text:
    HUGHES et ux. v. GILL.
    No. 3129.
    Court of Appeal of Louisiana. First Circuit.
    June 30, 1949.
    C. W. Berry, Jr., Oakdale, for appellants.
    Alva Jones, Oakdale, for appellee.
   ELLIS, Judge.

The plaintiffs, Albert J. Hughes and his wife, Ruby West Hughes, have filed this suit individually and on behalf of their minor child, Mattie Francis Hughes, in which they pray for judgment for hospital and doctor bills, pain and mental anguish to their minor child and for mental anguish and worry, all occasioned as a result of the child being struck by an automobile owned and operated by the defendant Eldridge Gill on the 16th day of September, 1948 at approximately 11:30 a. m. on Whittington Drive, which is a street located in the city of Oakdale, Louisiana.

Plaintiffs alleged that their minor child, who on the date of the accident was three years of age, was on the south side of Whittington Drive immediately across the street from their home and standing near a garage belonging to one Clay Stanley; that the child was walking backwards across the road and that, although there was a curve in this street to the south which begins near Stanley’s garage, there is no obstruction which would have prevented the defendant, who at the time was driving west on said street from seeing the road ahead of him for a distance of SO to 75 feet. It is further alleged that this accident happened on the left or south side of Whittington Drive which is the opposite lane of traffic for any motor vehicle traveling west as was the defendant in this case, and that as the road is approximately 14 feet in width there was ample room -for the defendant’s automobile to have passed to the right or north side of the child had he remained on his proper side of the road. The plaintiffs charged the defendant with not keeping a proper lookout and with knowledge that at the point of the accident there was a residential area and children customarily played along this street.

The defendant entered a general denial and alleged that Whittington Drive made a sudden turn to the south opposite the Stanley garage, and that there was a large tree on the left hand side of the road close to the Stanley garage, and that the garage and tree completely obstructed the view of any one driving west around this curve; that as defendant reached the garage corner and tree, the minor child of the plaintiffs was playing on the south side of the street and was being called home across the street by some adult person living in the house of the plaintiff; that in response to this call the child suddenly ran into the front of defendant’s car and that immediately when the child came into defendant’s view he applied his brakes, which were in good shape, but could not avoid striking the child, although he was traveling at a slow rate of speed and his car came to a stop within three feet. The defendant further plead that the parents of the minor child were contributorily negligent in allowing this small child “with no sense of judgment to play alone and on the opposite side of the street from its home.”

After trial, the learned judge of the District Court in short sufficient oral reasons dictated to the stenographer held that it had been proven that the defendant had failed to maintain a proper lookout, and in his reasons stated that the plaintiff, presumably the father, was entitled to the sum of $267 for hospital and doctor bills incurred as the result of the accident. The District Court further stated that the child was entitled to $100 for pain and mental anguish and that the plaintiffs, Albert Hughes and his wife, Ruby West Hughes, were entitled to $100 for mental anguish and worry. The formal judgment as drawn' is in favor of Albert J. Hughes and against the defendant Eldridge Gill in the full sum of $467 plus legal interest from date of judicial demand until paid and for all costs of the suit.

Defendant has appealed from this judgment.

The preponderance of the testimony establishes the fact that on the date in question the defendant had just left his home, which is located four houses down or east of 'the scene of the accident, and was accompanied by one of his children; that he was driving his automobile at a slow rate of speed, not more than 12 to 15 miles per hour, in a westerly direction along Whit-tington Drive, a graveled street which is approximately 14 to 16 feet in width at the point of the accident. There is a garage located on the south side of this street at or near the place that the child was struck, and at the corner of the garage is a large tree. This street, sometimes referred to in the testimony as a road, curves to the south slightly to the east of this garage. It is the defendant’s contention that this child suddenly darted out from the western end of this garage and that his view was obstructed by the garage and the tree until he got practically opposite the point where the child darted into the road. The defendant testified that he did not see the child until it was practically under his left front fender, and that all he had time to do was to jerk his front wheels to the right and apply his brakes. It is proven that his car stopped within approximately three feet and that the child was struck approximately in the center of the road or street, which would be approximately 7 to 8 feet from the south line of Whittington Drive. The defendant admits that he knew children played along this street and in this neighborhood.

• The record shows that during the trial a blackboard was used of which we do not have the benefit but which the District Court did have before it, and practically all of the witnesses in the case testified by either making sketches on the blackboard or using the one already made by some other witness.

Plaintiffs contend that the child was playing on the south side of Whittington Drive and a distance of 20 feet west of the Stanley garage at the time she started to cross the street toward her home, and that the defendant could and should have seen this child from a point fifty feet east of the Stanley garage, which would make a total distance of 70 feet, when the child was approximately 7 to 9 feet south of the south line of Whittington Drive, and that as the defendant admitted that -he struck the child in the center of the street or a distance of 7 to 8 feet, the defendant should have seen this child while it was traversing the entire distance of 14 to 17 feet.

The District Judge, as stated, found'that had the defendant been keeping the proper lookout, under the testimony in this case he should have seen the child during the time that it traveled the seven feet into the street and approximately eight feet south of the street, or a distance of 15 feet, and that had he seen the child he could have avoided the accident, but as he did not see the child until it had traveled the entire distance to the center of the road or approximately 15 feet that he was not keeping a proper lookout and is therefore liable. Opposed to the testimony of the defendant that his view was obstructed we have in the record the testimony of the plaintiff and three other witnesses that the defendant should have seen this child when he was 70 feet east of the point of the accident ; that the curve was of such a gradual nature that at a point 50 feet east of the Stanley garage the view was unobstructed at a distance of 20 feet west of the garage and as far as 7 to 9 feet south of the south line of Whittington Drive. The Judge of the District Court accepted this testimony and we believe he was correct in doing so. One witness testified that Mrs. Maxine Doyle, who was a witness called on behalf of the plaintiff, had called the little Hughes girl from across the street to come home and that is why she had started to cross the street at the time of the accident. Mrs. Doyle denied that she called the child but states that she was living at the Hughes home at this time and on the morning of the accident she went out on the front porch of the Hughes home to see about her child and at that time she did not know that the little Hughes girl was playing across the street. She stated that she did'not call the child but that the child started running across the street and looking back and that she realized that the Gill car was not going to stop and that the child was not going to stop, in other words, that the child was going to be hit and it frightened her and 'she hollered, “Watch that car.”

The defendant cites the case of Jacoby et al. v. Gallaher, 10 La.App. 42, 120 So. 888, and also the case of Cavanaugh v. Blaum, 12 La.App. 173, 125 So. 160. If the facts were as contended by the defendant then these cases would be applicable and decisive, but in this present case the facts are convincing that if the defendant had been looking or keeping a proper lookout on this street or road, which he knew was occupied by families with children and that the children played along the' street, he would have seen this little three year old child in time to easily have avoided the accident by the application of his brakes- or by driving his car to the extreme right hand side of this street or road. It is-equally true under the well-settled jurisprudence that if he did not see the child but should have seen her at a distance which would have enabled him to avoid the accident, he is equally responsible.

In the present case -he should have seen this child in time to avoid the accident and, therefore, we agree with the Trial Judge-that he was not keeping a proper lookout and is liable. :

The learned judge of the District Court in his reasons for judgment stated that the plaintiffs, Albert J. Hughes and his wife, Ruby West Hughes, were entitled to $100 for mental anguish and worry. This amount is included in the total amount of the judgment of $467, however, under the jurisprudence, the father and mother are not entitled to collect for mental anguish and worry as a result of the injuries-to their minor child. In the case of Davies v. Consolidated Underwriters, La.App., 14 So.2d 494, 504, the Court held: “Plaintiffs in the original action claimed $750.00 each as damages for mental anguish by reason of the injuries to their child. It is well established in this State that one person cannot recover damag'es for mental suffering as a result of injuries to the person of another. Seligman v. Holladay, La. App., 154 So. 481.”

While we believe in other respects that the formal judgment should have followed the wording of the judge as given in his reasons for judgment and that it, therefore, should have been in favor of the plaintiff Albert J. Hughes in the full sum of $267, which were the hospital and medical bills for the child, and there should have been further judgment in favor of the plaintiff, Albert J. Hughes, for and on behalf of the child, Mattie Francis Hughes, in the amount of $100, (Emphasis ours) we are confronted solely with the matter of reviewing it, and the plaintiff did not answer the appeal that was taken by the defendant and we are, therefore, powerless to disturb the judgment in this respect. . See Jones v. Chicago Mill & Lumber Co., La.App., 15 So.2d 826, 827, wherein it was held: “ * * * Defendant did not appeal nor did it answer appellant’s. appeal. .Therefore, the judgment may not be amended in its favor, notwithstanding, in brief, it is argued and urged that plaintiff has been paid all compensation due him. Code of Practice, Article 592. See also Giardina v. D’Antoni, La. App., 1 So.2d 706, and cases therein cited; Nurdin v. Bouanchaud, Sheriff et al., 152 La. 853, 94 So. 420; State v. Becker, 30 La.Ann. 682, in which it was held: ‘Any change in the judgment of the lower court, desired by the appellée, must be asked for by him in a regular answer to the appeal. It is not sufficient to demand it merely in his brief.’ ”

It is, therefore, ordered that the judgv ment of the District Court be amended by reducing the amount thereof to $367 plus legal interest thereon from date of judicial demand until paid, and as thus amended that it be affirmed. The costs of this appeal are to be paid by the plaintiff-appel-lee.


source: Caselaw Access Project

author: TALIAFERRO, Judge.

license: Public Domain

text:
    STROUD v. STANDARD OIL CO. OF NEW JERSEY.
    No. 7348.
    Court of Appeal of Louisiana. Second Circuit.
    June 30, 1949.

      Dickson & Denny, Shreveport, for appellant.
    Irion & Switzer, Shreveport, Harry A. Johnson, Jr., Shreveport, for appellee.
   TALIAFERRO, Judge.

Plaintiff alleged that she was injured when her coupe automobile, in which she was riding, then being operated by one J. C. Pruitt, was driven into a ditch at the intersection of Hollywood Avenue and the Mansfield concrete highway, south of the City of Shreveport, Louisiana, in Caddo Parish. She sues for several elements of damages. The Standard Oil Company of New Jersey is made defendant.

Plaintiff, with her invalid husband, lives in the Village of Mooringsport, twenty miles north of Shreveport, and for some time they have had the services of Mrs. Ida Hurn, a practical nurse. In the morning of the day of the accident, plaintiff and Mrs. Hurn desired to visit the City of Shreveport on business. Mr. Pruitt, a family. friend, who had been driving the coupe on missions for them, was requested to operate it on the trip and consented. That afternoon, at about the hour of five o’clock, Pruitt picked up Mrs. Hurn and they then drove to the home in the southern part of Shreveport where plaintiff informed them she would be at that time. She got into the coupe and sat nearest the right door. The party proceeded westerly on Hollywood Avenue to the Mansfield highway where it was their intention to turn north and proceed northerly to Moorings-port.

East of the intersection, and a very short distance therefrom, the avenue crosses at right angle two tracks of the Texas and New Orleans Railroad Company. Prior to driving over the west track Pruitt stopped the coupe to determine if it was safe to proceed forward to the highway. Seeing no trains approaching from either direction, he drove forward at a moderate rate of speed. When he had nearly cleared the most westerly track he pulled the coupe rather sharply to his right. ■ The right front wheel dropped into a deep ditch at the north end of a grass covered culvert that forms a link in the draining ditch that parallels the west track, and the car stalled. It did not turn over, but the descent of its right end was so sudden that the weight of Pruitt and Lfrs. Hurn, to some extent, fell upon plaintiff and pressed her somewhat violently against the door. The right rear wheel of. the coupe hung against the west rail of the track. Pruitt and Mrs. Hurn say they left the coupe by way of the left door and then assisted plaintiff therefrom. They escorted her to a filling station across the highway where she was provided with a chair. Pruitt and several men returned to the stalled car and tried to extricate it from the ditch, but failed in the effort. After a lapse of some fifteen minutes it was struck and destroyed by a southbound freight train.

The gravamen of the suit lies in the charge that the coupe was forced into the ditch by a truck and trailer of the defendant, which encroached upon the coupe’s-side of the avenue, as they made a left turn from the highway into the avenue. On this score a charge of negligence is-made against defendant’s driver.

Defendant filed a plea of prescription against the suit and exceptions of no cause and no right of action, all of which were overruled. The court gave written reasons for overruling the plea. All are urged here.

Briefly defendant’s answer denies that the movement and course of its truck made it necessary for the driver of the coupe to execute the sharp turn to the right that landed it in the ditch. It avers that the turn was made voluntarily and in furtherance of Pruitt’s desire to quickly get upon the highway and head toward his destination; and had he been maintaining a proper lookout he would have averted the accident.

Defendant specially denies that plaintiff sustained any injuries from the coupe being stalled, but alleges if she did so, same are attributable to the negligence of her own agent and driver in that he did not maintain a proper lookout and heedlessly drove his vehicle into the ditch as aforesaid; that she had the power to and was exercising control and direction over said driver; that, therefore, in law, his negligence was her negligence. Contributory negligence on the part of Pruitt, in the alternative, is specially pleaded.

Plaintiff’s demand was rejected and she appealed to this court.

Plea of Prescription

The accident occurred October 7, 1946. On October 6, 1947, only one day less than one year following the accident, plaintiff filed suit in the District Court of Caddo Parish against the Standard Oil Company and the Texas and New Orleans Railroad Company on the cause of action herein alleged upon. This suit was on January 12, 1948, dismissed on exceptions of mis-joinder of parties. No appeal was prosecuted from the court’s action. The present suit was filed May 18, 1948, which was more than one year after the accident but less than one year subsequent to the dismissal of the first suit.

In support of the plea, defendant’s assiduous counsel argues that the filing of the first suit only suspended the running of prescription from the date of its filing and while pending; and that when dismissed, defendant had only one day in which to renew it. 'Plaintiff contends that the first suit interrupted the course of prescription; that the interruption continued to the time of its dismissal, and from that date the cause of action became subject to the prescription of one year; or, in other words, prescription ran de novo.

Investigation of the question tendered has led to the conclusion that the issue turns upon whether the limitation of the time to file suit is one of prescription or peremption; if the former, the plea should be overruled; if the latter, it should be sustained.

The limitation of one year fixed by Article 2315 of the Civil Code, in which the named beneficiaries therein shall institute action, is one of peremption. It is tolled by timely filing of suit. The article clearly says that the action shall “survive in case of death * * * for the space of one year from the death”.

The action may not be renewed after one year from date it arose, whether or not decided on its merits. See Matthews v. Kansas City Southern Railway Company, 10 La.App. 382, 120 So. 907, and authorities therein cited.

The footnote, 13 T.L.R., page 39, having reference to the reinscription every five years of chattel mortgages, concerning the difference between the nature and effect of prescription and peremption, says:

“A period of peremption admits of no interruptions or suspensions. The performance of the required act must be accomplished within the specified time at the peril of the party whose duty it is to perform such act. A period of prescription differs in that it may be suspended or interrupted for various reasons. The institution of suit interrupts prescription. La.Act 39 of 1932; McCoy v. Arkansas Natural Gas Co., 184 La. 101, 165 So. 632 (1936). But it does not affect peremption. McElrath v. Dupuy, 2 La.Ann. 520 (1847); Hyde v. Bennett, 2 La.App. 799 (1847); Murff v. Ratcliff, [19 La.App. 109, 138 So. 908], supra note 93.”

And along the same line, the Supreme Court in Guillory et al. v. Avoyelles Railway Company et al., 104 La. 11, 15, 28 So. 899, 901, stated:

“When a statute creates a right of action, and stipulates the delay within which that right is to be executed, the delay thus fixed is not, properly speaking, one of prescription, but it is one of peremption.
“Statutes of prescription simply bar the remedy. Statutes of peremption destroy the cause of action itself. That is to say, after the limit of time expires the cause of action no longer exists; it is lost. Taylor v. Cranberry, Iron & Coal Co., 94 N.C. 525; Cooper v. Lyons, 77 Tenn. 596.”

The foundation basis of the law of tort in this state is to be found in the first few lines of Article 2315 of the Civil Code, which reads:

“Every act whatever of man that causes damages to another, obliges him by whose fault it happened to repair it * * * ”.

The negligence charged to defendants’ driver amounts to a quasi offense. Article 3536 of the Civil Code, in part, reads:

“The following actions are also' prescribed by one year:
“ * * * that for damages caused by animals, or resulting from offenses or quasi offenses.”

It is not said, as in Article 2315 of the Civil Code, that the cause of action survives for only one year.

It is clear from this unambiguous language that the remedy to be employed to obtain satisfaction in the way of damages that arise from a quasi offense, must be availed of within one year from the date of the offense; that is, suit on the cause of action must be filed within that time. This was done in the present case and since the Code declares that the action shall be prescribed in one year from the date the “damages were sustained”, it is evident that the legal rules applicable to prescription and not peremption apply. Filing of the suit interrupted prescription. Act No. 39 of 1932, Article 3518 of the Civil Code.

This brings us to the question; With respect to time, what was the effect of the interruption? We believe this question would be answered -by lawyers and judges generally, offhand, by saying one year from the date the suit was dismissed by the court; and doubtless this accounts for the fact- that this identical question has been but once passed upon by the Supreme Court. That was in the case of Riviere v. Spencer, 2 Mart., O.S., 79, in the year 1811. It was held in that case that from each interruption prescription will run de novo. However, the court was there dealing with a question of acquisitive prescription of ten years and it might with some force be argued that this decision should not be a precedent for the present case wherein the facts are entirely different.

The Court of Appeal, First Circuit, did have the same question before it in the case of Spring v. Barr, 9 La.App. 732, 120 So. 256, and fpllowed Riviere v. Spencer. The lower court in the present case largely based its ruling on the plea of prescription upon this court of appeal case.

Defendant’s counsel doubtless have made exhaustive search for cases wherein this important and interesting question was directly tendered, but they admit finding none save the two above cited. They did find several cases wherein loose statements by the courts appear that afford some comfort to them, -but which are not decisive of the question. They cite and quote from: Driggs v. Morgan, 10 Rob. 119; Barrow v. Shields et al., 13 La.Ann. 57; Price v. Emerson, 16 La.Ann. 95; Talle et al. v. De Monasterio et al., 48 La.Ann. 1232, 20 So. 687; Wolf & Sons v. New Orleans Tailor-Made Pants Company, Ltd., et al., 110 La. 427, 34 So. 590.

Also of same import is Turner, Wilson & Company v. W. W. McMain et al., 29 La.Ann. 298.

These decisions are authority for the unchallenged principle that the filing of suit (since the passage of Act No. 39 of 1932) interrupts prescription with the concomitant that from the moment of interruption until the suit is finally disposed of, prescription is suspended. Beyond this we do not believe these cases go-. And so it is in the present case. Since there is no decision nor statutory law to the contrary, so far as we are aware, or have been advised, we conclude, as did the lower court, that when the suspension of the prescription ceased, contemporaneously therewith a new period of prescription for. one yeár began. This result happens when a suit is instituted on a conventional obligation, accounts, etc., and we perceive of no sound reason why there should be a difference simply because the causes of action are different.

Exceptions of No Right and No Cause of Action.

These exceptions' are primarily predicated upon the proposition that damages are not recoverable for fright, shock, excitement, etc., incidents of an accident, when not accompanied by physical violence. The merits of these exceptions are to be determined from the allegations of the petition, as no testimony, in limine, was ’ offered to support the exception of no right of action. When the coupe’s wheel descended into the ditch, naturally this was accompanied by a jolt from the sudden happening. Pruitt and Mrs. Hurn were thrown against and to some extent upon the plaintiff. In Article 6 of the petition, it is alleged that she: “was shaken and jarred when said coupe went into the ditch, and before she could extricate herself from the car she heard someone say that a train was due and in the excitement caused by the accident and the fear of the approaching train, she hastened to get out of said coupe which was partly in .the deep ditch and partly on the railroad track, and in, so extricating herself she seriously hurt and strained her back and nervous system; and that by reason of the injury received in the accident and by reason of the excitement caused by said accident, she has .received permanent injury and has suffered great pain.”

In our opinion these allegations are adequate to remove the case from the rule upon which the exceptions are based. This ruling disposes of the secondary ground urged in behalf of the exceptions, to-wit: that whatever injury plaintiff sustained as a result of the accident, arose from the independent negligence of the railroad in running into and destroying the coupe.

There is direct conflict between plaintiff, Pruitt and Mrs. Hurn, on one side, and Holder, the truck driver, and Jack L. Barron, a young man riding with him at the time, on the other hand, with respect to the movements of the truck and trailer at the time of and immediately prior to the accident.

Pruitt testified that after stopping the coupe east of the railroad track, he moved slowly forward and as he drove upon the west track, the defendant’s truck and trailer were coming down the Mansfield Road, “and he made a left turn on me”, so fast'that he (Pruitt) kept edging away from him and finally went into the ditch; that had he not pulled the co'upe to its right there would have been a collision between the vehicles. Pruitt was not familiar with the locale. He did not remember whether or not he told the truck driver and young Barron immediately aftér the accident, as testified by them, that the position of the truck had nothing to do with'the accident. He denied that he told the highway policeman, who arrived very soon after the accident, that there was clearance of ten feet between the vehicles when they, passed. Two highway policemen testified that Pruitt did so state to them in a conversation shortly after their arrival upon the scene. Pruitt was asked:

“Isn’t it also a fact that the truck, when it turned off of the Mansfield Road onto Hollywood, made a wide sweeping turn and at all times was on its right side of the road?”

He answered:

“I don’t know. It didn’t seem to me like it could have been possible.”

In other respects the weight of his testimony is unfavorably affected because of equivocation.

Mrs. Hum’s testimony, as we view it, does not implicate the truck as responsible for the accident. Describing the accident, she says:

“I was looking straight ahead, looking at the sign ‘Kickapoo’. So when I felt the jar I looked up and here was that big old Esso truck and I thought it was going to get on us in spite of everything. It seemed like it made a turn from the Mansfield Road around like this, you see, and we were coming this way, so it crowded us off in the ditch.”

It is evident that she felt the jar before she saw the truck, at which time it was evidently passing the coupe or had passed it. However, she is sure that only Pruitt’s quick action in veering the coupe to its right averted a collision. She also stated: “There was not very much space between us and that truck”. This does not indicate that at any time a head-on collision, as contended, was imminent.

Plaintiff testified very much as did Pruitt. She was certain that the truck did not come to a stop or even slow down prior to making the turn into Hollywood Avenue; that she saw no signal on the part of the truck driver indicative of the intention to turn; that at the time she first observed the truck, the coupe was moving slowly, crossing the west railway track, and that she, about that time, told Pruitt to “get over a little. It was either move a little to the right or meet the truck”, that he did then pull slowly to his right and went into the ditch as a consequence.

The driver of the truck has operated vehicles of that character for twenty-one years, and only recently received a safety award for careful driving. He was well acquainted with the intersection and its physical conditions. The truck and trailer, with over-all length in excess of thirty feet, when carrying a heavy load, could not safely negotiate the left turn into Hollywood Avenue without coming to a stop or slowing down materially. Of course, it was necessary to take one or both actions in order to observe traffic conditions in all directions. Holder is positive he did this. Barron, who at the time of trial was a student in a business college, and surely has no reason to color his testimony, fully agreed with Holder as to the manner and method of making the turn. Both testified that the truck and trailer were well on their side of the avenue at all times after emerging from the intersection. Each testified that as the coupe passed the truck, Holder observing that Pruitt was bearing too far to his right, extended his head out of the door of the cab and shouted to Pruitt that he was headed for the ditch, or words to that effect.

The truck was stopped immediately after the accident. Holder testified, and we have no reason to disbelieve him, that immediately after the train struck the coupe, in order to comply with a fixed rule of its company, he prepared a statement for Pruitt to sign, which exonerated Holder from any responsibility for what had just happened; and as he as about to sign the document plaintiff approached and told him not to sign a “damn” thing, and he followed her suggestion.

The culvert involved in this suit, as reflected from photographs, did not extend as far north of the edge of the avenue as it should have done. Pruitt did not know this and doubtless assumed that the culvert was longer that it really was. He was in a hurry to get upon the highway, and to this, augmented by his erroneous belief as to the length of the culvert, should be accredited the accident.

The lower court evidently reached the conclusion that the testimony did not clearly preponderate in favor of plaintiff on whom rested the burden of proof. Our study of the record convinces us beyond question that the lower court’s resolution of this question of fact is correct. Therefore, for the reasons herein assigned, the judgment from which appealed is affirmed with costs.


author: PONDER, Justice.

text:
    215 La. 749
    LEAR et al. v. GREAT NAT. DEVELOPMENT CO., Inc.
    No. 38979.
    Supreme Court of Louisiana.
    June 30, 1949.
    Chandler & Edwards, Shreveport, for plaintiffs-appellants.
    Smith, Hunter, Risinger & Shuey, Shreveport, for defendant-appellee.
   PONDER, Justice.

The plaintiffs have appealed from a judgment of the district court rejecting their demand for damages arising from an alleged breach of contract.

The plaintiffs contracted to sell the .defendant a tract of land in Caddo Parish containing approximately 113 acres. The pertinent portion of the contract reads as-follows:

“Sellers agree to provide Buyer with an abstract on the property from the earliest date at their expense and the attorney for Buyer shall have fifteen days from the-date said abstract is furnished to him in-which to give his written opinion as to the-title. The word title means good, valid and merchantable record title. It title is good, Buyer agrees to accept deed within 60 days thereafter and Seller agrees to furnish deed with full warranty of title to all of said property except such as may be situated below the 172 foot contour line; which shall be conveyed without warranty, said deed to contain the usual terms and conditions. If title is bad, Sellers agree at their expense to make the necessary corrections, or in the event of their failure,. Buyer may do the curative work at Sellers5' expense not to exceed $250.00.”

The attorneys representing the purchaser, after examining the abstract furnished by the plaintiffs, arrived at the conclusion that the plaintiffs’ title to the property was defective and suggestive of litigation. The defendant refused to accept a deed to the property because one of the record owners had not signed the contract and because the title to the property was suggestive of litigation.

It would serve no useful purpose to determine whether or not the contract was binding because 'it was not signed by one of the record owners. The determination of this question is not necessary since the contract would not be binding on the defendant because the title to the land is suggestive of litigation.

The plaintiffs’ title emanates, after various transfers, from a patent issued by the United States Government to John Page in 1849 covering the entire tract of land. Approximately one-half of this tract of land lies below the contour line of Cross Lake, which was owned by the State of Louisiana at the time the patent was issued by the United States Government. The United States Government did not own this lower half of the property at the time it issued the patent. There is at present a record title standing in the name of other parties emanating from- the State of Louisiana through the Caddo Levee Board.

The plaintiffs contend that their title to the lower half of the property is a valid prescriptive title. They take the position that they acquired this lower half of the property by prescription after it had passed from the state to private ownership and that their prescriptive title is a valid record title because the patent from the United States Government which included the land was of record. The plaintiffs under the contract were to furnish .the defendant a valid record title. However, if a prescriptive title was contemplated in the contract, this Court is in no position to pass on the question of the prescriptive title because the adverse parties in the conflicting chain of title are not parties to this suit and any decision we might render would not be binding on them. Praegner v. Kinnebrew & Ratcliff, 156 La. 132, 100 So. 247. The defendant cannot be compelled to accept a title to land upon which a claim rests and which is suggestive of future litigation. Marsh v. Lorimer, 164 La. 175, 113 So. 808.

The plaintiffs contend that the defendant is estopped from asserting any defect in the title because it was apprised of the fact prior to the execution of the agreement. They rely on Article 2557, Revised Civil Code; Werk v. Leland University, 155 La. 971, 99 So. 716 and Jennings-Heywood Oil Syndicate v. Home Oil & Development Company, 113 La. 383, 37 So. 1. This article of the Code and the cases cited are not applicable'to contracts of sale. The codal article relates to the suspension of the payment of the purchase price when the purchaser is disquieted in his possession until the seller restores him to quiet possession. No such question is at issue in this case.

The contract involved herein is' by authentic- act. Under the provisions of Articles 2236 and 2276 of the Revised Civil Code parol evidence is not admissible to contradict the written agreement and whatever information may have passed between the parties before the argument was reduced to writing and executed cannot be considered in the absence of any allegation of fraud or error.

The plaintiffs lay stress on the fact that the lower half of the property was to be conveyed without warranty. Irrespective of this stipulation in the' contract, the plaintiffs contracted to furnish the defendant a good merchantable title to the entire tract of land.

For the reasons assigned, the judgment is affirmed at appellants’ cost.

O’NIELL, C. J., takes no part.


author: M-cCALEB, Justice.

text:
    215 La. 754
    RHODES et al. v. COLLIER.
    No. 39009.
    Supreme Court of Louisiana.
    May 31, 1949.
    Rehearing Denied June 30, 1949.

      Blanchard, -Goldstein, Walker & O’Quin, Shreveport, and Taylor, Porter, Brooks & Fuller, Baton Rouge, for plaintiffs and appellants.
    G. P. Bu-llis, Ferriday, for appellee.
   M-cCALEB, Justice.

This is a possessory action. Mrs. Grace M. Rhodes is the owner of lot No. 27 of Ravenswood and Conseulo Plantations, as shown on a map of said plantations made by O. E. Fowler, C. E. which is 'recorded in the deed books of Concordia and Tensas Parishes. This lot is composed of a portion of Sections 26 and 27, all of Sections 28 and 29 and the northern portion of Sec■t-ion 30, Township Nine (9) North, Range Ten (10) East. 'Claiming possession of the above described tract, Mrs. Rhodes and her mineral lessees, The . California Company and Carter Oil Company, instituted this suit alleging that the defendant, Collier, has encroached on the northwest portion of Sections 27, 28 and 29 and that sometime subsequent to' April 1st, 1946, he constructed a 'fence thereon, thereby taking actual corporeal possession of the land.

Defendant admits the building of the fence but he claims that it is situated on the northwestern boundary of the lands possessed by' Mrs. Rhodes in Sections 27, 28 and 29 and he further contends that, at the time the fence was erected and for a long time before and continuously since, he has been in actual corporeal possession of the strip of land northwest of the fence. He denies all other claims of plaintiffs and particularly that they ever had possession of any land northwest of the fence.

The district court, after considering a mass of evidence (nearly 200 pages of testimony in addition to a volume of exhibits), found that plaintiffs had not proved their case' with reasonable certainty and dismissed the demand. Wherefore this appeal.

The undisputed facts of the case show that the property of Mrs. Rhodes, which was ¡carved out of the original Ravens-wood and Consuelo Plantations, comprising Sections 27, 28 and 29 of Township 9 North, Range 10 East, is bounded on the northwest by the lands of J. W. Brown and A. C. Ferrington, described in part as “all the fractional section 52 and the South Half of the fractional section 46 except * * * all being in Township 9 North, Range 10 East, containing 526 acres, more or less, known as the Luckett Plantation; * * *

Brown and Ferrington acquired the Luckett Plantation from Union Central Life Insurance Company in 1934. On October 13th 1945, Collier obtained a deed from Brown and Ferrington covering the following described property^ comprising approximately 20 acres:

“ * * * and a strip of land lying ■south of Sections 46, and 52, T. 9 N. R. 10 E., and being more particularly described as follows: Begin at a point which is South 55 degrees, 30 minutes west and a distance of 1046.6 feet from the corner common to Sections 27, 46 and 47; thence S. 46-15 W. following an old hacked and blazed line part of which -is along an old fence, a distance of 6078 feet, more or less; thence North a distance of 246 feet, more or less; thence N 46-15 E between Section's 28 and 52 a distance of 4190 feet, more or less, thence N. 46-15 E between Sections 28 and 46 a distance of 83 feet, more or less; thence N. 55-30 E. between Sections 27 and 46 a distance of 1553 feet, more .or less, to the place of beginning. * * *»

It 'is perfectly obvious, from the foregoing description, that the property conveyed by Ferrington and Brown to. Collier lies south and east of the division line of Sections 46 and 52 and Sections 27, 28 and 29. Being -bounded on the north and west by the division line between the properties comprising the Luckett Plantation and Mrs.' Rhodes’ tract, all of the -land conveyed to Collier is within the northern portion of Mrs. Rhodes’ -property, i. e., Sections 27, 28 and 29, and the -fence built by him on the southern boundary of the property described -in -the deed from Brown and Ferrington is situated on her land. Therefore,- since Brown and Ferrington admittedly had no title whatever to any land located.in Sections 27, 28 .and 29, it follows that their deed to- Collier conveyed nothing and that his entry upon Mrs. Rhodes’ land and seizure of possession, was unlawful.

We have mentioned these ¡self-evident facts at the outset because -the district judge denied relief on the ground that the evidence submitted by plaintiffs did not ¡establish with certainty the division line between 27, 28 and 29 and Sections 52, 53 and 46. The judge thought that because -there was a lack of unanimity in the expert evidence of the surveyors testifying ■for plaintiffs (that is, because Surveyor J. E. Heard disagreed with the findings of ■previous surveyors and also because Surveyor J. P. Sessions disagreed with the location of the division 'line found hy Heard), he was required to rely on secondary proof (testimony given by various woodcutters and others, who stated that there was an old land line blazed, hacked and marked with relics of fences which had been, recognized as a division -line of the Ravenswood and Luckett Plantations) to determine whether defendant was disturbing plaintiffs’ possession. And finding that this secondary evidence showed the division lines between Mrs. Rhodes’ property and .Brown’s and Fer-rington’s tract to be identical with the fence built by defendant, he concluded that plaintiffs did not prove their case.

We think that the judge 'fell into error in holding that plaintiffs failed to establish with certainty that defendant’s fence was encroaching upon their land, inasmuch as the testimony of plaintiffs’ experts clearly demonstrates that the line on which the fence has been erected by defendant is south of the division line between Sections 27, 28 and 29 and Sections 52, 53 and 46. And their evidence is fully confirmed by Mr. E. E. Scott (Civil Engineer and Surveyor), who made a plat of the lands in question for Brown and Ferrington at the time they purchased Luckett Plantation and who was called by the Court to give testimony. The fact that the surveyors are not in unanimity as to the exact location of the division line between the property of Mrs. Rhodes and that of Brown and Ferrington has but little, if any, bearing on plaintiffs’ right to relief inasmuch as all the probative evidence, including the deed under which defendant claims possession, discloses that the fence erected by him is situated on .Mrs. Rhodes’ land.

This is not an action in boundary but a possessory action in which plaintiffs were required only to establish possession of the land as owner for more than a year previous to the time of the disturbance; that the disturbance is real and that they have brought their suit within the year in which the disturbance took place. Articles 47 and 49 of the Code of Practice. All of these essentials are -present in the case at bar as plaintiffs have proven actual-possession of a part of the tract, which extended -civilly to all the land included within the boundaries as stated in the title deed of Mrs. Rhodes, Articles 3437 and 3498 of the Civil Code; Leonard v. Garrett, 128 La. 535, 54 So. 984 and -cases there cited, and disturbance of that possession by the trespass of Collier in erecting a 'fence upon the northwest portion of the -tract.

-Counsel for defendant proclaims that plaintiffs cannot rely -on the doctrine of civil possession because they allege in their -petition that they were in real actual and corporeal possession of all of the land included within the limits stated in the -title deed of Mrs. Rhodes; in other words it is claimed that there is a discrepancy between the pleading and proof.

We see no -merit in -this postulation. As long as plaintiffs have exhibited' proof of possession, actual or constructive, -and defendant’s disturbance, they are entitled to relief under the law notwithstanding their inability to establish actual physical -possession of the entire'tract.

Counsel also maintains that there is no proof that Mrs. Rhodes’ title, which is to ■lot 27 of Ravenswood Plantation as per survey of Fowler in 1926, extends beyond •the fence defendant erected in 1946 and it is -further contended that defendant has established corporeal possession of the land in controversy for many years which had the -effect of ousting the civ-il possession of plaintiffs, if such possession ever existed.

This argument is not impressive. As we -have already stated, plaintiffs have proved 'beyond any doubt that the title of Mrs. Rhodes extends to the division line of Sections 27, 28 an-d 29 and Sections 52, 53 and 46. The testimony of defense witnesses, -respecting evidence of the existence of -an established land line farther to the south and east than'the real division line set ‘forth in Mrs. Rhodes’ deed, cannot ¡benefit the defendant as he, a trespasser, is not in a position to assert that plaintiffs’ civil possession does not extend to the limits stated in Mrs, Rhodes’ title, which have been proven to be northwest of the fence erected by 'him. New Orleans Terminal Company v. Luckner, 147 La. 967, 86 So. 411. Being without color of title, defendant cannot defeat the possession of the ■record owner who has corporeal possession of a part other than by an adverse possession by inclosures. Ellis v. Prevost, 19 La. 251; Albert Hanson Lumber Co. v. Riggs Cypress Co., 130 La. 772, 58 So. 567 and Cray v. Grant Timber & Mfg. Co., 131 La. 922, 60 So. 617.

In addition to the prayer for restoration of possession, Mrs. Rhodes alleges that the defendant, by his willful and unlawful disturbance, has caused 'her great humiliation, embarrassment and inconvenience and that she is entitled to recover therefor the sum of $2500. She also prays for recovery of attorneys’ fees in the sum of $1000 and the other plaintiffs, The California Company and Carter Oil Company, ask for a similar award.

Mrs. Rhodes did not testify in the case or offer any evidence to support her claim for damages. Hence, recovery cannot be granted.

Insofar' as plaintiffs’ claims for attorneys’ fees are concerned, we entertain doubt that they are an actionable element of damage in a case like this. The ordinary rule is that attorneys’ fees are not recoverable in a civil action in the absence of statute or contract. Meraux & Nunez, Inc. v. Gaidry, 171 La. 852, 132 So. 401. An exception is made in conservatory writs where the defendant succeeds in having the writ dissolved on motion but not on defenses applicable to the merits. Edwards v. Wiseman, 198 La. 382, 3 So.2d 661 and cases there cited. Counsel for plaintiffs maintain that another exception exists in possessory actions and they cite, in support of their contention, Cooper v. Cappel, 29 La.Ann. 213; Williams v. Harmanson, 41 La.Ann. 702, 6 So. 604; Vidrine v. Vidrine, 14 La.App. 484, 130 So. 244 and De Graauw v. Eleazar, La.App., 24 So.2d 180.

' It was held in. Cooper v. Cappel and Williams v. Harmanson that, in a suit for damages on account of a trespass, the trouble and expense to which the plaintiff has been subjected are to be considered in -estimating the damages and that attorneys’ 'fees a-re properly part of such expense which may be proved even though not alleged. However, in those cases, it is apparent that little or no consideration was given to the general rulé that attorneys’ fees are not recoverable in civil actions as a reading of the opinions will disclose -that the Court simply assumed that an allowance for fees of counsel was proper.

But we do not find it necessary to determine in this case whether the doctrine of the Cooper and Williams cases 'should be followed as plaintiffs have npt offered -any proof to establish their claims. Although they aver that they wore required to employ attorneys to prosecute the suit -and that they have agreed to pay the attorneys $200 for handling the litigation, no evidence has been submitted in support of these -allegations. It is the well-settled jurisprudence that, even in cases where 'attorneys’ fees are allowed, absence of proof that the fees have actually 1 been paid, or an obligation incurred to pay, defeats recovery. Whitney-Central Nat. Bank v. Sinnott, 136 La. 95, 66 So. 551; Alfano v. Franek, 159 La. 498, 105 So. 598; General Finance Co. of Louisiana v. Veith, La.App., 177 So. 71 .and Burglass v. Villere, 170 La. 805, 129 So. 209.

The judgment appealed fr-om is reversed and it is now ordered that there 'be judgment in favor of plaintiffs and against the defendant restoring the full and complete possession to Mrs. Grace M. Rhodes, as owner, and to The California Company and Carter Oil Company, a s' lessees, of Lot No.. 27 of Ravenswood and Consuelo Plantations, as shown and described on a map of said plantations made by O. M. Fowler, C. E. and recorded in Deed Book “FF” page 254, records of Concordia Parish, Louisiana, and Deed Book “U”, page 405, records of Tensas Parish, Louisiana, and condemning and ordering the defendant to remove from plaintiffs’ property, at his expense, the 'fence erected thereon. The defendant is to pay all costs.

O’NIELL, C. J., does not take part.

       Proof of Mrs. Rhodes’ actual possession (for over a year prior to the disturbance) of Sections 27, 28 and 29 (except the northwest portion which has been fenced in by Collier) is not seriously disputed. In fact, it is admitted by Collier in his answer and is otherwise conclusively shown by the cutting of timber and exploration for minerals.

       The two cases of the Court of Appeal, viz., Vidrine v. Vidrine and De Graauw V. Eleazar, merely follow the rule laid down by this Court in the Cooper and Williams cases.

       Counsel for plaintiffs cite Baldwin, Executor, v. Carleton, 15 La. 394; Succession of Weil, 205 La. 214, 17 So.2d 255 and De Graauw v. Eleazar, La.App., 24 So.2d 180, as authority for their contention that attorneys’ fees may be recovered even though there be no proof of the value of the services rendered and plaintiffs’ liability therefor. This is true in probate matters where the attorney has performed services under the eye of the court and is seeking to have his fee fixed, and Baldwin, Executor v. Carleton may be said to be authority for that view. However, that adjudication and Succession of Weil are wholly without application to a case like this, where plaintiffs are seeking recovery of ■ attorneys’ fees as an item of damage which they have allegedly sustained. The Court of Appeal case of De Graauw v. Eleazar, relied on by counsel, is in discord with the jurisprudence of this Court, cited above.


author: McCALEB, Justice.

text:
    215 La. 767
    FROST LUMBER INDUSTRIES, Inc. v. HARRISON et al. (HARRISON, Intervenor).
    No. 39053.
    Supreme Court of Louisiana.
    May 31, 1949.
    Harvey G. Fields, Farmerville, for plaintiff-applicant.
    J. R. Dawkins, G. H. Holloway, Farmer-ville, for defendants-intervenor, and appellant.
   McCALEB, Justice.

This is an action for a partition of an eighty acre tract of land located in Union Parish which was acquired in 1901 by a colored man named Andy Harrison during the existence of his marriage with Mariah Harrison. Andy Harrison died intestate in 1905, being survived by his widow and several children. Upon his death, a one-half interest in the tract devolved upon Mariah, as widow in community, and she also became vested with the usufruct of the other undivided one-half which was inherited by the children from their father. On November 21st, 1913, Mariah Harrison sold, by warranty deed, her undivided one-half interest in the tract to Wallace Clark Mercantile Company. On November 30th, 1920, the Mercantile Company (a copartnership) conveyed the one-half interest to Frost-Johnson Lumber Company which subsequently became Frost Lumber Industries, Inc. The latter, on September 20th, 1946, alleging that it is owner of an undivided one-half interest in the tract, instituted this suit against the heirs and legal representatives of Andy Harrison to effect a partition by licitation.

The defendants resisted the demand by denying that plaintiff is their co-owner. They averred that the deed from Mariah Harrison (their mother and grandmother) to Wallace Clark Mercantile Company was never executed by her and that, therefore, she owns the land in indivisión with them. Mariah Harrison intervened, disclaiming plaintiff’s ownership by denying that she transferred her half interest in the tract to plaintiff’s vendor. Alternatively, she pleaded the prescription of thirty years, acquir-endi causa, alleging that, since October 21st, 1913 (the date of the deed to Wallace Clark Mercantile Company), she has remained continuously in actual corporeal possession of the tract as owner.

After a hearing in the District Court on the issues above stated, there was judgment for plaintiff and the intervention of Mariah Harrison was dismissed. She, alone, appealed to- the Court of Appeal .for the Second Circuit, where the judgment was reversed on the ground that Mariah Harrison had reacquired title to an undivided one-half interest in the land by prescription of thirty years adverse possession. See 35 So. 2d 832. We granted certiorari.

The primary contention of Mariah Harrison that she did not execute the deed in favor of plaintiff’s vendor was not sustained at the trial in the district court; it was abandoned in the Court of Appeal and her counsel have acknowledged here that it is no longer an issue in the case.

The Court of Appeal believed that, since Mariah Harrison remained in possession of the tract continuously from the date of the sale of her undivided one-half interest to plaintiff’s vendor, she had reacquired the interest by the prescription of thirty years. In support of its position, it was stated that the fact that Mariah sold her interest to plaintiff’s vendor with warranty did not preclude her from reacquiring a prescriptive title by adverse possession under the rulings of this Court in Roe v. Bundy’s Heirs, 45 La.Ann. 398, 12 So. 759 and Succession of Zebriska, 119 La. 1076, 44 So. 893. Therefore it concluded that, inasmuch as Article 3488 of the Civil Code provided that “ * * * a person is presumed to have possessed as master and owner, unless it appears that the possession began in the name of and for another”, the plea of prescription was well founded.

It is, of course, ordinarily true that one in possession of property is presumed to hold as owner. But this presumption does not obtain where it appears that the possessor has sold the property and has remained in possession by the sufferance of his vendee. Nor does the presumption apply to a case like this, where the vendor was entitled to retain precarious possession as usufructuary of her children, who were co-owners of an undivided one-half interest ,in the tract.

And while it is also well recognized in our jurisprudence that there is no legal obstacle which.prevents a vendor from reacquiring a prescriptive title to the property he has sold, Roe v. Bundy’s Heirs and Succession of Zebriska, supra (relied on by the-Court of Appeal), are cogent authority for the proposition that such a vendor, who has continued in possession following the sale, must establish as a fact that he possessed as owner — for, in the absence of any evidence other than his retention of physical possession, he will be regarded as a precarious possessor for his vendee. See Effie Dexter Arnold et al. v. Sun Oil Co. et al., So.2d-, No. 38,763 of the docket of this Court, handed down this day and authorities there cited.

But the conclusion here does not, perforce, depend upon the presumption that Máriah Harrison’s possession, following the sale of her interest to plaintiff’s vendo-r, was a precarious possession for her Vendee. This is because she, as usufruc-tuary of her children, was entitled to remain in physical possession of the tract until such time as her title as such was divested by a partition initiated by her vendee. Prior to the sale, she possessed in a dual quality, i. e., as owner of an undivided -one-half interest and, precariously, as usufructuary of her children. When she sold her undivided one-half interest, her physical possession remained unchanged but the quality of that possession was converted from its duality of owner and usufructuary to that of merely usufructuary. In these circumstances, she could not acquire by prescription as an adverse possessor without some overt act or notice by which her vendee could become apprised of the change in her quality as a precarious possessor.

In John T. Moore P. Co. v. Morgan’s Louisiana & T. R. & S. S. Co., 126 La. 840, 53 So. 22, 34, the Court was confronted with the question of whether the owner of a servitude of right of way could acquire by the prescription -of ten years, under a title from a third person, the property from the record owner without notice to the latter that he was no longer possessing precariously. In holding in the negative, the Court said:

“The precarious possessor who acquires a title from a third person, and desires no longer to hold precariously but animo dom-ini, cannot content himself with simply continuing the old possession, without outward change, and rely simply upon the bare fact of his new title and of its registry to inaugurate a new possession. He must give some outward sign, of a nature to let the owner know of the intention to put an end to the old order and inaugurate the new. On this point the French commentators are agreed.”

See also quotation from the Moore case contained in the opinion in Effie Dexter Arnold v. Sun Oil Co., supra, this day handed down and Liles v. Pitts, 145 La. 650, 82 So. 735.

Thus, in the case at bar, since Mariah Harrison, as usufructuary, was entitled to retain possession of the tract as long as her children and her vendee remained as owners in indivisión, a presumption arose that her continued possession was precarious and she could not commence the running of prescription as an adverse possessor in the absence of an affirmative act on her part communicating to -her yendee that her possession thenceforth would be in the quality as owner. It is not pretended or claimed here that there was any change in tlie quality of her possession and, hence, the plea of prescription of thirty years is not well founded.

The judgment of the Court of Appeal is therefore reversed and it is now ordered that the decree of the District Court be reinstated and affirmed.

O’NIELL, C. J., does not take part.

PONDER and MOISE, JJ., concur.

       During the pendency of the matter here, Mariah Harrison died. Her legal heirs and representatives have been substituted as parties in her place and stead in conformity with the rules of this Court.

       Counsel for plaintiff argues that the evidence does not sustain Mariah Harrison’s possession. We, however, agree with the Court of Appeal that the proof amply establishes her actual corporeal possession.

       In Roe v. Bundy’s Heirs, 45 La.Ann. 398, 12 So. 759, it was held that, since Article 2475 of the Civil Code imposed upon the seller the obligation of delivery and Article 2468 obliged him to guard the thing as a faithful administrator until delivery, it was inescapable that, during the interval between sale and delivery, the detention of the vendor was that of his vendee and that the vendor’s possession was precarious.

       Rehearing pending.

       The usufruct of the undivided one-half of the tract became vested in Mariah Harrison at the death of her husband under Article 916 of the Civil Code providing that the surviving spouse shall hold in usufruct “during his or her natural life, so much of the share of the deceased in such community property as may be inherited by such issue. This usufruct shall cease, however, whenever the survivor shall enter into a second marriage.”


text:
    215 La. 776
    PLAUCHE et al. v. ALBERT.
    No. 39024.
    Supreme Court of Louisiana.
    May 31, 1949.
    Rehearing Denied June 30, 1949.
    George S. Womack, Kemble K. Kennedy, Durrett & Hardin, Baton Rouge, for defendant and appellant.
    De Blieux & Hinton, Baton Rouge, for plaintiffs and appellees.
   PONDER, Justice.

The defendant, the owner of a lot of ground located in North Goodwood, a subdivision located in the Parish of East Baton Rouge, has appealed from a judgment enjoining him from using a' building located thereon for any other purpose than a single family dwelling or a garage located not nearer than seventy-five feet from Donmoor Avenue as provided in the building restrictions of the subdivision.

On examination of the record, we find no affirmative showing to vest this Court with jurisdiction. There is no affirmative, allegation or proof that the amount in controversy or the right in contest exceeds the value of $2000.00, exclu-: sive of interest. Under the plain provisions of the Constitution, the amount in dispute must exceed $2000.00, exclusive' of interest, to vest this Court with jurisdiction. Article 7, Paragraph 10 of the Constitution of 1921. The amount in dispute as used in the Constitution includes within ■its meaning the value of the thing in contest, where a thing, instead of an amount, is in dispute. Baker v. Duson, 192 La. 391, 188 So. 40. We cannot entertain the appeal even though no - motion to dismiss has been made for the reason of our lack of jurisdiction. Nelson v. Continental Asphalt & Petroleum Co., 157 La. 491, 102 So. 583.

Under the provisions of Act No. 19 of 1912, we are authorized to transfer the appeal to the proper court rather than dismiss it.

For the reasons assigned, this case is ordered transferred to the Court of Appeal for the First Circuit, provided the appellants file the record in that court within thirty days from the date that this decree becomes final; otherwise, the appeal shall be dismissed. The appellants to pay the cost of the appeal to this Court and all other costs aré to await the final disposition of the cause.

O’NIELL, C. J., takes no part.


author: HAMITER, Justice.

text:
    215 La. 779
    STATE ex rel. CHEHARDY et al. v. NEW ORLEANS PARKWAY COMMISSION et al.
    No. 39385.
    Supreme Court of Louisiana.
    June 9, 1949.
    Henry B. Curtis and Charles E. Cabibi, New Orleans, for defendants-appellants.
    M. E. Culligan, Chehardy & Werhan, New Orleans, for plaintiff-appellee.
   HAMITER, Justice.

Defendants herein, the City of New Orleans and one of its agencies, the New Orleans Parkway Commission, are appealing from a judgment which decreed to be unconstitutional, null and void Section 8 of Municipal Ordinance No. 14098, Commission Council Series, adopted April 3, 1934, and which, additionally, ordered them (under a writ of mandamus) to issue to re-lators, Lawrence A. Chehardy and James J. Young, Jr., a permit to remove two certain oak trees to which reference is hereinafter made.

In their petition for the writ of mandamus relators alleged that they are the owners in indivisión of property located at the corner of Canal and South Bernadotte Streets, in the City of New Orleans, designated as “E” Commercial according to the municipal zoning plan; that the Texas Company has agreed to -purchase the property for the purpose of constructing thereon a service station; that the agreement to purchase is contingent upon the securing of the necessary permit to remove two oak trees, located between the concrete sidewalk and the curbing on the Canal Street side of the property, which impede the construction of driveways or ramps; and that the New Orleans Parkway Commission, in refusing to issue the removal permit, has grossly abused, and illegally and arbitrarily exercised, the discretion vested in it. Alternatively, relators specially pleaded that Municipal Ordinance No. 14098, -Commission Council Series, which created the New Orleans Parkway Commission, is unconstitutional for several assigned reasons.

The alternative special plea was sus7 tained in part by the district court,. its judgment, as shown above, having decreed to be unconstitutional, null and void the ordinance’s Section 8 which reads: “Be it further ordained, etc., that no person or corporation shall without the written permit of the Parkway Commission cut, prune, break, climb, injure or remove any living tree in a public highway; or cut or disturb, or interfere in any way with the roots of any tree on a public highway; or spray with any chemicals or insecticides; ’-or whitewash any tree in a public highway; or place any wire, rope, sign, poster, or other fixture on a tree or guard in a public highway, or injure, misuse or remove:any device placed to protect such tree on a public highway.”

Obviously, the appeal here is solely pursuant to that provision of Section 10 of Article 7 of the Louisiana Constitution which vests appellate jurisdiction in this court “ * * * in all cases wherein an ordinance of a parish, municipal corporation, board, or subdivision of the State, or a law of this State has been declared unconstitutional”; the record contains no affirmative showing which would permit our entertaining it otherwise.

Subsequent to the filing of the transcript of appeal counsel for all parties, by a joint motion and as authorized by Section 8 of Rule IX of the Supreme Court rules, submitted the case on. briefs without oral argument.

In their brief counsel for appellants nowhere present or discuss the issue of the unconstitutionality of the ordinance, and, under these circumstances, we are warranted in assuming that they have abandoned that issue. Their position here, to quote from their brief, is as follows:

“If the judgment declaring Section 8 of the ordinance to be unconstitutional is correct, we must then conclude that there is no existing ordinance under which any department or division or agency of the city government has the authority to either regulate the removal of trees within the City of New Orleans or to grant or not grant permits for the removal thereof. Assuming therefore that the judgment is correct, we must consider then who is the owner of the trees in question and the ground on which the said trees grow. The facts and evidence are undisputed.
. "The .trees were planted on city owned property in the area between the sidewalk and the street. The. plaintiffs certainly cannot claim ownership of this portion of ground as it forms part of the street area. The trees ■ have been there beyond the knowledge of any of the parties, or of the witnesses, and were there in their same location-at the time of the purchase of the property by plaintiffs; The law, as to ownership of the trees on city. streets is absolute in favor of the City.
^
“The said section is the only source of authority granted to the Parkway Commission to permit the removal of trees from the public: highways and if this section is unconstitutional, null and void, then the said Parkway Commission . is without authority to act .in any way on plaintiffs’ application. Therefore, since the City of New Orleans as a corporate body owns .the trees sought to be removed and since the City .as. such can only act through the Commission Council and since no application has been made to the Commission Council nor has any request ever been submitted to the said Council for its study and action, the relators have no right to a mandamus against the Commission Council ordering it to do an act which, in itself, is an exercise of the police power of the said City.
******
“We may go further in argument on the matter of the mandamus ordering, the City of New Orleans to issue a permit by arguing that there is no showing in the evidence that the Commission Council of the City of New Orleans in any way acted arbitrarily and capriciously in this matter. The facts are that no application has ever been made with the Commission Council. If, on the other hand Section 8 of the said ordinance is not unconstitutional and application was properly made to the Parkway Commission, then from the testimony taken in Court there is no showing of fact that the action of this Commission was either arbitrary or capricious. * * * ”

When a case is appealable to this court solely because a law or ordinance has been declared unconstitutional, our inquiry is limited to that specific issue. With questions unrelated theréto we have naught to do; consideration of them is for the court otherwise having jurisdiction of the case. Louisiana Society for Prevention of Cruelty to Children v. Moody, 52 La.Ann. 1815, 28 So. 224; State v. Pearson, 110 La. 387, 34 So. 575; City of New Orleans v. New Orleans Butchers’ Co-op. Abattoir, Inc., 153 La. 536, 96 So. 113; State v. Louisiana Railway & Navigation Company, 153 La. 816, 96 So. 667. Of the latter kind are the questions argued here by appellants’ counsel.

For the reasons assigned it is ordered that this case be transferred to the Court of Appeal for the Parish of Orleans, pursuant to the provisions of Act No. 19 of 1912, provided that the appellants shall file the record in such court within thirty days from the date on which this decree shall become final; otherwise the appeal shall stand dismissed.

O’NIELL, C. J., does not take part.


text:
    215 La. 785
    LAWRENCE v. CLAIBORNE.
    No. 38694.
    Supreme Court of Louisiana.
    June 30, 1949.
    Joseph Rosenberg, New Orleans, for plaintiff-appellant.
    ' Charles E. de la Vergne, New Orleans, for defendant-appellee.
   McCALEB, Justice.

Plaintiff seeks to be declared owner of certain real estate in the city of New Orleans, bearing municipal number 3521 Melpomene Street. She avers that her late husband, Thomas Hazlet, was the record owner of the property on and bef ore January 11th 1929; that, being unable to pay the mortgage thereon amounting to $2,500, he made an arrangement with defendant to place the property in his name with the understanding that defendant would thereafter collect the -rents and apply the proceeds to the 'liquidation of the mortgage and that, upon -its payment in full, defendant would reconvey the property to him; that, in conformity with this agreement, her husband conveyed the property to the Liberty Homestead for a recited consideration of $2,500 and, on the same day, the homestead transferred it to the defendant; that defendant has collected all of the rents since the date of his acquisition; that the amounts received have been more than sufficient to liquidate the mortgage indebtedness and that, therefore, he should ¡be ordered to transfer the property to her.

Defendant excepted to the petition on the ground that plaintiff was without a right or cause of action to attempt establishment of title either by parol or by evidence dehors the authentic act, under which he acquired. Articles 2236 and 2276 of the Civil Code.

This exception was maintained but the judge gave plaintiff leave to amend the petition by alleging, if she could, a counter-letter or other lawful writing in support of the agreement 'between defendant and her husband. Conformably, plaintiff filed a supplemental petition in which she stated that defendant had acknowledged in writing that he was the agent of her late husband and that he 'had delivered to Hazlet a memorandum book (attached to the petition) showing rental payments, taxes paid, commissions charged by him and balance due on the loan.

Defendant thereupon excepted to the supplemental petition on the same ground upon which ‘his original exception was predicated. Simultaneously, however, he filed an answer in which he denied plaintiff’s allegations and set forth that plaintiff’s husband had called at his office and offered to sell him the property as the mortgage holder was about to foreclose; that he agreed to purchase the property and the Liberty Homestead, on account of his established credit rating, consented to lend him $2,500 for that purpose (plaintiff’s husband was unable to obtain the loan); that, accordingly, on January 11, 1929, he acquired the property by authentic act from the homestead immediately following the transfer by plaintiff’s husband; that, subsequently, Hazlet sought to repurchase the property and that he verbally consented to resell it for a $200 profit, provided .Hazlet would make the homestead payments, pay the taxes, insurance, repairs, water bills, rent commissions, etc., and provided, further, that, if Hazlet should fail to comply with these obligations during any one month, the agreement would be cancelled and that, shortly after the agreement was made, Hazlet defaulted, thus terminating the understanding. ‘:

The matter was thereafter fixed -for trial and, on the day of the hearing, counsel for defendant objected to the reception of any evidence on the ground that plaintiff’s petition, as- supplemented, failed to state a -cause of action. The exception was sustained and the suit dismissed. Hence this appeal.

In this court, plaintiff’s counsel argues that the pleadings and written documents attached thereto exhibit that defendant was acting merely as agent for Hazlet and that the title to the property was placed in defendant’s name for convenience only.

This proposition cannot be sustained as it, of necessity, ignores the unbroken rule of law in this state, set forth in Franton v. Rusca, 187 La. 578, 175 So. 66, 68, " * * that, in the -absence of any allegation of fraud or error, conditions, and stipulations beyond those expressed in an' authentic act, and what may have been said before, or at the time -of, or since the execution thereof, can be proven only by means of a counter-letter or by the use of interrogatories on 'facts and articles. Locascio v. First State Bank & Trust Co. of Hammond, 168 La. 723, 123 So. 304; Plaza Amusement Co. v. Frank Rubenstein & Co., Inc., 163 La. 272, 111 So. 702; Glover et al. v. Abney et al., 160 La. 175, 106 So. 735; Harris v. Crichton, 158 La. 358, 104 So. 114; Rev.Civ.Code arts. 2236 and 2276”.

Counsel also claims that the allegations of defendant’s answer show a promise to reconvey the property and that the condition 'contained in that verbal agreement was void.

In this contention, counsel again, seeks avoidance of the parol evidence rule. We cannot take cognizance of the recitals of defendant’s answer unless the answer is to be regarded as a response to interrogatories on .facts, and articles. But, if it be considered in this light, it would avail plaintiff nothing as the answer sets forth that defendant is the true owner of the property; that he made a verbal agreement to resell it to Hazlet on special terms and that the latter defaulted. Plaintiff would be bound by this answer, as its recitals would not be subject to contradiction. Article 2275 of the Civil Code; Fontenot v. Ludeau, 191 La. 540, 186 So. 21; Harvey v. Richard, 200 La. 97, 7 So.2d 674.

The judgment appealed from is’ affirmed.

O’NIELL, C. J., takes rio part.

       She alleges that she has succeeded to the rights of her late husband, having been placed in possession of his succession.

       Defense counsel declares that the answer was filed because defendant felt that his honor and integrity were questioned in this suit.

       See also Ceromi v. Harris, 187 La. 701, 175 So. 462; Scurto v. LeBlanc, 191 La. 136, 184 So. 567 and Cernich v. Cernich, 210 La. 421, 27 So.2d 266.


author: HAMITER, Justice..

text:
    215 La. 791
    Succession of VALDEZ. Succession of BIANCHI.
    No. 39075.
    Supreme Court of Louisiana.
    June 30, 1949.
    Connolly & Simoneaux, New Orleans, for plaintiffs-appellants.
    Prowell & Viosca, Arthur . C. Reuter, New Orleans, for defendants-appellees.
   HAMITER, Justice..

.The principal issue tendered by this litigation is whether certain real property purchased in the name of Mrs. Anna Valdez Bremerman Bianchi during her . marriage with Charles Bianch'i belonged to the wife’s separate estate or to the community which existed between the spouses.

Following the death of Mrs. Bianchi in 1947 (Mr. Bianchi died- previously), her two children of a former, marriage with Bernard J. .Bremerman; Sr., . deceased, namely, Mrs. Alvina Bremerman Bright and Bernard J. Bremerman, Jr., instituted an action (in the. succession proceedings of. their mother) demanding mainly that they be adjudged the sole owners of the above mentioned real property. They alleged that the property, the present worth of which is approximately $8,000,. belonged to their mother’s separate estate, it having been purchased by her with separate and páraphernal funds derived from the estate .of her first husband.

Made defendants and cited in the action were Mrs. Palmyre Bianchi Furlong-and C. A. Bianchi, children of- Charles Bianchi, deceased, and a former wife, Mrs. Amelie Fougere. Answering, defendants averred that the property belonged to the community of acquets and gains that existed between their, father and stepmother, and they prayed for judgment decreeing them to be the owners in indivisión of a one-half interest therein as heirs of their father.

Subsequently, in another succession proceeding, C. A. Bianchi filed an application for appointment as administrator of his deceased father’s estate and, in connection therewith, prayed for the taking of an inventory. Under an order of court the inventory was taken on November 24, 1947, in which the real property in question was listed and described. Therein, also, it was appraised at $3,500, the undivided one-half interest of Charles Bianchi, deceased, being worth $1,750. Further, in due course, C. A. Bianchi was appointed administrator of his father’s succession.

Inasmuch as the mentioned two succession proceedings involved a dispute over the same property, the court ordered them consolidated and the ownership claims therein tried together.

After a trial the, district judge concluded, as his assigned written reasons disclose, that the evidence was insufficient to support the allegations of plaintiffs that the property belonged to their mother’s separate estate. Accordingly, he rendered judgment decreeing it to be community property, and recognizing plaintiffs as being entitled to a one-half interest therein and the defendants to the other one-half. From the judgment plaintiffs appealed.

Clearly this court has no jurisdiction of the appeal. In dispute is only the undivided one-half interest in the property to which defendants assert ownership as heirs of their father, the other one-half admittedly ■having been- inherited by plaintiffs from their mother; and such interest, as shown by the inventory taken in the succession proceedings of Charles Bianchi, deceased, is valued at $1,750. For this court to .entertain jurisdiction in cases of this kind the value of the thing in dispute must exceed $2,000. Article 7, Section 10, Louisiana Constitution of 1921. True, the petition of plaintiffs alleged that the entire property is worth approximately $8,000; but their allegation must yield to the appraisement contained in the formal inventory taken by order of court. And there is no other proof in the record contradictory of that appraisement.

For the reasons assigned it is ordered that this case be transferred to the Court of Appeal for the Parish of. Orleans, pursuant to the provisions of Act No. 19 of 1912, provided that the appellants shall file the record in such court within thirty days from the date bn which this decree shall become final; otherwise, the appeal shall stand dismissed.

O’NIELL, C. J., takes no- part.


author: KENNON, Judge.

text:
    STEPHENS v. BULKLEY et al.
    No. 7344.
    Court of Appeal of Louisiana. Second Circuit.
    June 30, 1949.
    Rehearing Denied Aug. 16,1949.

      Hussey & Smith, Shreveport, for appellants.
    Campbell & Padgett, Benton, Wallace & Stinson, Benton, for appellee.
   KENNON, Judge.

Plaintiff alleged that he purchased a forty acre tract of land from defendants on September 27, 1937; that he completed payment for same on November 27, 1943 and that the defendants had slandered his title by the recordation of a mineral lease on December 29, 1943 in favor of one J. R. Hayden, and signed by defendants, and further by the recordation, on December 30, 1943, of a cash deed signed by defendants, purporting to convey the property in question to plaintiff but reserving to defendants an undivided one-half interest in all the minerals in or under the property.

. Plaintiff prayed that defendants be ordered to assert such rights as they might have to the property; for judgment ordering the cancellation of the title of defendants to the one-half mineral interest and for $500 in damages.

Defendants, after their exception of no cause or right of action was overruled, filed an answer admitting the execution of the instrument dated September 27, 1937, but denied.that any title to the land was conveyed or intended to be conveyed. ' Defendants admitted the recordation of the lease on December 29, 1943 and the execution and recordation of the cash deed and asserted that the reservation was made in accordance with the understanding reached with plaintiff at the time a delayed payment on the September 27, 1937 instrument was received from plaintiff on May 2, 1942.

Defendants further asserted that plaintiff accepted the cash deed, containing the mineral reservation complained of in his petition, and either filed same for record or caused it to be filed for record, and pleaded this acceptance as a bar to any contention by plaintiff that defendants were not the owners of the undivided one-half mineral interest therein reserved to them.

Defendants prayed that the demands of the plaintiff be rejected and that there be judgment in their favor, as plaintiffs in reconvention, decreeing them to be owners of an undivided one-half mineral interest in the property described in the petition.

The District Court held that the instrument dated September 27, 1937 conveyed title to the property. Plaintiff’s objection to oral testimony offered by defendants to prove the May 2, 1942 delayed payment was received on condition that defendants would reserve one-half the minerals was' sustained and judgment was rendered recognizing plaintiff as owner of the tract in controversy and decreeing the cash deed recorded December 30, 1943, with mineral reservation, to be null and void. Defendants appealed.

The instrument attached to plaintiff's petition and described as his deed to the land reads as follows:

“Shreveport, Louisiana
“Sept. 25, 1937.
“State of Louisiana,
“Parish of Caddo,
“Received from Jake Stephens, resident of Bossier Parish, Louisiana, Seventy ($70.-00) Dollars, representing the first of six annual payments of Seventy Dollars each, to apply on the purchase of a tract of land in Bossier Parish, containing forty acres, being: All that part of the Southeast (SE14.) Quarter of Southeast (SE^,) Quarter and fractional Northeast (NE14) Quarter of Southeast (SEJ4) Quarter sufficient to make forty acres lying East of the present public road from Midway to Rocky Mt. all- in Section Six, Twp. Twenty North (20 N.) Range
Twelve (12 W.) West, Bossier Parish, Louisiana.
“The total consideration for this sale is Four Hundred Twenty Dollars ($420.00) including carrying charges..
“Estate of L. C. Bulkley
“Signed By, — Ralph B. Eglin
“Ralph B. Eglin
“Agent.”
Plaintiff did not make any further payment on the land until May, 1942, but did on the dates shown on each, make the payments represented by the following receipts :
“May 2nd, 1942
“Received from Jake Stephens Seventy dollars constituting the second payment on 40 acres in Section 6 T 20 R 20, Bossier Parish, Louisiana.
Contract of sale dated Sept. 25, 1937.
“Total consideration . $420.00
‘‘Total Paid to date. 140.00
“Balance due . $280.00
“Signed — Ralph B. Elgin
“Agent
“Estate of L. C.
“Bulkley.”
“10-9-1943
“Received from Jake Stephens seventy dollars representing third, payment in like amount received on purchase price of that part of the SE}4 of SEi/J. lying East of the public road from Midway to Rock Mount in Sec. 6 T 20 R 20 Bossier
Parish, La.
“Total consideration . 420.00
“Paid to date. 210.00
“Balance due . 210.00
“Signed — Bulkley Estate
“ “ Ralph B. Eglin.”
“11-27-1943
“Received of Jake Stephens $210.00 being balance, on contract of sale for 40 acres in Bossier Parish.-
“Signed — Bulkley Estate
“ “ Ralph B. Eglin.”

Some twenty-four days after the last payment was made, defendants’ agent received, through the mails, the following letter :

“Benton, La.
“Dec. 21, 1943.
“Mr. Ralph B. Eglin
“Dear Sir.
“I paid a note on my land on Nov. 27 and you told me you were going to send me • my deed within a few day. But I have not received it yet.
“Thanking you for to send- it.
“Jake Stephens
“Rte. 1, Bx. 73
“Benton, La.”

On December 22, 1943, the day' Mr. Eglin received the above letter, plaintiff came to Mr. Eglin’s Office in Shreveport, where a -standard form ea-sh deed, covering the tract, and containing the reservation of the one-half mineral interest, was prepared and delivered to plaintiff. Plaintiff testified that he received this deed through the mail, -but the testimony is convincing that this deed was delivered to him in Mr. Eglin’s office. On December 30th plaintiff took this deed to Benton and paid for its filing and recordation at the Recorder's Office.

Paragraph one of plaintiff’s .petition recites that he purchased the land in question from defendants on September 27, 1937, “all of which will be more fully shown by that certain -deed recorded in 'Conveyance Book 132 at page 452 of the Conveyance Records of Bossier Parish, Louisiana, a -certified copy of said -deed annexed hereto and made -a part hereof.” The document ■so referred to as a deed is the instrument of -that date reproduced above.

The only language in the instrument, ■described by plaintiff as a deed, which refers to a transfer or sale of property is the last sentence, which reads: “The total consideration for this sale is Four Hundred Twenty Dollars ($420.00) including carrying charges.” Counsel for plaintiff contends that this language places the present case within the same category as the case of Saunders v. Bolden, et al, 155 La. 136, 98 " So. 867; The instrument relied upon in the Saunders case is short and reads. as follows: “ ‘This is to certify that I have sold ¡the Judie Lewis place to Abe Bolden; and he has 10 years to pay for same; $50 per year.’ ”

The two instruments are alike in that neither is signed by the purchaser, hut unlike inasmuch as the document relied upon'by Bolden contains the statement by the owner in so many words that he had sold the Judie Lewis place and provided no basis for a holding — or even a contention- — that the document was in the nature of a contract of sale to be concluded at a -later daté. The use of the past tense “have sold” makes it plain that the document was not a recordation -of a promise to sell in ■the future a-s ¡is true in the ¡receipt signed by defendants’ agent on September 25, 1937.

The receipt relied upon by Stephens contains two -sentences and the meaning ol -the instrument can only be -gained ;by a -reading of the whole instrument, each of the sentences being explanatory of the other.

The first sentence refers to six annual payments of $70 each. The second sentence has the -effect ¡of naming the total of these six payments and to include- the stipulation -that the payments included carrying charges. The meaning ¡intended to be -conveyed by the -second sentence— when read in connection with the first sentence — -would, -not have been changed had the word “contemplated” ¡been used before the word “sale.” In any event, -the document contains no words conveying title or -statement that the 1-a-n-d was sold.

The instrument before us is somewhat similar to the -document signed 'by defendant Cheramie and considered by the Supreme Court in the case of Terrebonne v. Cheramie, 151 La. 929, 92 So. 388. The case was appealed ¡to the Court of Appeal for the First -Circuit, which in turn -applied to the Supreme Court ¡for instructions “as to the force and effect -of -the following receipt, issued by defendant to plaintiff, when the -latter paid t-he former $100, viz.:

“Cut Off P. O., La;, 11/3, 1919. Received the sum -o-f $100.00 one hundred -dollars, ■paid on account on -house and land and everything thereto attached, sold for the sum of $500.00. Delivery M-ar. 1, 1920. To Dominic Terrebonne. (Signed) Herve •Cheramie. Witnesses; (Signed) Louis Gaidrai. Herbert Terrebonne.”

The Supreme -Court answered: “Our -answer to the main- question is that the document, on -its face, represented nothing more than a promise to -sell -and -a ¡receipt for $100 as earnest money.”

In discussing the -case ¡further, the Supreme Court noted that -the purpose and effect -of the instrument must be tested with regard to the rights ¡and obligations of the promisee, as well as with regard to the rights and obligations o-f the promisor, and noted -that the instrument did not obligate the promisee to pay the balance of the purchase -price or -to buy the property and that all he -stood to lose was “the $100 that he h-a-d paid.”

In ¡the case -of Davi-s v. McCain, 171 La. 1011, 132 So. 758, the Supreme Court of Louisiana -held that a document in the ¡form of -a receipt for $1,000, “same -being a part of the purchase price on Trilby Plantation” and which further ¡recited the time of payment, terms, etc. o-f a to-al -purchase price, coupled with -the delivery of a -second receipt for $4,000 described as “-additional payment on the purchase price of the Trilby ■plantation” did -not -constitute a sale ¡of the plantation, noting that the two instruments “constituting the -agreement between the ■parties, show that th-e instruments are not translati-ve of ownership, but that they -evidence -an intention -to -transfer title by a deed -to be ¡passed on a future day.”

The Davis opinion contains the following quotation, with approval, from the case of Trichel v. Home Insurance Co., 155 La. 459, 99 So. 403: “ ‘Our conclusion is that any agreement for the sale of real estate, which is not intended to be ¡the final writing between the -parties, but, ¡on -the -contrary, to ¡be followed by another -and final deed, is -a mere promise of sale and not a sale, and does not transfer ¡the title to said property; unless -it -clearly -appear -that the parties contemplated that the new deed -should be only -a -confirmation of the first, -and -not -indispensable for the transfer of title.’ ”

In the case of Ober v. Williams, et al., 213 La. 568, 35 So.2d 219, 221, the Supreme -Cour-t again held that a written -instrument does not convey title to real estate when it contains no 'language directly conveying title and when a reading of the instrument shows that a subsequent deed is intended by the parties. In the Ober case, the instrument signed by the ownér contained a description of the property upon which the prospective purchaser agreed to erect a three room dwelling house and later to make six annual payments. There the Court held that such an agreement “is nothing more or less than a promise to 'sell and purchase which did not effect a restr-ospec-tive transfer of ownership to White by his performance of its conditions. On the contrary, fulfillment of the conditions of the contract vested only in each party a right to enforcement by specific performance under Article 2462 of the Civil Code.”

In the Ober case, the Supreme Court reviewed the jurisprudence and quoted the following from the case of Peck v. Bemiss, 10 La.Ann. 160: “ ‘This reciprocal promise of sale did not make Peck the owner of the land. It gave him only the right of becoming so at a future time. It created in his favor an obligation binding upon. Over-ton, and by which, if he refused voluntarily to comply, he could be judicially constrained to a specific performance or subjected, if he had put it out of his own power to comply, to an action for damages. Until- a voluntary or forced execution of the promise, the ownership did not pass to Peck.’ ”

It might be argued that, although the 1937 receipt had not the effect of transferring title, yet when plaintiff complied with the condition, namely, paying the balance of $420, such a compliance had a retrospective effect, under Article, 204b of the Civil Code, to the day the 1937 contract was executed. This argument, is answered by the Supreme Court in the Ober case, -supra, ’with a- statement that. the language of Article 2041 “merely means that the rights of the obligor, upon compliance, revert to the date of the contract but it offers no foundation for an argument that, in cases involving contracts to sell ■and purchase immovable property conditioned upon the happening of an event or the doing of certain things, the ownership is transferred retroactively by the performance of the condition. ' On' the contrary, compliance with the condition only renders the contract executory; makes the reciprocal promises absolute and establishes the rights and liabilities of the parties as of the date of the .agreement.”

The above authorities confirm us in the conclusion- that the September, 1937 document is not a -deed -and did not-vest ■title in the plaintiff, as w-as alleged in the petition. Since the petition -and ¡attached documents fail to disclose title in plaintiff, •the exception of no cause or right of action should have been sustained. However, the case has been tried and we have concluded to pass on -the merits.

The -record shows that the property remained assessed to defendants until after the -execution of the December, 1943 deed, indicating that neither plaintiff nor defendants considered that ownership _ was transferred by the 1937 receipt. The fact that plaintiff, when he completed the payment -of $420, asked for, received,, and caused to be recorded a -deed in regular ¡form, indicates that he did not, -consider the 1937 receipt as a conveyance of title.

An examination of this instrument and our study of the -subsequent -action of the parties as disclosed by the record lead us to the conclusion that the -above quoted instrument -did not -convey to plaintiff title to the -land described.

The judgment appealed from is voided and judgment is now rendered rejecting plaintiff’s demands at his costs.'