Mary Fort Adams, Administratrix of John Hagan, Jun Deceased, Appellant v. John Preston and Caroline Preston His Wife

• Decision Date: 01 December 1859
• Citation: 16 L.Ed. 273,22 How. 473,63 U.S. 473
• Parties: MARY FORT ADAMS, ADMINISTRATRIX OF JOHN HAGAN, JUN., DECEASED, APPELLANT, v. JOHN S. PRESTON AND CAROLINE M. PRESTON HIS WIFE
• Court: U.S. Supreme Court

63 U.S. 473

22 How. 473

16 L.Ed. 273

MARY FORT ADAMS, ADMINISTRATRIX OF JOHN HAGAN, JUN., DECEASED, APPELLANT, v. JOHN S. PRESTON AND CAROLINE M. PRESTON HIS WIFE.

December Term, 1859

THIS was an appeal from the Circuit Court of the United States for the eastern district of Louisiana.

The facts in the case were complicated, and not to be understood by a brief narrative. The reader is therefore referred to the opinion of the court, in which they are historically related.

It was argued by Mr. Taylor for the appellant, who also adopted a brief filed by Mr. Steele, and by Mr. Benjamin for the appellees.

Mr. Taylor made the following points:

I. A mortgage in the State of Louisiana, when duly inscribed in the register of mortgages, in the parish where the debtor has his domicil, will affect or bind the slaves of the debtor, no matter in what part of the State such slaves may be employed.

C. C., 453, 454, 458, 461, 3246, 3247, 3248, 3250, 3216, 3238.

C. M. Hyams v. McH. Smith, 6 An., 363.

Patin v. Creditors, 9 L. R., 71.

Hooper v. the Union Bank of La. et al., 10 R. R., 63; 11 R. R., 20.

Cumming v. Bionalt, Curator, et al., 2 An., 794.

Crouch v. Lockett, 3 An., 121.

Bibb et al. v. Union Bank, 3 An., 324.

Spencer v. Amis, 12 An., 127.

Voorhies v. De Blanc, 12 An., 864.

II. No mortgage of any kind existed in favor of the heirs of Hampton upon the slaves, which are the object of the present action, on the 2d day of February, 1841, when they filed their intervention in the suit then depending in the Parish Court of New Orleans, wherein the syndics of the creditors of Thomas Barrett were plaintiffs, and Robert Bell was defendant, or at any time thereafter, nor did any privilege exist on them in favor of the heirs of Hampton; and these slaves were then affected by and subject to the judicial mortgages resulting from the judgments duly recorded against Thomas Barrett in the parish of New Orleans, where he had his domicil.

C. C., 3333.

Transcript, 104 to 108.

C. C., 2216, 3246, 3247, 3248, 3250, 3238, 3289, 3317, 3318, 3290.

III. The proceedings had in the case of the Syndics of the Creditors of Thomas Barrett against Robert Bell, in the Parish Court of New Orleans, upon the intervention of the heirs of Hampton, filed therein, were and are, so far as to the mortgage rights of the Union Bank on the property of the insolvent Barrett, res inter alios acta, and can have, in law or equity, no effect in sheltering the slaves in question from pursuit, when the object is to subject them to the operation of the judicial mortgages which existed in favor of that bank, at the time of making such intervention. Neither was there anything in the proceedings in the case of Thomas Barrett v. his Creditors which could have had any such effect.

Bullard and Curry's Dig., 479, and seq., secs. 44, 10, 11, 12, 44, 45, 46, 15, 16, 31, 35.

Brown v. Kenner, 3 M. R., 278.

Saul v. Creditors, 7 N. S., 425.

Rivers v. Hemstack, 2 R. R., 187.

Egerton v. Creditors, 2 R. R., 201.

Corion v. Millaudon, 3 An., 664.

Gravin v. Lafon, 7 N. S., 613.

Pandelly v. Creditors, 9 L. R., 387.

Morgan v. Syndics, 4 L. R., 174.

Morgan, Dorsey, & Co. v. their Creditors, 19 L. R., 84.

Suc. of A. Petayvin, 10 R. R., 118; 1 An., 92.

C. C., 1169, 1170.

Robert v. Creditors, 2 An., 535.

Lee v. Creditors, 2 An., 994.

West v. Creditors, 3 An., 532.

Williams v. Nicholson, 5 An., 720.

Mr. Benjamin made the following points:

I. The bill must be dismissed, for want of proper parties. This objection was taken in the court below, and is insurmountable- The bill prays to annul a judgment rendered in a suit between the syndics of Thomas Barrett and Robert Bell, and the heirs of Wade Hampton intervening; yet neither of the original parties to that suit is before the court, and only one out of the three intervening parties.

It seeks to set aside a sale made by Barrett's syndic and Robert Bell to the three heirs of Wade Hampton; yet none of the vendors are before the court, and only one of three purchasers is made party.

The bill attempts to excuse the want of parties that it admits to be necessary, by averring them to be beyond the jurisdiction of the court.

This excuse cannot avail.

Shields v. Barron, 17 Howard, 130.

Corion v. Millaudon, 19 Howard, 113.

II. The Parish Court of New Orleans was vested by law with full power over all the property ceded by the insolvent, and over the respective claims of the creditors. This jurisdiction has been exercised, and the regularity of the proceedings and legality of the action of that court cannot be reviewed in this court, which has no jurisdiction over the settlement of insolvencies in the State courts.

Any error or illegality in the proceedings of the Parish Court should have been corrected by appeal to the Supreme Court of Louisiana.

Tarver v. Tarver, 9 Peters, 174.

Gaines v. Chew et al., 2 How., 619, 644.

Fonvergne et al. v. City of New Orleans, 18 How., 471.

That the law of Louisiana vested in the Parish Court full and exclusive jurisdiction over the property surrendered, and the distribution of its proceeds amongst the creditors, is too clear to admit of dispute.

Insolvent Law of Louisiana, 1817.

Insolvent Law of Louisiana, 13th March, 1837.

Act of Louisiana Legislature, 1826.

All the property previously owned by the insolvent becomes vested in the creditors, represented by the syndic as their trustee.

Schroeder v. Nicholson, 2 L. R., 354.

Morgan v. Creditors, 7 L. R., 62.

Dwight v. Simon, 4 An., 492.

And all creditors who are parties to the insolvent proceedings are absolutely prohibited from seeking remedies in any other court, even of the State of Louisiana, than that in which the insolvency is pending.

Jacobs v. Bogart, 7 Rob. Rep., 162.

Marsh v. Marsh, 9 Rob. Rep., 46.

Tyler et al. v. Cred's, 9 Rob. Rep., 373.

And not only is this so, but previously-existing suits in other courts are all required by law to be transferred to the court having jurisdiction of the insolvency, and to be there cumulated with the insolvent proceedings.

Code of Practice, art. 165, sec. 3.

III. If, however, it be pretended that the Circuit Court had jurisdiction of the complainant's demand, on the ground of the frauds charged in the bill, the answer is, that those frauds are denied in the answer, and not one scintilla of proof has been offered in support of them.

The allegation that it was a fraud to claim a mortgage, because, in complainant's opinion, the effect of the mortgage had expired by lapse of time, without renewal of registry, is not worthy of serious refutation.

No attempt was made to prove any of the fraudulent combinations charged in the bill, and indignantly denied by the answer.

Indeed, the charge of fraud appears to be entirely abandoned, as not a word is said to support it in the elaborate brief filed by the counsel for appellant in this court.

IV. Should it be decided by the court that the foregoing points are not sustainable, and that the merits of the controversy between the parties are open for examination, then it is contended, in behalf of appellees:

1. That complainant has no such mortgage rights as are alleged by him, because these mortgages were cancelled many years before he acquired the judgments assigned to him.

These mortgages were cancelled by consent of complainant's assignor.

Independently of this consent, they were cancelled by the syndics by virtue of power vested in them by law, and this was done on the 2d June, 1841.

Act of 1817, sec. 31.

It is true that this act directs the proceeds of the property to be kept subject to the same rights in favor of mortgagees as they had on the property itself; but this mandate of the law, as to what is to be done with the proceeds of sale after the mortgage has been cancelled, cannot affect the legality of the erasure and cancellation ordered before the sale 'in order to effect it.'

These mortgages claimed by complainant were also ordered to be erased and cancelled by judgment of the court, rendered contradictorily with the Union Bank more than four years before the transfer by the bank to the complainant.

It is true that this last fact is not averred in the answer, and was not made a question by the pleadings, but it was proven by the record evidence introduced by complainant himself at the trial, and is conclusive against him.

The complainant seems to think that because the law provides that mortgages cease to have effect after a lapse of ten years from the registry, unless the registry be renewed, it is therefore in the power of a mortgagee to revive a mortgage legally cancelled and erased by the ex parte act of reinscribing it on the books of the mortgage office. No argument can be needed on such a pretension. If, however, the position of the complainant is misapprehended by us, we seek in vain for any other basis of his assertion in the bill, that he still holds the mortgages erased before his purchase of the judgments.

Observe, in the transfer from the bank to Hagan, the bank does not profess to sell any mortgage claims; does not pretend that there then, in 1849, existed any inscription of the judgments, but simply transfers its claims without any warranty. The idea on which this suit was brought is plainly an afterthought, and the suit itself purely a speculation in litigation.

Again: The appearance and action of the bank in the concurso or meeting of creditors, and fixing the terms of sale of the property, was a legal waiver of any right to follow the property, and an agreement to look alone to the proceeds in the hands of their agents, the syndics.

Egerton v. Creditors, 2 Rob., 201.

Saul v. Creditors, 7 N. S., 446, 447.

Finally, the sale of the property by order of court in the artition suit extinguished the mortgages, and left the parties entitled to them no other recourse than to claim the proceeds of the sale. The law is the same in probate and insolvent sales.

Fabre v. Hepp, 7 Annual, 5.

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