Wheelwright v. St. Louis, New Orleans & Ocean Canal & Transportation Co.

The opinion of the court was delivered by . Nicholls, 0. J. The claim of the sheriff for his disbursements is presented to us by way of third opposition, to be paid by preference over that of Wheelwright or any other creditor of the defendant, out of the proceeds of the sale of the latter’s property, expected to take place shortly after, in execution of a judgment obtained by the plaintiff, Wheelwright, against it. The property expected to be sold, and which was, in point of fact, sold, as had been anticipated, was the same property which the sheriff then held, and had held, in — 614 — his possession under writs of attachment in the different suits of Janin, Ousachs and Guichard, against the company. Janin discontinued his suit. Guichard obtained judgment. What ultimately became of Cusach’s claim is not shown. While the property was-under attachment in the aforementioned suits, and before Wheelwright (who held a mortgage superior to any right held by either of the attaching creditors) had made any appearance in the-State court looking to the foreclosure of his claim, the sheriff was notified by the police jury to construct a dam across the mouth of the canal, as the condition of its locks and gates was such as to be a menace to the community, and he was informed one hundred dollars had been advanced by the police jury to him for that purpose. The condition of the locks and gates of the canal at the time he took the same into-his possession under the attachments was the same as it was when he received the notification just mentioned. Up to that time no request had been made of the sheriff by either of the attaching creditors or by the owner of the property to take steps looking to the-protection of the canal property from the supposed danger. As the levee in front of the locks'had'been cut by express permission of the police jury, and the State itself evidently contemplated that this should be done (see acts 1869, page 108), the sheriff was without authority to replace the levee even if he had supposed the property in-his charge was likely to be injured by the continuance of the then existing condition of affairs. It certainly was no part of his official-duty to have closed the mouth of the canal. The first steps taken by the police jury in the matter of the canal was the repeal- of the ordinance by which the levee was-cut and a notification of the same-coupled with an order to close the gap made not upon the owners of the property, but upon the sheriff, upon a recital, erroneous in fact, that the ownership of the property was in litigation. The sheriff-upon receipt of this notification and order substantially transmitted it to court, which at once gave the ex parte order on which the sheriff relies. Neither the attaching creditors nor the canal company were consulted in the matter, nor was Wheelwright, the-mortgage creditor, he having as yet made no appearance in the State courts. In his application to court the sheriff admitted, he was without authority as sheriff to make the outlay of money which would be needed for the purpose of constructing the dam, and that he had no funds wherewith to do the work. He — 615 — applied to the court for authority to make the needed disbursements, stating that they w«re to be made for account of the defendant company, and the authority to him was to that effect. He evidently did not look to the attaching creditors as to be bound for these disbursements as part of the costs of their -suits, or as outlays for which they were in any manner bound to him. The property was not sold in execution of Guiehard’s judgment, and there has never been any attempt to tax these disbursements as costs of suit. O. P. 551; Ellery vs. Gouverneur, 3 Martin, 607. We do not think that the police jury itself contemplated that the funds needed for the building of the levee should be supplied by the sheriff under orders of court. It “ advanced ” itself under the terms of its resolution one hundred dollars for the purpose, and it is more than likely that it would have supplied the whole amount necessary had not the course pursued by the sheriff been adopted. We think from the wording of the resolution that it looked to the sheriff as to be the executive officer of the jury for the construction of the dam directed to be made. Had the police jury directed the resolution and order to the sheriff as the 'representative of the owner, its-language would have been different. It would have been a notification of the repeal of the privilege of having the levee in front of the locks open,, coupled with an order to close the mouth of the canal, and a declaration that if this were not done the jury would have the same done at the expense of the owner. Art. 661 of the Code of Practice, found under the heading of Execution of Judgments, declares that “ until the sale the sheriff is authorized to make such disbursements as are necessary for their preservation (the property referred to in prior articles), or eyen for their cultivation or clearing, if things seized consist of lands or plantations,” but the extent of this authority and the circumstances under which it is to be exercised and the effect of its exercise as to different parties is not specified. In Owens vs. Davis, 15 An. 26, the duties of the sheriff were referred to in connection with the supposed obligation of insuring the property seized, and this court said: “It was not the intention of the Legislature to impose on the sheriffs of the State the duty of insuring perishable property in their possession under a seizure and a contrary interpretation would greatly increase the responsibility of sheriffs as well as the costs of litigation and lead to general' inconvenience — 616 — throughout the State. As the sheriff was not authorized as the legal agent of the seizing creditors, nor invested by law with authority to effect insurance on the steamer, his charge for a return of the premium paid can not be allowed as costs of suit. The relations which exist between the sheriff and seizing creditors are created by express law and not by custom or usage. The sheriff may be authorized as the agent of the creditors in effecting insurance on the property seized, but then he acts as mandatary and not in his official capacity.” We think that the official obligation of the sheriff to make certain outlays and his official responsibility in case of his not doing so were there referred to as furnishing a fair test of his right to demand payment of the amount expended as being properly taxable as costs of suit. *If, in point of law, the .amounts were not chargeable as costs we do not think the court’s ex parte order could make them so. Pandelly vs. His Creditors, 1 An. 23; C. C. 3198. We are of the opinion that the sheriff was not called upon in the discharge of his official duty to close the canal, and therefore his right to reimbursement, if allowed, must rest upon some other basis than that of costs. The sheriff, however, maintains that having acted under orders of court and made a construction which, in point of fact, was necessary for the protection of the property, every consideration of equity requires that Wheelwright, who purchased the property, and to whose benefit the work enured, should be made to reimburse him, and that he should not be allowed to enrich himself at the sheriff’s ■expense, but the rule of equity here referred to is not necessarily to be invoked by the sheriff. It may well be that he should be reimbursed, and the reimbursement not be made by the present plaintiff. Oases are constantly occurring in various forms where one man gets the benefit of another’s labor and money without being made to pay for it. A joint owner, for instance, frequently escapes responsibility, though deriving advantages from his co-owners’ outlays. A mortgage creditor is often in position to legally profit by the expenditure of others. Penn vs. Citizens Bank of Louisiana, 32 An. 193, is a case of that kind. Railroad vs. Turcan, 46 An. 160, is another illustration of the facts stated. It has been held that a favor, a convenience, a benefit, can not be forced upon a person against his will. (28 Pac. 215, 216.) The mortgage creditor in this case was not consulted about the placing of the dam across the canal, and he has the right to stand upon the exact results, which the law makes the consequences of the situation. — 617 — What would have been the legal situation of the parties had the canal property not been under seizure at the date of the passing of the police jury’s resolution, when that body, having granted the company a license or right to cut the levee, thought proper, in view of the public danger, to withdraw it, and ordered it closed? On oef two things must have followed: either the company would have closed it under contracts made by itself, or, on the company’s refusing to close it, the jury would have itself caused it to be closed either by parties acting directly under the supervision of its own officers or by a contract made with some third person to do the work. If the company had done the work the rights of the plaintiff would not have been interfered with. If either the jury itself or a third party, by contract, had done the work, neither the one nor the other would have had a privilege under Art. 8249 of C. C. (par. 4) for the price of construction, unless the claim was duly registered so as to have effect against an existing mortgage, assuming that the claim itself was one demandable against the the owner. It is not pretended that the sheriff’s claim was ever registered. If this be so, we do not think that the fact that this work was .ordered by the police jury when the property was under seizure, and that the party doing the work was the sheriff, through a contract with a third person, enlarges the rights of the party doing the work so far as it would go to affect the right of the mortgage creditor. A question was asked of counsel from the bench, whether, under the decision in Railroad vs. Turcan, 46 An. 160, the owner of the property could be made responsible for the construction of a levee on his front, whether the cost of such a construction would not have to be met by either the State or the parish? Counsel replied that the situation of this particular property was peculiar; that the entire levee had been taken down under a license from the parish, and that on the continuance of the privilege becoming dangerous to the community it was the duty of the company to reinstate matters at their own expense, and if they would not do so, it could be done at their cost. That, furthermore, this construction. was scarcely to be classed as a levee, as it was a mere temporary construction to be hereafter removed. There is certainly force in what is • said as regards the personal obligation of the owner in this case to save the community from danger from the exercise of its special license, but — 618 — 'this may be admitted without touching the question as affecting the rights of mortgage creditors. As matters stand it is questionable whether the dam could be removed without further action on the part of the public authorities. Constructed under their supervision, we must assume, for the purposes of this litigation, that it is a “ levee.” We think there is error in the judgment appealed from. It is therefore ordered, adjudged and decreed that the judgment appealed from be and the same is hereby annulled, avoided and reversed, and it is now ordered, adjudged and decreed that the intervention and third opposition of E. E. Nunez, sheriff of the parish of St. Bernard, herein be and the same is rejected at his costs in both courts, with reservation of.any rights he may have against the parish of St. Bernard, or otherwise.