The opinion of the court was delivered by
DeBlanc, J.
To the sixth provisional account filed by James D. Martin, as executor of the last will of Hugh McCloskey, three oppositions have been filed.
1. One by the city of New Orleans, in which it claims as being due by said succession taxes of 1868, 1869, 1870, 1871,1872,1873,1874, 1875, 1876,1877, and 1878.
[148]*148This opposition was partly maintained as to the taxes of 1878, and dismissed as to only the taxes alleged to have been levied in 1868,1869, and 1870.
2. Two others — one by David M. HolliDgswortli, and the third by E. H. Earrar, Esq., as agent of Mrs. Ellen T. V. Fisher. These are based upon claims against McCloskey, as one of the sureties of T. L, Maxwell, late sheriff of the parish of Orleans.
I.
City’s opposition.
The taxes of 1878 were levied on property belongingto the deceased’s succession, and which was sold — in March of that year — to pay legacies, and upon the express condition that the purchasers should assume the payment — over and above the price of adjudication — of all taxes due and exigible in 1878.
The city’s claim for the tax of that year was $1202 60, and — of that amount — the city received from one of the purchasers of the property sold subject to said tax, $525, leaving due a balance of $667 50. It is urged that — by thus dividing its tax-bill — the city acquiesced in the terms of the sale made in March.
“ The mere indication made by a debtor of a person who is to pay in his place, does not operate a novation,” unless the creditor has expressly declared his intention to discharge his debtor.
C. C. 2194 (2190), 2192 (2188).
The terms and conditions of the sale were not fixed with the consent of the city authorities, and could not — without that consent, affect its established rights ; nor can its acceptance of a part of its claim, be construed as an abandonment of the action which it had and has, to enforce the payment of the balance due, on the cash proceeds of the sale.
■ As to the taxes of 1871, 1873, 1874, 1875, 1876, and 1877, the executor contends that the property on which they were levied, has not been sold, and that the city cannot require that they be paid out of funds arising from the sale of other property. Were it not proven — as justly remarked by the district judge — that the estate of McOIoskeyis solvent, that the object of the -executor’s account is to distribute thousands of dollars to his legatees, that defence might be considered and sustained; but debts must be paid before legacies, and the city’s right to collect its annual revenues does not depend on exclusively the sale of the property subject to its tax-liens; and — as regards a solvent succession — that right may be exercised against any funds which belong to it and which are not affected by a privilege excluding that of the city.
In 1871, McCloskey purchased at sheriff’s sale, and for $51,000, which he paid cash, an improved lot of ground, on which — -in 1868 — the [149]*149city had levied a tax o£ $1200. At the date of the sale, no tax-lien was recorded against said property, and it is now settled that — since the promulgation of the act of 1869, which carried into effect the 123d article of the State constitution — no unrecorded privilege can affect third parties.
26 A. 592; 28 A. 496; 30 A. 293.
The city’s claim for the taxes of 1869 and 1870 is absolutely unfounded. They were paid to and received by the sheriff, who then held writs which he was about to enforce against the assessed property; and the fact that they were not accounted for and did not reach the city's treasury, did not revive a liability which was discharged by a payment regularly made.
IT.
Opposition of E. H. Farrar, agent.
Thomas L. Maxwell — as sheriff of the parish of Orleans — received for Mrs. Fisher, two hundred and eleven dollars, which he failed to account for, and which are claimed against the succession of McCloskey, one of the sureties of Maxwell on his official bond. The executor opposes — as a bar to her demand the prescription of two years, and — to sustain that plea — his counsel rely on sections 2816 and 3546 of the Revised Statutes, which provide : “ That the sheriffs and their sureties shall be able to prescribe against their acts of misfeasance, non-feasance, costs, offences, and quasi-offences, after the lapse of two years from the day of the omission or commission of the acts complained of.”
In Hugh vs. Hernandez, a majority of our predecessors held “that the action against the sureties of a sheriff for money collected by him, and not accounted for to the party entitled to it, is barred by the prescription of two years.” 25 An. 360.
That construction is not justified by the terms of the law — for, as said by Mr. Justice Wyly, who did not concur in that opinion, “the sheriff’s obligation did not spring from any act of omission or commission, nor from an offence or quasi-offence. When he took the money, he committed no wrong, he discharged a duty, and — from the date of that lawful taking — incurred the obligation to restore.
The difficulty in this matter — added the dissenting Justice — arises from confounding the reason for the suit and the cause of the obligation. The sheriff failed or refused to pay over the money; this was the reason for the suit. The obligation to restore was not created by the failure or refusal to pay — it existed long before.
This construction is evidently correct, and Mrs. Fisher’s action against the sureties of the sheriff, is a personal action, which could have been barred but by the prescription of ten years.
[150]*150III.
Opposition of Hollingsworth.
In 1870, Thomas Maxwell attached, as belonging to a debtor of Gayarré and others, a lot of furniture which Déjean had purchased from Hearing, and sold to another party. A controversy grew out of' that attachment, and — while it was pending — Dójean released the furniture from the attachment, by leaving in the hands of the sheriff the price for which he had sold it — from four hundred and ninety-eight to five hundred dollars. He, thereafter, surrendered in bankruptcy and Hollingsworth purchased from his assignee the claim which he had' against Maxwell, on account of that deposit.
The executor contends that the sheriff was without authority to-receive money in lieu of the attached property, and that — by inducing him to accept that substitution — Déjean—by his own act — discharged his sureties from any liability as to that matter.
It appears — from Déjean’s testimony — that the furniture attached was released by the sheriff, not by virtue of any order of court, but under a private agreement entered into between them. The sheriff turned over to him part of the furniture which he held under and subject to the writ issued on the judgment of Gayarré and others. That was a violation of his official duty, for which he and the sureties on his bond could have been made to suffer, had the judgment creditors succeeded in maintaining their attachment; and — in order to protect Maxwell against the effects of his unauthorized act — Dójean deposited in his hands what they both considered as the value of the released furniture.
Free access — add to your briefcase to read the full text and ask questions with AI
The opinion of the court was delivered by
DeBlanc, J.
To the sixth provisional account filed by James D. Martin, as executor of the last will of Hugh McCloskey, three oppositions have been filed.
1. One by the city of New Orleans, in which it claims as being due by said succession taxes of 1868, 1869, 1870, 1871,1872,1873,1874, 1875, 1876,1877, and 1878.
[148]*148This opposition was partly maintained as to the taxes of 1878, and dismissed as to only the taxes alleged to have been levied in 1868,1869, and 1870.
2. Two others — one by David M. HolliDgswortli, and the third by E. H. Earrar, Esq., as agent of Mrs. Ellen T. V. Fisher. These are based upon claims against McCloskey, as one of the sureties of T. L, Maxwell, late sheriff of the parish of Orleans.
I.
City’s opposition.
The taxes of 1878 were levied on property belongingto the deceased’s succession, and which was sold — in March of that year — to pay legacies, and upon the express condition that the purchasers should assume the payment — over and above the price of adjudication — of all taxes due and exigible in 1878.
The city’s claim for the tax of that year was $1202 60, and — of that amount — the city received from one of the purchasers of the property sold subject to said tax, $525, leaving due a balance of $667 50. It is urged that — by thus dividing its tax-bill — the city acquiesced in the terms of the sale made in March.
“ The mere indication made by a debtor of a person who is to pay in his place, does not operate a novation,” unless the creditor has expressly declared his intention to discharge his debtor.
C. C. 2194 (2190), 2192 (2188).
The terms and conditions of the sale were not fixed with the consent of the city authorities, and could not — without that consent, affect its established rights ; nor can its acceptance of a part of its claim, be construed as an abandonment of the action which it had and has, to enforce the payment of the balance due, on the cash proceeds of the sale.
■ As to the taxes of 1871, 1873, 1874, 1875, 1876, and 1877, the executor contends that the property on which they were levied, has not been sold, and that the city cannot require that they be paid out of funds arising from the sale of other property. Were it not proven — as justly remarked by the district judge — that the estate of McOIoskeyis solvent, that the object of the -executor’s account is to distribute thousands of dollars to his legatees, that defence might be considered and sustained; but debts must be paid before legacies, and the city’s right to collect its annual revenues does not depend on exclusively the sale of the property subject to its tax-liens; and — as regards a solvent succession — that right may be exercised against any funds which belong to it and which are not affected by a privilege excluding that of the city.
In 1871, McCloskey purchased at sheriff’s sale, and for $51,000, which he paid cash, an improved lot of ground, on which — -in 1868 — the [149]*149city had levied a tax o£ $1200. At the date of the sale, no tax-lien was recorded against said property, and it is now settled that — since the promulgation of the act of 1869, which carried into effect the 123d article of the State constitution — no unrecorded privilege can affect third parties.
26 A. 592; 28 A. 496; 30 A. 293.
The city’s claim for the taxes of 1869 and 1870 is absolutely unfounded. They were paid to and received by the sheriff, who then held writs which he was about to enforce against the assessed property; and the fact that they were not accounted for and did not reach the city's treasury, did not revive a liability which was discharged by a payment regularly made.
IT.
Opposition of E. H. Farrar, agent.
Thomas L. Maxwell — as sheriff of the parish of Orleans — received for Mrs. Fisher, two hundred and eleven dollars, which he failed to account for, and which are claimed against the succession of McCloskey, one of the sureties of Maxwell on his official bond. The executor opposes — as a bar to her demand the prescription of two years, and — to sustain that plea — his counsel rely on sections 2816 and 3546 of the Revised Statutes, which provide : “ That the sheriffs and their sureties shall be able to prescribe against their acts of misfeasance, non-feasance, costs, offences, and quasi-offences, after the lapse of two years from the day of the omission or commission of the acts complained of.”
In Hugh vs. Hernandez, a majority of our predecessors held “that the action against the sureties of a sheriff for money collected by him, and not accounted for to the party entitled to it, is barred by the prescription of two years.” 25 An. 360.
That construction is not justified by the terms of the law — for, as said by Mr. Justice Wyly, who did not concur in that opinion, “the sheriff’s obligation did not spring from any act of omission or commission, nor from an offence or quasi-offence. When he took the money, he committed no wrong, he discharged a duty, and — from the date of that lawful taking — incurred the obligation to restore.
The difficulty in this matter — added the dissenting Justice — arises from confounding the reason for the suit and the cause of the obligation. The sheriff failed or refused to pay over the money; this was the reason for the suit. The obligation to restore was not created by the failure or refusal to pay — it existed long before.
This construction is evidently correct, and Mrs. Fisher’s action against the sureties of the sheriff, is a personal action, which could have been barred but by the prescription of ten years.
[150]*150III.
Opposition of Hollingsworth.
In 1870, Thomas Maxwell attached, as belonging to a debtor of Gayarré and others, a lot of furniture which Déjean had purchased from Hearing, and sold to another party. A controversy grew out of' that attachment, and — while it was pending — Dójean released the furniture from the attachment, by leaving in the hands of the sheriff the price for which he had sold it — from four hundred and ninety-eight to five hundred dollars. He, thereafter, surrendered in bankruptcy and Hollingsworth purchased from his assignee the claim which he had' against Maxwell, on account of that deposit.
The executor contends that the sheriff was without authority to-receive money in lieu of the attached property, and that — by inducing him to accept that substitution — Déjean—by his own act — discharged his sureties from any liability as to that matter.
It appears — from Déjean’s testimony — that the furniture attached was released by the sheriff, not by virtue of any order of court, but under a private agreement entered into between them. The sheriff turned over to him part of the furniture which he held under and subject to the writ issued on the judgment of Gayarré and others. That was a violation of his official duty, for which he and the sureties on his bond could have been made to suffer, had the judgment creditors succeeded in maintaining their attachment; and — in order to protect Maxwell against the effects of his unauthorized act — Dójean deposited in his hands what they both considered as the value of the released furniture.
Could Maxwell — as sheriff — have relieved himself from 'responsibility, by tendering to the creditors the amount thus deposited, and compelled them to receive it, in lieu of whatever rights they had acquired under the attachment? Assuredly not; and — had Déjean not failed and retained his claim, could he have enforced it against the sureties of Maxwell ? Would he not have been told ; “ You and he did what you had no authority to do — you trusted Maxwell, not the sheriff — your deposit was a voluntary, not a judicial deposit. It was not under an order of court that the sheriff delivered to you a part of the attached furniture, nor under any writ that he took your money. This he and you did of your own will, by mutual agreement, and that officer’s sureties are not liable for a loss which was the result of your own violation of the law.”
In the Gayarré case, introduced in evidence on behalf of Hollings-worth, our predecessors held that Hearing — Déjean’s vendor — was the owner of the furniture which had been attached as belonging to Gay-arre’s debtor. He might have complained of the delivery of the furniture to Dójean; but the latter was not a party to that suit, could not [151]*151have released said furniture on bond, and obtained from Maxwell, as a. favor, that which he could not have claimed as a matter of right — and that was the possession of effects which he held for a judgment creditor, and which — thereafter—were decreed to belong to Hearing. The unauthorized act, which alone exposed the sureties of the insolvent sheriff to an action on the part of the owner and seizing creditor, for the value of the effects delivered to Déjean, was that delivery itself — tor it was his duty — as sheriff — to retain, subject to the order of the court, the effects-which he had attached. As to the deposit of the money, that was Dé-jean’s act: it created a personal, not an official liability, which Déjean himself could have enforced, and which Hollingsworth — as his transferee — can enforce but against Maxwell.
This defence, we presume, was not urged in the lower court. It is-not alluded to in the brief submitted by Hollingsworth’s counsel, nor in the exhaustive opinion which precedes the decree rendered by the district court. Howsoever that may be, that defence must prevail.
It is — therefore—ordered, adjudged and decreed that, in so far only as it sustains the opposition of David M. Hollingsworth, the judgment, appealed from is avoided and reversed, and his demand rejected; the costs of his opposition in the appellate and district courts to be paid by him.
It is further ordered, adjudged and decreed that — in all other respects — the judgment appealed from is affirmed at the costs of the succession of Hugh McCloskey.