text:
    No. 13,506.
    The State of Louisiana vs. Adolph Vicknair.
    Syllabus.
    1. The “crime against nature”, as announced by the Act of 1805, was a common law offence, and Lire 33rd section of said act, referring to the common law for the definitions of the crimes therein denounced, applied to it, as to the other common law offences named in the act.
    2. It has been repeatedly held that the 33rd-section of the Act of 1805 was not repealed, but expressly preserved, by the legislation of 1855, upon the subject of crimes and offences, and it is now too late to reopen the question.
    3. Section 976, Revised Statutes, is merely a re-enactment of the preserved section 33 of the Act of 1805, and is not the adoption of a system or code of laws, by reference to the same, and hence, is not in contravention of Article 116 of the Constitution of 1S68.

      4. The “crime against nature” being a common law offence, made a statutory offence in this State, and the definition of which, as known to the common law, having been adopted by statute, it was competent for the legislature to amend the existing law denouncing and defining said crime, by declaring, as was done by the statute of 1896, that a particular act, not otherwise so considered, should constitute said crime.
    5. Where it app'oars that the defendant had voluntarily gone to the house of the father of the boy with whom it was said that he had committed the crime, for the purpose of discussing the matter, and, whilst there, denied the charge as to the boy in question, but admitted that he had committed such crime with others, whom he named, the mere fact that the father of the boy . mentioned, replying to a question, asked by the son of the accused, as to what he was trying to do with their family, said that he meant no harm to the son or his mother, but he intended to put that dirty old fellow, pointing to the accused, where he belonged, does not‘make the confession of the accused any the less freo and voluntary, quoad the offence admitted by him, and the same is admissible in evidence in a prosecution charging him with having committed the offence with one of the persons named by him, it being a question for the jury whether the confession, general in terms, applied to the particular offence charged.
    6. Proof of emissio semenis is not necessary to conviction in a prosecution foi the “crime against nature”, as denounced by Act 69 of 1896, nor does it matter, in the case of an adult, whether he be charged as agent or pathic, so long as the particular act charged brings it within the definition of a crime as contemplated by section 976 of the Revised Statues and by the Act of 1896, above mentioned.
    7. Where the accused is a man of mature age and the prosecuting witness is a boy between fourteen and fifteen years of age, the delay in bringing the charge against the former is not unreasonable where such charge is brought within a year.
    8. A requested charge that “the testimony of an accomplice could not be ‘taken’ unless corroborated by evidence going to -show some fact, not only that a crime had been committed, but that the prisoner is implicated in it”, is properly refused. And such refusal does not involve the question whether the judge ought to warn the jury that they ought not to convict on the uncorroborated testimony of the accomplice.
    APPEAL from the Eighteenth Judicial District, Parish of Lafourche. — Oaillouet, J.

      Milton J. Cunningham, Attorney General, (Charles M. Cunningham, of counsel) for Plaintiff, Appellee.

      Beattie & Beattie for Defendant, Appellant.
   The opinion of the court was delivered by

Monroe, J.

Defendant was convicted, under Act 69 of 1896, of the “detestable and abominable crime against nature”, committed, as to him, “with the mouth”, with a boy, over fourteen years of age, and has appealed from a sentence of six years imprisonment, subject' to ■commutation. The questions presented for our consideration are embodied in two motions to quash the information, in several bills of ex-■eeption, and in motions for new trial and arrest of judgment.

I.

The motions to quash are based upon the propositions, that the offence ■charged is not defined by, and hence constitutes no crime under, the laws ■of this State; that the crime against nature, as denounced by the Act ■of May 4, 1805, was not a common law crime; that the 33rd section of said act, referring to the common law for the definitions of the crimes therein denounced, therefore, furnished no definition of it, and that .said crime is not defined by either section 788 of .the Revised Statutes, or by the Act No. 69 of 1896; that, if it be claimed that said crime was known to the common law, and that section 33 of said act of 1805 furnished a definition of it, by referring to the common law for the .same, said section was repealed by section 73 of act No. 121 of 1855; and that, if it be claimed that such definition is to be found in section '976, Revised' Statutes, said section is unconstitutional,- in that it contravenes Article 116 of the Constitution of 1868, under the dominion •of which it was adopted.

It is further claimed that the information is defective, in that it pretends to charge two distinct crimes, in the same count, and that it is too vague and indefinite properly to place the defendant on his guard.

“The detestable and abominable crime against nature, committed with mankind or beast”, as denounced by the act of 1805, and by section 788 of the Revised Statutes of 1870, was held by this court, in State vs. Williams, 34th Ann. 87, to have been a crime known to the •common law. Referring to this case, Mr. Bishop says: — “In Louisiana, a statute making punishable the ‘crime against nature’, was adjudged, it is believed correctly, to refer to sodomy and to be sufficiently specific and definite.” Bishop’s New Cr. L., 1191. The same writer quotes Hawkins, to the effect that the crime was a “felony by the ancient common law”, Ibid., Par. 503. Blackstone speaks of it as the “infamous ■crime against nature,” pecatum, Mud horrible, inter christianos non nominandum, and says that, under the ancient law, the penalty was death by fire, and that Fleta was of the opinion that those convicted of it should be buried alive; but that, “being in times of popery only subject to Ecclesiastical censures”, it was made a felony without benefit of clergy by statute 25, Henry VIII. c. 6, revised and confirmed by 5 Eliz.. c. 11; and that hanging is the general punishment of all felonies.

Bl. Com., Vol. 4, p. 215.

The effect of the statute of Henry VIII, therefore, was to restore to the common law jurisdiction, and to modify the penalty for, a crime, which had long been known to and punished by the common law.

Even if this were not so, the statute of Henry VIII is considered to. have been sufficiently early in date to be common law in this country. Bishop’s New Cr. Law, 503; and this is particularly true with regard to Louisiana. Thus, in State vs. McCoy, 8 R. 545, our predecessors in this court, having occasion to consider a modification or amendment to-the common law, by statute of Edward VI, said that section 33 of the Act of 1805 “must be understood as having adopted that system of law,, as it existed in 1805, modified,- explained and perfected by statutory enactments so far as these enactments are not inconsistent with the peculiar character and genius of our institutions”, and the statute of Edward VI, fixing the venue in a certain class of murder cases, was accordingly held to be common law, within the meaning of the statute of 1805.

It is urged that the 33rd section of the act of 1805 is repealed by section 13 of Act 121 of 1855; thus, it is said, leaving the crime with which the defendant is charged without the reference to the comomn law ngon. which it depends for its definition. Whatever may have been the merits of this contention, as an original proposition, it can not be sustained at. this time, since it was held by this court, shortly after the adoption of the act relied on, and lias been so held repeatedly since then, that section 33 of the act of 1805 was “expressly preserved in force by the 73rd section of the act relating to criminal proceedings, No. 121 of the session acts of 1855, State vs. Lacombe, 12 Ann., 195; State vs. Smith, 30 Ann., 846; State vs. DePass & Baptiste, 31 Ann., 847; and that it ia reproduced in section 976 of the Revised Statutes, State vs. Gaster, 45 Ann. 636, which ruling effectually meets the objection to the constitutionality of said section 976, predicated upon Article 116 of the Constitution of 186S, since the section in question was merely a re-enactment of an existing statute, and not of a “system or code of laws”, the reenactment of which, by reference thereto, was prohibited.

The “crime against nature” was, therefore, denounced by the Act of 1805, re-enacted as section 788 of the Revised Statutes of 1870, and the definition of said crime was furnished by section 33 of said Act of 1805, referring to the' common law for the same, which common law° definition has been re-enacted as section 976 of the Revised Statutes of 1870. Rut it seems that there was some doubt, as to whether, when the act was •committed, by one of the parties, with the mouth, it fell within the definition thus furnished. The General Assembly, therefore, passed the Act No. 69 of 1896, imposing the penalty upon any one convicted of the crime against nature “committed with mankind or beast, with the sectual organs, or with the mouth.” Some criticism is indulged in concerning the word “sectual,” as thus used, but the purpose of the law would have been as well accomplished, if it had been left out entirely, and the statute had read “crime against nature committed with mankind or beast * * * with the mouth”, though, no doubht, it must appear that the sexual organ of the one party, or the other, either the agent or the pathic, was used, since the crime, “sodomy” is a carnal copulation by human beings with each other, against nature, or with a beast.”

Bishop’s New Cr. L., Vol. II, 1191.

But why, in the common law courts, the use of the mouth should not have been considered as much against nature, as though the act were committed per anum is incomprehensible.

It is said that the information charges the defendant with carnally knowing the person named, and then charges that he committed the crime, “by sucking with the mouth”, and that these constitute two offences, in one of which the defendant is made the agent and in the other, the pathic. The information is drawn in strict accordance with the form recommended by all received authority; but one crime is charged, and the particular act of the defendant, constituting that crime, is specified. Whether he was agent or pathic is immaterial. Even “those who are present, aiding and abetting the offence, are all principals”. ,

Archibold Cr. Pl. & Pr. 185.

Bill of Exception “A”.

To the admission of an alleged confession by the defendant, on the ground that it was not shown to have been made _freely and voluntarily,, but was extracted by threats.

The'judge a quo gives the following reasons for the ruling to which this bill is taken, to-wit:—

“ The evidence on this point was, that while the witness, Bourg, was “ on the front porch of the dwelling house of T — , engaged in conver- “ sation with the said T — !—-, the latter’s wife, and two men visitors, “ the accused came along in a gig, with his son Cyprien; that when “ they arrived in front of the house, they called, in turn, A-, T-, “ and the witness, Bourg. When these reached the road, Cyprien, hav- “ ing gotten out of the gig, stood in front of the horse, holding it by the bridle, and asked T-what he was trying to do with his, Cyprien’s, “ family. Whether he was trying to ruin them. T-answered, that “ so far as Cyprien .and his mother were concerned he intended them no “harm, and added: ‘But as to that damned dirty old fellow (modit “ vieux Salop),1 want to send him where he ought to have been long ago.’’ “ This was said while pointing to the accused. Cyprien then asked what “ was the matter; what had been done. T-replied that what had “ been done to his family was of such a nature that he would have per- “ ferred the accused to have killed him rather than to have done what “ he had done. • Cyprien then asked again what had been done. T-“then said, the accused s — d the--of my son, Ned, until he has “lost his mind. It was then that the accused protested vehemently “ that he had not. Harsh words then passed from T-to accused, but “ no threats of harm wore made. The son of the accused, Cyprien, then “ remarked to T — — that since the accused said that he had not done “ anything to his son, Ned, his word ought to be as good as Ned’s. T— “ said that it might be better than Neds, because Ned had lost his mind,. “ but he T-would not believe (the accused) under oath. T-then “turning to the accused said to him: ‘You may deny that you have-“put my boy in the condition in which he is, when you have s — d my “son John, Jules--, (the prosecuting Witness in this case), and “-V To which the accused answered, ‘As to those three, I don’t “say no; I did it, but I swear on my honor, I have not done it to- “ Ned.’ “That was, in substance, the evidence, and the nature of the confession. The court was of opinion that it was voluntary.”

We find no error in this ruling, the accused having voluntarily stopped, in order to discuss the question, denied, and continued to deny, the particular charge of which complaint had been made, and voluntarily admitted that upon which he is being prosecuted, ineidently, and in answer to a question. State vs. Tazewell, 30 Ann. 884; State vs. Bartly 34 Ann. 147; State vs. Berry 15 Ann. 1309.

Bill or Exception, “B”.

To the refusal of the judge a q-ii,o to charge the jury that there must be proof of emission, in order to convict. The judge says upon this point:—

“While there was no direct proof of emission, the evidence given by “ the prosecuting witness, the boy with whom the act is charged to have “ been .committed, was to the effect that the accused s — d his sexual “ organ during about three minutes’ time, and there was no evidence “ that the act had been interrupted before completion. The court re- “ fused the requested charge, because it is of the opinion that it was not “good law.”

The crime which we are here considering, is generally regarded as being governed in some respects by the principles of law which are applicable to rape. But it can be readily understood wiry proof of emission might be considered necessary to establish the latter crime and yet not be considered necessary to establish the former. In regard to rape, however, the very best common law authorities were divided in opinion, as to whether such proof was necessary, and it had been decided in the English courts, first in one way and then in the other, prior to the year 1781, when in “Hill’s Case”, (1 East. P. C. 439), it was held that proof of emission was necessary; and so far as we are informed, that decision had neither been reversed nor affirmed, in 1805, when our statute of that year was passed.

Subsequently, by statute of George IV, in 1828, it was declared that, in eases of buggery and rape, proof of penetration, alone, should be deemed sufficient. In this country the same conclusion has been reached; in some States, by the decisions of the courts, construing the common law as it stood before the passage of the act of Parliament mentioned, and in other States, where the common law had been differently construed, by legislative enactment. The question, then, is, whether the decision in “Hill’s Case” is to be regarded as absolutely conclusive as to what the common law was in 1808, merely because it happened to stand unreversed at that time. We are of opinion that it should not be so regarded, and especially with respect to the particular crime with which the present defendant is charged, the enormity of which consists, solely, in its utter bestiality. We are strengthened in this view by the fact, that, as early as 1812, in Virginia, and in 1813 in South Carolina, it was held that, at common law, penetration alone constituted the crime of rape, as well as of sodomy. See Archibold Cr. Pr. & Pl., Vol. II, pp. 164, 165 notes, in which it is said: “In Virginia, as early as 1812, the general court thought that the opinion of Coke, as expressed in his third institutes, 59, 00, and of Lord Hale, (I H. H. 628) together with modern decisions in favor of the fact of penetration alone constituting-the crime of rape, as well as sodomy, were more rational than the contrary opinions and decisions, which require both facts to be proved.”

Citing, also, State vs. LeBlanc, 2 Const. Rep. (S. C.) 351, and Commonwealth vs. Sullivan, Addison’s Penn. Reps. 143.

Bill or Exceptions, “C”.

To the refusal of the court to charge, that in a case tof this kind, “ as in cases of rape, there must have been complaint made within rea- “ sonable time. That the evidence showed the act to have been com- “ mitted in the winter of 1898, and that the prosecuting witness, and ac- “ complice, a. boy of fourteen years and over, stated that he made no “ complaint or statement of the offence till some time about the first “ of August, 1899. ’’The judge a quo states, upon the bill: “The boy was “ over fourteen, but under fifteen years of age, at the time of the com- “ mission of of the crime. The court does not consider the requested “ charge good law in the case at bar, even though it should be considered “ good law in case of rape, which is doubted.”

We entirely concur in this ruling, being of opinion that, considering the character of the offense, the personsl by whom committed, and the time at which the information was filed, the requested charge would have been improper and calculated to confuse the jury.

Bill of Exception “D

To the charge given by the court: “You must judge of his testimony “ (referring to the testimony of the accomplice in the act), whether “ corroborated, or uncorroborated, and give it such effect as you think ■“right;” to which the defendant objected, and asked “that the charge “be given that the testimony of an accomplice could not be taken, ■“unless corroborated by evidence going to show some fact; not only “ that a crime had been committed, but that the prisoner is implicated “in it.”

The learned judge a quo gives the following, as his reasons for the ruling objected to, to-wit:

“After charging the jury that a party consenting to and participating •“in the act charged as a crime was an accomplice, the court charged “ further: ‘The fact that a witness was an accomplice may effect his “ credibility, but not his competency; that he is a legal witness, and 'you “ must determine what credit you think his testimony is entitled to, “ whether corroborated or uncorroborated.’ This was the exact “ language of the charge, the court having before it, at the time of “giving it, approved in the 40th Annual, 739. The law as settled by “ this case, the court takes to govern the matter of the testimony of *‘ accomplices in all cases.”

There is no doubt that an accomplice is a competent witness, provided he is not being tried at the same time with the accused, for or against whom he is called on to testify, the fact of his being an accomplice •affecting his credibility only, of which the jury are the judges. State vs. Prudhomme, 25 Ann., 522; State vs. Bayonne, 23 Ann., 78; State vs. Mason, 38 Ann., 476. The objection that the testimony of an accomplice could not be “taken,” unless corroborated was, therefore, not well made, and was properly overruled. The learned counsel for the defendant, in their very able brief, present an argument, however, based upon the proposition that, whilst the testimony of an accomplice, not on trial with the accused, may be received, the jury should'be warned against convicting on it alone and unless corroborated by some fact, ■deposed to independently altogether of such testimony, leading to the inference that a crime has been committed and that the prisoner is implicated in it; and this proposition, it is said, is embodied, or was intended to be embodied, in the requested charge. We have no doubt that the meaning which the counsel now attribute to the charge requested by them is that which was intended, since they so state, but the language used by them in making their objection and request in the court a qua is not readily susceptible of that interpretation, and means, upon its face, that the jury should be instructed not to consider, at all, the testimony of the accomplice “unless corroborated,” etc. As thus interpreted, the rule applied to it by the judge a quo was certainly correct, and wo must assume that it was made upon the basis of the obvious meaning of the charge as requested, rather than of the intention of the counsel, by whom the request was made. It will be observed that the judge a quo states that he takes the law as settled in. the case in 40 Ann., 739 (State vs. Banks et als.) as governing the matter “of the testimony of accomplices in all cases.” Referring to that case, it appears that the doctrine for which the counsel for the defense contend is there recognized, sinca it was said by the court: “It was not “ only competent for the District Attorney to seek, at any stage of the “ trial, to corroborate the testimony of an accomplice who had turned “ State’s evidence, but it was his duty to do so, in compliance with “ well settled jurisprudence and in justice to the accused themselves,. “ whose counsel were zealous in their efforts to prevent a conviction on “ the uncorroborated testimony of an accompllice, and this was the “ subject of their fourth bill of exceptions, in which they complain of “ the refusal of the judge to charge the jury to give no faith to thé“statements of the accomplice, implicating other persons but himself, “ unless he was therein corroborated by unimpeached evidence.”

The requests made by the defendants’ counsel in the case thus cited,, and that made by the counsel in the instant case, were, therefore, substantially the same, and were denied for the same reason, to-wit: That it is not the law that the testimony of an accomplice is not to be taken or received, or is entitled to no credit, whatever, unless corroborated. And no better evidence, that a ruling upon such a question does not involve the question whether the jury ought to convict on such testimony, uncorroborated, can be found than is afforded by the fact, that, in the case "cited, in which such ruling was made, it was distinctly held that it was not only competent for the District Attorney to corroborate-the testimony of an accomplice, but that it was “his duty to do so, in compliance with well settled jurisprudence,” etc., which doctrine lias, been sustained in State vs. Mason, 38 Ann., 476, the syllabus in which reads:

“While -the jury may convict on the testimony of an accomplice,. “ alone, the judge should caution them, in prudence, not to return a “ verdict of guilty unless such evidence is corroborated; but this court; “ will not control him as to the language he shall employ in giving such instructions.” And in State vs. Callahan, 47 Ann., 481, et seq., where this court, through Mr. Justice Watkins, said: “That we be “ under no misapprehension with regard to the legal status of an “ accomplice who is placed upon the witness stand to testify in behalf “ of the State, let us look into the authorities on the subject and see. “how they stand,” following which is a review of authorities to the effect that a person charged with a felony ought not, ordinarily, to be convicted on the uncorroborated testimony of an accomplice; and declaring the character of the corroboration which should be required. Upon these questions, however, we do not understand the judge a qua to have been called on to rule, and his ruling, as challenged by the bill now under consideration, being- correct, can not be disturbed.

Tiie Motion por New Trial.

Reiterates some of the matter already considered, and sets forth, further, that the pretended confession named no date when the act was committed, and that the law is positive that, in such a case, only one act can be proved, and that must be fixed by the indictment, etc.

It is sufficient answer to this to say that the information charges one. offense as having been committed, upon a date named, and that it was a question for a. jury, whether the confession, as made, applied to that, offense.

The motion in arrest of judgment contains nothing which has not. been already considered.

Judgment affirmed.

Rehearing- refused.


source: Caselaw Access Project

author: Monroe, J.

license: Public Domain

text:
    No. 13,392.
    Shreveport and Red River Valley Railway Company vs. State Board of Appraisers.
    Syllabus
    Article 230 of the Constitution offers exemption from taxation to certain railroad companies on condition that they relinquish aid previously voted them by the parishes, wards, or municipalities, or that they consent to the resubmission o£ the question of granting such aid, if petitioned for by onetln'rd of the property taxpayers. But the property taxpayers are under no obligation to present such a petition, nor are the companies under any obligation to consent to the re-submission; and a failure as to either the petition or consent, within the time prescribed, leaves only the alternative of the exemption or the aid, and the companies, in such ease, can not enjoy both.
    APPEAL from the First Judicial District, Parish of Caddo — Land, J.

      Leonard & Randolph for Plaintiff, Appellant.

      Millón J. Cunningham, Attorney General, and Charles 7. Porter, District Attorney'(Charles M. Cunningham of counsel) for Defendant, .Appellee.

      James C. Egan for the Parish of Red River, Defendant, Appellee.
   The opinion of the court was delivered by

Monroe, J.

The purpose of this suit is to determine whether certain portions of the plaintiff’s railroad, situated in the parishes of Red River and Natchitoches, are exempt from taxation, under the following provisions of Article 230 of the State Constitution, to-wit:—

There shall also be exempt from taxation for a period of ten year» from the date of its completion any railroad or part of such railroad "that may hereafter be constructed and completed prior to January 1st, 1904; provided, that when aid has heretofore been voted by any parish, ward, or municipality toi any railroad not yet constructed, such railroad ■shall not be entitled lo the exemption from taxation herein established, unless it waives and relinquishes such aid or consents to a re-submis■sion of the question of granting such aid to a vote of the property taxpayers of the parish, ward, or municipality, which has voted the same, if ■one-third of the property tax-payers petition for the same within six months after the adoption of this Constitution.”

It is admitted that, with respect to portions of its road, the plaintiff lias been granted aid by the parish of Red River, the town of Coushatta, •and wards “ three ” and “ four ” of the parish of Natchitoches, and the plaintiff, claiming that the portions so aided have been constructed and ■completed since the adoption of the Constitution, alleges that no petition of property tax-payers, for the re-submission of the question of granting such aid, was signed or presented to the proper authorities, within six months after the adoption of the Constitution, and concludes, therefrom, that it is now entitled to both the aid and the; exemption. It is also set up iu the petition that no aid was granted with respect to nine miles of the road, lying between Coushatta and the Natchitoches-, parish line. Inasmuch, however, as this contention has not been urged here, either by brief or orally, we take it for granted that it is abandoned. Upon the part of the defense, the issue of fact is made, with regard to some parts of the road for which the exemption is claimed, that, they were completed before the adoption of the Constitution; but, as a decision of the main question is forced, and, if decided adversely to the-plaintiff, will render the determination of this issue unnecessary, wo need not concern ourselves with it at this time.

With regard to so much of the road as falls within the meaning of the provisions of the Constitution which are invoked, i. e. — so much as-, having- been voted aid, has been -constructed and completed since the adoption of the Constitution, it is not pretended that the plaintiff has, at any time, either relinquished the aid so ¡voted, or consented to the resubmission of the question of granting such aid, and it may be assumed for the purposes of the present inquiry, that no petition of property taxpayers, upon that question, has ever been formulated.

Upon this basis, the position of the plaintiff is -clearly and tersely stated by the learned judge of the District Court, in his able and carefully reasoned opinion, as follows:—

“ Plaintiff’s contention was1 that it was not called Upon or required tog-ive such consent until one-third of the property tax-payers petitioned for a re-submission of the question, and, as no such petitions were filed, within the six months, the right to the exemption became perfect without any action on the part of the company; on the theory that the non-action of the tax-payors was equivalent to a consent on their part to. waive the re-submission of the question.”
“ This contention ” (says the judge) “ would make the article read that the railroad should be entitled to the exemption, unless the property tax-payers’ petition for a re-submission within six months, after May 12, 1896.”

Taking the Constitutional provisions, upon which the plaintiff relies, as a whole, we think that they express and imply the intention of the convention that no company to which aid had been granted by any parish, ward, or municipality, should be entitled to exemption from taxation, unless ili waived the aid so granted; with the saving clause or condition (as to the waiver), that, if the question of granting the aid should be re-submitted to those by whom it was granted, ánd favorably acted on, the company should not be obliged to waive such aid, but might enjoy it, as well as the exemption; provided, however, that the initial steps with regard to such re-submission should be taken within six months aftér the adoption of the Constitution.

Taking these provisions in the order in which they appear, the proposition of the State to the railroad eonrpanies was, to exempt from taxation, until 1904, those roads which should be thereafter constructed and completed, upon the condition that they would relinquish the aid which had been granted them by the parishes, wards, and municipalities.

This condition was neither unreasonable, nor illiberal, since the parishes, wards, and municipalities, in voting such aid, had in view the prospective taxation of the roads to be constructed, as a source from which the subsidies granted would be reimbursed; and it is a legitimate presumption that the railroad companies offered this prospective return as a consideration for the granting of the subsidies. Hence, whilst the Constitutional Convention was willing to assist in the'building of new roads, it was no more than fair that the companies should be required to keep faith with the wards and parishes from which they had already received, and were still receiving, assistance; and they would not have been keeping faith, if they had been allowed to withhold the consideration therefor, and, at the same time; exact a continuance of such assistance. But it may have been argued that those who granted the subsidies might be willing to continue their payment, notwithstanding the exemption of the companies from the obligation to pay their taxes; and the Convention, proceeding upon the theory that such a thing was possible, seems to have met the suggestion by qualifying the obligation, otherwise absolutely imposed upon tire companies (to relinquish the subsidies as a condition to exemption)', by the addition of an alternative-condition, whereby the tax-payers of the wards and parishes should be enabled to express that willingness, if they should think proper to do so, upon the same conditions as those upon which the grants had been made in the first instance. The idea, we may assume, being, that, if the companies were to be authorized to withhold the consideration, or an important part of the consideration, for the grants, the grantors ought to be left to determine whether they would continue the grants without such consideration. The situation was, however, somewhat different from that which existed when the aid was granted. Then, the tax-payers were at liberty to determine, without the consent or co-operation of the companies, whether they would vote a five mill subsidy for ten years, or a greater or less amount, or nothing. But, the aid having been voted and accepted, a contract was created by which they were bound, and it would have been perfectly idle for one-third of them, or all of them, to have petitioned for the re-submission of the question without the consent of the other contracting party, as it would háve been equally idle for the Convention to have authorized any such re-submission. It was, therefore, provided that the companies might consent, upon the one hand, to the subjection of their already secured subsidy to the test of another vote; and that the tax-payers might consent, upon the other hand, to vote upon the question of continuing to pay the subsidy in the event of the non-payment of taxes by the companies. And, merely to put a period to any uncertainty in the matter, a limit, of six months was fixed,-within which action should be taken. But there is nothing to indicate that any compulsion was intended. If it had been the purpose of the Convention, flatly, to add exemption from taxation to the aid which the railroads were receiving from the other sources, that purpose could have been accomplished, simply, -by the omission of the provisions upon the subject of such aid. Or, if it had been thought advisable, to express such purpose affirmatively, the language used, which conveys the idea that the continuance of the subsidy, in ease of the acceptance of the exemption, was to be left to the voluntarily action of the contracting parties, would not have been chosen- As we understand it, the taxpayers were at liberty to again vote the subsidies, which the plaintiff was required to renounce, if it accepted the exemption, but they were under no obligation to do so, and the presenting of a petition, by one-third of them, asking for the re-submission of- the question, would merely have indicated that those who signed were willing to vote in that way. And so, the plaintiff was at liberty to accept, and consent to, a proposition to re-submit the question, but it was under no more compulsion in the matter than were the tax-payers.

If, however, there was not an agreement upon the subject, and if the tax-payers, upon the one hand, did not petition, and the plaintiff, on the other, did not assent, within the six months; and if, in the event that there was both petition and consent, the aid was not again voted, the plaintiff, necessarily, fell back upon the other, and original, alternative” provided in the Constitution, of relinquishing, either the exemption, or the aid.

Rearing in mind that the release from the obligation to relinquish the aid (in order to secure the exemption) was to come to the plaintiff, eventually, not from the mere re-submission of the question, but from a favorable vote thereon, it will be seen that the real meaning of the saving clause attached to the said obligation is, that, if the tax-payers, being afforded another opportunity, again vote such aid, the obligation to-relinquish the same shall be of no-effect; and, bearing in mind, also, that another opportunity to vote on the question of the aid already granted, and in which the plaintiff had a vested right, could only be afforded by means of the consent of the plaintiff, upon the petition to that effect of one-third of the tax-payors, let us consider the language used by the lawmakers, to-wit-

* * ‘ such railroad shall not be entitled to the exemption * * unless it waives and relinquished such aid or consents to- a re-submission of the question of granting such aid to a vote of the property tax-payers * *, if one-third of such property tax-payers petition for the. same within six months after the adoption of this Constitution.”

This requires the concurrence of two things, in order to avail the. plaintiff, viz: The consent of the plaintiff, asid the consent of the taxpayers, evidenced by their petition; or, the consent of the plaintiff, based on that of the taxpayers; or, after the obtention of the consent of the taxpayers; or, if the tax-payers also consent, and evince their consent by a petition.

The thing- to be accomplished by the re-submission was the relief of' the railroad from its obligation to relinquish the aid which..had been granted to it by the tax-payers. No possible benefit could inure to the-latter from such re-submission, and no injury could result to them from the failure to re-submit; and the proposition, that the failure of the taxpayers to consent to the re-submission produces the same effect as though they had consented and had again voted the aid, is untenable.

Putting- the matter, briefly, in another shape; the re-submission, being a suggestion in the interest, of the plaintiff, whereby it might be relieved of an obligation, otherwise absolute, to give up the aid if it claimed the exemption, and might be afforded a chance of enjoying both, by means of a favorable vote by the tax-payers; the converse proposition is equally true, that without such re-submission and favorable vote, no such chance is afforded and the plaintiff remains hound to give up the aid as a condition precedent to its enjoyment of the exemption. But, if the burden of carrying out this suggestion rests upon the tax-payers, wijh respect to the initial step (the petition for the re-submission), what reason could there he for denying that they are equally bound with respect to the final step (the vote oh the question, when re-submitted). And, if they are thus hound to give the aid, exemption or no exemption, why not have left the matter of the aid as it was, since they were already bound for it befoi-e the Constitution was adopted ?

We have assumed that the tax-payers failed to petition for the resubmission, and it is conceded that the ¡plaintiff has neither consented to it nor yet relinquished the aid; hence, as we think, and for the reasons which have been given, neither of the two things have been done, the doing of the one or the other of which was necessary to entitle the plaintiff to the exemption. This was the conclusion reached, by a slightly different process of reasoning, by the judge of the District Court, and his judgment is affirmed.

Rehearing refused.

Breaux, J., dissents.

Watkins, J., dissents.


author: Blanchard, J. Monroe, J. Monroe, J.

text:
    No. 13,386.
    Dauchite Lumber Company, Limited vs. Lane & Bodley Company et al.
    Syllabus.
    Ox Motion to Remand.
    1. Where the record of a cause, or material part of the same, is lost and the appellant, through no fault or negligence on his part, is unable to bring up the case so that the merits thereof on appeal may be examined, the cause 'will be remanded for a new trial.

      2. But an order is made directing the clerk of the District Court to continue his search ior the missing papers for a period of thirty days, and only in the event of not finding same in that time is the decree avoiding the judgment and ordering a new trial to be effective.
    3. District judges admonished as to the necessity for adopting and enforcing stringent rules relative to the safe and orderly keeping of records, and suggestions on this line made.
    On the Merits.
    Where the sheriff issues notice that he has seized a certain parcel of land, which he describes, together with the improvements thereon, and advertises the property, as thus described, for sale, an injunction will lie at the instance of any third person, claiming ownership and possession, to prevent the sale oí another and distinct parcel of land, not included in the description, although the improvements on the latter may correspond to such description.
    ^PPEAL from the First Judicial District, Parish of Caddo — Land,

      Leonard & Randolph for Plaintiff, Appellee.

      Wise & Herndon for Defendants, Appellants.
    On Motion to Remand.
   The opinion of the court on motion to remand was delivered by

Blanchard, J.

Defendant Company appeals from a judgment perpetuating a writ of injunction invoked to prevent the sale, separately from the ground or land on which it stands, of certain machinery claimed by the plaintifE company.

The transcript of appeal was filed here on December 12, 1899.

In his certificate the clerk of the District Court recites that the trans-script is a true and correct copy of the minutes of the court, and of all the papers filed in the case so far as can be found in the records of his office after thorough search. The testimony taken by the stenographer and some of the documents filed in evidence, he avers, have been lost.

It thus appears that the cause is not before the court in such a state of completeness, as to the record, as will enable a'disposition to be made 'of it on this appeal.

To meet this, the defendant and appellant files here a motion to remand the ease for a new trial. As grounds for this, it is averred, under •oath, that the testimony taken by the stenographer, and a map and other records filed in the case, have been lost or mislaid by the clerk of the District Court and cannot be found after diligent search, and that the stenographer, applied to to re-write the testimony from his notes, replies he has lost the latter. It is further averred that the loss of the testimony and records is not due to any fault or negligence of the appellant.

Counsel for appellee, while not contesting the application to remand, suggests that the clerk of the court a qua should be ordered to make a further search for the lost papers in and about his office, and especially in the files and among1 the papers of other causes pending, and that a time within which to make this search should be fixed, at the end of which, if the papers be not then found, a new trial be ordered.

Where, as here, part of the record is lost and the appellant, through no fault or negligence on his part, is unable to bring up the case, so that 'the merits thereof may be examined, the cause will be remanded for a new trial. Watson vs. Clare, 5 N. S. 100; Evins vs. Murphy, 11 R. 477; Lyons vs. Anderson, 5 La. Ann. 602; Wilkinson vs. Martin, 13 La. Ann. 479; Succession of Sheean, 18 La. Ann. 278; Golding vs. Petit, 20 La. Ann. 505; Mulligan vs. New Orleans, 22. La. Ann. 11; Mayor vs. Dupre, 25 La. Ann. 216; Nicholas, Tutrix, vs. Harris, 32 La. Ann. 646; Miller vs. Shotwell, 38 La. Ann. 103.

The suggestion made, as above, by counsel for appellee is a proper one and will be adopted.

The court takes this occasion to admonish district judges of the necessity of making and enforcing stringent rules relative to the safe .■and orderly keeping of records. The records of the court should not be permitted to leave the custody of the clerk, or taken out of his office, or 'out of the court room, by any one except upon the written order of the judge, and for a limited time fixed, and in all eases where the judge grants such order the clerk should be directed to take, in a book required to be kept for the purpose, the receipt of the party obtaining the order, and the clerk should be charged with the strict responsibility of seeing to the return of the record upon the expiration of the limit, and if not returned then, to report the delinquency to the judge and make note of the fact in his receipt book.

Where the court stenographer makes two or more copies or transcriptions of the testimony taken, only one should be filed in the record of the case. The other should be deposited in some safe place dehors the record, and for this, as well as all other matters pertaining to the safekeeping of the records, the clerk should be held to a rigid accountability.

It is ordered that the clerk of the District Court in and for the Parish of Caddo be directed to make further, diligent and exhaustive search and inquiry for the lost testimony and missing papers in this ■'cause, that the search be continued through thirty days from the date of the notification of this order to him, and that he report the result of the same to the district judge.

It is further ordered, etc., that- if the missing testimony and documents be found, the same, under proper certification, be forwarded here as a supplemental transcript in this case.

It is further ordered, etc., that if at the end of said limit of thirty days the missing testimony and documents be not found — the same to-be shown by the certificate of the clerk made to the judge — the judgment appealed from be held avoided and the case be considered remanded to the court a qua to be tried de novo, and be proceeded with as in case of new trial granted.

It is further ordered, etc., that the costs of this appeal be paid by the party who may be ultimately cast in this litigation.

On the Merits.

Monroe, J.

Plaintiff claims to be the owner,, in possession, of five acres of land with the saw-mill plant thereon, in the Parish of Webster, and enjoins the sheriff of said parish from advertising and selling the same under a writ of fieri facias, issued in the suit of The Lane & Bodley Co. vs. H. S. Matthews, No. 4701 of the docket of the District Court.

The answer of The Lane & Bodley Company is, substantially, as follows, to-wit:

It alleges that II. S. Matthews made an application to purchase an outfit, consisting of engine, boiler, planers, machinery, etc., 'for a first-class saw-mill, the price of which' exceeded six thousand dollars; that respondent shipped the same to Webster Parish; sent an agent to deliver it and! to secure the purchase price; and employed an attorney to-advise said agent; that the attorney so employed advised that it would be better to buy the land upon which the outfit had been erected and take a mortgage on the same, and also retain a vendor’s lien on the outfit; that said Matthews applied to W. S. Wadley, the owner of the land upon which the saw-mill had been, or was being, erected, who agreed to sell it, and that a surveyor was employed to furnish an exact description of the five acres upon which the said mill outfit was then located; that he furnished a certificate showing that the same was located on the south half of the northeast quarter of the northeast quarter of the northeast quarter of section 7, township 17, north range 9, west, in Webster Parish; and that said Wadley made a deed thereof to said Matthews, the one intending to sell, and the other intending to buy, the parcel of land upon which said mill outfit was then located; that said] Matthews afterwards made a transfer of the land so purchased to the Lake Bisteneau Lumber Company, by an act which recites that it is “the same land upon which the said Lake Bisteneau Lumber Company has placed a valuable plant,” and that said Wadley and Matthews, and their transferrees, are estopped to deny that said mill plant is on the land described, since, if ,the description is erroneous, it is a clerical error, the intention of the parties being to buy and sell the land upon which the mill plant stood. Respondent further alleges that, at the time that the vendors of the plaintiff pretend to have seized and sold said plant, it was in the possession of the sheriff, under respondent’s seizure, and that any sale under an adverse seizure was null. There is, then, a prayer for the dissolution of the injunction, with certain damages, which are alleged, and with the recognition of respondents’ rights in and upon the mill plant and the land upon which it is situated.

To this answer, the plaintiff offered to file a pleading, somewhat in the nature of a replication, in which there is set up, 'inter dbiaf the pleas of res adjudicaba, and of estoppel, and the objections of the defendant to ■certain portions thereof were in part sustained and in part overruled by the judge a quo. The parties, thereafter, proceeded to trial and there was judgment for the plaintiff in injunction, from which the defendant has appealed.

The facts disclosed by the evidence in the record, are as follows:

Sometime prior to the month of April, 1891, H. S. Matthews, C. M. Andrews, J. W. Miller, B. E. Andrews, J. W. Catlett, John L. Zeigler, II. O. Waller, and J. II. Gearhart, or some of them, agreed to establish a corporation, to be known as the Lake Bisteneau Lumbér Company,, for the purpose of engaging in the saw-mill business, in connection with which agreement they appear to have made some arrangement with W. G. Wadley and C. T. Crowell, for -the use of certain timber lands, owned by those gentlemen in the Pajjish of Webster. As the next step in the establishment of the business, Matthews, upon April 9, 1891,. bought from The Lane & Bodley Company, of Cincinnati, a complete saw-mill outfit, consisting of boilers, engine, and machinery, etc., at the agreed price of $10,698.75, of which a part was paid in cash, and for the balance, the purchaser gave notes, at nine, twelve, fifteen and eighteen months. It was understood at the time, that Matthews was acting for the company which was in contemplation, though the sale was made to him, and the property (which for convenience, will be called the saw-mill outfit, or saw-mill plant) was shipped to him. It seems probable, however, that by the time it reached Louisiana, the company had been organized, so that the machinery was put up, as the company’s mill, on land for which the company took a bond for title from Wadley and Crowell, upon May 30, 1891. This bond, which was duly recorded, stipulates that the Lake Bisteneau Lumber Company agrees to pay said Wadley and Crowell, within two years from its date,. $4,816.60, with 10 per cent, additional from June 14, 1890, and also to’ pay an outstanding note of Wadley’s for $1,000.00, with interest, the payment to be made in monthly instalments, as the lumber on the land should be used by the company, and further stipulates, that “when all the conditions are complied with, W. G. Wadley and C. T. Crowell are to make a good and valid title to the Lake Bisteneau Lumber Company, Limited, to 1260 acres of land, more or less”, which is described, including section 7, township 17, range 9. Shortly after those arrangements, had been made, an agent of The Lane & Bodley Company was sent down to obtain securify for the unpaid balance due that concern. With this view, he conferred with Matthews, the president of the Lumber Company, and obtained legal advice, the result of which was that it was decided that Matthews should buy, in his own name, the particular five acres of land, upon which the mill had been erected, and give a mort- ’ gage thereon, and upon the plant, for the said balance. And, in order that said land should be properly identified, a surveyor was employed to furnish the requisite description, Wadley, who owned the entire section, consenting to make the sale, for the purpose stated. The surveyor, accordingly, furnished a certificate, which was supposed to describe the five acres in question, and Wadley, upon July 29, 1891, in consideration of the sum of $25.00 cash, made title to -.Matthews, to “the south half of the northeast quarter of the northeast quarter of the northeast quarter of section 7, township 17 north, range 9 west, Webster Parish, La.,” it being undoubtedly the understanding of both parties that the land so conveyed was that upon which the mill then stood. Thereafter, upon August 1st, 1891, Matthews mortgaged said land together with the mill plant, said to be thereupon, to The Lane & Bodley Company, to secure his notes, amounting to $9,691.19, given for the purchase price of- said plant. Subsequently, The Lane & Bodley Company seemed to have thought it advisable to obtain some security or recognition from the Lake Bisteneau Lumber Company, and upon April 1st, 1892, that company gave its notes for the balance then due, though the notes previously given by Matthews were not, surrendered or cancelled.

Upon May 17, 1893, the stockholders of the Lake Bisteneau Lumber Company authorized Matthews, its president, to execute the note of the company for twenty thousand dollars, and to secure the same by mort-gage in favor of C. A. Andrews, on section 7, T. 17, R. 9, and the entire mill plant and machinery, etc., “for the purpose of securing “ funds to liquidate the indebtedness and for the purpose of operating “the business of the company, and making necessary improvements.” And, upon the same day, the note was made and an act of mortgage executed to secure it, affecting said section 7, “and improvements “ thereon, including steam saw-mill, fixtures, and entire mill plant,” and also certain other property with which we are not now concerned. This act was executed in the name of The Lake Bisteneau Lumber Company, and of its members and officers, officially and individually, but it contains no recital as to the receipt of the twenty thousand dollars, or any part of it, nor does it acknowledge any indebtedness to O. A. Andrews, the mortgagee, to whom the note was made payable. It is also to be observed that the parties waived the production of a mortgage certificate.

This transaction was followed, on June 16, 1893, by the sale, by Matthews, to The Lake Bisteneau Lumber Company, of the S. 1-2 of the N. E. 1-4 of the N. E. 1-4 of the N. E. 1-4 of Section 7, T. 17, R. 9, upon which, according to the recital of the act “said Lumber Company has placed valuable improvements, and an extensive mill plant for the sawing and manufacturing of pine lumber.”

Following this, upon September 26, 1893, W. G. Wadley, by act before J. A. Thigpen, notary, sold to Richard Furman certain parcels of land, and among them, the section 7, in question, “less the S. 1-2 of the N. E. 1-4 of the N. E. 1-4 of the N. E. 1-4, previously conveyed to H. S. 'Matthews, and by said Matthews to the Lake Bisteneau Lumber Company.” And, upon November 14, 1893, Furman filed a suit in the District Court, setting up the possession of his author, alleging that the Lake Bisteneau Lumber Company was a tenant at will, but that it had refused to vacate, at his request, and praying for its ejection and the quieting of his possession.

But upon March 26, 1894, D. B. Hamilton and L. M. Carter, syndics of “Furman & Hamilton,” sold to the Merchants’ and Farmers’ Bank of Shreveport, the property which Furman had acquired from Wadley, and which was the subject of the said suit; and the bank, upon the same day, sold said property to The Lake Bisteneau Lumber Company for $6,500.00, represented by three notes, secured by mortgage; and, a few days later, to-wit: March 31, 1894, Wadley, in compliance with the obligations of the bond for title, which had been given by him, relinquished and quit claimed said property to said company. Upon September 5, 1894, The Lane & Bodley Company filed suit in the District Court claiming the balance due on the notes given by Matthews, which was stated to be $6,124.93, praying for judgment against Matthews, with recognition of mortgage on the S. 1-2 of the N. E. 1-4 of the N. E. 1-4 of the N. E. 1-4 of Section 7, etc., and of vendor’s lien on the mill plant said to be thereon established. There was judgment! for plaintiff, October 30, 1S94, for the amount claimed, with recognition of mortgage and vendor’s privilege on the five acres in question, and, particularly, on the “steam engine, boilers, and saw-mill machinery now on said land,” which property was specifically ordered by said judgment to be seized and sold to satisfy plaintiff’s demand. And, agreeably to this judgment, a writ of execution issued, December 11, 1894, and thereunder, the sheriff seized the property upon which the mill was actually situated.

The seizure thus made was enjoined by The Lake Bisteneau Lumber Company, January 11, 1895; said company alleging, in substance, that the sheriff was about to sell its property under a judgment to which it was not a party; that the land seized formed no part of that described in the mortgage upon which said judgment was based, but was entirely different from that mortgaged to The Lane & Bodley Company, and belonged exclusively to it; and that the mill plant on said land had become immovable by destination and was not subject to seizure, separately from the land. The Lane & Bodley Company was not made a party to this suit, which was directed against the sheriff, alone, but said company came in by way of opposition. Thereafter, a receiver was appointed by the Federal Court to The Lake Bisteneau Lumber Company, and the receiver objected to, and moved to dismiss, said opposition, with the result that a judgment was rendered, which, by error, appeared to dismiss the suit, and which was reversed on| appeal (Lumber Company vs. Sheriff, 49 Ann., 1283). Thereafter, however, the objection to said opposition was sustained, and upon a second appeal, the judgment of the court a qua was again reversed, the question involved being stated in the syllabus, as reported, as follows, to-wit:

“The asserted error of an act of mortgage, in describing the property, “ may be inquired into and corrected on the intervention of the mort- “ gage creditor, in the suit of an alleged owner enjoining the execution a of the mortgage creditor, the petition of intervention containing the ■“ requisite allegations to show and admit proof of the error.”

Lake Bisteneau Lumber Co. vs. Mims, Sheriff, 50 Ann., 619.

Whilst this litigation was going on, to-wit February 23, 1895, the Bank of Minden filed a petition in the District Court claiming to be a judgment creditor of the Lake Bisteneau Lumber Company in a sum exceeding four hundred dollars; alleging the insolvency of the company, and praying for a judgment of forfeiture and the appointment of ■a receiver; and, the company admitting the facts stated, a receiver was appointed upon the day that the petition was filed, and, upon March Hth, following, the receiver applied for and obtained an order to sell all ■of the property of the company. No action appears to have been taken under this order, however, and, upon July 29, 1895, the district judge made the following order, in a suit entitled “Lake Bisteneau Lumber Company vs. Bank of Minden,” to-wit:

“In this case, by reason of the law and evidence being in favor of the " plaintiff, and, further, by reason of the consent of parties, it is ordered, adjudged, and decreed that the decree and judgment made by " this court in the suit of The Bank of Minden vs. The Lake Bisteneau Lumber Company, Limited, No. 1366 of the docket of said court, be, “ and the same is hereby declared void and is annulled. It is further “ ordered that A. Goodwill, appointed by said decree liquidating com- missioner and receiver of said Lumber Company, is discharged. That “ said Goodwill immediately deliver to said company all of its property, effects, rights, credits, books, papers, etc., which came into his pos- session, or under his control, as such. And it is further ordered that “plaintiff pay costs of this suit; and that the claim of plaintiff for damages he dismissed.”

Upon the same day that this order was made, July 29, 1895, C. A. Andrews, and J. II. Gearhart filed separate suits, in said District Court, praying for oiders of seizure and .sale against the said company, Andrews, upon the note of twenty thousand dollars, which has been mentioned before, and Gearhart (an original member of the company), upon four notes, amounting to $1,800.00, secured by mortgage on a little railroad owned by the company. The writs were issued, as prayed for, the seizure was made; II. O. Walter (another original member of the company) was appointed keeper, and, upon September 21, 1895, the property, including the whole of section 7, T. 17, R. 9, and the mill plant, was offered for sale, under both writs, and adjudicated to O. A. Andrews, for $18,900.00, which was credited on said writs, after deducting the costs. Upon March 13, 1896, Andrews sold the entire property to E. L. Trigg, for fifty thousand dollars, of which nothing was paid in cash, the purchaser giving notes, for the whole amount, payable in from one to ten years, and waiving the mortgage certificate and proof of payment of taxes.

Upon August 17, 1896, R. L. Trig-g- sold the property, by such title as he had received from Andrews, and without warranty or mortgage certificate, to the Dauehite Lumber Company, composed of himself and two other persons, the consideration being the assumption of his obligation to Andrews. Upon October 2.1, 1896, D. W. Pratt, sheriff of Webster Parish, who had succeeded the former sheriff, Minims, advertised for sale, on the execution issued on The Lane & Bodley Company’s judgment, the land and mill plant, as described in that judgment and writ. And, upon November 17, 1896, the present injunction was sued out by the Dauehite Lumber Company, Limited.

Thereafter, to-wit: March 12, 1898, the Dauchite Lumber Company,, reconveyed said property to Andrews for and in consideration of the surrender, by Andrews, of the notes which R. L. Trigg had given, as, representing the purchase price thereof, and which had been assumed by said company, the parties waiving the production of the mortgage certificate.

Upon the same day, to-wit: March 12, 1898, Andrews sold the property to the Long Bell Lumber Company, for forty thousand dollars, no-part of which was cash, and the mortgage certificate was again waived.

It further appears that the title passed from the Long Bell Lumber Company, as to the existence of which there seems to be some doubt, to-the Globe Lumber Company; and that R. L. Trigg is now managing it for the latter concern.

And it further appears, from the testimony of the present- surveyor of' Webster Parish, that the mill plant in controversy stands on W. 1-2 of' the S. E. 1-4 of the N. E. 1-4 of the N. E. 1-4 of section 7, T. 17, N, Rl 9, W. instead of upon the S. 1-2 of the N. E. 1-4 of the N. E. 1-4 of the N. E. 1-4 of said section, as it appears in the title of the defendant, in injunction.

The sheriff in proceeding to execute the judgment obtained by the-defendant in injunction issued his notice, and published his advertisement, in the following terms, to-wit:

“By virtue of a writ of execution issued by the District Court in and “ for Caddo Parish, Louisiana, and to me directed, I have seized and’ “will sell at public auction, during legal sale hours, to the last and “ highest bidder, and according to law, at the court house door in the' “town of Minden, Louisiana, on Saturday, November 26, 1896, the- “ following- described property:
“South half of the northeast quarter of the northeast quarter of the- “ northeast quarter, Section 7, township 17, north, range 9, west, containing- five acres, in said Parish of Webster, La., together with all' “buildings and improvements, particularly steam engine, boilers and' “machinery; seized as the property of H. S. Matthews,” etc.

The plaintiff in injunction makes no objection to the sale of the* property thus described, but alleges, and it is so admitted by the defendant, that it is the purpose of the sheriff, upon the basis of the seizure of'which this notice and advertisement are given and published, to sell: five acres of ground adjoining' that which is thus described, together with the improvements thereon.

We are of opinion that this can not be done. Leaving out of view all -question of adverse title and possession, and assuming that the plaintiff 'in injunction has no greater rights than the judgment debtor, the law requires the sheriff to give notice of the property which has been seized, and the advertisement is intended to inform possible purchasers as to ■the identity of the property which is to be sold, neither o'f which purposes would be subserved if the notice and advertisement describe property other than that which the sheriff seizes and intends to sell.

The learned judge of the District Court, in his carefully prepared -opinion, says: “It is evident that the defendants’ contention is, that they have the right to sell the land, as described in the writ, and at the same time, sell machinery which is not, and never has been, on said land;” and, holding that such a course was unauthorized, he gave judgment “perpetuating the injunction, sued out in this case,” against the ■seizure and sale of the machinery claimed by the plaintiff separately from the land on which it stands,” and reserving all other issues. We take it for granted that the view, as thus stated, was the one presented in the District Court, but the concluding language of the brief filed in this court on behalf of the defendants in injunction is a prayer that the defendants’ “rights, under their mortgage and vendor’s lien and judgment, in suit No. 4701, be recognized and enforced on the land on which the said mill plant stands, as well as the machinery and buildings thereon;” and the evidence shows that the purpose is to sell the land on which the mill stands, together with the improvements, etc., though the notice of seizure, and advertisement, describe another parcel •of land and the improvements thereon.

Thfs being the case, and in view of the fact that this court has ralready held, in the matter of “The Lake Bisteneau Lumber Company vs. Mimms, Sheriff, et al,” 50 Ann., 619, that the error in the act of mortgage can be so enquired into and can be corrected in a proceeding of this character, we think it advisable that the decree in the instant case should be confined strictly to the issue presented, to-wit: Whether the sheriff, acting pursuant to a notice of seizure and advertisement of particular imoperty, can proceed to sell property other than that ■described.

It is, therefore, ordered, adjudged and decreed, that the judgment-appealed from be modified in) so far as that the defendants in injunction-are perpetually enjoined from further proceeding with the seizure and sale of the property herein claimed by the plaintiff upon the basis of the notice of seizure and advertisement as heretofore given and published, and that, as thus modified, said judgment be affirmed, -thenppellant to pay all costs.

On Application for Rehearing.

Monroe, J.

The foregoing decree is so far modified, that the costs of' the appeal are ordered to be paid by the appellee, and the rehearing is-refused.


author: Ntoholls, C.J. Breaux, J.,

text:
    No. 13,416.
    Mrs. Frank Welsch vs. Antoine Augusti.
    Syllabus.
    1. Where the rental value of property which plaintiff recovers in a petitoryaction has been established, up to the date of the trial, it will be taken as-the continuing value of the same, up to the date of the delivery to the plaintiff. Judgment for future rent will be given on that basis.
    2. The probative force of a tax deed is much weakened when its recital as to notice instead of being specific, consists in the mere transcription therein, of the sweeping recital from the tax collector’s general proces verbal of tax sales, that he had given notice to all of the tax payers therein named, in one-of the methods required by law.
    3. A person claiming ownership of property in the city of New Orleans under a tax sale made under Act No. 85 of 1888, must sustain the deed’s recital of notice, by evidence aliunde, when the owner of the property denies the fact of such notice having been given and supports his denial by his testimony.
    4. An ex parte order of court directing the issuing of a writ to the sheriff to place the adjudicatee at a tax sale in possession of the property purchased, furnishes no basis for a plea of res judicata as to the ownership of the property under the tax proceedings. The owner of the property is not estopped from claiming ownership by the execution of such a writ by the sheriff by notice by him to a lessee to leave the premises and the subsequent attornment of the lessee to the tax adjudicatee.
    5. Actual possession for three years by an adjudicatee of property purchased at a tax sale, protects him against an action to invalidate the tax title, but does not bar the bringing of a petitory action for the property where the-tax title is so radically null as to justify its being ignored. (LeSeigneur vs. Bessan, 52 Ann. 187.)

      ^ PPEAL from the Civil District Court, Parish of Orleans — King, J.

      ¡Frank McGloin for Plaintiff, Appellee.
    .Farrar, Jonas & Kruttschnitt for Defendant, Appellant.
   The opinion of the court was delivered by

Ntoholls, C.J.

Plaintiff, alleging herself to be the owner of certain -described property, averred that defendant had unlawfully taken possession of and retained the same, claiming to be the owner, thereof; that he had been unjustly in possession of said property since before the 1st day of July, 1899, and being in bad faith, he owed petitioner rents .and revenues during the entire period of his unlawful occupancy in the past, and should be hold, also, for rents and revenues during such period .-as he might occupy said property, until dispossessed by the orders of 1he court.

Petitioner charged that the rents and revenues which defendant ■should account for and pay were at the rate, at least, of thirty-five dollars per month, during- all, the term of his unlawful occupancy, said thirty-five dollars being the proper rental and the true value of said property or occupancy thereof, per month.

She prayed for citation, and that she be adjudged sole owner of the property; that defendant be condemned to pay her rents and revenues, .at the rate of thirty-five dollars per month from the 1st of July, 1889, until such time as he should surrender the possession of the property claimed, as demanded.

Defendant answered. After pleading the general issue, he averred that he was the owner of certain property which he described. That it belonged to him by virtue of the purchase thereof made by him at a .sale made by Thomas Duffy, State Tax Collector of the Second District of New Orleans, on the 11th day of May, 1889, which said sale was made after, and pursuant to all formalities required by law, and was ■duly registered in the conveyance office book of the Parish of Orleans, which sale was passed before P. A. Rabouin, notary public, on the 25th ■day of May, 1899.

That said sale was made subject to a right of redemption of said property at any time, for the space of one year, beginning from the date •when said act was filed in the Conveyance office, by paying the price paid by the purchaser,, with twenty per cent, and costs added, but that no attempt had ever been made to redeem said property, and that after the lapse of one year the date of the registry of said act in the Conveyance office, to-wit: On the 25th day of May, 1890, defendant became the owner of said property, in fee simple, without any rights of redemption, or otherwise, on the part of any person whatsoever.

That defendant was duly placed in possession of said property by an order of the Civil District Court, rendered in the matter of Antoine Agusti vs. Mrs. Frank Welsh, No. 30,348 of the docket of said court, and that he was actually placed in possession of said property on the 9th day of June, 1890.

That owing to the indefiniteness and vagueness of the description of the property in plaintiff’s petition, defendant was unable to say whether or not she referred, in her said petition, to the same property belonging to him, as above described, but if plaintiff did refer to his property in her petition, then defendant pleaded the proceedings had in said suit No. 30,348, as res judicata against the demand of the plaintiff herein, and further averred that from the time when he was placed in possession of said property, on said 9th of June, 1890, he had been continuously, interruptedly, peaceably, and in good faith, in possession of the same, under title translative of property, and that he, therefore, pleaded the prescription of three and five years in bar of plaintiff’s aetiofi.

That in the event that the court should decree against him, then that he could not be evicted by plaintiff until she should have paid him the amount paid by him at said tax sale, as appeared upon the face of said act of purchase, to-wit: the sum of forty-seven dollars ($47.00), with interest thereon at ten per cent, per annum from the date of said Sale, to-wit May 11th, 1889, until paid, and, also, the sum of eight hundred and fifty-six and 30-100 dollars ($856.30) spent by defendant for necessary repairs and improvements to, and expenses incurred on said property since he had been in possession of the same, as shown in a detailed statement annexed to, and made part of the answer.

.He prayed to be dismissed with costs, or in the event that the court should render a decree evicting him from the whole, or any part of the property whereof he was in possession, that the court do by its judgment further provide that plaintiff should before evicting him from said property, pay to him the sum of eight hundred and fifty-six 30-100 dollars ($856.30) amount expended by him for taxes upon said property, for necessary repairs and useful improvements made thereto, and expenses incurred thereon, and the amount paid by him as the purchase price at said tax sale, with interest upon the amount paid to-wit: Forty-seven, dollars ($47.00) with ten per cent, per annum interest thereon, from May 11th, 1889, until paid, and on each item of disbursements by him, at like rate from the date when made, until repaid to him.

Defendant having' died, his widow, Amelia Robinson (as partner in community, his succession through 'Ms said widow as administratrix) and his sole heir, Rosa, widow of Leon Auladell, were made parties defendant.

The District Court rendered judgment in favor of the plaintiff for the property claimed.

It further ordered, adjudged and decreed the tax title and deed issued to defendant, and held by Iris succession and heirs, covering the said property, executed May 11th, 1899, null and void.

It further decreed that the plaintiff have judgment against the succession of defendant, and Mrs. Rosa Augusta, widow of Leon. Auladell, sole heir of defendant, for the fruits and revenues of said property, at the rate of twenty-four dollars per month from and beginning with the 15th day of April, 1895, until delivery by defendant to plaintiff, of the said property; and with legal interest on each rent installment from the fifteenth of each month on which same fell or might fall due.

Upon defendant’s recoaaventional demand, the court decreed that the succession of the defendant and his widow and heir, recover judgment for seven dollars, with ten per cent, per annum interest from May 11th, 1889, and for the amount of the city taxes for the years 1889, 1890, 1891, 1892, 1893, 1894, 1895 and 1896, inclusive, aggregating three hundred and twenty-six dollars and thirty four cents, and for the State taxes for same years, aggregating one hundred and ten dollars and twenty cents; all of said taxes paid by defendant upon the property described, with ten per cent per annum interest upon the amount of each tax from the date of its payment; and for the further sum of four hundred and fifty dollars and forty-three cents, aggregate of repairs and improvements placed by defendant on the property described, with legal interest on the amount of each item from the date set forth in the answer. It further ordered and. decreed that' the claims and counter claims allowed in the judgment be conpensated one against the other, as far as they might go, and that if there be any balance due defendant, on the becoming final and executory of this judgment, the same be paid by the, plaintiff to the widow and heirs of defendant as a condition precedent to the taking of the property from the defendant.

Defendant appealed.

Plaintiff answered the appeal praying to be accorded the full relief prayed for in his petition.

Opinion.

Defendant in this case contends, that assuming there should be defects or flaws in the tax title under which he holds, he is protected from any attack upon it, by reason of having been in actual corporeal possession of the property for over three years. He maintains that he acquired this possession through the- execution by the sheriff of the Parish of Orleans, of a writ of possession, issued from the Civil District Court on his application for the same, and that possession was granted contradictorily with the plaintiff. That plaintiff’s action is barred by the prescription of three years provided for by 'Act No. 105 of 1894.

Defendant acting under the provision of Act No. 85 of 1888, applied for and obtained an ex parte order for a writ of possession to place him in possession of this property which he had acquired at tax sale. The sheriff’s return upon the writ is to the effect that he had seized the property described, by having the same (the seizure) recorded in the mortgage office of the city of New Orleans, and that he had.notified the occupants of the property to vacate the same within three days," and that subsequently, he had on the 9th day of June, 1890, put Augusti in full possession thereof.

The evidence shows that on the 4th day of June, 1890, the sheriff had made a demand for possession of the property from .“Mrs. E. Edwards, occupant” and “Baumgurden & Eriederich, agents”; and that Mrs Edwards who was a lessee of the property had attorned to Augusti from that time forward, most of the time to the knowledge of the present plaintiff. The evidence shows that the latter was a resident of, and in the City of New Orleans at the time of the execution of the writ, and that Baumgarden & Friedrichs, were not her agents.

Defendant seeks to give to that proceeding the force and effect of res adjudicata. The order of court referred to was not rendered contradictorily with the owner of the property, but ex parte. All that was attempted-to be done was to give notice to the owner of an order already rendered. Neither this order nor the execution of tire same barred the owner from contesting Augustus title. (Prescott vs. Payne, 44th Ann. 658; Gennella vs. Vincent, 50th Ann. 963).

Independently of any question of res judicata, the fact remains that Augusti has been in actual possession of the property ever since June, 1890, and we must give to that fact such results as the law accords to it.

These are not so sweeping and radical as the defendant claims them to be. Actual possession by a tax purchaser for three years. protects a tax purchaser by a plea in bar of an action to invalidate a tax title, but the provisions of the Act of 1874 do not bar the bringing of a petitory action by the owner of the property against the possessor of the same and bar the protection of his ownership against an adverse claim of ownership under a tax title, when the latter is so radically null as to authorize its being ignored as a title, and to justify its being collaterally attacked instead of being attacked by a direct action.

We have recently so declared in the matter of LeSeigneur vs. Bessan, 52 Ann., 187, lately referred to us for instructions by the Court of Appeals of the Third Circuit.

We are compelled, therefore, to examine the character of the title set up by the defendant. The principal ground set up against it by the plaintiff is that she was not notified in the matter of the tax sale as directed by Article 210 of the constitution of 18?9. Defendant answers that objection by saying that the property was owned by Mrs. Frank Welsh; that it was assessed in her name; that she was the tax delinquent; that in the proces- verbal of the tax collector, he declares that lie had served on each tax-payer, in person, or left, at his domicil or place of business, a printed notice etc; that Mrs. Frank Welsh being the delinquent táx-payer, this recital carries with it, necessarily, that Mrs. Frank Welsh had been notified; and the presumption of law would, in the absence of proof, be that she had been legally and correctly notified, and she would he bound by the notice whether actually received or not (See Hoyle vs. Athletic Club, 48th Ann., 883). That in Genella vs. Vincent, the facts were different, as the evidence in that case showed that the original owner of the property had long since died and had for a long while prior to his death resided in Europe); that the property was improperly assessed in her name; that as matters stood the notice referred to as given, must, under the recitals of the prooes verbal, have been given! by letter addressed to Catherine Neidergang (the deceased former owner) addressed to her at New Orleans, and, therefore, it was affirmatively shown that no legal notice had been given.

Defendant’s counsel is correct in this statement of facts, and in the absence of some special circumstance, we would presume in the absence •of proof to the contrary, that the plaintiff had been properly notified in the premises, even though she may not have received the notice. (Hoyle vs. Southern Athletic Club, 48 Ann. 883).

Sweeping recitals of the character of those shown in this case weaken the force of the deed, but do not render it null; the deed may be supported and sustained. (Rapp vs. Lowry 30 Ann. 1275; Lambert vs. Craig, 45 Ann., 1108, 1111; May vs. Witowski, 46 Ann., 1382; Genella vs. Vincent, 50 Ann. 969).

Plaintiff replies to defendant’s argument as to the presumption of notice which might have flowed in this case, under ordinary eircum.stances; that it would have been at best merely prima facie, and would have yielded to affirmative, adverse proof, but that in the Parish of Oileans the tax collector, or any one holding under a tax sale made .under Act 85 of 1888, is thrown upon proof that the personal and domi■ciliary notice had been made in any given case, when that fact is directly put at issue.

In support of that .position, counsel refers the court to the 52nd section of that act, where it declares that, “he (the tax collector) shall show due proof of the personal or domicile service, in so far as the Parish of Orleans is concerned, before he can make any sale or sales in -said Parish of Orleans.”

The sentence in question is found at the end of section 52 of the act. which section refers to notice “by publication to unknown owners.” It is meaningless in connection! with the particular matter with which it is connected by its place in the act. Counsel says we are not permitted to -expunge the sentence; that we must give it force of some kind, and that its intention, effect and meaning, is to throw the burden of proof of proper notice of intended sale; upon parties holding titles under tax -sales in the Parish of Orleans, made under the provisions of Act 85 of 1888, when the existence of that fact is put at issue; that plaintiff’s •oath that she had received no notice, imposed upon the defendant the obligation of proving', affirmatively, that the proper notice had been given, and defendant lias not met the issue, though squarely and precisely presented. (Hodding vs. City, 48 Ann., 982).

How and under what circumstances this particular sentence of the act came to be inserted in it, we are not informed, but we do not think we are at liberty to ignore it. It sometimes happens that portions acts are accidentally transposed from one place to another. It is our duty to make the sentence fit in somewhere, if possible, and give it effect. We gave effect to a simillar transposition found in the 25th section of Act No. 106 of 1890. We are of the opinion that under the circumstances of this case, it has not been shown that the notice required by Article 210, of the Constitution of 1819, was given to the owner of the property, and that, therefore, the judgment of the District Courf decreeing the nullity of the adjudication at tax sale, and adjudging plaintiff to be the owner of the property claimed by her herein, is correct.

.Defendant urges that in the event of our reaching this conclusion, we should reserve the (rights of both parties as to fruits and revenues, and counter- claims arising subsequent to the trial.

Defendants say in their brief: “The plaintiff coiild not recover rentals beyond date of the trial, because the defendant may have derived no revenue subsequent to that date, and through causes over which he-has no control, also because the rent value of the property may have-decreased, and also because the defendant would be entitled to claim his disbursements subsequent to that date, it is impossible for the court to render any judgment affecting the rights of either party subsequent to the date of the trial, because no evidence had been adduced by any facts, subsequent to that date.”

We think the rental value of the property, x»er month, up to- the trial of the case, was shown by .the evidence, and justifies the belief, and the judgment based on that belief, that it wild so continue to be up to the-delivery of the property. There is no intimation that any disbursements have been made on the property, since the judgment, for which the plaintiff would or could be made liable. Defendant, up to judgment, had an opportunity to advance the same or to have the same reserved.

The existence of no such claim is asserted in an application for a new trial. We see no reason for changing the judgment in this! respect, but we reserve to the defendants the right to sue for all taxes paid, disbursements made, or improvements placed on the property since the trial of the cause, to which they may be legally entitled.

The plaintiff, in her answer to the appeal, has prayed that judgment be amended so as to decree that defendant should pay rents and revenues at the rate of thirty-five dollars per mouth from the first of July, 1890, until he shall surrender possession of the property. This amendment is based upon the idea that defendant was ab initio a possessor in bad faith, hut there is nothing in the record which would go to show that such was the ease. We decline to alter the judgment in this respect. Plaintiff makes various complaints against the judgment in favor of the defendant, hut she has neither appealed, herself, nor asked any amendment in her pleadings to that portion of the judgment.

Eor the reasons assigned, it is ordered, adjudged and decreed that the judgment appealed from be affirmed, with the reservation stated.

Breaux, J.,

concurring, handed down a separate opinion.

Blanchard, J., dissents.