March, 1834 P. BLAN- vs. ET AL. THE STATE, EASTERN DIS. belonging to the sheriff but that seized by him in the case of the plaintiffs against the defendant; that he holds in this case a writ of fi. fa., and an execution against the defendant, WIDOW ET ALS. issued by the state treasurer, to enforce the payment of the F. BLANCHARD state taxes; that to satisfy the writ in both cases, he levied upon said property, and has advertised the same for sale, and INTERVENOR. Shall hold the proceeds after said sale, as he may be directed by the court. The district attorney introduced as evidence, a certificate of mortgage, showing the recording of the bond of the sheriff and his securities, for the collection of the state taxes for 1830, and executed on the 21st of February, 1831. The motion was overruled, with costs against the state, and the coroner ordered to pay to the plaintiffs the proceeds of the sale, to be made by him on the property seized. The state appealed. Seghers for intervenor and appellant, contended that: 1. The state cannot be decreed to pay costs. No money shall be drawn from the treasury, but in pursuance of appropriations made by law. State Constitution, art. 6. Martin's Digest, vol. 1, p. 112. The judgment of the inferior court ought, therefore, to be reversed. 2. According to the Louisiana Code, article 3280, no legal mortgage shall exist, except in the cases determined by said code. But a legal mortgage was afterwards granted to the state on the property of sheriffs and collectors of taxes, by sec. 10, p. 78, of the acts of 1830. No such mortgage exists on the property of an administrator of an estate, either by the Louisiana Code, or by any subsequent law. The judge a quo, therefore, erred in deciding the case in favor of the widow and heirs of Pierre Blanchard, inasmuch as an ordinary creditor cannot, by the mere act of seizure, acquire a preference over a mortgage creditor, whose mortgage is anterior to the seizure. Crozier, for plaintiffs and appellees. BULLARD, J., delivered the opinion of the court. EASTERN Dis. P. BLAN- vs. The plaintiffs having recovered a judgment in the Court of Probates, against F. Blanchard, on his bond as adminis- WIDOW ET ALS. trator of their ancestor, caused an execution to be levied on F. BLANCHARD a plantation and slaves, and other property of the defendant, THE STATE, which had at the inception of the suit been attached, the INTERVENOR. defendant being represented as an absconding debtor. The administration bond was given in 1827. After this fieri facias had been levied, an execution issued by the state treasurer, against the same defendant, as collector of state taxes for the year 1830, and against his sureties, came into the hands of the coroner, who levied on the same property. The defendant's bond, as collector, bears date in 1831, and is certified to be duly recorded in the office of the parish judge. At this stage of the proceedings the district attorney, on the part of the state, obtained a rule on the plaintiffs, to show cause why the coroner should not bring into court the proceeds of the property seized, after he should have sold the same, and why they should not be distributed, as follows: First, To the state the amount due for taxes with costs, and the balance, if any, to the plaintiffs, in satisfaction of their judgment. This proceeding is based on an allegation, that the property seized is the only property of the defendant, in virtue of articles 301 and 722, of the Code of Practice. In answer to the rule, the plaintiffs denying that the state has a legal mortgage, contend, First, That there exists a legal mortgage on the property of the defendant, as administrator of the estate of Pierre Blanchard, for the sum of thirty-two thousand five hundred dollars. Since the 22d day of September, 1827, the date of his bond, which was duly recorded, and is of a date prior to that in favor of the state, as collector of taxes. Second, That the property seized and levied on, was attached at the suit of those creditors, on the 14th March, 1832, and thereby a lien was created on said property in ET AL. March, 1834. EASTERN DIS. their favor, which gives them a preference over all other creditors, and over the state. The Probate Court discharged the rule at the costs of the state, being of opinion that the WIDOW ET ALS. administrator's bond being of prior date, to that given by the P. BLAN- vs. ET AL. THE STATE, INTERVENor.. F. BLANCHARD defendant, as collector of tax s, ought to have the preference, and that the seizure under the attachment gave the plaintiffs a lien on the property attached, which ought to be preferred to the claim of the state. The coroner was ordered to pay over the whole proceeds of the sale to the plaintiffs, and the state appealed. The administra creates no legal administrator. He the administra of his sureties. By the act of 1830, it is declared that the state shall have a legal mortgage on the lands, slaves and real estate, of sheriffs and collectors of taxes, to secure the due performance of their official duties. Acts of 1830, p. 78, sec. 10. Article 3280 of the Louisiana Code, declares that no legal mortgage shall exist, except in the cases determined by the Code. Among the cases enumerated, in which such mortgages is declared to exist, that of administrators of estates is not to be found. It is clear, therefore, that no legal morttion of an estate gage existed on the property of the defendant in favor of the mortgage on the plaintiff, in virtue of his administration bond. He was is entrusted with entrusted with the administration on the credit of his suretion, on the credit ties, and the prior date of the bond does not give the heirs a preference over the state, whose claim, though subsequent, is secured by a legal mortgage. The only question then is, whether the levying of an attachment on mortgaged property, gives to an ordinary creditor a preference over the mortgagee? Such a doctrine would place the rights of hypothecary creditors at the mercy of every debtor, who might think proper to abscond, or to evade the service of legal proA sale of mort- cess. It would in effect be permitting the mortgagor, by his own act, to defeat a legal mortgage, and to give a preference guish the legal to ordinary creditors. Even a sale by the sheriff, under tiori the levying execution would not extinguish the legal mortgage, still less the levying of an attachment. We are of opinion that the court erred in discharging the rule. gaged property by the sheriff, under execution, does not extin mortgage, a for of an attachment on it cannot. It is, therefore, ordered, adjudged and decreed, by the court, that the judgment of the Court of Probates, be avoided March, 1834. MOONEY vs. BRANDON. and reversed, that the rule be reinstated and made absolute, EASTERN DIS. that the coroner be ordered to pay out of the proceeds of the real estate and slaves, to the state treasurer, the amount of the execution in his hands with interests and costs; to pay over to the plaintiffs the balance, if any, of the proceeds of the land and laves, together with the whole of the proceeds of the movables, and that the plaintiffs and appellees pay the costs of both courts. MOONEY vs. BRANDON. APPEAL FROM THE COURT OF THE FIRST DISTRICT. This case presents a question of fact only. This was a petitory action, brought in 1832, to recover twelve town lots, situated in the town of M'Donough, in the parish of Jefferson, and one thousand dollars as damages for the detention of possession. The plaintiff's title was denied, and the general issue pleaded. Title was set up under a deed of the state treasurer, purporting to convey to the plaintiff "all the right, title, interest and claim which Moses Duffy had" at or subsequent to the 1st of December, 1825. The introduction of this deed was opposed by the defendant, because no identity of the lots therein mentioned and those claimed was shown; but the judge a quo admitted it, and allowed the plaintiff to establish the identity by other proof. The plaintiff produced the assessment roll for 1825, of the parish of Jefferson, on which Moses Duffy was placed as the owner of twelve town lots, in the said town; and the list of the non-residents of that parish for that year, also, EASTERN DIS containing the name of Moses Duffy as the owner of twelve March, 1834. MOONEY BRANDON. town lots in the same town, and the amount of the tax upon them for that year. The sale by the treasurer took place after the lots in question had been duly advertised, in 1828, for state taxes, due upon the lots claimed in 1825, and by virtue of the second section of an act entitled "An act supplementary to the several acts relative to the revenue, approved March 20th, 1818." The defendant offered to pay the plaintiff the amount, eleven dollars, paid by the latter at the sale, but the defendant did not admit that the plaintiff had purchased the lots of which he was in possession. The defendant had erected two small frame buildings on some lots, which he admitted to the witness, had belonged to the late Moses Duffy, who had purchased twelve town lots in the said town. Duffy had died before the sale, as witness believed, in Texas, and his widow, now defendant's wife, lived in the state of Mississippi. Judgment was rendered for the defendant, the judge a quo being of opinion that the plaintiff had failed to show title in Moses Duffy, and that that was indispensably requisite to entitle the plaintiff to a judgment in his favor. MARTIN, J., delivered the opinion of the court. This is a petitory action, in which the recovery of twelve lots of ground in the possession of the defendant is sought, under an adjudication for taxes in arrear. The general issue was pleaded, and there was judgment for the defendant; the plaintiff appealed, after an unsuccessful effort to obtain a new trial. The record shows that the plaintiff introduced in evidence the assessment roll, in which the defaulting taxable was charged with the tax, and the list of non resident owners, containing his name; finally the deed of sale of the treasurer of the state: publication was proved, &c. |