and that this proceeding be transferred to the probate side of the court, and the claims against the succession there ranked in concurso. There were some other pleadings which need not be particularly set forth. Prior to the rendition of the judgment, the plantation was sold under foreclosure of mortgage and adjudicated to the seizing creditor, and it appears from the evidence adduc authority to execute the notes sued on by plaintiff or to create any lien, privilege, pawn, or pledge affecting the crop of 1908, but that, if plaintiff is entitled to any such privilege, it is inferior to that of intervener, and that the cotton, the warehouse receipts for which were delivered to plaintiff as collateral security, should be restored to the succession, and subjected, with the rest of the crop of 1908, to his claim, and he prays for judgment ac-ed that there is little or no property to which cordingly. the plaintiff herein and the interveners can look for the payment of their claims, save that which is the subject of the present controversy. The judgment of the district court was in favor of plaintiff, and the defendant the W. H. Miller Grocery Company and G. T. Amos, interveners, prosecute the appeal. Opinion. When the decedent, L. W. Rogan, died (June, 1907), the seeds of the crop of 1908 had not been planted, nor were they planted until some 9 or 10 months afterwards, and the crop itself did not come into existence until some time later still. Neither the decedent's heirs nor his creditors could therefore have had any legal rights with respect to that crop at the time of his death; and, as the idea of planting it was wholly conceived and carried out after that event, and necessarily by other persons, it follows that neither the crop nor the obligations incurred in making it can be said to constitute any part of his succession within the meaning of the definition (Civ. Code, art. 872) "succession signifies, also, the estates, rights and charges which a person leaves after his death," etc. Nor is the crop anything that "accrued" to the succession within the meaning of Civ. Code, art. 873, but, having been, as we have seen, wholly conceived and produced long after the succession had been opened, it has no other connection therewith than that the administrator, professing to act in that capacity, though without authority of law or order of court, made use of the land, live stock, and implements of the succession for its production. The administrator excepted on the ground that he cannot be proceeded against by direct action, that plaintiff's remedy is on the probate side of the court, after having its claim recognized, and that the writ of sequestration will not lie against the succession; and he moved to dissolve the writ on the ground that the allegations relied on for its obtention are untrue. He then (all exceptions and motions having been, by consent, referred to the merits) answered that, acting in the interest of the succession, he in his official capacity cultivated the plantation for the purposes of the crop of 1908; that, in so doing, he obtained advances and supplies for which the succession became indebted "to sundry persons as follows, to wit: To the plaintiff *; P. P. Williams Company; the Miller Grocery Company; G. T. Amos, the latter being for services as overseer; to the Tallulah Hardware Company, not represented in this suit, but also having a claim, part of which is for necessary plantation supplies advanced; and the Mississippi Lumber Company for material furnished for the use of said plantation. Shows that there is available for the payment of the indebtedness aforesaid only the crop of said plantation for said year; that of said crop tons of cotton seed were sold by respondent and the proceeds * were used by respondent in the payment of the indebtedness of said succession for necessary advances on said crop and for taxes for the current year 1909; that the entire crop excepting said consists of 54 bales of cotton, stored by respondent, in his said capacity, in the cotton warehouse, at Tallulah, La., and the receipts for which were delivered to and are held by the plaintiff, and 12 bales of cotton and 6 tons of seed, which were seized and released from seizure on bond; *** that said 12 bales of cotton and 6 tons of seed are also stored by him, In the Matter of the Succession of Wederin his said capacity, * * and the re- strandt, 19 La. Ann. 494, it was held that ceipts for the same are now held by # where at the death of the testator a crop had Craig, to secure him against liability as sure- been planted the executor might, unless the ty on said bond." * seed, He alleges that he was getting the business in condition preparatory to filing his first annual account, when he was interfered with by this suit and seizure-to the great injury of the succession-and he prays that plaintiff's demand be rejected; that the 54 bales of cotton and the 12 bales and the 6 tons of "The rule is well established [our predecessors have said] that neither executors nor administrathe estates they represent." Succession of Detors have the power to create liabilities against cuir, 22 La. Ann. 371; Miltenberger v. Taylor, Ex'r, 23 La. Ann. 188; Carroll Hoy & Co. v. Davidson, 23 La. Ann. 428; Succession of Mansion, 34 La. Ann. 1247. heirs or creditors objected, cultivate and harvest it, and that the expense incurred in so doing should be allowed in the settlement of his accounts, and the doctrine stated has been recognized in Florsheim Bros. v. Holt, Ex'r, 32 La. Ann. 133, Succession of Worley, 40 La. Ann. 622, 4 South. 570, and Succession of Sparrow, 39 La. Ann. 702, 2 South. 501. "The rule is not absolutely inflexible, to the extent of annulling or defeating a debt incurred by an administrator in meeting the expenses necessary to save and harvest a crop, already begun or hanging by the roots." But the court also quoted from a case previously decided, and applied to the case to be decided, the following language, to wit: "To permit an administrator indefinitely to carry on the plantation business, and, annually, increase the indebtedness of the estate, would give him the power to ruin the estate irretrievably." 39 La. Ann. 702, 2 South. 501. In the instant case the administrator neither applied for nor obtained any authority from the court in the premises, but, apparently with the concurrence of the widow in community and natural tutrix, conceived the idea of continuing the cultivation of the plantation indefinitely. There is no evidence of the concurrence of the other major heirs, and the minors, of course, were in no way bound, nor, so far as we can see, were the creditors of the succession. In some such cases executors and administrators have been sued and condemned personally; in others, where obligations, representing debts of the de cujus, were sued on, the distinction has been drawn between such obligations and those given for debts contracted after the death of the de cujus, and it has been held, as to the former, that they were to be regarded merely as "acknowledgments," which an executor or an administrator has the right to make, and, as to the latter, that the officers giving them were bound personally. Russell & Barstow v. Cash et al., 2 La. 185; Livingston v. Gaussen, Adm'x, 21 La. Ann. 286, 99 Am. Dec. 731; Carroll Hoy & Co. v. Davidson, 23 La. Ann. 429, 430; Succession of Mansion, 34 La. Ann. 1248. In still other cases, where such officers have exceeded their powers in cultivating plantations, they have been allowed in the settlement of their accounts the actual expenses incurred by them in the making of particular crops, though, so far as we have observed, not to an extent exceeding the amounts yielded by such crops. Succession of Worley, 40 La. Ann. 626, 4 South. 570; Succession of Myrick, 38 La. Ann. 613. We find no case in which the person who has advanced the money and furnished the supplies necessary to and used for the making of a particular crop has been denied his recourse against, and privilege on, the crop itself. In the instant case defendant, assuming that he had power to act as administrator, dealt with plaintiff in that capacity, and plaintiff dealt with him upon the same assumption. Defendant did not have such power quoad the dealings in questions, and plaintiff is not entitled to any judgment against him for which the succession administered by him will be bound, save in so far as may be necessary to enforce its (plaintiff's) rights with respect to the crop, which was produced with its money and supplies, but for that purpose and to that stand in judgment. The question then is: What are plaintiff's rights? for a debt due by the succession, it could be asserted, as it is, against the administrator by direct action (Code Prac. art. 986; Anderson's Adm'r v. Birdsall, 19 La. 441; Succession of Jacobs, 5 Rob. 270; Succession of McCalop, 10 La. Ann. 224), though it would not follow that the judgment could be executed otherwise than through the administration and in concurso with other creditors of the succession. Code Prac. arts. 987, 1053, et seq. And plaintiff would have the right in such case to the writ of sequestration as a conservatory measure for the protection of his rights pending the litigation. Otherwise an administrator could dispose of property subject to privilege or pledge, and the creditors would be without remedy. Daugherty v. Executor of Vance, 30 La. Ann. 1246. It is said, however (by defendant), that the sworn allegations (that "petitioner fears that said succession and said Irby L. Rogan, administrator, will conceal, part with and dispose of said crops, during the pendency of this suit, and deprive petitioner of its rights, lien, pawn, and pledge," etc.) were untrue, and that the writ should be dissolved for that reason. It appears from the evidence that after plaintiff's advances well exceeded the amount specified in the act of pledge and about the time, or perhaps after, defendant had delivered the 54 bales of cotton, defendant sold to a third person 6 tons of cotton seed (part of the crop raised by him), and declined, upon plaintiff's request, to turn the money over to it, and it also appears that about that time Amos shipped 5 bales of cotton for his own account by rail to some third person, which plaintiff took to be part of the crop from Atherton plantation. matter of fact, it was cotton that Amos had acquired elsewhere, but it seems likely that, as plaintiff thought it was part of the Atherton crop, that belief was mainly its reason for the issuance of the sequestration. think, however, that under the law, and under the contract between the parties, the cotton seed was as much subject to plaintiff's pledge as the cotton. It was part of the crop, and the law gives the privilege and right of pledge on the crop. It is true that the contract, after reciting that defendant "has contracted an indebtedness enable him to make and gather crops of agriculture," etc., proceeds to declare that defendant "does grant unto said Maxwell-Yerger Co. a lien and privilege also a pawn and pledge upon the cotton planted and grown," etc., and that cotton seed is not especially mentioned. And the defendant testifies that it was especially excluded from the pledge by verbal agreement. Even if the claim under consideration were As a We to and all Plaintiff's representative, however, testifies to the contrary, and there is further testi "Section 1. That all privileges and pledges on crops, granted by existing laws of this state, shall be ranked in the following or der of preference, viz.: "First. Privilege of the laborer. after the advances had exceeded the amount | vances as may have been made thereon," and represented by the notes, plaintiff paid a there follows a proviso in favor of the lanote of defendant's given for advances for borer and the landlord. Act No. 89 of 1886 the crop of 1908 and held by a third person, provides as follows: who was threatening suit, and that the payment was made with the understanding that the proceeds of the cotton seed were to be accounted for to it. Defendant denies that there was any such understanding. Neither factors nor others are presumed to waive their rights, and, where it is the purpose to exclude from the operation of the law which gives a privilege for advances and supplies a portion of the crop upon which such privilege bears, it should be so stated in the contract, and not left to inference or to be decided on conflicting testimony. Under the circumstances as disclosed, therefore, we shall have to hold, as did the trial judge, that plaintiff's lien and right of pledge bears upon the cotton seed, and that defendant's refusal to account for it was sufficient justification for the issuance of the sequestration. That plaintiff advanced money and supplies to the amount claimed in the petition, and that same were necessary, and were actually used, for the production of the cotton and seed in question, is not denied by defendant, nor seriously disputed by the interveners. It is however necessary to consider the law bearing upon the respective rights of plaintiff and interveners. Civ. Code, art. 3217, gives a privilege "on the crops of the year" to the overseer for his salary, and to the furnisher of the money and supplies used in its production. Act No. 66 of 1874, p. 114, provides: "Section 1. * * That, in addition to the privilege now conferred by law, any planter or farmer may pledge or pawn his growing crop for advances, in money, goods and necessary supplies, that he may require for the production of the same, by entering into a written agreement to pledge same and having same recorded in the office of the recorder of mortgages of the parish where said * * product is produced, which recorded contract shall give and confer on the merchant or other person advancing money, goods and necessary supplies for the production of the said agricultural product, a right of pledge upon the said crop, the same as if the said crop had been in the possession of the pledgee: Provided that the right of pledge thus conferred shall be subordinate to that of the claim of the laborer for wages and for the rent of the land on which the crop was produced." Section 2 of the act (as amended by Act No. 44 of 1882) provides that, when the product has been consigned to the furnisher of money or supplies by ship or rail, it shall be pledged to the consignee thereof "to secure the payment of said advances from the time the bill of lading thereof shall be put in the mail, or put in the possession of the carrier for transmission to the consignee, and the right of pledge shall be perfect, with the right of sale of said property, which shall be fully vested in said consignee with the right to appropriate the proceeds of sale to the "Fourth. Pledges under section 1, of act No. 66 of 1874, in order of recordation. (Italics by the writer.) "Fifth. Privilege of furnishers of supplies and of money and of the physician." The language of this, the latest, statute, is plain. The furnisher of supplies is entitled to a privilege under Civ. Code, art. 3217. Act of 1874, § 1, provides that, "in addition to the privilege now conferred by law," he shall be entitled to a pledge by doing certain things, to wit, by entering into a written contract of pledge and having the contract recorded. If any doubt was created as to the effect of that provision by section 2 of the act, as amended by the act of 1882, it was resolved by the act of 1886, which, as we see, "provides that" pledges, under section 1 of Act No. 66 of 1874, "in the order of recordation" shall rank fourth; that is to say, they shall all rank after the privileges of the laborer, the lessor, and the overseer, and before the privileges of the furnisher of supplies, and the physician, and, with reference to each other, "in the order of recordation." The act in question was somewhat differ. ently interpreted in the case of Flower & King v. Skipwith, 45 La. Ann. 895, 13 South. 152, but the soundness of the conclusion reached in that case was questioned in the case of Southern Grocer Co. v. Adams, 112 La. 60, 36 South. 226, and we now feel con. strained to overrule it. The recorded pledge of the furnisher of money and supplies primes all unrecorded and all subsequently recorded privileges of such furnishers. It follows that, as plaintiff is the only furnisher of money and supplies before the court whose pledge is recorded, its claim must be given the first rank in that class. The laborers appear to have been paid with the money furnished by plaintiff, and there is no lessor. The only person therefore whose claim apparently takes precedence of that of plaintiff is the intervener, Amos, for $315, for nine months' salary, at $35 per month, as overseer. It appears that the witness had been reared on his father's cotton plantation (in the parish of Franklin), and had there acquired some little knowledge of the business of planting, that he went to the parish of Madison in 1906, and was employed as a bookkeeper and clerk until the latter part of March, 1908, when, according to his testimony, he was employed by defendant as bookkeeper and assistant overseer on the that the pacity from say April 1, to December 31, | be sold and the proceeds applied to the pay1908. The defendant, corroborating the in- ment of the judgment; * tervener, says: interventions be dismissed, interveners to pay the costs incident thereto, costs of main de mand to be paid by defendant." For the reasons stated, the judgment appealed from will have to be amended in part and reversed in part. It is therefore ordered, adjudged, and decreed that, in so far as the judgment appealed from condemns the defendant, administrator, save as incidental to the recognition and enforcement of the right of privilege and pledge asserted against the crop produced on Atherton plantation in 1908, and in so far as it rejects the demand of the intervener, G. T. Amos, up to the sum of $180, said judgment be avoided and reversed; that, in so far as it sustains the writ of sequestration, orders the sale of the cotton and seed seized thereunder, recognizes the privilege and pledge asserted by plaintiff on the said crop (save as hereinafter stated), authorizes plaintiff to credit its claim with the proceeds of the 54 bales of cotton (part sold and part unsold) delivered to it by defendant, rejects the demand of the W. H. Miller Grocery Company, and rejects the demand, in excess of $180, of the intervener G. T. Amos, said judgment be affirmed. It is further adjudg. ed and decreed that there be judgment in favor of the intervener G. T. Amos, decreeing him entitled to be paid from the proceeds of the cotton and seed seized by the sheriff by preference over all other claimants the sum of $180, together with the costs incurred by him in the district court, and that there be judgment in favor of plaintiff decreeing it entitled to be paid the balance of such proceeds, or so much thereof as may be necessary to satisfy its claim, including the costs incurred by it in the district court. It is further decreed that the costs of the appeal be paid by plaintiff and the intervener W. H. Miller Grocery Company in equal proportions. Defendant also testifies that by employing Intervener he was enabled to dispense with a negro foreman. Plaintiff introduced some testimony to show that intervener had applied for a position, but it appears to us that the applications were made before he went to Atherton, but, in any event, he may well have wished to find a better position. It is said, and the learned judge seems to have adopted that view, that the intervener was inexperienced, and that it was unlikely that defendant, situated as he was, would have employed an overseer when he had been managing the plantation without one for several years and when he had a younger brother living on the place. During the several years before, however, defendant's father had been living, and was the responsible head of the establishment to whom the foreman or laborers could appeal when defendant was called away. The younger brother was a person whom defendant says he could not control or rely on. Whether the intervener was competent or not was a question for defendant to determine. He testifies that he did the work for which he was employed, and we must accept his, and intervener's, direct testimony as controlling the inference drawn by the witnesses for plaintiff. Neither the defendant nor the intervener, however, undertake to say what proportion of the salary agreed upon was to be paid for bookkeeping and what proportion for overseeing, and, though we do so with some hesitation, we fix the amount to which he is entitled as assistant overseer at $180, being $20 per month for the nine months beginning April 1, 1908. When the judgment was rendered in the district court only 52 of the 54 bales of cotton which had been delivered to plaintiff had been sold, and the cotton and seed which had been seized had been bonded, but, as we understand it, remained in storage. It was therefore impossible for the judge a quo to know the exact amount that would be realized from the property which was subject to plaintiff's pledge, and there was judgment against the defendant as administrator for the full amount claimed ($3,740) and interest, "with a credit on the whole amount of $2,611.98, the proceeds of 52 bales of cotton, and a further credit of the proceeds of 2 bales of cotton, in the hands of plaintiff, to be applied thereon, decreeing that the lien and privilege and pledge of the plaintiff on The purchase of property of a succession the crop, given by the defendant, adminis- by the administrator thereof at a sale at public trator, be recognized and sustained; that auction by the sheriff of the parish under au order of the court to pay debts will not be dethe writ of sequestration sued out be sus-clared null and void, when it is shown that the tained and the cotton, etc., seized thereunder administrator prior to the sale had bought out PROVOSTY, J., takes no part. (125 La.) No. 17,556. BLUM v. HAAS et al. (Supreme Court of Louisiana. Nov. 29, 1909. Rehearing Denied Jan. 17, 1910.) 1. JUDGMENT AFFIRMED. ing 2. The judgment of the district court dismiss- PUBLIC SALE OF PROPERTY OF SUCCESSION- the interest of two of the heirs of the succession, A. Haas, a resident of the parish of Avoyelwith subrogation to their rights. Under such les, La., and a son of Samuel Haas, the adcircumstances the administrator, so far as the other heirs are concerned, had the right to buy. ministrator of the said succession, and that In this case the administrator after the sale filed the said John A. Haas still pretends to be his final account of administrator and was dis- the owner of the said property. That the charged as such; all debts having been paid. sale of the said property was and is an ab[Ed. Note. For other cases, see Executors solute nullity ab initio and should be so deand Administrators, Cent. Dig. § 1500; Dec. Dig. 365.*] creed, and that it did not transfer any title to the said R. L. Walker or John A. Haas for the following reasons, to wit: 3. EXECUTORS AND ADMINISTRATORS (§ 380*) SALE OF DECEDENT'S ESTATE-PURCHASE BY ADMINISTRATOR-LACHES. The sale was made in 1886. No attack was made upon the sale until the present suit was instituted in June, 1908. No attack, even now, is made upon the judgment approving and homologating the administrator's account and discharging him. [Ed. Note.-For other cases, see Executors (1) Because the said R. L. Walker was not purchasing for himself, but was acting as an interposed person for the administrator, Samuel Haas, and that it was previous to the sale understood and agreed between the said R. L. Walker and Samuel Haas, admin and Administrators, Cent. Dig. § 1553; Dec.istrator, that the purchase would be made in Dig. § 380.*] (Syllabus by the Court.) Appeal from Thirteenth Judicial District Court, Parish of Rapides; W. F. Blackman, Judge. Action by Jeanette A. Blum against Samuel Haas and others. Judgment of dismissal, and plaintiff appeals. Affirmed. Goudeau & Barbe and T. A. Carter, for appellant. Robert P. Hunter & Sons, for appellees. Statement of the Case. NICHOLLS, J. The plaintiff alleged that she is an heir of Mrs. Nanny Blum born Robert, and that through representation of her said deceased mother she has an interest in the following real estate, situated in the parish of Rapides, La., to wit (which she described). That the above-described property was owned by her maternal great-grandfather Joseph Robert, who died in said parish and state about the year 1835, and that her said great-grandfather had never been legally devested of his title thereto. That on December 18, 1878, one Samuel Haas, a resident of the parish of Avoyelles, La., applied for and obtained letters of administration on the property of her said maternal great-grandfather, being succession 327 of the probated docket of your honorable court, and with the fraudulent intent and with the purpose of depriving the heirs of the said succession of the said property, and in order to enrich himself at the expense of the said heirs, he, by alleging that there were debts due by said succession, obtained an order from your honorable court authorizing him to sell the above-described property for cash to pay debts. That there were no debts due or owing by said succession. That on the 13th day of February, 1886, the property was offered at public auction and sold to R. L. Walker, whose Christian name was unknown to your petitioner, a resident of the parish of St. Landry, La., and was soon thereafter sold and transferred by the said R. L. Walker to John the name of R. L. Walker for the benefit of the said Samuel Haas, administrator, this for the purpose of evading the provisions of the law forbidding the administrator from becoming the purchaser of the property administered by him. (2) Because the said R. L. Walker did not pay the price of adjudication, and that he transferred the property to John A. Haas at the request of and for the benefit of Samuel Haas, the administrator, and that there was no price paid by the said John A. Haas to the said R. L. Walker, and that the said transfer was made in pursuance of the previous agreement entered into between the said R. L. Walker and Samuel Haas, the administrator. (3) Because the said pretended purchase, being acts done in contravention of prohibitory laws and with the fraudulent and avowed intention to defraud the heirs of said succession, could convey no title to the said R. L. Walker and could not devest the title of said lands from the succession of Joseph Robert. That she has just discovered that this sale was made as above alleged. That under the circumstances the said Samuel Haas and John A. Haas were possessors in bad faith, and as such were responsible to the succession of Joseph Robert, for the fruits and revenues of the above-described property from February 13, 1886, to the date that it will be returned to the succession. That at the time of said fraudulent sale the land was a fine cypress brake, and that since the said pretended and fraudulent sale the said Samuel Haas and John A. Haas have had the cypress timber cut off the said land, and that at the filing of this suit petitioner had ascertained that the said cypress timber taken off the said land amounted to 10,000,000 feet of timber, and that the said timber was worth $5 or more per 1,000 feet stumpage, making a total of $50,000 worth of timber removed from the said lands by the said John A. Haas and Samuel Haas, since becoming illegally possessed of said land, and for which they were responsible in solido to the succession of the said Joseph Robert, |