
    No. 6853.
    Henry Renshaw vs. Geo. W. Stafford, Executor, et al.
    The acknowledgment of a succession debt by the administrator of the succession suspends the prescription of the debt as' long as the property of the succession remains in the hands of the administrator, under administration.
    The owner and mortgagor of property sold for taxes, can not buy it in, and thus acauire a title to the prejudice of the mortgagee.
    The mortgagee’s rights on the property will remain in full force.
    i PPEAL from the Ninth, Judicial District Court, parish of Rapides. J\. Bowman, judge ad hoc.
    
    Clarke, Bayne & Renshaw and Jas. G. White for plaintiff and appellant.
    
      Robert P. Hunter for defendant and appellee.
   The opinion of the court was delivered by

Spencer, J.

Plaintiff is the holder of four promissory notes of $3375 each, executed by the late L. A. Stafford, and secured by mortgage on the Edgefield plantation, in Rapides. The notes matured January 23d, February 23d, March 23d, and April 23d, 1861, and were duly presented' to George W. Stafford, dative executor of deceased, and by him duly acknowledged as just claims against the estate of L. A. Stafford on 20th December, 1865. The mortgage has been kept in full force by re-inscriptions from time to time. This suit is brought to enforce the said notes and mortgage on the said plantation, and to annul, or have declared inoperative, a certain tax-sale thereof, made December 13, 1875, to Mrs. Sarah C. Stafford, the widow in community of L. A. Stafford, and certain sales of portions thereof by her to other parties ; also to enjoin the tax-collector and Auditor from making or completing said sale to her. The executor and Mrs. Stafford pleaded a general denial and the prescription of five, and in this court, of ten years. The other defendants file a general denial.

As stated, these notes were formally presented to and acknowledged by the dative executor on 20th December, 1865. The present proceeding was commenced May 16, 1876. George W. Stafford qualified as dative executor of the estate of L. A. Stafford 2d October, 1865.

Between these dates no judicial proceedings were had upon these claims. The estate continued in the hands and under the control of the dative executor, who seems to have rendered no account of his administration, or done any other act looking to a settlement of its affairs. In November, 1875, the whole plantation was adjudicated to the State for several years delinquent taxes, which with the penalties were permitted to accumulate to amount of some $4000. The collector thereupon conveyed or sought to convey it, under act 105 of 1874, to Mrs: Stafford under circumstances hereafter to be stated.

The first question to be determined is that of the prescription of plaintiff’s debt; for if it be prescribed he is without interest 'to contest the sale to Mrs. Stafford or its effects.

We premise by stating that we do not consider the question as any longer an open one, as to the five-year prescription. It does not apply to a case like this. See 12 R. 507; 29 A. 495. We propose therefore to’ discuss the following questions:

First — Is the claim of plaintiff barred by the prescription of ten years? and.

Second — If so, from what date or event does that prescription begin to run ?

It may, we think, be conceded that the prescription of ten years is applicable to this debt, for it is one of that class denominated personal actions, which finds its prescription in the rule of art. 3544 C. C.

The real difficulty arises in determining the question when and in what event does this prescription begin to run ? Is it from the date of the presentation to and acknowledgment by the administrator ? Or is it from the time the administrator renders 'his first account without placing thereon the claim so acknowledged, or is it from the date of his final account ? We confess that these questions are surrounded with many and grave difficulties, and that there are apparent conflicts in the adjudications bearing upon them. A safe rule under such circumstances is to resort to fundamental and original principles of the law, and ascertain which of the various theories best accords with these.

We think that the following proposition may be accepted as fundamental:

That an administrator or dative executor is an officer of the court, and primarily the representative of the creditors of the estate. The effect of an administration is to take the property of the deceased out of the custody and possession of his heirs and place it in the hands of a trustee for the benefit primarily of the creditors, to be by him administered under the supervision and control of the court. It is in its effects not dissimilar to a deposit in pledge for the security of the creditors of the estate. C. C. 2979 et seg. There is no philosophic reason for distinguishing the effects of such an administration from those which flow from the administration of the estates of insolvents in the hands of syndics. The objects and purposes of the law are the same in both cases, to wit, the preservation of the property and its distribution to those entitled to it. The methods of procedure are very similar, and in many respects identical. The only real difference in the two cases is that one appertains to the estate of a living, the other to that of a dead man ; the surplus of the estate after paying its charges is delivered in the one case to the living debtor, in the other to the heirs of the debtor. It has been said by this court, 2 A. 925, that “ the property of a succession is the common pledge of the creditors. That an administrator is the trustee of the creditors; his first duty is to them, and his imperative obligation is to watch over their interests.”

In 3 A. p. 531, the court say: “ The assets left by an insolvent are the common pledge of his creditors. That pledge continues as 'long as there are assets to be divided.”

If the administrator and dative executor (for their relations to the creditors are the same, see 13 A. 581, 18 A. .63), are trustees for and of the creditors; if they are the judicial depositaries of the property of the estate, then it seems to follow' that their possession is that of the creditors of whom they are the mandataries.in some sort. It results further that the creditors are in possession through these trustees of the property and effects of the estate, which are their common pledge.

It is the well-settled jurisprudence of this State that possession by the creditor himself, or by his mandatary, of the pledge securing his debt operates a suspension of prescription as long as that possession continues. Seo 1 R. 55C; 8 R. 145; 11 R. 183.

As long therefore as the heirs of the deceased allow the property of his.estate to remain in the custody of the administrator, the trustee of the creditors, the principle stated requires that prescription, at least and certainly so far as their debts bear upon the objects of the pledge, be suspended.

The operation of this rule is of course limited to those creditors whose claims have been duly “recognized” by the administrator, or by judgment of court; for, until recognized in one or the other way, they are not classed as creditors of the estate, to be paid concurrently therefrom. C. P. 987.

We think these views harmonize with the provisions of the Code of Practice. The 984th article of that Code provides that no bearer of a claim for money against a succession, etc., shall commence an action against such succession before presenting his claim to the administrator.” The art. 985 directs the mode of recognizing the claim if the administrator finds it just. Art. 986 provides that “if the executor or administrator have any objection to it and consequently refuse to approve it, the bearer of the claim may bring his action,” etc. Art. 987 declares that the creditors, whose claims have been thus recognized (i. e. by acknowledgment or judgment), can only be paid concurrently, etc. Art. 988 provides for calling together these recognized creditors, when the administrator is ready to pay the debts. Art. 989 says that as these creditors “ can only obtain payment after certain delays, interest shall be allowed on their debts,” etc. By arts. 1053 and 1054, the administrator can not be required to pay other than certain privileged debts until after the expiration of three months, even if he have funds.

We think it manifest that the law never contemplated that a creditor whose debt has been formally acknowledged should bring a suit to establish his claim. The policy of the law discourages such proceeding; would punish it by inflicting the costs thereof on the creditor. True, the law gives him after a reasonable time, which may be a few or many, but never less than three months, according as property may be sold for cash or on credit, and according as other contingencies may happen, a right to compel the administrator to account. But if the theory of the defense is correct, such a proceeding by a judgment or acknowledged creditor would not prevent prescription running against them. For if a judicial demand interrupts prescription it wmuld seem that it is only when the object of that demand is the establishment of the right of the creditor; whereas, a proceeding against an administrator for a sale of property or for an account would be one in execution of an established right, rather than one in recognition of a disputed one. To illustrate, a creditor, on refusal of the administrator, proceeds by suit to obtain judicial recognition of his claim. Having obtained his judgment of recognition, he continuously for eleven years pursues the administrator to compel sales of property and accounts of administration. After ten years-of pursuit the administrator, who is his trustee, turns upon him. and says: “Your judgment is extinguished by ten years prescription; you have not cited me, and had your judgment revived.” Would it not be a full answer for the creditor to say, “You are my trustee; you hold property in your hands, put there as a pledge for my debt; your possession is my possession, and no prescription has run or can run as long as the heirs or other owners leave the pledge in your custody ?”

This was the view taken by this court in the case of. Succession of Romero, 29 A. 495. It is also the doctrine held by our own courts in -cases of “ Cessio Bonorum”’ 11 R. 348 ; 1 A. 365 ; 12 R. 155 ; 3 A. 531.

We have seen that there is no substantial reason for distinguishing between the cases of administrations of insolvent estates and those of deceased persons. In fact, insolvent successions are directed to be administered as estates of insolvents. See C. C. 1172 et seg.

We are referred by the counsel of defendant to the decision of this court in succession of Dubreuil, 12 R. 507, 516; and to that in Sevier vs. Gordon, 21 A. 373, as holding the doctrine that prescription begins to run against an acknowledged claim from the date of the acknowledgment. It is true that in the former case, on rehearing, this court so held, and that in the latter case the decision in 12 R. is referred to approvingly. On that rehearing Judge Simon, as the organ of the court, says: “We confess that the question presented is not a very clear one.” We think that in the original opinion in that case the decision, rendered by Judge Morphy as the organ of the court, is more conformed to the general principles of the law than the conclusion reached on the rehearing. Judge Morphy says: “Although under our laws no executory judgment can be obtained against a succession, the creditors are not without the means of asserting their claims and taking the necessary steps to interrupt prescription. All demands for money may be presented to the administrator, to be acknowledged by him. If the debt is admitted to be a just one, he shall write on the evidence of it a declaration which he shall sign, stating that he has no objection to the payment of such claim, after which the debtor shall submit it to the judge that it may be ranked among the acknowledged debts of. the succession. O. P. 984,985. Prom the time that this is done, which is equivalent to a judicial demand, prescription; we apprehend, must remain suspended, as the creditor can do nothing more against the estate, except it be to coerce the administrator to a prompt -settlement of the estate.” The rehearing was granted solely on the ground that this opinion seemed to rest upon-a state oí facts which did not exist, to wit, that after having been acknowledged the claim had been presented to the judge to be ranked. On the rehearing stress is laid upon the fact that it was not so presented' to the judge to be ranked; and this is the ground upon which the court reversed its former decree. The whole case proceeds upon the hypothesis that had this formality been complied with, then the opinion delivered by Justice Morphy would have been correct. Now we think that after the claim has been “recognized” by the administrator, its validity as an acknowledged debt of the estate in no wa.y depends upon its being “ranked” by the judge. This last formality touches not the question of existence or validity of the claim, but its “rank” or “classification” merely. This presentation to the judge is ex parte, and no time is fixed within which it is to be made. For aught that appears in the law, this presentation to the j udge, for the purpose of ranking the claim, may well be done when the administrator presents his account. Indeed, it would seem to us that that would be the proper time, as it would' then be done in concursa and contradictorily with the other creditors. In practice such is the mode.

We therefore conclude that after a creditor of an estate has had his claim duly acknowledged by the administrator the law does not contemplate any further proceeding on his part to establish it,- as against the estate. That in principle the administrator is his trustee, and holds-in possession, for his benefit, the property of the estate, which is the common pledge of the creditors. . That the creditor is not obliged to inaugurate judicial proceedings to preserve his right whilst this state of facts continues; and until an account is rendered ignoring his claim, or the possession of the administrator terminates, prescription is suspended. We think, therefore, that the plea of prescription is not well founded.

Ox the Merits.

George W. Stafford,

the executor, is the son of L. A. Stafford, deceased, and of Mrs. Sarah 0. Stafford, his widow, who has accepted the community.

It seems that the executor and the family of the deceased resided upon and enjoyed the fruits and revenues of the Edgefield plantation-from 1865 to 1875, but failed and neglected to pay the taxes thereon, which accumulated until they amounted, in November, 1875, to some $4000, when the property was advertised for sale to pay the same. The plaintiff went from New Orleans to Alexandria to attend this sale, and protect his interests as a mortgage creditor. At that offering the property was put up in lots, and some lots were adjudicated to plaintiff, and some to George W. Stafford; together sufficient to cover the taxes. Stafford declined to comply with his bids, and the collector, upon that as a pretext, refused to make a deed to plaintiff for the lots he had bought, and announced that he would re-advertise the property for sale. On November 29,-1875, the property was again offered, and adjudicated to the.State, for the taxes. On December 3, following, plaintiff deposited $4000 with the Fiscal Agent of the State, playable to the tax-collector of Rapides, and procured a letter from the Auditor advising -the collector of said deposit, as c‘ given to cover the purchase from the State of the lands ” in question, and requesting the collector to make title to plaintiff. It is not disputed that the collector received these notices before he had made any conveyance to Mrs. Stafford. The collector in his testimony says: “ I had received the Auditor’s letters of December 3 and 13, 1875, before the title was made to Mrs. Stafford. This whole business was clone with and through George W Stafford, and "I never met Mrs. Stafford in the transaction, nor had I any conversation •with her at all.”

To our minds Mrs. Stafford was the mere alter ego of George W. Stafford in these transactions. Good conscience forbids that the executor and widow in community of the deceased, under the circumstances of this case, should be permitted to take advantage of their own wrong, and thus deprive creditors of the estate of its effects. It was the duty of the executor, as, also, of the widow in community — they were under both a legal and moral obligation — to keep down these taxes, and to preserve the property for the creditors. Mrs. Stafford was herself personally bound, as widow in community, for one half of these taxes and one-half of these debts. The transaction can only be regarded and treated as a payment of the taxes, a redemption of the property for the benefit of the estate of L. A. Stafford.

Cooley on Taxation, p. 345, 346, says:

“ Some persons, from their relation to the land or to the tax, are precluded from becoming purchasers. * * So the mortgagor, remaining in possession of the land, owes it to the mortgagee to keep down the taxes, and the law would justly be chargeable with connivance at fraud and dishonesty if a mortgagor might allow the taxes to become delinquent, and then discharge them by a purchase which would at the same time cut off his mortgage. There is a general principle applicable to such cases, that a purchase made by one whose duty it was to pay the taxes shall operate as payment only; he shall acquire no rights as against a third party by a neglect of the duty which he owed to such party. The principle is universal, and is so entirely reasonable as scarcely to need the support of authority. Show the exist•ence of the duty and the disqualification is made out in every instance.”

In 11 111. p. 383, the court say:

“It would be inequitable to allow Shaw, after mortgaging- the lands, to suffer them to be sold for taxes, and by buying them in himself defeat the lien of the mortgage. His purchase of the lands at a tax-sale, under such circumstances, must be regarded in the light of a payment •of the taxes by him.”

22 Maine 334 : “It was, moreover, the duty of the tenant for life to •cause all taxes assessed upon the estate during his tenancy to be paid, •and by neglecting it, and thereby subjecting the estate to a sale, he committed a wrong against the reversioners. And when he received a release of the title, if any were acquired under that sale, he would be considered as intending to discharge his duty by relieving the estate -from that incumbrance. To neglect to pay the taxes for the purpose •of causing a sale of the estate to enable him to destroy the rights of the reversioners would have been to commit a fraud upon their rights. This is not to be presumed. On the contrary, he must be presumed to have intended by procuring that release to extinguish the title under that sale.”

25 Cal. 45: “If the defendant toas under any legal or moral obliga'tion to pay the taxes, he could not, by neglecting to pay the same, and allowing the land to be sold in consequence of such neglect, add to or strengthen his title by purchasing at the sale himself, or by subsequently buying from a stranger who purchased at the sale. Otherwise, he would be allowed to gain an advantage from his own fraud or negligence in failing to pay the taxes. This the law does not permit, either directly or indirectly.”

42 Maine 244, et seq., was a case as follows: A, for a valuable consideration, agreed to convey to B certain premises within two years, provided B paid a stipulated su'm of money within that time to A, and, also, a.ll taxes that might be levied on the premises, and an agreed sum anmially for rent. B failed to perform the conditions, allowed the property to be sold for taxes, purchased the tax title, and defended against A by force of that title. The court held: “ It was the duty of the tenant to pay the taxes upon the demanded premises. The -omission to do so -was a violation of good faith and a breach of the condition on which be occupied them. To permit him to set up a title which he has obtained by a violation of bis own duty, if it were in other respects good, would be most manifestly inequitable, and in fraud of the rights of the demandant. Such a defense can not prevail, either in law or in equity, and it requires no small degree of assurance to set it up in a court of justice.”

The judgment appealed from is erroneous, and it is ordered, adjudged, and decreed that the same be and is hereby annulled, avoided, and reversed; and, proceeding to render such judgment as should have been rendered, it is now ordered, adjudged, and decreed that the plaintiff, Henry Renshaw, have judgment against the estate of Leroy A. Stafford, deceased, represented by George W. Stafford, executor, for the sum of $13,500, with eight per cent interest on $3375 thereof, from January 23,1861, and like rate on like sum thereof from February 23,1861, a_nd like rate on like sum thereof from March 23, 1861, and like rate on the balance thereof from April 23,1861, till paid.

It is further ordered and decreed that, the special mortgage, as claimed and set forth in plaintiff’s petition, and in the act of mortgage by Leroy A. Stafford to West, Renshaw & Cammack, of date April 6, 1859, be and the sair e is recognized and made executory upon the property therein described to pay this judgment, and that said mortgaged property be seized and sold according to law for that purpose.

It is further ordered and decreed that the injunction prayed forby plaintiff be made perpetual against the defendants herein, and that the tax-sales referred to in plaintiff’s petition, whereby Mrs. Sarah 0. Stafford claims said property, as well as the transfers made by her to James Moore f n l Charles E. Jonette, be and they are each and all declared inopei afive, null, an 1 void as against the plaintiff in this suit.

It is further ordered that appellees pay all costs of this suit in the court below and of this court.

The Chief Jus'ice takes no p irt in this opinion.  