th of January, 1893, two months prior to the death of Weems.
It is further admitted that Wooten died on the 30th of January, 1893, and the deed shows that he signed the same on the 12th of January previous.
It is shown by the record that prior to his departure from the State Weems executed a power of attorney in favor of Mr. J. C. Gilmore, authorizing him to attend to his business during his absence, and directing the cashier of the Hibernia National Bank to surrender to him the notes of Wooten then in the bank “should the first one, falling due August, 1892, not be paid at maturity.”
Mr. Gilmore states as a witness that at its maturity, on the 21st of August, 1891, Wooten requested of Weems an extension of his first note, and that same was granted, and the note was subsequently paid. He says that when the second note fell due he again applied for an extension. That “ he (Wooten) concluded to sellout the island, and Bres and Richardson, who were friends of his, offered to buy the island, if some short extension could be obtained on the note. Mr. Weems was willing, as these letters (exhibiting them) which I offer will show, to grant an extension, and they made the purchase from Mr. Wooten of the island and recorded the deed, assuming Wooten’s obligations under the mortgage and these unpaid notes,” etc.
The correspondence in the record shows that on the 28th of November, 1892, Weems wrote a letter to Gilmore, stating that he had received a letter from Wooten requesting a ninety-day extension on his second note, then past due, and that he had replied requesting him to call on Gilmore, “ as he had charge of his interest ” in Louisiana.
That on the 16th of December, 1892, Wooten wrote to Weems stating that he was temporarily embarrassed and unable to meet the payment of his note then past due, but that he “ had found a purchaser in Mr. J. G. Richardson and J. R. Bres, New Orleans, provided he (Weems) will extend the time of the payment of the note now past due by (him) ninety days from the 1st of December, 1892.”
The enclosure is of the following tenor, viz.:
“ December 16, 1892.
“ W. L. Wooten, Esq., New Orleans, La.:
“ Dear Sir — We will take your half of the Shell Island or Weems’ island at the price offered, provided you secure the extension from Mr. Weems of the note now past due for the term of ninety days from December 1, 1892.
(Signed)
“Jas. G. Richardson.
“ Jos. R. Bres.”
Replying to the foregoing under date December 20, 1892, he (Weems) wrote to Mr. Gilmore as follows, viz. :
“ Yesterday afternoon I received the enclosed communication from Mr. Wooten; it will speak for itself. I addressed a letter to Mr. Wooten on the same day I last wrote you, requesting that he give me a full statement as to his expectations and ability to meet his note then due and the within is his reply. I will reply by the same mail as this, that I have placed the entire matter in your hands and will be satisfied with any agreement entered into by you as my attorney and counsel I shall have no objection to granting a further extension on the note if it does not lessen my security in the future * * * I leave the matter with you,” etc. (Our italics.)
Mr. Gilmore further states that “ acting under the instructions of Mr. Weems” he called upon Mr. Richardson just after the death of Mr. Wooten, which took place on the 30th of January, 1893, in response to a call which Mr. Richardson had previously made upon him, referring to an envelope that had been left on his table during his absence.
Being asked the date of this interview he said: “ I could not fix the date, but it was in the course of the negotiations.
“ An extension had been granted on the second note by Mr. Weems, and Richardson and Bres had signed these papers.”
In speaking of the second extension on the condition that they
“ Hearing from Mr. Weems that he was willing, I called upon Mr. Richardson and said that the extension is granted; but, I said to him, I see that Mr. Wooten is dead, by the papers. I then said, now he could pass no transfer; and he said, Oh, yes; we have passed a transfer before he went to the country, and it has been sent over and recorded.’ ”
Mr. Gilmore then said: “ Weems was satisfied with the condition, and seeing that Woofew was dead he was better satisfied than ever. * * The conditions of the letter of Richardson and Bres that this extension would be allowed was granted, and Richardson said that they had executed the deed before he (Wooten) left the city.”
On being interrogated as a witness, Mr. J. G. Richardson supplemented the statement of Mr. Gilmore, and- filled a gap in the testimony which he had left open, as-will appear from following, viz.:
Q. “I wish you to state that conversation between Mr. Gilmore, as agent for Mr. Weems, and yourself and Mr. Bres, in regard to matters that you have heard Mr. Gilmore testify to.”
A. “ Mr. Gilmore called at the office in answer to that letter that is there from Mr. Weems, giving an extension of time of ninety days on that note then past due; and he called, and Mr. Wooten was present, and he stated that it was all right — the extension,” etc. * *
Q. “ Was anything said by Mr. Gilmore to you when reference was made to the making of this sale by Wooten to yourself, with regard to having a notarial act passed?”
A. “Yes; when he first called he said that whenever we got ready to come over to his office that there was a notary there, and we could prepare the deed, which I did not do. When we got ready to make the deed I wrote it myself.”
Intermediately, between the conversation which was related by Mr. Richardson and that related by Mr. Gilmore, the deed was executed by Wooten and accepted by Richardson and Bres, and Wooten had died; but Weems was still alive, and Gilmore was his duly authorized and acting agent.
Richardson and Bres entered into possession of the property, and, subsequently, when the ninety days’ extension had expired, Mr. Richardson went to the bank and saw the date it would expire and on that day he paid the note.
Not only does the proof show Weems’ previous knowledge of the transactions which led up to the assumption of Bres and Richardson, but his possession of the written obligation to that effect. It shows that not only did Weems specifically agree to grant the extension to Wooten upon the faith of Richardson and Bres’ personal obligation, but due notification of Weems’ acceptance of their proposal was given by Weems to Wooten in writing, and to his agent, Gilmore; and same was personally communicated by Mr. Gilmore to Bres and Richardson in the presence of Wooten.
It shows that with full knowledge of these facts, and with direct reference to them, Mr. Richardson wrote the act of sale, which Wooten signed and he and Bres accepted; and that his action, in this respect, was subsequently approved by Mr. Gilmore, as agent, during an interview between Gilmore and Richardson.
. All these transactions occurred during the lifetime of Weems; and subsequently Richardson paid the extended note.
But there is another view of this case that is perfectly conclusive, as to the right of the plaintiff to recover, and it is that'the proof disclosing that the defendants had accepted Wooten’s proposition, and had actually purchased che mortgaged property and assumed the payment of his notes, it was within the power and competency of either
Our conclusion is that, in any view that can be taken of this case, the judgment should remain undisturbed.
Rehearing refused.