author: BY: WILLIAM A. BELL, JUDGE.

text:
    XETER REALTY, LIMITED versus FELIX T. DREYFOUS
    NO. 8215
    COURT OF APPEAL PARISH OF ORLEANS
    WILLIAM A. BELL, JUDGE:

   BY: WILLIAM A. BELL, JUDGE.

On June 20, 1917, under Act 38 of 1908, plaintiff brought suit against defendant to be deolared owner of the following described property n*-' ' ^uÍcÍLim,

" A Certain lot or portion of ground, situated in the Third District of the City of New Orleans, designated as Lot No. 9 of square No. 108 (now square No. 1377), bounded by Frenchman, Law, Magistrate (now N. Dorgenois), and Elysian Fields Streets, measuring 64 feet on Frenchman Street by 128 feet in depth, forming the comer of Law and Frenchmen Streets."

The petition alleges that Felix j. Dreyfous, defendant herein, has caused to be registered in Book 193, Folio 582 of the Conveyance Office for the Parish of Orleans, a written title to said property, and under the Act of the Legislature aforesaid, prays for judgment over and against defendant, adjudging and declaring petitioner's title to said land to be valid and recognizing it as the sole owner thereof in perfect ownership.

petitioner claims to have purohased this property, on December 6, 1905 from the state of Louisiana under Auditor's deed on said property assessed against Gabriel Lavieand duly registered in the Conveyance Office of this parish, on March 23, 1906, and that title to same was duly confirmed in the year 1910 in favor of petitioner, against Gabriel Lavie and all previous owners, by judgment of the Civil District Court for the Parish of Orleans in proceedings No. 92757 of the Docket of said Court, entitled "Xeter Realty Limited versus Geo. Wheeler, Vim. Green, et ais,“ said proceedings and judgment being ail in accordance with Aot 101 of 1898.

Defendant specially denies that the Auditor's Deed relied upon by petitioner as his origin of title relates to the above described property, but that, on the contrary, said Auditor's Deed describes the property as "Lot No. 12 fronting on Elysian Fields Street", while defendant's property is Lots nos. 1 and 2 on Frenchmen street, forming the corner of Law and Frenchmen Streets, and was purchased by him from August Huard, before M. Y. Dejan, late Hotary, July 1, 1904.

At the outset, vyhatever difficulties these contentions present, it should be here noted that the abstract of titles, “í¿s deeds, judgments and other records offered in evidence as well as the admissions found in counsels' briefj, establish as/undisputed facts, the following:

That both parties contend for the property in question (however^mesne rconvyanees from Mrs. Marianne Dragon, wife of Andre Dimitry, who,owned on June 17, 1834, the following property:

"Lots 9, 10, 11 and 12 of square 108 in the Suburb Karigny, measuring each 60 feet front on Frenchman Street by 120 feet in depth, as per plan of City Surveyor, June 18, 1830, in Office of C. POllook, notary public."

That by aot before 0. de Arma3, potar;/ public, dated June 18, 1834, and duly registered, Mrs. Dimitry sold Lot lio. 9 of the above property to Alex Dimitry and on Kay 30, 1840, by Marshal's Deed duly registered, Alex Dimitry sold said Lot 9 to Gabriel Lavie.

That on March 32, 1848, before A. de Armas, Rotary Public, Mrs. Dimitry sold the remainder of her original tract, to-v/it; Lots Bos. 10, 11 and 12 to Joseph Lumbard, said lots in said deed duly registered, being subdivided,

into six lots numbered 1 to 6 on a plan by T. Brilli, dated February SO, 1848, being plan Mo. 31, Book #3 in office of 0. de Armas, each Thirty-one feet, eleven inches, six lines (31' 11" S'") And fronting on Frenchmen Street by One Hundred Ttfenty-seven feet, ten inches, five lines (127' 10" 5"') deep, Lot # 1 forming corner of Law and prenohmen Streets and other lots adjoining.

On March 18, 1885, Lot Ho. 13 in Square Bo. 1377 (being the new number of square 108), measuring according to the assessment rolls and tax deed, sixty-four feet (64') front on Elysian Fields Street by One Hundred twenty-eight feet (138') in depth, was sold by the state Tax Collector, for the delinquent taxes of 1883, assessed in the name of G. Lavie, to the State of Louisiana.

Petitioner contends for a title against the world and particularly against defendant herein, upon the argument that the judgment of confirmation obtained in 1910 and duly recorded paesed to it an unequivocal title translative of property and in all respects as complete and unattackable as a conventional title. 1$ is further contended that even if defendant can be said to have a semblemos of title to the property in question that petitioner's title dating from 1834 is the more ancient one, and must prevail against defendant's source of acquisition in 1848, fourteen years later. The prayer* of the petition is for recognition of his title as the superior one for reasons just stated, but relief can be granted only upon indisputable evidence, with full burden of proof upon petitioner, that strength of its title, not the weakness of defendant's^,impels the deoree asked for.

Considering the first contention that confirmation of the tax title is as conclusive as a conventional deed,we find from innumbexable well considered authorities,as well as the letter of the statute, Act 101 of 1898, that this is only true if it be proven the tax title submitted for judicial confirmation was predicated upon strict observance by the sovereign authority, or its officers^,of all formalities and regularities required in the tax adjudication or prior assessments or forfeitures. We find difficulty, indeed are unable, to fit these conditions to the facts before us. G.Lavie's original title involved in the assessment forfeiture and ultimate sale by auditor's deed to the xeter Realty Company is described as "Lot #9 fronting Frenchmen Street", at the date of Lavie's acquisition from Dimitry. This is also true in the deed of Alex Dimitry to Mrs. Dimitry conveying Lots 9 to 13 inclusive, and also in the Marshal's deed to Davie, but by some error, which must be attributed, (if it be error) to the officials concerned in the subsequent assessment forfeiture and sale, we find that from 1834 to 1910 (the date of judgment of confirmation), though G. Laaie was never owner of record to but one lot in Squqre 108, Suburb Karigny, to-wit: Lot 9 fronting Frenohmen St., that the assessment^, forfeiture and sale thru auditor's deed^relate to-property in his name, it is true, but in relation to property described only and always in said proceedings as Lot 13, fronting on Elysian Fields street. It must be further noted that neither Lot Ho. 9,nor Lot 13 in Square 108, bounded by Frenchmen, Law, Elysian Fields and H. Dorgenois Streets, is shown by abstracts, official deeds, plots or plans or fields notes offered in evidence, to have ever formed or been situated upon the corner of Frenchmen and Law Streets in said square.

We are not called upon to decide here, what plea, if any

G. Lavie or his author in title could ever urge against petitioner's title by confirmation, nor whether they or their heirs could question the same, despite the irregularities above noted— Rousel et al. v. Railway Realty Co., 133 La. 379.

It is,however, founded upon oommon sense, and fortified by endless Jurisprudence,that no Statute such as Aot 101 of 1898, looking to the quieting of tax titles, can be pleaded as conclusive against parties not cited in the confirmation proceedings contemplated under the Statute. This was clearly stated in Roussel case,, notwithstanding the fact that the confirmation judgment therein obtained against defendants was rightly declared to be conclusive in favor of Roussel and his authors in title.

Counsel for petitioner has stressed in argument and brief, the case of Hamburger Jr. v. Purcell, 139 La. 456, but analysis of this case shows it is not applicable here, for the reason that heirs of parties duly cited, thru a curator ad hoc, not strangers, to the confirmation proceeding therein taken, were seeking to annul the judgment confirming title. Similar facts are also found in Clayton v. Quaker Realty Co. Ltd., 138 La. 103.

These oases as well as the ruling made by this Court in Xeter Realty Ltd. v. Joseph F. Martinez #7861, are not applicable and do not support counsel's contention as to finality of petitioner's confirmation title, for the reason that defendant has never been cited or in any manner made party to the suit brought in 1910.

The present suit has been brought by petitioner under Act Ho. 38 of 1908, which provides for an action to establish tide to real estate where neither parti?es, the' claiming under reoorded titles, are. in actual possession of the land claimed. The Supreme Court of Louisiana interpreting this Statute has said:

"An action, in which plaintiff seeks to recover and praya to be decreed the owner of real estate, and which purports to be brought under Act Ho. 38, of 1908, differs from a petitory action only in the allegation that defendant is not in possession. It does not differ from a petitory action in the matter of the obligation of the plaintiff to establish the title set up by him."
Davidson v. McDonald, 131 La. 1047.

Tilth this requirement before us and after discussion, as above set forth, of petitioner13 apparent irregular and uncertain title, it is proper to note the nature and development of defendant's title which is now challenged.

The whole controversy is over that portion of land unimproved and unoccupied, which is more particularly described in defendant's deed, (duly reoorded), as “Lots 1 and 2 (being portions of a traot comprising Lots 1 to 6), comprising:

"Six certain lots of ground, etc., in the Third District of this City, in Square Ho. 1377, bounded by Frenchmen, Lav;, E).ysian Fields and Dorgenois Streets, designated by the Hos. One to Six, both inclusive, in the new Suburb líarigny, as per plan drawn February 20th, 1848, by Tobin Brille, Surveyor, etc., which said lot3 of ground measure each Thirty-one feet, eleven inches, and six lines (31• 11" 6''1) front on Frenchmen Street by a depth of One Hundred and twenty-seven feet, ten inches and five lines (127' 10" 5'''), between parallel lines. Lot Me. One (1) forms the corner of Frenchmen and Law Streets. The said lots of ground are formed from the lots Of ground numbered Ten, Eleven and Tvrelve (10, 11 and 12) of Square Mo. 108, on the original plan of said Mew Suburb Marigny."

Defendant's title to the above described property is shown from the evidence in this case, to have been acquired by him July 1, 1904, from August Huard by notarial deed duly recorded and is traced thru several notarial deeds, each duly recorded, and eaoh containing identical and consistent description as above given, down to Joseph Lombard who acquired from Marianne Andre Dimitry by act before 0. der Armas, I-otary Public, on March 23,1848. It is also shown that defendant has paid all taxes and certain paving claims for sidewalks,on said property since his acquisition, and that said property from 1890 to 1903 was assessed in the name of Joe. Lombard who paid all taxes for said years and that said property was not aesesaed to any one from 1869 to 1889 inclusive. All other lots than lots 1 and 3 being part of the original lots 10, 11 and 13 on the aforesaid plan.of Brille, have been sold by defendant. His good faith is not questioned in these proceedings and the tax researches annexed to his deed, filed in evidence, show that this property was not assessed for the years 1883 and 1883, those years for whioh the G. Lavie property described ae "Lot 13 fronting on Elysian Fields St." was assessed and sold.

The unauthentioated blue print or plan offered at the trial in the lower court, by petitioner, and aSsmitted over defendant's objection, proves nothing as a document authenticating title to real estate, but even if admissable, it cannot be said to identify Lots 1 and 3 (claimed by defendant, and forming, as declared in his deed, "the corner of Frenchmen and Law Street"), with either "Lot 9 on Frenchmen Street" or Lot 13 on Elysian Fields STreet, the property or properties alleged to have belonged to G. Layie, one of petitioner's authorls in title.

It follows from these considerations that defendant's title is certainly clear and unequivocal, while petitioner's title (not unequivocal as against defendant is at best clouded by evident errors and irregularities, whioh cannot toa validated by the confirmation proceedings relied upon;(Armheim v. Nylka Land Co. 137 La. 570.) Though it be admitted for sake of argument that petitioner's title is the more ancient one, it cannot be denied, as against tljis recorded owner whose title he challenges after thirteen years of defendant's publio ownership and after six years of hát-own reposeful title in"Lot 13 fronting on Elysian Fields street", that neither equity-v-or law will award him a better title because of his earlier acquisition; (Sheen v. Hain, 141 La. 606.

Under the authority of Chamberlain v. Abadie, 48 Ann. 589, and for lack of conclusive evidenoe of Interrupted corporial possession in defendant (which if a fact and if pleaded would have avoided this extensive litigation), we oannot find any merit to the prescription herein pleaded by respondent.

JUDGMEH5 AFFIRMED.


source: Caselaw Access Project

author: BY: WILLIAM A. BELL, JUDGE:

license: Public Domain

text:
    L.A.PEEL, ADMR. OF A.L. PEEL, versus VIOLA ST. ANN PEEL
    NO. 8,219
    COURT OF APPEAL PARISH OF ORLEANS
    YUZLTAj.i A.Allá,JUDGE:
   BY: WILLIAM A. BELL, JUDGE:

On May 17. 1919, Albert L. peel of Mem Orleans ^was Milled at #936 Canal St.. His brother, William A. Peel, who qualified as administrator of his estate, has brought these y^rooeédings against Mrs. Yiola St. Ann, divorced wife of

' Richard Maroney, also known as second wife of Albert l. Peel, the same proceeding, Dudley Duplantier is made a co-defendant. The petitioner seeks to recover from theca defendants, a certain Studebaker five seated, six cylinder, touring oar, 1919 model, with motor number 64950, serial number, 238113, It is alleged that this car, with other property, the nature of which need not be discussed in this appeal, is property belonging to the estate of the deceased, Albert L. Peel, and that neither of the defendants has any right title or ownership therein. It is alleged that Yiola St. Ann, immediately after the death of the aforesaid decedent, unlawfully took possession of the said car, and subsequently transferred it, without any right 30 to do, to Dudley Duplantier, v.ho now, contrary to lavi, and against any rights of possession, continues to retain possession and control over said oar, against petitioner's demand made on behalf of the succession of which ho is administrator. It is alleged that the car in question vas acquired by the decedent during his marriage with Mrs. Jennie Blanchard, his divorced wife, and that said property was community property of said marriage, against which, by order of court in divorce proceedings of Mrs. Jennie Blanchard against her said husband, Albert L. Peel, there was an injunction prohibiting the deceased from selling or disposing ox said oar to the -irejudiee of the community formerly existing between the parties to said divorce proceedings. Upon allegations of feaf that the oar in question wou.13 be disposed of to the prejudice of the estate of Albert Z. Peel, the same was sequestered in the hands of Dudley Duplantier, under order of court, on the 21st day of July, 1919. Upon the following day, on motion of Dudley Duplantier., and upon a bond being furnished By him in the sum of $1,000, the writ of sequestration was bonded and the oar released by the sheriff unto the defendant, Dudley Duplantier, in whose possession the car has at all times remained during the pendancy of this proceeding.

It appears that almost immediately after the final decree of divorce eranted Mrs. Jennie Blanchard against her husband, Albert X. Peel, that the latter was married to Mrs. Viola St. Ann, the other defendant herein, the marriage taking place on the 15th of April, 1919. It is claimed by Viola St. Ann in her answer to these proceedings, that the car in question was given her by the deceased about caree weeks before her marriage to him, that is, the latter part of March, 1919. At the trial of the case, this defendant testifies that her name "Viola Peel." was cut upon the steering wheel of the ear; that this inscription was made about a week before her marriage to the decedent, but upon cross-examination, she says that the car was given to her about three weeks before her marriage, and that the letters, or inscription were not on the wheel when given her, and she finally admits, on cross-examination, that she does not know who placed the lettering on -the steering-wheel. Ihere is no proof in the record of any formal transfex of this properry to Viola St. Ann, nor that anyone was a witness to the act of donation, as claimed by her. On the contrary, it is shown that during the negotiations towards adjustment of the community interest between the decedent and his wife, duly divorced from him, that the said Albert L. Peel wrote a letter to his attorney under date of April 29, 1919, (some fourteen days after his marriage to Viola 8t. Ann) and particularly referred to said oar, as property forming part of the community previously existing between him and his first vafe, and concerning which a judgment for-partition had been rendered in the said divorce proceedings. A careful examination of the testimony relating to the relations between the decedent and Viola St. Ann, in regard to this property, is convincing, that she never had any interest or title in the same whatsoever.

It remains, under the circumstances, to determine the rights, if any, that 'Dudley Duplantier, the other defendant in this proceeding, had in the car herein sequestered. Duplan-tier has called one, Omer Vilac, in warranty into this proceeding, alleging that Vilac sold him the Studebaker car on or about June 4, 1919. This defendant-in-warranty has pleaded in effect, a general denial to the plaintiff's petition as well as to Duplantier's answer and call in warranty. The testimony-in regard to this transaction shows that Omor Vilac, through' his son, Fabian Vilao, a young boy of but trenty-tv.o years of age, doing odd jobs around his fathers blacksmith shop, and acting for his father, purchased from Viola St. Ann, the ear in question, by paying f-800 in cash therefor, to Iquís F. Burns, Rsq., then acting as lawyer or agent for Viola St. Ann. There was no formal bill of sale, but simply a receipt for the money, signed by Burns, only, and describing by number the particular Studebaker car. Omer Vilac, having learned from his son that this ear could be bought for f800, was doubtful whether he, hiin-s'élf, would buy it for the price mentioned, or whether he should buy it and transfer the same to his next-door neighbor and friend, Fred Roses, the latter being engaged in the business of purchasing-all kinds of .personal property upon which he could find opportunity for profitable trading. Omer Vilac, the night previous to the sale of the automobile to Duplantier, persuaded Fred Roses to purchase the machine* for t’c price of £850, and the Ini ter accord] ly gave Vilac his check payable to Viluc’s order for said amount. On the follow in* day, after advising a friend v.,vo linev the machine,, of his proposed purchase, Hoses concluded, upon the XriendTs advice, that he did not vout the machine, and at the noon hour of the same day, so informed Omer Vilac, v.ho had meanwhile purchased the machine free. Viola ¿t, Ann, through his son, Habían Vilac. Hoses1 check having been indorsed by Vilac and cashed b;r his son through a third party, the son retained £50 of the £ü50 for his commission in the matter, and payed the balance to Viola St. Ann’s attorney, as aforesaid. At this point Duplantier came into the transaction, by learning that Roses, who was Ms uncle, had declined the purchase of the car, and substituted himself in his uncle’s place. The car v/as thus sold and delivered to him instead of to his uncle, Fred Roses, he, (Duplantier) on the next day reimbursing his uncle for the £850 represented by the check given by Roses to Omer Vilac. Young Vilac denies that his father ever purchased the car, and that his transactions with Viola St. Ann through her attorney were entirely on his (Fabian Vilac’s) own account. However, neither the father,, nor son, when closely interrogated concerning the circuitous sale by Viola 3t. Ann, through Fabian Vilac to Duplantier, a purchaser substituted in Roses’ place, who originally issued the check for £850 to Omer Vilac, can satisfactorily explain why the said check was made payable to Omer Vilac. This fact, coupled with the second transaction which involved the issuance of a check*for £15.00 by Duplantier to Omer .Vilac, as additional compensation or commission connected with this sale, and further, Omer Vilac’s unsatisfactory explanation concerning the cashing of this check, form such record evidence as impe- us to the belief that Omer Vilac was undoubtedly the real purchaser of the Studebaker car from Viola St, Ann, and unquestionably was the only party from whom Suplantier, in turn, acquired the car.

There is nothing dubious or suspicious in the conduct of Duplantier, vvho appears from a most careful examination of the extensive ‘testimony in this case, to have been a careless but honest purchaser for value who relied upon his many years* confidence In Omer Vilac to lull him into the belief - without a business-like inquiry - that Vilac*s title in the car was reliable and translative. It is quite possible that Vilac in turn believed he was purchasing the car from its true owner.

Our brother of the Trial Court, who heard and saw the innumerable witnesses in this case, was undoubtedly convinced, as are we, that Viola 3t. Ann at no time had valid title to the car conveyed by her to Omer Vilac, and it follows that Omer Vilac who purchased from one a perfect stranger to him, without caution or satisfactory inquiry as to her title, must be found liable in warranty to his vendor, who is in turn, liable to the estate -of the true and valid owner.

It is contended by Counsel for Vilac that plaintiff, as administrator, cannot stand in ¿judgment, and is without authority to institute a proceeding of this nature, there being no allegation or proof that there are debts of the succession to be paid, and that in fact the estate is shown to be amply solvent, and that all dcbt3 having been paid, the administrator^ solo duty is to promptly close the estate and turra same over to the rightful heirs.

No such exception or plea has been filed by Vilac, vlo now clines to the exception of no cau:e of action herein filed by vis venadeo, Suplantier, and urges thr.t Duplantier* defense by vay of txcc-tion should be .'i-r.l,-it.-'..i ued to vis benefit. ..‘ere •’ - a pi ion •Is Lie to Vilac thou. h only pleaded by Huplantier, re are of the opinion that it is not a sound defense for either. The authorities cited by counsel are not applicable as have been plainly shov.-n by the clear and veil considered cs3e: Woodward, Admr. vs. Thomas et als., 38 Ann; 239 - where the Court pointed out that though an estate be solvent it v;as the duty of an administrator, the heirs not yet being in possession, and the affairs of the succession being unsettled, to reclaim such property as he may have discovered belonging to the estate, held adversely by a third party under-title not derived from the decedent. In this decision many of the authorities cited by Counsel for Vilao were reviewed and differentia ted from the faet3 of the ease then under discussion, and v.hich are in many respects similar to the facts now before us. La. Digest, Vol. III., Par. 67 and Par.83. It has also been held that an administrator may sue lor debts due the estate as long as he continues to be administrator, notwithstanding the fact that the succession itself owes no debts - Keane vs Goldsmith, 14 Ann. 349; Kluker vs Kent, 127 Ann. 37; Labit vs Perry, 28 Ann. 591.

It is also contended by Tilac that the administrator in any event cannot have judgment for the whole auto for the reason that if it belonged to the first community existing between decedent and Mrs. Jennie Blanchard Peel (the' first wife, now divorced) the effect of the divorce was to dissolve the community and therefore Mrs. Jennie BTanchard Peel's half interest cannot be now claimed in these proceedings by plaintiff herein, who is without authority to- represent her. It is further olaimed that the heirs of the decedent should have been joined in this proceeding. There is no merit in these contentions, all of which were, in our opinion, rightly disregarded by the trial court. In any event the defendant in warranty cannot now be heard to urge these defenses in argument or brief only. It may be adde'd that v/hatever rights the decedent's first wife had or may have had in the partition, or ■the results of partition ordered to be taken in her divorce proceedings, are matters of either amicable or legal adjustment between herself and her divorced husband's administrator, and are not grounds or pleas of defense available to one called in warranty to restore the whole of which his vendee has been evicted. It is true that Code of Practice, Art. 384, gives to a warrantor the right to plead every exception which the defendant calling him might plead, but such exceptions, when adopted or resorted to by warrantor, must be by himself specially pleaded, and not urged simply in argument or brief.

It is further contended by counsel for Vilac that should this warrantor be found liable to Duplantier, there should be judgment reserving to Vilac the right to retain against the whole price originally paid by Duplantier, such amounts as would cover the impairment to the car arising from the latter's use thereof for almost three years since the institution of this suit. He cites with confidence Art. 2508 R.C.C., which provides as follows:

"If, hoc ver, the thing sold was impaired by the buyer and he has reaped some benefit therefrom, the seller has a right to retain, on the price, the amount to which such damages may be estimated in favor of the owner who evicts him."

This article of the Code, replete with equity, cannot be invoked or applied to conditions arising subsequent to the suit for eviction, or subsequent ±0 the call in warranty. Adjustment of claims between the parties, in such manner as is pointed out by the above Article, is only possible as to the status of the parties and condition of the property at the time of the suit. If it were otherwise, there would be additional and amendatory decrees up to the final termination of controversy in the court of highest and final jurisdiction.

There is ample proof in the record to justify the conclusions of the trial judge that the value of the Studebaker Oar involved herein, is Eight Hundred Dollars, and v:e can find no error in the decree directing that defen-¿ants restore the car unto plaintiff in such condition as existed at the date of its sequestration, or failing therein, there be judgment in the amoun< -foreaaia. As provided by Arto ¿b5 of the Code of Practice, the judgment should be ex-ecutory on the part of the plaintiff against the defendants and on the part of the defendant, Duplantier, against the warrantor, Omer Vilac, the latter being corbelled to pay unto Dudley Duplantier the sum^Eight Hundred Dollars, v ith legal interest and costs- as stipulated in said judgment conditioned, however, upon the said Dudley Duplantier first restoring.to plaintiff the car as directed and payment of all costs herein which plaintiff has incurred or upen payment by said Duplantier, unto plaintiff, of the monied judg-.ont with interest and C03tso

March 27 1922.

It is therefore ordered, adjudged and decreed, that the judgment of the trial court as appealed from, be amended only in so far as to direct that Omor Vilac shall be, and he hereby is, condemned to pay unto Dudley Dupla,uier the sum of Eight Hundred Dollars, with legal interest from judicial demand and all costs of both courts, conditioned upon the full compliance by Dudley Duplantier of the alternative judgment for which he, as defendant, in solico, has been cast, in favor of plaintiff, y/illiam A. leel, Administrator of tre Succession of Albert L. feel.

JUDGMENT AilSKDILD AlíD AS Ah.HIvD^iD ~ AEÑIj.H-ifD


author: Dihkelspielj J

text:
    NO. 8220
    COURT OF APPEAL PARISH OF ORLEANS.
    MRS. SOPHIE GASTAUER versus GEORGE GASTAUER, her husband.

   Dihkelspielj J

This proceeding arises through a rule -brought by Mrs. Sophie Gaste,uer, against the l;.w firm of Woodville & Woodrille, and J. A. Woodville and J. L. W. rieodville, the individual Members of said firm, to ffloapel them to turn over to George Montgomery, Esquire, for the purpose of being included in prooes of partition, whioh had been referred to him and whioh ha had been ordered to dr=w up by the Judge having jurisdiction of this matter, the sum of One Thousand Dollars, whioh money is claimed by plaintiff in rule v/Sis re'lizsd from the s-'le of a mort.g .gs note, property of the oommunity existing between plaintiff in rulo "nd her husband, from whom she h.s by order of Court, been divorced and separated in property.

Plaintiff in ruis alleges th:t the One Thousand Dollars involved should be turned over to s- id Notary for the reason th'.t st the time this fund.o['i.i3 into ' bhe Irnds of Tfoodville & Tfoodville, it was community property, bo their knowledge, end that same is being retained by them in satisf- ot&on of the separate debts of her divorced husb'-nd, whioh debbs are not chargable og«inst her ;nd therefore these p-rties should be compelled to account for said money in full, aiding legal interest thereon, to the Notary before whom the partition proceedings were ordered to be taken, h:d been referred by the Court.

The rule w-s taken out in the 3uit originally filed by the wife «gainst h*r husband, for sep: ration of property, in whioh suit she claimed that the property upon whioh the CWg Thousand Dollars above referred to had been borrowed, was her sep-rate property, but whioh the Supreme Court decreed was the property of the oommunity existing between horself end her husband, from whom at that time she had not been divorced and against whom, in the same decree, the Court granted her o■ separation of property.

Gastauer vs. Gastauer, 131 Ann, pc. 7-8.

The rule was made absolute by. the Judge aqua, to the extent of ordering defendants in rule to turn over to the Notary, the sum of $173.35, and in all other'respeots was dismissed and from that judgment plaintiff in' rule has taken this appeal.

A oareful investigation of the reoord in this oase proves that since 1909, up to the present time, there has been a great deal of litigation between the spouses, beginning in. the year above referred to, with a suit for divoroe by the husband against his wife, but whioh suit was subsequently discontinued and terminated with the rule now before this Court.

After the husband discontinued his suit for divoroe against his wife and prior to the institution by her, of a suit of separation of property, from her husband, he, Gastauer, borrowed from -a olient of Woodville & Uoodvilde, the One Thous- and Dollars in question, giving as seourity therefor, a mortgage on the property whioh plaintiff in rule claims as her sep-trate property, but whioh as above stated, our Supreme Court decided, belonged to the oommunity, and in whioh -deoi3lon plaintiff in rule aoquiesoed by formally acoepting said property with benefit of inventory and subsequently demanding a partition thereof.

In thst suit this property, with some other personal property, as shown in the inventory taken by the Notary in these proceedings, ss belonging to the oommunity, were ordered to be sold,by the Court for the purpose of being partitioned and the parties were referred by the Court to the Notary who was ordered to partition same -ond all funds of the community teeing- ordered to be turned over to the Notary for that -purpose.

A proces of partition was submitted by the Notary to the interested parties but 3Sme was objected to by the wife and kx others, not. parties to the rule, and which, objsotions 'vrere finally p:s-;.d upon by the Court.

Amongst the items objected to by Mrs. Gastauer as not ohargable against me community, was an item of 55314.60, whioh represented oosts expended in the matter of the wife against her husband, whioh oosts, it was claimed should be oharged against the separate share coming to the husband.

There was the further objection made to the One Thousand Dollars, represented by the mortgage note, e.geinst the oommunlty property, as same ws.s illegally exeouted by the husband on the property and said note is asked to be decreed null' and yoid.

Other objections filed to - said prooes of partition by the wife, in our opinion have no bearing upon decision of the matter now before us.

The Judge of the Court aqua dismissed the opposition to the two items above referred to, from whioh on appeal was again taken to the Supreme Court, whioh Court maintained the validity of the mortgage, holding:

"The.t even though this mortgage may have been executed, as alleged, solely for the purpose of defrauding the wife or ner oommunlty rights, but ¡'s the money had been advanced on the faith of said property, by on innocent third party end as at the time of said mortgage, there were no suits pending by the husband against the wife or the wife against the husband, for & separation of property or person, the husband had a right, os the head of the community, to mortgage the property and having done ao, s*ms must stand and be given full foroe :,nd effect."

Gastauer vs. Gastauer, 143 Ann. 751-752.

In so far as the item of §314.60, costs are concerned, the Supreme. Court held that the judgment in the separation suit

retroaoted to the filing of that suit and that suit h ving been filed, •.nd the oosts incurred after the decree of sapor-.tion of property, same could not be oh rged ag-inst the community, but must be oharged against the husband seprrutely.

Gastauer vs. Gestauer, 143 Ann. 754.

We have quoted fully from whot we consider the salient facts as disolosed by this record, for the re' son that while it is our opinion that the only point upon which we are oalled upon to adjudicate is a right vel non of Hr. Gastauer as head and master of the oommunity, to dispose of the One Thousand Doll-srs which defendants in rule are oslled upon to turn over to. the Hotary, at the same time, it was necessary for us to determine first, if said One Thousand Dollars wee community property, end if so, to whet extent same oould be disposed of by Mr. Gs.etauer in connection with the various suit for sspsr=.tion, divorce, .eto. which this xsacaxdx record shows to hove been brought against him by his wife.

The Supreme Court having deoided that the property mortgaged, was oommunity property, (131 A#n. 6-7) and that the mortgage exeouted by Gasteuer \r-s valid (143 Ann. 751-752), we have no doubt that e.s head and master of that community, he had the right to do with the proceeds of that-mortgage, i s he pleased, without consulting his wife or in any way obtaining her consent thereto.

Revised Civil Code, Artiole 3404.

This right, however, \r- 3 his only as long as there existed a community of property between himself and his wife and s.3 the suit of separation of property v/ s instituted by plo.intiff in rule, agiinst her husb;-nd, on Febru-ry 23rd, 1916, to which said separation she was deoreed to be entitled (l31f Ann. p. 2) and as she,in a'subsequent proceeding v»3 granted a. divorce agsinst him, (132 Dr. 942), whioli said judgment 'was deoreed to be retroactive to the d»'te of its filing (143 Ann. 753), we are of opinion th?t from Febru..ry 23rd, 1910, the date of the filing of suit for esperetion of property, that Hr. Ge.ste'uer -Tf.e no longer,under the low, m-ster of the -orob-erty, consequently had no right to dispose of same as suoh.

Referring to a statement filed by Messrs. Woodville & Woodville, the testimony of Mr. J. A. Woodville, in connection therewith, we have arrived at the following conclusion: First: The item of Fifty Dollars, charged against the OUe Thousand Dollars mortgage note, for negotiating sale thereof, prior to February 33rd, 1910, is 'a proper oharge end should be allowed.

Second: That the Five Hundred Dollar fee of ’Woodville & Woodville, attorneys,for sarvioes rendered for Mr. Gastauer deducted by them at the time, this money came into their hands, is a proper ohn.rge and also should be allowed. Third: That the costs of both Courts advanced by said low firm, in the divorce suit brought by Mr. Gastauer against paid his wife,/Hi3Exaacjta by them prior to February 33rd, 1910, amounting to $33.90, should be allowed,

Fourth: That the further sum of Two Hundred Doliere, paid by Woodville & Woodville from this One Thousand Dollars, to Mr. Gastauer should be deducted from the amount v/hich said attorneys-are compelled to turn over to said Notary, for the purpose of being partitioned, the Notary not h ving been appointed until January, 1913, while the firm of Woodville & Woodville had no right to retain this money in or any part thereof, after demand h*.d been made upon asrayxttrgxHfgxgx them therefor, by Mr. Gastauer, to whom it belonged. Henoe there remo ins the sum of $173,33 which Messrs. Woodville & Woodville admit to be in their hands, being balance due for the account of Gastauer end which under the decision of the Supreme Court, as above quo ted, 'should be ohorged against the separate funds of said Gastauer, meting a total of $334.90, which sum should be turned over to the Notary, by Woodville “ Woodville, for the purpose of being partitioned.

It is therefore ordered, adjudged s.nd decreed, that the judgment of the lower Court be amended so as to order the firm of Woodville & Woodville and the individ-ua,! members thereof, J. A. Woodville and J. L. ¶. Woodville to turn over to George Montgomery, Esquire, Notary Public for the purpose of being inoluded in the partition proceedings, in the matter of Mrs. Sophie G&stauer versus George Gast&uer, the sum of $334.90, with five per cent interest thereon, from February 33rd, 1910, and in all other respeot said judgment of the Court aqua, 4s affirmed, the defendant in rule to pay costs of this Court,

-Judgment amended and affirmed-


author: BY: WIIBIAM A. BELIi, JUDGE:

text:
    DR. ADOLPH JACOBS versus ELIAS SINGER
    NO. 8221
    COURT OF APPEAL PARISH OF ORLEANS
    '.7ILLIAH A. BELL,JUDGE:
   BY: WIIBIAM A. BELIi, JUDGE:

The plaintiff in this suit, Dr. Adolph Jaoobs, seehs to recover the sum- of §125 for alleged value of professional services rendered by plaintiff, who performed a surgical jperation on Mrs. Elias Singer, wife of defendant, on or about 'October 31st, 1917. There was judgment in the lower Court for ^//the amount as prayed for.

Defendant admits the employment of plaintiff, but claims that under a specific contract it was agreed that plaintiff would only charge §50 for his services, and it is alleged and sworn to by defendant in his answer, that no money was to be paid to plaintiff until defendant’s wife had fully recovered her health - in other words, it is contended as a matter of defense that plaintiff guaranteed a successful termination of the operation.

There- is no defense that the services rendered were unsatisfactory, or that plaintiff failed to perform the operation with professional shill, nor is there any damages claimed by defendant from the plaintiff. Quite a large portion of the evidence in this case could have been rightly excluded, because wholly irrelevant, in that it related to the nature of the operation, the method of treatment, the care and attention, etc., given before and subsequent to the operation. The issues in the case do not involve any of these questions, and the whole case turns on the fact whether plaintiff, before the operation, ever agreed to perform the same for a fixed sum, or whether there wa3 any guarantee as to the results of the operation. In other words, the suit is brought upon the quantum meruit, for services rendered, and defense thereto is alleged specific contract as to the value and the guaranteed results of the service. There are no'reasons for judgment, but the Judge of the lower Court, / after seeing and hearing the witnesses in this ease, found for the plaintiff.

We have carefully examined, the record and all the testimony therein. The defendant and a Mrs. Witcoff, a friend of the family, testify in support of defendant's contention, each of them swearing that another doctor had previously agreed to perform the same operation for the sum of $50, but the plaintiff being a doctor for a bep^vo^sirj^ssooiation to which the defendant also belonged., he" was entitled to medical services for his A-wife as well as himself, and decided to ascertain at what price the plaintiff would undertake to perform the surgical operation desired. To this effect, these two witnesses stated that plaintiff was consulted by Mrs. Singer in the absence of her husband, but in the presence of Mrs. Witkoff, and that the doctor advised the patient that she was suffering from chronic adhering appendix and lacerated peritoneum, and that the operation was neither dangerous nor uncommon, and would very likely give her permanent relief. There was no guarantee as to results, nor was any demand made for payment in advance of the operation, in fact, the plaintiff declares in his testimony, that he did not guarantee anything at all, and that his arrangements were made with Mrs. Singer herself, and that no one else spoke to him about it.

The fairness of the fee is testified to by three doctors, one of whom is the physician whom it was claimed previously agreed to do the same, or practically the same operation, for the suit of $60. The plaintiff states that he had no knowledge of the fact that any doctor had agreed to perform this service for $50. All of the three physicians testifying as to the value of the services say that the fee was a very reasonable one. Plaintiff denies that he ever made an agreement with Mrs. Singer in the presence of Mrs. Witkoff to perform these services for the sum of $50.

April 10, 1928.

The evidence shows the plaintiff to have been a practicing physician and surgeon for the past ten years, that he was for over two years an interne in the Charity Hospital, where he also served as house surgeon for another year and a half, during which time he had unusual surgical experience, rendering him fully qualified to perform the services contracted for.

While it is alleged in defendant’s answer, as above stated, that plaintiff agreed with defendant that no charge would be made unless the operation was successful, we find that when defendant testifiesi he avoids this subject industriously, and that no part of his testimony is given in support of this sworn allegation in his pleadings.

The testimony of Dr. Coleman and Dr. Wolff shows that the death of the patient, three days after the operation, was probably from anesthetic pneumonia, and was not caused by any Known defects or carelessness in the operation.

There is some conflicting testimony to the effect that after the operation end after the claim had been placed by plaintiff in the hands of Rotary Weil for collection, that plaintiff agreed to accept the sum of §60, but all of this is particularly denied by plaintiff and one of his attorneys in this proceeding, taking the stand corroborating plaintiff's denial of this fact. The whole case hinges on the credibility of the witnesses; there are no questions of law involved, and in the absence of extreme variance between the findings of the court and the testimony adduced, we are compelled to follow the conclusions of fact reached by the Trial Court.

For these reasons, it is ordered, adjudged and decreed that the judgment herein appealed from be, and the same hereby is affirmed, at defendant's cost in both courts.

JUDGMENT AFFIRMED.


author: CHARLES F. CLAIBORNE, JUDffi.

text:
    Charlee F. Claiborne, Judge.
    MEYER S. DREIFUS VS MOTOR PARTS CO.
    No. 8223
    April 10th, 1922.

   MEYER S. DHEIFUS VS MOTOR PARTS CO.

No. t'223

CHARLES F. CLAIBORNE, JUDffi.

Plaintiff claims from defendant an automobile which he left with him to be repaired.

Defendant admits that plaintiff is the owner of the automobile, but claims that he has a right to detain it for the following reason: that the plaintiff telephoned to him to call at his residence for an automobile and to repair the same; that defendant sent for same and hauled it to his shop; that the plaintiff called at his sh6p and instructed him to make the necessary repairs, which defendant did; that the labor and materials furnished by defendant are worth $120 which plaintiff refused to pay; that he is entitled to detain said automobile until said bill is paid.

By an amended petition plaintiff claimed $15 damages for injury to the tire and to the battery caused by defendant, and for $10 a day illegal detention of the car by defendant.

There was judgment in favor of defendant for $36.52. He has appealed.

In his reasons for judgnent the learned trial judge says: "that the proper and just cost fer the repair is $36.82. The difference between the just cost for repair and $120.72 claimed is $84.20. This $84.20 is for labor, x x x This charge, for labor does not go to the mechanic, but goes to defendant, and is pure and simple profiteering. There is no law authorizing any such charge".

In his brief and in argument, plaintiff's counsel admits that

"judgaent should be rendered (in favor of defendant) for the sum of $63.82?

The plaintiff has abandoned the claims set out in his supplemental petition.

The only contest is about the time consumed in doing the work and the price charged for doing the same.

I. As far as the time is concerned, the plaintiff supports it in the only manner which it can be supported, and that is by the “Time Cards" kept as part of the operations of his establishment, and by his testimony. The different mechanics, or the foreman, keep a record of the time devoted upon each piece or work, and repart the same to the book-keeper, who enters it upon cards, and these cards form the basis for the time charged. These cards, if not conclusive proof, are at least corroborative, and if supported by the testimony of mechanics, make full proof. It would be impossible for any owner of a shop to establish his claims, if he had to rely upon the memory of each mechanic, as to the time he worked upon several jobs after many months had elapsed. These cards should have been admitted in evidence, not to establish the demand by themselves, but to corroborate the testimony of the several mechanics whose time was recorded on those cards. S

/f, II. As far as the price charged is concerned, the tasti- -, 2/3 *-/ s //Ó-. //¿> 2r -2 ¿ mony is that defendant paid his employees eighty or ninety cents and hour, work or no work, and that he charged the plaintiff $1.50 an hour for his own time and that of his employees. The evidence of StaaaLey Meric, a witness for plaintiff, of Fred Clomberg, Wilmer T. Morris, of N. L. Bird, Superintendent of the Auto Mechanics Department of Loyola University, all swear that such a charge is reasonable and customary. Such charges are' indispensablerto meet overhead expenses of rent, installation, outfit, loss on contracts, and a fair compensation for capital invested and energy and enterprise engaged. Without such charge, shops would soon have to close their doors. Nor is a repair shop presumed to keep on ba*d all the part3 that go to make up an automobile. Stores are there for that purpose. When shops do not have the required pieces, the ovsiera must go out and procure them. For that they are entitled to charge time.

A patient reading of the tedious and lengthy testimony of this case convinces us of the correctness of defendant's charges.

It íb therefore ordered that the judgnent herein he reversed and set aside; and it is now ordered that there he judgnent in favor of Motor Parts Company; Joseph A. Opferkuch, proprietor, and against Meyer 3. Dreifus. for the sum of One Hundred and Twenty 72/100 Dollars with five per cent per annum interest from March 20th, 1920 till paid, and all costs of this suit, with privilege and right of detention of the automobile sequestered herein; «id that the writ of sequestration issued herein be set aside; it is further ordered that there be judgnent in favor of Meyer S.Dreifus, recogiizing him to he the owner of said automobile and entitling him to the possession thereof after the payment of the judgnent herein in favor of the Motor Parts Company.

Judgnent reversed.

April 10th, 1922.


author: SI: WILLIAM A. 23IL, JUDGR:

text:
    LEON H. GRANDJEAN, versus NEW ORLEANS GAS LIGHT COMPANY
    NO. 8,225
    COURT OF APPEAL PARISH OF ORLEANS
    WIRRIAM A. BEAR, JUDGE:

   SI: WILLIAM A. 23IL, JUDGR:

Plaintiif sues defendant ior the sum of One Thousuns Seven Hundred and Fifty Dollars ($1,750) damages alleged to have been sustained because of the removal by defendant of a certain gas meter from ¿.laintiff's residence. The total amount herein prayed for is itemized as follov.s: Damages claimed in the sum of One Thousand Dollars ($1,000) alleged to have been suffered by plaintiff to his good name and reputation, ana also for mortification, humiliation, embarrassment anu mental chagrin, suffered by both himself and his wife; it is also claimed that because of the unwarranted trespass of the defendant company upon the premises of petitioner, and because of tfc. illegal removal and taking away of the gas meter, and because of the deprivations suffered in the loss of the use and benefit of the gas service from May 17, 1917, until its replacement, plaintiff suffered damages in the sum of Five Hundred Dollars ($500); it is also claimed that plaintiff was compelled to employ counsel because of the unlawful acts of the defendant company in the removal of the meter, and that the reasonable value of said services is the sum of Two Hundred and Fifty Dollars ($250).

There was judgment of the Lower Court in favor of plaintiff for the sum of One Hundred Dollars ($100) and oosts, and in the written reasons for judgment, the Court in a few lines expressed the opinion that the damage was slight, and awarded the amount mentioned.

We find, from the evidence, that there were difficulties not necessary to be narrated at this time which arose between the plaintiff and defendant, leading to the defendant company's issuing an order for the gas service to be out out. This order was placed in the hands of one of defendant's employees, who called at plaintiff's residence on March 17, 1919 to remove the meter, but it is olear that the meter on this occasion was not removed, the wife of plaintiff stating that the bill then due for the months of December, 1918, and January 1919, would be paid, This premise made by plaintiff’s wife was lcept, and the bill v/as paid on March 17, 1919. There is no claiib in this suit for any damages suffered on this occasion, but the sole complaint narrated in plaintiff's petition upon which he now seeks recovery, was a subsequent incident, arising in the later month of May, 1919. It appears that when the bills for December and January were paid in March, 1919, the treasury department of the defendant company issued an order canceling the cut-out order which had been previously given to its meter department, but through some error in the company's office, this cancellation of the cut-out order ivas not observed, and though plaintiff had fully paid all of the bills due up to the day of May 17, 1919, that on said date an employee of defendant company called at plaintiff's residence, rang the bell, and informed plaintiff's wife that the company desired to remove the gas meter, and to discontinue the service because the bills had not been paid. The gas meter in question was on the front porch. There v;as no attempt on the part of the employee of the company to enter the house against the occupant's wishes, but on the contrary, it appears from the testimony of dsfendent's employee that he made courteous request, simply stating the reasons why he desired to remove the meter. It is not denied by the defendant that there was unfortunate error in the office of its company, leading to the attempted second renoval of the meter, bur v/e find from the evidence that as soon as the employee of the company was advised by plaint iff's wife that there was error on behalf of the company in attempting to remove the meter when all bills were paid, that this employee made every effort to replace the meter which had at that moment been disconnected. Instead of plaintiff's wife permitting this to be done, she refused this request on three occasions on this same day. The wife's testimony is clear - she refused to allow the meter to be replaced, and that her husband had instructed her over the telephone not to let the employee re-connect the meter. When the meter was first disconnected, the defendant's employee appears to have made immediate effort to re-connect it, but plaintiff's wife said that this could not be done until she telephoned her husband - that she returned in fifteen minutes and told the employee that her husband had stated that the meter should not be put back, and that he then went off with the meter, and came back in the afternoon at two o'clock, again requesting that he be permitted to restore the meter, and she again refusing.

from this evidence it is clear that, though the defendant company made error in its office concerning the cut-out order, that plaintiff need not have been deprived of the gas service at any time, had he and his wife permitted the immediate re-connection of the meter. The refusal to allow this resulted in the deprivation of the gas service to petitioner from the Saturday afternoon of May 17th, to some time during the day of May 19th, 1919. While the loss of the service to petitioner doubtlessly caused him and his household some inconvenience, it is clear from the record, that the inconveniences suffered viere due wholly to the fault of petitioner in instructing his wife not to permit the meter to be restored. There is nothing in the record to shov that petitioner seriously suffered any embarrassment, and while his wife might have been, and in fact appears to have been, somewhat chagrined and annoyed by the attempted removal of the met'er, there is no provision of the law which will permit petitioner to recover in this action on behalf of his wife. She is not a plaintiff in the suit, and petitioner's rights, if any, must be confined to tbo relief as prayed for in the petition. R. C. 0. Art. 2334, as amended by Act. 186 of 1920.

We find that no unlawful trespass was made, but that, on the contrary, every effort on the part of defendant's employee to prevent inconvenience to petitioner or his wife, vías offered, and that the trespass and deprivation of gas service complained of in plaintiff's petition, cannot be recognized as ground for damages, for, if any were suffered, plaintiff alone was at fault in failing, to permit the immediate restoration of the meter. The authorities are too numerous, and the doctrine is too well established to require citation to support it, that damages, if suffered, should not be increased by a complainant, but every effort on the part of the party suffering said damage to reduce or minimize the same, or to prevent the same before it has occurred, should be made. The claim for attorneys' fees as the basis of damage in this case can, of course, not be recovered. There is nothing in this record to justify the charges made by petitioner that defendant acted maliciously, or that its employees were insulting or discourteous, nor that plaintiff was subjected to any embarrassing situations presented to his neighbors or friends, due to any fault of the defendant's.

April 24, 1922

For these reasons we are of the opinion that even the nominal damages allowed by the Rower Court should be denied. It is therefore, ordered, adjudged and decreed, that the judgment of the Trial Court be, and the same hereby is, reversed, and that there now be judgment in favor of defendant, dismissing plaintiff's petition at his costs in both courts.

JRDSMEIfT REVERSED.


author: Dinkelspiel; J.

text:
    NO. 8228
    Court of Appeal Parish of Orleans.
    ALLEN H. JOHNESS et al versus FREDERICK P. MILLER.

   Dinkelspiel; J.

The petition, of plaintiff represents:

"The petition of Allen H. Johness ana A. H. Ahten, both of lawful age and residents of the Parish of Jefferson, and of 0. A. Beuohler, Distriot Attorney, for the 38th Judicial Distriot, for the Parish of Jefferson, with respeot shows:

That the defendant herein, Frederick P. Miller, is a resident and domiciled in the Parish of Jefferson and is the owner of certain property looated in the Parish of Jefferson, described as lots Nos. 18, 19 and 30, of Square No. 10, of Friedaichsru Subdivision, said proper-being located at the corner of Orleans Street or Protection Levee and Avenue E.

That there is constructed on said above described property, a oertaln building, within which games of ohanoe, oommonly known as roulette, "bircL-oage" and faro are played for money and where bets and wagers are made on such games in the said building, and that the same is oonduoted and is operated for the direot or indlreot profit of said defendant and not exclusively to the dlreo-e profit of the actual participant in suoh games.

That the operation and oonduot of said gambling establishment in which the aforesaid games are played is a publio nuisanoe under the provisions of Aot No. 193 of the General Assembly for the year 1930, oommonly known as the Higgins Aot, and that the owner of said property should be deolared guilty of maintaining a public nuisanoe.

That petitioners herein desire to avail themselves of the rights aooorded to them under the provisions of the aforesaid aot of the General Assembly, and to have the said nuisance created by said gambling house abated and to have the said building dosed for one year for any purpose whatsoever during that period.

That petitioners desire that an injunction issue herein without bond under the provisions of said act, pending the final determination and judgment of this oourt.

And finally petitioners pray that the annexed affidavits being considered that a temporary injunotion issue herein without bond restraining and enjoining the said defendant, Frederick P. Hiller, from using the above property where said nuisanoo is averred to exist, for any purpose or purposes whatsoever; that the said defendant be duly oited to appear and answer this petition and that this oourt fix a day and dsimpcat date upon which this matter shall be heard by preference and priority over all other esses and that after due proceedings had, this oourt deoree the said defendant guilty of maintaining a publio nuisance and that the operating and conducting of said gambling house be deolared a publio milsanee and the said injunotion be maintained and perpetuated and that the said place be closed for a period of one year and not to be used for any purpose whatsoever during that period. And for oosts and general and equitable relief.

This petition is signed by plaintiffs and is sworn to by Johnese and Ahten.

Annexed, we find this order, issued by the Judge on this petition:

Order.

let as prayed for a rule to show oanse why the nuisance complained of should not be abated and why an in-junotion should not issue herein as prayed for, said rule returnable Haroh 18th, 1921 at eleven otolook A. 1Í. Granted, Parish of Jefferson, this 12th day of March 1921.

(Signed) Prentioe E. Edrington. Judge.

To this petition there appeared the defendant, Frederiok P. Miller, who exoepted to the rule herein taken by plaintiff on various grounds:

1st. That this oouxt is without jurisdiction.

2nd. That th@ rula of plaintiff discloses no cause or right of action.

3rd. That respondent should not be compelled to answer these proceedings for the reason that Aot 192 of the Acts of the General Assembly of the State of Louisiana for the year 1920 is unconstitutional, null and void, and all proceedings brought thereunder are illegal, in that said Aot of 1930 oontravenes and violates Articles 31, 32 and 177 of the Ooxctitiax Constitution of the State of Louisiana.

And the prayer is that the rule be dismissed at plaintiff s oost and for general relief.

The exceptions were sworn to and were filed.

Subsequently plaintiffs in a supplemental petition filed Maroh 31st, 1931, allege in addition to the matters and things alleged in the original petition, that they are taxpayers of the State of Louisiana and are entitled to an injunction forever prohibiting the defendant from oonduoting and from being conoerned in the oonduoting or operating of a publio nuisanoe, like that described in the original petition filed herein, anywhere within the State of Louisiana.

They pray that the supplemental petition be filed and allowed and that they have suoh other orders and deorees as may be neoessary for Hw full and general relief.

sworn The supplemental petition is/ to by Messrs. Johness and Ahten and the order issued the same day, htWfctag permitting the filing of the supplemental petition.

We have thus quoted in full, in order for a proper-understanding and decision in this oase, the pleadings, and from the foregoing, it appears that when the original petition was filed in this cause, the plaintiffs had not alleged among other things that thsy were taxpayers and under Seotion 3 of Aot 193 of 1930, only taxpayers are given the privilege of resorting to summary proceedings therein provided fox.

Defendant protested against the filing on the day of trial, of any supplemental petition, w'aioh would supply a cause of action, when had none had previously existed, but the Judge aq.ua permitted the supplemental petition to be filed.

The Aot, Seotion 1, defines a gambling house, decrees it to be a public nuisanoe, provides who may sue to abate this nuisanoe and in what Court same shall be brought.

It goes on further and decrees against whom suoh suits must be brogght and “when the name of the lessee, tenant or other occupants of any place defined as a gambling house by Seotion 1 of this Act is not known, the action to abate the nuisanoe created,shall be brought against the person or persons in whose name suoh property stands at the time said action is filed, upon the assessment books of the Parish wherein such plaoe is situated and such person hereafter referred to as the owner.

And said Section further provides that when the owner is so made the defendant, he may implead the lessee, or tenant aothally responsible for the maintenance of suoh has nuisanoe and on proof that suoh owner/ not profited, the owner against whom the suit is brought may be dismissed; in other words, that it is only when the person creating the nuisanoe is unknown to the plaintiffs, have they a right to proceed against the owner upon the assessment rolls of the property upon which it is olaimed a nuisanoe was being created and it is further provided that when the tenants and lessees are unknown to the plaintiffs, the owner, under suoh conditions, has a right to Implead the tenants or lessees.

The petition doubtless prooeeds against the owner beoause it sets forth that he, the defetldant, is the person against whoa the property in question should he condemned and closed and further that gambling was being conducted in said property but naming no person who conduots the establishment.

The alleging that gambling is conducted in the establishment, operated for the direct or indirect profit in suoh games, does not oomply with the provisions of the Aot quoted.

The Aot itself provides for summary proceedings by injunction or in abatement of property, imprisonment in the Parish Jail; suoh se&±e aots are ever strictly construed.

We are therefore of the opinion that the supplemental petition, on which this actions rests could not and should not have been fried at the date of its filing; that they did not under give the particulars required/’ the Aot in the original pe-tltion, on which the order to show cause was issued.

The authorities are few in number, out those we have found bearing on this subject, covers, in our our opinion, the points decided.

In order to obtain an injunction agsdnsi or abatement of a nuisance against the owner of the property, the complaining party must show a olear and strong cause supporting his right to such relief, and so where injunction to oomplainant would result Irrespective of the existanOe of the alleged nuisance, the Court will notb decree its abatement.

Rosser vs. Randolph, 31 Am. Dec. 312.

Langdon vs. Chicago R. R. Co. 48 Iowa 437.

Where the neme of the lessee, tenant or other occupant of any place defined as a gambling house, by Sec. 1 of this Aot, is not known, the aotion to abate the nuisanoe created, Bhall be brought against the person or persons in whose name suoh property stands at the time suoh action is filed; and, in order to maintain an aotion against the person in whose name the property stands, it is neoessary that tile plaintiff make a prima facie showing that the lessee, tenant or other oooupant of the place defined as a gambling house, is unknown to the plaintiff, in order that the owner has a right to implead the tenants or lessees.

Seo. 4, Jot. 193 of 1930.

decided The Judge Qqu¿, not haring /aooakcfc&sadc the constitutionality of the Acts in question, under numerous decisions of the Supreme Court and this Court we oannot deoide that qjse stion.

For the reasons assigned, it is therefore ordered, adjudged and decreed, that the judgment of the Court aqua he and the same is hereby affirmed, with oosts of both Courts against plaintiff.

-Judgment affirmed-


author: CHARLES F. CLAIBORNE, JUDGE.

text:
    Charles F. Claiborne, Judge.
    BERNARD JOSEPH, Appellant vs ORLEANS ICE MFG. CO.
    No. 8232
    April 24th, 1922.

   BERNARD JOSBEH, Appellant vs ORLEANS ICE MFG. CO.

No. 8232

CHARLES F. CLAIBORNE, JUDGE.

This is a damage suit resulting from a collision of automobiles.

Plaintiff was driving up Royal Street; defendant's truck was being driven on Hospital Street in the direction of the woods; when both reached the comer of Royal and Hospital Street, their caricollided. The left front part of plaintiff's machine was injured; defendant's truck was not damaged. As is usual in such cases, both put the blame upon the other. It is our duty to decide who was to blame. We have repeatedly decided similar cases. In Boston Insurance Co. vs Moody No. 7891 we said;

"A chauffeur who disregards the provisions of the traffic ordinance and thereby brings on a collision and damage upon the automobile he drives is guilty of negligence which debars the owner of the damaged automobile from recovering damages".

In Frey Wholesale Grocery Co. vs Cocino No. 8191, we repeated;

"When two automobiles collide, the damage must be paid by the party who has been guilty of a violation of the traffic ordinance unless it is shown that the other party by proper care could have avoided the damage".

In Fabacher vs Blum No. 8116, we said;

"The driver of a vehicle upon the wrong side of a street assumes the risks of a collision with another vehicle unless he can show that the party inflicting the injury could have avoided doing so by reasonable care".

Affirmed in Wilson vs Crescent Co. No. 8250.

In Schick vs Jenevein, 145 La. 334, the Supreme Court said;

"'Shore one is upon the wrong side of the traveled portion of a road, or has not conceded to the other party whom he has attempted to pass that portion of the highway to which he is entitled, and a collision occurs, the burden is upon him who so violates the rule to show that his act was not the proximate cause of the injury, or that there were justifiable circumstances which excuse his conduct. The law of the road requiring that a driver shall turn to the right when meeting another upon the public highway is not an inflexible one, but must be followed unless circumstances and common prudence dictate a different course. The plea of contributory negligence in an action for damages arising out of a collision of vehicles on a highway is a special defense in which the defendant carries the burden of establishing it by a preponderance of the evidence".

Traffic Ordinance Mo. 5181° 0 reads as follows:

"Ri-dit of Wav. Vehicles traveling on the following streets have the right of way over vehicles approaching on intersecting streets, namely,' St. Charlo^ íitfeet x x x and also all other streets with street car tr,i’:¿*.

Royal Street has a track in the centre unon wnich street cars run uptown.

"Vehiclos approaching above streets and avenues from intersecting streets shall, before crossing or turning into same, come to a full stop".
"On all other streets and at intersections of above streets and avenues, all vehicles shall have right of way over vehicles approaching on. intersecting streets from the left, and shall gire right of way to those approaching from the right".

In the case before us, by tí» substituting the concrete rule to the abstract proposition, we reach the conclusion that the automobile had the right of way over the truck approaching it from the left, and that the track should have given the right of way to the automobile approaching it from the right.

Tie therefore find that the automobile had a double right of way: first, because it was running on a street car track, and second, because it was on the right of the track. In the first case the track should have come to a full stop, and in the second case, it should have slowed up or stopped, to allow the automobile to pass.

In defendant's answer he alleges /

“that when the track reached the comer of Hospital and Boyal Streets, demandant slov/ed up, and seeing that the road was clear, started slowly across the street; x x x that when its track reached the comer of Royal and Hospital Streets, the driver of same blew the horn, x x That the automobile belonging to the plaintiff was approaching Hospital Street at a rate of speed in violation of the ordinances of the City of Hew Orleans, and that when he reached the corner he did not attempt to have his automobile under control".

There was judgment for defendant and plaintiff has appealed.

Of plaintiff's witnesses, tlrs. Dufour says that while standing on her gallery, on Hospital Street,

"very near the next oomer^she saw the truck coming and saw when the track struck the automobile, and it was 50 or 60 feet Before the track stopped; that the track did not stop before, nor did it blow its horn ,

Anthony Manteleone was standing on the uptown wood side banquet comer of Royal and Hospital Streets; he saw the truck coming out Hospital Street,

"so fast that after it hit Mr. Joseph's car, it didn't stop until it got to the middle of the block; it neither stopped nor slowed up before going across Royal Street, nor did he hear any horn; the automobile slowed up and blew the horn when it reached Hospital Street.®

The plaintiff swears that the chauffeur on the truck did not blow his horn - after the collision the truck continued to the middle of the block.

Banks was driving the truck for defendant on the day of the accident. He started from the corner of Chartres and Hospital and proceeded out Hospital. He says:

"When I got in the middle of the block, I stopped and was talking to a fellow upstairs. Then after I finished talking to him, what I had to tell him, I went on, and when 1 gets to Royal Street, I commenced blowffiig; and the fellow I was talking with says to me: Don't make so much noise, because he had company. I told him that was and when I gets to Royal Street nothing and I kept on"Bl'dffl.Hg hiy Hurfi,/Lhtf'boytiiErtr svas standing on the right fender, he didn't see nothing, and I didn't see nothing, and I kept on blowing, and didn't get no answer, and I started on across the track, and when I gets across the track, a fellow hit me on the back wheel there".
Q. "What did you do when you got to that corner? Did you keep right on going or did you stop a while?
A. "I stopped".

He stopped the truck at a di stance of 10 or 15 feet. The boy riding on the front fender was named Raymond Coleman; he does that all the time; he works there; he is an ice boy; he looked down Royal Street and did not see plaintiff's car; he went across the street at a rate of 5 or 6 miles an hour; he has no chauffeur’s license; he was not the driverfor the truck; he was hired as a handy man; he does not know how many speeds there are tfe a truck; he was not working on the truck; he was riding to where he had to go to work; he drove that truck once before that day; he never drove any other truck; once he drove the truck for a week.

Raymond Coleman works for the defendant for the last five years; he was on the truck on the day of the accident; when the driver of the truck got near Hoyal and Hospital Streets,

"he stopped and blowed";

the hind wheel of the truck was hit by the automobile; he did not see the automobile on Royal Street; he did not look; he was seated on the right side of the fender; the truck stopped within 20 feet; that was the first time he stopped; he did not stop before that time; he stopped when the collision took place; he stopned about five feet.

Q. Before the accident happened, now, did you stop when you were coming out from Chartres Street towards Royal Street?
A. Yes, sir.
Q. Where did you stop first?
A. Stopped in the middle of the block.
Q. When you got near Royal Street, did the truck do anything?
A. Yes,- sir, he took and blowed.
Q. What else did he do?
A. He come across.

It will then be seen that the driver, Banks, is the onlf witness who swears that he stopped on reaching Royal Street, end that, only in answer to a driect leading question. He is doubly interested, in protecting himself and in screening the defendant. A-'ainst liis testimony, we have the declarations of two disinterest^' cd witnesses, strangers to the plaintiff, viz; lira. Dufour and and Anthony l.ionteleone. We are hound under every rule of law to believe them. Carter vs N. O. Ry. & Lt. Co. No. 8536 All the circumstances surrounding the accident support them.

Dut even if defendant'd truck did stop, it was the duty of the chauffeur to have looked down on Royal Street; if he had looked, he would have seen the plaintiff who could hav6 been only a few feet from him; plaintiff was on the right of the truck, and under the ordiance, had the right of way; it was for the track to avoid the automobile. The burden was upon defendant to show that his negligence was not the proximate cause of the accident, and in that we think he has failed.

The plaintiff has testified that he paid $150 for repairs; ho is not entitled to more.

It is therefore ordered that uhe judgment herein be reversed and avoided, and that there now be judgment in favor of plaintiff Bernard Joseph and against the defendant the Orleans Ice Manufacturing Company for One Hundred and Fifty Dollars with five per cent per annum interest from September 13th, 1920 till paid and costs in both Courts.

Judgnent reversed; judgnent for plaintiff for $100 and interest.

April 24th, 1922.


author: BY: WILLIAM A. BEIL, JUDGE: Charles F. Claiborne, Judge.

text:
    PURITAN CO. LTD. versus MARGARET ARDILL

    NO. 8,235

      COURT OF APPPEAL PARISH OF ORLEANS
    '..’Xiil.u: A. XII, JUROR:
    June 5th, 1922.

   BY: WILLIAM A. BEIL, JUDGE:

She judgment in this ease, from which defendant, Miss Margaret Ardill has appealed, perpetuates the injunction herein issued and recognizes the plaintiff, puritan land Company, limited, to be in possession, by perfect ownership, of the following described property:

"lots 9 and 10 of square 1209, situated in the l'hird District of this City, bounded by Frenchmen, II. Rocheblave, formerly Virtue, Elysian Fields, -and Borth Tonti, formerly Force Streets., lot llo, 9 forms the corner of Frenchmen and Virtue Streets, and measures 60 feet front on Frenchmen Street, by 120 feet in depth; lot Bo. 10 measures 60 feet front on Frenchmen St., by 120 feet in depth, and adjoins lot Ho, -9, all of said measurements being French measure."

She judgment further decrees that plaintiff's demand for damages as well as defendant's reoonventional demand 'or 'damages against plaintiff and his surety on the injunction bond, be all rejected and dismissed at defendant's costs.

These proceedings arise from an extended controversy between the aforesaid j,arties as to ownership in the above described property, and has culminated in plaintiff's application for a writ of injunction against defendant to enjoin her and others from exercising any rights of ownership or possession over said property, and from entering' or trespassing thereon. There Is further prayer for damages ajad for recognition and maintenance of plaintiff in perfect ownership of said property.

Miss Margaret Ardill is the only one of three parties made defendants herein, who appears, or answers plaintiff's demand. She pleads the general denial and further answering, avers that persons other than plaintiff have unlawfully trespassed upon her property for the purpose of taking-possession thereof¡denies that she has interfered with the ownership or possession of the property described in plaintiff's petition, but that in fact, both plaintiff and its vendor, the Quaker Realty Company, have interfered with her ownership and possession in property owned by her and which she describes as follows:

"Sots 1, 2, 3, 4, measuring 128 feet front on Frenchmen Street, by 128 feet in depth, more or less, and front on Roefceblave Street, or Virtue Street, in Square Fo. 1209."

Defendant's answer sets forth the various acquisitions by which she claims title to the above described property, and further avers t3:at the four lots of ground, which plaintiff bought through its various vendors from the State of Louisiana, are not the same lots that she, defendant, owns, and which she acquired from J. 1. HartInez, who, in turn, acquired from the State Auditor, on October 10, 1899.

Defendant further avers that if the lots aoquired by plaintiff are the same as the ones claimed by her, then the Auditor's deed to llartines, in 1899 divested the State of Louisiana forever of the said property, so that the State could not have sold ll.e said identical property on Hovember 10, 1902, to plaintiff's authors in title, to wit, the Aztec Land Company.

She respective acta of trespass charged by the parties to this controversy, the one against the oil.or, have been rightly disregarded by the trial court. Vhe evidence before us shows that each of the litigants have resorted to such acts, however reprehensible, as a means of developi.nr the sole issue or question in this case, to it: Diu the State of Louisiana, by tv<0 certain auditors' deeds, hereinafter referred to, dispose of the same property to two different vendees, through one of which the plaintiff, and through the other of which, tie defendant, traces title?

The complicated reoord before us shows that the State Auditor sold to 3. P. Martinez, on the 10th day of Ootober, 1899, the following described property:

"lour certain lots of ground and improvements thereon, in the Third District, Square Ro. 1209, bounded by Frenchmen, Virtue, Elysian Fields and Force streets, said lots' measuring 128 feet on Frénchmon Street, by 120 deep, adjudicated to the State for taxes 1883, assessed in name of Emma Sanchez."

It further appears, that the State Auditor sold to Aztec land Company, ltd,, on the loth day of November, 1902, the following described property:

"Certain lots of ground and improvements thereon, in the Third District of the City of New Orleans, in Square Ro, 1209, bounded by Frenchmen, Elysian Fields, Force and Virtue Streets; said lots measuring 128 feet front on Frenchmen Street, by 128 feet in depith, adjudicated to. the State for taxes 1882, assessed in the name of John Jackson."

From the above descriptions of the properties conveyed by the two aforesaid auditors' deeds, it is apparent that neither deed definitely locates the said properties, except to declare that the total'of the lots conveyed measures 128 feet on Frenchmen Street, in said square,.without designating their locality in respect to other lots, corners or streets, in Square 1209, of the Third District.lt is therefore necessary in order t-o definitely locate in Square 1209 each of the above conveyances by auditors' deeds, to ascertain, if possible, from the reoord before us, whether other recorded conveyances' subsequent 'or prior to the Auditors' Deeds clearly identify the acquisitions by either Martinez or the Aztec land Company, with the property now in litigation.

Plaintiff, through its author in title, the Quaker Realty Company, by proceedings Ro. 78075, Civil District Court, parish of Orleans, and defendant, through her author in title, J. P. Martinez, by proceedings Ro. 76020, of'the same court, obtained judgments confirmatory of their respective tax titles on the same day, to v/it, FeDruary 9th, 1906, under provisions of Act 101 of 1898,

We find that in the above proceedings, Ho. 78075, the judgment confirms title in favor of Quaker Realty Company to the following described property:

"lot Ho, 9 forming the corner of Frenchmen and Virtue Streets, measuring 60 feet front on Frenchmen Street, by 120 feet in depth, on Virtue Street; lot lío. 10, measuring 60 feet front on Frenchmen Street, by 120 feet in depth, all in French measure."

We also find in these sane confirmation proceedings, from deeds offered by the Quaker Realty Company, which deeds are re-offered in the proceeding now before us, that the auditor's deed to the Aztec land Company contains only the indefinite description which is heretofore referred to, but, this auditor's deed relates to property involved in a tax sale for the taxes of the year 1882, due by John Jacks on, whose acquisition was from Andrea Dimitry, under date of June 23, 1830, by act before Carlile pollock, Rotary Public. In this latter deed of Dimitry to Jackson, the property acquired by Jackson and sold to the state for taxes due by Jackson, is described as follows:

"Two lots of ground situated in the Hew Suburb Marigny belov? this City designated as numbers Hiñe and Ten in Islet-Humber Hinety-Six on an Original Plot made by the City Surveyor on the First. Instant deposited in my current Register by act made at the request .of the said Paul Pandely on the Eighteenth Instant the first fronting the CORHER of Francois and Vertu Street having Sixty Feet front on the former street by One Hundred and Twenty deep on the latter, the Second measuring Sixty Feet front on Francois Street by One Hundred and Twenty Feet Deep between Force and Vertu Streets."

The description just given of the above described property clearly establishes, beyond all doubt, that the property sold by the Auditor to the Astee land Company, and by them to the Quaker Realty Company, and by it to the plaintiff, iras, as far back as the year 1830, definitely located on the corner of Frenchmen and Virtue (now Rocheblave) Streets. The measurements of this property, by its frontage on Frenchmen Street, as well as its depth, between parallel lines, corresponds in every detail to the description of the property of which plaintiff claims it is owner, not only by virtue of the confirmation proceedings, but by possession through its author in title, back to the year 1830.

On the other hand, this court has not found it possible, by most careful research, to trace defendant's auditor's title, though same was subsequently confirmed in the. proceedings ilo, 76020, of the Civil District Court, for the Parish of Orleans, so as to identify it with certainty as property situated on the corner of Frenchmen and Rocheblave Streets, in Square 1209. The confirmation proceeding just •mentioned, brought in the name of John x. Martinez, does not contain in its judgment a title in favor of Martinez to any other extent than to state that the property is situated in Square 1209, and measures 128 feet front on Frenchmen Street. Such description by no means definitely places the Esrtinez property, subsequently acquired by defendant from Martinez, and his other transferee, to wit, Bruen, wife of Daiibert, The three acts of 3ale passed before William Árdill, Rotary Public, showing the acquisition just mentioned, failed to describe the property claimed by defendant herein as property located on the corner, or adjacent to the corner of Frenchmen and Rocheblave Streets. The title of the defendant, acquired directly and by mesne conveyance from Jos.,P. Martinez, described the property as being lots 1 to 4, measuring each 01' 11" 5'" front on Frenchmen Street, by a depth between equal and parallel lines of 187' 10" 5" 1, on a plan drawn by Geo. de Armas, Surveyor, dated October 8, 1906.

The plan of de Armas does not appear in the record before us, and in fact, there are no documents of evidence which in any manner locate the defendant's property as being on the corner of Frenchmen and Virtue Streets, e::cept the certificate of the Tax Collector, dated October 9, 1899, to the effect that all taxes have been paid up to October, 1899, and except another document, or application, by J. 1. Martinez, addressed to the Auditor of iublie Accounts, in Baton Rouge, for the purchase of property located on fe corner of Frenchmen and Virtue Streets, in Square 1809, sold for unpaid state taxes of 18^2.

The evidence shews that defendant offered various deeds to be produced and filed, but which, in fact, appear not to have been filed in this proceeding. Of course, their absence precludes us from the opportunity of identifying by original deeds, if such identification vero possible, tho property alleged to have been bought by llartinoz, v.-ith that property now located on the corner of Frenchmen and Virtue (or Rooheblave) streets.

”fe leave the record in this proceeding, after most careful and painstaking research, with tho definite conclusion that the plaintiff's title is certain and unequivocal, and can be traced from plaintiff's possession through an uninterrupted chain of title bad: to the year 1830. Plaintiff's title, dated October 16, 1918, and that of John Jache '•a, dated June 23, 1830, clearly locates the property under discussion, at the corner of Francois and Vortu, (or Rooheblave) aireóte. It is true, as the record shows, that the tax title convoying property assessed and sold for taxes in the name of John Jackson, to the State of Louisiana, under date of March a, 1886, si eve that certain lots of ground in the Third District, in ¿cuure 1209, bounded by Frenchmen, Blysian Fields, Foroe and Virtue Streets, measures 128 feet front on Frenchmen Street, by 128 feet in depth, and that this is the sole description of the property acquired, and oontains nothing in the description which would definitely locate the Jaokson property as being on the comer of Frenchmen and Virtue Streets.

It is also true that this same indefinite description is found in the act of deposit of the sale of property by Aztec land Company, ltd., to Quaker Realty Company, ltd., dated March 6th, 1905, and deposited with John S. Bust , Rotary public. Because of these facts of imperfect, or indefinite location, defendant argues that plaintiff could not, through confirmation proceedings, have these conventional sales corrected or altered so as to make definite what was indefinite, in the conveyances themselves. It is argued that as the state did not aoquire in the tax sale of property assessed in the name of John Jaokson, anything else than "128 feet front on Frenchmen Street, by 128 feet in depth" that she could not sell more than what she bought, nor sell it by a different description. However imperfect or indefinite the description complained of may have been, it is none the less a fact, made certain by record evidence, that the property acquired by the State through tax sales against the property of John Jaokson, was the identical property which John Jaokson acquired bn June 23rd, 1830, from Andrea Dimitry, who definitely conveyed the two lots known as 9 and 10, situated on the corner of Francois and Vertu streets, as shown in the copy of deed passed before Oarlile pollock, Rotary Public.

Of course, it cannot be disputed that the State could not have conveyed, in 1902, to the Azteo land Company, the same property previously conveyed by it, in 1899, to J. P. Martinez, plaintiff's author in title. The evidence does not show that such error in conveyance has ever occurred in regard ■to the property in dispute, and the burden of proof to support such facts is entirely upon defendant, who has only alleged same in her answer as an alternative averment, and who has wholly failed in substantiating such contention by competent or admissible evidence.

Great reliance has been placed by defendant upon an exhibit offered by her and admitted at the trial of this cause, consisting of the state tax certificate dated October 12th, 1917, by which it is shown that the property bounded by "Frenchmen, Elysian Fields, Tonti and Rocheblave Streets, Ro. 128 by 120 Frenchmen, corner of Rocheblave, and consisting of four lots in Square 1209" has no outstanding taxes due tnereon, and that all has been listed in the name of Emma Sanchez and J. p. Martinez, from 1885 to 1917. She said certificate bears the further inscription as follows: "Sold to J.p, Martinez, Act 80/1886, and 126/96, October 11/99, deed 1615."

Ihere is also offered and admitted in evidence the assessment roll of the Parish of Orleans, for the year 1882, in which it appears that four lots of ground in Square 1209, Frenchmen, Elysian Fields, Force and Virtue Streets, measuring 128 by 120 was assessed in the name of Emma Sanchez, while that in the name of John Jackson, appearing on the same roll, is described as simply being located on Frenchmen Street and measuring 128 by 128.

It is argued that these two documents just cited conclusively prove that the property of Emma Sanchez, sold for taxes of 1883, was located on the corner of Frenchmen and Virtue Streets, and subsequently conveyed to Miss Ardill, could not have been sold for taxes in 1902, she having paid all taxes due thereon.

The evidenoe, as we appreciate it from the record before us, does not bear out defendant's contention, nor can it avail her as a means of challenging the validity of plaintiff's title, whioh has, in our opinion, been completely established by the evidénoe in this case.

The evidenoe introduoed by both parties to this proceeding, whereby eaoh ha3 attempted to prove aots of lawful and ostensible possession of the property in dispute, is not by any naans oonolusive or satisfactory. In faot, we are inclined,- from the reoord before us, to the opinion that one or the other of these litigants should have long sinos resorted to the remedies aooorded them under Adt 08 of 1908, and for these reasons, we believe that disallowance by the Court, a gua, of any damages, for alleged trespass, is right and proper.

We are therefore satisfied, from the evidenoe in this case, that the State of Louisiana, by the two auditors' deeds heretofore referred to, did not dispose of the 3ame property to two different vendees. The property passed by auditor's deed to the Azteo Land Company, and not that sold by auditor's deed to J.r, Martinez, is the property now belonging to the plaintiff in this oase.

JUDCUSHT AFFIRMED

AT DSFEtTRAHT'S COST IH BOTE COURTS

June Eth, 1922,

No. 8235,

Court of Appeal for the Parish of Orleans.

PURITAN CO., LTD. vs. MARGARET AEDILL et-al.

On Application for Rehearing.

Charles F. Claiborne, Judge.

Neither Auditor's deeds locates the "lots” sold to Martinez or to the Aztec Land Co. But the deed to Martinez oonVeyed the lots assessed to "Emus, Sanchez", while the deed to the Aztec Land Co, transferred the lots assessed to "John Jackson".

Jackson acquired from.Dimitry in 1830 two lots, the first fronting the comer of Franpais (Frenchmen) and Virtue Street, hawing 60 feet front on the former Btieet, by 120 feet deep on the latter; the second measuring 60 feet front on Francais Street by 120 feet deep, between Force and Virtue .

This description clearly locates the lots purchased by the plaintiff on the comer of Frenchmen and Virtue. Although the Auditor's deed to the plaintiff's author did not locate the property at any definite or particular part of the square, the correct location may be established with certainty by testimony or by deeds. In Re Martinez, 117 La., 719; Weber's Heirs vs. Martinez, 125 La., 663; 131 La., 681; 11 Ct. App., 80; 21 A., 578; 35 A., 453; 37 A., 304.

Nothing in defendant's* title, or that of her authors, locates her lots at the comer of Frenchnen and Virtue or elsewhere than on Frenchmen Street.

Neither the application of Martinez to the Auditor to purchase the Sanchez lots, nor the certificate of the tas collector as to the payment of tases on same can add to defendant's title, or locate the lots actually purchased. The former cannot make evidence for himself, nor can the latter certify to anything escept as to liiat is upon his books. It is true that the assessment rolls of 1882 locate the Emna Sanchez lots at the comer of Frenchmen and Virtue, and John Jackson somewhere on Frenchmen Street. Bat it was not in h~ A the power of the Assessor to confer or destroy titles by the order in which he chose to assess owners of property. By buying the property assessed to "John Jackson" the State acquired the lots which Jackson owned, and not those which Emma Sanchez claimed.

August 15th., 1922,

It is true that the Notary who prepared plaintiff's title locates the lots at the corner of Frenchmen and Elysian Fields Streets; but this is only a gross patent olerical mistake, as the two streets are parallel and can never meet to form a comer.

Although the Auditor's deed to defendant was mislaid a copy of its registration in the Conveyance Office, or other records, might have been produced. But the defendant did not buy on the assessment roll of 1882 but upon that of 1883, which, perhaps, were different.

Defendant's able and exhaustive brief has not convinced us that the judgment of the lower court and our own were erroneous.

Rehearing refused,