Renshaw v. His Creditors

The opinion of the Court was delivered by Fenner, J. This is.a proceeding by the syndic in this insolvency to compel the Sun Mutual Insurance Company and the Hope Insurance Company to surrender to him certain shares of stock in various corporations which belonged to the insolvent, and liad been pledged to said companies before his cession to secure certain debts due by him to them. The validity of neither the debts nor the pledges is assailed by the [39] syndic, nor is it even pretended that the value of the securities exceeds the debts for which they are pledged. The simple contention is that, by virtue of the cession, the syndic is entitled to take the pledged property from the possession of the pledgees and to administer and dispose of the same and to distribute the proceeds according to law. It appears that at the time of the pledges, the insolvent executed powers of attorney in favor of the pledgees, authorizing them, in case of the non-payment of the debts at maturity, to sell the pledged stocks at public or private sale, and to-make all necessary transfers thereof. The syndic bases his proceeding upon the claim that under act 19 of 1882, amending article 3027 Rev. C. C., the powers of attorney to transfer the said stocks are revoked. The article, as amended, reads as follows : C. C. 3027, “ The procuration expires : u u u “ By the death, seclusion, interdiction or failure of the agent or “ principal.” “ But poxvers of attorney by public act or by xoritings xmder px-ivate “ signatxvre, or by letter to transfer on the books of stock ooxpox'ations, “ bonds or shax-es of stock ixi said corpox'ations, shall be irx-evocable, and “ shall xiot expire by the death, seclusion, interdiction or failure of the “ px-ixieipal, WHERE THE SAID BONDS OR SHARES OF STOCK HAVE BEEN “ PREVIOUSLY SOLD TO THE PERSONS HOLDING THE SAID POWERS OF “ ATTORNEY, FOR VALUE RECEIVED AND SAID FACTS ARE SET FORTH IN “ SUCH POWERS OF ATTORNEY.” From this last clause the syndic infers that, on the principle melxisio unius exclusio alterius, powers of attorney to transfer shares of stock which have not been “previously sold to the persons holding the powers,” are revocable, and expire on the cession of the principal. The principle invoked, if applied, would go much further, and would involve the revocation of all other powers of attorney whatever by the causes stated save the single exception mentioned. In a recent case we held that art. 3027 only applied to gratuitous mandates, and not to mandates coupled with an interest like the mandate to sell given to the pledgee as a condition and integral part of the contract of pledge itself. Jacquet vs. Creditors, 38 Ann. 864. In that case, however, our attention was not called to the act of 1882, [40] And we must admit that, lurking in the statutes of that year, it escaped • our notice. After due consideration of the amendment, however, we • are inclined to adhere to the opinion in the Jacquet ease. The article 3027, as it stood before the amendment, was copied from article 2003 of the Code Napoleon, and was a principle equally of the Roman law and of universal jurisprudence. It has been universally held that it did not apply to what, at common law, are known as ‘‘ powers coupled with an interest” corresponding to those which, in the terminology of the Roman law, made the mandatary a “procurator in rem swam.” Hunt vs. Rousmanier, 8 Wheat. 174; Story on Agency, §§ 164, 173, 477, 483, 489; Livermore on Agency, § 30; 3 Zachariæ, p. 134; 18 Duranton, No. 284; Troplong, Mandat, No. 728, 737. Thus the French Court of Cassation held that a mandate conferred in the interest of the agent as well as of the principal, and as a condition of a contract passed between them, is essentially irrevocable, and as not revoked by the failure of the principal. Journal du Palais, 12 And 19 August, 1831. The same principle applies-in every case where the mandate is granted as a condition of the contract, or as a means of executing it. In such case the mandate, forming an element of a synallagmatic conract, is impressed with the qualities of such a contract, and is irrevocable. 2 Delamarre & LePoitviu, No. 445; Troplong No. 737; Journal du Palais, 7 July 1837. The principle is so just and conservative and so essential in the business transactions of life, that it is impossible to believe that the Legislature intended to abolish it or to confine its application to a single case. The principle inclusio unites exclusio alierius, is, after all, only one of many rules of interpretation, not intrinsically obligatory, but only serving as aids in arriving at the legislative will. We consider that as art. 3027 stood, prior to the amendment of 1882, jurisprudence exempted such mandates as we have just referred to as conclusively as if the exception had been written in the statute. The question is whether the Legislature intended to alter or repeal this exception. The statute does not express such intention, and we are only asked to infer it by implication under a particular rule of statutory, construction. But this rule clashes, in this case, with another of equal force, viz : That which reprobates the constructive repeal of laws by implication in any case except where the new statute and the old are so inconsistent that they cannot stand together. N. O. & Carrollton R. R. vs. City, 34 Ann. 441. [41] No such inconsistency exists here. We are satisfied that the Legislature only intended, out.of excessive caution, to give the sanction of express law to the particular exemption from revocability mentioned in the amendment without interfering with any other exemptions which jurisprudence had always recognized. It is plain that the powers of attorney here involved belong to the «lass which we have described, forming important adjuncts of the contracts of pledge themselves and stipulated in the interest of the manadataries; that the mandator had no power to revoke them, and hence they were equally irrevocable for the other causes mentioned in ■art. 3027. We may add that, even if the powers of attorney were revoked, that would not deprive the pledgees of the protection accorded them by art. 3164 R. C. C., which declares': “ The creditor who is in possession of the pledge, can only be compelled to return it, when he has received the whole payment of the principal as well as the interest and •.•costs.” This right of retention is an essential constituent of the jus pignoris. It has been held that this right is not operative, as against creditors of the pledgor, to prevent them from seizing and selling the pledged property so as to liquidate the debt and secure any possible surplus. Kirkpatrick vs. Oldham, 38 Ann. 553; Augé vs. Variol, 31 Ann. 868; Pickens vs. Webster, Id. 870; Case vs. Kleppenburg, 27 Ann. 484; Gleises vs. McHatton, 14 Ann. 560. No doubt the syndic of an insolvent pledgor might, on proper showing, and by proper proceeding, force a similar liquidation so as to secure any possible resichmm for the creditors, as was done by the decree of the court in the case of Brother vs. Saul, 11 Ann. 225. But it is entirely inconsistent with the pledgee’s right of retention» and has never been held in this State that, by mere virtue of the cession, the syndic acquires the right to demand the surrender of pledged property to he officially administered by him and subjected to the costs and burdens of such administration. Judgment affirmed.