text:
    TENNECO OIL COMPANY, Plaintiff-Appellee, v. Fred L. HOUSTON et al., Defendants-Appellees, Ellis Harp, Jr. et al., Defendants-Appellants.
    No. 13662.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 30, 1978.
    Rehearing Denied Dec. 13, 1978.

      Nesib Nader, Shreveport, for defendants-appellants Ellis Harp, Jr., et al.
    Colvin, Hunter, Brown, Plummer & Means by Robert E. Plummer, Mansfield, for defendants-appellees Fred L. Houston, et al.
    Naff, Kennedy, Goodman, Stephens, Donovan & Parnell by Harry S. Stephens, Shreveport, for plaintiff-appellee Tenneco Oil Co.
    David A. Rothell, Mansfield, Curator Ad Hoc for defendant-appellee.
    Claude R. Sledge, Mansfield, Curator Ad Hoc for defendants-appellees.
    W. T. Pegues, Mansfield, Curator Ad Hoc for defendants-appellees.
    Herman L. Lawson, Mansfield, Curator Ad Hoc for defendants-appellees.
    Beverly Kinchen, in pro. per.
    Before PRICE, MARVIN and JONES, JJ.
   PRICE, Judge.

This is an appeal from a concursus proceeding initiated by Tenneco Oil Company to determine the parties entitled to mineral royalties on a 40.2 acre tract described as the Southwest Quarter of the Southeast Quarter (SW Vi of SE Vi) Section Fourteen (14), Township Fifteen (15) North, Range Thirteen (13) West, DeSoto Parish, Louisiana. This appeal is concerned only with the conflicting claims of a group of defendants referred to as the Harp group and Fred L. and Eleanor H. Houston, who are in corporeal possession of the property. Ellis Harp, Jr., Anether Harp Hall, Dorether Harp, and Jimmy Ray Harp contend they are entitled to proportionately share in an undivided Vi interest in the property acquired by their mother, Lula Mae Green Harp, upon the death of her mother, Everlyn Green Oliver, the putative spouse of Will Oliver, who is the common ancestor in title to all defendants. The Harp group of defendants have appealed the trial court judgment declaring Fred and Eleanor Houston entitled to the payment of the royalties in dispute.

The issues on appeal are: (1) what is the applicable burden of proof under La.C.C.P. Art. 3654, and (2) whether the Harp group has met their burden of proof in order to be entitled to the accrued royalties.

Under La.C.C.P. Art. 3654, when the issue of ownership of immovable property or a real right is presented in a concursus proceeding, the court shall render judgment in favor of the party:

(1) Who would be entitled to possession of the immovable property or real right in a possessory action, unless the adverse party makes out his title thereto; or
(2) Who proves better title to the immovable property or real right, when neither party would be entitled to the possession of the immovable property or real right in a possessory action.

The allocation of the burden of proof under La.C.C.P. Art. 3654 is couched in terms of possession. If the court finds a party would be entitled to possession in a possessory action, then the adverse party has the burden of making out his title thereto. To complete this burden the party must prove an unbroken chain of record title or prescriptive title which are sometimes referred to as “a title ‘good [as] against the world’.” La.C.C.P. Art. 3654(1), Pure Oil Company v. Skinner, 294 So.2d 797 (La.1974). If neither party is shown to have the requisite possession, the court shall render judgment in favor of the party who proves better title. La.C.C.P. Art. 3654(2).

The record is clear and appellants have admitted in brief that the Houstons have been in corporeal possession of the 40.2 acre tract since 1971. However, appellants contend that the Houstons do not have the undisturbed possession required for a possessory action because the registry and recordation of various instruments affecting the property within one year of the filing of this proceeding have interrupted their possession. It is well settled that a disturbance in law does not interrupt a corporeal possession or a civil possession that has been preceded by corporeal possession. Chauvin v. Kirchhoff, 194 So.2d 805 (La.App. 1st Cir. 1967); see also the concurring opinion of Justice Tate in Ree Corporation v. Shaffer, 261 La. 502, 260 So.2d 307, 314 (1972); and A. Yiannopoulos Property in Louisiana Civil Law Treatise § 138 (Supp.1978). Since the recordation of these instruments does not interrupt the undisputed corporeal possession of the Houstons as a matter of law, we find the Houstons “entitled to the possession of the immovable property or real right in a possessory action.” Therefore, the applicable burden of proof is upon the Harps to make out a valid record title “as against the world.” La.C. C.P. Art. 3654(1), Pure Oil Company v. Skinner, supra.

Appellants alternatively contend even if the applicable burden be valid record title under Article 3654(1), they have met this burden under the “common author” doctrine. Since the burden of proof enunciated in Articles 3653 and 3654 are identical, they contend that the “common author” doctrine is also applicable to Article 3654. Under the “common author” doctrine the proof of title back to a common ancestor shifts the burden to the adverse party to prove his title. Therefore, appellants contend that their proof of title to a common ancestor (i. e. Will Oliver) shifts the burden to the Houstons to prove their title. Appellants cite Clayton v. Langston, 311 So.2d 74 (La.App. 3rd Cir. 1975) wherein our colleagues on that court apparently concluded that “common author” title is “title good against the world” thereby satisfying Articles 3653(1), 3654(1), and Pure Oil Company v. Skinner, supra. We respectfully disagree with that decision. We hold that proof of a more ancient title derived from a common author in title is not proof of ownership, that is, title good against the world, but merely proof of better title. See A. Yiannopoulos Property in Louisiana Civil Law Treatise § 137 (Supp.1978); Yianno-poulos, The Work of the Louisiana Appellate Courts for the 1976-1977 Term — Property, 38 La.L.Rev. 332, 342 (1978); and Ma-raist, The Work of the Louisiana Appellate Courts for the 1974r-1975 Term — Civil Procedure, 36 La.L.Rev. 556, 572-573 (1976). We find this interpretation to be more consistent with the Louisiana Supreme Court’s treatment of La.C.C.P. Arts. 3653 and 3654 in Pure Oil. Since we hold that “common author” title is simply proof of better title, the Harp group has not satisfied the applicable burden under Article 3654(1), i. e. to make out their title thereto. This burden is only satisfied when they prove their ownership either by an unbroken series of valid transfers back to the sovereign or by acquisitive prescription of ten or thirty years. La.C.C.P. Arts. 3653(1), 3654(1), Pure Oil Company v. Skinner, supra. They have presented no evidence of a record title preceding the deed from The Frierson Company, Inc. to Will Oliver dated January 10, 1951. Since they have not met this burden, the court properly awarded the accrued royalties to Fred and Eleanor Houston. The judgment is affirmed. Costs of this appeal are taxed to appellant.

      . The instruments referred to are precautionary mineral leases or transfers of ownership interests to Tenneco from various claimants.

      . A disturbance in law is the execution, recor-dation, registry, or continuing existence of record of any instrument which asserts or implies a right of ownership or to the possession of immovable property or of a real right, or any claim or pretension of ownership or right to the possession thereof except in an action or proceeding, adversely to the possessor of such property or right. La.C.C.P. Art. 3659.

      . A similar result was reached in Voisin v. Luke, 341 So.2d 6 (La.App. 1st Cir. 1976), wherein the court used the “common author” rule and held that a plaintiff in a petitory action is entitled to judgment recognizing his ownership against a defendant in possession upon proof of a more ancient title derived from a common author.


source: Caselaw Access Project

author: JONES, Judge.

license: Public Domain

text:
    Dave Willis BURKES and Renda C. Burkes, Plaintiffs-Appellees, v. Minerva BARBOUR, Defendant-Appellant.
    No. 13677.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 30, 1978.

      Paul Henry Kidd, Monroe, for defendant-appellant.
    Patrick H. Wright, Jr., Monroe, for plaintiffs-appellees.
    Before HALL, MARVIN and JONES, JJ.
   JONES, Judge.

Defendant, Minerva Barbour, appeals a judgment denying her ownership of an account in the name of Dewitt Burkes (now deceased) or Minerva Barbour in Peoples Homestead & Savings Association. In the judgment appealed from plaintiffs were awarded attorney fees against the defendant because of her refusal to surrender to them the savings account book following their demand for it after having been recognized as owners of the account in the judgment of possession in the Succession of Dewitt Burkes.

We reject the plaintiffs’ claim for attorney fees and as modified, affirm the judgment.

The decedent established the optional share account in the Peoples Homestead Savings Association December 27, 1963 and was issued Stock Certificate No. 10814 in his name alone for 100 optional payment shares. This stock certificate was retained in the possession of Peoples Homestead Savings Association. Peoples Homestead delivered to decedent a savings book reflecting his ownership of the account.

On December 14, 1976, at a time when decedent had approximately $2400 on deposit in his account, he went to the Peoples Homestead office accompanied by defendant and added her name to the account. This was accomplished by his execution of an ASSIGNMENT SEPARATE FROM THE CERTIFICATE reading as follows:

“FOR VALUE RECEIVED, I Dewitt Burkes, hereby sell, assign and transfer unto Dewitt Burkes or Minerva Barbour all of my shares of the Capital Stock of the Peoples Homestead & Savings Association Standing in Dewitt Burkes name on the books of said association, represented by Certificate No. 10-10814 herewith and do irrevocably constitute and appoint the President attorney to transfer the said stock on the Books of the within named Company with full power of substitution in the premises.
Dated 12/14/76
IN PRESENCE OF
Marilyn Davidson/s
Dewitt Burkes/s
Dewitt Burkes

At the time of this transaction, defendant’s name was added to the savings account book and the records of the association were changed to reflect the defendant’s name on the account, and as such, entitled to make deposits and withdrawals. A signature card was prepared and the signature of defendant was obtained and this card was added to the records of the account. Though it was the customary practice of the Peoples Homestead to add the name of an “added or account holder” to the optional share certificate at the time the account owner made the assignment, this was not done in this instance. The defendant’s name was added to the certificate several months after the death of Dewitt Burkes. On December 14, 1976, decedent delivered to defendant the account book. Defendant never made any deposits or withdrawals from the account.

The decedent, an elderly man who was in poor health, had moved into the home of defendant following his discharge from the hospital on September 13, 1976. Decedent and defendant, prior to this time, had been good friends. Decedent lived in the home of defendant until his death on December 30, 1976.

During decedent’s stay in defendant’s home, she cleaned his clothes, prepared his food, carried him to the doctor, gave him his medicine and otherwise, generally provided for his needs. During this period of some 10 weeks, defendant received from the deceased approximately $4300 in cash.

Plaintiffs in this suit, children of the decedent, following the death of their father, were recognized as his sole heirs by an ex parte judgment of possession. Included among their father’s property in which they were sent into possession, was the Peoples Homestead & Savings Association account on which defendant’s name had been placed and which savings book representing this account was in possession of the defendant at the time of plaintiffs’ father’s death.

Following the possession judgment, plaintiffs made demand upon defendant for the savings account book but she declined to surrender it to them. Plaintiffs instituted this suit against defendant styled “Petition for Declaratory Judgment and Damages”, wherein they sought to be recognized as owners of the Peoples Homestead & Savings Association account which was in the name of their father and Minerva Barbour at the time of his death and sought possession of the account book, damages, and attorney fees from the defendant because of her refusal to voluntarily release the account book to them. The defendant answered the suit contending that she had received the account from decedent by a gratuitous inter vivos donation or in the alternative, that she was the owner of the account by virtue of a remunerative donation.

The trial court denied defendant’s claim to ownership finding it to be neither a gratuitous donation nor a remunerative donation and recognized the plaintiffs as owners of the account. Plaintiffs were awarded a judgment of $750 attorney fees because defendant failed to deliver to them the book representing the account after the rendition of the judgment of possession.

The issues are: (1) did defendant acquire ownership of the account either by a gratuitous or remunerative donation? and (2) if defendant was not the owner of the account, is she liable for attorney fees because of her refusal to surrender the account book?

The resolution of these issues require consideration of the following articles of the Civil Code:

C.C. Art. 1468 — “A donation inter vivos (between living persons) is an act by which the donor divests himself, at present and irrevocably, of the thing given, in favor of the donee who- accepts it.”
C.C. Art. 1523 — “There are three kinds of donations inter vivos: The donation purely gratuitous, or that which is made without condition and merely from liberality;
The onerous donation, or that which is burdened with charges imposed on the donee;
The remunerative donation, or that the object of which is to recompense for services rendered.”
C.C. Art. 1525 — “The remunerative donation is not a real donation, if the value of the services to be recompensed thereby being appreciated in money, should be little inferior to that of the gift.”
C.C. Art. 1526 — “In consequence, the rules peculiar to donations inter vivos do not apply to onerous and remunerative donations, except when the value of the object given exceeds by one-half that of the charges or of the services.”
C.C. Art. 1536 — “An act shall be passed before a notary public and two witnesses of every donation inter vivos of immovable property or incorporeal things, such as rents, credits, rights or actions, under the penalty of nullity.”
C.C. Art. 1538 — “A donation inter vivos, even of (corporeal) movable effects, will not be valid, unless an act be passed of the same, as is before prescribed. Such an act ought to contain a detailed estimate of the effects given.”
C.C. Art. 1539 — “The manual gift, that is, the giving of corporeal movable effects, accompanied by a real delivery, is not subject to any formality.”

The addition of defendant’s name to the account did not divest the decedent of control of the account nor constitute real delivery of the funds to the defendant and did not transfer ownership of the funds. Succession of Dykes, 258 So.2d 606 (La.App. 1st Cir. 1972); Dawson v. Capital Bank & Trust Co. of Baton Rouge, 261 So.2d 727 (La.App. 1st Cir. 1972).

This type of building and loan stocks or shares has been characterized by the supreme court as “ ‘merely a deposit of a sum of money at a fixed rate of interest, the principal and interest being all subject to withdrawal at any time.’ ” Succession of Mulqueeny, 248 La. 659, 181 So.2d 384 (La.1965). An account on deposit is an incorporeal right, C.C. Articles 460, 474, which may only be donated by a notarial act in compliance with Article 1536. Broussard v. Broussard, 340 So.2d 1309 (La.1976). While it can be said that the savings account book was a corporeal thing and therefore delivery of the book constituted a manual donation in accordance with Article 1539, the mere possession of the book by defendant did not transfer the obligation which it represented. The obligation constituted an incorporeal thing which could only be validly transferred in accordance with the provisions of Article 1536. Bordelon v. Brown, 84 So.2d 867 (La.App. 2d Cir. 1956).

The defendant contends that La.R.S. 6:744 enacted by Act 234 of 1970 entitles her to the ownership of the account. She contends that it eliminates the requirement that the donation of an incorporeal movable be made in compliance with C.C. Art. 1536. There is no provision in the cited section which reflects a legislative intent to change the law requiring inter vivos donations of incorporeal movables to be made by authentic act.

Defendant argues that the decision of Menard v. Muhs, 196 So.2d 536 (La.App. 4th Cir. 1967), is authority for holding the transaction here in question to be a valid gratuitous donation inter vivos even though it was not in the form required by C.C. Art. 1536.

In the Menard case, the owner of the optional savings account endorsed the optional share certificate which was attached to the savings account book. The endorsed certificate assigned “unto Marie L. Muhs or Michael or Eric Muhs, all my right, title and interest in all optional payment shares of the Security Building and Loan represented by Certificate No. 17332”. The account owner delivered to Marie L. Muhs the assignment and the account book. Mrs. Muhs presented the assignment and the account book to the savings and loan association which cancelled the old account and issued a new optional share account book in the names of the assignees. The day following the completion of the transaction, the initial owner of the account died. The court concluded there had been a valid manual gift within the contemplation of C.C. Art. 1539. The court found the transaction analogous to a situation where a check had been delivered by the maker to a payee who thereafter cashed it, which completed transaction has been construed to be a manual gift. Succession of Browne, 176 So.2d 217 (La.App. 2d Cir. 1965).

The Menard case differs from the one here in that Dewitt Burkes did not assign all of his interest in the account; but on the contrary retained his name on the stock certificate and the account book, which is not in accord with the definition of an inter vivos donation contained in C.C. Article 1468. Neither did the defendant act upon the assignment and have the account changed totally into her name as was done in Menard. Under these circumstances, Menard does not justify the finding of an inter vivos manual gift in the instant case.

In the decision of Broussard v. Broussard, supra, the court considered circumstances where a husband with his separate funds purchased savings account certificates of deposit in a savings and loan association in his name and the name of his wife “Dudley L. Broussard and Aljane D. Broussard”. The wife sought to be declared the owner of one-half of the certificates of deposit on the theory that the husband had donated her the interest therein by virtue of the deposit in their joint names.

The court stated:

“There was no actual delivery of the cash to Mrs. Broussard. The purchases of certificates in the name of both spouses, without an actual withdrawal and delivery of funds to Mrs. Broussard, did not effect a manual gift or donation to her. Rather, the purchases were analogous to a deposit in a joint savings account, which in and of itself, will not transfer ownership of the funds.” (page 1313)

The addition by its owner of an “or account holder” to a homestead savings account which is analogous to the purchase of a certificate of deposit jointly in the name of a person who does not own the fund will not constitute a valid donation of the account, nor can such a transaction be construed to be a manual gift.

The Broussard court made the following observations with regard to the applicability of the Uniform Stock Transfer Act, LSA-R.S. 12:621-43, to endorsements of savings and loan association stock:

“Although past decisions have held that the Uniform Stock Transfer Act is applicable to savings and loan association stock, Succession of McGuire, 151 La. 514, 92 So. 40 (1922); Menard v. Muhs, 196 So.2d 536 (La.App. 4th Cir. 1967); LeBlanc v. Volker, 198 So. 398 (La.Orl.App.1940); this conclusion now appears doubtful because of the specific provisions governing transfers of shares or savings accounts enacted by Act No. 234 of 1970. See, LSA-R.S. 6:744 (our footnote # 2) * * * Thus, even in a case where compliance with the stock transfer legislation may substitute for the codal formalities of a donation, the substantive requirements of a divestment and donative intent must be fulfilled in order to effect a valid donation. * * * The certificates were purchased in the names of both spouses and Mr. Broussard did not divest himself of the right to withdraw the funds. Under these circumstances, we cannot infer an intent to donate from a transaction which did not comply with the codal requirements for a donation.” (Pp. 1313-1314)

None of the cases where the Uniform Stock Transfer Act has been applied to recognize donations of savings and loan association stock which occurred without compliance with C.C. Article 1536, involved situations where the transferor had retained his name on the stock certificate. Broussard questions that compliance with stock transfer legislation can accomplish a donation of stock in a savings and loan association and unequivocably holds that no such transaction can take place where the transferor retains his name on the stock. The decedent made no gratuitous donation of his Peoples Homestead stock to the defendant.

WAS THERE A REMUNERATIVE DONATION?

The value of the services rendered by the defendant to decedent for the period from September 13, 1976 to December 30, 1976, or for approximately 10 weeks, could not have been worth more than the sum of approximately $4300 which she received from decedent in cash during that period. Under these circumstances, it could not be said that there could have been unremuner-ative services performed by defendant for the decedent which could have exceeded by one-half the $2400 deposit in decedent’s account in the Peoples Homestead. For this reason, the placing of defendant’s name on this account cannot be construed as a remunerative donation within the contemplation of C.C. Articles 1523 or 1525, and therefore excluded from the rules peculiar to donations inter vivos under the provisions of C.C. Article 1526. Bordelon v. Brown, supra.

Decedent made no remunerative donation of his Peoples Homestead account to the defendant.

DOES DEFENDANT OWE ATTORNEY FEES?

The general rule is that attorney fees cannot be awarded unless agreed to by contract or provided for by statute. See Lee v. Lewis, 339 So.2d 513 (La.App. 2d Cir, 1976), where attorney fees were denied the owner of a truck which was wrongfully seized without a judicial proceeding because they were neither authorized by contract nor statute. There is no authority for the attorney fee award against the defendant for her refusal to deliver the account book to the plaintiffs when they demanded it.

For reasons assigned the award of attorney fees in the amount of $750 against the defendant is REVERSED and the demand for them rejected and the judgment as modified is AFFIRMED at appellant’s cost.

      . The stock certificate provided as follows: “THIS CERTIFIES that Dewitt Burkes (or Minerva Barbour) has subscribed for and made the initial payment upon one hundred optional payment shares, and is a member of the undersigned. This certificate is issued and by the acceptance hereof, is held subject to all provisions of the Laws of the State of Louisiana, the articles of incorporation and by-laws of the undersigned, and is transferable on the books of the undersigned by the holder hereof, in person, or by duly authorized attorney, upon surrender of this certificate properly endorsed. The undersigned may treat the holder of record hereof as the owner for all purposes without being affected by any notice to the contrary until this certificate is transferred unless and until the transferee has made proper application for membership in and has been accepted as a member of the undersigned. WITNESS the seal of the undersigned and the signatures of its duly authorized officers, this 27th day of December, 1963.”

      . La.R.S. 6:744(A) — “OWNERSHIP. Shares or savings accounts may be opened and held solely and absolutely in his own right by, or in trust or other fiduciary capacity for, any person, including an adult or minor individual, male or female, single or married, partnership, association, fiduciary, corporation, or political subdivision or public or governmental unit or any person or entity authorized to own shares. Unless otherwise specified by contract, savings accounts shall be represented only by the account of each savings account holder on the books of the association, and such accounts or any interest therein shall be transferable only on the books of the association and upon proper written application by the transferee as a member upon terms approved by the board of directors; and the association may treat the holder of the record of a savings account as the owner thereof for all purposes without being affected by notice to the contrary unless the association has acknowledged in writing notice of a pledge of such savings account. (B) EVIDENCE OF OWNERSHIP. An account book may be issued to each savings account holder of record as shown by the books of the association, and such account book shall, if issued, indicate the withdrawal value of the savings account. A separate certifícate for a savings account may be issued in lieu of an account book, entitled ‘Certificate of Savings Account’. A share, certificate, or passbook may be issued to each member owning a share or shares in the association.”


author: REDMANN, Judge.

text:
    Mrs. Joyce Perez GELPI v. Richard J. BURKE, Thomas P. Eustis and Gregory E. Eustis.
    No. 9454.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 8, 1978.
    Rehearing Denied Dec. 15, 1978.

      W. Eric Lundin, III, Duke & Porterie, New Orleans, for plaintiff.
    Clarence F. Favret, Jr., Favret, Favret & Demarest, New Orleans, for defendant Richard J. Burke.
    Edmond H. Fitzmaurice, Jr., Provensal & Fitzmaurice, New Orleans, for defendants Thomas P. Eustis and Geoffrey E. Eustis.
    Before REDMANN, LEMMON and BEER, JJ.
   REDMANN, Judge.

Plaintiff Louisiana domiciliary, the as-signee of a Texas judgment for $143,795.62 owed to a Texas bank on a Texas mortgage loan, appeals from a summary judgment in Louisiana refusing further execution of the judgment.

Not at issue is the unquestionable entitlement of the Texas judgment to full faith and credit, U.S.Const. art. 4 § 1, the same in Louisiana as in Texas, 28 U.S.C. § 1738. But that a judgment is entitled to full faith and credit does not prevent it from being extinguished. Payment of a foreign judgment (either in the foreign state or elsewhere) discharges the judgment in the foreign state, and upon any later attempt to execute the judgment discussion of constitutional issues of full faith and credit would be pointless. Other means of extinguishment or satisfaction effective in the state of rendition to discharge a judgment are equally effective in all states, without taking one whit from the judgment’s entitlement to full faith and credit.

The core question in this case is whether this perfectly good Texas judgment, absolutely entitled to recognition by Louisiana, has been extinguished in Texas. Does the “purchase” of the judgment by the mother of two of the three individual judgment debtors constitute its payment (by her for them), or, if not, is the judgment discharged by her execution of the judgment by mortgage-foreclosure sale to her sons for $10,000 of the property admittedly bought for $176,000 and allegedly worth $200,000?

We set aside the summary judgment because there is dispute over the material facts concerning both the value of the property and the mother’s relationship to the sons as to her acting with or for them in “buying” the Texas judgment from the bank and in foreclosing the mortgage. (There are possibly other unanswered questions of fact, such as what was the agreement, as among themselves, express or implied, as to the “shares” of the two sons and Burke of the secondary liability on the notes. The two sons apparently supplied 100% of the corporate funds, although Burke was a 50% shareholder.)

There are allegations of the mother’s involvement with the sons and defendant Burke from before the incorporation by the sons and Burke of defendant Ben Development Co., Inc. and until recent efforts by her, acting in concert with her sons, to destroy the corporation because of some disagreement between Burke and the sons. These allegations, including that the mother purchased and foreclosed on other corporate indebtednesses, lend support to the allegation that the mother acted for or with the sons in “buying” the bank’s judgment in order to harm Burke. If the sons themselves bought that judgment (or paid it off), they might have been entitled to recover Burke’s share of their secondary liability but equity would not tolerate that they force Burke to pay his share of the land while their Texas maneuvers deprive him of all interest in it for virtually no credit against the price.

Burke argued the applicability in principle of Louisiana’s deficiency judgment statute, La.R.S. 13:4106 — 4107. That statute declares a public policy so strong that its provisions “can not ... be waived by a debtor”: a judicial sale (in Louisiana) without appraisement (because the creditor so chose, having utilized the debtor’s waiver) constitutes the debt “fully satisfied and discharged insofar as it constitutes a personal obligation of the debtor.” Because that Louisiana statute is also entitled to full faith and credit, a Texas court would presumably apply it had such a sale occurred in Louisiana and hold a Louisiana obligation discharged. But a Texas court, or any other court, would presumably not apply the Louisiana statute to the Texas sale, in the absence of a determination that Louisiana alone had an interest in determining the implications of the Texas sale vis-a-vis the rights and liabilities in personam of the Louisiana-domiciled assignee of the Texas judgment who provoked and permitted the sale and the Louisiana-domiciled judgment debtors. Unless Texas would, Louisiana constitutionally may not, on such a theory of false conflict, apply the Louisiana statute to discharge the judgment debtors’ personal liability.

There can be no question of Texas’s interest in the satisfaction of its court’s judgment in favor of a Texas bank, or the stability of Texas land titles arising out of Texas judicial sales, or probably any other question affecting the Texas bank or the Texas land. Had the Louisiana mother not bought the judgment from the Texas bank — or had the Texas bank made this foreclosure sale prior to the “assignment” of the judgment to the mother — it would be nonsense to suggest that Louisiana law should govern on a false conflict theory. But in the action before us, nothing touches either the Texas bank or the Texas land. The Texas bank has its money; the Texas land is not involved. This is a purely personal action involving only Louisiana domi-ciliaries, to decide personal rights and liabilities as among themselves.

Even so, the simple sale in execution in another state for a very low price would not discharge a judgment under the general principles of Louisiana’s deficiency judgment law, in the absence of a showing that some minimum bid procedure was available at the foreign execution but was spurned by the Louisiana judgment creditor. No minimum bid procedure appears to be available in Texas. However, Louisiana principles would include, as the greater includes the lesser, that foreclosure sale for a shockingly inadequate price, when coupled with other circumstances indicative of a taking advantage of the debtor, does not constitute a proper sale upon which to calculate the amount of a deficiency judgment (see obiter dicta in Sparkman v. McWhirter, Tex.Civ.App., 1954, 262 S.W.2d 832), and that the appropriation by the mortgagee of the property without a valid sale entitles the mortgagor to credit for the reasonable market value of the property (see obiter dicta in Maupin v. Chaney, 1942, 139 Tex. 426, 163 S.W.2d 380; Kolbo v. Blair, Tex. Civ.App., 1964, 379 S.W.2d 125).

There thus may be sufficient authority in Louisiana law (applied on the basis that there is only a false, if any, conflict of laws), and there may even be sufficient authority in Texas law, to hold the Texas judgment discharged, at least to the extent of the market value of the Texas land at the time of foreclosure (although the factual bases are disputed and thus no summary judgment could apply those legal authorities). But there is no possibility of simply applying Louisiana’s deficiency judgment statute, and the summary judgment apparently based on application of that statute must be set aside and the matter remanded for trial.

Set aside; remanded; costs to await final disposition.

      . That Texas might consider the Louisiana statute procedural and therefore apply Texas procedural statutes to the Louisiana sale is as doubtful as that Louisiana might, in the matter before us, deem the Louisiana statute procedural and therefore apply it to give the Texas sale the effect of discharging the judgment.

      . Because the bank was owed $154,000 (after deducting a $25,000 deposit), with no security except the mortgage (and out-of-state guarantors), the bank would not have let the property be sold for only $10,000. Thus the text’s supposition would require that the bank should somehow have forgotten to attend the judicial sale to protect its own interest.


author: BEER, Judge. GULOTTA, Judge,

text:
    Adam DUFRENE et al. v. DIXIE AUTO INSURANCE CO. et al.
    No. 9487.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 8, 1978.
    Rehearing Denied Dec. 15, 1978.

      Hackman & Lewis, Gordon Hackman, Boutte, for plaintiffs-appellants.
    Alexander C. Cocke, Jr., New Orleans, for defendants-appellees.
    Before SAMUEL, GULOTTA and BEER, JJ.
   BEER, Judge.

The incident which gives rise to this litigation occurred on February 14, 1972, on old Highway 90 in St. Charles Parish, Louisiana. Suit was filed in behalf of the minor, Lynell Simmons, whose injuries were alleged to have been the result of the negligent operation of a motor vehicle by appel-lee, Butts. The case was originally tried in September of 1975, but the transcription of the testimony was lost and, thus, a new trial granted, so that the matter was retried on October 12, 1977.

Following the new trial, judgment was rendered dismissing plaintiff’s suit, resulting in this appeal.

A determination on our part that the trial court has not manifestly erred in concluding that the driver, Butts, was not negligent or that his negligence, if any, was not a proximate cause of the accident resulting in injuries to Lynell Simmons effectively obviates our need to consider other aspects of this litigation. We turn our attention to that issue.

The record very positively supports certain factual conclusions:

1. Butts was driving on Highway 90 at a rate of speed between 35 and 40 mph.

2. He saw Lynell Simmons on her tricycle with two other children either following very closely behind her or, perhaps, pushing her on the tricycle when he was approximately 200 feet from them.

3. He was proceeding on one side of the road and they were proceeding on the other side of the road so that, at all times pertinent and until the split second before the accident, his automobile would have passed Lynell on her tricycle, and the two children following directly behind her, without any sort of collision.

4. Just at the moment that the Butts’ vehicle was about to pass, Lynell either swerved and pedaled across his path or was pushed and then swerved across his path.

5. Butts — thus confronted — swerved to avoid the accident, but it was too late and Lynell was struck; the Butts car, then pretty much out of control, went off the road and struck a building located in close proximity.

From these facts, we conclude that Butts, who acknowledges seeing the children 200 feet ahead, had sufficient time to reduce his speed. However, we further conclude that such reduction would not have prevented the accident from taking place since the speed of Butts’ ear was not a proximate cause of this accident. The sole proximate cause of the accident was the negligence of Lynell and/or her playmates, as previously described.

Even were we to conclude that Butts’ negligence was a proximate cause of the accident, the claim in behalf of Lynell would be barred by contributory negligence. Though apparently burdened with a learning disability which reduces her intellectual capacity to some extent, Lynell was 12 years of age at the time of the accident and, thus, legally capable of contributory negligence. We find no basis on the facts before us to apply the restrictive rationale of Baumgartner v. State Farm, 356 So.2d 400 (La.1978), which deals with a pedestrian-automobile situation. We find no basis for the Baumgartner rationale to be extended to cyclists- — whatever type or kind be their mode. To do so, would (as noted by the Chief Justice) provide that drivers of all those type vehicles are charged with a lesser duty to protect themselves than another driver who happens to be operating an automobile. Furthermore, the majority opinion in Baumgartner, adopting the “humanitarian doctrine,” specifically restricts its application to “pedestrian-motorist cases.”

Accordingly, the judgment is affirmed.

AFFIRMED.

GULOTTA, J., dissents.

GULOTTA, Judge,

dissenting.

I respectfully dissent. Butts’ failure to reduce his speed after having observed the tricycle-riding child on the highway, violated the duty imposed upon him as a prudent driver. Furthermore, applying Baumgartner v. State Farm Mutual Automobile Ins. Co., 356 So.2d 400 (La.1978), I am led to conclude that the child’s action in this case does not constitute a bar to recovery.

In this accident, two older boys, one nineteen and one older than the injured child, were pushing an inverted, makeshift tricycle on which the child was riding on the westbound traffic lane of the highway. If the child’s testimony is accepted, he was being pushed in a westerly direction in the westbound traffic lane in the direction of the automobile driver. If we accept the driver’s testimony, the child was being pushed easterly, in the same direction as the driver, but in the westbound traffic lane. According to the driver’s deposition, when he first saw the boys on the bike they were a “long way” from him. In his testimony, the driver stated that when he first saw the kids they were “a couple of hundred yards away.” At a distance of approximately thirty feet from the approaching Butts automobile, the tricycle-riding child was either pushed or came immediately into the path of the approaching car. Butts swerved to the right, off the highway, but unavoidably struck the child and careened onto the right shoulder and into the yard of an adjacent property owner, striking the property owners garage.

The trial judge, in written reasons, concluded that the injured child and the two persons pushing the child on the tricycle, were “negligent and their negligence was the proximate cause of the accident.” The trial judge went on to state that Butts was driving at a prudent rate of speed and acted as a reasonable driver when faced with a sudden emergency.

I am in agreement with the trial judge that, when confronted with a sudden emergency, Butts acted as a reasonable and prudent driver. However, as a matter of law, I disagree with the trial judge, in his conclusion that Butts was proceeding at a prudent rate of speed before the child came into the path of his automobile.

A duty is placed upon an automobile driver when observing children, either on the highway or in the immediate vicinity of the highway in a precarious position, to reduce his speed to such extent that he can bring his automobile to a controlled stop in the event of an unforseen occurrence. Kelly v. Messina, 318 So.2d 74 (La.App. 4th Cir. 1975).

When Butts observed, “a couple of hundred yards away”, the child on the tricycle, it became incumbent upon him to reduce his speed considerably from the thirty-five to forty miles per hour speed at which he was traveling. Nevertheless, admittedly, Butts did nothing to reduce that speed. I conclude, under the circumstances, that the automobile driver’s failure to do so constituted negligence which resulted in the child’s injury.

In a pedestrian-automobile accident case, the Louisiana Supreme Court in Baumgartner v. State Farm Mutual Automobile Ins. Co., supra, stated:

“The operator of a motor vehicle, a dangerous instrumentality, has the constant duty to watch out for the possible negligent acts of pedestrians and avoid injuring them. A higher standard of care than that required of pedestrians is imposed upon the motorist commensurate with the hazards his conduct inflicts upon the public safety. Therefore, he should not be able to escape responsibility for injury to the pedestrian by pleading the latter’s negligence. And since, in such case, a plaintiff’s contributory negligence will not bar his recovery, the last clear chance doctrine, used to avoid the harsh effects of the contributory negligence defense, is not at issue.”

Applying the Baumgartner decision to our case, I conclude plaintiff’s contributory negligence is not a bar to recovery.


author: BEER, Judge.

text:
    David W. PERRET, Sr. v. CITY OF WESTWEGO.
    No. 9492.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 8, 1978.
    Rehearing Denied Dec. 15, 1978.
    David W. Perret, Jr., Westwego, for plaintiff-appellant.
    Lazard Levy, Marrero, for defendant-ap-pellee.
    Before SAMUEL, GULOTTA and BEER, JJ.
   BEER, Judge.

Plaintiff-appellant, Perret, filed suit against the City of Westwego, seeking damages in the amount of $310,000 for that city’s alleged failure to establish a Housing Board of Appeals, thus obviating his ability to appeal to that non-existent agency from the granting of a building permit to an adjacent landowner. He contends that Ordinance # 643 of the City of Westwego authorized the establishment of a Housing Board of Appeals but that no appointments to the Board were made. The City of Westwego filed an exception of no cause of action which was sustained, and Perret appeals.

The basic issue is whether the City of Westwego’s ordinance establishing a Housing Board of Appeals created a private duty to individual citizens, breach of which is actionable. Appellant contends that a private cause of action and a private remedy should be available to “any person aggrieved.” Appellee contends that any duty owed by the municipality was owed to the general public and not to any particular individual.

In Dufrene v. Guarino, 343 So.2d 1097 (La.App. 4th Cir. 1977), we concluded that the city’s ordinance-imposed duty to make building inspections was to the public in general and did not create a duty to particular individuals. Accord, Sanchez v. Village of Liberty, 42 N.Y.2d 876, 397 N.Y.S.2d 782, 366 N.E.2d 870 (1977), and Duran v. City of Tucson, 20 Ariz.App. 22, 509 P.2d 1059 (1973). Also note Hoffert v. Owatonna Inn Towne Motel, Inc., 293 Minn. 220, 199 N.W.2d 158 (1972), which affirmed a trial court’s dismissal of a complaint against the city, reasoning that the issuance of a building permit for remodeling and construction in violation of the city’s building code did not create a cause of action.

Appellant relies upon Shuster v. City of New York, 5 N.Y.2d 75, 180 N.Y.S.2d 265, 154 N.E.2d 534 (1958), which we find inapplicable since the non-establishment of a Housing Board of Appeals was nothing more or less than an unfulfilled statutory directive. There was no malfeasance or omission by an employee of a pre-estab-lished municipal agency.

The judgment maintaining defendant’s exception of no cause of action is affirmed.

AFFIRMED.

      . Acknowledging that the ordinanced Housing Board of Appeals was not, in fact, established, appellee, nevertheless, argues that Perret’s available remedy of injunctive relief to inhibit the construction of the objectionable building was never sought.


author: SAMUEL, Judge.

text:
    Succession of Mrs. Sara Lazard, widow of Leo L. HIRSCH.
    No. 9517.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 8, 1978.
    Rehearing Denied Dec. 15, 1978.

      Polack, Rosenberg, Rittenberg & Endom, Leon H. Rittenberg, Jr., New Orleans, for intervenors-plaintiffs in reconvention-appel-lants.
    Reuter & Reuter, J. Richard Reuter, Jr., and Arthur C. Reuter, New Orleans, for plaintiffs-defendants in reconvention-appel-lees.
    Before SAMUEL, GULOTTA and BEER, JJ.
   SAMUEL, Judge.

This question presented by this appeal is what portions of decedent’s succession are to be inherited, respectively, by her two surviving daughters and by her two surviving grandchildren, the children of a predeceased daughter.

Decedent died on March 9, 1976, leaving a will dated January 10, 1973 and a codicil dated September 27, 1974. The pertinent portion of decedent’s will provides:

“Subject to the terms of the usufruct hereinafter set forth, I do give and bequeath the naked ownership of all the property belonging to my Estate to my three children, share and share alike. If any of my children should die without issue surviving, I do give the naked ownership of her portion to the other sisters or to their descendants; this in addition to their share hereinabove mentioned.”

The codicil only revoked the appointment of decedent’s sons-in-law as executors and named decedent’s surviving daughters as executrices. In addition, the usufruct mentioned in the quoted portion of decedent’s testament lapsed, since the usufructuary (testatrix’s husband) predeceased Mrs. Hirsch.

The facts were stipulated. Decedent had three children, Mrs. Jean Hirsch Frank, Mrs. Leola Hirsch Roos, and Mrs. Irma Hirsch, widow by first marriage of Frank Rosenthal and then wife of Myron Acker-man. Mrs. Ackerman died on January 29, 1974, subsequent to decedent’s will but pri- or to decedent’s death. Mrs. Ackerman was survived by two children, Alan and John Rosenthal.

The two surviving daughters, as testamentary executrices, filed a petition for declaratory judgment in the trial court seeking a determination of the proper distribution of the estate. Petitioners take the position they are entitled to 21/27ths of decedent’s estate and Mrs. Ackerman’s children are entitled to the remaining Vzitbs thereof rather than their mother’s %7ths. Alan and John Rosenthal, Mrs. Ackerman’s children intervened, taking the position they are entitled to their mother’s %7ths of the succession and that each of the executrices is entitled to the same proportion.

The trial court judgment declares Alan and John Rosenthal are entitled to an undivided 7/27ths of decedent’s succession and decedent’s two surviving daughters are jointly entitled to 20/27ths thereof. The Ro-senthals have appealed seeking an additional %7ths while their aunts seek an additional Vü7th.

The executrices have answered the appeal. Their position is that the legacy to their sister, Mrs. Ackerman, lapsed upon her death and became an intestate part of decedent’s succession. Given this premise, they argue the trial court should have determined decedent’s grandchildren, the sons of Mrs. Ackerman, are only entitled to inherit the forced portion due them by representation of their predeceased mother, namely % of Vs or %ths of decedent’s succession. Thus, they contend they are entitled to 21/27ths of the succession, being the entire succession minus the forced portion due the grandchildren as shown in the preceding sentence.

Article 1712 of the Louisiana Civil Code provides:

“In the interpretation of acts of last will, the intention of the testator must principally be endeavored to be ascertained, without departing, however, from the proper signification of the terms of the testament.” LSA — C.C. Art. 1712.

Louisiana law favors an equal distribution, together with a presumed intention to dispose of the entire estate by will; and unless the testator clearly expressed an intention to dispose of his property otherwise, the law is that he intended his succession to be divided equally. In the recent case of Carter v. Succession of Carter, the Louisiana Supreme Court summarized the general principles of will interpretation as follows:

“Principally, courts must endeavor to ascertain the testator’s intention. All other rules are only means to that end. The function of the court is to determine and carry out the intention of the testator if it can be ascertained from the language of the will.
‘This intention must be ascertained from the whole will, and effect must be given to every part of the will as far as the law will permit. No part of a will should be rejected, except what the law makes it necessary to reject. Where it is a question of the choice between two interpretations, one of which will effectuate, and the other will defeat, a testator’s intention, the court will carry out the intention of the testator.
‘There is also another rule which is invariably followed by the courts in interpreting a will; namely, that, if possible, the will should be read so as to lead to a testacy, not to an intestacy.’
In the absence of contrary expressions, the law presumes that when a will is executed the testator intends to dispose of his entire estate. And the cases have recognized that in the interpretation of wills, the first and natural impression conveyed to the mind or reading the will as a whole is entitled to great weight. The testator is not supposed to be propounding riddles, but rather to be conveying his ideas to the best of his ability so as to be correctly understood at first view.” (citations omitted).

In the present case the testatrix used the words “share and share alike”, thereby indicating her intention not to favor any of her daughters over the other. In the next sentence of her testament she provides the ownership of the portion of a predeceased child shall be given to the survivors if such predeceased child dies without surviving children. In that same sentence the will further states that, in the event of the death of any of the children “without issue surviving” the ownership of that deceased child’s portion is given to “the other sisters or to their descendants ” (emphasis ours). This language clearly indicates to this court that the testatrix’s intent was to give to the surviving issue of a predeceased child that portion which would have been taken by that predeceased child but for her death. The testatrix intended to give a predeceased child’s portion to the other two children only in the event the predeceased child died without descending heirs.

This situation is covered by at least two Louisiana cases. In Succession of Lacoume, a Louisiana Supreme Court case which we are required to follow, the testatrix’s will contained the following provisions:

“ ‘One-third of my estate after paying the aforesaid amounts to my sister to each of my two sons who are now living, to-wit: C. M. W. Lacoume, a [sic] better knows as W. J. Lacoume, and Lucien A. Lacoume.
‘One-third of my estate after paying the bequest to my sister to the children of my deceased son, Charles Lacoume, Jr., to-wit: Louis Lacoume and Hortense Lacoume, wife of Henry Arnold. . .

The testatrix in Lacoume provided for the division of her estate among her children and grandchildren in the proportion of Vs to each of her living sons and Vs to the children of her deceased son. From this bequest, the court concluded the testatrix contemplated division of her estate in roots, and nothing in the will showed an intention by the testatrix to prefer any of her children or to give them an extra portion. Consequently, the court refused to declare the bequest to the testatrix’s grandchildren to be a conjoint legacy, and divided the Vs of the estate between the testatrix’s surviving granddaughter and the children of her predeceased grandson.

A similar result was reached by this court in Succession of Higgins. In Higgins, we held the testatrix’s succession should be divided between a son and the children of a predeceased son when the decedent bequeathed her entire estate to her two sons, “share and share alike”, and one of them predeceased her. This court concluded the wording of the testament required division of the succession into roots, and nothing in the will declared a contrary intent.

The reasoning of these two cases applies in the case now before us. The paramount issue is the testatrix’s intent in making the will, and we conclude she intended to divide her estate by roots so that the Vs portion which would have been taken by her predeceased daughter is taken by the sons of that daughter.

For the reasons assigned, it is ordered that there be judgment in favor of Alan Rosenthal and John Rosenthal and against Mrs. Jean Hirsch Frank and Mrs. Leola Hirsch Roos declaring Mrs. Jean Hirsch Frank and Mrs. Leola Hirsch Roos the owners and entitled to possession of an undivided Vs each of the decedent’s succession and declaring Alan Rosenthal and John Rosen-thal the owners and entitled to possession of an undivided Vs of the decedent’s succession. As thus amended, and in all other respects, the judgment appealed from is affirmed. The succession is to pay all costs of this appeal.

AMENDED AND AFFIRMED.

      . Civil Code Article 1697.

      . See Succession of Williams, 132 La. 865, 61 So. 852.

      . La., 332 So.2d 439, at pages 441-442.

      . 205 La. 511, 17 So.2d 726.

      . La.App., 275 So.2d 447.


author: STOULIG, Judge. SCHOTT, Judge,

text:
    Walter BECNEL v. ST. JOHN THE BAPTIST PARISH POLICE JURY and its Administrative Subdivision, St. John the Baptist Parish Public Utilities.
    No. 9528.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 8, 1978.
    Rehearing Denied Dec. 15, 1978.

      Rudman & Howard, D. Douglas Howard, Jr., New Orleans, for plaintiff-appellee.
    Carville & Edrington, Richard L. Edring-ton, LaPlace, for defendant-appellant.
    Before LEMMON, STOULIG and SCHOTT, JJ.
   STOULIG, Judge.

Plaintiff, Walter Becnel, was awarded $18,650 for a fire loss he alleged was caused by the negligence of the St. John the Baptist Parish Public Utilities (Utilities) in removing a fire hydrant that had been located within 500 yards of his property and never replacing it. Defendant has appealed.

Some time before August 22, 1974, the date of the fire, Utilities moved a hydrant that was 578 feet downriver on the River Road and approximately 1,328 feet from Becnel’s store, located on West 23rd Street. The record does not establish where the nearest fire hydrant to plaintiff’s store was located after the one at issue was removed.

The testimony of Harold LeBoeuf, superintendent of Utilities, indicates the hydrants were placed at a distance of 1,000 yards apart when they were installed. It is not clear whether they were placed on private property with the Parish obtaining and recording a servitude or on public property. Requests for relocating hydrants in this area are processed casually and generally complied with, according to LeBoeuf. Utilities failed to explain whether its accommodating policy stems from the fact that it has no enforceable servitude upon which it might rely in resisting the landowner’s request or whether, as a general rule, it experiences no difficulty with informal business procedures.

In any event many facets of this case are open to speculation. The established facts are sparse. We know plaintiff’s store burned at 1a.m.; that the Reserve Volunteer Fire Department came to the scene with a fire truck with a water filled tank; that the water supply was exhausted before the fire was extinguished; and that the store burned to the ground.

We are not told how the presence of the removed hydrant would have diminished the damages. Plaintiff did not call any of the firemen to testify as to intensity of the fire; the progress in extinguishing it when the fire truck ran out of water; the length of time it would have taken to refill the truck; whether in this case the hydrant could have been utilized; how much time was lost because there was no hydrant; and whether the lost time would have made any difference.

M. J. Pedeaux, a member of the Edgard Volunteer Fire Department who admittedly had no knowledge of the type of fire truck, the amount of hose it carried, or the fire fighting procedures of the Reserve Volunteer Fire Department, testified in general about fire fighting practices, but his evidence shed little light on the relevant factual questions.

In short, plaintiff failed to prove the removal of the hydrant was a cause in fact of the fire loss. For cause "in fact to exist, there must be some causal relationship between the harm to the plaintiff and defendant’s negligent conduct. Hill v. Lundin & Associates, Inc., 260 La. 542, 256 So.2d 620 (1972). Stated another way, the alleged negligent act must have a direct relationship to the damages. In terms of proximate and remote cause the alleged omission must be a contributing proximate cause of the accident.

Our analysis in this case is through the cause-in-fact/duty-risk approach outlined in Dixie Drive It Yourself Sys. v. American Beverage Co., 242 La. 471, 137 So.2d 298 (1962), and reaffirmed in Pierre v. Allstate Insurance Company, 257 La. 471, 242 So.2d 821 (1970). Described as a more precise method of analyzing negligent conduct and the liability stemming from it, the method involves first resolving the factual question: Did the alleged omission or commission have a direct relationship to the injury? If the answer to question one is no, the plaintiff has no case.

In this appeal, we need not go past step one because the evidence fails to establish the removal of the hydrant had any causal relationship to the fire loss.

For the reasons assigned the judgment appealed from is reversed and plaintiff’s suit is dismissed at his cost.

REVERSED.

SCHOTT, J., concurs with written reasons.

SCHOTT, Judge,

concurring:

In order for plaintiff to prevail he had to show that St. John the Baptist Parish and/or its governing body breached a duty to provide a fire hydrant at a reasonable distance from his property.

The legislature has provided for the creation and enlargement of fire protection districts subject to approval by the electors in the area to be served. LSA-R.S. 40:1491 et seq. The record shows that no fire protection district was ever established to include plaintiff’s property. In the absence of the taxes which would support such a fire protection district, as provided by R.S. 40:1492, it can hardly be said that the parish was obliged to provide fire protection.

It would be absurd to hold the parish responsible for every fire which burns in a rural area where the citizens have not chosen to pay for fire protection by imposing on themselves the necessary taxes.

Since there was no duty on the part of the parish to furnish fire protection to plaintiff, the Utilities Department of the Parish is not liable for plaintiff’s loss. I concur in reversing the judgment and dismissing plaintiff’s suit.

      . Judgment was rendered in favor of the plaintiff against the “St. John the Baptist Parish [Public] Utilities”. Said judgment dismissed the suit against the St. John the Baptist Parish Police Jury on the finding that it was free of negligence. In view of the result reached we need not consider this decree.


text:
    WHITNEY NATIONAL BANK OF NEW ORLEANS v. BEN DEVELOPMENT CO., INC.
    No. 9546.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 8, 1978.
    Rehearing Denied Dec. 15, 1978.

      Favret, Favret & Demarest, Clarence F. Favret, Jr., New Orleans, for defendant-appellant.
    Edmond H. Fitzmaurice, Jr., New Orleans, for plaintiff-appellee.
    Before SAMUEL, GULOTTA and BEER, JJ.
   BEER, Judge.

Plaintiff-appellee, Whitney National Bank of New Orleans (hereafter “Whitney”), was the holder of a promissory note in the principal amount of $405,000 (secured by a collateral mortgage), executed by BEN Development Corporation (hereafter “BEN”). The note had been signed on behalf of BEN by Richard J. Burke, president, and Thomas P. Eustis, vice-president. Thomas Eustis, Geoffrey Eustis and Richard Burke individually signed the reverse side of the note, evidencing their agreement to be bound “in solido, unconditionally and as original promisors” for payment of the principal, interest, costs and attorney fees. Messrs. Eustis also pledged certain securities and a certificate of deposit.

Subsequently, a petition filed in the Civil District Court for the Parish of Orleans sought the involuntary liquidation of BEN, and the court, ex proprio motu, appointed a liquidator. Thereafter, in unrelated proceedings, BEN was adjudicated a bankrupt in the U.S. Bankruptcy Court, and a trustee was appointed. BEN defaulted on the note, and Whitney petitioned to foreclose in executory proceedings. Cited and served with demand for payment in these proceedings were Clarence Pavret, the agent for BEN, Thomas Eustis, Geoffrey Eustis and Burke. Thereafter, the property was seized, appraised and then sold at judicial sale, where Messrs. Eustis bought the property for the minimum bid based upon the appraisal made by the Civil Sheriff’s appraiser.

Whitney obtained a deficiency judgment against Burke and Messrs. Eustis as solida-ry co-obligors and, thereupon, sought recognition of their lien and privilege as pledgee of the securities and the certificate of deposit pledged by Messrs. Eustis. Deficiency judgment was rendered in favor of the Whitney, and, from this judgment, Burke perfected a devolutive appeal. Subsequently, Whitney, paid off by Messrs. Eustis, assigned all right, title and interest in the deficiency judgment to them and they were substituted as appellees in this proceeding.

Appellant Burke now alleges various errors in the trial court’s judgment, and we turn first to his contention that his individual signature should not be a basis for his in solido liability:

The trial court sustained Whitney’s objection to the introduction of parol evidence on the issue of Burke’s solidary liability but permitted him to proffer same, which, on our reading, deals with the circumstances surrounding the signing of loan transaction documents. Burke testified that he signed at the request of Thomas Eustis but was not told until the time of the transaction that his signature, in his individual capacity, would be necessary. However, Thomas Eustis testified that he, his brother Geoffrey and Burke had all previously agreed that the loan would be endorsed by all three of them. Even so, Burke steadfastly contends that the parties to the agreement obviously did not intend that he be personally liable since no assets of his were pledged with the mortgage of the corporate real estate and the various securities owned by Messrs. Eustis. Certain critical facts are not disputed: Burke’s signature appears twice on the note — -at the bottom, in his capacity as president of BEN and on the reverse thereof without any indication of capacity other than that of endorser. We find that the record discloses no special circumstance which might form the basis for an exception to the parol evidence rule. The terms of the promissory note are unambiguous. Thus, we find no error in the judgment of the trial court on the issue of defendant’s personal liability. See Imperial Trading Company v. Crescent City Restaurants, Inc., 230 So.2d 748 (La.App. 4th Cir. 1970).

Appellant next relies upon a unique interpretation of LSA-R.S. 13:4106, which requires appraisal to preserve deficiency judgment rights. He contends that Whitney’s failure to obtain a separate appraisal on behalf of the liquidator precludes their action for the deficiency. It is correct that a valid appraisal is an indispensable prerequisite to the enforcement of a deficiency judgment. See LSA — R.S. 13:4101, et seq. However, the statutory provisions do not mandate a separate appraisal on behalf of the liquidator, and we are not cited to any other acceptable authority to support this view. Thus, we conclude that the deficiency judgment against all three of the endorsers was valid and enforceable.

Nor is there merit to appellant’s contention that the assignment of the judgment to two of the co-obligors extinguishes the judgment by confusion. The facts support the trial court’s apparent conclusion that Burke and the Messrs. Eustis signed the note as endorsers and, accordingly, obligated themselves in solido. See Gulf National Bank of Lake Charles v. Computer Analysis, Inc., 278 So.2d 827 (La.App. 3rd Cir. 1973), writ not considered, 282 So.2d 142 (La.1973); Cambre v. Gerald, 246 So.2d 73 (La.App. 4th Cir. 1971). Also note: Meadow Brook National Bank v. Recile, 302 F.Supp. 62 (E.D.La.1969), and Hilgenfeld v. Hilgenfeld, 180 So.2d 236 (La.App. 2nd Cir. 1965).

Solidary debtors who pay off the judgment may, thereupon, claim contribution from the remaining solidary co-debtors for their virile share of the obligation, and La.C.C. art. 2104 goes on to provide that “if one of them be insolvent, the loss occasioned by his insolvency must be equally shared amongst all the other solvent co-debtors and him who has made the payment.” With BEN an obvious bankrupt, the obligation for the deficiency is properly borne by Messrs. Eustis and Burke. Since appellees Eustis and Eustis have fully satisfied the obligation and have, in addition, been substituted for Whitney, they are enti-tied to payment from Burke in the amount of one third of the deficiency judgment. With this in mind, we believe that judicial economy is best served by framing a judgment consistent with the order of this court dated April 28, 1978, substituting Messrs. Eustis as parties plaintiff in place of Whitney National Bank.

Accordingly, the judgment of the Civil District Court for the Parish of Orleans is recast as follows:

IT IS ORDERED, ADJUDGED AND DECREED that there be judgment herein in favor of Geoffrey E. Eustis and Thomas P. Eustis and against Richard J. Burke in the amount of $100,661.27, with legal interest thereon from the date of the rendition of the deficiency judgment in favor of Whitney National Bank.

As recast, the judgment is affirmed. Each party is to bear his own costs in these proceedings.

RECAST AND AFFIRMED.

      . The real property mortgaged to the Whitney was ultimately disclaimed by order of the Bankruptcy Court.

      . Burke then filed an exception of no cause of action in this court, contending that the judgment appealed from had been extinguished by confusion.

      . Calculated as follows: Principal amount of the note plus interest plus legal fees less the proceeds of the sheriffs sale amounts to $301,-983.83; one third of this amount is $100,661.27. See testimony of Paul Hogan, III, Vice-President of Whitney National Bank. Transcript pages 3-5.


text:
    STATE ex rel. Guy WOOTAN, Custodian of Notarial Records In Re PRAYING FOR the TESTING OF the SURETIES ON NOTARIAL BONDS.
    No. 9547.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 8, 1978.
    Rehearing Denied Dec. 15, 1978.

      Ronald P. Whittington, New Orleans, for Guy Wootan, relator-appellee.
    Thomas F. Schexnayder, Metairie, for respondent-appellant.
    Before SAMUEL, GULOTTA and BEER, JJ.
   SAMUEL, Judge.

This is an appeal from an order of the trial court declaring appellant not qualified or eligible to exercise any functions of a notary public because of disciplinary actions taken against him by the Louisiana Supreme Court.

Appellant’s license to practice law in Louisiana was suspended on January 18, 1977 by order of the Louisiana Supreme Court. Applicable here is Louisiana Revised Statute 35:14, which provides as follows:

“Any attorney at law, or person who was an attorney at law, who is disbarred or suspended from the practice of law due to charges filed by the Committee on Professional Responsibility of the Louisiana State Bar Association or who has consented to disbarment shall not be qualified or eligible nor shall he exercise any functions as a notary public in any parish of the state of Louisiana as long as he remains disbarred or suspended from the practice of law in Louisiana. Provided, however, that nothing in this Section shall apply to any action taken against an attorney at law for failure to pay annual dues.” LSA-R.S. 35:14.

In compliance with his statutory duty, the Custodian of Notarial Records for the Parish of Orleans filed a rule in Civil District Court for the Parish of Orleans to test the sureties of notaries public in Orleans Parish and to take other action as required by law. The judgment on the rule listed the names of all active notaries and the names of all persons who, since rendition of a similar judgment from the previous year, have ceased for various reasons to be a notary public for the Parish of Orleans.

The judgment complained of takes judicial notice of the numerous notaries public in Orleans Parish, setting forth the names of those who died, those who resigned, those who are on leave of absence, those who are in the Armed Forces of the United States, those who have been newly admitted to practice, and those who are not qualified or eligible to be notaries public because of disciplinary action taken against them by the Louisiana Supreme Court. Appellant’s name was listed in the latter category.

Appellant first contends the trial court erred in rendering the judgment against him without allowing him an opportunity to be heard. He points to the fact that a copy of the herein rule to show cause was not served on him as required by Code of Civil Procedure Article 2594. This contention is without merit because, in our opinion, R.S. 35:14, which we have quoted above, is self executing. Under that section an attorney who is disbarred or suspended is automatically not qualified or eligible to exercise the function of a notary public. The fact that appellant was not qualified is implicit in the judgment of the Supreme Court which suspended him and there was no need for the Custodian to take any further action in connection therewith except for the purpose of keeping his records current as the law requires. This being so, the rule itself was unnecessary and there was no need to serve a copy on appellant.

Appellant also makes two constitutional arguments, neither of which is valid. His argument that the statute involves an ex post facto law because the alleged crime resulting in his suspension took place prior to the enactment of R.S. 35:14 is of no merit since his status as a notary public was not affected by the alleged commission of any crime but instead by the suspension of his license to practice law which in turn resulted from that alleged commission. The suspension of appellant’s license occurred in 1977, subsequent to the enactment of the statute in question. Consequently, it was not retrospectively applied.

Appellant’s second constitutional argument, that he was denied equal protection of the law, likewise has no merit. The United States Supreme Court has held the Fourteenth Amendment permits the states wide discretion in enacting laws which affect some groups of citizens differently than others; the constitutional safeguard of equal protection is violated only when a classification rests on grounds wholly irrelevant to the achievement of the state’s objective; and a statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it. Notaries public in Louisiana are vested with wide authority to perform numerous functions also performed by attorneys at law. In this respect they are more like notaries in continental jurisdictions rather than those in common law jurisdictions. In any event, because the functions of a notary are so inextricably involved in the functions of an attorney, it is not unreasonable for the legislature to prevent disbarred or suspended attorneys from performing the duties of a notary public and by so doing prevent a suspended or disbarred attorney from doing indirectly what he cannot do directly. The classification thus created by the legislature in the statute complained of is totally related to the goals sought to be achieved and is constitutional.

For the reasons assigned, the judgment appealed from is affirmed.

AFFIRMED.

      . See Revised Statutes 35:325-35:328.

      . See McGowan v. State of Maryland, 366 U.S. 420, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1960), ana cases cited therein.


text:
    Jefferson V. HAYNES and Stephanie W. Haynes v. Martha Jane D. ADAMS.
    No. 9775.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 8, 1978.
    Rehearing Denied Dec. 15, 1978.
    Writ Refused Jan. 19, 1979.
    Tucker & Schonekas, Gibson Tucker, Jr., New Orleans, for defendant-appellant.
    Edward F. Wegmann and Kepper, Moulin & Kepper, Steward J. Kepper, Jr., S. Frazer Rankin, New Orleans, for plaintiffs-appel-lees.
    Before STOULIG, BOUTALL and BEER, JJ.
   BEER, Judge.

Plaintiffs-appellees purchased the property bearing municipal No. 5604 St. Charles Avenue, New Orleans, Louisiana, from Mrs. Martha S. Dezendorf by act of sale dated April 7, 1978. The act of sale stipulated that the conveyance was made free and clear of all encumbrances. At the time of the acquisition, the residence was occupied by defendant-appellant, Martha Adams, allegedly pursuant to a monthly lease from her mother (the vendor), Mrs. Dezendorf.

Plaintiffs sought to arrange a mutually agreeable date for delivery of possession of the property, but these attempts failed and plaintiffs commenced eviction proceedings in the Civil District Court for the Parish of Orleans. Accordingly, on May 3,1978, defendant was served with notice to vacate the premises, pursuant to La.C.C.P. Art. 4701. Defendant refused to vacate, and plaintiffs filed a rule to evict. In answer, defendant premised her right of occupancy on plaintiffs’ alleged agreement to honor the unrecorded lease. Alternatively, the defendant called lessor (her mother) in warranty. Following a hearing on May 30, 1978, judgment was rendered ordering defendant to vacate the premises and to deliver possession to plaintiffs within twenty-four hours of rendition of the judgment. Defendant suspensively appealed the eviction order and, in reliance upon La.C.C.P. Art. 4735, alleged that her affirmative defense entitled her to retain possession of the premises.

Appellees have answered the appeal, seeking damages and contending that the appeal is frivolous.

At the hearing on the rule, the trial judge refused to admit evidence of the unrecorded lease, but permitted defendant to proffer same as well as certain other documents and testimony. Neither the admissable evidence, nor that proffered, supports a conclusion that the trial court manifestly erred in its order. Indeed, the trial court’s ruling was correct.

Appellant bases her right of occupancy on the contention that appellees knowingly purchased the property subject to the unrecorded lease and relies upon Stanley v. Orkin Exterminating Company, Inc., 360 So.2d 225 (La.App. 1st Cir. 1978). The instant case is entirely distinguishable. Here, the evidence introduced (and proffered) was totally unsupportive of any contractual obligation on the part of the purchasers to honor the unrecorded lease. No collateral written instrument, no specific details and no witnesses were produced to prove the defendant’s bare allegations.

This matter first came before us on appellees’ motion to dismiss the appeal which was denied on June 22, 1978. We reasoned that defendant-appellant had made a semblance of an affirmative defense on the pleadings filed. However, our examination of the full transcript of these proceedings, coupled with the argument advanced in appellant counsel’s brief filed on the morning that this case was argued before us, convinces us that appellant’s so-called affirmative defense was no more than a delaying tactic. Having reached this conclusion, we consider its effect on this appeal: we follow the rationale of Parker v. Interstate Life & Accident Insurance Co., 248 La. 449, 179 So.2d 634 (1965), and conclude that this appeal, taken solely for delay, entitles appellees to such attorneys’ fees as have been required by this appeal, which we deem to be fairly set in the amount of $500.

Though appellees’ answer to the appeal seeks damages, no prayer for damages appears in any of the pleadings filed in the trial court. Thus, there is nothing before us on this issue, and that claim will have to be separately litigated in all respects.

Accordingly, the judgment of the Civil District Court for the Parish of Orleans is affirmed at appellant’s cost, and it is now further ordered, adjudged and decreed that there be judgment herein in favor of Jefferson Y. and Stephanie Haynes and against Martha Jane D. Adams in the amount of $500, plus legal interest from the date of this judgment.

AFFIRMED.