
    No. 11,708.
    Widow and Heirs of D. L. Simonin vs. Oscar Czarnowski.
    Where the mortuaria in a succession show the confirmation of a natural tutrix and under-tutor to the minor children of a deceased person, an inventory signed by them, proceedings of a family meeting, homologated by the court upon a proces verbal regular in every respect, approved by the under-tutor, an order of sale, based on those proceedings, followed by a sale on the terms fixed, a final account and tableau of distribution signed by the tutrix, approved by the under-tutor, and homologated by the court, carrying the proceeds of the sale to the credit of the succession and the balance to the payment cf privileged debts of the succession and the balance to the payment of a debt declared to be due the purchaser at the sale, and an order finally made by the court, upon the application of the tutrix, after a hearing contradictorily had with the under-tutor, canceling the mortgage \ipon the property of the tutrix, on the allegation that the property of the succession had all been disposed of, had proved insufficient to pay its debts and left nothing for the minors, it can scarcely be asserted that the administration of the succession was a “fictitious ” one, or claimed that the purchaser at the public succession sale could be proceeded against by a petitory action, ignoring the succession proceedings To reach the purchaser and the property sold, actions of nullity were essentially necessary.
    Though the tutrix may not have known the “name” of the particular attorney who conducted the succession proceedings in her name, and may not have employed that particular attorney, or authorized any one to employ him, it does not follow that the proceedings taken through the attorney were null and void; they must stand, if, with her consent, “ am,” attorney had been employed and she had acted upon proceedings taken out in her name by him.
    If the property of a succession is sent to sale to pay debts by reason of the administration having no funds wherewith to pay the same, the sale will stand if the debts actually due were such as to call for the sale, although the application for the sale may have set forth a larger amount as being due than really existed.
    If a purchaser of succession property, at a succession sale, pays a portion of the price to meet privileged claims, receives a deed in which it is declared that he retains the balance in his own hands, secured by special mortgage and vendor’s privilege in favor of the succession, conditioned to meet all claims which might be adjudged prior to his own, and si bsequently an account is filed and regularly homologated, in which he is recognized as acreditor for the retained balance, the adjudication to him can not be treated as an absolute nullity on. a claim that he was not a creditor of the succession, or a creditor to the amount he asserted himself to be.
    The fact of the homologation of a final account without the production of vouchers in support of the claims therein set forth loses in an “action of nullity” the force which it would have on an “ appeal.”
    A PPEAL from the Oivil District Court for the Parish of Orleans. -A Rightor, J.
    
    
      
      Clegg & Thorpe and Fred. Adolph for Plaintiffs, Appellees:
    Cite 33 An. 615; 34 An. 288; 15 An. 569; 10 An. 18; 4 Rob. 204; 43 An. 263; 129 U. S. 86; 5 R. 288; 2 An. 785; 33 An. 615; 46 An. 1316; 12 An. 545; Abbott, Trial Ev. 236.
    
      William W. Howe for Defendant, Appellee:
    Cites O. P. 986, 613; 36 An. 780; 38 An. 379, 885; C. C. 3542, 3543; 3544,3478; 27 An. 576; 4 R. 23; 21 An. 353; 37 An. 417; 38 An. 863; 28 An. 626; 24 An. 260; 26 An. 587; 96 ü. S. 617; 99 ü. S. 513; 143 U. S. 250; 102 U. S. 79; 7 An. 95; 156 U. S. 454; 29 An. 493; 30 An. 853, 1071; 13 L. 125.
    Argued and submitted May 8, 1895.
    Opinion handed down June 3, 1895.
    Opinion refusing rehearing June 29, 1895.
    D. L. Simonin, the husband of one of the plaintiffs and father of the others, died in New Orleans on the 4th of March, 1868, leaving a number of minor children, the youngest of whom was born n 1864. His succession was opened on the 10th of July of the same year through an application of his widow to have an inventory made, herself confirmed as natural tutrix and an under-tutor appointed. She confirmed as such under an order of the judge on the same day. Oscar Simonin, an uncle of the children, was appointed and confirmed as under-tutor. John J. Finney, attorney at law, appeared as acting for the widow in the original petition, and as acting for her as natural tutrix throughout the whole o the legal proceedings except in the special instance hereafter referred to.
    An inventory was taken at her instance on the 15th of July, which she signed, as did the under-tutor. On September 4 a petition was presented in the court in her individual name and as tutrix, in which it was recited that the succession of her husband was largely indebted to Oscar Ozarnowski, who was the sole creditor of the succession, and that when all the necessary expenses attending the settlement of the succession were paid, the entire assets would be un - able to pay the said sole creditor (Czarnowski) in full; that neither herself nor her children possessed anything in her or their own right, and that she and they were in necessitous circumstances, and that she was by law entitled to one thousand dollars out of the assets of the succession for the benefit of her minor children. That the household furniture inventoried had been appraised at $550; that she thought it would be of advantage to the minors to retain the furniture in kind, and that the sole creditor, Czarnowski, was willing to permit her to retain the same at its appraised value as part of the one thousand dollars allowed her by law.
    That in order to pay Czarnowski and defray the expenses attending the settlement of the succession, it was necessary to sell the real estate; that in order to deliberate on the propriety of making the sale it was necessary that a family meeting should be convoked. She prayed for the convocation of a family meeting, to be composed of certain persons whom she names (relatives of the minors), and that she be authorized to retain the household furniture, the consent of the sole creditor being considered. Accompanying the petition was the written consent of Czarnowski to her retaining the furniture.
    A family meeting was ordered to be convened, as prayed for, and it was held on the 12th of September, before DeArmas, notary, composed of the parties selected: James Hamilton, Charles Parker, Julius Czarnowski, Theodore Konigslow and Frederic Konigslow, Charles Parker being a nephew of Mrs. Simonin and the two Konigslows her half-brothers. The notary, in his prooes verbal of the meeting, after making the usual declarations as to the order by virtue of which he was acting and embodying therein in full the petition of the widow and tutrix and showing the observance of the formalities and requirements of law exacted in the matters of a family meeting, recited that after mature deliberation the members of said family meeting declared that, inasmuch as the estate of the late D. L. Simonin 'was, within their personal knowledge, heavily indebted, and there were no ready funds to meet said debts, including the cost of settlement of said succession, they were therefore unanimously of opinion that it was necessary to sell the real estate in order to liquidate' the succession. That they were of the opinion and recommended that one • half of the price should be paid cash and one-half at a credit of one year, with eight per cent, per annum from date of sale, with the usual guarantee of special mortgage and vendor’s privilege, and the members declared that they were unanimously of opinion that the widow should be authorized to keep the household furniture at its appraised value of $558, in part payment of the $1000 allowed by law to her and her minor children. The under-tutor approved these deliberations and signed the proees verbal.
    
    On the 17th September, upon a petition of the widow and natural tutrix, the proceedings of the family meeting were homologated and the sale recommended was ordered to be made on the terms and conditions fixed.
    The property was adjudicated to the defendant on the terms and conditions ordered on the 11th January, 1869.
    On the 15th of January, 1869, a petition was filed by John J. Finney, attorney at law, in the name of the widow and natural tutrix, in which it was declared that she had prepared and therewith presented as annexed to and made part thereof a tableau of distribution and account of her .administration as tutrix; that the same contained a true and faithful account of all the claims which have been made against the succession, and that the proceeds of the sale sold on the 12th January, 1869, were the only assets of the succession. She prayed that after legal delays and due legal advertisement the account be approved and homologated, and that she be authorized to pay off all the claims as therein set forth. The account annexed to the petition was signed by the tutrix and approved by the under-tutor. On the 20th January, 1869, a judgment was rendered declaring that, on producing to the court due proof that the account filed by Mrs. Widow Simonin in her capacity of natural tutrix, as such administering the succession of her deceased husband, D. L. Simonin, has been advertised according to law and that no opposition had been filed thereto, it was ordered that the account be approved and homologated, and the funds distributed accordingly.
    The account showed privileged claims to the amount of one thousand and twenty-six dollars and an ordinary debt of three thousand nine hundred and seventy-three dollars as due to Oscar Czarnowski.
    The only asset brought on the account was the proceeds of the sale of real estate, five thousand dollars.
    After deducting the amount of the privileged claims from the amount of the proceeds of sale, accountant showed a balance of three thousand nine hundred and seventy-three dollars, which she declared Czarnowski retained after advancing the amount necessary to pay off the privileged claims (one thousand and twenty-six dollars), his claim covering the balance.
    Among the privileged claims was an amount of four hundred and fifty dollars carried on the account as “ Balance of one thousand dollars due the widow and heirs after deducting the appraised value of the household furniture which she was allowed to retain by order of court.”
    On the 14th May, 1870, a motion was filed in the succession of D. L. Simonin to the following effect:
    “ On motion of Hornor & Benedict, attorneys for Appoline Simonin, natural tutrix of the minor children, issue of her marriage with deceased, and on showing to the court that she has rendered her final account herein by which the whole property of the succession was distributed, there not being sufficient to pay debts. That there remains nothing for the minors, but that the clerk of this court has recorded her certificate of tutorship and that such record operates as a mortgage upon a certain lot (described in the motion). It is ordered by the court that Oscar Simonin, under-tutor of said minors, do show cause on Saturday, May 14, 1870, why said mortgage should not be canceled.”
    The rule was taken up on the day fixed, the under-tutor being present. The rule was made absolute, and the recorder ordered to erase from his records the inscription of the certificate of tutorship of Mrs. Widow D. L. Simonin as natural tutrix of her minor children (naming them), in so far as it affected the described property. Over twenty-three years elapsed between the sale of the property to the defendant, the homologation of the account, and the distribution of the funds under the orders of court, and the date of the filing of the present suit by the widow and heirs of Simonin (September 10, 1892) , and that at that date the youngest child, Oora Simonin, was about twenty-eight years old.
    The prayer of the widow and heirs of Simonin in the present suit is that there be judgment in their favor, setting aside the judgment, homologating the proceedings of the family meeting, and the order for the sale of the property as having been illegally and improvidently granted, annulling and avoiding the pretended sale of the property on the 11th January, 1869, to the defendant; that it be restored by him to the succession, and that he be condemned to pay nine hundred dollars rent per annum from 11th January, 1869, as a possessor in bad faith.
    In addition to the defence set up in the answer defendant pleaded prescription under Arts. 3479, 3485 and 3487 of the Oivil Oode; also the prescription of one, three, five and ten years, and prescription under Arts. 3392, 3478, 3498, 3542 and 3543 of the Civil Code.
    The District Court rendered judgment in favor of the plaintiffs, declaring null and void the sale of the property to defendant, ordering it to be restored to the widow and heirs of Simonin, and condemning defendant to pay as rent the sum of twelve thousand dollars, with interest from the date of judgment, subject to a credit of eight thousand nine hundred and seventy-three dollars, which the court allowed the defendant upon a reconventional demand contingently set up by him.
    Defendant appealed.
    In answer to the appeal plaintiffs prayed that one of the items of the reconventional demand be rejected entirely and another reduced.
   The opinion of the court was delivered by

Nicholls, C. J.

Counsel of plaintiffs, on the argument, conceded that their demand was barred by prescription unless they could succeed in sustaining the position contended for by them that the only prescription applicable to it was that of thirty years.

They contend that the present is substantially a petitory action; that the property of the succession is in the illegal possession of defendant, under guise of a succession administration which had no reality but was a fraudulent simulation concocted by him to despoil the widow and heirs of the deceased of their p; operty; that without authority he opened the succession and employed an attorney to conduct the mortuary proceedings, who, under false representations received from his employer, made to the court recitals of fact which were absolutely without foundation, to the effect that the deceased was heavily indebted to him; that on the strength of these false statements the court was induced to issue an order for the convocation of a family meeting on behalf of the minors to consider the necessity and propriety of a sale of the real estate in order to pay his and other claims against the succession; that the family meeting so ordered, acting also on the faith of these false representations, recommended a sale, and their proceedings were erroneously and improvidently, through the fraud of defendant, homologated by the court and a sale ordered; that a sale followed for cash, instead of on the terms fixed by the family meeting, at which an adjudication was made to defendant; that he paid no portion of the price, but illegally retained it, under pretence of holding a large claim against the succession; that he subsequently fraudulently caused the homologation of what purported to ' be an account of tutorship filed by her, in which she is made to recognize his claims and consent to their being paid out of the proceeds of the sale; that throughout these whole proceedings the real actor was the defendant himself and not the widow and tutrix; that his relations with Simonin and his family had been close, confidential and fiduciary, and his conduct in this matter was treacherous and illegal.

That he availed himself of his intimate connection with the family to obtain possession of papers of the deceased upon which, so obtained, he bolstered up an unfounded claim against the succession, and that the case presents a condition of affairs such as to throw it under the decisions of this court in Bledsoe vs. Irwin, 33 An. 615, and Gillespie vs. Twitchell, 34 An 288.

In view of the gravity of the charges brought against defendant, and the fact that they were sustained by the judgment of the District Court, we have examined the testimony in this ease with special care, and we have reached the conclusion that the judgment can not stand. In the first place, there is nothing to warrant the statement that defendant’s relations toward Simonin and his famly were fiduciary, or that he ever obtained possession of papers illegally or improperly.

There is no doubt that the relations between all parties up to the death of Simonin, and for some time thereafter, were close and intimate, such as would naturally arise and be found between relatives, but nothing more. It is a mistake, we think, to speak of Simonin as the benefactor of the defendant. He seems, from the time he reached New Orleans, to have been industrious and self-supporting, and at the date of Simonin’s death he was a man of means.. He had unquestionably received from Simonin various acts of kindness, it being shown for instance that when wounded as a soldier he was an inmate for some time of his house. For some reason not directly disclosed, there occurred about the time of the opening of the succession an estrangement between the defendant and some of the members of the family. We do not think it arose from any dispute as to ihe claims of indebtedness which defendant has set up as due to him, but from other causes. The widow charged in her petition, and she subsequently supported the charge by an affidavit, that she did not employ Mr. Finney as an attorney, and gave no one directly or indirectly authority to do so. That fact can be conceded, and is doubtless literally true, but it does not lead up to the result which is contended for as flowing from it. Though Mrs. Simonin may not have known the “ name ” of the particular attorney who conducted the proceeding, and neither employed him herself nor gave others power to do so, we think it established that she was aware that the succession had been opened in her behalf by some attorney, though she may have been ignorant of, as she doubtless was indifferent to, his identity. We think the opening of the succession and the employment of an attorney was with her knowledge and by her consent, express or implied.

Defendant testifies that he was employed actually by Charles Parker,Mr. Simonin’s nephew, and that he recommended him. Her action (after a petition had been filed in her name, asking for confirmation as natural tutrix) in going forward and taking and subscribing her oath as tutrix indicate clearly that she was advised of the petition. It can scarcely, we think, be asserted, after a tutrix and under-tutor had been qualified, that the administration was a “pure simulation.” The succession was certainly opened” independently of any question as to whether the attorney who had invoked the court’s action was individually specially authorized in that behalf or not.

In the next place it is clearly shown that the widow and tutrix was informed of the fact that defendant claimed to be a creditor of the succession, and that a sale would be sought in order to pay those claims. A family meeting was convoked, of which her two stepbrothers (the Konigslows) and her nephew, Charles Parker (who was an inmate of her family), were members. Not only this, bub the under-tutor of the minors (who was their uncle) was present, approved of the proceedings and signed the same. Ignorance of this particular proceeding by the tutrix under such circumstances would be hard to believe. It is attempted to be shown by the two Konigslows that the family meeting was itself a mere simulation — that it really did not take place as recited, but we would be slow to accept their statements as to such gross violation of duty by a sworn officer, who had no possible interest in falsifying his records. To believe this would be to bring not only the notary but all the members of the meeting and the witnesses into willingly certifying by their signatures to a state of facts which had no existence. Now, if the tutrix knew (as she undoubtedly did 'as well then as now) that Ozarnowski claimed to be a creditor of her husband and that he was about to enforce his rights, it is extraordinary if she did not at that time believe them to be well founded, and if they were, as she now says they were, pure fabrications, why she or some one of the relatives of the minor failed to say a word in opposition to the sale or to the recognition of the defendant’s pretensions. Without expense, without trouble, defendant’s whole scheme, if such it was, would have been instantly broken up. It is difficult to realize that this man’s influence and control for wrong doing extended over every person who had anything to do with this succession. It is claimed that the adjudication to the defendant of the property was for cash instead of the terms fixed by the family meeting. That was a most serious allegation, and caused us to direct our attention at once to the subject. We do not find the averment borne out. The adjudication followed the court’s order, one-half cash, one-half on credit. The adjudication is one thing — the subsequent act of sale between the parties is another. It appears that after the adjudication had been made the auctioneer who had been ordered to make the sale made a deed to the defendant in which payment of the price was provided for in a manner different from what the terms of sale called for and different from that which would have been followed had the property been bid in by a person having no connection with the succession. As it was the adjudicatee, claiming to be a heavy creditor of the succession, paid into the hands of the auctioneer one thousand and twenty-six dollars, and retained with his consent the balance, secured by special mortgage and vendor’s privilege in favor of the succession, subject to the orders of the court to be rendered upon the final homologation of the tableau or account of liquidation of the succession in case there should not be a sufficiency to meet all debts and costs having preference over and before the claims of the purchaser.

This course has been several times recognized as one authorized to be followed. It would be too late to urge this objection in this particular case now, even if it were irregular. The tableau filed, which showed that fact, was approved by the under-tutor and by the court; all the debts of the succession were paid, and the exact balance retained by the purchaser was adjudged and decreed to be due to him. The one thousand and twenty-six dollars which were actually paid by the adjudieatee was the amount of the privileged claims due by the succession.

It is charged that there was no debt due to Czarnowski at the time of the family meeting and sale. We think differently. He held possession at that time of a mortgage note of the deceased which had been secured by mortgage on this very property, and on the trial of this cause he produced the note and swore positively to the fact that he had himself, taken it up and paid it for Simonin in 1868, shortly before his death. He further swore that he had made several payments of interest upon the note, for the benefit of Simonin. He had also taken up a due bill of eight or nine hundred dollars, due by Simonin to his sister-in-law, Mrs. Parker.

Plaintiffs seek to avoid the effect of this testimony as to the mortgage note by showing that in the account filed by the executor of the succession of Pennison in 1864, this note, which had belonged to that succession, was put down as having been already at that time collected by the executor. We think this attack has been successfully met by the signed endorsement of Simonin himself on the note in 1867, showing that it was on that date extended as to payment to January, 1868. We think it quite likely, as suggested by defendant’s counsel, that the executor, willing to consider, did consider the note as so much cash in his hands, and settled with the heirs on that basis, keeping the note himself.

We need not go into any critical examination of the amount due to Czarnowski at the dates of the family meeting, or the sale, for the reason that in so far as the validity of the sale was concerned it would stand even if the amount due him was less than he claimed it to be. The succession undoubtedly had no funds in hand, and it owed debts to some extent independently of the debt* due to Czarnowski. The property was properly sent to sale to pay those debts, and if Czarnowski’s claim was smaller than he asserted it to be, the effect of that fact would be not to undo the adjudication, but to charge him with any difference there would be between the amount of his bid, the cash paid by him, and the amount actually due to him. Lynch vs. Kitchen, 2 An. 845; Gay vs. Hebert, 44 An. 306, 307; Truxillo vs. Delaune et al., 47 An. 16; Amato vs. Ermann & Cahn, 47 An. 967.

He would simply have come under a money liability for so much of the purchase price as remained unpaid, and prescription would run in his favor from the date of the homologation of the account. If prescription was permitted to accrue, the tutor was responsible for it.

Plaintiffs say it is a strange fact that the amount placed in the account as due to the defendant should have been the exact amount necessary to absorb the balance of the assets left after the payment of the privileged claim, but we see nothing suspicious in that circumstance. He had claimed to be a creditor for over nine thousand dollars, and he still claims to have been such, but as the succession was insolvent there - was no necessity to make him figure on the account for an amount larger than he could ever possibly get.

Plaintiffs say the account was homologated without the production of vouchers. This would have been of importance on an appeal, but it loses its force in an action of nullity.

The tutor and under-tutor, after the sale, both signed the final account which the tutrix presented, in which Czarnowski’s claim was recognized and ordered to be paid by the court, and after everything was closed the tutrix presented to the court, in the matter of the succession, not through John J. Finney, but through Hornor & Benedict, as her attorneys, a motion in which the fact is stated that the property of the succession had been disposed of; that it had been found insufficient to pay its debts; that there remained nothing for the minors, and that the mortgage securing her tutorship sh uld, therefore, be canceled on a piece of property in which it seems it was found she had an interest. It is claimed in this instance, again, that the attorneys who represented her had not been employed by her, but her mother; but her brother’s testimony shows the contrary. It was he who employed the attorneys, and he did so after consultation with, and with the consent of, his sister. It is not pretended they were employed by Czarnowski. We do not understand how it can be claimed that the administration of a succession was in any sense a fictitious administration, which was opened by the appointment and confirmation of a tutor and under-tutor, evidenced by their signatures, and closed by a final account, signed by the tutrix, signed and approved by the under-tutor, and homologated by the court, followed by a cancellation of the minor’s mortgage at the instance of the tutrix, through a decree taken contradictorily with the under-tutor upon an application in which the various proceedings which had taken place in the succession, and the final result thereof, were referred to. The present is not purely, as claimed, a petitory action. It was essentially necessary, in order to reach the property in litigation in this case, that actions of nullity should have been instituted within the prescriptible period, but had such actions been brought as against defendant’s title, we do not see how, under the evidence, it could have been shaken. If defendant was open at all to attack it was upon a moneyed demand, based upon his purchase, on the theory that the succession was not indebted to him to the full extent which he claimed it was.

The court below seems to have placed the defendant in the position which he would have occupied at the opening of the succession, claiming to be a creditor with his claim resisted by the widow and tutrix. Obviously this is not the position he occupies. McGehee vs. McGehee, 41 An. 657. The plaintiffs are attacking and seeking to undo accomplished facts twenty-three years after they have taken place, through regular judicial proceedings, and it is not astonishing that defendant was unable to remember or to answer the many questions propounded to him under a most rigid cross-examination, many of which questions were as to collateral and irrelevant facts.

In order to sustain plaintiff’s theory of the facts of this case, both forgery and perjury would have to be proven by them. There is nothing in this record, in our opinion, to justify the charges brought against defendant’s good name.

For the reasons herein assigned it is hereby ordered, adjudged and decreed that the judgment appealed from be and the same is hereby annulled, avoided and reversed, and it is now ordered, adjudged and decreed that there be judgment in favor of the defendant, against the plaintiffs, rejecting plaintiffs’ demand and dismissing their suit, with costs in both courts.

On Application for Rehearing.

Watkins, J.

This is a suit for the annulment of a judicial sale of certain real estate situated on Thalia street, in the city of New Orleans, which was adjudicated to the defendant on the 12th of January, 1869, under an order of sale made in the succession of D. L. Simonin, deceased, for the purpose of paying debts of the deceased.

Plaintiffs’ prayer is for judgment revoking the proceedings of the family meeting leading up to the order of sale, and the order of sale as well; and also condemning defendant to pay nine hundred dollars per annum rent since date of aforesaid sale.

The principal reasons assigned in the petition are that the recom - mendations of the family meeting of September 4, 1868, favoring a sale, and suggesting the necessity thereof, were solely predicated upon the fact that the deceased was indebted to the defendant, and that, upon those representations, the order of sale was granted, directing a sale to be made upon terms to correspond with the recommendations of the family meeting.

That at the sale the property in question was adjudicated to the defendant, ostensibly for five thousand dollars in cash, whereas the terms proposed by the family meeting, were one-half the price in cash, and the balance on a credit of one year, with interest.

. That in fact deceased was not indebted to the defendant, but through fraud and ill-practices he induced the erroneous belief that deceased was indebted to him, and, through their fraudulent representations, defendant inducéd the surviving widow and tutrix to sign an account of administration recognizing said debt.

That the statement in the account, as well as that in the deliberations of the family meeting, was made in error, and through the defendant’s misrepresentations and procurement.

For the foregoing reasons, mainly, plaintiffs allege that the sale to the defendant was a fraudulent simulation in the form and under the guise of a judicial proceeding and sale, suggesting some few irregularities, which are curable by five years’ prescription.

After tendering quite a number of exceptions and dilatory pleas, defendant made an answer, which was practically a general denial.

It is evident that the main question in the controversy was, and on this application must be, the existence vel non of an indebtedness of the deceased and of his succession to the defendant at the time the order was granted, and the sale of the property occurred. All else, at this late day, more than twenty years after the adjudication, must be esteemed of but little moment, in defendant’s title.

The District Judge, in his reasons for judgment, recognized this to be the controlling question in the case, for he says:

“ With the exception of court costs and expenses of last illness, the entire indebtedness of the succession was to the defendant Czarnowski. If that indebtedness was a real one there was full justification for Czarnowski’s action and almost exclusive control of the mortuary proceedings. If it was a fictitious one, then his assumption of control was a suspicious intermeddling, forming part of a scheme of spoliation through the forms of law.”

Taking this as the initial point in the controversy, what are the grounds on which he sustains plaintiffs’ claims and gives them a judgment?

He starts out with the proposition, that as Mrs. Simonin was contradicted, he disbelieved her testimony, and for certain reasons he viewed the testimony of the defendant with the greatest caution.

He then assigns as his reasons why he disbelieved in the existence of the defendant’s claim: (1) That no statement of this indebtedness was furnished until after the adjudication, and when filed it gave no particulars; (2) that by defendant’s own account, the deceased owed defendant only eight hundred and eighty dollars and sixty-seven cents on June 27, 1867, prior to his death, whereas it was increased to five thousand six hundred and eighty-two dollars and sixty-six cents after his death, and this included one thousand five hundred dollars and interest on a mortgage note; and this item seems to have been paid on the 29th of January, 1869, after the filing of the final account; (3) that it is shown by the records of the Peniston succession that the mortgage note in question was paid before the death of the deceased; but the judge stated that he could not, at the time he prepared his reasons, find any of the records of the succession of Peniston after diligent search.

These are all. He then adds:

“ On the whole, and without entering into a critical analysis of the testimony and other evidence * * * I am now satisfied of the correctness of the impression left on my mind at the close of the trial, that there existed in favor of Czarnowski no claim against Simonin at the date of his death.”

Our opinion takes up and fully and satisfactorily disposes of the matter by the statement that, prior to the death of Simonin, the defendant took up the mortgage note of the deceased; and that he retained it in his possession and produced it on the trial, and supported the correctness of this assertion by his sworn evidence. He further states that he made several payments of interest on that note for the deceased; and had taken up for him a due bill of eight hundred or nine hundred dollars due by deceased to his sister-in-law, Mrs. Parker.

With regard to the payment of the note to the succession of Peniston, to which it belonged, our opinion says this attack “was successfully met by the signed endorsement of Simonin himself, on the note in 1867, showing that it was on that date extended as to payment to 1st of January, 1868,” as contradistinguished from the allegation that it was paid in the Peniston succession in 1864.

This relation of proven and indisputable facts puts a quietus on the question of debt, and on the crucial question proposed by the District Judge; consequently the irresistible conclusion was, and still remains, that judgment ought to go in the defendant’s favor on the title.

We note, in this connection, that this question is not mooted in either the application or brief for rehearing. Its correctness thus stands confessed.  