Amato v. Ermann & Cahn

• Decision Date: 06 May 1895
• Docket Number: 11,782
• Citation: 47 La.Ann. 967,17 So. 505
• Parties: C. AMATO ET ALS. v. ERMANN & CAHN ET ALS
• Court: Louisiana Supreme Court

17 So. 505

47 La.Ann. 967

C. AMATO ET ALS. v. ERMANN & CAHN ET ALS

No. 11,782

Supreme Court of Louisiana

May 6, 1895

Argued April 26, 1895

APPEAL from the Twentieth Judicial District Court for the Parish of St. James. Guion, J.

A number of laborers, creditors of one Auguste Servel, unite in a joint petition claiming amounts due them by Servel for wages for labor performed by them in his employ on his Golden Grove plantation, in the parish of St. James, from September 1893, to February, 1894, in planting, winrowing and planting cane, and in harvesting and manufacturing into sugar the cane crop on said plantation in the year 1893. That to secure the payment of their claims they have a privilege, under Art 3217 of the Civil Code, on all the mules, carts, agricultural implements and other things which serve for the working of the plantation. That Ermann & Cahn, as holders of mortgage notes drawn by the said Servel, applied for and obtained a writ of seizure and sale in the District Court of the parish of St. James, and under said writ the sheriff of said parish seized and advertised for sale in block, the said plantation together with forty-five mules, nineteen three-mule carts and other movables on which they had a privilege, as aforesaid superior in and priming the mortgage rights of the seizing creditors, and on the 12th day of January, 1895, said plantation and movables, were, by said sheriff, acting under said writ, adjudicated in block to said Ermann & Cahn for the price of seventeen thousand seven hundred and thirty-five dollars, as the whole would appear by the record in that suit. That petitioners became intervenors and third opponents in said case of Ermann & Cahn vs. Servel, and in order to preserve their privilege, and to adjust their rights with those of the seizing creditors, they applied for and obtained an order for a separate appraisement; (1) of the Golden Grove plantation, and (2) of all the movables serving for the working of said plantation, and effected with a privilege in favor of petitioner, as aforesaid, said movables comprising forty-five mules, nineteen three-mule carts, and all the agricultural implements; that the said adjudication of the said plantation, and movables made to Ermann & Cahn, on the 12th January, 1895, and the sheriff's deed executed subsequently to said adjudication, are null, void and of no effect for the reasons:

1. Because the aforesaid order of the court, directing that the said plantation and movables be separately appraised, was disobeyed and disregarded.

2. Because the naked plantation was intended to be appraised at nineteen thousand dollars, which is about its real value, while all the movables, comprising forty-five mules, nineteen three-mule carts, all the agricultural implements and other things which serve for the working of the plantation, were not appraised in detail or minutely as required by law; but were appraised in block, at one thousand dollars only -- that is, at one-third or one-fourth their actual value -- and said appraisement is fraudulent, and is the result of collusion between Ermann & Cahn and the said Serval, for the purpose of depriving petitioners of their just rights.

3. That the mortgage notes, on which executory process issued in the case of Ermann & Cahn, were originally held by Miss P. A. Hopkins, who had instituted executory proceedings against the said Servel. Large expenses had been incurred under her seizure of the said plantation, amounting to eight thousand two hundred and ninety-nine dollars, which were decreed to be paid by priority over said mortgage notes, amounting to twenty thousand dollars. By an act passed about the 9th of June, 1894, before Felix J. Dreyfous, a notary public for the parish of Orleans, said notes and the mortgage rights of the said Miss Hopkins, under her seizure, were transferred to the said Ermann & Cahn for the price of thirty-two thousand three hundred and forty-three dollars, and the said Ermann & Cahn caused themselves to be substituted as plaintiffs in said case of Hopkins vs. Servel, and then released said seizure; that a large part of said price of thirty-two thousand three hundred and forty-three dollars, paid by Ermann & Cahn for the purchase of said notes (they allege about fifteen thousand dollars of said price) were furnished to them by the said Auguste Servel for the purpose of making said payment. That there was at the time of the sale of the plantation, on the 12th of January, 1895, and there was still a private agreement between the said Ermann & Cahn and the said Auguste Servel, by which the former was to retrocede, and sell the Golden Grove plantation to the said Servel, through a third person, for a bonus, and the difference between the cash actually paid by the said Ermann & Cahn and the said sum of thirty-two thousand three hundred and forty-three dollars.

That a proposition substantially similar had been made to Miss Hopkins, through her counsel, while the plantation was under her seizure. That the mortgages on said property exceed one hundred thousand dollars.

That since the adjudication to the said Ermann & Cahn, one Pierre Schepp, a confidential friend and adviser of the said Servel, and his alter ego in the protection of his interests in the protracted litigation in which the said Golden Grove plantation was involved, has been in charge of the same, employing overseers, working it in his own name, but for account of the said Servel. That, as a part of a long concocted scheme to cover up and shield the Golden Grove plantation from the pursuit of his creditors, the said Servel, on the 29th July, 1889, by act before Gaudet, notary public, executed a simulated mortgage on said plantation, second in rank, and still of record, in favor or the said Pierre Schepp, for thirty thousand dollars. That no consideration was paid for said mortgage, which is a pure fiction, and has no legal existence.

Ermann & Cahn excepted to plaintiff's demand; that the court was without jurisdiction, rationae personae, as the firm of Ermann & Cahn, and the individual members thereof were residents of the parish of Orleans, and are not suable in the parish of St. James. That there was a misjoinder of both plaintiffs and defendants. That the petition sets forth no cause or right of action, and discloses no interest in the plaintiffs in attacking the mortgage of Ermann & Cahn, or the sale and adjudication made to them. That the plaintiffs are estopped and debarred from suing to annul the sale or adjudication to the defendant or the mortgage, under which said sale was made for the following reasons:

1. That the plaintiffs, claiming a laborers' privilege upon the growing crop of said plantation for the year 1893, and also on the crop of 1894, entered into an agreement with Ermann & Cahn, recognizing them as mortgagees, and as holding and owning the mortgage under which the adjudication was made, and by the terms of which agreement plaintiffs accepted in compromise and settlement of their alleged claim and lien on the said crop, the sum of eight hundred dollars; that having by this agreement recognized the validity and genuineness of the mortgage sued on by them, and having received a benefit therefrom under said compromise and agreement, the plaintiffs are estopped from contesting or disputing the same.

2. That the plaintiffs filed a third opposition in the said mortgage foreclosure proceedings, and claimed the laborers' privilege upon the working animals and implements described in their petition, secured an order of court for the separate appraisement of same, appointing under said order an appraiser who acted on their behalf...