Henderson v. Wadsworth McCarthy/Opinion of the Court

We think the motion to dismiss the writs of error must prevail. The obligation upon which the suit against the heirs of William Henderson was founded was based, not on the note made by him, but upon the fact that they had, without inventory, taken possession of the property of the succession, and had thereby subjected themselves each to pay his proportionate share of the debts of the succession. This is evident from the following articles of the Revised Civil Code of Louisiana of 1870:

'Art. 1422. The personal action which the creditors of a succession can exercise against the heirs has for its basis the obligation which the heirs are under to discharge the debts of the deceased. This action is modified according as the deceased has left one or several heirs.

'Art. 1423. The heirs, by the fact alone of the simple acceptance of a succession left them, contract the obligation to discharge all the debts of such succession to whatever sum they may amount, though they far exceed the value of the effects composing it. The only exception to this rule is when the heirs, before meddling with the succession, have caused a true and faithful inventory thereof to be made; * *  * for in this case they are bound only for the debts to the value of the effects found in the succession.'

'Art. 1425. But though the heirs and other universal successors who have not made an inventory as is before prescribed are bound for the payment of all the debts of the succession to which they are called, even when the debts exceed the value of the property left them, they are not bound in solido, and one for the other, for the payment of the debts.'

'Art. 1427. If, on the contrary, the deceased has left two or more heirs, they are bound to contribute to the payment of those debts only in proportion to the part which each has in the succession. Then the creditors of the succession must divide among the heirs the personal action which they have against them, and cannot sue one for the portion of the other or one for the whole debt.'

It is plain from these provisions of the Civil Code that the suit was brought to enforce against each of the plaintiffs in error a separate and distinct liability, which sprang from the acceptance of the succession of their ancestor, and that no joint judgment could be rendered against them. The petition was framed on this theory, and separate judgments were accordingly rendered against each of the plaintiffs in error. The note of Henderson & Gaines was introduced merely to prove the debt of the succession of Henderson. The judgments against the four plaintiffs in error, whose writs of error we are asked to dismiss, are less than the amount which authorizes a writ of error to this court. We have therefore no jurisdiction. For it is the settled rule that where a judgment or decree against a defendant, who pleads no counterclaim or set-off, and asks no affirmative relief, is brought by him to this court by writ of error or appeal, the amount in dispute, on which the jurisdiction depends, is the amount of the judgment or decree which is sought to be reversed. Gordon v. Ogden, 3 Pet. 33; Oliver v. Alexander, 6 Pet. 143; Knapp v. Banks, 2 How. 73; Rich v. Lambert, 12 How. 347; Walker v. U.S., 4 Wall. 163; Merrill v. Petty, 16 Wall. 338; Troy v. Evans, 97 U.S. 1; Hilton v. Dickinson, 108 U.S. 165; S.C.. 2 Sup. Ct. Rep. 424; Bradstreet Co. v. Higgins, 112 U.S. 227; S.C.. 5 Sup. Ct. Rep. 880; ''First Nat. Bank of Omaha v. Redick'', 110 U.S. 224; S.C.. 3 Sup. Ct. Rep. 640.

It is also settled that neither co-defendants nor co-plaintiffs can unite their separate and distinct interests for the purpose of making up the amount necessary to give this court jurisdiction upon writ of error or appeal. Rich v. Lambert, ubi supra; Seaver v. Bigelows, 5 Wall. 208; Paving Co. v. Mulford, 100 U.S. 147; Russell v. Stansell, 105 U.S. 303; Ex parte Baltimore & O. R. Co., 106 U.S. 5; S.C.. 1 Sup. Ct. Rep. 35; Farmers' Loan & Trust Co. v. Waterman, 106 U.S. 265; S.C.. 1 Sup. Ct. Rep. 131; Adams v. Crittenden, 106 U.S. 577; S.C.. 1 Sup. Ct. Rep. 92; Hawley v. Fairbanks, 108 U.S. 543; S.C.. 2 Sup. Ct. Rep. 846; New Jersey Zinc Co. v. Trotter, 108 U.S. 564; S.C.. 2 Sup. St. Rep. 875; Tupper v. Wise, 110 U.S. 398; S.C.. 4 Sup. Ct. Rep. 26; ''Fourth Nat. Bank v. Stout'', 113 U.S. 684; S.C.. 5 Sup. Ct. Rep. 695. The cases cited are conclusive of the question of jurisdiction. The authorities mentioned in the note, on which the plaintiffs in error rely, were discussed by the chief justice in Ex parte Baltimore & O. R. Co, ubi supra, and were shown to have no application to cases like the present. The case of Davies v. Corbin, 112 U.S. 36, S.C.. 5 Sup. Ct. Rep. 696, also cited for the plaintiffs in error, clearly belongs to the same class. The motions to dismiss for want of jurisdiction are therefore sustained.

It remains to consider upon the merits the writ of error of William H. Henderson, as executor of the last will of Eleanor Ann Henderson. The plaintiff in error in this case relied for his defense upon article 3540 of the Civil Code of Louisiana, which reads as follows: 'Actions on bills of exchange, notes payable to order or bearer, except bank notes, those on all effects negotiable or transferable by indorsement or delivery, and those on all promissory notes, whether negotiable or otherwise, are prescribed by five years' reckoning from the day when the engagements were payable.' It was ruled by the circuit court that the prescription established by this article of the Code of Louisiana was by the law of Kentucky made the limitation in this case, and this was not disputed by counsel for the defendant in error. Gen. St. Ky. 1872, c. 71, art. 4, § 19. The suit against the executor of Mrs. Henderson was not brought until nearly 15 years after the maturity of the note of Henderson & Gaines, and nearly 12 years after the death of William Henderson. The obligation on which the suit was based was therefore prescribed as against the executor of Mrs. Henderson's will, unless the prescription had been interrupted. But the defendant in error insisted, as already stated, that the prescription had been interrupted by acknowledgments of the debt made by the firm of Gaines & Relf, with which, as she claimed, William Henderson was bound in solido for the payment of the note of Henderson & Gaines. To prove these acknowledgments she introduced evidence tending to show payments made by Gaines & Relf, after the death of William Henderson, of interest on the note. The contention of the defendant in error was that these acknowledgments were made competent to show an interruption of prescription, as against the present plaintiff in error, by article 3552 of the Civil Code of Louisiana, which provides follows: 'A citation served upon one debtor in solido, or his acknowledgment of the debt, interrupts the prescription with regard to all the others, and even their heirs.'

It is plain that, to make this article applicable to the case of the plaintiff in error, it must be shown that Mrs. Henderson, his testatrix, was bound in solido with Gaines & Relf to pay the debt evidenced by the note of Henderson & Gaines, or that she was the heir of her husband, William Henderson, who, at the time of his death, was bound in solido with Gaines and Relf, lately his partners. Counsel for the defendant in error concede, as well they may, that Mrs. Henderson did not become bound for the debt as the heir of her husband, William Henderson. Her liability was that of widow, in community, and it was so averred in the petition filed in this case in the circuit court. The only question for decision is, therefore, was Mrs. Henderson, as the widow of William Henderson, bound in solido with Gaines & Relf, by whom the alleged acknowledgments were made, for the payment of the note of Henderson & Gaines? This question must be settled by the law of Louisiana. If it shall turn out that Mrs. Henderson was not bound in solido with Gaines & Relf, then the prescription as to her was not interrupted by any acknowledgments made by Gaines & Relf, and such acknowledgments were improperly admitted in evidence against her. The articles of the Code bearing upon this question are as follows:

'Art. 2093. An obligation in solido is not presumed; it must be expressly stipulated. This rule ceases to prevail only in cases where an obligation in solido takes place of right, by virtue of some provision of law.'

Such a provision is found in article 2872, which declares that 'commercial partners are bound in solido for the debts of the partnership.'

'Art. 2082. When several persons obligate themselves to the obligee by the term in solido, or use any other expressions which clearly show that they intend that each one shall be separately bound to perform the whole of the obligation, it is called an obligation in solido on the part of the obligors.'

'Art. 2091. There is an obligation in solido on the part of the debtors when they are all obliged to the same thing, so that each may be compelled for the whole, and when the payment which is made by one of them exonerates the others towards the creditor.

'Art. 2092. The obligation may be in solido although one of the debtors be obliged differently from the other to the payment of one and the same thing; for instance, if the one be but conditionally bound, while the engagement of the other is pure and simple, or if the one is allowed a term which is not granted to the other.'

These articles make it clear that it is an indispensable requisite to the obligation of debtors in solido that they should be bound to perform the same obligation and the whole of it. Applying this test, it is evident that Mrs. Henderson was not bound in solido with Gaines & Relf for the debt evidenced by the note of Henderson & Gaines. The liability of Mrs. Henderson was based upon and was co-extensive with her obligation as a member of the partnership or community between herself and her husband to pay the debts of the community. What this obligation is is shown by the following articles of the Civil Code:

'Art. 2405. At the time of the dissolution of the marriage, all effects which both husband and wife reciprocally possess, are presumed common effects or gains, unless it be satisfactorily proved which of such effects they brought in marriage, or which have been given them separately, or which they have respectively inherited.

'Art. 2406. The effects which compose the partnership or community of gains are divided into two equal portions between the husband and the wife, or between their heirs, at the dissolution of the marriage.'

'Art. 2409. It is understood that in the partition of the effects of the partnership or community of gains both husband and wife are to be equally liable for their share of the debts contracted during the marriage, and not acquitted at the time of its dissolution.

'Art. 2410. Both the wife and her heirs or assigns have the privilege of being able to exonerate themselves from the debts contracted during the marriage by renouncing the partnership or community of gains.' From these provisions of the Code it is evident that if the widow, upon the dissolution of the community by the death of her husband, fails to renounce the community of gains, which, as the law stood at the time of the death of William Henderson, was equivalent to an acceptance of the community, she became personally bound to pay one-half of the debts of the community, but no more. She is not, therefore, bound in solido for the payment of the debts of the community, unless the contract upon which her obligation is based expressly so stipulates. This will be clear from the following authorities:

Pothier, in his treatise on Obligations, par. 261, says: 'An obligation is contracted in solido on the part of the debtors when each of them is obliged for the whole, but so that a payment by one liberates them all.' The same author, in his work, De la Communaute, par. 729, speaking of the husband's obligations on behalf of the community, says: 'There is no difficulty when the husband has contracted alone. But would it be the same if he was obligated jointly with his wife, without any expression of solidarity? Would he, in this case, be debtor for the whole, as regards the creditor, after the dissolution of the community? The cause of the doubt is that if he was obligated jointly with any other person than his wife without expression of solidarity, he would be considered as having bound himself only for his own proportion. Nevertheless, it is commonly held that even when the husband has bound himself jointly with his wife without expression of solidarity, he is obligated for the whole, and remains, after dissolution of the community, debtor for the whole as regards the creditor. The reason is that when a wife becomes a party to the obligation of her husband, the intention of the parties is to obtain greater security to the creditor rather than to divide and diminish the liability of the husband.' But with regard to the obligation of the wife he says, in paragraph 731: 'The wife, after the dissolution of the community, whether she has accepted the community or renounced it, continues to be debtor for the whole amount (as respects the creditors) of the debts of the community which proceed from her act; that is to say, those which she herself has contracted, whether before or after the marriage, and those of successions which have fallen to her.' He then adds:

'Par. 732. When the wife during the marriage has not contracted alone, but jointly with her husband, without expression of solidarity, though the husband be regarded as bound for the whole, the wife is not considered as being bound for anything but the half, and is only debtor as regards the creditors for half.

'Par. 733. In regard to all other debts of the community which the wife has not herself contracted, and for which she is only bound in her character of member of the community, the wife, after the dissolution of the community which she has accepted, is only debtor for a moiety as towards the creditors.'

So, in his Coutumes D'Orleans, introduction to title 10, the same author says:

'Par. 136. The husband is held in solido towards the creditor, not only when he has contracted alone, but even when he has bound himself with his wife without expression of solidarity, although it would be other wise if he had so bound himself with another person.'

'Par. 138. The wife is held in solido towards the creditors for debts of the community which proceed from her act,-that is to say, for those which she has herself contracted before the marriage,-and for those which grow out of successions which have fallen to her. She is also held in solido for debts contracted by her husband when she has bound herself in solido with him. If she has bound herself for his debts, without solidarity having been expressed, she is held, even towards the creditor, only for half.'

See, also, Touillier's Commentary on the Code Napoleon, tit. 13, pp. 310, 313; Duranton, tit. 6, 296, par. 197, (tit. 10, French Ed.) and tit. 8, 222, par. 491, (tit. 14, French Ed.;) Zachariae, tit. 3, pp. 503, 504, § 520, art. 1, par. 2.

In accord with these views of the text-writers the supreme court of Louisiana, in the case of Saulet v. Trepagnier, 11 Rob. 266, said: 'The obligation which the widow incurs by her acceptance of the community is an additional security for the creditors, but they have the right to look to the heirs and direct representatives of the husband for the whole debt, because it is with him they trusted, and it is he whom they trusted. Ejus solius fidem secuti sunt, says Touillier, vol. 13, No. 233; 2 Pothier, Traite de la Communaute, No. 719. But although the creditors have this option, the widow who has accepted the conjugal partnership or community becomes absolutely and personally bound to them for one-half its debts.'

In the present case the debt which is sought to be enforced against the estate of Mrs. Henderson is not one which she contracted herself before the marriage, nor did it grow out of successions which had fallen to her, nor did she bind herself in solido therefor with her husband, nor did the husband in contracting the debt use any words which bound his wife solidarily with him, if in his power to do so. It is therefore clear, upon the authorities cited, that she was not bound in solido with her husband, during the community, or, after its dissolution, with his succession, for the debt evidenced by the note of Henderson & Gaines. In fact, the petition filed in this case, and the judgments rendered by the circuit court, are based on this view. She was therefore not bound in solido with Gaines and Relf, the co-debtors of her husband. The payments made on the note by them after the death of her husband should not, therefore, have been admitted in evidence to interrupt the prescription of five years, which began to run in her favor upon his death. The only authority not already noticed, to which we have been referred by counself for defendant in error to show that Mrs. Henderson was bound in solido with Gaines and Relf for the debt of Henderson & Gaines, is the case of Edwards v. Ricks, 30 La. Ann. 928. In explanation of this case it may be stated that in Louisiana the succession of a deceased wrong-doer is liable for the actual damage resulting from his torts. Article 25, Code Pr. The suit was brought by Edwards to recover damages for a trespass upon his property, and an assault on his family, committed by Ricks and one Vernado. Before suit brought Vernado had died, and the action was against Ricks and the widow and the two children and heirs of Vernado, who, it was alleged had taken possession of his property without inventory, and were therefore liable for the obligations of the deceased trespasser. The judgment of the lower court was against Ricks for $5,000, and against the widow of Vernado for $2,500, and against his two heirs for $1,250 each; 'the judgment,' as the report states, 'being in solido.' Upon appeal the supreme court of Louisiana decided that while Ricks might be held for exemplary damages, the widow, as well as the heirs of Vernado, were liable only for the actual damages, and accordingly affirmed the judgment against Ricks for $5,000, which included exemplary damages, and rendered judgment for the actual damages 'against the widow and heirs of Vernado in the sum of three hundred dollars, [in solido with the judgment against Ricks;] said three hundred dollars to be paid' one-half by the widow, and one-half by the two heirs jointly. In delivering its opinion the court said: 'Ricks and the estate of Vernado, represented by the widow and heirs, are sued as co-trespassers and solidary obligors. To the extent that the estate of Vernado is liable, the judgment against it would be solidary with that against Ricks, but would divide itself as follows: one-half against the widow, and one-half against the two heirs jointly.'

It is to be observed that the case did not involve a construction of article 3552 of the Civil Code, which we now have under consideration, and is not authority to support the contention of the defendant in error that a payment by Gaines & Relf interrupted the pre-emption in favor of Mrs. Henderson. And whatever the court may have said about the estate of Vernado being liable in solido with Ricks was merely obiter, for no judgment was asked or rendered against the estate, and it is clear that under articles 1425 and 1427, heretofore cited, the obligation resting upon Ricks and the widow and heirs of Vernado was not a solidary obligation; and the court did not treat it as such, for it rendered a separate judgment against Ricks for one amount, a joint judgment against the two heirs of Vernado for a different amount, and a third judgment against the vidow for still another amount; and the judgment against Ricks was made up of $4,700 exemplary damages, and $300 actual damages, while the judgments against the widow and heirs were only for the actual damages. It seems plain, therefore, that the court, by calling the obligation and the judgments solidary, merely meant that a payment made by one of the judgment debtors would pro tanto exonerate the others towards the creditor. But this quality, as we have shown, is not the only one necessary to an obligation in solido as defined by the Civil Code. The debtors must be 'all obliged to the same thing, so that each may be compelled for the whole.' These parties were not under the same obligation, either in character or amount, and were not all bound for the whole. Nor do we think it is a reasonable construction of article 3552 of the Civil Code to hold that when two persons are jointly bound, one for the entire debt, and one for only a part of it, the acknowledgment of the latter interrupts the prescription as to the former. Therefore, as the circuit court admitted incompetent evidence upon a vital point of the case against the executor of Mrs. Henderson, and when requested by him refused, by its charge to the jury, to counteract the effect of the evidence thus admitted, the error is fatal to the judgment in favor of the defendant in error against the executor of Eleanor Ann Hender son.

The judgment against Wm. H. Henderson, executor, is therefore reversed, and the cause remanded to the circuit court, with directions to grant a new trial; and the motions to dismiss the writs of error in the cases of Howard L. Henderson, Wm. H. Henderson, Warren N. Henderson, and Victorine S. and M. C. McCarthy are granted.