source: Caselaw Access Project

author: HAMITER, Justice. McCALEB, Justice

license: Public Domain

text:
    215 La. 939
    MALONE v. CANNON.
    No. 39027.
    Supreme Court of Louisiana.
    May 31, 1949.
    Rehearing Denied June 30, 1949.

      Herold, Cousin & Herold, Chandler, Lunn & Frichel, Shreveport, for defendant-appellant.
    T. B. Wilson, W. M. Phillips, Shreveport, Tor plaintiff and appellee.
   HAMITER, Justice.

In this action plaintiff, Henry H. Malone, claims from the estate of Mrs. Myrtle Cannon Malone, deceased, the marital fourth provided for in Revised Civil Code, Article 2382. Mrs. Sybille Cannon, the mother and universal legatee of decedent, is the defendant.

Plaintiff and the decedent, as the record discloses, were married on November 22, 1935. Into the marriage she brought no dowry. As man and wife they resided together in Shreveport until August of 1936, or for about nine months, when a separation occurred. Thereafter, they lived separate and apart continuously. The wife died on January 28, 1946, leaving no children.

During that entire period of separation (almost ten years) Mrs. Malone was employed in the Shreveport Post Office, receiving an annual salary of $2300 plus overtime payments, and she lived with her mother, the defendant herein. With earnings from her mentioned employment she made various investments, and, as a result thereof, she owned at her death real and personal property, conceded to belong to her separate estate, having a net inventory value of approximately $38,000. By an ex parte judgment, and in accordance with the provisions of her daughter’s will, defendant was placed in possession of all of the property.

Meanwhile, in 1939, about three years after the occurrence of the separation (August, 1936), the plaintiff suffered what is referred to as a stroke, and thereafter, according to his testimony, he worked intermittently. In the early part of 1943 he moved from Shreveport to California where he secured employment first as an electrician and later as a hotel clerk. At the time of Mrs. Malone’s death in January, 1946, he occupied the latter position, receiving for his services $12 per week plus his room and board; he owned no property. In the early part of 1947 he returned to Louisiana, making his home with his brother at Logansport.

Plaintiff and decedent were never divorced. On the trial of this case, however, the defendant sought to prove that her daughter on August 11, 1936, immediately following a severance of the marital relations, instituted against this plaintiff a suit (it never went to judgment) for separation from bed and board charging him with cruel treatment, and also to prove that the allegations of fact in the petition of that suit were true. In this connection defense counsel offered in evidence the record of the mentioned suit, being No. 69,439 on the docket of the First Judicial District Court of Caddo Parish, which disclosed personal service of citation on this plaintiff and no answer filed by him. All of the proof so tendered was excluded as being irrelevant.

The district court, after trial of the merits, concluded that plaintiff was entitled to the marital fourth and, accordingly, it rendered and signed a formal judgment awarding him that interest in and to decedent’s estate, the several items of property of which were described and valued therein. From the judgment defendant appealed. Answering the appeal plaintiff prays that the judgment be amended by allowing him one-fourth of the price received by defendant for three certain items of property (she sold them after having been placed in possession thereof) instead of one-fourth of the valuation at which those items were inventoried in the succession proceeding.

Article 2382 of the Civil Code, the provisions of which furnish the basis for the instant claim, reads insofar as pertinent as follows:

“When the wife has not brought any dowry, or when what she brought as a dowry is inconsiderable with respect to the condition of the husband, if either the husband or the wife die rich, leaving the survivor in necessitous circumstances, the latter has a right to take out of the succession of the deceased what is called the marital portion; that is, the fourth of the succession in full property, if there be no children, and the same portion, in usufruct only, when there are but three or a smaller number of children; and if there be more than three children, the surviving, whether husband or wife, shall receive only a child’s share in usufruct, and he is bound to include in this portion what has been left to him as a legacy by the husband or wife, who died first.”

Directing attention to the fact that by her last will and testament the decedent disposed of the entirety of her property, defense counsel contend that this plaintiff is without right to invoke the quoted codal provisions; they argue that a surviving spouse cannot seek the reduction of a donation, for according to Civil Code Article 1504, “On.the death of the donor [or] testator, the reduction of the donation, whether inter vivos or mortis causa, can be sued for only by forced heirs, or by their heirs or assigns * * We find no merit in the contention. The marital fourth appears to be a benefit which the law obligates an estate to provide under certain conditions to a surviving spouse, irrespective of the rights of heirs, forced or otherwise, and of legatees; and to claim it in a judicial proceeding is not the same as to sue for the reduction of a donation under Article 1504. Moreover, by its very terms Article 2382 shows that the marital fourth is demanda-ble in a testate, as well as in an intestate, succession, a declaration therein being that “ * * * he is bound to include in this portion what has been left to him as a legacy by the husband or wife, who died first.”

There seem to be no prior decisions determining this particular question; however, the right to claim the marital fourth in testate successions has been recognized in the following cases: Melancon’s Widow v. His Executor et al., 6 La.Ann. 105; Succession of Morris, 137 La. 719, 69 So. 151.

Again, defendant urges that plaintiff cannot recover herein for the reason that he was not in necessitous circumstances and decedent was not rich within the meaning of Article 2382. As before shown the value of Mrs. Malone’s estate at the time- of her death (the value as of that date governs, not the amount realized from subsequent sales of the property as contended for in plaintiff’s answer to the appeal) was approximately $38,000; whereas, plaintiff then owned no property whatever, and his income (as a hotel clerk) was only $12 per week plus his room and hoard. Under those circumstances it must be concluded that Mrs. Malone died “rich” while plaintiff was in “necessitous circumstances” within the intendment of the codal article, for this court has consistently said that such terms are to be treated relatively and applied in a comparative manner. Melancon’s Widow v. His Executor et al., supra; Succession of Blackburn, 154 La. 618, 98 So. 43; Succession of Ledet, 175 La. 225, 143 So. 56; Succession of Andrus, 187 La. 931, 175 So. 624.

The final question to be determined in this litigation, and the most serious one, is whether plaintiff is barred from claiming the marital fourth by reason of his having lived separate and apart from Mrs. Malone at the time of her death and continuously prior thereto for almost ten years. In answering that question in the negative the district judge, as shown by his written reasons for judgment, followed certain expressions contained in opinions of comparatively recent cases decided by this court (hereafter discussed), although he recognized that under earlier decisions a contrary answer would be proper.

Up to and including Succession of Rogge, 1898, 50 La.Ann. 1220, 23 So. 933, 936, our jurisprudence indisputably was uniformly to the effect that there could be no recovery of the marital fourth if the spouses were living separate and apart on the occurrence of death to the rich one, unless that condition had resulted by reason of the conduct of the decedent. The husband in the Rogge case, as here, had been separated from his wife for many years prior to her death. In denying his claim for the marital fourth the court reasoned:

“ * * * The principle upon which the right of the necessitous surviving spouse to take the marital portion — the reason, the cause, the motive of the law in granting it —is founded is the consideration or policy that neither of the married persons, who have lived together in the common enjoyment of wealth and of the position which it gives, shall be suddenly reduced to want; and accordingly a part of the estate of the opulent deceased spouse is appropriated to relieve the survivor, who, in the absence of it, would be reduced to poverty. Succession of Fortier, 3 La.Ann. 105; Pickens v. Gillam, 43 La.Ann. 350, 8 So. 928. But as to his right to take the marital fourth the surviving spouse is not an heir, and the portion he is entitled to is not an inheritance. It is therefore not a vested right, nor is it a debt. It is a gift, a bounty, bestowed, not by the deceased, but by the law, when the conditions surrounding the relations of the parties to each other before and at the time of the dissolution of the marriage by the death of one of them, and surrounding the one surviving after the dissolution, meet the requirements of the law. Thus, the spouse dying must be rich, or comparatively so; the one surviving, in necessitous circumstances, or comparatively so, with regard to the other. Again, the one dying rich — possessed of wealth which had been the common enjoyment of the conjugal pair — must leave the other in necessitous circumstances. If these conditions do not exist, the reason, the motive, the purpose of the law fail, and the right to take does not attach. Connor v. Connor, 10 La.Ann. 451; Succession of Justus, 44 La.Ann. 721, 11 So. 95. For over eight years this husband and wife had not lived together prior to the death of the wife. He had resided in one state; she, in another. They had no relations with each other of any kind. She had twice brought suit for divorce against him, recovering a decree the last time. [The validity of this decree was questionable.] For years there had been no common enjoyment of the wealth the wife possessed. She did not die leaving him in necessitous circumstances. Her death did not suddenly snatch him from the enjoyment of riches, and reduce him to the condition of penury. The ‘leaving’ of this couple — the parting between them — had occurred years before the one with riches died. The husband had gone his way, she bers, long before. He had ceased for nearly a decade to have the enjoyment of either her society or her property or means. Under these circumstances his right to claim the marital fourth cannot be held to exist. Pickens v. Gillam, 43 La.Ann. 350, 8 So. 928. In reaching this conclusion, we recognize fully and approve of the principle announced in Gee v. Thompson, 11 La.Ann. 657. In-that case the wife was driven by the conduct of the husband to place herself under the protection of the law. She had sued for and recovered a judgment of separation from bed and board. The court held that by placing herself under the protection of the law she had not put herself in a worse condition; that the judgment of separation did not dissolve the marriage; that by it the law had, on account of the husband’s bad conduct, excused her f-rom living with him; and that being his wife when he died, and legally excused from cohabitation, no fault was attachable to her, and she was recognized as entitled to the marital portion. The husband in the instant case presents no such state of facts as did the wife in that case.” (Brackets ours.)

In the later case of Succession of Kunemann, 115 La. 604, 39 So. 702, which involved a claim of a surviving wife to the marital fourth, the doctrine of common enjoyment of wealth was again applied.. Because the husband’s wealth did not accrue until after his death (he did not die rich) the claim of the widow was disallowed, notwithstanding that she remained faithful to him until the end.

In Succession of Pelloat, 127 La. 873, 54 So. 132, the court awarded the marital fourth to the surviving wife. There the marriage had been kept secret at the request of the husband, and they did not live publicly under the same roof. It was a sincere marriage, however, founded and existing on the mutual affection and devotion of the spouses; They had planned a future together upon the cessation of the reason for the secrecy; the rich husband furnished the money with which to pay the wife’s board, clothing and medical expenses ; they corresponded with each other; and he visited her regularly. Their situation was not the same, the court pointed out, as in the Rogge and Pickens cases,, supra, where there had been a separation and the spouses acted as strangers to each other just as though they had not been married. By awarding the marital fourth to the wife, when she had not received the full benefit of the husband’s wealth, the decision signaled a departure from the common enjoyment theory.

That departure became more evident in Succession of Guillon, 150 La. 587, 91 So. 53. Therein, a relatively rich wife had died only nineteen days after her marriage, and the surviving husband, who was comparatively poor, claimed the marital fourth’ from her estate. On the original hearing the court, with one member dissenting, rejected the claim after testing it in the light of the common enjoyment doctrine. However, on a rehearing, by a four to three decision, the claimant husband recovered, the majority opinion assigning for its conclusion the following reasons:

“It is clear to our minds that the facts of this case fulfill every requirement laid down by article 2382 of the Revised Civil Code, which provides as follows:
* * ‡ * $ *
“Under this article the following facts must exist to entitle the survivor to claim the marital fourth:
“(1) A marriage.
(2) Husband or wife must die rich.
(3) Party dying must leave the survivor' in necessitous circumstances.
(4) There shall be no children.
“It is true that Jeanne Marie Guillon was in the last stages of consumption at the time of her marriage, and died 19 days thereafter; but it is also true that she had been engaged to marry Frank Fagot, Jr., for several years; that the marriage was celebrated at the home of the bride at Abita Springs by the Catholic priest of Coving-ton, and that the marriage license was regularly and duly obtained from the clerk of the Twenty-Sixth 'judicial district court at Covington. There was nothing clandestine about the marriage. There is no suggestion of fraud or bad faith on the part of either of the contracting parties; on the contrary, it seems to have been performed as an act of mutual affection and devotion.
“The sole and only objection raised against the right of the husband in this case to claim under the law the marital fourth is that the marriage was too recent, and therefore that the husband and wife did not live together in the common enjoyment of the wealth of the rich spouse for the necessary period required by law. There are some decisions to this effect. * * *
“However, a complete answer to this contention is that no such condition is attached by article 2382 of the Civil Code to the right of a necessitous husband or wife to claim the marital fourth.
“The letter of this article of the Code is plain and free from ambiguity, and cannot be disregarded under the pretext of pursuing its spirit. C. C. art. 13.
“We prefer, therefore, to follow the line of decisions of this court, which hold that the article in question does not limit its operations to those whose married life should have lasted a specified time. * * * ”

Thus, the court in the Guillon case, by holding that the short duration of the marriage was no bar to the husband’s right to the marital fourth, unequivocally repudiated the common enjoyment doctrine enunciated and applied in the earlier cases. But it did not therein, nor in Succession of Pelloat, either expressly or impliedly overrule the former decisions insofar as they held that a surviving spouse could not recover where for a long continuous period prior to the death of the other there had been a living separate and apart, the experiencing of an abnormal marital relationship. In neither of those cases was that issue presented; as a matter of fact in both, on the occurrence of death, there existed as between the spouses mutual affection and devotion.

In Succession of Hagan, 150 La. 934, 91 So. 303, the surviving husband claimed the marital fourth. Until the wife’s death the spouses lived together, and apparently their marital relationship was normal. Thereafter the surviving husband attempted to sustain a forged will of his wife, in an effort to acquire her entire estate, and that act was urged in opposition to the claim for the marital fourth. The court merely held that his right was not forfeited by conditions occurring subsequent to the death.

The next case in our jurisprudence of importance in this consideration is Veillon v. Lafleur’s Estate, 162 La. 214, 110 So. 326, although it did not involve a marital fourth demand. It presented a claim for the $1000 widow’s homestead authorized by Civil Code Article 3252, the pertinent provisions of which are:

“Whenever the widow or minor children of a deceased person shall be left in necessitous circumstances, and not possess in their own rights property to the amount of one thousand dollars, the widow or the legal representatives of the children, shall be entitled to demand and receive from the succession of the deceased husband or father, a sum which added to the amount of property owned by them, or either of them, in their own right, will make up the sum of one thousand dollars, and which amount shall be paid in preference to all other debts, except those secured by the vendor’s privilege on both movables and immovables, conventional mortgages, and expenses incurred in selling the property. The surviving widow shall have and enjoy the usufruct of the amount so received from her deceased husband’s succession, during her widowhood, which amount shall after-wards vest in and belong to the children, or other descendants of the deceased husband.”

The surviving wife in the Veillon case deliberately and voluntarily abandoned her husband, and she had remained away from him without justification during the last four years of his life. On a rehearing, with two members dissenting, the court sustained her claim to the widow’s homestead. In reaching this conclusion the majority opinion observed that Articles 2382 and 3252 are laws in pari materia; then it cited several decisions to support the proposition that under each of those articles no distinction is to be made between a faithful and an unfaithful spouse. Some of the decisions thus cited were Succession of Pelloat, Succession of Guillon and Succession of Hagan, all supra, which dealt with the marital fourth; but they, as shown above, did not so hold.

Undoubtedly the conclusion in the Veillon case was correct, because' under Article 3252, in view of its object hereinafter discussed, the question of the marital relationship of the spouses has no bearing on the right of the surviving wife to claim the $1000 homestead award thereby authorized. But Articles 3252 and 2382 are not in pari materia, and for this reason it was both improper and unnecessary for the court, in deciding the widow’s homestead issue, to consider those cases dealing with the marital fourth.

Civil Code Article. 17 states that, “Laws in pari materia, or upon the same subject matter, must be construed with a reference to each other; what is clear in one statute may be called in aid to explain what is doubtful in another.” And in 59 Corpus Juris, verbo Statutes, Section 620, it is said:

“Statutes in pari materia are those which relate to the same person or thing, or to the same class of persons or things, or which have a common purpose; and although an act may incidentally refer to the same subject as another act, it is not in pari materia if its scope and aim are distinct and unconnected. It is a well established rule that in the construction of a particular statute, or in the interpretation of its provisions, all statutes relating to the same subject, or having the same general purpose, should be read in connection with it, as together constituting one law, although they were enacted at different times, and contain no reference to one another. The endeavor should be made, by tracing the history of legislation on the subject, to ascertain the uniform and consistent purpose of the legislature, or to discover how the policy of the legislature with reference to the subject matter has been changed or modified from time to time. In other words, in determining the meaning of a particular statute, resort may be had to the established policy of the legislature as disclosed by a general course of legislation. * * * ”

A careful consideration of the history, the composition, and the effect of Civil Code Articles 2382 and 3252 can furnish only the conviction that they are not upon the same subject matter and have not the same general purpose, aim and scope.

The marital fourth doctrine, found in Article 2382 of the Civil Code of 1870 under Title VI which treats of marriage contracts, became a part of the law of Louisiana through Article 55 of the Civil Code of 1808, it having been derived from Las Siete Partidas. It had its origin, however, in the Roman law, the Novelles of Justinian having provided therefor. The written law of France, which followed the Roman law, recognized the marital fourth; however, the Code Napoleon contained no provisions respecting it. Our codal provisions on the subject, therefore, were influenced by the Roman, French and Spanish authorities.

The marital fourth was established in honor of the past marriage, Armstrong v. Steeber, 3 La.Ann. 713, Succession of Justus, supra, and according to Merlin, the French jurist whose writings the opinion in Picken v. Gillam, supra, quoted with approval, the wife could not recover it from the estate of her deceased husband unless (1) an honest marriage had existed and (2) she always abided with him. The object of the marital fourth, as said in Succession of Fortier and Succession of Rogge, supra, was to prevent a spouse on the death of the other from being left in abject poverty after having become accustomed to the wealth of the decedent. Of course, that enjoyment of wealth theory was rejected in later cases wherein the marital relationship existing at the time of death had been of short duration and not sufficient to permit the theory’s application, Succession of Pelloat and Succession of Guillan, supra, as well as in the case of the spouse who was compelled to leave because of the conduct of the decedent, Gee v. Thompson, supra; but the requirement for abiding together in matrimony, except in the instance last referred to, was not also rejected. From all of which it may be said that the marital fourth doctrine, when incorporated in our law in 1808, contemplated the existence of a normal marriage — both in law and in fact — in which the spouses discharge the mutual duties specified in Civil Code Articles 119 and 120, particularly those of fidelity, support and assistance.

The pertinent provisions of Article 3252, on the other hand, were not derived from or influenced by the Roman, French or Spanish authorities. They had their origin solely in Act No. 255 of the Louisiana Legislature of 1852, the title to which read: “To provide a homestead for the widow and children of deceased persons;” and they were enacted without reference to any other legal concept. In the Civil Code of 1870 on its adoption, they were made a part of Article 3252 under Title XXI — “Of Privileges.” The benefits afforded thereby are in favor of the surviving wife and children (but not a surviving husband), with reference to which “ * * * the widow or the legal representatives of the children, shall be entitled to demand and receive from the succession of the deceased husband or father, a sum which added to the amount of property owned by them, or either of them, in their own right, will make up the sum of one thousand dollars * * This homestead claim, it is noted, is limited in amount to $1000; whereas, the claim to the marital fourth is unlimited except on the recited fractional or percentage basis. Also unlike the marital fourth, the claim is payable irespective'of whether the husband be “rich”; even from an insolvent succession (involving property belonging either to the community or the husband’s separate estate) in preference to most of the creditors.

It is true that in each of the Articles, 2382 and 3252 the phrase “in necessitous circumstances” is employed. The meaning, however, is not the same. Under Article 3252 the widow and children are not in necessitous circumstances when both together possess in their own rights property to the amount of $1000. Under the marital fourth article, on the contrary, a surviving spouse (either husband or wife) may be in necessitous circumstances when worth considerably more than that amount, the status being determined on a relative basis by comparison with the decedent’s estate. Thus, in Smith v. Smith, 43 La.Ann. 1140, 10 So. 248, a surviving wife, whose husband died “rich,” was held to be in necessitous circumstances when owning property of the value of $4500. If the two articles are in parí materia and must be interpreted alike then the widow in the Smith case, as well as the respective surviving spouses in numerous other cases whose worth was more than $1000, should have been denied the marital fourth on the ground that she was not in necessitous circumstances. But this $1000 maximum test has never been applied in any of the material fourth cases.

Furthermore, the benefits of Article 3252 are not granted in “honor of the marriage,” as are those of Article 2382 (according to its history) ; if they were the husband, as well as the wife, should and would be eligible to receive them. To the contrary, obviously, they are granted in the interest of society to prevent the surviving widow and the minors from becoming wards of the state; and for this reason, incidentally, it is not required that the spouses be actually living together when death dissolves the marriage. Clearly the object or purpose of the legislation, as the title and provisions of the original Act No. 255 of 1852 indicate, was to guard against, as far as possible, the beneficiaries (widow and minors) becoming paupers; it was to provide for them a homestead, the rights respecting which are created by constitutional or statutory provisions to shelter the family and provide it a refuge from the stresses and strains of financial misfortune — in general to promote the stability and welfare of the state. 40 Corpus Juris Secundum, verbo Homesteads, § 2. The husband was not so protected under Act 255 of 1852, now Article 3252, for the obvious reason that it was thought he could very well care for himself. In this connection it is appropriate to point out that the ability of the husband to provide his own support is of no importance with reference to the marital fourth, this having been held in Succession of Fortier, supra, decided in 1848.

In that same year (1848), moreover, this court also held in Armstrong v. Steeber, supra, that a wife who had abandoned her husband several years before his death was not entitled to the marital fourth, which decision was fresh in our jurisprudence, was in full force and effect, and was presumably known to the Legislature on the adoption in 1852 of the widow’s and minors’ homestead law. But the latter law has not been similarly interpreted, and this circumstance is further evidence that the articles in question have no common purpose.

Since Articles 3252 and 2382 are not on the same subject matter, have not the same purpose, aim and scope, and, hence, are not in pari materia the reference made to the marital fourth, and the cited cases on that subject, in Veillon v. La-fleur’s Estate, supra, which involved a widow’s -homestead claim, was obiter dictum and not of binding effect. As pointed out above, however, the conclusion reached in that case was proper.

There are other reported decisions of this court, unfortunately, wherein it was also incorrectly held that the articles in question are laws in pari materia and are to be interpreted alike. But' in none of them would the result have been different had those articles not been treated together, except Richard v. Lazard, 108 La. 540, 32 So. 559, which was later overruled (and properly so) by cases dealing with the same subject—the widow’s homestead claim. True, that cannot be said of the decision of the Orleans Court of Appeal in Wimprenne v. Jouty, 12 La.App., 125 So. 154, in which a writ of certiorari was denied. But the conclusion therein was reached by following the obiter dictum of the Veillon case, and the review by this court on the application for the writ was not so thorough as it would have been had the litigation come here as if on appeal.

Considering the historical background and development of Civil Code Article 2382, as well as the jurisprudence of this court which is appropriate to it, therefore, we are of the opinion that the marital fourth is not recoverable where the spouses were living separate and apart, with their marital relationship severed, at the time of and for a substantial period prior to the dissolution of the marriage by death, unless the separation be caused solely by the conduct and acts of the decedent. A contrary view would promote injustice, not justice. Let us suppose, for example, that a deceased wife leaves a separate, estate of $200,000, all of which she inherited a few weeks prior to her death. The husband arbitrarily abandoned her many years previously, and at no time during the period had he rendered any aid or support. Would justice demand that he be given $50,-000 of that inheritance since he was a husband at law, although not one in fact ? The question answers itself. It may be said that such wife should have sought a divorce prior to her death, and thereby deprived him of the right to the marital fourth. The law, of course, would have permitted her under those circumstances to obtain a divorce ; but it does not state that she was required to seek one. Too, there might have existed a good and sufficient reason for her not wanting to sue, such as her entertaining a conscientious objection to divorce in principle.

In the instant case, as above shown, plaintiff had been separated from his wife continuously for almost ten years prior to her death, the last three of which he spent in California; he was not even in attendance during her last illness or at her funeral. As to the reason for such separation and living apart the record does not disclose. Evidence bearing upon that question was sought to be introduced by defendant, but it was excluded by the district judge (he was justified in doing so in'view of the discussed obiter dictum) on the ground of irrelevancy. In our opinion the evidence was relevant, and it should -have been received.

The case will be remanded to the district court, therefore, for the restricted purpose of receiving from either party litigant any competent evidence relating to the reason for the separation and living apart of plaintiff and decedent. After the further hearing if the court concludes that this plaintiff was free from fault, it shall reinstate the judgment signed by it on April 5, 1948; if otherwise it shall reject plaintiff’s demands and dismiss the suit. From the court’s decree, however, the right of further appeal is reserved to the litigant adversely affected.

For the reasons assigned the judgment appealed from is reversed and set aside and the case is remanded for further proceedings according to law and consistent with the views herein expressed. Each litigant shall pay one-half of the costs of this appeal. All other costs shall await the final determination of the litigation.

McCALEB, J., dissents with written reasons.

O’NIELL, C. J., takes no part.

McCALEB, Justice

(dissenting).

I am in accord with the views expressed in Veillon v. Lafleur’s Estate, 162 La. 214, 110 So. 326; Succession of Guillon, 150 La. 587, 91 So. 53 and Succession of Nagan, 150 La. 934, 91 So. 303.

Article 2382 of the Civil Code is unambiguous; the right granted is not conditioned upon faithfulness during marriage nor is recovery dependent upon the spouses living together.

Since the statute is clear, its letter should not be disregarded “under the pretext of pursuing its spirit”. Article 13, Civil Code. The effect of the decision herein is to amend Article 2382 by providing that the marital fourth is not recoverable where the spouses were living apart at the time of the dissolution of the marriage by death unless the sole cause of the separation is attributable to the decedent.

I respectfully dissent.


author: MOISE, Justice. PER CURIAM.

text:
    215 La. 967
    WIER v. GRUBB et al.
    No. 38714.
    Supreme Court of Louisiana.
    May 31, 1949.
    Decree Amended June 30, 1949.
    James G. Dubuisson and Edward Dubuis-son, Opelousas, for plaintiff-appellant.
    O’Niell & O’Niell, New Orleans, for defendants-appellees.
   MOISE, Justice.

This is a suit to cancel a mineral sublease and for damages and attorney’s fees.

The plaintiff bases his action on the alleged failure of the defendants to develop the leased tract, in accordance with the terms of the sublease granted by plaintiff to defendant Grubb. He prays for judgment in his favor and against defendants,, jointly and in solido, for the forfeiture of the sublease as well as the cancellation of the sales and assignments thereof, for the surrender of the area which defendants have refused to develop (except as to the area of five acres around the lone producing well affected by said sublease), for $17,000 damages, and for $1,500 attorney’s fees.

The defendants filed an exception of no right or cause of action. The district court sustained the exception of no cause of action and dismissed plaintiff’s suit. The plaintiff now prosecutes this appeal.

In April, 1940, the plaintiff leased from Mrs. Josephine Saizan Watkins four certain tracts of land, situated in St. Landry Parish, Louisiana. The tract containing 331.19 acres is the subject of this litigation. In October, 1940, petitioner subleased this acreage to defendant Grubb, reserving a Jieth overriding royalty thereon. Grubb assigned a 14th interest in the sublease to defendant Russell and a %ths interest to the defendant Hawkins. The original lease contains the following development clause: “2. If as a result of Lessee’s operations hereunder oil or gas shall be discovered in paying quantities, then and in that event, after the expiration of the primary term thereof, Lessee shall and he hereby obligates himself and his assigns to prosecute diligently the development of the leased premises for the production therefrom of oil, and gas to a fair and reasonable extent, or in the alternative to release such portions of the leased area as lessee may be unwilling to develop.”

Article X of the petition also contains the development clause for sublessee: “As-signee shall have the right to hold said lease without any obligation until January 10th, 1941. In the event the Assignee decides to hold this lease beyond January 10th, 1941, said Assignee shall on or before said date notify Assignor H. J. Wier of his intention to drill a well on said tract of land, said notice to be forwarded by registered mail to H. J. Wier at Opelousas, Louisiana, and Assignee shall thereafter commence operations for the drilling of said well not later than February 1, 1941, and shall thereafter prosecute the drilling of said well to completion, or abandonment, and shall develop the leased premises for oil and gas with reasonable diligence, subject to the terms of said lease.”

It is alleged that four wells were drilled by the defendants on the area — three producers and one dry hole. The first well was drilled in June 1941, the second, in September 1941, the third, in June 1942, and the dry hole was drilled in November, 1944. In the latter part of 1942, when all the wells were producing, the allowable therefor totalled approximately 9,000 barrels per month. It is alleged that thereafter production steadily decreased and at the time of the filing of this suit the allowable for Well No. 2, which was the only producing well, was 80 barrels per day and that this production was “ * * * negligible in comparison with what it was at its maximum and with its potentialities under diligent development”. In 1944 after drilling the dry hole, the defendants made no effort to develop said tract and, although other wells were brought in on nearby property by other operators, in spite of repeated requests and written demands, the defendants have refused to develop the lands further by additional drilling.

The defendants argue that the only one who has a right to the cancellation of the sublease, if any, is the original lessor and land owner, Mrs. Watkins, be-cáuse if plaintiff should prevail, the lease in its entirety would revert back to Mrs. Watkins. This contention has no merit. In Article XIV of the petition it is pleaded that plaintiff brought this suit by reason of the threat of Mrs. Watkins that if he did not comply with his diligent development provision, she would proceed to cancel her lease with him. It necessarily follows that plaintiff is complying with his obligation to Mrs. Watkins and by so doing is averting a suit for cancellation of his lease as well as one in damages; and furthermore, under the express provisions of Act 205 of 1938, a mineral lessee is granted the right to protect or defend his mineral lease without the concurrence, joinder, or consent of the landownen The Act does not change or affect substantive rights but is remedial and procedural in character. Colgin v. Harris, D.C., 27 F. Supp. 798; Coastal Club v. Shell Oil Co., D.C., 45 F.Supp. 859; Payne v. Walmsley, La.App., 185 So. 88; Amerada Petroleum Corp. v. Reese, 195 La. 359, 196 So. 558. It follows that plaintiff has a cause of action to prosecute or defend and the courts are open to him for remedy or redress.

The defendants argue that having a producing well on the property, the diligent development clause has not been violated. This is untenable. This lease has no clause to the effect that the bringing in of a well in paying quantities preserves the lease for the entire area. The development clause, after the discovery of oil and gas on the property, is in direct opposition to this contention because, if the lessees are unwilling to further develop, the petitioner prays for the releasing of that portion of land not in use.

The rationale of the reasoning for relief by petitioner is supported in the case of Kyle et al. v. Wadley et al., D.C., 24 F. Supp. 884, 887, by the statement that “ * * * if the property has, as contended by defendants in their pleadings, been fully developed,” there can be “no justification in permitting them to hold on to this large tract of land without further activity, and they should surrender it.”

We find a similar view in Caldwell v. Alton Oil Co., 161 La. 139, 108 So. 314, 316: “ * * * the position of the defendant is that, so long as it can derive a small profit from the well, it is under no obligation to develop further and can keep the plaintiff's land tied up under the lease. This position cannot be supported, either under the terms of the lease or under the law. Nor is such a position in keeping with just and fair dealing.”

Likewise, in Hutchinson v. Atlas Oil Company, 148 La. 540, 87 So. 265, 270, it was held * * * time and prompt development become of the essence of such contracts, once oil or gas has been found.”

The defendants further argue that a sub-lessor cannot sue to set aside a sublease while continuing to collect royalties or rent from his sublessee, citing the case of Farrell v. Simms, 209 La. 1072, 26 So.2d 143. This case has no application to the instant one because the very first paragraph of the cited case states: “This is a concur-sus proceeding instituted to determine the rights of certain land owners in the royalties derived from a certain gas well.”

In Vol. 36, American Jurisprudence, under the title of “Mines and Minerals”, Section 59, at page 321, we have the following statement: “ * * * Where the rent reserved is a royalty, the courts not only do not hesitate but in fact seem to look with favor upon provisions for forfeiture of the lease for nonexploitation.” (Italics ours.)

For the reasons assigned, the judgment appealed from is annulled and set aside, the exception of no1 cause of action is overruled, and the case is now ordered remanded to the district court for further consideration, consistent with the views herein expressed. All costs are to await the final determination of this litigation.

O’NIELL, C. J., takes no part.

PER CURIAM.

In an application for rehearing, counsel for plaintiff directs our attention to the fact that we inadvertently failed to tax the costs of this appeal against defendant. Accordingly, our decree is amended to the extent that the costs of this appeal are to be paid by defendant. All other costs to await final disposition of the case.


author: McCALEB, Justice. FOURNET, Justice.

text:
    215 La. 974
    STATE v. ROBINSON.
    No. 39041.
    Supreme Court of Louisiana.
    March 21, 1949.
    On Rehearing June 30, 1949.

      Lawrence W. Bergeron, Oliver S. Li-vaudais, Jr., New Orleans, G. W. Gill, Associate Counsel, New Orleans, for appellant.
    Bolivar E. Kemp, Jr., Atty. Gen., M. E. Culligan, Asst. Atty. Gen., Leander H. Perez, Dist. Atty., New Orleans, for ap-pellee.
   McCALEB, Justice.

Appellant, a Negro 16 years of age, was indicted, tried and convicted for the Aggravated Rape, Article 42, Criminal Code; of a 38 year old white woman and was sentenced to death by electrocution. In his appeal to this court, he relies upon four bills of exception for reversal of his conviction and sentence.

The rape occurred during the early morning hours of October 4th 1947 at the residence of the victim in Violet, Louisiana where she was living with her husband and four young children. The facts are that appellant lived across the street from this ■house; that he entered it with force and arms at a time when the woman’s husband was away and that she awakened and was confronted with his nude figure standing over her with a hammer in hand, demanding money. She told him that the money was on a shelf in an adjoining room, whereupon appellant requested indulgence in sexual intercourse and, when his demands were denied, he pulled a sheet off the woman, stuck a knife in her neck and, by threats, forced her to accede to his desires. Thereafter, appellant obtained a wallet containing $5.23 from the house and departed with instructions to his victim not to give an alarm. As soon as he left, the woman reported the occurrence to neighbors, an investigation was begun and appellant was arrested on the same morning at Bridge-side Inn (where he was residing). Later in the day, while incarcerated in the parish jail, appellant is alleged to have made an oral statement to the jailer, Aldemar Es-topinal, which was received in evidence over his objection.

This is the most serious bill of exception presented for determination. In the oral statement made by appellant to his jailer, he admitted the burglary and his demand that the woman submit to sexual intercourse ; that he made her turn her back toward him and that he placed his sexual organ between her legs. Appellant claims that the statement was obtained as the result of threats and violence administered by a Deputy Sheriff and State Police Officer after his arrest and confinement in the parish jail.

The only witness testifying for the State respecting the circumstances under -which the statement was made was the jailer, Estopinal. Pie asserted, in substance, that, at about 3 :30 in the afternoon on October 4th (the day of the arrest), Deputy Sheriff Langlois and the State Police officer were questioning appellant with respect to the commission of the crime; that no one threatened appellant nor was he subjected to any type of coercion and that, about an hour and a half after the questioning had been completed, appellant called him over to the cell and voluntarily made the statement to him. On cross-examination, however, the witness, when questioned as to the details of the interrogation of appellant, remarked:

“Well, I’ll tell you what the State Police said, if you want me to tell you. The State Police told him, after he scraped the dint off the foot on the newspaper, and scraped it off his pants, and told him after he scraped it up, he said: ‘Boy, I have got you in the palm of my hand. You had better confess to me.’ The boy didn’t say a word. He kept telling the boy. He turned to Mr. Langlois, he said: ‘It’s no use.’
“So Mr. Langlois questioned the boy. He was in the cell questioning and the boy wouldn’t talk. The boy wouldn’t say a word, so then they went off and I went with them.”

Appellant testified that he was beaten, mistreated and otherwise coerced by Lang-lois and the State policeman and that the latter told him that he was going “but I’m coming back; and when I come back, you can give your soul to God, and you know what to me.”

The State policeman was not called while the jury was withdrawn to rebut the evidence of appellant so it is evident that the trial judge placed no credence whatever in appellant’s testimony. While we cannot declare, from a reading of the evidence, that the judge erred in his unqualified acceptance of the jailer’s testimony and his disbelief of appellant, we are of the opinion that the State did not carry the burden placed upon it by Article 451 of the Code of Criminal Procedure by establishing affirmatively that appellant’s statement to the jailer was “free and voluntary, and not made under the influence of fear, duress, intimidation, menaces, threats, inducements or promises.” This is because the testimony of the jailer, which must be accepted as true, shows that the State policeman told appellant within two hours of the time the statement was given “Boy, I have got you in the palm of my hand. You had better confess to me.” We cannot regard this assertion as a mere exhortation or adjuration to speak the truth. On the contrary, it must be considered as a veiled threat or a coercive bidding calculated, under the circumstances, to induce a confession irrespective of its truth or falsity.

And it is of no moment that appellant failed to immediately respond to the officer’s command to confess or that he made the highly incriminating acknowledgment to his jailer instead of his inquisitor. Indeed, it would be impossible to measure the effect of the officer’s declaration upon appellant’s mind and it is for this reason that the law excludes confessions “if any degree of influence has been exerted”. State v. Henry, 196 La. 217, 198 So. 910, 917; State v. Young, 52 La.Ann. 478, 27 So. 50 and Bram v. United States, 168 U.S. 532, 549, 18 S.Ct. 183, 42 L.Ed. 568. While there can be little doubt that the insistence of the officer to confess because “I have got you in the palm of my hand” would have influenced a man of judgment to some extent, an even more rigorous view of the declaration must be applied here — for it is apparent that appellant, being but 16 years of age, was mentally immature despite the fact that he was fully developed from a physical standpoint. See Haley v. Ohio, 332 U.S. 596, 68 S.Ct. 302, 92 L.Ed. 224.

This court has but recently held, in State v. Ross, 212 La. 405, 31 So.2d 842, 845, that, where an officer stated to one accused of crime “the best thing to do is to tell the truth because we have the evidence against you”, it was not to -be regarded as an exhortation to speak the truth but as a declaration calculated to induce a confession. The rationale of that decision was that the statement carried with it an innuendo of reward which tended to induce a confession. In the matter at hand, we think the declaration of the officer contains the hint that failure to speak might not be tolerated.

We notice that the State, in its brief, questions that the oral statement made by appellant to the jailer falls within rules applicable to a confession. It is professed that it is really an exculpatory statement of the crime of rape and, as such, was receivable in evidence without an affirmative showing that it was free and voluntary. In support of its position, the State cites Article 449 of the Code of Criminal Procedure; State v. Picton, 51 La.Ann. 624, 25 So. 375 and State v. Terrell, 175 La. 758, 144 So. 488.

This contention is not well founded. Article 449 of the Code of Criminal Procedure declares that the term “admission” is applied to facts not involving criminal intent, whereas, the term “confession” applies only to an admission of guilt and not to an acknowledgment of facts merely tending to establish guilt. However, the Article which controls the case is Article 454, reading:

“The rule that a confession produced by threat or promise is inadmissible in evidence does not apply to admissions not involving the existence of a criminal intent/1 (Italics ours.)

The converse of the italicized clause is obvious — that admissions involving the existence of a criminal intent or inculpatory facts are governed by the rules applicable to confessions. The oral statement, apart from appellant’s confession of burglary, reveals his criminal intent to commit rape as he admitted placing his sexual organ between the woman’s legs. This is an incul-patory fact; the statement is exculpatory only to the extent that it does not concede penetration.

The Picton and Terrell cases, upon which the State relies, are inapposite. In the former, the defendant, charged with embezzlement, had voluntarily communicated with the manager of his employer with a view of compromising his shortages for $1000. During the interview, which occurred prior to the arrest, the defendant made certain damaging statements of fact —but none of them involved the existence of a criminal intent. In these circumstances, the court correctly held that there was no confession and that the statement relative to the crime of the defendant was of an exculpatory nature.

In the Terrell case, the three defendants were tried for murder, following a robbery committed by them. One of the questions presented for determination was whether a statement given by one of them to the police was an admission rather than a confession. The court found in the affirmative, inasmuch as it was an acknowledgment of facts largely of an exculpatory nature and it was concluded that, since it did not involve criminal intent, it was receivable under Article 454 of the Code of Criminal Procedure without the affirmative showing required for the admission of a confession.

Since a new trial must be granted because of the error in admitting the oral statement in evidence, it is unnecessary that we discuss the other bills of exception relied on by appellant.

The conviction and sentence are annulled and set aside and the case is remanded to the district court for a new trial.

HAMITER and MOISE, JJ., dissent.

O’NIELL, C. J., takes no part.

On Rehearing

FOURNET, Justice.

A rehearing was granted in this case upon the state’s urgent request that it be “given an opportunity to demonstrate to the Court its error in granting a new trial.” However, in presenting the state’s cause, counsel have failed to avail themselves of the opportunity thus afforded them. In oral argument nothing was pointed to that had not been presented originally, and the state relied exclusively on its original written brief. By referring to the application itself, however, we gather the primary question presented for our consideration on this rehearing is whether the evidence fails to support the court’s conclusion that the statement attributed to State Officer Bradley by Jailer Estopinal, one of the state’s witnesses — “Boy, I have got you in the palm of my hand. You had better confess to me” — constituted a “veiled threat or a coercive bidding calculated, under the circumstances, to induce a confession irrespective of its truth or falsity.”

The rule now universally obtaining in all countries where the common law prevails, that a confession of a person accused of a crime is admissible in evidence only if freely and voluntarily made, is the result of the humanitarian principles evolved by courts during civilization’s progress from the ancient harsh and continental practice of putting a person charged with a crime to the torture and breaking him piece by piece until the confession was obtained, regardless whether a crime had, in fact, been committed, or, if committed, had been committed by the person being tortured.

It was only natural, therefore', that this humane principle found its way into our system of law when our forefathers came to this country in their quest for full liberty and that there was included in the Bill of Rights to the Constitution of the United States the provision that no one could be compelled in a criminal case to be a witness against himself.

The delegates representing the people of this state at the Constitutional Convention of 1921 -included in the Bill of Rights to this Constitution a similar provision, and, in order to insure if would be beyond the power of -the legislature or the judiciary to depart from what was the then accepted jurisprudence of this court, they added as a part of this same section, Section 11 of Article I, the provision that “No person under arrest shall be subjected to any treatment designed by effect on body or mind to compel confession of crime; nor shall any •confession be used against any person accused of crime unless freely and voluntarily ■made.”

In conformity therewith, the legislature of 1928, in adopting a Code of Criminal Procedure, incorporated in its Articles 452 and 451 respectively the following provisions : “No person under arrest shall he subjected to any treatment designed by effect on body or mind to compel a confession of crime,” and “Before what purposes [purports] to be a confession can be introduced in evidence, it must be affirmatively shown that it was free and voluntary, and not made under the influence of fear, duress, intimidation, menaces, threats, inducements or promises.” (Brackets ours.)

It therefore follows that the admissibility of a confession in evidence is predicated upon the state’s establishing its free and voluntary character by proof that is direct and positive, and, under our jurisprudence, this fact must not only be established to the satisfaction of the trial judge out of the hearing of the jury but his ruling with respect thereto will not be disturbed on appeal unless clearly not supported by the evidence. Once in evidence, of course, it is for the jury to say what weight shall be accorded a confession.

Following this procedure, the state, before offering the confession of the accused in evidence, offered the testimony of Jailer Estopinal, to whom the confession had been made, who affirmatively and positively stated the accused had confessed to him freely and voluntarily without any inducements or duress. The accused, taking the stand in his own behalf, testified he had been beaten, threatened, and otherwise mistreated by Deputy Sheriff Langlois (who died before the trial of the case) and State Police Sergeant Bradley (who was present in the courtroom but not called to testify on this point) in the presence of Jailer Estopinal, to whom he subsequently made the confession, but not until he had been led to believe that if he confessed it would be easier on him, with the suggestion that he would get the same sentence the prisoner in the adjoining cell had gotten— 10 days.

During this hearing the jailer, while on cross-examination, said State Officer Bradley made the statement with reference to having the accused in the palm of his hand but he denied the accused had been mistreated in the manner he subsequently testified he had. However, from a thorough study and analysis of the defendant’s own testimony, we are compelled to admit our conclusion that the statement attributed to Bradley was a veiled threat or coercive bidding calculated to induce a confession is not clearly borne out by the record.

It appears from the testimony of the accused that his motive for making the confession was not the previous treatment allegedly accorded him, but, rather, the jailer’s statement to him later the same afternoon that it would go a lot easier with him if he did confess.

In giving his- version of the incident the accused makes no reference to the remarks about the “palm of the hand” attributed to Bradley, but, instead, says the police officer told him he was coming back “and when I come back, you can give your soul to God, and you know what to me.” In his next answer the accused clarifies this statement by saying “He told me that if the dirt [from the scene of the crime] turned out to be like the dirt in the paper that he had [just raked from the pants of the accused 'by the state officer], that I could give my soul to ‘God and you know what to me.’ ” And again, when he was questioned about his footprints, he stated: “If the dirt would turn out like the dirt in that paper, I could give my -soul to God.” (Brackets ours.) This conversation took place about 1:30 in the afternoon. The accused testified further that later that same afternoon, at approximately 4:45 p. m., the jailer told him it would be easier if he would tell the truth because if the result of the test was unfavorable “he would catch hell,” and that the jailer, pointing to the man in the next cell, told the accused he had confessed to the truth, whereupon the accused asked how many days the man had gotten and when the jailer replied “Ten days,” he then confessed. But he says, “At that time, I didn’t know it was rape, so I lied on myself.”

We are, nevertheless, of the opinion that the record as made up fails to establish the state discharged its burden of establishing affirmatively the confession was freely and voluntarily made. We think that after the accused testified in detail about the mistreatment he received and the inducements offered him at the time he confessed, the jailer should have been recalled and re-examined with respect to the particulars testified to by the accused in order that the trial judge might have been afforded a better opportunity to weigh and decide this very important issue.

For the reasons assigned, our original decree annulling and setting aside the conviction and sentence and remanding the case for a new trial, is reinstated and made the final order of this court.

O’NIELL, C. J., takes no part.

McCALEB, J., concurs in the decree adhering to the views expressed in the original opinion.

       He worked on a night shift at an iee factory.

       The evidence shows that the State Police Officer scraped dirt from appellant’s feet and trousers for the purpose of analysis with dirt found on the floor of the victim’s house.

       The State policeman testified after appellant’s oral statement to the jailer had been admitted in evidence and denied that he threatened appellant or that he made the statement which appellant attributes to him. He, however, did not deny that he told appellant that he had him in the palm of his hand and that he had better confess.

       The writer of this opinion dissented in the Ross caso and has not changed his views in any respect. He, however, is of the belief that the case at bar is distinguishable from the Ross case on two grounds — (1) that the language used by the police officer in this matter is much stronger in its context and, therefore, cannot be regarded as a mere exhortation, and (2) that, in view of the fact that appellant is a boy 16 years of ago, the chances of influencing Mm were much greater than in the case of an adult.

       The Attorney General stated, in oral argument, that the admissibility of the statement was governed by the same rules applicable to a confession and it was treated as a confession in the District Court.


author: HAMITER, Justice.

text:
    215 La. 990
    AVANT v. OUACHITA PARISH SCHOOL BOARD et al.
    No. 39162.
    Supreme Court of Louisiana.
    April 25, 1949.
    Rehearing Denied June 30, 1949.
    Fred Fudickar, Jr., Dist. Atty., James H. Trousdale, Jr., Theus, Grisham, Davis & Leigh, Monroe, for defendants-appellants.
    Thompson, Thompson & Sparks, Monroe, for appellee.
   HAMITER, Justice.

The principal question represented by this litigation for determination is whether Mack Avant, the plaintiff, or G. S. Manning, one of the defendants, has been legally-elected superintendent of parish schools of the Parish of Ouachita for the unexpired term of George W. Welch, resigned.

On the trial of a rule nisi, after overruling numerous exceptions, the district court resolved the question in favor of the plaintiff, and, accordingly, rendered a judgment enjoining the Ouachita Parish School Board (sometimes referred to herein as parish school board), another defendant, from recognizing Manning as the superintendent, and commanding it to consider plaintiff as the duly elected official. Further, the judgment restrains and prohibits Manning from exercising or performing .any of the duties of the office, from receiving the emoluments thereof, and from interfering with plaintiff in the performance and discharge of his duties.

From the judgment Manning and the parish school board appealed suspensively.

Although the judgment from which this appeal is being prosecuted was rendered on a hearing of a rule to show cause why a writ of preliminary injunction should not issue, counsel for both sides present the case here as if it had been tried on the merits. For the purpose of this consideration we shall treat it similarly.

The Ouachita Parish School Board is and has been for many years composed of ■thirteen members, corresponding to the members of jurors on the Ouachita Parish Police Jury, there being one member each from Wards 1, 2, 4, 6, 7, 8 and 9, and two members each from Wards 3, 5 and 10. Wards 3 and 10 embrace property both within and without the corporate limits of the City of Monroe. In the city portion of these two wards live (they have lived there for years) school board members Felix A. Terzia (from Ward 3) and James* H. Trousdale (from Ward 10); the other members from these wards reside outside the city limits.

Since long prior to the adoption of the Constitution of 1921 the parish school board has operated and maintained a high school and several grade schools within the limits of the City of Monroe, as well as schools outside that municipality. Also, the City of Monroe, as authorized by its charter, Act No. 47 of 1900, has operated and maintained within its confines public educational facilities, including a high school and some grade schools. The Monroe School Board consists of the Mayor and four elected members, all of whom are required to be residents of the municipality. Thus, within the city two separate and distinct public school systems have operated for a long period of time and are now operating.

At a meeting of the parish school board held on May 7, 1948, with all thirteen members present and participating, George W. Welch tendered his resignation as superintendent and it was accepted. To serve the unexpired portion of his term ending on July 1, 1949, G. S. Manning (a defendant) and Mack Avant (plaintiff) then were nominated. The election which followed resulted in Manning receiving seven votes and Avant six votes. Thereupon Manning was declared the successor to superintendent George W. Welch, effective as of July 1, 1948. Among those voting for him were Felix A. Terzia and James H. Trousdale, members residing in those portions of Wards 3 and 10, respectively, within the limits of the City of Monroe.

On June 30, 1948, Avant instituted the instant injunction proceeding in which he assails the election of Manning, he contending that under the provisions of Section 17 of Act No. 100 of 1922 Terzia and Trous-dale (who voted for Manning) were neither de jure nor de facto members of the school board and, therefore, were not entitled to vote. In the petition it is alleged that they were not on May 7, 1948, and never had been, duly constituted and elected members of the school board; that they were not occupying any offices created by law; that their voting was illegal; and that on excluding their participation in the election plaintiff received six votes and Manning five.

Plaintiff’s position was upheld by the district court, as the above-mentioned judgment discloses, and this appeal followed.

In their brief appellants’ counsel state:

“While numerous collateral and subordinate questions arise in this case, there are two main issues which must be resolved :
“First: Does plaintiff have the right under the law to enforce or protect the rights which he is asserting by resort to a writ of injunction, or is he relegated to the bringing of an intrustion into office suit; and,
“Second: Irrespective of the form of his action and his right to an injunction, does the applicable law support his contention as to the non-existence of the School Board offices held by Messrs. Ter-zia and Trousdale, and otherwise afford him a cause or right of action which can be asserted in Court.
“If the first of these issues is resolved in favor of defendants, then the judgment appealed from must be reversed and set aside and plaintiff’s rule for a preliminary injunction dismissed.
“Such a holding, however, would leave open for determination the second question, which is squarely presented for decision * ;f: »

Counsel for appellee, to quote from their brief, say:

“If Terzia and Trousdale were de jure or de facto members of the Board, then Manning having received 7 votes was legally elected Superintendent for the unexpired term, and the resolution adopted by the School Board so declaring was legal and valid, and plaintiff’s suit should be dismissed.
“If Terzia and Trousdale were not de jure nor de facto members of the School Board, then they were without right to participate in the election of a Superintendent and the acts of the School Board in declaring Manning elected were illegal, null and void, and the judgment of the lower Court * * * is correct and should be affirmed.
“Whether Terzia and Trousdale occupied any offices created by law, or were de jure or de facto members of the School Board, or were prohibited from serving as members of said Board, is to be determined by the construction placed upon those provisions of the Constitution relative to public schools and school boards, and upon Section 17 of Act 100 of 1922. Since this is the paramount issue we first devote our argument to this point.”

The most important issue tendered, obviously, is whether or not Terzia and Trousdale were legally serving as members of the Ouachita Parish School Board. We shall consider it first.

Our Constitution of 1921, in Section 10 of Article 12, recites:

“The Legislature shall provide for the creation and election of parish school boards which shall elect parish superintendents for their respective parishes, and such other officers or agents as may be authorized by the Legislature. The State Board of Education shall fix the qualifications and prescribe the duties of parish superintendents, who need not be residents of the parishes. Wherever a parish contains a municipality, the population of which is more than one-half of that of the entire parish, it shall have representation on the parish school board proportionate to its population.”

And in Section 11 of Article 12, it states:

“Municipal or parish school boards and systems now in existence by virtue of special or local legislative acts are hereby recognized, subject to control by and supervision of the State Board of Education, and the power of the Legislature to further control them by special laws.”

Complying with the mandate contained in Section 10 of Article 12 of the Constitution, the Louisiana Legislature adopted Act No. 100 of 1922, the 17th Section of which reads, insofar as pertinent, as follows:

“There shall be a parish school board for eacli of the parishes, and these several parish school boards are constituted bodies corporate with the power to sue and be sued under the name and style (Name of Parish) Parish School Board. Citation shall be served on the President of the Board and in his absence on the Vice-President.
“The membership of the parish school board shall be as follows:
“There shall be elected by the qualified voters of each police jury ward of the several parishes of the State a member of the school board of such parish for each police juror in said ward, whose term of office shall be for a period of six (6) years.
“When the parish school board, under existing law, has no jurisdiction over or control of the public schools of a city in such parish, and when the limits of a ward of such parish extend beyond the limits of such -city, only that part of the ward outside the limits of such city shall be represented on' the parish school board, and shall have only one member of said board, who shall be an elector of the said ward living outside the limits of such city, and shall be elected by the voters of said ward living and voting outside the limits of said city.” (Italics ours.)

In considering the quoted part of Section 17, the correct interpretation of which will determine the instant issue, it is important to notice first that provision is made for the election, in each police jury ward in a parish, of a school board member for each police juror. The number of police jurors in a ward, in other words, is determinative of the number of school board members to which that ward is entitled. In keeping therewith Wards 3 and 10 of Ouachita Parish, seemingly, are entitled to two members each, since each is represented on the police jury by that number of jurors. But is that provision rendered inoperative with respect to Wards 3 and 10 of Ouachita Parish (therein is the City of Monroe which owns and operates a separate system of public schools) by the remaining language of the quoted portion of Section 17 which states that when the parish school board has no jurisdiction over or control of the public schools of a city in such parish the ward of which that city Í9 a part shall be represented by only one school board member who shall be an elector of the ward living outside the'limits of the city?

Interpreting the words “of a city” in a possessive sense, that is -as having reference to the public schools belonging to a city in the parish, counsel for plaintiff insist that the statutory language in question is applicable here, and renders the preceding provision inoperative, because the Ouachita Parish School Board did not have in 1922, and does not now have, any jurisdiction over or control of, the high school and grade schools belonging to and maintained by the City of Monroe; and, it being applicable, that Terzia and Trous-dale (who do not live outside the limits of the City of Monroe) are and have been illegally serving as school board members.

Counsel for defendant, on the other hand, construe the words “of a city” in a descriptive or geographical sense, that is as relating to the public schools within a city in the parish; and, under that construction, they maintain that the statutory language under consideration is inapplicable here, and that Terzia and Trousdale are legally elected and serving board members, because the parish school board certainly does have, and it has had since prior to 1922, jurisdiction over and control of the public schools which it owns and operates within the City of Monroe.

The intention of the Legislature in employing the words “the public schools of a city in such parish”, therefore, is called in question. But it, apparently, already has been resolved in favor of defendant’s position by this court in McHenry v. Ouachita Parish School Board, 169 La. 646, 125 So. 841, 845. Therein the plaintiffs sued to prevent the Ouachita Parish School Board from levying, under the authority of Act No. 173 of 1928, a special parish wide tax which had been voted by the electors of Ouachita Parish for the establishment and maintenance of a junior college district. Among the numerous objections urged to the constitutionality of the 1928 statute, insofar as it applied to Ouachita Parish, were the following:

“That the conduct of and authority over public schools within and for the city "of Monroe has been intrusted by section 9, Act No. 47 of 1900, exclusively to the Monroe city school board, and the right to levy taxes for the support and maintenance thereof has- been delegated to that municipality and denied to all others; and, for this reason, that the attempt of the Ouachita parish school board to levy the special one-mill tax voted in this case is ultra vires, arbitrary, and unwarranted, and that the provisions of Act No. 173 of 1928 are unconstitutional and void, in so far as they authorize said levy.
“That, in accordanSe with the provisions of section 17 of Act No. 100 of 1922, the city of Monroe, its residents, voters, and taxpayers, and especially the plaintiffs, are denied representation upon the Ouachita school board, and, in fact, they are without any representation whatever upon said board; and that the one-mill special tax imposed by said board upon the property of plaintiffs and of taxpayers generally in the city of Monroe constitutes taxation without representation, and is void.”

In passing upon these objections this court observed and concluded:

“The Legislature of the State of Louisiana created the city of Monroe and its school board, and has the right to modify or change its charter, under section 11, article 12, of the Constitution, so as to permit parish school boards to conduct public schools within its municipal limits.
“The city of Monroe is within a part of the parish of Ouachita, and there are no taxes levied upon the property within the city of Monroe other than those levied on other property in the parish.
“The principal high school conducted by the parish school board, and elementary schools, are located in the city of Monroe, and there is no existing law, constitutional or otherwise, that prohibits the school board of Ouachita parish from establishing schools within the corporate limits of the city of Monroe.
* * * * * *
“This section [17] of Act No. 100 of 1922 has no application, in fact, to the present case, since the city of Monroe is situated in wards 3 and 10 of the parish of Ouachita, and each of these wards has two members on the parish school board. * * * (Brackets ours.)
“Nor has this section any application, in law, since Act No. 173 of 1928, enacted in pursuance of section 11, article 12, of the Constitution, has given jurisdiction to the Ouachita parish school board to establish a junior college in the city of Monroe, in the parish of Ouachita, if the site is selected with the concurrence of the police jury of that parish.
“The city of Monroe does not come within the purview of this section, as it can no longer claim that the Ouachita parish school board has no jurisdiction over or control of the public schools within its municipal limits.” (Italics ours.)

Plaintiff’s counsel challenge the applicability of the McHenry decision, contending that the court therein did not have 'before it the issue of the right of Wards 3 and 10-of Ouachita Parish to have two school board members each. They argue that,, while the court did conclude that each of these wards was represented by two members, the conclusion was based on a stipulation of counsel that the City of Monroe then had a population in excess of one-half of that of the entire parish and on the provision of the Constitution, Section 10 of Article 12, that a city thus populated shall: have representation on the school board proportionate to its population; whereas, im evidence in this case is the United States census for 1940 showing that Monroe’s population is not more than one-half of that of the parish.

But irrespective of the McHenry decision, and just as if this were a matter submitted for initial consideration, it is-our present opinion that the disputed words “of a city” in Section 17 were used by the Legislature in a geographical sense, as defendants maintain, not in a possessive sense.

Contrary to the contention of counsel for plaintiff, the language is not clear and free of ambiguity. The key word or preposition “of”, according to Webster’s New International Dictionary, Second Edition, is susceptible of numerous different connotations, some of which are the following;

“14. Indicating that with respect to which an attribute is ascribed, with regard to which a fact is affirmed, or to which a measure of time or extent is applied; in-respect to; in; — now to a considerable extent replaced by in; * * *
“17. Indicating the possessive relationship, otherwise expressed by the possessive case; 'belonging, pertaining to, or connected' with (a place, time, person, or thing); * *

Thus the preposition “of” is used not only to indicate a relationship of possession but it is often employed also synonymously with the word “in”. That the latter use is common and popular cannot be denied. Frequently, one hears the expressions: “The antique shops of New Orleans”; “The .architecture of Mexico”; “The cafes of Paris”; “The sunshine of California”. In ■each of these, unquestionably, the word “of” connotes location.

Too, it has been interpreted in numerous ■decisions throughout the United States as indicating place or location. The “streets or highways of Baltimore” refer to thoroughfares within the City of Baltimore, not particularly to those belonging to that city. Patapsco Electric Co. v. City of Baltimore, 110 Md. 306, 72 A. 1039, 1041. The “courts ‘of’ the state” include city courts, although the latter form no part of the state court system. Gregory v. City of Memphis, 157 Tenn. 68, 6 S.W.2d 332. The “lands of the state” means the land located within the state and not merely that owned by the state. Sisson v. Board of Supervisors of Buena Vista County, 128 Iowa 442, 104 N.W. 454, 458, 70 L.R.A. 440.

It would seem manifestly unreasonable .and unfair if the Legislature, by the language of Section 17, intended to deny to the .people of a city representation on the parish school board where such board, as in the instant case, owns, maintains and operates numerous public schools within the limits ■of that city. Qearly, people so situated should be represented in the formulating and directing of policy, if for no other reason, with respect to the education of their •children.

Let us suppose that the City of Monroe should relinquish to the Ouachita Parish School Board the ownership, operation and maintenance of all of its schools except one small grade school serving a very few ■children. According to the theory of plaintiff, even under those circumstances, the ■people of Monroe would not be entitled to representation on the parish school board 'because that 'board would have no jurisdiction over or control of the one remaining school belonging to the City of Monroe. We can not believe that the Legislature contemplated a result of that kind.

Section 17 of Act No. 100 of 1922 was intended to apply, we think, where a city owns, maintains and operates exclusively all of the public schools within its limits and where the parish school board’s activities are restricted to the schools of the parish located outside or beyond those limits. In that situation the parish school board would have no jurisdiction over or control of the public schools of (in) the city ■in such parish.

Since the Ouachita Parish School Board has jurisdiction over and control of many of the public schools of (in) the City of Monroe, the disputed language of Section 17 is not applicable here. And it follows logically that the City of Monroe may have representation on such board; that Felix A. Terzia and James H. Trous-dale were and are de jure members; and that defendant Manning was legally electee! superintendent for the unexpired term of George W. Welch, resigned.

In aid of their position plaintiff’s counsel make reference to those provisions in Section 15 of Article 12 of the Constitution of 1921, as last amended in 1946, which announce a rule for the distribution of tax authority between parish and municipal school boards in those parishes containing the cities of Monroe, Lake Charles and Bogalusa. But we do not find that such provisions militate against the conclusion which we have reached.

In view of our announced holding it is unnecessary for us to pass upon the defense that plaintiff is without right to resort to the writ of injunction, his remedy being an intrusion into office suit.

For the reasons assigned the judgment appealed from is reversed and set aside, and it is now ordered that the injunction herein granted be dissolved and that the demands of plaintiff be rejected and the suit dismissed at his costs.

O’NIELL, C. J., takes no part


author: KENNON, Judge.

text:
    ROBERTSON v. GRIGSBY.
    No. 7355.
    Court of Appeal of Louisiana. Second Circuit.
    June 6, 1949.
    Rehearing Denied June 30, 1949.
    Harry Fuller, Winnfield, for appellant.
    Harwell L. Allen, Winnfield, for appel-lee.
   KENNON, Judge.

In December, 1919, plaintiff and defendant became co-owners by purchase of an eighteen acre tract of land in Winn Parish, Louisiana, and of an undivided one-half interest in a fifty acre tract in the same parish. On December 17, 1932, defendant Grigsby, at a tax sale, acquired title to plaintiff’s undivided interest in each of the tracts.

On March 16, 1948, plaintiff filed this suit to set aside the tax title, alleging in his petition that either he or the defendant had paid the taxes on the two tracts until the year 1930 and that the other would reimburse the payor for his portion; that in the year 1930 he (plaintiff) moved to New Mexico and that defendant, notwithstanding an agreement to look after the property and pay plaintiff’s portion of the taxes, subject to reimbursement, had failed to pay the taxes and permitted plaintiff’s interest to be advertised in order that defendant might purchase same and deprive plaintiff of his title. That, on the occasion of a visit by plaintiff, to Winnfield in October, 1939, the defendant advised plaintiff that he had quit paying the taxes on the properties and that a third party had bought the land at tax sale and the identity of this third party was not known to defendant; that, relying upon this statement of defendant, plaintiff had assumed that his interest was lost and plaintiff did not discover until March, 1948 that his interest had been acquired by his co-owner.

Defendant filed an exa jjtion of no cause or right of action, an alternative plea of prescription of five years, and a plea of estoppel based upon plaintiff’s laches in permitting the tax sale to remain of record from December, 1932, to the date of filing suit. The District Court overruled the exception of no cause or right of action and referred the other pleas to the merits. Defendant -then filed a plea of ten years prescription based upon possession in good faith under a just (tax) title translative of ownership. His answer reurged the exception and pleas previously filed; set forth that prior to plaintiff’s leaving the State of Louisiana plaintiff and defendant each paid his own share of the taxes on the land owned by them in indivisión; that no reimbursement was necessary or agreed upon; and denied that plaintiff, prior to his departure from the state, had made any arrangements regarding the payment of taxes. The answer admitted that plaintiff’s undivided interest in both tracts was purchased in defendant’s name at tax sale, but the defendant set forth that he was absent from the Parish of Winn at the time of the sale; that his two sons paid defendant’s share of the taxes and “bought in” plaintiff’s interest and caused the adjudication to be made in favor of defendant and that all of this was done in good faith; that the defendant had made efforts to locate the plaintiff after the sale without success; that defendant, on the occasion when plaintiff returned to Winnfield for a visit about 1939, had advised plaintiff that he had bought in his property at tax sale and that plaintiff expressed no desire or inclination to redeem it. The answer ended with the prayer that plaintiff be condemned to pay all back taxes in the event the tax title should be annulled ’for any reason.

The District Court, in a well reasoned written opinion, found that plaintiff and defendant purchased the two properties jointly in 1919; that until 1930 there was no trouble regarding their joint ownership, when one paid the taxes, the other promptly reimbursed him the amount due; that after plaintiff left the state in 1930, the defendant Grigsby purchased plaintiff’s interest in both tracts of land; that plaintiff in 1939, on the occasion of his visit to Winnfield, was informed by defendant that the property had been acquired by some third party at tax sale and that it was not until 1948 that plaintiff discovered that defendant had purchased his interest.

Noting that the contest was one between the co-owners of the property and that .the rights of innocent third persons were not involved, the District Court gave judgment for the plaintiff. The case is before us on defendant’s appeal from that judgment.

In 1919 both plaintiff and defendant were residents of the Town of Winnfield, Louisiana. On December 6 of that year they purchased jointly from L. M. Tannehill an undivided one-half interest in the fifty acre tract involved in the present suit, and on December 30 of the same year, the two made a second joint purchase from W. A. Hayles of the eighteen acre tract. Their friendly relationship still existed in 1930. The taxes on their joint property were paid by first one or the other and reimbursement was made by the other party without difficulty or incident. Plaintiff left the state in 1930. He paid no taxes for the year 1931 and in December, 1932, defendant paid the taxes on his undivided one-half interest and became purchaser at tax sale of the undivided one-half interest of plaintiff in both tracts of land. The record does not establish that defendant, after this purchase, made any serious effort to contact plaintiff.

In the case before us, the amount of taxes due by plaintiff for the year 1931 was relatively insignificant, less than $3. Defendant’s payment of the taxes from 1931 to 1936 did not amount to a substantial advance and we deem it equitable under the circumstances to hold that plaintiff’s failure to reimburse defendant or inquire into the amount of taxes due prior to the timber sale in 1936 was not sufficient—as a matter of equity—to hold that he had lost his right of redemption or acquiesced in the loss of his title, which at that time was not known .to him. In 1936 defendant received approximately $175 from the sale of timber on the property in controversy—enough money to reimburse him for all taxes expended on plaintiff’s •behalf and to leave sufficient funds in his possession to pay the taxes for many years to come. Defendant’s action in 1939 in telling plaintiff that both had lost their land had the effect of misleading plaintiff and as a matter of equity plaintiff could not be charged with laches in not making further inquiry regarding the taxes due on the property which he believed both had lost.

The record shows that defendant contacted plaintiff in 1948 at his residence in Houston, Texas and when the plaintiff declined to sign a quitclaim deed, made him an offer first of $100 and later of $300 for his signature. It was then that plaintiff realized that no third party had purchased his interest in the property and decided to return to Winnfield and find out the full facts. The present suit was filed a short time afterwards.

As stated in the case of Keller et al. v. Haas et al., 209 La. 343, 24 So.2d 610, there is no constitutional or statutory law governing the rights of the parties in cases of this sort and the Court must be guided by the principles of equity and prior decisions in similar cases.

In the case before us, the record shows that the purchase of the two pieces of property by plaintiff and defendant was in the nature of a joint enterprise; that plaintiff, after leaving Louisiana, relied upon the defendant and was misled into believing, after 1939, that both had lost their interest at tax sale to a third party. As noted by the District Court, the rights of third persons have not intervened. As explained above, the situation disclosed by the record does not show that the plaintiff has been guilty of such neglect as to constitute an abandonment of his title or an acquiescence in defendant’s acquisition at tax sale. There has been no unusual or unexpected increase in value in the land in controversy. The defendant has had in his possession since 1936 more than enough money from the income of plaintiff’s one-half interest in the land to have paid all charges and taxes due. Under these circumstances, there is no reason why this Court should not follow the well recognized principle of law that the defendant’s purchase of his co-owner’s interest at the tax sale operated merely as a payment of taxes. Murphy et al. v. Murphy, 136 La. 17, 66 So. 382; Doiron et al. v. Lock, Moore & Co., Ltd., et al., 165 La. 57, 115 So. 366; Ensminger et al. v. Vampran et al., La.App., 15 So.2d 161.

The exception of no cause or right of action and the plea of prescription filed by defendant were based on the provisions of Section 11 of Article 10 of the Constitution of 1921, providing that sale of property for taxes shall not be set aside unless the action is instituted within five years from the date of the recordation of the tax deed, and upon the prescription of ten years acquirendi causa.

The Courts of this state have uniformly held that the purchase by one person of his co-owner’s interest at a tax sale operates merely as a payment of taxes, and, as between co-owners, a tax sale cannot be made the basis of a plea of prescription. Bossier v. Herwig et al., 112 La. 539, 36 So. 557 and Chelette v. Chelette, La.App., 5 So.2d 553. The exception and pleas were properly overruled.

Since the plaintiff did not appeal from the judgment nor file an answer to the appeal by defendant, the judgment cannot be amended in his favor and hence it is unnecessary for us to consider whether the fact that defendant in 1936 received certain monies from the sale of timber on the land would relieve plaintiff from the necessity of the repayment of the taxes as ordered in the judgment of the District Court.

The judgment appealed from is affirmed, with costs.


author: ALMON, Justice. ALMON, Justice.

text:
    Elbert H. VINING and Ervine Vining v. John Leslie CHASE and Claudia Chase and Mississippi Valley Title Insurance Co., Inc., a Corporation.
    80-115.
    Supreme Court of Alabama.
    Oct. 2, 1981.
    As Corrected on Denial of Rehearing Feb. 26, 1982.
    Clifford W. Hardy, Jr., Bessemer, for appellants.
    J. W. Patton of Stone, Patton & Kierce, Bessemer, and Jesse P. Evans, III of Smyer, White, Taylor, Evans & Sanders, Birmingham, for appellees.
   ALMON, Justice.

This is an appeal by the Vinings, who were sellers of approximately 29.5 acres of land, from a judgment rendered against them in the amount of $15,427.94 in favor of Mississippi Valley Title Insurance Co., Incorporated.

The pertinent facts are that in April of 1975, the Vinings obtained a deed to the property from Thomas Hendrix and wife. After acquiring this deed the Vinings obtained on July 2, 1975, at the cost of $124.00, an “Interim Title Insurance Binder” from Mississippi Valley, which insured that fee simple title to the property was vested in the Vinings. The binder agreed to issue a title policy “to any purchaser of present owners”, upon compliance with certain conditions arid subject to certain reservations not here pertinent.

On July 17, 1975, Mississippi Valley issued a second binder to John Leslie Chase and Claudia Chase as well as to Peoples Bank of Centreville, again showing the Vinings as owners of a fee simple title¡ On August 1, 1975, the Vinings conveyed title to the property by warranty deed to Mr. and Mrs. Chase and a final policy of title insurance was issued by Mississippi Valley to the Chases insuring that the Chases now held fee simple title.

It was later discovered that the Hendrix-es never had title to the property and, consequently, neither did the Vinings or the Chases. Subsequently, suit was filed. Several parties, claims, cross-claims, counterclaims and third-party claims were involved in this suit. The only portion of the judgment which is before this Court is the award in favor of Mississippi Valley on its cross-claim against the Vinings wherein Mississippi Valley claimed damages as sub-rogee of the rights of the Chases.

The Vinings defended the cross-claim of Mississippi Valley on several theories. We are only concerned with the theory of estop-pel, because we are of the opinion that the trial court erred when it failed to hold that Mississippi Valley is estopped to assert its subrogation claim, which is inconsistent with its previous contractual assertion.

In Ellison v. Butler, 271 Ala. 399, 124 So.2d 88 (1960), this Court stated the circumstances under which estoppel arises:

... equitable estoppel or estoppel in pais is defined as the principle of law “by which a party who knows or should know the truth is absolutely precluded, both in law and in equity, from denying, or asserting the contrary of, any material fact which, by his words or conduct, affirmative or negative, intentionally or through culpable negligence, he has induced another, who was excusably ignorant of the true facts and who had a right to rely upon such words or conduct, to believe and act upon them thereby, as a consequence reasonably to be anticipated, changing his position in such a way that he would suffer injury if such denial or contrary assertion were allowed.”

271 Ala. 401, 124 So.2d 88.

This same rule appears again in Moordian v. Canal Insurance Co., 272 Ala. 373, 130 So.2d 915 (1961). While Ellison, supra, and Moordian both held the facts in those cases were insufficient to support an estoppel theory, we find that the facts and circumstances in this case clearly support such a theory.

The only logical conclusion to be drawn from the Vinings’ purchase of the initial title binder is that they wanted the assurance of a title expert that they had marketable title. The Court notes that Mississippi Valley, like any other title insurance company, holds itself out as an expert in the examination of real estate titles. In reliance on this expertise the Vinings retained Mississippi Valley to insure their title. Mississippi Valley certified to the Vinings that they had good title by the binder of July 2, 1975, which bore number J-20378.

While admittedly the subsequent binder and final policy were issued to persons other than the Vinings, it is apparent that they were so issued pursuant to the original binder. In fact the second binder which was issued to the Chases and to Peoples Bank of Centreville, as well as the final policy issued to the Chases, bears the same identifying number as the original binder, i.e., J-20378. The contractual relationship, therefore, originated with the July 2, 1975, binder and the subsequent documents were all part of the same undertaking.

We therefore conclude that Mississippi Valley, having at the request of the Vinings issued title binders and a final policy in which it took the position that the Vinings had a good and merchantable title, can not now take advantage of a claim that the Vinings did not in fact have such title. We also conclude that since Mississippi Valley was paid a valid consideration for its assurance of title, the Vinings are entitled to recover from Mississippi Valley any sum which they are required to pay on the judgment against them in favor of the Chases. It follows that the Vinings are not entitled to recover on their third party claim against the Hendrixes since Mississippi Valley is estopped to assert a claim against them.

The trial court’s decree is hereby reversed and this cause is remanded for entry of a judgment consistent with this opinion.

REVERSED AND REMANDED.

TORBERT, C. J., and FAULKNER, EM-BRY and ADAMS, JJ., concur.

ON APPLICATION FOR REHEARING

ALMON, Justice.

OPINION CORRECTED; APPLICATION OVERRULED.

TORBERT, C.J., and FAULKNER, EM-BRY and ADAMS, JJ., concur.