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the property was propounded and answered | to an attack upon his discharge in all courts. unfavorably to his contention. The section in A discharge in bankruptcy cannot be colquestion reads: laterally attacked. Young v. Stevenson, 73 Ark. 480, 84 S. W. 623.

It is not impeachable in a state court on the ground that the bankrupt was guilty of

"The trustee may avoid any transfer by the bankrupt of his property which any creditor of such bankrupt might have avoided, and may recover the property so transferred, or its value, from the person to whom it was transfer-willfully concealing property. Id. red, unless he was a bona fide holder for value prior to the date of the adjudication. For the purpose of such recovery, any court of bankruptcy, as hereinbefore defined, and any state court which would have had jurisdiction if bankruptcy had not intervened, shall have concurrent jurisdiction."

The federal court certainly has concurrent jurisdiction and positively decided that the trustee has no right to the property.

That court had the undoubted authority to act and did act after having considered the title to this property which is in the name of the wife.

At this time and in these proceedings, the trustee cannot escape the effect of the judgment.

[3] Not only that: The bankrupt applied for his discharge; his application was opposed. One of the grounds of opposition was that he should surrender the property which was in the name of his wife.

Here the opposition of defendant has much greater force, for all the questions presented by plaintiff have heretofore been decided in matter of the bankruptcy proceedings. Foster's Federal Practice, vol. 2, p. 2166, § 643.

The trustee in bankruptcy has the right in the bankruptcy proceedings to set aside liens, preferences, and conveyances. Foster's Federal Practice (5th Ed.) 2166, 644.

If, however, the federal court has jurisdiction of the question involved, as it undoubtedly has, the title here is not assailable. If there is a right and it was not within the reach of the bankruptcy court (we think it was), then there must be another action than the one here instituted. For years this action remained dormant on the docket of the civil district court. Nothing was done until quite a time after action had been taken in the bankruptcy proceedings and the issues decided.

Whether

We will note before concluding: the property belonged to the husband or the wife or the community is not a matter to be considered, as the question has been decided by a court of competent jurisdiction. do not consider it essential to pass upon the plea of res judicata further than we have in determining the issues as heretofore.

We

district court is affirmed.
For reasons stated, the judgment of the

[1] The court considered the grounds of the opposition and overruled and dismissed the opposition, and despite this opposition discharged the bankrupt on May 29, 1912. It follows that over a year has elapsed since his discharge. No suit was ever brought to revoke the discharge, nor has it ever been attacked in any way. The suit may be instituted within a year after the discharge for a revocation of a discharge before the court of original jurisdiction. The state court has no jurisdiction to revoke the discharge granted by the federal court. Under all system of law, the court of original jurisdiction alone has the right to revoke its judgment unless it is absolutely null and void, and then it may be so declared by any court. No one asserts here that the judgment is null and void. Plaintiff does not attempt to revoke the discharge. His purpose is to treat the judgment as ineffective in so far as relates to the wife's 1. PRINCIPAL AND AGENT (§ 69*) - MUTUAL

claim to the property. It must be remembered that the federal District Court decided that this property was not a part of the property of the bankrupt, a decision which we must hold as binding in so far as the trustee is concerned. No appeal was taken. If the trustee thought that the judgment was erroneous, his remedy was by appeal. The Circuit Court of Appeal is invested with appellate jurisdiction. Foster's Federal Practice (5th Ed.) p. 2337, § 656.

PROVOSTY, J., dissents.

(134 La. 397)

No. 19,876.
BELL v. GERMAIN BOYD LUMBER CO.
(Supreme Court of Louisiana. Jan. 5, 1914.)
(Syllabus by the Court.)

RIGHTS AND DUTIES-PURCHASE BY AGENT
AT TAX SALE.

An agent, charged with the duty of paying taxes on certain lands, cannot acquire title to principal, such a purchase is a mere payment the same by purchase at a tax sale. Quoad the of taxes, and vests no title in the purchaser.

[Ed. Note.-For other cases, see Principal and Agent, Cent. Dig. §§ 130-145; Dec. Dig. § 69.*]

2. TAXATION (8 734*)—TAX SALE-VALIDITY.

Where the evidence shows that certain lands were assessed to certain parties, who paid taxes thereon, a tax sale of the premises under another assessment for taxes of the same year will be declared a nullity.

There must be a direct attack made on the discharge; it cannot be considered an absolute nullity, and that attack must be made in the federal court. It would be the occa- Cent. Dig. 88 1408, 1470-1473; Dec. Dig. § [Ed. Note.-For other cases, see Taxation, sion of confusion if a bankrupt were subject | 734.*]

Lot 9 includes

3. EVIDENCE (8 460*)-PAROL-TAX RECEIPTS. | lot 9, containing 276 acres. Incorrect or vague descriptions of proper-portions of the S. E. 14 of section 28, of the ty indorsed on tax receipts do not conclude the tax debtor from showing on what particular S. W. 4 of section 27, of the S. E 14 of sectract or tracts of land the taxes were really tion 33, and of the W. of the W. 1⁄2 of secpaid. tion 34.

[Ed. Note.-For other cases, see Evidence, Cent. Dig. §§ 2115-2128; Dec. Dig. 8 460.*]

Appeal from Thirteenth Judicial District Court, Parish of Grant; W. F. Blackman, Judge.

Action by Alfred W. Bell, Sr., against the Germain Boyd Lumber Company. From judgment for defendant, plaintiff appeals. Affirmed.

Plaintiff alleged that the defendant was in actual possession of said described property, and engaged in cutting and removing the timber therefrom.

We annex plat marked "Plaintiff B" for reference. In 1893 John Bell bought at a tax sale the following described property assessed to Francois Leclair, unknown owner, to wit:

"2425/100 land, being section 44, township 8 The following is the plat "Plaintiff B" re- north, range 5 west, and fractional section 87, ferred to in the opinion: township 7 north, range 4 west."

[graphic][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][ocr errors][subsumed][ocr errors][subsumed][merged small][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][merged small][subsumed][merged small][merged small]

The assessment under which the tax sale | 1905 Mrs. Christy paid $5.35 on real estate was made reads as follows: described as follows:

"Succession of Virginia Bell, A. W. Bell, Agt. "608 acres, lots 8 and 9, except 100 acres; and lot 8, T. 8 N., R. 5 west, Spanish section 44, Waddell survey."

Mrs. Virginia Bell died in 1901, and A. W. Bell, the surviving husband, acted as the agent of her succession, and had the property sold for taxes for the purpose of buying it in for himself.

Bell transferred the lands to one of his sons, who shortly afterwards reconveyed the property to his father.

The defendant assails the tax sale to Bell on the ground that taxes for 1905 had been previously paid by the authors of its titles. On January 2, 1906, Richmond Willis paid taxes for 1905 on the following described lands, to wit:

"235 acres, that part of lot 9 and tract 3 of lot 8, Waddell land, S. & W. of Will Rogers, in Secs. 33 and 34, T. 8, R. 5 W."

In the sale from Rogers to Harrison made in 1895, the tract is described "the north end of lot nine and the north end of tract three of lot eight of Waddell survey." From the tax receipt of Harrison for the year 1905, it appears that he also paid taxes on some portion of lot 9.

In April, 1880, S. K. Williams sold to Mrs. Mary M. Christy, wife of William Christy, a tract of land described as follows:

"Beginning at the northwest corner of the lands known as the Waddell tract, Sec. 28, T. 8, R. 5 W., and running thence south eight degrees east for seven hundred and twenty six (726) yards, thence east eight degrees north for four hundred and ninety (490) yards to the line dividing lots 8 and 9 of the Waddell tract, thence north fifteen degrees west for five hundred and fifty (550) yards to the back line of the Waddell tract, thence west twenty degrees north for five hundred yards to the place of beginning, containing sixey-three acres more or less, together with all and singular the premises and appurtenances thereto belonging or in any wise appertaining."

This description covers the northwest part of lot 9 or section 44. It appears that W. F. Christy bought 40 acres of land adjoining the 63 acres on the south. Christy testified to the occupancy and possession of these tracts since the year 1880, and that he and his wife never owned other lands. Plaintiff's map C shows the "Molly Christy tract" as marked "B," "B," "B."

The tax receipts in the record shows that from 1884 to 1905, Mrs. Christy and her husband paid property taxes on land, properly described, misdescribed, and sometimes not described at all. As a general rule, the receipts called for 103 acres. For the year 64 SO.-15

"103 acres N. E. 4 of S. E. 4, Sec. 33, T. 8, R. 5 W., Waddell survey."

The sectional description is incorrect, but the number of acres, and the reference to the Waddell survey, taken in consideration with the titles of the parties and other tax receipts, and the fact that the Christys owned only two pieces of real estate, aggregating 103 acres, sufficiently identified the land. Mrs. Christy continued to pay taxes on the same land down to the year 1911.

Richmond Willis paid taxes for the year 1905, on the following described real estate: 8, Waddell lands, S. and W. of Will Rogers, “235 acres, that part of lot 9 and tract 3, lot being in Secs. 33 and 34 of T. 8, R. 5 W."

In 1889 John Young sold to Willis Rogers— "the north end of lot 9 and the north end of tract 3, lot 8, of Waddell survey."

In 1895 Rogers sold by same description to T. J. Harrison. In 1896 R. L. Lowe sold to Richmond Willis

"all that part of lot 9 and all that part of tract 3 of lot 8 of Waddell survey south and west of Will Rogers' land as surveyed, etc., containing in the aggregate 235 acres of land, more or less."

This description covers the south and west part of lot 9. Map C, filed by plaintiff, shows that the Richmond Willis tract marked "A," “A," "A," includes the south and southwest parts of lot 9.

T. J. Harrison paid taxes for 1905 on 1,020 acres of land, including—

"100 acres in the W. % of S. W. 4, Sec. 27, and part of N. W. 4, section 34, ship 8, R. 5 W."

town

Lot 9 lies partly in the said sections, and the maps and deeds show that Harrison owned the north part of lot 9 or Spanish section 44. The three tax receipts for the year 1905 were intended to cover all of said lot or section. If any part thereof was omitted, it has escaped our scrutiny, and has not been pointed out by the plaintiff. A. W. Bell, Sr., has no title to the lands sued for except what he derived from the tax sale of 1906. As "agent" of the succession of Mrs. Virginia Bell, his purchase at tax sale was a mere payment of the taxes for 1905. Cooley on Taxation (3d Ed.) 965-968. Hence by such purchase the plaintiff acquired no title as against the succession of Virginia Bell. Whether the said succession acquired a title by the tax purchase made by Mrs. Bell need not be considered.

Judgment affirmed.

catees, and having refused to accept title, the present proceeding was instituted against

(134 La. 410)
No. 19,840.
SUCCESSION OF LUND v. BACCICH & them in said court.
DE MONTLUZIN.

(Supreme Court of Louisiana. June 30, 1913. not be ordered to accept title, and be con

On Rehearing, Feb. 2, 1914.)
(Syllabus by the Court.)

1. EXECUTORS AND ADMINISTRATORS (§ 372*)— SALE OF PROPERTY-PROCEEDINGS AGAINST

ADJUDICATEE-JURISDICTION.

A court which has authority to order the sale of property in a probate proceeding has jurisdiction to compel the adjudicatee at the sale to complete his contract, although he may not reside within the parish over which the court has jurisdiction.

[Ed. Note.-For other cases, see Executors and Administrators, Cent. Dig. §8 1518, 1527; Dec.

Dig. § 372.*]

2. JUDGMENT (§ 540*)-RES JUDICATA-PLEA. Where the parties to suits are not the same and the facts are different, the plea of res judicata will not lie.

[Ed. Note.-For other cases, see Judgment, Cent. Dig. 1079; Dec. Dig. § 540.*] 3. EXECUTORS AND ADMINISTRATORS (§ 372*)SALE OF PROPERTY-PROCEEDINGS AGAINST ADJUDICATEE SUFFICIENCY OF EVIDENCE.

The evidence of the various witnesses shows that the land in question is not cut by a bayou and is not public land, and is therefore not subject to the objections of defendant on this point. [Ed. Note.-For other cases, see Executors and Administrators, Cent. Dig. §§ 1518, 1527; Dec. Dig. § 372.*]

4. EXECUTORS AND ADMINISTRATORS (§ 372*)SALE OF PROPERTY-PROCEEDINGS AGAINST ADJUDICATEE-DEFENSE - EXISTENCE

MORTGAGE.

OF

As the mortgage on the property is to be paid out of the purchase price and the vendee tendered a title free from all incumbrances, they cannot urge this mortgage as a reason for not accepting title.

[Ed. Note.-For other cases, see Executors and Administrators, Cent. Dig. §§ 1518, 1527; Dec. Dig. 372.*]

Appeal from Thirteenth Judicial District Court, Parish of Rapides; W. F. Blackman, Judge.

Proceedings by Succession of Lund against Baccich & De Montluzin, adjudicatees, on rule to show cause why they should not be ordered to accept title and make payment. From a judgment for defendants, plaintiff appeals. Reversed on rehearing.

W. C. & J. B. Roberts, of Colfax, and Foster, Milling, Brian & Saal, of New Orleans, for appellant. White & Thornton & Holloman, of Alexandria, and F. J. Dreyfous and A. D. Danziger, both of New Orleans, for appellees.

It is a rule to show cause why they should demned to pay the price of said adjudication; or, in case of their failure to do so within five days from rendition of judgment, why said property should not be sold à la folle enchère.

They pleaded to the jurisdiction of the Rapides court, ratione persone. The rule is that a party can be sued only at his domicile. C. P. 162. To that rule there are exceptions; and the plaintiff in rule contends that this case falls within the exceptions stated in article 164, C. P., as follows:

"In matters relative to successions, the defendants, though domiciliated elsewhere, must be cited to appear before the court of the place where the succession has been opened.

"1. In all suits brought by the heirs against each other, until after partition inclusively. the deceased previous to the partition. "2. In all suits brought by the creditors of

"3. In all suits relative to the execution of

testamentary dispositions until the final settlement of the affairs of the estate has been ef

fected.

been or may be made belonging to one or sever"4. When a partition of a succession has al heirs, who are present or represented therein, all the real and personal actions, or others which are relative to said succession, shall be brought against the said heirs before the court where the said succession is opened."

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BREAUX, C. J. Baccich & De Montluzin, at a succession sale of property belonging to the succession of H. W. S. Lund, became the adjudicatees of the tract of land of the late H. W. S. Lund. After the adjudication, they refused to sign the deed of sale made to them in accordance with the adjudication.

Because they would not comply with their bid, the testamentary executrix of the suc cession sought by rule to compel them.

PROVOSTY, J. Real estate situated in New Orleans having been offered for sale at public auction in New Orleans by virtue of an order made by the district court of the The rule recites the price of the adjudicaparish of Rapides in the matter of the suc- tion, and gives a description of the property. cession of H. W. S. Lund, in course of ad- It also mentions that 10 per cent. of the ministration in said court, and the defend- price was deposited as required, to use a ants Baccich and De Montluzin, residents well-understood expression in business, "to of New Orleans, having become the adjudi- hold the bid." In the prayer of the rule,

plaintiffs ask an order from the court to compel these adjudicatees to sign the notarial deed tendered and pay the price, which amounted to $42,975, with 8 per cent. per annum interest from December 7, 1911. There were other recitals in connection with the price and other details gone into, in regard to it.

In the alternative, plaintiffs in rule ask that the property be resold after legal delays and advertisements at the risks and expense of the defendants in rule.

Part of the prayer asks for specific performance. Although inartfully drawn, effect is given to it. The demand was substantially for a sale à la folle enchère.

The defendants in the first place pleaded res judicata.

In the case of Zagama v. City of New Orleans et al., 128 La. 386, 54 South. 916, between different parties and relating, not to the same property, but to property on the Gentilly Road, this court decided adversely to the issues presented in this case; but it must be said here that the evidence materially differed between the two cases. The decision rendered in this case is cited as res judicata. Zagama v. City of New Orleans, 128 La. 388, 54 South. 916.

The defendants filed an exception in the district court to the jurisdiction of the court, as they resided in the city of New Orleans, and not in Rapides parish, where the late H. W. S. Lund lived at the time of his death.

The defendants pleaded the general issue except in so far as they admitted certain facts alleged. They admitted that they purchased at public auction on December 7, 1911, for the price before mentioned, but they denied that a good title had been tendered to them; that, on the contrary, it is a title suggestive of lawsuits. They represent that it was the duty of the vendor to deliver the land which they have agreed to sell, which plaintiffs failed to do.

They alleged further that the city of New Orleans was entitled to a right of servitude of way along the banks of Bayou Gentilly, or that in any event the said Bayou Gentilly is (no) part of the public domain, but that the city has the right to convey its rights to the bayou and to the roads.

If that be correct, then they claim that they are entitled to a reduction of the price proportionate to the value and extent of the property adjudicated to them to which no title can be given, and for which no tender has ever been made. They represent: That value of the property tendered to them has deteriorated on account of the Bayou Gentilly and the roads to which the city of New Orleans has a right of servitude. That because of this alleged servitude the property is worth less than they had a right to think it was worth at the time it was adjudicated to them. That the bayou and the roads divide the front of the property and leave a

tilly Road. They also said that it was their intention originally to pay cash for the property; that, in the event the court found that the title is sufficient to the entire tract, then that they should not be condemned to pay more than the legal rate of interest less the amount deposited by them in the hands of the auctioneer. They ask for a dismissal of the rule taken out against them, and in the alternative that the succession be condemned to pay to them that portion of the price of the land of which the succession is in possession.

The first proposition for discussion (raised by defendants for the first time on appeal) relates to the plea for specific performance and the alternative plea for a resale urged by plaintiffs in rule, which they aver is not sufficiently clear to sustain a judgment.

It is hardly proper at this time to dismiss the action on the grounds urged. The defendants in rule are called upon by it to specifically perform their contract, and, in case it is not performed, then the plaintiffs ask that the property be resold. In one sense it was possible to aver that the defendants should pay or that the property be resold. As an independent proposition, specific performance cannot be ordered at this time and in these proceedings, by reason of the fact that the court at the succession domicile is without jurisdiction to compel specific performance. The district court of Rapides had jurisdiction to order the resale; but that was all. The court may have jurisdiction of one of the grounds of the action and not of another and pass upon the former. The question of the right to the resale will be decided.

Jurisdiction.

[1] We held heretofore in the present case that the district court of Rapides parish, in which the succession was opened, has no jurisdiction of the transfer to the defendants, and it follows no authority to issue an order to resell the property.

Defendants, after they had become adjudicatees, declined to accept and sign the deed. They refused to complete the sale. They had substantially bound themselves to sign this deed. It was an obligation on their part to sign, but, owing to their refusal, it remains an incomplete act in the settlement of the succession. The court had sufficient jurisdiction to assert its authority. By becoming adjudicatees, the defendants had made themselves parties to the proceedings; they rendered themselves subject to the court's authority to compel them to do that which they had bound themselves to do or show reasons to justify their conduct. Jurisdiction continues until the sale is completed and the deed signed. Until then, the court having probate jurisdiction has authority to compel obedience regarding the signing of the auctioneer's deed or to order that the property

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