
    No. 8558.
    Succession of A. C. Rhoton.
    A privilege recorded after the death of the debtor cannot affect the creditors of his insolvent estate, whose rights become fixed as they exist at his death.
    A contract to pay eight per cont. interest and two per cent, commissions on money advanced, is usurious, and uuder the Revised Statutes, which do not conflict with the Code, the entire interest is foifeited.
    In a contest between the creditors of an insolvent estaie, the mere production of a contract of lease for a teim of years, is not of itself sufficient to establish the intestate’s liability, as against other creditors, for rent during years which preceded that of his death.
    Parol evidence is not admissible to impeach the validity of a judgment regular in form, rendered by a court having jurisdiction.
    Money deposited in a bauk by a firm to the credit of the intestate, their principal, previous to • his death, becomes, at his decease, an asset of the succession and cannot he withdrawn by the administrator, one of the firm, and treated as belonging to said firm.
    An administrator should bo allowed commissions on sales of cotton, belonging to the succession, made by the factors of the intestate, although said administrator bo a member of the factor’s firm.
    The administrator has no right to complain of the rejection by the lower court of a claim made by one of the creditors, nor make it the ground of an appeal, when the alleged creditor neither complains nor appeals.
    APPEAL from the Eighth Judicial District Court, Parish of East Carroll. Pilcher, Judge ad hoe.
    
    
      F. F. Montgomery, for Administrator, Appellant:
    Where a party sets up a large claim against a succession for rents of a previous year long after the crops have been removed and disposed of, ho will he held to strict proof that such claim has not been paid, before the same will be allowed on the tableaux of distribution. The court will presume such claim was satisfied out of the crops upon which it operated as a privilege.
    A judgment by default after exceptions filed is a nullity, and cannot be allowed as sufficient evidence of a claim against a succession. Frances vs. Steamer Black Hawk, 18 An. 629.
    A judgment by default after answer filed U an absolute nullity.
    A judgment confirmed without default is null. 21 An. 665, Taylor and Wife vs. Little.
    Where the furnisher of supplies and money records the evidence of his claim before the crop is gathered, it will operate as a privilege upon the crop and he paid by preference over ordinary debts, although not recorded before the debt of the debtor.
    Recordation is simply to give notice to other privileged creditors, and the law docs nob prescribe any timo within which the claim, or evidence of it, is to be recorded. C. 0. 3347 and 3348, also 3273.
    A special privilege does not lose its rank by the death of the debtor when it has been recorded before the gathering of the crop, and where it is not opposed by other privilege debts.
    The diligence required of an administrator is such as a prudent manager would bestow upon his own business, and an administrator will not bo held responsible for small farm products not clearly shown to have come into his hands, unless upon strict proof of neglect, misapplication or malfeasance in office.
    
      W. G. Wyly, for Heirs of Baker, Intervenors and Appellants :
    1. The final judgment of a court having jurisdiction of the persons and of the subject-matter, ' is conclusive of the matter decided.
    
      2. “In order to annul a judgment, a direct action oí nullity must be instituted in tlie same court which rendered tliejudgraent,” etc. (15 An. 279). It cannot be attacked collaterally.
    3. “Judicial records cannot be impeached or contradicted by verbal evidence.” (See 33 An. 351; 32 An. 974; 3 An. G31.)
    
      Alfred Grima, for Pliillippi & Co., Appellants :
    1. The relation between factor and planter creates the contract of mandate.
    2. When a planter in a contract with his factor authorizes the latter to do certain acts in the factor s interest, for a valuable consideration, such a maudafce does not expire by the planter’s death, and the contract may be effectively inscribed thereafter. 8 Wh. 174; Story Agency, §§488, 489; Troplong Mandat, §§718, 737.
    3. Tho factor who has made advances for a crop, without written contract, acquires a valid pledge thereof by constructive as well as real possession. Act 66 of Acts of 1874.
    4. When a factor’s firm has made advances on a crop, in consideration of the obligation contracted by a planter to consign to the former his crop, andt) pay stipulated commissions of sale, the circumstance that one of the members of the firm, who is its salesman, has become the administrator of tho planter’s succession, does not prevent the firm from receiving the stipulated commissions.
    5. Usury is not presumed, and since tho revision of the Civil Code in 1870, a contract for usurious interest does not oarry the forfeiture of the whole interest, but only the loss of what is in excess of the conventional interest. 3 An. 161; 20 An. 570; B. C- C. 2924.
    6. When a creditor in an opposition to a tableau of distribution in a succession, prayed for judgment without asking any privilege, and the District Court allowed none, this Court will not change the judgment of the District Court in that respect. 19 An. 169; 23 An. 245.
    7. When on opposition to an administrator’s tableau of distribution, opponents rest their claim on a judgment by default recognizing them as heirs of the original claimant, and they did not introduce in evidence the record of the suit, interested parties may prove by testimony that an answer had been filed and default taken notwithstanding, and also that the judgment by default was not notified to tbe defendant, although no personal service of the citation and petition appears to have been made.
    
      J. W. Montgomery, for Mrs. Peck, Appellant:
    1. Where the lessee remains in possession after the expiration of his lease, and makes another crop on the leased premises, the contract with all its obligations is continued by reconduction. C. C. 2688; Balfours case, 33 An.
    2. The lessor has a “right of pledge on the crops, and on everything that serves for the labor of the farm.” C. C. 2705, 3218. And when the crops and other property thus hound as security for the rent, have been administered upon and sold by the administrator, the right of pledge is transferred to the proceeds of the sales.
    3. The death of a person “ fixes the rights of creditors,” and no one can acquire a privilege against his property after his death. C. C. 3363,3183; 9 La. 354; 2 An. 872; lb. 923 ; 11 Bob. 243-8.
    4. Where the lender charges 8 per cent, on a loan of money, and in addition thereto, 2¿ per cent, for advancing it, the contract is usurious. 12 An. 723; 5 An. 505 ; 16 An. 239; or where it adds or stipulates for any services or other obligation than 8 per cent either to do or to give, it is likewise usurious. Hen. Digest, pp. 819-820, Sections 7, 18 19, 20, 21; and authorities there cited. And when the contract is usurious the penalty is an entire forfeiture of the interest or other advantages stipulated. Bovised Statutes, Art. 1884, and the authorities quoted above.
    5. Before the adoption of the recent Constitution and laws, a privilege, as respects third persons, had no effect unless duly recorded. See Constitution 1868, Art. 123; Acts of 1877, p. 59; 31 An. 1; lb. 37; 30 An. 1007; 29 An. 412; 28 An. 534; 27 An. 245; lb. 275; 23 An. 694.
    
      6. Where a factor’s account contains charges that are either illegal or unsupported by proof, they should be stricken therefrom, and the sums are to be considered as remaining in his liandvs ; and, if the factor becomes, or is administrator on tbe estate of his constituent, it is his duty to account for the same, as money unjustly withheld; and if on a trial of his official account, he fails to furnish such proof and gives evasive answers, the presumption will be against him, and such answers will be taken as confessed without an order of the court. Yide H An. 227; 12 An. 723; Hen. Digest, 567, Section 7.
    
      J. M. Kennedy, for Vicksburg Bauk and Sarali Greer, Appellees:
    For any portion of the unpaid price, the vendor, or his assignee, has a privilege on the proceeds of the sale of the movable sold by him; and this privilege ranks all other privileged debts, even funeral charges, except charges of opening and closing the succession. C. C. Arts. 3227 and 3267.
    The wages of servants for the year past, and so much as is due for the current year, is a privileged debt ou all the movables of a succession. G. C. Arts. 3191, Ho. 4, and 3206.
    Tlie*riglits of creditors are fixed by tbe debtor’s death; and no one can acquire a privilege after that time. An inscription made after that date has no effect. C. C. 3363; 9 L. 354; 11 ft. 248 ; 12 It. 243; 2 An. 872, 923.
    Under the Constitution of 1868, no privilege could “ affect third parties, unless recorded in the manner required by law*, in the parish where the property to be affected, was situated;” and in the year 1878, if the registry was required to be made in any other parish than that “where the act was passed, or the indebtedness originated,” it must have been done within fifteen days, “ ñ om the date of the act, or obligation of indebtedness.” Constitution of 1868, Art. 123; C. C. Art 3274; Acts 1877, Regular Session, p. 59; Succession of Elliott, 31 An. 31; 30,An. 1007; 29 4-n. 412; 28 An. 534; 27 An. 245 and 275 ; 23 An. 694.
    A contract to pay more than 8 per cent, per annum interest is usurious; and the penalty for usury is the “forfeiture of the entire interest so contracted.” C. C. Art. 2924 ; Revised Statutes of 1874, Sec. 1884.
    A contract to pay 2} per cent commission for advancing, in addition to 8 per cent, perannum interest, is a contract to pay 10 per cent, interest; and as such, is usurious. Payne & Harrison vs. Geo- W. Watterson, 16 An. 239; 12 An. 723; 5 An. 505; 31 An. 597; and authorities quoted in H. D. p. 821, Ho. 41, p. 819, Ho 7, p. 820, Hos. 18, 20.
    The factor is the mandatory of his principal, and cannot charge for expenses incurred, or monies paid out in the execution of the mandate, except it is proved that he did actually incur the expense, orpay outthe money. Charges made by a cotton factor for “brokerage, storage, drayage, labor, weighing and sampling” and “insurance,” in selling cottoD, cannot be allowed or maintained, unless itis shown by proof that he actually paid out for his principal, the several sums charged in the account sales. 17 An. 217, Brandar, Williams & Co vs. Bum.
    A suocesrion cannot be charged with commissions for selling its cotton, when the-same is sol'd by a commission house which the administrator is a member, where the administrator himself is the salesman, and actually sells that cotton. 24 An. 492; 5 An. 507; 15 L. 397.
   Tlie opinion of tlie Court was delivered by

Todd, J.

This case presents a contest between the creditors of an. insolvent succession over tbe proceeds of the sale of succession property raised by oppositions to the tableau and provisional account of the administrator.

The contesting creditors are Phillippi & Co., the factors of the deceased, Mrs. Emma J. Peck, the lessor, the heirs of Robert Baker, claiming to be judgment creditors of tbe intestate, tbe Vicksburg Bank, as tbe holder of claims for money advanced to gather the crop after the death of Ehoton, and for the price of mules sold him, and Mrs. Greer, claiming wages as a house servant.

The judgment of the lower court reduced the account of Phillippi & Co., allowed by the administrator, and rejected their claim for a privilege; allowed the claims of Mrs. Peck for the rents of 1877 and 1878, with privilege recognized for the latter year, and disallowed for the former ; rejected the claim of the heirs of Baker, and allowed the other claims mentioned, without privilege, except on the claim of the Vicksburg Bank for money furnished on account of expenses of gathering tiro crop, reduced the commissions of the administrator, and charged him with certain amounts not included in the debits of his account.

From this judgment, the administrator, A. C. Phillippi & Co., and the heirs of Baker, have appealed.

Mrs. Peck, in answer to the appeal, has asked an amendment of the judgment which shall recognize her privilege and right of pledge for the rent of 1877, and the other appellees pray for a recognition of their respective privileges rejected by the lower court.

We note at the outset, that the counsel of the several appellees, in their briefs, complain of the judgment rendered on the claim of Phillippi & Co., and oppose many items of their account, and seek to further reduce it, but inasmuch as none of the appellees, in their answers to the appeal, have moved an amendment of the judgment in this respect, we cannot consider the arguments in their briefs as respects the amount of the judgment.

I.

As to the claim of A. C. Phillippi & Co.:

The privileges claimed by these parties, as the furnishers of the plantation supplies for the year 1878, the year in which Ehoton died, is resisted on the ground that the evidence of the claim was not recorded until after the death of Ehoton. This objection to the privileges claimed must prevail. No privilege can have effect against third persons unless recorded. C. C. 3274, 3276; Suc. Elliott, 31 An. 31; 30An. 1007; 29 A. 412. The recordation after the death of Ehoton can have no legal effect against-the creditors of a,n insolvent estate. The death of the debtor fixes the rights of all his creditors. 9 L. 354; 11 A. R. 248; 12 R. 143; 2 An. 872, 923.

Art. 3363 lays down the rule in terms broad enough to cover both privileges and mortgages, and though found in the chapter “of the inscription of mortgages,” it is a general rule that is applicable to privileges. It is as follows:

“ If a succession which is administered by a curator or a beneficiary heir, is not sufficient to satisfy the creditors, an inscription made by one of them, after it is opened, shall have no effect against the others.”

An examination of this chapter, notwithstanding its caption, will suffice to show that it treats of the inscription of privileges as well as of mortgages.

Nor does the fact that the business out of which this indebtedness resulted grew out of the relations of the deceased and the firm in question, as principal and mandataries, and the mandate was executed after the death of Rhoton, change the character or rank of the debt or dispense with the requirement of registry. The debt was contracted, the advances were made, before the death of Rhoton. The mere fact that tlie factors, under the previous engagement, received and sold the cotton crop after the death Of the intestate, does not strengthen their claim.

In regard to the claim to a pledge urged in this Court in favor of Phillippi & Co., inasmuch as no evidence was offered in the court below with special reference to it, the state of the record does not allow us to pass on it, and we must leave it open for future adjudication, with the proper reservation of the rights of the parties, with reference thereto, in the decree.

As to the amount of this claim, fixed by the judgment of the lower court, as before stated, the appellees are not in a position to contest it before this Court. But we cannot increase the amount, as urged by Phillippi & Co., appellants, by allowing the interest and commissions charged in their account.

The written contract in the record, under which eight per cent, interest was stipulated, and 2i per cent, for advancing, was usurious. C. C. 2924 and Section 1884, Revised Statutes, provides that the penalty shall be the forfeiture of the entire interest.

There is no conflict between the Article of the Civil Code referred to and the Section mentioned. They contain provisions upon the same subject matter, are contemporaneous, and can and should be so construed as to give effect to both.

The Article of the Code prohibits the charging of interest beyond the limit therein prescribed, and the Statute declares the penalty for the violation of its provisions. There is no inconsistency between them. 12 An. 723; 16 An. 239 ; 31 An. 596.

II.

As to the claim of Mrs. Peck, the lessor:

The evidence does not satisfy us that the rent of the year 1877 was owing at the death of Rhoton. Considering that this is an insolvent succession, it is not enough to simply present the contract of lease as conclusive evidence of the debt. Suc. Warren, 4 An. 451; Suc. Coughlin, 34 An. not yet reported.

This contract was entered into in 1874, and on the face of it would establish a liability on the part of Rhoton, equally for that year, and also for 1875 and 1876, as well as for 1877,-the year for which the rent is claimed.

Was the alleged debt for rent of 1877 evidenced by a promissory note outstanding against Rhoton at the time of his death, the case might be different, but such is not the case. And it certainly would be more satisfactory that an explanation should be afforded of a fact somewhat remarkable, why the lessor, with her pledge and privilege on the crops grown on the plantation, should have suffered them, to be shipped and sold, and made no demand for payment whatever, in whole or in part, of the rent, so far as we are informed, for nearly a year after it was due, and while the lessee was alive. The existence of this debt should have been conclusively proved as against the creditors of this insolvent succession.

In our decree we- shall make provision affording an opportunity to supply this proof hereafter, if it can be. done.

III.

Claim of the heirs of Baker :

We see no warrant for the rejection of this claim. The judgment in favor of the opponents was regular in form, rendered by a court of competent jurisdiction, and sufficiently supported by the record of the proceedings in which it purports to have been rendered. It certainly made out a prima faeie case of indebtedness in favor of these opponents.' The parol evidence admitted to impeach this judgment, was clearly inadmissible. 3 An. 631; 32 An. 974; 33 An. 351.

The claim having been rejected by the court below, no trial seems to have been had of the issues raised by this opposition, respecting the account of the administrator, and we shall leave open for future adjudication all questions arising out of this opposition, save such as we have, or may herein finally determine, in disposing of the other oppositions.

IV.

Claims of the Vicksburg Bank:

We think this judgment correct with respect to these claims. The amendment asked for, allowing a privilege for the price of the mules, cannot be granted, for the same reason that we declined to recognize the factor’s privilege. It was not recorded prior to Rhoton’s death, and this objection applies as well to the claim of Mrs. Greer.

v.

The administration was properly charged with the amount deposited in the Vicksburg Bank to Rhoton’s credit. This fund belonged to Rhoton, and his succession could not be divested of it by any act of the administrator. The commissions of the administrator were properly reduced to the amount allowed by the judgment appealed from. He was also' properly charged with the .cotton seed unaccounted for, and we are not satisfied that the amount allowed in the judgment therefor, should be either increased or diminished. We do not, however, concur with the Judge a quo in charging the administrator with the commissions for the cotton sold by Phillippi & Co. We see no impropriety, considering Rhoton’s engagements to that firm, and the supplies furnished and advances made him, in the cotton being shipped to them and by them sold. It was but the carrying out of the contract of the deceased with the firm, and was for the evident advantage of the succession, as the cotton brought a better price than if sold at public auction on the plantation. Nor does the fact that the administrator was a member of the firm of Phillippi & Co., and as such member made the sale of the cotton, deprive the firm of the right to charge the usual commission for the sale, or impose this charge on the administrator. The question, whether the charge in the factor’s account of commissions for cotton not sold by them, which Rhoton, in his contract, bound himself to ship but failed to make, we do not consider properly before us at this time. In allowing the commissions for the cotton actually sold by Phillippi & Co., and declining to impose this charge on the administrator, the amount thereof, $314, must be deducted from the credit of $ 1,000 claimed in the account of Phillippi & Co., as commissions on cotton sold and unsold. Otherwise, since the commission of 21 per cent, for selling was deducted in the account sales from the gross proceeds of the cotton and retained by the firm, the same credit would be allowed twice. The credit of $200 for travelling expenses was disallowed administrator.

VI.

In regard to the notes for $1,259 and $1250, placed on the account of the administrator,. with privilege recognized on the proceeds of sale of property in Madison Parish, and which were rejected by the lower court, no appeal was taken from the judgment thus rejecting them by the holder of the botes, nor does it even appear from the account or from the pleadings who the holder is. The administrator, had no right to complain of this charge not being imposed .on the succession, and thus champion the claim ; and for these reasons, the judgment in this respect must remain undisturbed.

Prom the views expressed above, it becomes necessary to remand the case for the purpose of affording an opportunity to introduce further evidence touching the rent claim for 1877, and also with reference to the .claim to a pledge on the crops asserted by Phillippi & Co., and of determining the question involved in the opposition of the heirs of Baker, so far as not determined herein, under the pleadings of the other parties.

It is, therefore, ordered, adjudged and decreed, that the judgment appealed from he annulled, avoided and reversed, and the case be remanded, to be proceeded with according to law and the views herein expressed. Costs of appeal to be paid by the succession.

Levy, J., absent.

On Application por Eehearing.

Todd, J.

This application is made by A. C. Phillippi & Co, and is directed to those matters only included in the controversy.

The first relates to the rejection of $200 for travelling expenses of the administrator. Further consideration confirms us in the conclusion that this charge was properly rejected.

The second, touching the limitation of interest on several claims mentioned, to the date of the intestate’s death, the succession being insolvent. This question is not passed on in our previous opinion and is left open for future adjudication.

As to the third and last, relating to the charges on the sales of the crop, such as drayage, insurance, etc., we hold that the proof in the record was not sufficient to support the charges. This may be regarded also as still an open question, and subject to further adjudication.

Eehearing refused.

Levy, J., absent.  