the right to own the property upon paying for it, and by it the situation of the creditor is not worsted. It is an axiom of the law that one cannot convey that which he hath not. The mortgage provision purporting to convey goods to be thereafter acquired in replenishing the stock had no effect as a present conveyance. Grant v. Steiner, 65 Ala. 499; Purcell's Adm'r v. Mather, 35 Ala. 570. It could only attach to the goods after their acquisition by the mortgagors, and then under legal or equitable principles operating to carry into effect the original agreement of the parties. Booker v. Jones' Adm'x, 55 Ala. 271; Pennock v. Coe, 23 How. 117, 16 L. Ed. 436; Dexter v. Curtis, 91 Me. 505, 40 Atl. 549, 64 Am. St. Rep. 266; 15 Am. & Eng. Enc. Law, 749.

The mortgage rested upon such after-acquired goods, an incumbrance which obstructed their subjection to debts other than that secured by the mortgage; but what effect would be given to the transaction if there was shown an actual fraudulent intent of the mortgagor to use the mortgage to shield her property from other debts, or, as in the case of a debtor's insolvency, that it had the necessary effect to prevent, hinder, or delay the collection of other debts, are questions not raised on this appeal. There is no evidence tending to show that M. E. Cox acted with actual fraudulent intent. The mere act of selling such property by M. E. Cox in the ordinary course of trade, and the application of the proceeds partly in the payment of debts, and partly for their family and farm, does not in itself tend to show actual fraud. Neither do the facts in evidence show that M. E. Cox was insolvent, or that she did not have ample property, other than that in the mortgage, which might have been subjected to her debts. Upon the facts in evidence, as stated in the agreed abstract, it cannot be here held that either the original mortgage, which conveyed nothing subject to the claims of creditors, or the subsequent purchase and passing of goods under its terms, can be charged to the appellants as a constructively fraudulent disposition of property, without regard to insolvency of the ap pellees, which is not here shown. The mortgage was admissible in evidence, but there was error in giving the general affirmative charge for the defendants, for which the judgment will be reversed, and the cause remanded.

(52 La. Ann. 1863)

Succession of BOTHICK. (No. 12,969.) (Supreme Court of Louisiana. June 19, 1899.) EXECUTOR'S ACCOUNT-SUFFICIENCY-PARTITION-COMMUNITY DEBT-INTERDICTION OF

HUSBAND-APPEAL-DISMISSAL.

Notwithstanding it does not clearly appear upon the face of the record that the appellants may sustain irreparable injury by means of the interlocutory order that is appealed from, yet, as appeal is a favored remedy, it should, in case of doubt, rather be sustained than denied.

On the Merits.

1. An executor's account, intended to serve as a basis for a future partition and settlement between the heirs in the succession and the surviving widow in community, should classify the properties disposed of, and the debts paid, into separate and community properties, and separate and community debts, and show what part, if any, of separate funds had been applied to payment of community debts, and what part, if any, of community funds had been applied to the payment of separate debts. Zeigler v. Creditors, 21 South. 666, 49 La. Ann. 145. If the account filed and homologated should have simply shown amounts received and expended by the executor, without this classification, the widow and heirs in subsequent partition proceedings should dissect the same, and make themselves, in their pleadings, the classification claimed by each. The pleadings and issues based thereon should be raised and determined in the district court before reference to a notary public, where such reference is called for, in order to complete the partition. Succession of Harrell, 12 La Ann. 337.

2. Costs incurred during a marriage in interdiction proceedings, directed against the husband, which proceedings resulted in his interdiction, are, as a rule (with some exceptions and modifications), a debt of the community.

3. The community of acquets and gains is not dissolved by the interdiction of the busband.

4. Costs of administration of a succession, and consequent settlement of a community, are due by the succession and by the community in proportion to the interest of each. Succession of Webre, 22 South. 390, 49 La. Ann. 1491; Sims v. Billington, 24 South. 637, 50 La. Ann. 976. (Syllabus by the Court.)

Appeal from civil district court, parish of Orleans; Thomas C. W. Ellis, Judge.

In the matter of the succession of Thomas W. Bothick. Suit by William H. Bothick and others against Olivia T. Bothick and others. Judgment for defendants, and plaintiffs appeal. Reversed.

Dart & Kernan and John T. Whitaker, for appellants. Charles Louque, for appellees.

On Motion to Dismiss Appeal. WATKINS, J. The ground of the appellees' motion is that the appeal is taken from an interlocutory judgment which is not capable of working an injury to appellants. The judgment appealed from is of the following tenor, viz.: "This cause having been referred to the notary for instructions, and the court being of opinion, as appears by the written reasons on file, that the projet of settlement and partition proposed by the attorney of Mrs. T. W. Bothick is correct on facts, it is therefore ordered, adjudged, and decreed that Jos. D. Taylor, Esq., notary public, be ordered to complete the partition herein in accordance with the projet of settlement proposed to him by the attorney of Mrs. Bothick, according to law." The appeal sought and obtained was suspensive in character, and was predicated upon peti. tion and citation. The appellants are the heirs at law of Thomas W. Bothick, who aver that they have an interest opposed to

Mrs. Olivia Bothick and other parties in interest. An examination of the transcript fails to disclose "the written reasons on file," as stated in the judgment or interlocutory order that is appealed from, and it also fails to disclose the projet of settlement proposed as the basis of the judgment of the court. It does disclose that the appellants filed a suit against Mrs. Olivia T. Bothick and others, praying for judgment annulling and reducing certain donations and bringing back certain property into the estate of their mother, and for a decree of partition of a number of pieces of real property therein described, and of certain money and movables. There was a judgment rendered directing a partition in kind of the cash on hand; that the movables be sold for cash, and the proceeds of same distributed according to law; and that the real estate be sold on terms,-one-third or more in cash, and the residue on time. Some months later, counsel for Mrs. O. T. Bothick obtained upon the heirs at law of T. W. Bothick (appellants here) a rule to show cause, “why the projet of partition presented to Jos. D. Taylor, Esq., notary public, by Mrs. O. T. Bothick, should not be adopted by the court, and why judgment should not be rendered accordingly." That projet is not annexed thereto, and we are not advised of its contents; but it is but reasonble to conclude that same is adverse to the appellants, as they prosecute this appeal in order to obtain relief from the interlocutory decree making said rule absolute. That said order or decree may cause appellants irreparable injury is possibly not apparent on the face of the record, but, as an appeal is a remedy that is favored in law, we prefer, in a case of doubt, rather to sustain than deny the right. The motion to dismiss is denied.

On the Merits.

(March 19, 1900.)

heirs of Thomas W. Bothick, and their share in his succession was one-ninth to the two minors and one-ninth to each of the major heirs named; that Thomas W. Bothick left a widow by his third marriage, Olivia T Bothick, who, being the executrix of his last will and testament, had filed a final account, and judgment had been rendered therein; that under the reservations contained in said judgment, and under the facts of the case, there were certain matters at issue to be settled between petitioners, the minors, and the widow, to wit: (1) Petitioners alleged that by act of donation inter vivos before Armstrong, notary, on the 7th of July, 1877, their father donated to his said third wife two certain described lots on Dorgenois street, in the city of New Orleans; that said lots were worth at the time, and were still worth, $2,500. (2) That by act under private signature executed in New Orleans on the 1st of May, 1896, he donated to his said wife two certain described lots in the city of Natchez, Miss.; that at that time Bothick and his wife were residents of New Orleans, and delivery of said property was made to the donee; that they were worth at the time of the donation, and were still worth, the sum of $1,500. (3) That, during the settlement of the succession of her husband, Olivia T. Bothick purchased at the succession sale certain described real estate for the price of $6,500; that she failed to take title thereto; that she was duly put in default; that she was ordered to take title by judgment of court, and thereafter the said property was sold at her risk and expense; that at the second sale it brought the sum of $4,850, being $1,650 less than the first adjudication, and the widow was responsible for said deficiency, with sum of $196.05 costs incurred in making said second sale. (4) That the succession of Thomas W. Bothick had been closed, and said donations exceeded in value the disposable portion of his estate; that the community between him and Olivia T. Bothick was exhausted by its debts and expenses of settling his estate; that his widow had received since his death, in personal property and in money, a sum exceeding $1,000 out of said community, and there was nothing coming to her as widow in community, and the said property which was thus donated to her should be brought back, in order that it might be divided among the legal heirs of Thomas W. Bothick. (5) That, in the matter entitled "Prickles v. Fairex" in the docket of the civil district court, by a decree of division D of the court the sum of $672,19 was deposited with the clerk of the court to await the settlement of the estate of T. W. Bothick; that said sum belonged to them and the minors, and they desired to divide the same. (6) That there was still unsold the following real estate property (the same being the separate property of Thomas W. Bothick, and not in any way connected with the community between him and his surviving wife), to wit: First, a lot bearing the municipal number 1046

Magazine street; second, the Natchez property donated to the third wife; third, the Dorgenois property donated to the third wife. (7) That Thomas W. Bothick was an undertaker, and in the course of his business came into possession of several tombs or vaults for receiving and preserving bodies, and not used for himself or his family; that they had called upon Mrs. Olivia T. Bothick to return the property donated to her, and she had refused to do so; that they were unwilling to remain any longer in indivision with the widow and the minors Solari; that they demanded a partition, and for that purpose a sale of the property, it being indivisible. For further particulars as to the family of Bothick and the various matters affecting its property, they referred the court to the different suits and records thereof in the court bearing upon the same. In view of the premises, they prayed for the citation of Mrs. Olivia T. Bothick and the minors Solari; that they have judgment against the former, annulling and reducing the donations made to her, and that she return the same to the succession of Bothick, and for judgment upon that issue as the court would be competent to render; that she also be condemned to pay petitioners the sum of $1,856.05, with legal interest from judicial demand; that it be decreed that she has no interest of any kind in the community between herself and her husband; that it be adjudged that the community was debtor to the separate éstate of Thomas W. Bothick for the debts paid out of his separate estate for its account, and in any event for such judgment as would adjust, settle, and terminate the community in all of its branches, and that there be a judgment of partition against all the defendants of the property and effects, on such terms as the court should determine, and that the parties be referred to a notary to adjust and settle the accounts and complete the partition. No appearance having been made for or on behalf of the minors Solari, a judgment by default was taken against them, and ultimately confirmed, decreeing a partition. Mrs. Olivia T. Bothick answered. She pleaded first the general issue, then that there was certain property of T. W. Bothick which was still undisposed of, and which should be distributed to the heirs before any reduction of donations could be established; that, as regards the property in Mississippi, the plaintiffs were without capacity to sue; that said property, being real, was guided by the laws of Mississippi; that her husband, in addition to the donations, made a will, under which she is a legatee, and has a right under the will to said property; that the succession was of considerable magnitude, and was frittered away by the plaintiffs in litigation, and they had no right to disregard the amount of the succession at the date of its opening, in making a calculation of their rights, if any they had.

Judgment was rendered on May 27, 1897, in the case, dismissing as of nonsuit the de

mand of the plaintiffs to collate the property in New Orleans, on Dorgenois street, and the property in Natchez. The judgment further decreed a partition and division of all the property and effects then held in common between plaintiffs and defendants, partition to be made in kind of the money then in hand and on deposit, and a sale by public auction by Green, auctioneer, of the other property on terms of cash for the movables and for the tombs and various cemetery lots owned by said parties, and on terms of one-third or more cash for the real property, and the balance at one and two years' credit, with 8 per cent. interest, in so far as the real estate was concerned. It further ordered that the question of the liability of Mrs. Bothick for the difference in the adjudication, and all other questions between the parties plaintiff and defendant not passed on in the judgment, be reserved for discussion, settlement, and adjustment upon the completion of the partition and upon a settlement of accounts. The judgment further referred the parties to a notary public for the purpose of said adjustment, and to complete the partition.

On the 30th of June, 1898, the children of Bothick (with the exception of the Solari minors) filed a petition in the partition suit which they had instituted on the 7th of September, 1896, in which they referred to the claim therein made by them for the revocation or reduction of the donations made by Bothick to his wife, which had been dismissed as in case of nonsuit. They then alleged that the partition decreed in said suit had reached the final stage, and that it was now definitely known that the donations were far in excess of the disposable portion of the decedent's estate, and trenched upon the légitime reserved by law to petitioners; that the decedent in his last will left the disposable portion of his estate to his widow, and that the same was of no effect, inasmuch as the donations alone exceeded the portion which by law the testator was permitted to dispose of; that said donations exceed by more than two-thirds the sum of the values or amounts which deceased could dispose of by donations inter vivos or mortis causa to the prejudice of petitioners, and they should be revoked or reduced as the defendants might elect. They prayed that the widow be cited, and that the donations inter vivos and mortis causa be annulled, revoked, and reduced.

We find in the record a document addressed to the court by Joseph D. Taylor, the notary designated by it to make the partition, in which he stated that several conferences between the parties and their attorneys had taken place before him, at which nothing definite was suggested or decided, and that matters rested in this condition for a time; that subsequently Mr. Louque, representing the widow Bothick, had presented to him a projet for a partition, based on the

$5,851 02

$209 21

$ 1,600 00

400 00

Total

69 25 246 62

.$5,809 80

For which amt. of debts Mrs. Bothick is in no manner, personally or through her property, responsible. Deducting from the community assets the community debts, she still has a claim against the heirs of T. W. Bothick to the amt. aforesaid, of $2,087.04.

This and the three preceding pages (four pages in all) I find to be a correct projet of the partition to be made by the notary, and this is the projet approved by the interlocutory order and decree this day entered and signed. N. O., La., July 5, 1898. [Signed]

T. C. W. Ellis, Judge. The projet submitted by Messrs. Dart and Whitaker on behalf of the plaintiffs in the partition proceeding was as follows:

"(1) The sum now in the judicial depository, together with the sum in the hands of O'Connor, auctioneer, and the sum due by William H. and Mary Jane Bothick for the real property heretofore sold, are the only ac

tive assets that we know of. These sums, we propose, shall be allotted to the children of Bothick, and nothing shall be given to Mrs. Widow Bothick, as she is a debtor to the estate. We ask also that the notary find as a fact that Thomas W. Bothick donated to the widow Bothick, by act before A. J. Armstrong, not. pub., 7th of July, 1877, the two lots in the square bounded by Dorgenois, Broad, Canal, and Custom House Sts., worth, say, $2,500. (2) That by act under private signature 1st of May, 1886, said T. W. Bothick donated the lots known as lots 11, 12 & 14 in Natchez, Miss., described as having a frontage of 103 feet on Rosalie St. by 160 feet in depth, said lot forming the corner of Green & Rosalie Sts., which property is worth $1,500. We ask that these two properties be figured in the estate, to show what was the disposable portion, and what portion of said donations said widow should return. We ask that the widow be charged with $1,650, difference between the price of the sale of the property and the price it brought, referred to in the succession record; that she further be charged with $1,000, money received and personal property taken by her since the death of Mr. Bothick, for which she has not accounted; that she also be asked to give up the titles to the various lots in the Girod Cemetery, and other cemeteries referred to in the partition suit on file herein. We are prepared to offer the proof of these donations whenever the notary wishes to receive them. "[Dated] March 30, 1898.

Mrs. Olivia T. Bothick excepted to the demand for the reduction of donations on the grounds (1) that all the heirs had not been Joined; and (2) that no suit for reduction could be filed until plaintiffs had complied with the judgment of the court ordering them to pay the $2,000. On the 5th of July, 1898, the court rendered judgment in the following terms: "This cause having been referred to us by the notary for instructions, and the court being of opinion, as appears by the written reasons on file, that the projet of settlement and partition proposed by the attorney of Mrs. Bothick is correct on facts, it is ordered, adjudged, and decreed that Joseph D. Taylor, notary public, be ordered to complete the partition herein in accordance with the projet or settlement proposed to him by the attorney of Mrs. Bothick, according to law."

From this judgment the plaintiffs in the partition proceedings, including the minors Solari, through their tutor, appealed.

Opinion.

In appellants' brief it is stated that: "This case was decided on written reasons, which have been lost or mislaid by the clerk. A motion to dismiss was made here (to dismiss this appeal), and, though your

honors found the record incomplete, you nevertheless maintained the appeal. Since that decision many of the missing documents have been duplicated by office copies, and the record is now in condition to understand the issues." In appellants' petition we are referred for information concerning the Bothick family "to the record of the succession of Thomas W. Bothick, on file in this court, and in the various suits which are reported in its archives." We found that no less than four reported cases (43 La. Ann. 547, 9 South. 477; 44 La. Ann. 1038, 11 South. 712; 45 La. Ann. 1384, 14 South. 293; 47 La. Ann. 613, 17 South. 198) under that title have been brought up to this court on different issues, with disconnected evidence scattered in different transcripts. To come to a knowl edge of the situation from what is contained in these records involved a labor which we do not think we were called upon to expend. Sims v. Billington, 50 La. Ann. 974, 24 South. 637. We none the less referred to these cases, with the hope that through them we would find material which would eke out the last very defective record sufficiently to enable us to reach definite conclusions, but in this we have been disappointed. We do not think matters are in such a shape before us as to enable the court to render, with any degree of certainty, a judgment which would do justice between the parties. Had the reasons assigned by the district judge for his judgment not been lost, we would have been able to ascertain on what theory this case was tried. We feel constrained, under the circumstances, to reverse the judgment and remand the case, with instructions to the parties to amend their pleadings, and set up in a connected form, and with distinctness, their respective claims and pretensions, and support the same by connected evidence, as best they may; the presumption being, in the absence of evidence, that property in existence at the dissolution of the community is community property, and debts due are community debts. We have again to object to the bringing up of documents outside of the transcript. They are liable to be lost and mislaid. The situation of the suc cession is such that these various claims should be passed upon by the district court before the parties be referred to a notary, if such reference should in fact be necessary at all. Succession of Harrell, 12 La. Ann. 337. We have alluded to the various suits in which various matters concerning Thomas W. Bothick and his family have been before From them we learn: That Bothick lived in the years 1846, 1847, 1848, and 1849 in New York and New Jersey. That he came to New Orleans about 1849 or 1850. That from the time he came to New Orleans to the 24th of July, 1874, he lived with Ann J. Cunningham. That she was universally recognized as his wife, and was undoubtedly mar ried to him. That children were born of this marriage. That Ann J. Cunningham died in 1874, and Bothick afterwards married Olivia

us.