On Motion to Dismiss.
The opinion of the Court was delivered by
Fenner, J.The plaintiff and appellee moves to dismiss this devolutive appeal on the ground that the judgment has been partially executed by sale of the boat in conformity with the terms of the judgment ; and that the appellants, though present in the parish, did not oppose the execution; but, on the contrary, appeared at the sale and became bidders thereat.
The facts alleged do not appear in the record, nor are they admitted by appellants. We need not determine what would be our course, if the facts alleged constituted such an acquiescence in the judgment as would defeat the devolutive appeal.
We are of the clear opinion, that taking the allegations as true, they would not affect the devolutive appeal.
After judgment and expiration of delay for suspensive appeal, the party cast preserves the right to appeal devolutively within one year ; but all power to oppose or prevent .the execution of the judgment is lost.
It is not necessary for the preservation of the right of appeal that the party should make a vain and profitless opposition to the execution, unfounded in law or right, and which could meet no fate but. a summary dismissal at his cost.
The sale made under such an execution would be perfectly valid and would convey indefeasible title to the purchaser, regardless of the result of a devolutive appeal. Therefore, the party who has no power to obviate the sale of Ms property, has a perfect right to take such steps as may prevent its sacrifice, and, to that end, may apiioint appraisers, bid at the sale, and perform like conservatory acts, without thereby acquiescing in the judgment or forfeiting his right, of appeal. McConnell vs. Pasley, O. B. 57, fo. 33; Prentice vs. Chewing, 1 Rob. 70; Jackson vs. Michel, 33 Ann. 723; Alter vs. Pickett, 24 Ann. 573; Yale vs. Howard, id. 458; State ex rel. Hoey vs. Brown, 29 Ann. 862; Johnson vs. Clark, id. 762.
The motion to dismiss is, therefore, denied.
*235Bermudez, C. J.The plaintiff company avers that in July, 1875, by its conjoint action with thirteen other similar companies—under the belief that their object could be legally accomplished—a corporation, distinct from themselves was sought to be created by notarial act, under the general law; that it was to be known as the “New Harbor Protection Oornpany; that property was acquired in its name, as though it was a legal organization ; that it, the plaintiff, has since discovered its error ; that its liability may be quite different from what was originally supposed; that said corporations could not legally create another corporation ; that the corporation sought to be by them thus created, has no legal existence; that its charter shorrld be annulled and that the effects standing in its name should be sold, and the proceeds distributed among the parties interested in the concern, in proportion to their respective interest therein.
Citation was askqd against the parties claiming to represent said “New Harbor Protection Company,” and against the different companies who had coalesced to create such corporation, and judgment was prayed, declaring that said company never had any legal existence as a corporation, an association or a partnership; that the property standing in its name, belongs to the holders of the certificates of stock issued by it and must be sold, the proceeds to be distributed among them ratably as joint owners of such property.
All the parties against whom citation was asked, save two, made appearance by exception, estoppel and answer, antagonistical of the pretensions of the plaintiff company.
The two companies who did not accept the attitude of defendants, join the plaintiff and ask the court to declare that the notarial act was passed in error and in violation of law; that the assets of the so-called corporations be sold and its proceeds distributed among those concerned therein.
The exception was to the want of authority on the part of plaintiff, to bring this suit, but it was, in furtherance of some agreement between the parties in open court; abandoned.
The estoppel was that the plaintiff, having in different ways, recognized the existence of the created corporation, was debarred from alleging and urging adversely thereto.
This estoppel was overruled. Issue having been joined by an answer on the merits, there was judgment for the plaintiff from which the defendants have appealed.
*236Ok the Estoppel.
Whatever he the principles and the doctrine on the subject of estoppels, invoked by the defense, they cannot bo construed so as to prevent any one from denying the legal consequences which may be claimed as flowing from the admitted state of facts, when it is apparent that no sucli consequences can legally result from the acknowledged facts,-or when one of the parties to an acknowledgment brings an action against all the other parties to have the acknowledgment annulled and set aside on the ground that the same is on its face violative of law and therefore barren of all effect. It has been well said that a capacity which has no legal existence, cannot be considered as admitted. 6 R. 13.
An acdnowledgment, however authentic, that title to real estate has been finally adjudicated upon by a justice of the peace, could not be set up as a.n estoppel, because it is legally impossible that such final decision has been legitimately made, as justices of the peace have no jurisdiction over titles to real estate.
A judgment sought to be annulled, caunot be set up as res judieata in bar to the suit in nullity of the same.
An acknowledgment that one has sold his right of inheritance in a future succession, cannot be set up as an estoppel, because all contracts of such a nature are expressly forbidden, and can neither confer rights, nor impose obligations.
Au acknowledgment can never be invoked to maintain a condition or state of things created in violation of a prohibitory law.
Conceding, therefore, that the plaintiff company, with the other comi>anies, thought they could create another corporation, association or a partnership; that they coalesced to do so, considered and admitted they had done so, it by no means follows that those acts and doings can be set up as an estoppel to the present action to prevent the plaintiff from contesting the legal existence of the New Harbor Protection Company, if from f lie face of the act, which was instrumental in the formation of the concern, and which is the main foundation of the plea, it appears that the parties to the act could not and did not, therefore, create the organization.
The right of a corporator has been recognized to charge directly that a company which claims to have become incorporated, has never been legally organized as a corporation, and has never existed as such. Abbot on Corp. p. 365, Sec. 100 ; 32 111. 79, (1863).
The decision of the plea of estoppel is so closely blended with the merits of the ease, that it is impossible to yrass upon that defense *237without trenching and virtually determining the issues presented in this controversy.
The district court overruled it, we think" properly, for the reasons which we will now proceed to assign.