
    (53 South. 598.)
    No. 17,661.
    LONG et al. v. DICKERSON et al. McCulloch et al. v. SAME.
    (Dec. 13, 1909.
    On Rehearing, Nov. 28, 1910.)
    
      (Syllabus by the Gourt.)
    
    1. Appeal and Error (§ 356*) — Failure to Take in Time — Dismissal.
    The court will not grant a motion to dismiss an appeal, sought to be taken as a suspensive appeal, on the ground that the appeal was not taken in time to act as a suspensive appeal, when the appeal is before the court and has all the elements .necessary to make it a devolutive appeal. The fact that a suspensive appeal bond has been given will not destroy any of the elements necessary for a devolutive appeal, and therefore to dismiss the appeal would be the doing of a vain thing, which does not commend itself to the court.
    [Ed. Note. — For other cases, see Appeal and Error, Dec. Dig. § 356.*]
    2. Courts (§ 224*) — Jurisdiction — Amount in Controversy.
    When several heirs sue for the erasure of a mortgage on property in which they have an interest valued at less than $2,000, and the mortgage sought to be canceled is for an amount over $2,000, exclusive of interest, the amount of the mortgage, and the value of the interest of the heirs, will determine the question of jurisdiction. Bussiere v. Williams, 37 La. Ann. 387; State ex reí. Bloss v. Judges of Court of Appeals, 33 La. Ann. 1351; Endom v. Ludeling, 34 La. Ann. 1024. The plaintiff sued to have the whole mortgage canceled and erased from the records of the clerk’s office.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 487, 608-618; Dec. Dig. § 224.*]
    On Rehearing.
    
      (Additional Syllabus by auditorial Staff.)
    
    3. Wills (§ 836*) — Usufruct-Payment of Debt of Succession.
    Civ. Code, art. 585, providing that if a legacy of a usufruct includes all the property of testator, and the universal usufructuary advances the sum necessary to discharge the debts of the succession, the capital shall be returned to him at the expiration of the usufruct without interest, but, if he does not make this advance, the heir has the choice of making the necessary advance himself for which the usufructuary shall allow him interest for the period of the usufruct or to sell a part of the property subject to the usufruct, applies to ordinary usufructs or to the usufruct of the survivor in community.
    [Ed. Note. — For other cases, see Wills, Dec. Dig. § 836.*]
    4. Limitation of Actions (§ 155*) — Prescription — Payment of Interest on Mortgage — Usufructuary — Effect on Right of Heirs.
    Where the survivor in community as the usufructuary and the heirs of testator jointly owned land subject to a mortgage, and after the succession was closed the survivor went into possession as usufructuary, and continued to pay interest on the mortgage each year both for her half of the debt and for the half owed by the heirs, with their full knowledge, and necessarily with their consent either express or tacit, she was their agent for carrying their part of the debt by payment of the interest, and her payment interrupted the operation of limitations in favor of the heirs.
    [Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. §§ 623-630; Dec. Dig. § 155.*]
    Breaux, C. J., dissenting.
    Appeal from Ninth Judicial District Court, Parish of East Carroll; F. X. Ransdell, Judge.
    Actions by Mrs. Margaret McCulloch Long and husband and by Miss Lucile McCulloch and others against Elvin Dickerson and others. Judgment for plaintiffs, and defendants appeal.
    Reversed and rendered.
    Davis, Webb & Browne, for appellants. Snyder & Gilfoil, R. P. Kennedy, and G. S. Wyly, for appellees.
   On Motion to Dismiss.

BRÉAUX, C. J.

Appellees have moved to dismiss the appeal on the ground that the appeal was not taken in time to act as a suspensive appeal.

The appeal is now before us.

The question is unimportant, and, if the grounds were sustained, the appeal would still remain as a devolutive appeal.

The bond was in amount fixed by the court. It is good as a devolutive appeal.

The doing of a vain thing does not recommend itself.' The suspensive appeal will not be dismissed, as it would serve no purpose to dismiss it.

The appellees also urged their motion to dismiss ratione materiae of the appeal.

There are two injunction suits.

There are eight heirs. Mrs. Long enjoined as to her interest. She claims one-sixteenth of the property as her share. Pour of the other heirs joined in one injunction as to their interest. They are Miss Lucile and James McCulloch, Mrs. Elise McCulloch, and Mrs. Katherine McCulloch. The other three heirs did not join in these petitions.

The claim of defendant in injunction is for over $2,000.

The highest amount claimed by the heirs jointly is $2,000.

The question is whether or not the amount of plaintiff’s claim or the value of the heir’s interest in the succession determines the amount in dispute; in the latter case, the amount in dispute would not exceed $2,000.

The judgment orders cancellation of a mortgage for an amount over $2,000 in value exclusive of interest. The appeal is within this court’s jurisdiction. Bussiere v. Williams, 37 La. Ann. 387; State ex rel. Bloss v. Judges of Court of Appeals, 33 La. Ann. 1351; Endom v. Ludeling, 34 La. Ann. 1024.

The motion to dismiss is denied.

On Rehearing.

PROVOSTX, J.

Dr. McCulloch, in 1886, executed his mortgage note for $4,500, due January 1, 1890, and bearing 8 per cent, interest after maturity. He died in 1889. He left a widow and several children issue of his. marriage. Between him and his surviving wife the community of acquets and gains had existed, and the debt was a community debt, and the property mortgaged to secure it was community property. The widow qualified at once as administratrix of the succession, and continued in office until 1897, when, on the joint petition of herself and the heirs (all majors), judgment was rendered closing the succession, sending her and the heirs into possession as joint owners, she for one-half as survivor in community, and they for one-half as heirs of their father, and, at the same time, recognizing her as usufructuary of the said half interest of the heirs,, her children. The said mortgage note had not been paid when the succession was thus closed, so that the said debt became the joint debt of the widow and the heirs, she for one half and each of the heirs for his virile share of the other half. During her administration, the widow had paid the interest on the note each year as it became due; and, after the succession had been thus closed and she gone into possession as usufructuary, she continued to pay this interest each year. After she had made 11 such yearly payments, foreclosure proceedings were instituted on the mortgage note, and the present suit was brought by the heirs, enjoining the foreclosure proceedings as to their half of the property, on the ground that as to them the note was prescribed.

The defendant contends that the mother of the plaintiffs, joint owner and joint debtor with them and usufructuary of their half of the property, was by tacit mandate their agent in making the payments of interest on this joint debt bearing mortgage upon the entire property, and that consequently the payments were acknowledgments of the debt, and had the effect of interrupting prescription.

The $4,500 mortgage note became due and payable on the 1st of January, 1890, and the succession was closed in 1897. When the parties came to consider the matter of the closing of the succession, the mortgage note had long matured, and was past due and ex-igible. The law contemplated that its payment should be met in one of three ways: First, the regular and usual way, by selling enough of the property of the succession to pay it; second, by the heirs advancing the money to pay it, if they wished to avoid a sale of their property; third, and last alternative, -by the usufructuary advancing the money. This is expressly laid down in article 585 of the Code. Counsel for plaintiffs say that this article of the Code does not apply to ordinary usufructs, or to the usufruct of the survivor in community, but only to the usufruct constituted by universal legacy. But counsel would have some trouble in finding elsewhere the law governing these other usufructs, in the respects provided for by this article; and, certainly, these other usufructs are governed in these respects by some law. There can be no doubt at all that this article 585, and the cognate articles, have general application, although apparently treating only of testamentary usufructs. This peculiarity of the verbiage of these articles has been induced by the fact that in the old civil law, or prior to the existence of the law creating the usufruct of the survivor in community, usufructs were most frequently established by testament. For the payment of said debt thus due and payable, the parties in the present case followed neither one of the three modes thus prescribed by said article 585. They adjusted the situation differently; that is to say, they had recourse to an arrangement outside of the said provisions of the Code. Whether this arrangement was the result of an express agreement or merely of a tacit understanding makes absolutely no difference. In either case it had its origin and its being in the consent of the parties.

The plaintiffs knew that their half of this debt was their debt and in no way, shape, or form due by their mother, the usufructuary. They knew that the creditor, the defendant in the present suit, had ho, action against their mother, the usufructuary, for their said half of the debt, but could compel them to pay it, and at once. They knew that one-half of the property was theirs, and was responsible for the payment of their half of the debt. They knew, therefore, that when their co-owner and codebtor, their mother, the usufructuary, obtained time on their half of the debt by making the yearly payments of interest, she was thus obtaining time on a debt which was not hers, but was solely and exclusively theirs. She did it with their knowledge, and necessarily with their consent, either express or tacit — it makes no difference which. Had the succession been fully and finally settled, in the ordinary and usual legal course, and only the residuum of the property, after payment of all debts, been left for the usufruct to bear on, a portion of plaintiffs’ half of the property corresponding in amount with plaintiffs’ half of the debt would have had to be sold. This property of plaintiffs which would have thus been sold was left in the possession of the usufructuary with the understanding, express or tacit (it does not matter which), that the usufructuary would carry plaintiffs’ said half of the debt by paying this interest. That is to say, that the usufructuary should hold plaintiffs’ property and carry plaintiffs’ debt; that she should do so by receiving the revenues of plaintiffs’ half of the property, and paying with them the interest on plaintiffs’ half of the debt. Hence the usufructuary was expressly or tacitly — -it does not matter which — made plaintiffs’ agent for carrying the debt by the payment of interest.

The only decision bearing directly, one way or the other, on the point we are considering that we have been able to find, is that of the Court of Cassation of Prance, in Cazavant v. Lapeyre, Pau, 27 Juin, 1853, Journal du Palais, 1854, vol. 2, p. 472, where the court said:

“Considering that Gerard Cazavant, in possession of the entire inheritance by the consent of his coheirs, was the negotiorum gestor of the succession, and that, in paying in that quality the arrears on this debt, he did nothing more than pay a legitimate and nonprescribed debt; that had he acted differently he would have exposed his coheirs to a lawsuit which it was his duty to avoid; considering that he liberated the succession from a real and subsisting debt; considering that, while article 2249, C. N., provides that the acknowledgment does not interrupt prescription with regard to the other heirs — this provision cannot apply to a case where, as in the present instance, the coheir who acknowledged the debt was the tacit mandatary of his coheirs, and was acting in the quality of manager and administrator of the common property, since in such a case his act is the act of those having a joint interest with him in the property.”

The court held that the acknowledgment made by this tacit agent had interrupted the prescription.

In the present case, the plaintiffs certainly contemplated and expected that their co-owner and joint debtor, the usufructuary, should make these payments on their half of the debt; and, as every one is conclusively’ presumed to know the law, they must be conclusively presumed to have known that these payments would interrupt prescription on the debt. If these payments did not interrupt prescription as to plaintiffs’ half of the debt, we have the anomaly of payments being made on a debt without prescription being interrupted thereby. No doubt, if payments were made on a debt by a mere intermeddler, prescription would not be interrupted. But the joint debtor of the plaintiffs and joint Owner with them of the property upon which the debt was secured by mortgage and usufructuary of their half of said property was not an intermeddler. She had the right, nay, under the circumstances, owed the duty to plaintiffs, to pay this interest, in order that the property might not be seized and sold, as is now being done, to satisfy the debt. Nothing can show more clearly that by making these payments she was attending to plaintiffs’ business, or, in other words, was acting as their tacit agent, than this fact of the effect of said payments having been to prevent and put off the foreclosure proceedings which plaintiffs are resisting in the present suit.

Analogy for such an interruption of prescription by the act of a tacit agent is presented by those cases where the joint owner and the joint creditor have been held to be the tacit agent of his co-owner or coereditor for interrupting prescription, because of their community of interest. Flower v. O’Connor, 17 La. 213; Becnel v. Waguespack, 40 La. Ann. 112, 3 South. 536; Blanc v. Dupre, 36 La. Ann. 847; Satterley v. Morgan, 33 La. Ann. 846; B. J. Wolf & Sons v. New Orleans Tailor-Made Pants, 110 La. 428, 34 South. 590; Casey v. H. Abraham & Son, 113 La. 588, 37 South. 484; Boyd v. Heine, 41 La. Ann. 393, 6 South. 714.

It is ordered, adjudged, and decreed that the judgment appealed from be set aside, and that the suit of plaintiffs be dismissed, and the injunction herein dissolved, and that there be judgment in favor of defendant and against plaintiffs in solido for $100 damages and the costs of this suit.

See dissenting opinion of BREAUX, C. J., 53 South. 600.  