APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE WESTERN DISTRICT OF LOUISIANA.
MR. JUSTICE BLATCHFORD delivered the opinion of the court.
This is a suit in equity brought by a fill filed April 15, 1886, in the Circuit Court of the United States for the Western
District of Louisiana, by Laurent Lacassagne, a citizen of France, against Francois Chapuis, a citizen of Switzerland, in his capacity of testamentary executor of Jeanne Caroline Cave Cavailhez (hereinafter called the widow Cave) and in his individual capacity. The subpoena was served on the defendant in person, at New Orleans, Louisiana, May 5, 1886, and he, as such testamentary executor and individually, appeared and put in a demurrer to the bill. The demurrer was sustained, and a decree was entered dismissing the bill, from which decree the plaintiff has appealed to this court.
The contents of the bill are as follows: The plaintiff is the owner of a plantation situated in the parish of Vermilion, Louisiana, on the east side of Bayou Vermilion, having a front of 10 arpents by 40 arpents in depth, with the buildings and improvements thereon, and the plantation equipment. He acquired the ownership of the property, with Albert G. Maxwell, in judicial proceedings prosecuted in the District Court for the parish of Vermilion, in the suit of Albert G. Maxwell v. Marceline Cavailhez, and by sheriff's deed signed by the sheriff of the parish, dated August 15, 1885. The plaintiff acquired the interest of Maxwell in the property by act of sale, October 22, 1885, and thereby the whole of the plantation became his property.The widow Cave, alleging herself to be a citizen of France, and to be the widow of Baptiste Cavailhez, deceased, on or about March 5, 1884, instituted a suit in equity in the same Circuit Court of the United States, wherein she was complainant, and Marceline Cavailhez, widow of C. H. Remick, in her own right and as tutrix of her four minor children, named Remick, and as tutrix administering the estate of said C. H. Remick, was defendant. In that suit, the widow Cave claimed, as the widow in community of Baptiste Cavailhez, to be the owner of one undivided half interest in said plantation, and that the other undivided one-half interest therein was burdened with a tacit mortgage to secure $5310 paraphernal property, due her by the succession of Baptiste Cavailhez. The prayer of the bill in that suit was, that the plantation be decreed to be still the property "in indivision" of the estate of Baptiste Cavailhez; that the widow Cave be recognized as
the owner of one undivided half of the plantation, and as a mortgage creditor of Baptiste Cavailhez, in the sum of $5310, with legal interest from judicial demand, on the undivivided half of the plantation belonging to Baptiste Cavailhez; and that process issue against Marceline Cavailhez, widow of C. H. Remick, in her individual capacity, and as tutrix of her minor children, and as tutrix administering the estate of said Remick; but the bill in the suit by the widow Cave nowhere averred that Marceline Cavailhez was in possession of the plantation when the suit was brought, either for herself individually, or as tutrix as aforesaid, or by agent or employe.
The plaintiff and Maxwell were mortgage creditors of Marceline Cavailhez, and their mortgage was duly recorded in the mortgage office of the parish of Vermilion at the time, and before the suit brought by the widow Cave against Marceline Cavailhez was instituted; the recording operated as notice to the widow Cave and all the world; and no right or interest of the plaintiff or of Maxwell could be passed on in that suit, or be affected by the decree therein made, without their being made parties to the suit.
The court was without jurisdiction to entertain that suit; the widow Cave was not a citizen of France, as she falsely alleged herself to be, to give the court jurisdiction of the parties, but was a citizen of Louisiana, residing at New Orleans; a fraud was practised on the court; and the proceedings were null and void, and should be so decreed to be.
The judgment rendered in that suit, on January 11, 1886, decreed that the widow Cave be "recognized as the lawful widow of Baptiste Cavailhez," and as such "entitled to and decreed to be the owner of the undivided half of all the property above described," included with other property the said plantation and its paraphernalia; that she have judgment against the estate of Baptiste Cavailhez in the sum of $5310, with legal interest from February 25, 1884; and that her mortgage to secure said sum and interest, on the property of Baptiste Cavailhez, to take effect from April 13, 1863, be recognized and enforced. On the 2d of February, 1886, a petition was presented to the court for a writ of possession under
said decree, and was granted, and a writ of possession was issued to the marshal, by which he was ordered to eject Marceline Cavailhez and those who might be holding said property under her, "by private deed of transfer or otherwise, since the institution of the aforesaid suit, to wit, March 5, 1884, and during the pendency of said suit," and to put the widow Cave in full possession of said property. Said writ was not warranted by the decree, was issued improvidently and upon a wrongful suggestion, and was null and void. It was executed on February 5, 1886, "by serving the writ and copy of judgment" on one Armintor, "who was living in the house and had charge of the property, and he being a major," and the return of ...