State ex rel. Recorder of Mortgages v. Clinton, Auditor.

Third-The Register of Conveyances and Recorder of Mortgages of the city of New Orleans are, by the 3172d section of the Revised Statutes, entitled to $1 50 for each registry of mortgage. If the relator has registered mortgages in favor of the State, and the State has not paid him therefor, and his compensation is not otherwise provided for by law, and his legal demands have not been complied with, he may have his recourse against the State; but his remedy is not by mandamus against the auditor.

For these reasons the judgment of the lower court is affirmed, with costs.

Rehearing refused.

No. 3682.

A. MILTENBERGER & Co. v. W. H. KEYS, Sheriff and als. Where a fair and correct settlement was made between A. Verret and his sons-in-law, W. H. and J. M. Knight, in which the mortgage judgments in favor of their wives against Verret were placed to their credit and reduced their own indebtedness pro tanto, and subsequently W. H. and J. M. Knight transferred said judgments to Adams & Co., and their wives ratified the transfer;

Held That Adams and Co., obtained no mortgage under said transfer, because the judgments thus transferred had been extinguished by the settlement between W. H. Knight, J. M. Knight and A. Verret, which was a valid one. The husbands could have sold those judgments or collected the amount of the judgments and used the money in payment of their debts, or in any other way they had chosen.

The

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power of the husband to administer the wife's property is different from that of an ordinary attorney. One essential difference is, that the husband may lawfully appro priate to his own use the money of his wife, collected by him. The attorney can not.

PPEAL from the Fifteenth Judicial District Court, parish of Terrebonne. Beattie, J. Rightor and McCollam, Legendre and Porche, for plaintiffs and appellants. Goode and Winder, for defendants and appellees.

Justices concurring: Ludeling, Taliaferro, Howell, Wyly, Morgan. LUDELING, C. J. Marie Louise and Marie Elizabeth, daughters of Adolphe Verret, of Terrebonne, had a legal mortgage upon their father's property to secure the sum of eleven thousand four hundred and forty-nine dollars, as shown by a final account of A. Verret, homologated on the twenty-seventh of April, 1852.

The general mortgage was converted into a special mortgage on the undivided half of a plantation in Terrebonne. Louise and Elizabeth Verret, having intermarried with William H. and John M. Knight, brought suit against their father and obtained judgments against him in July 1867, each for five thousand seven hundred and twenty-four dollars, with legal interest from twenty-seventh April, 1852, with recognition of their mortgages.

On the twenty-second of May, 1869, a settlement was made between

Miltenberger & Co. v. Keys, Sheriff, and als.

A. Verret and his sons-in-law, W. H. and J. M. Knight, in which the judgments in favor of their wives were placed to their credit, and reduced their indebtedness to Adolphe Verret pro tanto.

This settlement is evidenced by a written memorandum signed by the parties and, in this case, the Messrs. Knight and Adolphe Verret have testified that the settlement was a fair and correct settlement of their affairs.

Subsequently, on the eighth of June, 1869, the Messrs. Knight transferred to Adams & Co. the two judgments obtained by their wives against A. Verret, and their wives ratified the transfer.

A. Miltenberger & Co., who hold a mortgage next in rank after the mortgages of Louise and Elizabeth Verret, on the property of Adolphe Verret, contest the right of Adams & Co. to a mortgage under the transfer to them of the judgments in favor of Louise and Elizabeth Verret v. A. Verret, on the ground that the said judgments were extinguished by the settlement between W. H. & J. M. Knight and Adolphe Verret, made on the twenty-second of May, 1869.

The question presented for our decision is, was the settlement made by the Messrs. Knight, of their wives' judgments, valid or not: had they the right to use the judgments as they did? We are at a loss to imagine why the settlement was not valid. The husbands could undoubtedly have sold those judgments or collected the amount of the judgments, and used the money in payment of their debts, or in any other way they had chosen; and we can see no reason why, instead of taking the money from A. Verret and then immediately returning it to him, they could not accomplish the same thing by a written statement of their accounts and settlement. C. C. 2390, 2285; 4 R. 114; 12 Rob. 524; 19 La. 440; 12 An. 562; 13 An. 536.

The cases of Nolan v. Rogers, 4 N. S. 145, and Hickey v. Tharp, 4 La. 336, relied upon by the defendants, have no application to the question at issue in this case. They relate to the powers of an ordinary attorney. The case of Hourahan v. Leclercq, 15 An. 204, is also relied upon, and it appears to have some application to the case in hand. A careful examination of the case, however, satisfies us that the portion of the opinion which bears upon the question, to wit: the right of the husband to receive his own debts in payment of debts due to his wife, is an obiter dictum. In that case the court said: "The husband, in the administration of the wife's separate estate, acts as ber mandatory or agent, and his power or authority to receive his own debts in payment of debts due to his wife, must be determined by the rules of law which regulate the contract of mandate. And according to these rules, an agent has no authority to take his own obligations in payment of debts due to his principal. Hickey v. Tharp, 4 La. 337; Nolan v. Rogers, 4 N. S. 145."

Miltenberger & Co. v. Keys, Sheriff, and als.

It is needless to say that the power of the husband to administer the wife's property is different from that of an ordinary attorney. One essential difference is, that the husband may lawfully appropriate to his own use the money of his wife collected by him; the attorney can not. C. C., 2390.

We are of opinion that the settlement made on the twenty-second of May, 1869, was valid, and that the judgments in favor of Marie Louise and Marie Elizabeth Verret, wives of W. H. and J. M. Knight, against Adolphe Verret, were extinguished by payment.

This view of the case renders it unnecessary to examine the bills of exception taken in this case.

It is therefore ordered and adjudged that the judgment of the lower court be avoided and reversed, and that there be judgment in favor of the plaintiffs perpetuating the injunction, that the recorder of the parish of Terrebonne do cancel and erase the special and judicial mortgages in favor of the said Marie Louise and Marie Elizabeth Verret, wives of W. H. and J. M. Knight, against the property of Adolphe Verret described in the petition for injunction, and that the defendants pay costs of both courts.

Rebearing refused.

No. 3931.

JOSEPH LE BLANC v. LOUIS ST. GERMAIN.

The benefit of the homestead act can be pleaded in bar of the foreclosure of a conventional mortgage given on the homestead subsequent to the enactment of the law.

It can not be rightfully contended that, in con enting to the mortgage, the plaintiff in injunction waived the benefit of this exemption, and that it amounted to a renunciation of the right. No one is presumed to waive a legal right, and every contract is supposed to be made in reference to the law that governs it. In this case there was no express renunciation or waiver.

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PPEAL from the Second Judicial District Court, parish of St. Bernard. Pardee, J. E. H. McCaleb, A. & J. M. Livaudais, for plaintiff and appellee. Marcel Ducros, for defendant and appellant.

Justices concurring: Ludeling, Taliaferro, Howell, Wyly, Morgan. WYLY, J. The plaintiff, who injoined the foreclosure of the mortgage of the defendant on the ground that the property seized is his only homestead, appeals from the judgment dissolving the injunction with ten per cent. damages.

That the property seized is defendant's only homestead is not disputed. The question is, can the benefit of the homestead act be pleaded in bar of the foreclosure of a conventional mortgage given on the homestead subsequent to the enactment of the law? By section 691 of the Revised Statutes of 1870, in certain cases the homestead is exempt from seizure "in addition to property and effects now exempt

Le Blanc v. St. Germain.

from seizure and sale under execution." The defendant contends that the law has no application to a sale under the foreclosure of a mortgage, but only refers to sales "under execution." We can not accept this interpretation of the law. It has a broader meaning. The obvious purpose of the law-giver was to exempt from forced sale in certain cases the homestead of the debtor; and it is the intention of the lawgiver that we must seek and give effect to.

The defendant contends also, that in consenting to the mortgage the plaintiff waived the benefit of this exemption; that it amounted to a renunciation of the right. No one is presumed to waive a legal right; every one is presumed to contract in reference to the law. The plaintiff and defendant are presumed to have done so. Nothing was said

in the contract in regard to the remedy thereon. This the law supplied as thoroughly as if inserted in the instrument. Section 691 of the Revised Statutes appertains to the remedy; and if in forced sales it can be disregarded at all (of which we here express no opinion) it must be by an express renunciation or waiver.

It is therefore ordered that the judgment appealed from be annulled, and it is now ordered that the injunction herein be perpetuated and that the defendant pay cost of both courts.

Rehearing refused.

No. 4592.

NANCY DOUGHTY v. THE SHERIFF and als.

Where a wife had obtained a judgment against her husband, under which his property had been sold and purchased by her;

Held-That after her purchase the judgment creditors of her husband could seize the same property as his, and that the wife had not the right to injoin the sale thereof, inasmuch as the sale to her was not recorded in the recorder's office.

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PPEAL from the Fifth Judicial District Court, parish of East Feliciana. Posey, J. D. G. Wedge, Race, Foster & Merrick, for plaintiff and appellant. Kernan & Lyons, for defendants and appellees. Justices concurring: Ludeling, Taliaferro, Howell, Wyly, Morgan. LUDELING, C. J. The defendants, H. B. Chase and John Effut, obtained judgments against Wm. F. Doughty, the husband of plaintiff. She had obtained a judgment against her husband under which his property had been sold and purchased by her. After her purchase, the judgment creditors of her husband seized the same property as his, and the plaintiff has injoined the sale thereof. The defendants had a right to seize the property, inasmuch as the sale to the wife was not recorded in the recorder's office. 21 An. 427, 241; 22 An. 113.

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

Lartigue v. Clara White, Wife of Carl Kohn, and als.

No. 2945.

A. LARTIGUE v. CLARA WHITE, Wife of Carl Kohn, and als.

Where the motion was to dismiss the appeal, on the ground that the amount in dispute did not exceed five hundred dollars;

Held-That the suit being for one thousand dollars against three heirs who are in possession of the estate they inherited, for services rendered as attorney in se tling the succession, and judgment having been asked and granted in the court a qua against them jointly for said sum, in proportion to the respective shares received by them, the motion must be overruled, because the claim, as stated, is one against the succession, and the fact that there are several heirs who must pay proportionately, does not change the nature and amount of the matter in dispute.

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PPEAL from the Fourth District Court, parish of Orleans. Théard, J. E. Howard McCaleb, for plaintiff and appellee. Miles Taylor and William Grant,, for defendants and appellants.

ON MOTION TO DISMISS THE APPEAL.

Justices concurring: Ludeling, Taliaferro, Howell, Howe. HOWELL, J. The plaintiff moves to dismiss this appeal because the amount in dispute does not exceed five hundred dollars. The suit is for one thousand dollars against three heirs, who are in possession of the estate, for services as attorney at law by special employment in settling the succession inherited by them, and judgment was asked and granted against them jointly for said sum in proportion to the respective shares received by them.

The claim, as stated, is one against the succession, and the fact that there are several heirs, who must pay proportionately, does not change the nature and amount of the matter in dispute. It grew out of one contract in relation to one matter, the succession of the deceased, which is an entire thing.

The authorities cited by appellee do not apply to a case like this.
It is ordered that the motion be overruled.

25 291 48 1259)

WYLY, J., dissenting: For the reasons assigned in my dissenting opinion in A. Lartigue v. Eliza White, wife of C. Bullitt et als., I dissent in this case.

ON THE MERITS.

Justices concurring: Ludeling, Taliaferro, Howell, Wyly, Morgan. WYLY, J. The heirs of Mrs. White, wife of Maunsel White, appeal from the judgment condemning them to pay the plaintiff one thousand dollars for professional services.

At the same time the plaintiff was employed to obtain the orders mentioned in the case just decided in the succession of Maunsel White;