
    (37 South. 873.)
    No. 15,360.
    In re IMMANUEL PRESBYTERIAN CHURCH.
    (Jan 16, 1905.)
    CORPORATION — RECEIVER—PLEADING—ADMISSIONS.
    1. Where a corporation administering funds derived from different sources for different purposes is placed in the hands of a receiver,* who administers the whole, and it appears that the receivership was as necessary for the conservation of the one fund as the other, the expense should be borne by the whole in proportion, as regards the different interests, to the benefits received.
    2. A litigant is bound by his judicial admission, and cannot be permitted to shift his position, and claim the same amount first for services rendered to one interest, and then to another.
    (Syllabus by the Court.)
    Appeal from Civil District Court, Parish of Orleans; Walter Byers Sommerville, Judge.
    In the matter of the Immanuel Presbyterian Church in liquidation. The board of church erection fund and B. R. Forman filed oppositions. From the judgment they appeal. Opposition of the board of church erection fund maintained, and opposition of B. R. Forman maintained in part.
    See 112 La. 348, 36 South. 408.
    Cage, Baldwin & Crabites and Benjamin Rice Forman, for appellants Board of Church Erection Fund and for Benjamin Rice For-man. Buck, Walshe & Buck, for appellee Duncan Jones, receiver.
   Statement of the Case.

MONROE, J.

This matter has heretofore been considered on appeals taken from judgments rendered by the district court in the matter of certain oppositions to accounts filed by the receiver. Among the oppositions referred to were those of the board of church erection fund and of B. R. For-man. The former claimed $1,000, with interest, and prayed to be paid, as a mortgage creditor, from the proceeds of certain real estate. The latter asserted that he was a creditor of the church for professional services as an attorney at law in a sum aggregating $1,075, and for costs advanced in small amounts; that $250 of the $1,075 was due for defending the third opposition of Mrs. Sadie Reidy in the suit No. 52,653; and that $220 of said amount represented the balance.of a fee due for services in the matter of the state of Louisiana against Immanuel Presbyterian Church, which balance, as he alleges, “should properly be charged to,- and made payable out of, the money bequeathed by Caspar Auch.” Upon the case as presented this court found that the receiver had in his hands,-for distribution:

(1) Proceeds of real estate, corner of Camp and Soniat streets, acquired by the church in 1880, known as “Church Property,” and affected by mortgage in favor of the board of church erection fund.

(2) Proceeds of real estate No. 1,021 Soniat street, acquired by the church in 1899, under a judgment obtained by it against Owen Reidy for money belonging to the Caspar Auch fund, which had been diverted by him or for his benefit.

(3) Certain other moneys, two pieces of real estate, and three notes held by him as belonging to the Caspar Auch fund.

There was judgment decreeing, among other things, “that the cash and other property described * * * as belonging to the Caspar Auch poor fund and the proceeds of said property be administered separately, and, after deducting therefrom legitimate costs and charges, be delivered, in due course of administration, to the remaining incorporated Presbyterian associations of the city of New Orleans, recognized as legatees in trust under the will of Caspar Auch”; that the claim and mortgage (on the church property) of the board of church erection fund be recognized and paid, with interest; and that as to $100 of the amount claimed by B. R. Forman lie be held concluded by a certain agreement concerning tbe judgment of tbe district court. As to tbe balance of tbe amount claimed by Mr. Forman it was said:

“The evidence in the record does not enable us to pass with reasonable certainty on the ■other claims for fees for professional services urged by this opponent. There is no testimony as to the value of the services rendered, and there is a contention that the opponent has received considerable sums from the church. A portion of the claim is covered by a confession ■of judgment signed on the eve of the insolvency.”

And it was ordered “that the opposition of B. R. Forman be remanded for further evidence, and stand as an opposition to the final account to be rendered.” In re Immanuel Presbyterian Church, 112 La. 348, 36 South. 408.

The final account thus referred to, having been rendered, was opposed by the board of church erection fund on the ground that “all the costs, expenses, and charges (except one-half the costs of sale) are illegally and erroneously charged to the proceeds of the property * * * affected by opponent’s mortgage,” and that the same should be prorated against the entire fund in the hands •of the receiver. And said account was opposed by B. R. Forman as follows, to wit:

“Now comes Benjamin Rice Forman, and for ■supplemental opposition shows that his services as attorney in defending the third opposition of Mrs. Sarah Reidy in suit No. 52,653 was for the use and benefit of and defending the Caspar Auch poor fund, and the decision on that opposition was rendered after the receiver was appointed, but that his services in defending the claim of Mrs. Iteidv were rendered just before, .and were worth $250. Wherefore he prays that he be allowed and paid $250 out of the Caspar Auch poor fund.”

Upon the trial counsel for the receiver objected to the introduction of evidence in support of the supplemental opposition on the ground that it is inconsistent with the original opposition, which had been ordered to ■stand as an opposition to the final account; and the objection was sustained. The opponent subsequently offered the proceedings in the third opposition of Mrs. Sarah Reidy in the suit No. 52,653; the deposition of Judge Ellis, to the effect that his services were worth $250; and a resolution adopted by the board of trustees of the church February 11, 1901, acknowledging that the church was indebted to him for professional services in the sum of $750, and authorizing a confession of judgment for that amount, less $30 paid on account — all of which testimony was admitted in support of the ’original opposition, and excluded in so. far as it related to the supplemental opposition.

Apart from the testimony of the receiver to the correctness of his account, there was no other evidence offered than that above mentioned. The allegation of the opponent as to the manner in which the costs and charges have been attributed is sustained by the fact, the fee of the receiver and his counsel, and certain other expenses, though calculated on the basis of the entire amount in the hands of the receiver, being charged exclusively to the proceeds of the property affected by the mortgage in favor of the board of church erection fund.

Opinion.

There is no sufficient reason for imposing any undue proportion of the expense of the receivership upon the fund derived from the sale of the property mortgaged to the board of church erection fund. That board advanced the money so secured to the church, to be used for church purposes. Caspar Auch left other money, which came into the possession of the church, to be used for the benefit of its poor. The church failed in its duty. Both funds were endangered. The receivership was as necessary for the conservation of the one as of the other, and they should bear the expense in proportion to the benefit received by them.

As to the supplemental opposition of Mr. Forman, we are of opinion that the evidence offered in its support was properly excluded. The opponent had already placed himself on record as to his claims against the church and the Caspar Auch funds, respectively, and could not properly be allowed to withdraw his judicial admission on that subject. The additional evidence offered by him, and considered as in support of his original opposition, entitles him to a judgment, as an ordinary creditor of the church, in the sum of $750.

It is therefore ordered, adjudged, and decreed that the opposition of the board of church erection fund be maintained, and the receiver directed to apportion the costs and charges of his administration ratably upon the entire fund in his hands; that the original opposition of B. R. Forman be maintained in so far as to direct that he be recognized as an ordinary creditor of the church in the sum of $750, and that his supplemental opposition be dismissed.

It is further adjudged and decreed that the costs of both oppositions and of the appeal be paid by the mass.  