author: PONDER, Justice. ’ ROGERS, Justice. HAMITER, Justice. PONDER, Justice

text:
    212 La. 646
    HUMBLE OIL & REFINING CO. v. GUILLORY et al.
    No. 37862.
    Supreme Court of Louisiana.
    April 22, 1946.
    On Rehearing Nov. 10, 1947.
    Further Rehearing Denied Dec. 15, 1947.

      Liskow & Lewis, of Lake Charles, White, Holloman & White, of Alexandria, Wesley H. Clanton, of Eunice, and Edward Dubuisson, of Opelousas, for defendants-appellants.
    Jerome A. Broussard, of St. Martinville, S. W. Plauche, S. W. Plauche, Jr., Alvin O. King and W. W. Thompson, all of Lake Charles, and Marion J. Epley, Jr., of. New Orleans, amici curiae.
    E. Herman Guillory, of Ville Platte, for defendant-appellee.
   PONDER, Justice. ’

On account of a dispute between the landowner and various persons. claiming royalty interest in the oil', gas and 'other minerals produced from a certain tract of land, the Humble Oil and Refining Company, owner of the mineral lease under which' the production was obtained, instituted these concursus proceedings in order that it might be determined who is entitled to the royalty interests.

On January 19, 1923, Arceus Guillory sold to Augustus Hill Garland the “undivided one-fourth interest in and to all royalties stipulated for or hereafter to be stipulated for, in any oil, gas or mineral lease that may be or has been executed in favor of third persons and more particularly in that certain lease executed in favor of the Louisiana Oil and Refining Corporation or its assignors and granted by vendor on a certain tract: of land. * * * ” The land is described and it contains 52 acres. It is further stated in the act of sale: “It being well understood and agreed that the interest herein conveyed is and will remain an interest in all contracts by the vendor with third persons for the exploration and development of the said lands for oil, gas or other minerals, the purchaser not to participate with the vendor in any of the proceeds of the rental of the said land for said purposes, but only to share in the royalties in the proportions above set forth. This grant to be continuous and to run with the land into whomsoever’s hands it may fall; by assignment, bequest, devise or otherwise.”

The dispute in these concursus proceedings is between the landowner and various persons claiming a royalty interest through the Garland royalty deed. Among the various persons who had acquired a royalty interest from Garland was one C. H. Fen-stermaker, whose wife died on May 21, 1928 leaving four children, two of whom were minors. All of the claimants, except the landowner, rely on the Garland royalty deed for an interest in the royalties flowing from the Humble lease.

At the time Garland acquired the royalty interest on January 19, 1923, the land was under lease to the Louisiana Oil and Refining Corporation, which subsequently lapsed without production in pursuance to its terms. Some 17 years after Garland acquired the royalty interest, the landowner executed a mineral lease in favor of the Humble Oil and Refining Company. Two years thereafter a producing well was brought in. The producing well was brought in some 19 years after the date Garland acquired the royalty interest.

, Upon trial of the proceedings the lower court decreed the royalties, to be the property of the landowner and rejected the claims of all the parties relying on the Garland deed. The matter has been brought to u,s on appeal by the unsuccessful claimants.

The appellants contend that the sale of the one-fourth interest in the royalties by Guillory to Garland of January 19, 1923 created a servitude and that the servitude was suspended as to all the claimants who traced their title to the Garland deed on account of the minority of the Fenstermaker children. We see no merit in this contention" for the reason that a royalty deed predicated on a lease or future leases does not create a servitude.

The sale of royalties under an existing lease and future leases, is nothing more than the transfer of a proportionate share of the production, if any, that the landowner may be entitled to under the terms of the lease. It is a right predicated upon another right, the lease. Whenever the lease lapses by its terms the right to royalties thereunder necessarily passes out of the picture. Calcasieu Oil Co., Inc., v. Yount-Lee Oil Co. et al., 174 La. 547, 141 So. 55; Parten v. Webb et al., 197 La. 197, 198, 1 So.2d 76.

“* * * in-oil and gas leases, under the settled jurisprudence of this state, the payment of a royalty is the payment of rent, and is not the payment of a price for the oil or gas rights, as if they were sold.” Roberson et al. v. Pioneer Gas Co., 173 La. 313, 314, 137 So. 46, 48, 82 A.L.R. 1264.

In the case of Tyson et al. v. Spearman et al., 190 La. 871, 183 So. 201, 208 it is stated: ‘It is the established jurisprudence-of this state that the lessee in the usual oil and mineral lease merely obtains a personal right and not a real right in the property’' (Marchand v. Gulf Refining Co. of Louisiana, 187 La. 1002, 175 So. 647, 649. See, also, Sabine Lumber Company v. Broderick, 5 Cir., 88 F.2d 586; Posey v. Fargo, 187 La. 122, 174 So. 175), and his possession being for another (his lessor) does not thereby-acquire rights for himself. On the contrary, such rights as the lessee may have acquired by virtue of his possession inures to the benefit of his lessor.”

This Court pointed out in the case of Vincent et al. v. Bullock et al., 192 La. 1, 187 So. 35, that the royalty under a lease depends upon the continued existence of the-right, the lease, to which it is an appendage and it can not have a life of its own independent of the lease. We further pointed, out that a party to a contract who sells royalty under an existing lease transfers, only a part of the whole of his rent due-from the lease upon which his royalty depends.

From an examination of the Garland royalty deed it is apparent that an attempt was made to convey a perpetual, indeterminate royalty interest in all future leases. The lease in favor of the Louisiana Oil and Refining Corporation having lapsed and •passed out of the picture, the question now resolves itself as to whether the royalty •deed, in so far as it attempts to convey an undivided interest in royalties thereafter -to be stipulated in a lease that may be exe•cuted by the landowner, is valid.

Under the provisions of Article 2674, R. ■C.C., a lease must have a fixed term. In •considering a lease without a fixed term, in the case of Bristo v. Christine Oil & Gas Company, 139 La. 312, 71 So. 521, 522, the Court made the following pertinent ■statement: “Hence the only question pre•sented for decision is whether the stipulation that the grantee might prevent a forfeiture and continue the lease or option ■from year to year by paying an annual •rental of 10 cents an acre was or is enforceable. Our opinion is that that stipulation in the contract is null for want of a •fixed or definite term. Whether it be re,-garded as a lease or an option, it would be an anomalous contract without a definite term or limitation. To recognize that the •defendant has the right, without any obligation, to hold the plaintiff’s land under a perpetual lease or option, would take the ■property out of commerce, and would be violative of the doctrine of ownership, defined in the second title of the second book ■of the Civil Code.”

A royalty predicated on a lease that has no fixed term would fall in the same cate.gory for the reason that the royalty right depends upon the lease. Since a lease cannot be granted in perpetuity, a right dependent upon a lease could not be granted .■in perpetuity. We therefore conclude that •a conveyance of a perpetual, indeterminate royalty interest in all future leases is absolutely null under the principles of law •enunciated in the Bristo case.

Moreover, the transfer of an undivided ■one-fourth interest in and to all royalties hereafter to be stipulated for in any lease that may be executed by the landowner creates a potestative condition which is reprobáted by law.

“The potestative condition is that which makes the execution of the agreement depend on an eyent which it is in the power of the one or the other of the contracting parties to bring about or to hinder.” Article 2024, R.C.C.

“Every obligation is null, that has been contracted, on a potestative condition, on the part of him who binds himself.” Article 2034, R.C.C.

“The last preceding article is limited to potestative conditions, which make the obligation1 depend solely on the exercise of the obligor’s will; but if the condition be, that the obligor shall do or not do a certain act, although the doing or not doing of the act depends on the will of the obligor, yet the obligation depending on such condition, is not void.” Article 2035, R.C.C.

From the above-quoted articles of the Code a potestative condition depending solely upon the will of the obligor is null. We recognize the fact that a potestative condition imposing on the obligor the duty of fulfilling it or making a sincere effort towards its fulfillment is not the potesta-tive condition reprobated by law, but only potestative in the sense that the obligor is in a position to hinder or prevent the execution of the contract. However, the. Garland deed contains a potestative condition where the obligor does not even promise to execute future leases, let alone obligate himself to do so. The execution of future leases is left entirely to the will of the landowner and is incapable of enforcement. Many contracts involving potesta-tive conditions have been entertained by this Court, but we have been unable to find a single case where a decision was contrary to the views herein expressed. In all of the cases where a contract with a potestative condition has been upheld there has been at least a promise to do something. Under the terms of the Garland deed there is no obligation on the part of the landowner to fix any definite royalty interest in the future leases. In other words, the deed purports to convey an undivided one-fourth interest in whatever royalty interest the landowner may stipulate. It does not obligate the landowner to lease the.property. It merely states that royalty interest is conveyed in any mineral lease that the landowner may execute. The deed strictly confines the interest to leases that the landowner may execute. In fact, the landowner did not obligate himself to execute future leases and the amount of royalty interest conveyed is uncertain in that the landowner could stipulate- any royalty in any future lease that he saw fit.

We have therefore concluded that the deed is null because it attempts to transfer a perpetual royalty in future leases and for the further ground that it. contains a po-testative condition that is reprobated by law.

For the reasons assigned, the judgment of the lower court is affirmed at appellants cost.

. ROGERS, HAMITER and. ICENNON, JJ., concur in the decree.

.O’NIELL, C. J„ absent

ROGERS, Justice.

I concur in the decree affirming the judgment of the district court for these reasons: The Humble Oil Company is producing oil from a tract of land in Evangeline Parish under a mineral lease granted by Arceus Guillory, the landowner. The controversy involves a ½2 royalty interest in the oil produced between Guillory the lessor and a number of persons .claiming the royalty interest in various proportions. The facts are not disputed. On January 19, 1923, Arceus Guillory sold to Augustus H. Garland a ½2 royalty interest in the land. On August 4, 1925, Garland sold a ⅝4 royalty interest (½ of the royalty interest purchased from Guillory) to R. H. Hallowell, purporting to act for himself and as trustee for O. D. Keller, S. M. Lee and C. H. Fen-stermaker. On September 7, 1923, Garland sold a ⅜4 royalty interest (the remaining ½ of the royalty interest purchased from Guillory) to H. Mark Journee. The oil was first produced from the land and the royalty began to accrue under the lease granted to the Humble Oil Company on February 13, 1942. The assignees from ’Garland and from Journee and their heirs are parties defendant to this litigation. All these defendants base their claim to the ⅛2 royalty interest sold by Guillory to Garland on January 19, 1923, on the fact that Mrs. Mattie K. Andrews Fenstermaker, wife of C. F. Fenstermaker, one of the parties named in the deed from Garland to Hal-lowell, died on March 21, 1928, leaving four minor children who inherited her undivided half interest in and to the rights, if any, acquired by Fenstermaker from Garland.

Defendant Arceus Guillory, the owner of the land, claims ownership of the ½2 royalty interest in dispute on the ground that his sale of the royalty interest to Garland was restricted to the royalties to be paid under the existing lease in favor of the Louisiana Oil and Refining Company, and as that lease had expired by limitation any rights acquired by Garland or his assignees had likewise expired and also on the further ground that since oil was not produced on his land until February 15, 1942, under the lease to the Humble Oil Company, executed on January 13, 1938, all rights that may have been acquired by Garland and his vendees under .the deed of January 19, 1923, have become prescribed and he specially pleaded the prescriptions of ten years liberandi causa and acquirendi causa.

It is admitted by all of the royalty claimants that the question in dispute is whether the ½2. royalty interest that Garland acquired from Guillory and transferred to Hallowell and Journee is still outstanding and owned by the royalty claimants, or whether that interest has become prescribed. All of the defendants as against the defendant Guillory base their claim to the ⅜2 royalty interest involved in the litigation on the alleged fact that the minor children of Mrs. Mattie K. Andrews Fen-stermaker became owners of an interest in the royalty by virtue of- the death of their mother and as ten years prescription libe-randi causa had not run at the time of her death, the prescription was suspended as to the minors and also as to all their major co-owners.

It appears to be conceded by all of the parties claiming the ½2 royalty interest in dispute, that the question of whether prescription was suspended depends solely on whether C. H. Fenstermaker did in fact acquire an interest in the royalty under the deed executed by Garland to Hallowell, purporting to act for himself, Fenstermaker, Keller and Lee, because.if Fenstermaker did acquire an interest in the royalty, as a result of the deed executed by Garland to Hallowell, prescription was suspended as to all the royalty claimants. On the other hand, if Fenstermaker did not acquire any interest in the royalty by virtue of the deed in question, his minor children acquired none as the result of the death of their mother and hence the prescription of ten years liberandi causa was never suspended.

In passing upon this issue, the judge of the district court held that Fenstermaker never acquired title to any portion of the royalty interest in dispute and as a consequence his minor children had no interest therein and their minority never suspended the running of prescription against royalty rights acquired by Garland or his purported assignees, which rights became prescribed on January 19, 1933.

In support of his holding, the judge assigned the following reasons, in which I concur:

“The act of sale from Augustus Hill Garland to R. M. Hallowell, for self and as trustee for Fenstermaker et al., is an ex parte deed signed only by Augustus Hill Garland. There is no evidence in the record that any of the vendees named in the deed were even present when the conveyance was attempted to have been made by Garland; there is also no legal evidence in the record of any authority to R. M. Hallowell to purchase the royalty interest for the account of Keller, Lee or Fenster-maker, nor any subsequent transfer by him to his purported principals, nor that the purported vendees ever exercised any acts of ownership on the royalty interest until the filing of this suit, more than 19 years after the deed was signed by Augustus Hill Garland. * * * ”

On Rehearing

HAMITER, Justice.

As shown in the opinion rendered on the original hearing of this concursus proceeding, Arceus Guillory disputes herein the claims of various persons to royalty interests affecting a certain tract of land which he owns.

All of the claims are predicated on and. grow out of an instrument executed by Guillory on January 19, 1923, by which he sold and conveyed to Augustus Hill Garland: “The undivided ‘one fourth (1/4) interest in and to all royalties stipulated for or hereafter to be stipulated for, in any oil, gas or mineral lease that may be or has been executed by vendor in favor of third persons and more particularly in that certain lease executed in favor of the Louisiana Oil & Refining Corporation * *

The instrument further recited:

“ * * * It being well understood and agreed that the interest herein conveyed is and will remain an interest- in and (to)- all contracts by the vendor with third persons for the explorations and development of the said lands for. oil, gas or other minerals, the. purchaser not to participate with the vendor in any of the proceeds of the rental of the said land for said purposes, but only to share in the royalties in the proportions above set forth.
■ “This grant to be continuous and to run with the land into whomsoever’s' hands it may fall; by assignment, bequest, devise, or otherwise.”

Garland, on August 4, 1925, executed an act of sale conveying one-half of his acquired interest to “R. M. Hallowell, for self and as Trustee for O. D. Keller; S. M. Lee; C. H. Fenstermaker, all residents .of: the Parish of Allen, here present, purchasing and accepting for himself and them, his and their heirs and assigns, and acknowledging delivery and possession thereof * * * The consideration for the sale, according to the act, was: “the price and sum of $2,000.00, cash in hand paid, the receipt whereof is hereby acknowledged * * * None of the persons named therein as vendees signed the instrument or has since sold any portion of the interest purchased.

Later, Garland conveyed his remaining one-half interest to H. M. Journee; and thereafter the latter, through two sales, divested himself of it. His vendees, their heirs or assigns are among the claimants herein.

On May 21, 1928, death occurred to Mrs. Mattie Andrews Fenstermaker, wife of C. H. Fenstermaker (named in the act of August 4, 1925). Surviving, besides her said husband, were four minor children who were issues of their marriage.

On June 13, 1938, the Humble Oil & Refining Company acquired an oil, gas and mineral lease on the land (the previous lease in favor of Louisiana Oil & Refining Corporation having expired), and on February 13, 1942, some nineteen years after the execution of the Guillory-Garland deed, it completed under the lease an oil producing well. On the occurrence of this completion two of the Fenstermaker children were still minors.

Following the development of the dispute between Guillory and the various persons claiming royalties through his conveyance to Garland on January 19, 1923, the lessee instituted this proceeding. The district court rendered judgment, after a trial of the merits, recognizing the landowner as being the owner of the entire disputed royalty interest. All of those opposing him (their claims were rejected) appealed.

It is the position of appellants that Fen-stermaker, under the deed of August 4, 1925, acquired from Garland (who had previously purchased from Guillory) a ½58 royalty interest; that on the death of Mrs. Fenstermaker her minor children inherited her one-half community interest in the royalty; and that because of the minority of these children, and pursuant to the provisions of Civil Code, Article 802, the prescription of ten years liberandi causa was suspended not only as to the interest of such minors but also as to that of all of their coproprietors (all of those claiming through the Guillory deed) up to and including the date of the completion of the producing oil well. They urge, therefore, that the royalty conveyed by Guillory is still outstanding and it belongs to them in the proportions asserted.

In assailing the claims of appellants, the landowner through his counsel, offers numerous alternative contentions. First, he insists that G H. Fenstermaker acquired no interest under the deed executed by Garland on August 4, 1925, and hence, upon the death of -his wife on May 21, 1928, his minor children did not inherit an interest in the royalty. This deed, as before shown, recited a conveyance to Hallowell, for self and as trustee for Keller, Lee and Fenster-maker; and it was signed only by the vendor. , Under this first -alternative contention it is argued that the sale was never accepted because not one of the named; vendees affixed his signature to the instrument; further, that R. M. Hallowell, designated as trustee, had no written evidence of his authority to act for C. H. Fenster-maker and the others, and that he at no-time assigned, by valid written act, any interest to them.

There was no need for any or alii of the named vendees to formally accept the act of sale. The conveyance was &. cash transaction; and the payment of the-$2,000 purchase price, acknowledged by the vendor in the instrument, constituted a. complete acceptance. Beard et al. v. Nunn-et al., 172 La. 155, 133 So. 429.

Regarding the other argument, the-record shows that Fenstermaker personally-paid to Garland (by check) his portion of the purchase price. Also, it discloses that; a few days after the execution of the deed Hallowell gave to each of his co-purchasers-in the transaction, including Fenstermaker,. the following letter:

“Elizabeth, La.
August 17, 1925.
Mr. S. M. Lee,
Mr. C. H. Fenstermaker,
Mr. O. D. Keller,
Elizabeth, Louisiana.
Dear Sirs:
This is to advise that purchase made-from A. H. Garland of Opelousas of ⅜⅜ royalty on certain tracts of land in the Pine Prairie territory, which is deeded to me as Trustee, is held by me, and interest in said purchase is ¼ equal interest for each of you and for myself.
Yours very truly,
R. M. Hallowell;
Trustee
RMH :EKA”

In view of these facts and the circumstances hereafter mentioned we must hold that Fenstermaker, particularly in so far as Guillory was concerned, acquired a definite interest.

When Guillory, in a cash transaction, conveyed to Garland, the latter was vested with the right to sell his interest to any one he chose and in any manner' he pleased, Guillory’s control of it during the period of its existence, in other words, was completely relinquished, and he was without right to complain about a lack of evidence in proof of the Fenstermaker title. And especially is this so since neither Garland nor Hallowell has complained. In fact, each of these persons, by his pleadings in this cause, has judicially recognized Fen-stermaker’s interest. Of course, it happened that the minor children of Fenster-maker inherited the interest of their mother prior to the lapse of ten years from the date of the original deed (a circumstance that was perhaps disadvantageous to Guil-lory) ; but that was a mere legal consequence of the sale to Garland.

For us to rule otherwise, we would be compelled to overrule a conclusion reached in the comparatively recent case of Standard Oil Company of Louisiana v. Futral et al., 204 La. 215, 15 So.2d 65, 73, and which was based on a substantially identical factual situation.

In that case Futral, the landowner, had conveyed to one Van Geffen a certain mineral interest. Although the latter was the only vendee named in the act of sale (in the instant case all vendees were named), he was purchasing not only for himself hut also for six other persons concerning whom he wrote a letter and therein listed their respective portions. Among these co-purchasers were Charles R. Houssiere and Nathan Rosenberg. Within ten years after the acquisition, the wife of each of the two last-named persons died leaving minor children. Futral, with respect to the issue of whether prescription had been suspended by reason of the minority of such children, contended that Houssiere and Rosenberg never in fact acquired any interest in the sale to Van Geffen. On this point we said and held:

“Under the terms of the above quoted letter and according to the testimony of Van Geffen, it is clear that the purpose of the letter was to show that Van Geffen purchased the property, not for himself alone, but for himself and those named in the letter, in the proportions set out therein. Van Geffen in his testimony makes this perfectly clear. He says that, at the time the prop; erty was purchased, one of the Houssiere brothers was with him, and that it was understood that the purchase price of $3,500 was to be paid by draft drawn on ‘H. A. Houssiere & Bro.’, which was done. And it was then clearly understood that the interest in the minerals was acquired, not for himself alone, but for himself and the others mentioned.

“Since Van Geffen is not complaining, but concedes that the others named in the letter own the undivided interests in the minerals as set out therein, Futral has no right to complain, because he does not now deny that by his sale to Van Geffen he divested himself of title to an undivided ⅜4 of his minerals or mineral rights.”

To support the argument herein that Fenstermaker acquired no interest, counsel has cited numerous other decisions in our jurisprudence. All have been considered; but they are not applicable here, being distinguishable particularly on the facts.

Next, the landowner (Guillory) contends alternatively that his deed to Garland on January 19, 1923, conveyed only a one-fourth interest in the royalty provided for in the lease then existing in favor of the Louisiana Oil & Refining Corporation (a rent royalty), and it expired upon the lapse of the lease; and, further, that the additional stipulation in the deed, conveying an interest in royalty under any future lease or contract executed by the vendor with third persons, was and is reprobated by law in that it was potestative in nature and an attempt on the part of the contracting parties to grant a perpetual right in Garland.

On the original hearing in this court, merit was found in the contention. After further consideration, however, we have reached a contrary conclusion. The interest conveyed by Guillory to Garland was a mineral royalty (not a rent royalty) running with the land. Except in a few minor particulars hereinafter mentioned, it was the same as (although described somewhat differently from) the royalty involved in Vincent et al. v. Bullock et al., 192 La. 1, 187 So. 35, 37, the validity of which received judicial approval.

•In the Vincent case the contested interest, reserved by the plaintiffs in perpetuity when they sold the land, was described as "a one-sixteenth (¾6⅛) royalty of all the oil, gas and other minerals produced and saved from said premises * * * ”. Regarding this we said that what the- plaintiffs reserved was a full share, free of the cost of production, of ½6⅛ of -the oil, gas and other minerals if and when successful exploration is had upon the land sold by them. Further, we held that the reservation created a real obligation or a real right in favor of the plaintiffs, their heirs or assigns, which was subject to the prescription of ten years liberandi causa. The royalty interest of the plaintiffs therein, in other words, ran with the land for the duration of the prescriptive period (not in perpetuity) and was payable out of production if and when obtained either by the landowner or by a lessee.

Unlike that in the Vincent case, the interest here was sold, not reserved; and it was limited to a percentage (⅛) of the royalties that would accrue under any lease or contract executed by the landowner with a third person. But it was similar in that it was a real obligation in favor of Garland, his heirs or assigns (it ran with the land); and it authorized participation in the production obtained under any lease on the property. What Garland bought ' from Guillory was “the undivided one-fourth (¼) interest in and to all royalties stipulated for or hereafter to be stipulated for, in any oil, gas or mineral lease that may be or has been executed by vendor in favor of third persons * * * ”, such interest “to be continuous and to run with the land into whomsoever’s hands it may fall * * * ”. Thus, the interest under consideration differs from that in the Vincent case only to the extent that here it was sold, instead of reserved, and the holders thereof are limited to a participation in production obtained by a lessee. Fundamentally and basically, however, the two interests are identical.

Of course, in view of the provisions of Civil Code, Articles 2024 and 2034, it would seem reasonable and proper to conclude, as was done on the original hearing of this cause, ’ that a transfer, running with the land, of an interest in royalties hereafter to be stipulated for in any mineral lease that may be executed by the landowner (such was the conveyance made by Guillory to Garland) would constitute an obligation that is null and void because of its being contracted on a potestative condition. These articles read:

“Art. 2024. The potestative condition is that which makes the execution of the agreement depend on an event which it is in the power of the one or the other of the contracting parties to. bring about or to hinder.”
“Art. 2034. Every obligation is null, that has been contracted, on a potestative condition, on the part of him who .binds himself.”

But when consideration is also given to Civil Codei Article 2035 (assuming arguen-do that a mineral royalty contract contains a potestative condition),, it must be decided that a transfer of that kind is not repro-bated by law. It reads: “The last preceding article is limited, to potestative conditions, which make the obligation depend solely on the exercise of the obligor’s will; but if the condition be, that the obligor shall do or not do a certain act, although the doing or not doing of the act depends on the will of the obligor, yet the obligation depending on such condition, is not void.”

According to ■ this article, which relates to Article 2034, it is not every potestative condition that renders null the obligation to which it is attached. Under the first provision thereof an obligation dependent purely or wholly on the wish or pleasure of the obligor is null; under the second provision, however, an obligation that is conditioned upon the obligor’s performance or non-performance of some substantial act, his failure with respect to which would result in some material detriment or serious sacrifice to him, is not invalid.

A distinction between the two kinds of obligations was recognized by the French commentators. Respecting it, the great jurist Pothier commented:

“It is of the essence of agreements which consist in promising something that they should produce an. obligation in the party making the promise to discharge it; hence it follows, that nothing can be more contradictory to such an .obligation, than' an entire liberty in the party making the promise to perform it or not as he may please. An agreement giving such entire liberty would be absolutely void for want of obligation. If, therefore, I agree with you to give you something in case I please, such an agreement is absolutely void..
******
“Lastly,.though I promise something under a condition, which depends upon my will whether I will accomplish • it or not (condition potestative) as, if I promise to give you ten pistoles in case I go to Paris, the agreement is valid;. for it is not entirely in my power to give the money or not, since I can only refuse to do so in case I refrain from going to Paris. There is then on my part an obligation and a real engagement. L. 3. if. de legat. 2(a).” Pothier, Vol. 1, Art. IV, Section 7; Evans’ translation, Vol. 1, page 25.

In interpreting Article 1174 of the Code Napoleon, the counterpart of our ’ Civil Code, Article 2034, even though the French Code did not contain the provisions of Louisiana Civil Code, Article 2035, Planiol explained: “ * * * Conditions Purely Potestative. — Article 1174 provides that: ‘An obligation is null whenever it is contracted under a potestative condition on the part of the one who obligates himself.’ It refers to the purely potestative condition, or condition sic voluero: He who contracts under such a condition does not obligate himself, because there does not result therefrom the actual will to bind oneself. But nothing prevents the insertion in a contract of a condition which is a simple potestative condition that is to say, dependent upon the realization of a future event depending upon the will of one of the parties; for example; I will sell you my house if I decide within two years to change my domicile to another department. It is true that the happening of the event depends upon my will, but I am not sure that I shall be able to realize it, and besides in case I change my domicile within the delay foreseen I cannot prevent the contract, from producing its effect;. the condition is, therefore, not purely potestative on my part * * Planiol, Traitd Elementaire de Droit Civil, Vol. 2, Page 417, Chapitre XI, Des Contrats Faits Sous Condition.

The distinction thus shown has heretofore been recognized in the jurisprudence of this state, and by the Federal Circuit Court of Appeal of the Fifth Circuit. Anse La Butte (Le Danois) Oil & Mineral Company, Ltd. v. Babb, 122 La. 415, 47 So. 754; Cockburn v. O’Meara, 5 Cir., 141 F.2d 779; Colbert v. District Grand Lodge No. 21, Grand United Order of Odd Fellows, (First Circuit), La.App., 178 So. 694, 696. In the latter case it was appropriately observed: “The potestative condition, reprobated by the Code is that condition or event upon which an obligation depends, and which it is entirely within the will and power of the obligor to bring about or hinder, without himself suffering some material detriment or disadvantage. In other words, it is where the condition is dependent merely on the state of mind or whim of the obligor to do or-not to do. But if the condition, although dependent on the- will and power of the obligor to bring .about or hinder, involves some detriment, disadvantage, or inconvenience to the obligor if he brings about or hinders the happening of the event on which the obligation depends, then the condition does not render the obligation null.”

Let us test now, under the second provision of Civil Code, Article 2035, the transfer made by Guillory to Garland. Garland’s right to participate in future royalty was conditioned upon the performance by Guillory (or his successor in' title) of a substantial act — the execution of a lease contemplating the exploration for oil. Had a third person sought to obtain from Guillory such a lease, the granting of it, of course, depended on his will. A refusal to grant it, however, unquestionably would have resulted in a material detriment to him — his foregoing the receipt of a bonus, of rentals, and possibly of royalties from production under the lease. It follows, therefore, that the transfer herein, dependent on the discussed condition, was not a nullity.

If this were incorrect, almost every sale or reservation of a mineral royalty con-fected in this state while the property is unleased would be reprobated by our law, including the royalty reservation involved in Vincent et al. v. Bullock et al., supra. In the usual mineral royalty deed the purchaser does not receive from the landowner an obligation to drill or to grant a lease for exploration purposes. All that he acquires is a right attached to the land and the assurance that he will receive his share of the oil produced therefrom if and when successful production results.

Another contention of appellee herein is that the sale made by Garland on August 4, 1925, and all subsequent sales, concerned mineral rights, not royalty such as was originally conveyed. We find this to be without merit also. An examination of the several deeds referred to discloses that they relate to the same type and kind of interest as that transferred in the deed from Guil-lory to Garland.

Finally, counsel for appellee argues that the prescription of ten years liberandi causa (which he specially pleaded) operated, as to all of the appellants, against the royalty sold under the deed of January 19, 1923, irrespective of the minority of the Fenster-maker children; and, further, but in the alternative, that since royalty is not a servitude prescription ran against the major appellants, although it might have been suspended as to the minors.

Considering these alternative arguments in their inverse order, we agree that a mineral royalty interest (one running with the land, a real right) is not a servitude. Such was the conclusion of this court in Vincent et al. v. Bullock et al., supra. We agree also that the minority of the Fenster-maker children had no effect on the royalty claims of the other appellants. The principle of law that the minority of a person causes a suspension of prescription as to his major coproprietors, which has been recognized and applied often in our jurisprudence, springs solely from the provisions of Civil Code, Article 802. This article is found under Title IV “Of Predial Servi-tudes or Servitudes of Land”, and it relates exclusively to the extinguishment of servitudes. Since a mineral royalty is not a servitude the discussed legal principle is without application here. See St. Martin Land Company v. Pinckney et al., La.Sup., 33 So.2d 169, and Union Sulpher Company, Inc., v. Lognion et al., La.Sup., 33 So.2d 178, numbered respectively 38,163 and 38,176 on the docket of this court, the decisions in which are today being rendered.

. Respecting the issue of the running of prescription against the royalty inherited by the Fenstermaker minors themselves, a different legal situation is presented. In that part of the Civil Code which treats of the liberative prescriptions, we find Article 3554 reading: “Prescription does not run against minors and persons under interdiction, except in the cases specified by law.”

In examining the law for the purpose of ascertaining the excepted cases, we find Civil Code, Article 3541, as amended by Act No. 17 of 1922, reciting:

“The prescription mentioned in the preceding article, and those provided in paragraphs I and II of section three (3) of chapter three (3) of this title, shall run against married women, minors and interdicted persons, reserving, however, to minors and interdicted persons recourse against their tutors or curators.
“This prescription shall also rim against persons residing out of the State.”

These provisions, it will be noticed, have reference to Articles 3534 to 3537, inclusive, of the prescription of one year; to Articles 3538 and 3539, of the prescription of three years; .and to Article 3540, of the prescription of five years concerning negotiable and non-negotiable bills and notes. We find nothing in the Civil Code, or in any of our statutes, providing for the running of the liberative prescription of ten years against minors.

Since the prescription of three years, for the payment of money and for accounts due, and of five years, relating to bills and notes, are not suspended as to minors, it would seem that the ten year prescription applicable to royalty rights should also run against them. Especially is this so when the nature of mineral royalty is considered. The owner of such an interest can not go upon the land and explore for minerals; his privilege, as before shown, is restricted to a sharing in production if and when it is obtained by the landowner or a lessee. He has, in other words, only a passive interest in possible production. The fact is, however, that the lawmakers have not removed a minor’s royalty interest from the scope and purview of Civil Code, Article 3554, and we are without authority to do so.

But by reason of minority, the current of prescription is only suspended; it is not interrupted. Thus, on the inheritance by the Fenstermaker children of their mother’s interest in the mineral royalty in question (the mother died May 21, 1928), the prescription which had been running (a period of five years and some months) was suspended as to them.

Moreover, the suspension was effective as to each child only for the duration of his or her minority. And, because of this, it is necessary to consider the ages of the several children for the purpose of determining whether 'or not there was sufficient suspension to prevent, as to their respective interests (1/2048 to each), the tolling of the ten years prescription between January 19, 1923 (the date of the original deed), and February 13, 1942 (the date when the oil producing well was completed).

The names and dates of birth of the children are as follows:

Robert Fenstermaker, August 4, 1927.

Elizabeth Fenstermaker, January 25, 1922.

Charles H. Fenstermaker, Jr., June 22, 1917.

Mrs. Kathryn Fenstermaker Ahrens, September 11, 1912.

Clearly the interests of Robert and Elizabeth Fenstermaker. did not prescribe, for both were yet minors on the completion of the well. Likewise, the interest of Charles H. Fenstermaker, Jr., was not lost. As to him, the running of prescription was suspended from the date of his inheritance (May 21, 1928) to that on which he attained his majority (June 22, 1938), or for ten years, one month and one day. When this period of suspension is deducted from the time elapsing between the execution of the Guillory royalty deed and the completion of the well (19 years and 2-5 days), there remains less than the required prescriptive period of ten years. This is not so, however, with reference to the oldest child, Mrs. Kathryn Fenstermaker Ahrens. The period of suspension as to her was only five years, three months and twenty days (from the date of inheritance to that of the-attainment of her majority); hence, the prescription of ten years ran. Accordingly, the claim to a royalty interest of Mrs. Kathryn Fenstermaker Ahrens was correctly rejected by the district court, but the claims of the other children (each for a 1/2048) must and will be recognized.

For the reasons assigned the judgment of the district court 'is reversed and set aside in so far as it rejected the demands of Robert Fenstermaker, Elizabeth Fenster-maker and Charles H. Fenstermaker, Jr., and there is now judgment recognizing each of those claimants as the owner of a 1/2048 royalty interest, entitled as such to be paid proportionately out of the funds deposited in the registry of the court. As to the remainder of the royalty in dispute herein the judgment is affirmed.

All costs shall be paid out of the disputed funds; however, Arceus Guillory is granted judgment for such costs against all of the litigants who contested his rights herein, except the three named in the preceding paragraph, pursuant to the provisions of Act No. 242 of 1944.

The right to apply for a rehearing is reserved to appellee and also to the appellants.

PONDER, Justice

(concurring).

The royalty deed in this case purports to grant a one-fourth interest in the royalties under a certain lease and a one-fourth perpetual royalty interest in any royalties stipulated for or to be hereafter stipulated for in any lease that may be or has been executed. This is the first deed of this nature that lias been presented for our consideration. We had an entirely different situation in the case of Vincent v. Bullock because the deed involved therein was a royalty interest in future production and was not restricted or limited to any lease or future'leases. A royalty right under a lease depends on the continued, existence of the lease to which it is an appendage and it cannot have a life of its own independently of the lease. A lease must have a fixed term. The deed did not provide for the amount of royalty to be reserved in future leases or fix a term for the leases. Furthermore, there was no obligation on the part of the grantor to execute any future leases. Having no special laws governing the oil industry, it became necessary to resort to the articles of the Civil Code deemed most applicable. The question that gave us most concern was the grant of a perpetual royalty. I was of the opinion on the original hearing that since the royalty right was restricted to leases and dependent on them for its existence recourse should be had to the articles of the Civil Code dealing with lease to be applied to the leases upon which the royalty depends for its existence. I had serious doubt of the validity of a royalty right depending on a non-existing lease.

On the' rehearing of this case, we now have the benefit of fhe views of a number of attorneys who have made a special study of the laws governing the industry, which were presented to us in briefs as amici curiae. After a careful consideration of-the. majority opinion, I am convinced that it establishes a uniform rule. Royalty rights granted under leases and future leases are -placed in the same category in so far as prescription is concerned as royalty rights in any production, not restricted to leases, except where they are limited by the terms of a lease or special contract. I feel that the conclusions reached by the majority opinion on this rehearing simplifies the matter and will eliminate possible confusion. I did not at the time of the original hearing, and do not now, believe that the provision that the grant was to be continuous and run with the land into whomsoever hands it may fall was of particular significance for the reason that the same effect would necessarily follow by operation of law.

For the reasons assigned, I concur with the majority opinion.


source: Caselaw Access Project

author: HAWTHORNE, Justice.

license: Public Domain

text:
    212 La. 681
    FREEMAN v. MAYER.
    No. 38238.
    Supreme Court of Louisiana.
    Dec. 15, 1947.
    Maurice B, Gatlin and Harry R. Hill, both of New Orleans, for plaintiff and appellant.

      Kehl & Cuquet, Charles W. Kehl, and Fernando J. Cuquet, Jr., all of New Orleans, for defendant and appellee,
   HAWTHORNE, Justice.

Plaintiff instituted this suit to have decreed null and void his marriage to Clair Rodemann Mayer, alleging that the said Clair Rodemann Mayer was at the time of their marriage the wife of Eugene William Mayer. To this petition defendant filed.an exception of no cause or right of action. After due proceedings in the lower court, the exception was sustained, and plaintiff’s suit was dismissed at his costs. He has appealed.

The facts as disclosed by the record are these:

Defendant-appellee, Mrs. Clair Rodemann Mayer Freeman, on June 13, 1935, instituted a suit in the Civil District Court for the Parish of Orleans against her first husband, Eugene William Mayer, for an absolute divorce on the ground that they had been living separate and apart for more than four years. Citation and certified copy of her petition were served on the defendant therein in person by a deputy sheriff of Orleans Parish on June 18, 1935. On July 12, 1935, a few days before the Civil District Court began its vacation on July 15, a judgment by default was read and rendered. Thereafter, on July 22, 1935, during the vacation of the court, by the consent of the parties to that suit the district judge signed the judgment, which had been previously read and rendered in open court on July 12, 1935. In October of that year, after the vacation period, another judgment was signed in the same suit. However, after the signing of the judgment on July 22, 1935, and before the signing of the judgment in October, 1935, defendant-appellee herein entered into a marriage contract with plaintiff-appellant. These parties lived together for a period of approximately 11 years, and of this marriage, according to a statement of counsel made in argument in this court, several children were born.

Counsel for appellant in brief and in argument before this court state that the sole and only question involved in this case is whether a judgment of divorce signed during vacation by consent of the parties is valid.

According to the rules of the Civil District Court for the Parish of Orleans, as set out in counsel’s brief and not disputed, the term of that court commences on the first day of October of each calendar year and ends on the fifteenth day of July of the following year. This rule carries out the mandate of the Louisiana Constitution of 1921, Article VII, Section 43, that all district courts for the Parish of Orleans shall hold continuous sessions during nine and one-half months of the year.

Counsel for appellant state that the rules of the Civil District Court specifically provide what things may 'be done during vacation, and that the signing of judgments is not among them, and they argue that this fact, when considered with the mandate of the Constitution, renders the judgment signed on July 22, 1935, during the vacation of the court, a nullity; or, in other words, that defendant herein was not divorced from her first husband at the time she married plaintiff-appellant.

The article of the Constitution upon which counsel rely is simply a mandate requiring the Civil District Court of the Parish of Orleans to hold continuous sessions during nine and one-half months of each calendar year, and in no way prohibits that court from conducting such legal proceedings coming before it during vacation as it may deem necessary and as public interest shall demand, and does not make such actions illegal, null, and void for the reason advanced by counsel.

Although the rules of, the district court do not specifically authorize the signing during vacation of a judgment which has been read and rendered during its legal term, there is no prohibition against such an act, and hence what we have said with reference to the article of the Constitution is applicable to the court rules.

Counsel for appellee cite ample authority to support the rule that a judgment signed during vacation with the consent of the parties is valid. Rust v. Faust, Sheriff, 15 La. Ann. 477; Morrison v. Citizens’ Bank et al., 27 La.Ann. 401; Green v. Reagan, Sheriff, et al., 32 La.Ann. 974; City of New Orleans v. Gauthreaux (W. H. Merkel, Intervenor), 32 La.Ann. 1126. Counsel for appellant have cited no authority to the contrary and have not attempted to distinguish these cases from the instant case.

For the reasons assigned, the judgment appealed from is affirmed; appellant to pay all costs.

O’NIELL, C. J., absent.


author: BOND, Justice.

text:
    212 La. 685
    HEATWOLE v. STANSBURY.
    No. 38431.
    Supreme Court of Louisiana.
    Dec. 15, 1947.
    James G. Schillin, of New Orleans, for plaintiff and appellant.
    Charles A. Byrne, Jr., and Joseph A. Casey, both of New Orleans, for defendant and appellee.
   BOND, Justice.

The plaintiff, Sidney V. Heatwole, and the defendant, Eva Stansbury, commenced living together as man and wife, although not lawfully married, about seventeen years ago. On December 28, 1945, the plaintiff filed suit against the defendant claiming the ownership of one-half of a homestead savings account accumulated during their concubinage on the ground that there was a partnership existing between him and the defendant. In the alternative, the plaintiff prayed that should the court find that there was no partnership, he should be allowed to recover the amount which he contributed to the homestead savings account. The defendant denied the existence of a partnership between her and the plaintiff and that the plaintiff h.nd contributed any amount to the savings account. From a judgment dismissing the suit in the lower court, the plaintiff has appealed.

The record shows that on August 19,. 1943, account No. 4781 was established in the Pelican Homestead Association by the defendant in the name of “Mrs. Eva Heat-wole”; that on February 3, 1944, the defendant opened account No. 4913 in her name; that the defendant subsequently placed account No. 4781 in the name of “Mr. or Mrs. Sidney Healwole”; that the exact date of this transfer is not disclosed by the books of the homestead; that on September 13, 1944, the defendant transferred the balance standing in the joint name of “Mr. or Mrs. Sidney Heat-wole”, account No. 4781, to her own account, No. 4913, in said homestead; that this money remained in her account from September 13, 1944 until December 10, 1945, when she transferred all of the money from this account to account No. 5490 in the name of “Mrs. Eva Stansbury or Mrs. J. E, Stansbury, Jr.”; and that on December 28, 1945, there was a balance of $4975.00 in this account. The record further shows that during the time that this savings account was being accumulated, both parties were earning good salaries; and that from time to time the plaintiff turned over portions of his earnings to the defendant.

The plaintiff testified that there was an agreement between him and the defendant that they would pool their earnings and any savings accumulated would belong to them jointly; and further, that a statement of his earnings during the period in which the savings account was accumulated shows that he was capable of having contributed to the account.

The defendant testified that any money which the plaintiff may have given to her was used by her to pay household expenses and that all deposits made in the homestead savings account were made from her own earnings.

The partnership which the plaintiff is attempting to set up as having existed between him and the defendant is the kind referred to in our Civil Code as a universal partnership. However, the agreement which is alleged to have existed between the plaintiff and the defendant herein is a verbal one only. A universal partnership cannot be created without writing, signed by the parties and registered in the manner prescribed by law. R.C.C. Art. 2834.

Having concluded that there did not exist between the plaintiff and the defendant a universal partnership, the court, in order to give effect to plaintiff’s claim of a proprietary one-half interest in the savings account, would have to create a species of community which is repugnant to public policy. The fact that the plaintiff and the defendant lived in secret and not in open concubinage did not establish a community of acquets and gains between them which would enable the plaintiff to recover one-half of the property accumulated during the term of the concubinage. The difference between open and secret concubinage is established in the Succession of Lannes, 187 La. 17, 174 So. 94. There the capacity of one concubine to donate to the other was involved. In the instant case, a claim of ownership by one concubine against the other is the issue. The Lannes case supra, therefore, has no bearing on the instant one.

It is to be noted that concubines, although under certain disabilities, in the interest of good morals, are not prevented from asserting claims arising out of business transactions between themselves, independent of the concubinage. But the claimant must prgduce strict and conclusive proof before he can be afforded relief. Tested by this rule, the plaintiff here has failed to make out his case. The record is entirely lacking as to proof of any amount deposited in the homestead savings account by him. Therefore, we find no reason to disturb the holding of the lower court that to render any judgment on the evidence produced by the plaintiff “would be conjecture or guess work”.

For the reasons assigned, the judgment of the district court is affirmed; plaintiff to pay all costs of court.


text:
    212 La. 691
    CRESSIONE v. MILLET.
    No. 38764.
    Supreme Court of Louisiana.
    Dec. 15, 1947.
    Stanley A. Baron, of New Orleans, for defendant-appellant.
    Edward J. Stoulig, of Kenner, for plaintiff-appellee.
   HAWTHORNE, Justice.

Plaintiff-appellee filed this motion to dis: miss the appeal, urging that the order of appeal was not signed, and bond given pursuant thereto was not taken, within the time prescribed by law.

On April 24, 1947, a judgment was read and signed in the lower court awarding to plaintiff-appellee an absolute divorce from his wife and-granting unto him the perma-ent care, custody, and control of a minor child, -Joseph C. Cressione, Jr., born of his marriage with defendant-appellant.

On May 24, 1947, Mrs. Ann Alice Millet Cressione, defendant in the lower court and appellant herein, filed a motion for a suspensive appeal from that part of the judgment only which awarded the permanent care and custody of the minor child to her husband, plaintiff-appellee herein, and the district judge on June 19, 1947, entered an order granting a suspensive appeal to this court from that part of the judgment which so awarded the care and custody of the' minor child, upon defendant’s furnishing appeal bond in the' sum of $100. Pursuant to this order, Mrs. Ann Alice Millet Cressione, defendant in the lower court, filed the appeal bond on June 20, 1947.

Plaintiff-appellee contends that the appeal in this cáse should be dismissed for the reason that the order granting it and the appeal bond executed pursuant thereto were signed .and filed more than 30 days after the date of the judgment, the judgment being dated April 24, 1947, and the order of appeal being signed on June 19, 1947, and the appeal bond given on June 20, 1947, and cites in support of this contention Article 573 of the Code of Practice.

This article deals with the method of taking appeals and, among other things, provides that, where a judgment.of the lower court decrees a divorce, the petition or motion of appeal must be filed within 30 days, not including Sundays, after the signing of such judgment, instead of within 10 days, and shall operate as a suspensive appeal from the judgment, and that there shall be no devolutive appeal allowed thereafter.

Although the order granting the appeal in this case was signed and the appeal bond filed more than 30 days after the judgment was rendered, this article has no application here for the reason that this appeal was taken, not from the judgment granting unto appellee a divorce, but only from that part of the judgment awarding the permanent care and custody of the minor child to appellee.

Although the appeal in this case is designated as a suspensive appeal, under the well-settled jurisprudence of this state there is no right to a suspensive appeal from a judgment determining who shall have the care and custody of a child. Downey v. Downey, 183 La. 424, 164 So. 160; Guidry v. Guidry, 206 La. 1049, 20 So.2d 309, and authorities therein cited. The appeal in this case, however, is valid as to a devolutive appeal but not as to a suspensive appeal. See Charvanel v. Esvard, 150 La. 305, 90 So. 658; Graziani v. Elder & Walters Equipment Co., Inc., 208 La. 80, 22 So.2d 841, and authorities therein cited.

For the reasons assigned, the motion to dismiss the appeal is denied as to a devolu-tive appeal but sustained as to a suspensive appeal; all costs of these proceedings to be paid by mover, defendant-appellee.


author: PONDER, Justice.

text:
    212 La. 694
    STATE v. ESTES.
    No. 38615.
    Supreme Court of Louisiana.
    Nov. 10, 1947.
    Rehearing Denied Dec. 15, 1947.
    A. V. Hundley, of Alexandria, for relator.
    Fred S. LeBlanc, Atty. Gen., M. E. Cul-ligan, Sp. Asst. Atty. Gen., Ben F. Thompson, Dist. Atty., and Walter M. Hunter, Asst. Dist. Atty., both of Alexandria, for respondent.
   PONDER, Justice.

The accused, Luther Estes, was indicted for murder. Before the case was called for trial, the lower court appointed a commission, consisting of the coroner and two reputable physicians, to examine into the mental condition of the accused at the time of the alleged commission of the crime and at the present time. On the day fixed for a hearing to determine the accused’s mental condition, the only evidence introduced was the report of the commission, which was to the effect that it was of the opinion that the accused was insane at the time of the alleged commission of the crime and of the further opinion that, although the accused was sane at the present time, he should be required to enter a hospital for treatment of neurosis on account of the fact that he is suffering from a severe form of war neurosis and is subject to future attacks of mental aberration. The minutes of the court show that the trial judge, acting on the report of the commission, ordered the accused committed to the East Louisiana State Hospital until further orders. Counsel for the accused excepted to this order and applied for writs. The writs were granted and the matter is now submitted to us for determination.

It is provided in Article 267 of the Code of Criminal Procedure, as amended by Act 136 of 1932 and Act 261 of 1944: “If the court, after the hearing, decides that the defendant is able to understand the proceedings and to assist in-his or her de-' fense, it shall proceed with the trial. If, however, it decides that the defendant through insanity or mental deficiency is not able to understand the proceedings or to assist in his or her defense, it shall take proper steps to have the defendant committed to the proper institution.”

From the minutes of the court, we find that the' only evidence introduced at the hearing touching the accused’s mental condition was the report of the commission and that the court’s order was as follows: “Considering the report filed by the Commission, let the accused, Luther Estes, be committed, as the law provides, to the East Louisiana State Hospital at Jackson, Louisiana, there to remain until the further orders of the Court.” As we take it the trial judge did not adjudge the accused presently insane, but based his order solely on the report of the commission. The commission’s report is to the effect that the accused is presently sane. The fact that the commission was of the opinion that the accused was subject to future attacks of mental aberration would not justify his commitment to an institution or deferring the trial under the plain provisions of the law. If the defendant is able to understand the proceedings and to assist in his defense, the -trial must be proceeded with. It is only when the accused is unable because of his insanity or mental deficiency .to understand the proceedings or assist in his defense that he can be committed to an institution or the trial not proceeded with. We find nothing in the law to authorize the commitment of an accused or the deferring of trial on the grounds that an accused might become mentally incompetent at some future date. The law clearly contemplates that, if an accused is presently sane, the trial must be proceeded with.

For the reasons assigned, the writs are made peremptory and the order committing the accused to the East Louisiana State Hospital is annulled and set aside. The case is remanded to the lower court to be proceeded with according to law and consistent with the views herein expressed.


text:
    212 La. 698
    BROWN v. MATHIESON ALKALI WORKS, Inc.
    No. 38737.
    Supreme Court of Louisiana.
    Dec. 15, 1947.
    M. R. Stewart, of Lake Charles, for relator.
    Jones, Kimball & Owen; of Lake Charles, for respondent.
   BOND, Justice.

In this proceeding a writ of certiorari was granted to review the ruling of the district court .ordering the plaintiff to surrender certain evidence and appear for medical examination at a distant place. Subsequent thereto, the defendant, to expedite. the trial of the case, filed a motion in the lower court to withdraw its request for the evidence and examination, and that court thereupon revoked its order granting the motion. The defendant then filed a motion in this Court to recall the writ on the ground that the issue involved has become a moot question.

The order to which plaintiff objected having been set aside, there remains nothing before us for consideration.

For the above reason, it is ordered that the preliminary writ herein issued is recalled; defendant-respondent to pay all costs of the proceedings in this Court.


text:
    212 La. 700
    In re DIAZ.
    No. 38648.
    Supreme Court of Louisiana.
    Dec. 15, 1947.
    See also 211 La. 1015, 131 So.2d 195.
    Richard Dowling, of -New Orleans, for appellant.
    Fred S. LeBlanc, Atty. Gen., M. E. Cul-ligan, Asst. Atty. Gen., Plerve Racivitch, Dist. Atty., Geo. McCulloch and A. E. Ral-ston, Jr., Asst. Dist. Attys., all of New Orleans, for appellee.
   PONDER, Justice.

This is an appeal from a judgment of the Juvenile Court for the Parish of Orleans, decreeing Bruno Diaz, the three and one-half month old infant of Mary Cicero Diaz, to be declared a neglected child as defined by Act No. 169 of 1944 and ordering the infant to be placed in St. Vincent’s Orphan Asylum.

The mother of the infant went to a physician’s office on the afternoon of June 6, 1945, carrying the infant with her, to consult the physician in regards to her inability to sleep well. It appears that this physician attended her during her pregnancy and at the birth of the infant. While she was in the waiting room of the physician, the infant began to cry. The physician and his nurse endeavored to have the mother quiet the infant, but it continued to cry. The physician had the nurse place the mother and the infant in another room and informed the mother that the crying of the child was disturbing him and his patients. He testified that he returned to attend his patients, but the child continued to cry and he had his nurse to again investigate the matter. He stated he again went into the room where the mother and infant were, and requested her to leave the office and not slap the child so hard because its buttocks were all red. He testified that the mother of the infant was considerably upset and that he endeavored to get her to go home, but she would not leave the office. During the confusion, the manager of the office building called a police officer who carried the. mother and infant away. The police officer testified that he was called to investigate the complaint of the physician and that when he arrived on the scene the physician requested him to have the infant taken care of for the night on account of the mother’s nervous condition. He thereupon called a police woman and instructed her to make arrangements to have the infant placed in St. Vincent’s Orphan Asylum for the night. These instructions were carried out and the child was placed in the asylum. No complaint was filed against the mother of the infant. The police officer filed a preliminary petition alleging the child to be neglected in that it was without proper parental care or guardianship and that the mother cruelly beat the infant at the office of the physician.

Upon trial of the case, the physician admitted that the infant had been well cared for, that, as far as he knew, it was in perfectly normal physical condition and that it was not a neglected child. The probation officer of the juvenile court investigated the home of the mother of the infant and found it well furnished and comfortable. She stated that the infant had excellent clothing and everything a ba'by could need to make it comfortable. She furthér stated that the lady living next door to the home informed her that the infant was well and patiently cared for. She testified that the physician informed her that the infant’s mother should be examined by a psychiatrist before allowing her the custody of. the infant. The testimony of the police woman shows that the child was well cared for.

It appears that the judge of the juvenile court withheld a decision in the case and instructed the mother to furnish the court with an opinion of a psychiatrist as to her ability to properly care for the infant. The case was continued from time to time and the court finally rendered the judgment complained of. It appears that the mother of the infant called in another physician, not a. psychiatrist, to examine her and the infant. The testimony of this physician is to the effect that the mother is mentally capable, of taking care of the child and that the child is well cared for by her.

Counsel for the mother of the infant states, in his brief and in his argument, that the latter physician was called in in an endeavor to comply with the instructions of the judge of the juvenile court. He points out that the mother, on account of her financial condition, was not able to secure an opinion of a psychiatrist, but did the best she could by calling in this physician to comply with the instructions of the court.

The evidence in this case is not sufficient to find the infant a neglected child. A neglected child is one that is abandoned by its parents or is otherwise without-proper custody or guardianship. Section 4(9) (a) of Act No. 169 of 1944. The evidence conclusively shows that the child has not been abandoned by its mother and the only evidence tending to show a lack of proper guardianship is the occasion when the mother spanked the child at the physician’s office. This isolated instance, in view of the overwhelming testimony that the mother properly cared for the child, does not afford sufficient grounds to take the infant from its mother and place it in an asylum, and is not sufficient to constitute'the lack of proper guardianship. Since the overwhelming testimony shows that the mother has always properly cared for the child, except on this occasion, it is only reasonable to assume that her action resulted from agitation brought about by the repeated complaints of physician that the child was annoying him and his patients.

For the reasons assigned, the judgment of the juvenile court is reversed and set aside. The custody of the infant, Bruno Diaz, is awarded' to its mother, Mary Cicero Diaz.


author: BOND, Justice (No. 38786). BOND, Justice (No. 38787).

text:
    212 La. 705
    HINGLE v. PLAQUEMINES PARISH DEMOCRATIC EXECUTIVE COMMITTEE et al. WOOLVERTON v. SAME.
    Nos. 38786, 38787.
    Supreme Court of Louisiana.
    Nov. 17, 1947.
    Opinion Dec. 15, 1947.
    L. H. Perez, of New Orleans, for defendants-appellants.
    Sam Zelden, of New Orleans, for plaintiffs-appellees.
   BOND, Justice (No. 38786).

In compliance with the provisions of Act No. 46 of 1940 requiring a decision in cases of this character within twenty-four hours after submission, we herewith hand down our decision in this matter, the reasons for which will follow in due course.

. For the reasons to be hereafter assigned, the judgment appealed from is reversed and the suit is dismissed, at the cost of the appellee.

O’NIELL, C. J., does not take part

BOND, Justice (No. 38787).

In compliance with the provisions of Act No. 46 of 1940, requiring a decision in cases of this character within twenty-four hours after submission, we herewith hand down our decision in this matter, for the reasons which will follow in due course.

For the reasons to be hereafter assigned, the judgment appealed from is affirmed.

O’NIELL, C. J., does not take part.

Opinion.

BOND, Justice.

The plaintiffs, Louis Hingle and Adolph E. Woolverton, were disqualified by the Plaquemines Parish Democratic Executive Committee, as candidates for Assessor and for State Representative of Plaquemines Parish, respectively, to be voted for at the Democratic Primary Election on January 20, 1948.

The plaintiffs each brought suit against the defendants, the committee and the objector, praying that the committee be ordered to certify them as candidates for the respective offices". In each suit, the district court rendered a judgment ordering the defendant committee to certify the plaintiff as a candidate for the office he is seeking. The defendant objectors and the committee have appealed from both judgments.

By consent of counsel, these two suits have been consolidated.

The record shows' that on October 7, 1947, the Democratic State Central Committee, by resolution, fixed January 20, 1948, as the date for holding the Primary Election for the nomination of state officers. In this resolution it was- provided that in compliance with Section 32 of Act No. 46 or 1940, the Primary Election Law, every parish committee should levy ■ the sum of $5- upon each candidate for parish office, to be forwarded to the Secretary of the State Central Committee. On October 8, 1947, the defendant committee, of which the plaintiff Hingle was a member, passed a resolution fixing January 20, 1948, as the date for holding a primary election for' the nomination of parish and ward officers, in accordance with the State ■ Central Committee’s resolution. In this resolution it . was further provided that “ * * * each candidate for any of the Parish offices above set forth shall deposit the sum of $10.00, * * * with the chairman of this committee at the time he files his declaration of intention to become a candidate, which deposit shall be for the expense of this committee and the conducting of said Primary Election, and for incidentals in connection therewith, and shall further comply with the requirements of the law and the Democratic State Central Committee with regard thereto. * * * ” This resolution was posted in the Plaque-mines Parish courthouse. There was no other posting of the amount of money that each candidate was required to deposit. Each plaintiff, upon filing his declaration of candidacy, deposited $15.00, stating therein that the $15.00 included “the deposit in the amotmt of $5.00 required by the Primary Election Law of .the State of Louisiana, the deposit in the amount of $5.00 required by the resolution of the Democratic State Central Committee, and deposit in the amount of $5.00 required by the resolution of the Plaquemines Parish Democratic Executive Committee”. An objection to each plaintiff’s candidacy was duly filed with the defendant committee on the ground that the deposit was not sufficient because the resolution of the defendant committee required a deposit of $10.00 for the expenses of the committee instead of the $5.00 actually deposited by each plaintiff. It was upon this ground that the defendant committee disqualified the plain-, tiffs.

■ The pertinent provisions of law are found in the Primary Election Statute, Section 18 of Act No. 46 of 1940 and Section 32 of Act No. 46 of 1940, as amended by Act No. 351 of 1946, § 6. Section 18 provides:

“It shall be the duty of all committees to publish or post as hereinafter provided, the full amount of deposit required of each candidate by. all Parish, District or State committee and by the Primary Election Law.”

Section 32 reads:

“The committees authorized to call and order primary elections are hereby authorized by resolution adopted at the same meeting at which they call said primary, to levy, assess and collect from each candidate, in addition to the assessments fixed herein, additional fees, not to exceed One Hundred Ten and no/100 ($110.00) Dollars. Out of these fees the following sums shall be remitted to the Secretary of the Stat.e Central Committee, to-wit:
“For every candidate for office as provided in Section 31, the sum of not to exceed Fifty and no/100 ($50.00) Dollars ■each; for every candidate for district or parish office, the sum of Five and no/100 ($5.00) Dollars each; for every ward office, the sum of One and no/100 ($1.00) Dollar each. The balance of this additional assessment shall be used for incidental and other expenses and shall be expended in the discretion of the committee, and the amount to be fixed and assessed shall be paid by the candidate at the time of filing his written notification of candidacy. Failure to make payment as herein provided will debar any such candidate from having his name placed on the official ballot for such primary election; * *

It is the contention of each plaintiff that if the amount which he deposited was insufficient, his error was caused by the ambiguity of the resolution regarding the required amount; that the committee, in accordance with Section 18 of the Primary Election Law, which requires the publication or posting of the amount of deposit in full, should have posted the fact that a total of $20.00 was due from each candidate ; and that the committee cannot disqualify him for an error induced by its failure to comply with the law.

The defendant objectors and the committee contend that the only stipulation contained in the, resolution with which the plaintiffs did not comply in making their deposit was the one specifically requiring the sum- of $10.00 for the defendant committee’s expenses; that that portion of the resolution which plaintiffs construe as being vague, the requirement that all candidates “ * * * shall comply with the requirements of the law and Democratic State Central Committee”, was complied with when each candidate deposited with the Parish Committee $5.00 required by the Primary Election Law of the State of Louisiana, and $5.00 as required by the resolution of the Democratic State Central ■Committee, as shown by his declaration of ■candidacy.

Conceding for the sake of argument that the plaintiffs complied with that part of the resolution which they complained of as being vague, or that the resolution in itself was not vague, nevertheless, Section 18 of the Primary Election Law clearly imposes upon the committee the mandatory duty of making known to prospective candidates the full amount which they must deposit. The resolution of the committee stipulates only the amount required by the committee for its expenses and does not set forth the amount required by the Primary Election Law and the Democratic State Central Committee. The committee’s reference to “the requirements of the law and the Democratic State Central Committee”, in its resolution of October 8, was not sufficient under the express wording of Section 18 to properly inform the prospective candidates of the full amount of the deposit required and the posting of such a resolution failed to comply with the provisions of Section 18 of said statute and, therefore, the committee cannot disqualify a candidate for his failure to post the full amount. We are, therefore, of the opinion that the plaintiff Wool-verton should be permitted to qualify for the office of State Representative of Pla-quemines Parish.

The above holding is not applicable to plaintiff Hingle. The rqcord shows that not only was he a member of the defendant committee at the time the resolution in question was passed but also that by his own admission, he offered the resolution in question and understood its contents. As the committee member who offered the resolution, he is bound by its contents and his own acts and is estopped from raising as a defense ‘.to his failure to comply with the Primary Election Law, the failure of the committee to comply with Section 18 thereof.

Both plaintiffs have contended that the committee’s failure to state and post the required amount in full was part of a fraudulent scheme to disqualify certain candidates. This contention is without merit for the entire.record is void of any evidence of a conspiracy or of fraudulent intent on the part of the committee or of any member thereof, present or absent.

For convenience, we repeat the decrees -which were handed down by us in these cases on November 17, 1947.

In No. 38786, Hingle v. Plaquemines Parish Democratic Executive Committee et al.,

“For the reasons to be hereafter assigned, the judgment appealed from is reversed and the suit is dismissed, at the cost of the appellee.”

In No. 38787, Woolverton v. Plaquemines Parish Democratic Executive Committee et al.,

“For the reasons to be hereafter assigned, the judgment appealed from is affirmed.”

O’NIELL, C. J., absent.


author: HAMITER, Justice.

text:
    212 La. 714
    STATE ex rel. PIPER v. EAST BATON ROUGE PARISH SCHOOL BOARD.
    No. 38304.
    Supreme Court of Louisiana.

      Dec. 15, 1947.
    Maurice R. Woulfe, of New Orleans, for relator-appellant.
    Taylor, Porter, Brooks & Fuller, of Baton Rouge, for defendant-appellee.
   HAMITER, Justice.

Appellee, the East Baton Rouge Parish School Board, has moved to dismiss the appeal herein of plaintiff, C. B. Piper, which was perfected from a judgment rejecting his demands.

In the suit plaintiff seeks to be reinstated as principal and a permanent teacher, and in the alternative as a probationary teacher, of the McKinley High School in Baton Rouge, he alleging that his dismissal as such was attempted by the defendant without proceeding according to the requirements of the Teachers’ Tenure Law of Louisiana, Act No. 100 of 1922, as amended by Act No. 250 of 1944. Additionally, he asks judgment for his unpaid salary, which he alleges to be $2,756 per year, commencing from the date of the attempted dismissal.

In its motion filed here appellee urges that the question presented by the appeal is now moot because, as appears from an attached photostat copy of a document bearing his signature, appellant has voluntarily signified an intention in writing not to¡ teach again in the public schools of Louisiana.

The document to which reference is made is merely an application, filed by appellant with the Board of Trustees of the Teachers’ Retirement System of Louisiana on August 1, 1947, requesting “the return, of the amount of contributions and accrued interest thereon standing to my credit in. the Annuity Savings Fund.” It is true that the application also contains the printed assertion that “I am not now employed and do not now expect to teach again in the public schools or state educational institutions of Louisiana.” But this declaration (the basis for the motion), we think, is not entirely, even if to some extent, destructive of the efficacy of the litigation, including the appeal. For the suit contains a demand for reinstatement as principal and teacher during the 1945 — 46 school term, as well as for payment of the attendant salary of $2,756, and hence concerns a period prior to the date of the filing of the mentioned application.

The motion to dismiss the appeal is denied.


text:
    212 La. 717
    BERGERON et al. v. RAPPELET.
    No. 38788.
    Supreme Court of Louisiana.
    Nov. 18, 1947.
    Opinion Dec. 15, 1947.
    Numa S. Montet, of 'Thibodaux, for plaintiffs and appellants.
    Elton Darsey and Morris A. Lottinger, both of Houma, and Hubert Lafargue, of Thibodaux, for defendants and appellees.
   PONDER, Justice.

In compliance with the provisions of Act No. 46 of 1940, requiring a decision in cases of this character within twenty-four hours after submission, we herewith hand down our decision in this matter, for the reasons which will follow in due course.

For the reasons to be hereafter assigned, the judgment appealed from is affirmed.

PONDER, Justice.

The defendant, Albert O. Rappelet, timely filed notice of intention to become a candidate for - the democratic nomination for state senator for the Twelfth Senatorial District of Louisiana at the primary election to be held on January 20, 1948. The plaintiffs, three, qualified electors of thé district, filed objection to the defendant’s candidacy, within the time prescribed by law, on the grounds: First, that the defendant does not possess the residential qualifications required by the Constitution of the state, art. 3, § 9, and the resolution of the committee calling the election; and second, that the defendant is not a qualified elector of any parish within the district, as required by the Constitution, the Democratic State Central Committee and the Twelfth Senatorial Committee. After the defendant had answered the objection, the committee held a hearing on October 31, 1947. The committee concluded its hearing at 7:30 p. m. and reconvened the next day on November 1st at 11:00 a. m. for the purpose of rendering its decision, at which time the committee overruled and dismissed the objections and protests entered by the plaintiffs. It is admitted by all parties to this suit that the committee’s decision was promulgated at 1:00 p. m. on Saturday, November 1, 1947. The plaintiffs filed the present suit on November 4, 1947 at 3:47 p. m. against the defendant Rappelet and the senatorial committee in the Seventeenth Judicial District Court, seeking to reverse the decision of the committee and to have the defendant Rappelet declared disqualified. The defendant interposed various exceptions and pleas and filed an answer to the suit. Upon hearing of the exceptions and pleas, the district court gave judgment .maintaining an exception to the jurisdiction of the court rationae materiae and a plea of prescription and dismissed the plaintiffs’ suit. The plaintiffs appealed to this Court. The appeal was timely heard and a decree was timely rendered by this Court affirming the judgment of the lower court for reasons to be later stated.

The plea of prescription is based on the ground that the suit was not filed within two days after the promulgation of the committee’s decision.. Under the provisions of Act No. 46 of 1940, a suit of this nature must be filed within two days after promulgation.- The dispute herein is over whether or not intervening Sundays or holidays are counted in computing the two day term.

Counsel for the plaintiffs-.contends that the lower court erred in not granting the plaintiffs two whole days, Monday and Tuesday, in which to file their suit. He takes the position that Saturday and Sunday, being holidays, should not be counted in computing the two day term. He relies on a statement made by this Court in the case of State ex rel. Graham v. Republican State Central Committee of Louisiana, 193 La. 863, 192 So. 374, 378, which reads as follows: “When the law allows a person only a limited time within which to exercise a legal right, the person seeking to exercise the right should be entitled to the whole, and not merely to one half, of the allotted time.”

This Court had occasion to review the jurisprudence of this State touching the method of computing the delays allowed by law and pointed out that intervening Sundays and other legal holidays are included in computing the delays unless they are declared excluded by the statute allowing the delays, except when the last day falls on Sunday or other legal holiday. The case of Mansur v. Abraham, 183 La. 633, 164 So. 421, recognized the rule that, when the last day of a term allowed by law for taking action in a judicial proceeding falls on Sunday or any other legal holiday, action may be taken on the next day following.

In the case of Brown v. Democratic Parish Committee of St. Bernard Parish, 183 La. 967, 165 So. 167, we construed the prescriptive period in the primary election statute strictly, and pointed out that to extend such provision would be allowing a greater time than set forth in the statute, which would be equivalent to legislating by the court. We further stated that this Court has consistently enforced the prescriptive period set out in the primary election statute.

In the Graham case the decision of the-committee was promulgated on October 30th and the suit was filed on November 2nd thereafter. The lower court maintained a plea of prescription and held that November 1st, a legal holiday and the last day of the two day term, must be counted as one of the two days in which the suit must be instituted. On appeal we reversed! the judgment of the lower court and pointed out the fact that the Mansur case was-not called to the' attention of the trial-judge. We referred to the holding in the-Mansur case and stated that nothing said-in the Brown case is opposed to its holding. We made the statement relied on by counsel in answer to a contention made that the last day of a term, although a holiday, was-properly counted as one of the two days-within which suit could be brought. The holding in the Graham «ase, in our opinion, is an affirmance of the rule laid down in. the Mansur case because in both instances, the action was taken on the next day following the holiday, which fell on the last day of the term. There was no occasion to apply this rule in the Brown case for the reason, that the last day of the term was not a holiday. From our examination of the jurisprudence of this State, we have been unable to find a single case wherein the method of computing legal delays conflicts with the rule laid down in the Mansur case.

In the present case the last day of the two day term, Monday, November 3rd, was not a legal holiday and the allowance of an additional day would not be warranted under the jurisprudence of this State. The intervening Saturday and Sunday, although legal holidays, are not excluded by the statute and must be counted in computing the two day term fixed by the statute, because it is only when the last day of the term falls on a holiday that a court of this State is warranted in granting additional delay and, in that instance, the delay is restricted to the next day following.

Having arrived at the ' conclusion that the lower court properly maintained the plea of prescription, it is unnecessary to pass on the exception to the jurisdiction of the court.