text:
    No. 2097
    Second Circuit
    MRS. CHANDLER AND HUSBAND v. SCOGIN
    (December 11, 1926. Opinion and Decree.)
    (December 25, 1926. Rehearing Expires.)

      {Syllabus by the Editor.)

    1. Louisiana Digest — Waters and Water Courses — Par. 7, 8.
    Construing Articles 660 and 661 of the Civil Code together, an obstruction to a drain by constructing terraces will not be ordered destroyed unless the adjoining landowner demanding its destruction shows that these terraces will injure his property.
    2. Louisiana Digest — Waters and Water Courses — Par. 3, 7, 8; Damages — Par. 3; Servitude — Par. 15.
    Where the evidence is conflicting but the plaintiff failed to establish that terraces placed on defendant’s property has rendered the servitude with which it was burdened more onerous by obstructing the drains, there are no damages proven.
    Appeal from the Eleventh Judicial District Court of Louisiana, Parish of Red River. Hon. J. W. Jones, Jr., Judge.
    Action by Mrs. Lillie Chandler and husband against I. C. Scoggin.
    There was judgment for plaintiffs and defendant appealed.
    Judgment reversed and plaintiff’s demands rejected as of non-suit.
    Nettles & Bethard, of Coushatta, attorneys for plaintiffs, appellees.
    John F. Stephens, S. R. Thomas, of Coushatta, attorneys for defendant, appellant.
   WEBB, J.

The parties to this action are adjoining landowners. The SE% of SW% and SW% of SE% of Section 13, Township 13 north, Range 9 west, owned by defendant, Scogin, adjoins the NE1^ of NW% and NW% of NE% of Section 24, Township 13 north, Range 9 west, owned by plaintiff, Chandler.

The properties are situated in the hill section of Red River parish, and that belonging to Chandler being lower in elevation’ than that belonging to Scogin owes to the latter a servitude of drain.

Scogin constructed on the SW% of SB)4 of Section 13 terraces, and plaintiff, claiming that defendant had constructed his terraces in such manner as to close one of the natural drains, had diverted the water falling on the property into other drains leading from, his property onto plaintiff’s and thus causing the latter drains to be overloaded and to overflow and flood plaintiff’s property, and also forcing water falling on the lower terraces to pass onto plaintiff’s property broadcast and not at' the, places where it would have flooded before the terraces were constructed, thus causing plaintiff’s land to wash and injure, and resulting in damage to plaintiff, brought this suit to recover judgment for the damages alleged to have been sustained, and praying for judgment on final trial for the issuance of injunctions commanding defendant to demolish the terraces and enjoining him from draining the surface waters from his estate onto the lands of plaintiff other than through the natural drains.

The defendant answered, pleading, in effect, the general denial, and on trial judgment was rendered in favor of plaintiff and against defendant for the sum of $100.00 and ordering defendant to remove the two lower terraces and restore that portion of defendant’s property to its former state, or to ditch the said "property so as to allow the drainage therefrom to take its natural course before entering plaintiff’s property within thirty days from date of judgment, and in default thereof that defendant be subject to a rule for contempt of court; and, further, in event of his failure to demolish the two terraces, that the sheriff be ordered to demolish them and that defendant be permanently restrained from erecting in the future any dikes, terraces or other obstruction to the natural drainage on said ¡portion of the property occupied by the said two lower terraces.

The defendant appealed from the judgment and plaintiff has answered the appeal praying that the judgment be amended so as to allow damages in the sum of one thousand dollars and to order the defendant ■ to demolish all of the terraces constructed by him.

OPINION

The plaintiff’s property is situated below defendant’s, and by reason of its situation it is burdened with the servitude of receiving water which falls upon defendant’s lands, as well as that which falls upon other adjoining lands. The contour of the surface of the SW% of SE% of Section 13, which was terraced by the defendant, was, in its former state, such that the waters falling thereon at points above the points where the [properties were contiguous, came upon plaintiff’s land through three drains, two of which entered the NW% of NE% of Section 24 from the SW1^ of SE% of Section 13, and the other entered the NE% of NW14 of Section 24 from the SE1^ of SW^i of Section 13, all of the water falling upon defendant’s property finally reaching a point in the NE1^ of NW% of Section 24, and this same general condition still exists after the construction of the terraces, but plaintiff contends that defendant has constructed the terraces in such manner that one of the natural drains entering the NW% of NE^i of Section 24 has been closed and will force the waters which may fall upon the area or watershed tributary to that drain to come upon plaintiff’s lands through the other drain entering the NWí4 of NE14 of Section 24 and NE% of NWÍ4 of Section 24 and also to come upon the NW% of NE^ of Section 24 in a broadcast manner.

The defendant constructed nine terraces on his property and two of these terraces, being the two nearest the line between the SWÍ4 of SE% of Section 18 and NW% of NE14 of Section 24 open in such manner that the water falling upon their areas will not come into the natural drain before reaching plaintiff’s property, and the other terraces are so constructed that the water which may fall upon five of them is thrown to the east and west; that thrown to the east passing first onto the property of Collins and thence into a drain having its source on the Collins tract and passing diagonally over the SW^ of SEy¿ of Section 13 at some distance above the southeast corner of this latter tract and thence onto the NW% of NE% of Section 24 until it converges with a drain which comes into the latter subdivision from the east; and that thrown to the west passing into a ditch alongside the public road which runs north and south between the SE*i of SW% and SW% of SE& of Section 13, and thence through a ditch to the drain entering the NE% of NWíí of Section 24 from the SE% of SW% of Section 13, while the water which may fall on the other two terraces will pass to the north and be entirely diverted from plaintiff’s property.

The plaintiff contends for the following propositions:

First: That she has the legal right to force defendant to open the drain which has been closed by the terraces, without regard to whether or not the closing of such drain will or will not injure him.

Second. That the closing of the drain by the construction of the terraces has injured her in that water falling upon the area which was tributary to that drain and which naturally would have found its way into such drain and thence over plaintiff’s land, will be diverted to the east onto the lands of Collins and into the drain having its source on such lands and will result in that drain being overloaded, and will thus cause the drain to overflow and the water to spread over plaintiff’s property and injure it; and that the same .'condition exists as to the water diverted to the west, and, therefore, the terraces should be demolished.

Third: That the terraces are constructed in such manner, especially the two lower (which, we asspme, are the ones which obstruct the drain at the point nearest to where such drain originally opened onto plaintiff’s land, the NW% of NE% of Section 24) that the water which will fall upon the areas covered by such terraces would have found its way, had the land remained in its former state, to the drain before coming upon plaintiff’s property, has been diverted by the terraces and thrown broadcast upon plaintiff’s property, and that these terraces should in any event be destroyed.

Considering these positions in the order stated:

I.

The plaintiff, in support of this position, cites Article 660 and. 661 of, the Civil Code, which are as follows:

“It is a servitude due by the estate situated below to receive the waters which run naturally from the estate situated above, provided the industry of man has not been used to create that servitude.

“The proprietor below is not at liberty to raise any dam, or to make any -other work, to prevent this running of the water.

“The proprietor above can do nothing whereby the natural servitude due by the estate below may be rendered more burdensome.”

si< Sis s¡< >}:

“He whose estate borders on running water may use it as it runs, for the purpose of watering his estate, or for other purposes.”

“He through whose estate water runs, whether it originates there or passes from lands above, may make use of it, while it runs over his lands; but he cannot stop or give it another direction, and is bound to return it to its ordinary channel, where it leaves his estate.”

The action of defendant in constructing the terrace was certainly within itself a lawful act, and for the purpose of improving his property, and rendering it better adapted for agriculture; and even conceding that Article .661 of the Code is applicable to surface waters which fall upon the land from the clouds, it must be construed with the preceding article and with the rule of construction which has been universally followed by the Supreme Court of this state in its application of the law to cases where one of the owners of contiguous estates has constructed works for improving and cultivating his land.

The universal rule in this state has been to construe the law so as to reconcile it with the interest of agriculture (Ludeling vs. Stubbs, 34 La. Ann. 935, and authorities cited; Petite Anse, etc., Dist. vs. Youngsville, etc., Dist., 146 La. 161, 83 South. 445); and where the work is done for the improvement of the property for agricultural purposes, we cannot conceive of its being ordered destroyed unless the person demanding its destruction shows that it will injure his property.

The provisions qf Article 661 of the Civil Code do not vest in the proprietor of an estate or in the estate through which a stream flows any right in the bed of the stream which is not a (part of the estate, nor in the water which falls upon other estates which may finally reach and become a pajt of the streamy and even if it be conceded that the same law is applicable to a drain in which there is no water only when it rains, as in the present case, the law does not give the plaintiff any right in the bed of the drain which is on defendant’s property, nor in the water which falls on defendant’s land, although it may, following the law of gravitation, finally reach the drain; and if the defendant chooses, he may prevent the water from coming into the drain, either by filling the drain or otherwise, and plaintiff could not have any cause of complaint unless he shows injury, as he has no right to be lost.

II.

This proposition involves a question of fact, that is,' whether or not the waters falling upon the superior estate, the SW% of SE% of Section 13, in the area which was formerly tributary to the drain closed, have been diverted into other drains, and, if so, whether to such an extent as to cause the other drains to be overloaded and the waters to spread over plaintiff’s property.

The witnesses who were called to testify as to this question were laymen, a majority of whom were only slightly familiar with the properties, many of them having viewed the property of the opponent of the one by whom they were called from the property of the latter, and there was not filed in evidence any map from which it can be ascertained what part of the area of the tract terraced was formerly tributary to the respective drains, or what part of the water which may fall upon the area of the tract has been diverted by the terraces to other drains; but it does appear that at least a portion of the water which fell upon the tract has been entirely diverted from plaintiff’s property.

The evidence, it is true, shows that the drains on plaintiff’s property have overflowed, especially at the point where the drain on the east of defendant’s property, which passes into the NWJ/i of $E% of Section 24, converges with the drain (which comes into the latter subdivision; from the east; it appearing, however, that the latter drain has a “vastly” greatér watershed and that the drains which entered the plaintiff’s property, NWÍ4 of NE}4 of Section 24, from defendant’s property, SW(4 of SE}4 of Section 13, and also that the drains at the points 'where they converge are very shallow.

If it be true, as plaintiff contends, that some of the water which would fall upon the SW)4 of SE1^ of Section 13 in the area tributary to the drain which was closed has been diverted by the construction qf the terraces to the west and into the drain entering the NE% of N¥M of Section 24 from the SE% of SW% of Section 13, and if it is also true, as the evidence shows, that some of the water falling on this area was diverted to the nortn and did not come upon plaintiff’s property, it follows that less water reached the plaintiff’s property, the NW% of NE% of Section 13, than would have been the case under conditions before the terraces were constructed, and the fact that the drain overflowed and the water spread out over, plaintiff’s land cannot be considered as a circumstance tending to show that the drain which entered plaintiff’s property, NW% of NE1^ of Section 24, from the SWJ4 of SE% of Section 13, was overloaded by water diverted to that drain.

The testimony of the witnesses as to the drains being overloaded is conflicting, as well as their opinion as to the cause, but we find that the evidence does not establish the facts which are the basis of this proposition, and it is unnecessary to consider the legal questions which such facts would present.

The plaintiff, having failed to establish that the work done on defendant’s property has rendered the servitude with which it was burdened more onerous, it is unnecessary to consider the claim for damages set up by the plaintiff.

As the evidence does not satisfy us that the plaintiff has not' any cause of complaint, we shall not reject her demands.

For the reasons assigned, it is ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and reversed, and it is now ordered, adjudged and decreed that plaintiff’s demands be rejected as of non-suit, and that she pay all cost's.


source: Caselaw Access Project

author: REYNOLDS, J.

license: Public Domain

text:
    No. 2723
    Second Circuit
    DYKES-BREATHWIT LUMBER CO. v. THAXTON
    (Dec. 11, 1926. Opinion and Decree.)
    (Jan. 28, 1927. Rehearing Refused.)

      (Syllabus by the Court.)

    1. Louisiana, Digest — Payment—Par. 21, 31.
    One who pays is presumed to owe. Urquhart vs. Gove, 4 Rob. 207.
    Appeal from the Third Judicial District Court of Loúisiana, Parish of Union. Hon. S. D. Pearce, Judge.
    Action by Dykes-Breathwit Lumber Company against W. M. Thaxton.
    There was judgment for plaintiff and defendant appealed.
    Judgment reversed and judgment rendered for defendant on his reconventional demand.
    S. L. Digby, of Farmerville, attorney for plaintiff, appellee.
    H. E. Dawkins, of Farmerville, attorney for defendant, appellant.
   STATEMENT OF THE CASE.

REYNOLDS, J.

Plaintiff sued defendant for $285.67, damages alleged to have been sustained by it by reason of an alleged breach of contract by defendant to drill for it for $350.00 a well that would furnish sufficient water to supply the needs of its sawmill.

Defendant denied that he contracted to drill such a well and alleged that he only agreed to furnish for $350.00 a well that would yield all the water that could come through a three-inch pipe; that he had complied with his contract and been paid $100.00 on account thereof; that there was owing to him by plaintiff a balance of $250.00 on the contract and also an additional sum of $13.69 for pipe furnished and labor performed in cutting it in connection with the contract. And he reconvened against plaintiff for the $263.69.

On these issues the case was tried and there was judgment in favor of the plaintiff for $100.00 and rejecting defendant’s reconventional demand and defendant appealed.

OPINION.

The question to be decided in this case is, whether or not defendant guaranteed to deliver plaintiff a well that would furnish sufficient water to supply the needs of its sawmill.

J. S. Dykes testified, (evidence, pages 2 and 6):

“* * * my cousin runs the mill at Middle Ford and he told me he had talked with Mr. Thaxton about the well and I went with him over there and went to see him, and he said he would put down a three-inch well for $350.00; well, I tried to get him off of that price, as it was pretty high for the time; and I told him we were out of water and it was not a question of money and to get right on the well and furnish us a sufficient supply of water to run the plant and I would not argue about the price if he would make a well quick, as the loss of time was what hurt us, as we had a yard full of logs, and they won’t stand it in hot time, and he agreed to do that and did get on the well in the next three or four days and commenced work; well, in about three or four days he had the well down where it looked like a sufficient supply of water at that time without putting pumps on it.

“Q. Did you tell him approximately how much water it took to run your plant?

“A. He had put down wells all over the country and said three inch was sufficient.”

. Aubrey Dykes testified, pages 9, 11, 12 and 14, evidence:

“I had been to see Mr. Thaxton and I wanted to ask Mr. Dykes before I made the trade as he was general manager of the company, and he told Mr. Thaxton he wanted to get a well as we ran out of water, and Mr. Thaxton asked him what size well, and he said he wanted size of well to run the plant and they decided around a three-inch well, as they thought that would be plenty of water to run the plant. He was to put down the well to supply the plant with water.

“Q. Did you all not tell him that you wanted a three-inch well?

“A. I do not remember.

* * *

“Q. Did he guarantee that it would supply your needs?

“A. He said it would supply enough.

“Q. You say Mr. Thaxton guaranteed that the well would furnish all the water your'plant would use?

“A. That was the way I understood the trade.

“Q. Is it not a fact that you all considered the three-inch well anywhere would supply?

“A. If the water supply was there a three-inch well would be sufficient.

* * *

“Q. He was to furnish ' all the water the plant would use?

“A. Yes, sir, that was my understanding.”

W. M. Thaxton testified, evidence, page 181:

‘‘The two Mr. Dykes came up there and told me they were short' of water and they understood I was in the well drilling business and I told them at the time I needed it; I run a blacksmith shop; and they wanted water for their mill and discussed the matter with me about making them a well; and I asked them what size well, and they said a three inch, and I asked them if a three-inch well would supply them, and they said that they had used one that did, and they asked me what 1 would charge, and I told them $350.00, and they asked me what about guarantee, and I told them I would not with the kind of pump they were going to use; they said they would rather have a steam pump, and I suggested a bell pump. I went ahead and made the well. I did not know how much power they had. I asked them to go down to the mill and see how much water they were putting out at the Bernice mill and see about what size they wanted and they said this three-inch well furnished this plant and they believed it would furnish that down there, and I went and made them a three-inch well and when I got it done I went to Mr. Aubrey Dykes and he said Mr. Jack Dykes did the paying, and I said I had some bills that became due and I would be glad to get pay for it, and he told me he would wait until Jack Dykes came over, and he asked me what I needed and I told him about a hundred dollars, and he said he would pay me the hundred and as soon as Jack comes over we will pay you the balance.”

Prom all of this testimony we are convinced that defendant did not agree to delivér a well that would supply the needs of plaintiff’s sawmill. Neither of the defendants swears positively that defendant agreed to make a well that would supply the needs of their sawmill and defendant swears positively that he did not agree to do so.

In our opinion it would be extremely unreasonable for any one to guarantee to drill a well that would supply the needs of a sawmill without, in any way, defining what the needs were.

The term “needs of a sawmill” might mean the water necessary for a boiler, or it might mean the water necessary to fill a pond in which to float logs.

The weight of the evidence, we think, supports defendant’s contention that he contracted to drill a three-inch water well that would furnish all the water that could come through a three-inch pipe with the kind of pump plaintiff proposed to use and the evidence convinces us that he did deliver such a well.

The defendant swears positively that the well drilled by him furnished all the water that the ' pump used by plaintiff could pump and that the lack of water was due to the pump and not to the well. He testified, evidence, pages 20, 22, 30:

“Q. When you connected the pump up, did you see anything; or was there any indication from the working of the pump or flowing that the well was not producing what this pump would bring out?

“A. Aubrey Dykes sent me word that the well was not furnishing enough water, and I went' down there and tested it; the amount of water that was coming out was all the water the pump would bring. They were pumping it in this old well.

“Q. Was the pump pumping at the capacity for the size?

“A. Yes, sir.

“Q. Were you ever there when it would not run proper?

“A. No, sir, I only' .went' twice and it was to full capacity according to conditions. One time it was not making as much as the other.

“Q. In this way, was there or not, any sand in the water?

“A. Yes, sir.

“Q. What effect, if any, does sand in the water have upon the lasting qualities of the leather?

“A. Wears them out.

“Q. When the leather gets worn, what effect does that have on the pump?

“A. Lessens the amount of water.

“Q. You had nothing to do with the furnishing of the pump?

“A. Not a thing.

“Q. Did you ever go to this well at any time and find it in a condition that it would not pump all-- the water a three-inch pump would bring out of it in that condition?

“A. No.

# * *

“Q. Was that trouble due to the fact that there was not any water in the well or running it too fast?

“A. Running it too fast or sand in it.”

Charley Taber testified, evidence, pages 22, 23, 25:

“Q. How long did you work there?

“A. From May until about October.

“Q. During the time that you worked there, did you keep this pump working during the whole time you were on the job?

“A. Yes, sir.

“Q. What, if any use did you make of the pump?

“A. All I know is team (pump.

“Q. Was it pumping during the time you were there?

“A. Yes, sir.

“Q. Would you run it all night?

“A. Yes, sir.

“Q. Did it ever stop pumping water?

“A. Not when you would run it slow.

“Q. They operated it during the dry spell?

“A. Yes, sir.

“Q. Did they operate it any while it rained?

“A. Yes, sir.

“Q. After the rain and the branch filled up, did they use the pump?

“A. No, sir.

“Q. When you would speed this pump up it would soon burn out?

“A. Yes, sir.

“Q. It would operate all right, speeding it up, until the water gave out?

“A. Yes, sir.

“Q. Do you know whether that was due to the fact that there was a deficiency, or that the water was not there?

“A. No.”

T'he only evidence that attributes the lack of water to a deficiency of the supply fh the well is the testimony of- the two plaintiffs. Their testimony makes it perfectly plain that neither of them had any extended experience with water wells or deep well pumps. It is well known that the taking qf water from a deep well is a delicate task and requires the constant attention of one skilled in the performances of deep well pumps. The evidence shows that the water flowed from the top of the pipe by its own force from the time it was completed up to the time of the filing of this suit, and plaintiff’s inability to obtain from the well enough water to suipply the needs of its mill may well have been due to a definciency in the pump.

Defendant testified that the well was accepted by plaintiff. Evidence, pages 11 and 20:

“Jack Dykes comes over and he asks me what I needed and I told him about a hundred dollars, and he said he would pay me the hundred and as soon as Jack comes over he would pay me the balance.

* # *

“I moved on down there and went to work on this and did not see Mr. Jack Dykes until way in the fall and he came down there to the shop and he offered to pay me half and he said the well was not giving satisfaction; it had rained then and he had plenty of water, I suppose; and he offered to pay me half, and I told him I was not working on half. He said, T am willing to pay you half,’ and I told him no.”

This testimony is not disputed, and taking it as true we a,re bound to conclude that the well was accepted and paid for in part; and this, we think, corroborates the contention of defendant that he fully complied with his contract.

In addition to the balance of the contract price, defendant claims in reconvention $12.69 for pipe furnished and $1.00 for cutting same; but he offered no evidence in support of these claims.

For the reasons assigned, it is ordered, adjudged and decreed that the judgment appealed from he reversed, and it is now ordered, adjudged and decreed that the defendant, W. M. Thaxton, do have and recover of Dykes-Breathwit Lumber Company judgment for the $350.00, with 5 per cent per annum interest thereon from judicial demand, less $100.00 paid; and chat plaintiff Dykes-Breathwit Lumber Company pay all costs.


author: ODOM, J.

text:
    No. 2843
    Second Circuit
    GREMILLION v. LEMOINE, ET AL.
    (Jan. 28, 1927. Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Fraud—Par. 10.
    Fraud and collusion between the buyer at a tax sale and the owner to defeat a mortgage creditor is not proven merely by a. few circumstances which are outweighed by positive testimony to the contrary..
    Appeal from the Twelfth Judicial District Court of Louisiana, Parish of Avoyelles. Hon. S. Allen Bordelon, Judge ad hoc.
    Action by Oge G. Gremillion against Victor Lemoine, et al.
    There was judgment for defendants and plaintiff appealed.
    Judgment affirmed.
    V. A. & Philo Coco, of Marksville, attorneys for plaintiff, appellant.
    Joffrion & Joffrion, of Marksville, attorneys for defendants, appellees.
   ODOM, J.

Plaintiff, as the holder and owner of a promissory note for $200.00, dated October 18, 1918, due November 1, 1919, bearing interest at the rate of eight per cent' per annum from maturity until paid, and made and signed by Victor Lemoine, brought this suit to recover the amount thereof.

The note represents part of the purchase price of eleven acres of land in Avoyelles parish, Louisiana, and was secured by a vendor’s lien on said land.

The land, which was ¡purchased by Victor Lemoine and on which the mortgage rested, was sold at tax sale to A. H. Lemoine on August 5, 1922, for the unpaid taxes of 1921.

Plaintiff alleged ' that Victor Lemoine, the tax debtor, and A. H. Lemoine, the purchaser at tax sale, entered into a fraudulent collusion to permit said property to be sold and purchased by A. H. Lemoine in order to defeat his rights as mortgage creditor; that said tax sale was, therefore, null and void and of no effect, and he asked that the same be set aside and his vendor’s lien on the property recognized and enforced.

Both Victor Lemoine and A. H. Lemoine Were’ made parties defendant. Victor Lemoine, the debtor, did not appear by answer or otherwise and judgment went against him by default for the amount of the note, interest, attorney’s fees and costs.

A. H. Lemoine, the tax purchaser, answered the suit, denying that there was colusión or fraud between himself and Victor Lemoine, the tax debtor, and averred that the tax sale to him was good and valid and that he is now the owner of the land, free from any lien or incumbrance arising from the recordation of the act of mortgage, the period of redemptioln for the property having lapsed.

There was judgment in the district court for plaintiff and against Victor Lemoine, as above stated, but rejecting plaintiff’s demand to. have the tax sale declared a nullity; the judgment recognized the title of A. H. Lemoine to the land.

The plaintiff appealed.

OPINION.

If, as alleged by plaintiff, Victor Lemoine, the tax debtor, and A. H. Lemoine, the tax purchaser, entered into an agreement' to the effect that the tax debtor would not pay his taxes so that the property might be sold in order to defeat the rights of the mortgage creditor, the sale of the land should be set aside and the plaintiff’s lien thereon recognized. Such conduct on the part of a tax debtor and a tax purchaser would not be tolerated by a court of justice. No citation of authority on this point is necessary.

But we do not' find the facts to be as alleged by plaintiff. The most that can be said in plaintiff’s favor is, that there are some suspicious circumstances attending the transaction. But plaintiff failed to make out his case with that degree of certainty which would warrant the court in convicting the defendants of fraud.

Victor Lemoine, the tax debtor, is a poor man financially; he is a farmer, and has a large family. The years 1920, 1921, 1922, and 1923, were bad years for farmers in that section. • In addition to' other calamities, the country was visited by an overflow during that time. Victor Lemoine made practically nothing in the years 1920 and 1921. When his taxes for 1921 fell due he had no money with which to pay them. After his property was advertised for sale in 1922 for the taxes of 1921 amounting to $46.00, he went' with a brother-in-law to a bank and tried to borrow the money with which to pay his taxes, but the loan was refused him. Seeing that he could not pay the taxes he seems to have abandoned all effort to save the property.

Due to the ' bad financial conditions which prevailed, a great deal of land in that section was allowed to sell for taxes at the same time.

A. H. Lemoine, who is a merchant at Plaucheville in that parish, and who purchased the land, says he happened to be in Marksville, the parish seat, the day the prqperty was to be offered for sale for its taxes by the sheriff. He purchased this property, for the amount of the taxes, about' $46.00. His deed Was recorded on August 29, 1922. He and Victor Lemoine both swear that the sale was not mentioned between them until some time after one year from the date of the recordation of the deed. In the meantime Victor Lemoine had moved off of the property.

The plaintiff lived in Alexandria, in an adjoining parish, and knew nothing of the tax sale until September 23, 1923, after the redemptive period had elapsed, although the notice of sale and prescribed notice to mortgage creditors had been published according to law. His lien on the property of course was divested by the sale.

Finding his rights thus divested he sought Victor Lemoine, his debtor. Lemoine, who says he found out from a third party after the year for redemption had elapsed that his property had been sold, told plaintiff to. see A. H. Lemoine who had purchased it.

The record is barren of any positive testimony showing collusion between the tax debtor and the tax purchaser. But plaintiff points to the following circumstances which he thinks, are sufficient to warrant the court in holding that there was fraud and collusion between the defendants. He says it is unreasonable to suppose that Victor Lemoine would have allowed his property, for which he paid or was to pay more than a thousand dollars, to be sold for its 'taxes and fail to redeem it after it was sold.

But his conduct in that respect is easily understood, because it is shown that he had no money and could borrow none. The overflow and other disasters had brought about a near-panic amongst the small farmers and the value of the property was almost destroyed. There was a mortgage indebtedness against it of $600.00, plus interest, and the testimony shows that it was not worth more than half that amount at the time of the tax sale. Victor Lemoine was insolvent. He could not hold the property as a homestead on account of the vendor’s mortgage against it. It is easy, therefore, to understand, why he should lose interest in and abandon it as he did.

It is next pointed out that on September 26, 1923, after the tax sale had ripened into title in A. H. Lemoine, Victor Lemoine executed a confirmation of the sale by notarial act. The act recites that the redemptive period had passed and that there was no legal cause for setting the sale aside and he therefore abandoned and relinquished all claims to the land to and in favor of the purchaser.

He was then in debt unto A. H. Lemoine for a considerable sum, and it is suggested that it was probably agreed that this indebtedness should be cancelled as a consideration for the sale. But there is no proof of that. A. H. Lemoine says that he did not agree to cancel the debt. He told Judge Coco that the property had cost him about $1200.00, but he explains that what he meant was that Victor Lemoine owed him about that amount which he did not expect to. collect because Victor was insolvent.

These and some other circumstances concerning the transaction may be sufficient to cause one to suspect that there might have been some understanding between the defendants that this method should' be resorted to to defraud plaintiff of his rights; but they do not outweigh the positive testimony to the contrary.

Both Victor Lemoine and A. H. Lemoine swore positively that there was no understanding between them that the taxes should not be paid and that the property should be sold. The veracity of the two Lemoines is not' challenged. A. H. Lemoine was forty-seven years old and is shown to be a prominent business man who had the confidence and respect of his neighbors as is evidenced by the fact that he was at the time a member of the Avoyelles Parish Highway Commission and president of the Drainage Board. He would hardly enter into such a collusion and ultimately prejure himself to shield a distant kinsman from his debts. 1

The judge ad hos before whom the case was tried was not convinced that' there was collusion. Neither are we.

The judgment of the district court is correct and is therefore affirmed with costs.


author: WEBB, J.

text:
    No. 2702
    Second Circuit
    JUNIUS HART PIANO HOUSE, LTD., v. TAUZIN
    (Jan. 28, 1927. Opinion and Decree.)

      (Syllabus by the Editor.)'

    1. Louisiana Digest — Sales—Par. 79, 84, 214, 218.
    Where the effect of the defect to a piano sold is such as to render it useless, or the use so inconvenient and imperfect that it is not suited for the purpose for which it was bought, it must be supposed the buyer would not have purchased it had he known of the vice, the purchaser is entitled to rescind the sale under Article 2520 of the Civil Code.
    2. Louisiana Digest — Sales—Par. 79, 84, 214, 218.
    Where the seller of a piano could not enforce specific performance or acceptance of delivery by reason of the defect in the piano, for the same reason the buyer may demand a rescission of the sale, if the defects existed at the time of the sale and at the time of the action to rescind.
    3. Louisiana Digest — Sales—Par. 79, 84, 237.
    The vendor who attempts to enforce the payment of the iprice while the redhibitory defects exist which render the obje.ct useless cannot insist upon the right to remedy the defects where the buyer then demands the rescission of the sale.
    4. Louisiana Digest — Sales—Par. 84, 160.
    The difference in the position of a seller who undertakes to enforce specific performance and of the buyer to rescind a sale, relates only to the burden of proof.
    Appeal from the Ninth Judicial District Court of Louisiana, Parish of Rapides. Hon. Leven L. Hooe, Judge.
    Action by Junius Hart Piano House. Limited, against E. M. Tauzin.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Gus A. Yoltz, of Alexandria, attorney for plaintiff, appellant.
    Peterman, Dear & Peterman, of Alexandria, attorneys for defendant, appellee.
   WEBB, J.

On March 24, 1925, Junius Hart Piano House, Limited, of New Orleans, sold to E. M. T'auzin, of Alexandria, a piano of a standard make which was to be shipped from the plaintiff’s place of business in New Orleans to defendant at Alexandria.

The price agreed upon was four hundred and fifty dollars, of which amount-' fifty-five dollars was paid at the time of the sale, the balance to be paid in monthly installments, beginning on April 20, 1925, which installments, it was agreed, should bear 6 per cent per annum interest from date of sale, and in event of any of the installments being unpaid at maturity, all installments should become due and the buyer should pay stipulated attorney’s fees.

The present suit was filed on August 10, 1925, to recover judgment for the purchase price, less the amount paid at the time of the sale, together with interest and attorney’s fees, and plaintiff, alleging that it had a vendor’s privilege on the piano, obtained a writ of sequestration under which the piano was seized, and it asked for judgment for the amount set forth, that the writ issued he sustained and its alleged (privilege be recognized and the property sequestered, sold and the proceeds ■ applied by preference to the payment of the judgment, interest, .attorney’s fees and costs.

The defendant filed his answer to the suit on September 18, 1925, in which he admitted having purchased the piano at the price and on the terms above stated, and that he had not paid the installments, but he alleged that the piano delivered to him was in bad condition and in such condition as to render it unfit for the purpose for which defendant purchased it, and that plaintiff in delivering the defective instrument had not complied with its obligation.

The defendant specifically alleged that at the time the piano was delivered—

"* * * it was wholly out of tune, one of • the keys was defective mechanically, and when pressed down would remain down, and that in working the pedals a roaring noise was created inside of the instrument which was very annoying, and said defects rendered the piano useless to defendant.”

He further alleged that he had proposed to plaintiff to make all payments, provided the company would place the instrument in good condition or to accept another piano in place of the defective one, which propositions, he alleges, had been refused.

Defendant admitted that plaintiff had a vendor’s lien on the piano, but denied that the writ was properly issued, and he alleged that he had paid freight charges in the sum of ten and 25-100 dollars and the payment of fifty-five dollars on the purchase price and that plaintiff had breached its contract and should return the amount paid on the purchase price and the freight charges, for which he reconvened and prayed that plaintiff’s demands be rejected at its cost and for general relief.

Subsequently defendant undertook to enter into negotiations with plaintiff relative to having the defects alleged adjusted, but no understanding was reached and on the date of the trial, March 5, 1926, defendant filed an amended answer in which he reiterated the allegations that plaintiff had breached its contract in failing to deliver a piano in good condition and he prayed that the contract be annulled- and for judgment in reconvention as originally demanded.

On trial judgment was rendered dismissing plaintiff’s demands and. for judgment in favor of defendant on his reconventional demand for the amount claimed, and defendant appeals.

OPINION.

The testimony of the witnesses called for the parties is conflicting, and the parties in their briefs have confined themselves to the discussion of the evidence as it particularly relates to the defects alleged by the plaintiff, without any discussion of the legal phase of the action; and as we find that the evidence substantially establishes the allegations of plaintiff’s petition as to the condition of the piano at the time of delivery, in. that the instrument was out of tune, that' one of the keys, when pressed down, would not automatically react, that when the instrument was being used and the pedals worked, the movements of the pedals would create a noise which could be heard above the tone of the instrument, and at some distance. from the piano; it may be that is is conceded by the parties that the judgment should be affirmed, but in view of the fact that the affirmance of the judgment will necessarily be to hold that the defects proven were vices which gave rise to the redhibitory action, we shall coinsider that question.

The defects proven show that, the instru- . ment was unsuitable for use, but it does not appear that such defects were due to faulty construction, nor that it would have required any great expense or time to have remedied the defects, or that the work necessary to remedy the defects could be considered as reconstruction or repairs; but the right to demand rescission of the sale, is not dependent upon the nature of the defects, that is, whether they may or may not be remedied, or the cost and time necessary to remedy them; as it is upon the effect of the defects, and where they are such as to render the object useless, or its use so inconvenient and imperfect that it must be supposed the buyer would not have purchased it had he known tf ohe vice, the purchaser is entitled to rescind the sale. ' (C. C. 2520; Mackeldy, No. 407.)

The defendant purchasing a piano could hardly be supposed to have knowingly purchásed an instrument which was in such condition as to render it incapable of being used as a musical instrument, nor would the seller be in position to force one who had purchased a musical instrument to accept one which by reason of its condition could not be used as such; and while there is a distinction in-the position of a seller who undertakes to enforce specific performance, and of the buyer to rescind a sale, the difference relates to the burden of proof; and where it appears that the seller of an object could not enforce specific performance or acceptance of delivery by reason of defects in the object, we think, for the same reason the buyer may demand a rescission of the sale, when it appears that the defects existed at the time of the sale or delivery and at the time of the action to rescind.

We also are of the opinion that while by reason of the nature of the contract and apparent understanding of the parties, as in the present case, it appears to have been understood ’ that the vendor could remedy certain defects which were in their nature such as not to require repairs or reconstruction but' did not render the object unsuitable for use, that the vendor who attempts to enforce the payment of the price while the defects exist which render the object useless for the purpose for which it was (purchased and to which it was destined, cannot therefore insist upon the right to remedy the defects, and where the buyer then demands the rescission of the sale, the question is not as to the nature of the defects, but their effect.

It is therefore ordered that the judgment appealed from be affirmed.


text:
    No. 2662
    Second Circuit
    HILL v. ABELL, SHERIFF, ET AL.
    (Jan. 28, 1927. Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Marriage—Par. 97, 99, 102.
    In view of Articles 2363, 2371 and 2386 of the Civil Code, the fruits 'of a farm separately owned and separately administered by a wife are separate property of the wife and do not fall into the community merely because the husband contributed his services in making the crops, as agent of his Wife.
    Appeal from the Fifth Judicial District Court of Louisiana, Parish of Richland. Hon. John R. McIntosh, Judge.
    Action by Bell Hill against A. A. Abell, sheriff, et al.
    There was judgment for plaintiff and defendants appealed.
    Judgment affirmed.
    Tobin R. Hodge, of Rayville, attorney for plaintiff, appellee.
    Ellis & Ellis, of Rayville, attorneys for defendants, appellants.
   ODOM, J.

Plaintiff brings this suit to restrain the sheriff of Richland parish from selling an undivided one-half interest in certain cotton and corn which he had seized under a judgment against her husband, James Hill. She claims that the cotton and corn seized are her separate, paraphernal property and not subject to her husband’s debts.

There was judgment in the district court in favor of the plaintiff and the defendants appealed.

OPINION.

T'he plaintiff is the wife of James Hill, with whom she lived in community. She owned, as her separate, paraphernal property, forty acres of land which she acquired by inheritance from the succession of her father and mother. From the date on which this property was set apart to her, January 22, 1921, she has had the exclusive management, control and administration thereof. She and her husband resided, on the ¡property, but her husband did not administer it.

On June 19, 1925, the Hanna Motor Company obtained judgment against her husband, James Hill, on a promissory note dated May 12, 1921. The debt evidenced by this note was created by the husband previous to his marriage with the plaintiff.

In the latter part of 1925, the Hanna Motor Company attempted to execute its judgment against James Hill- by seizing an undivided half interest in five bales of cotton and eighty-five bushels of corn produced on plaintiff’s property during that, year, upon the theory that the crops belonged to the community and that one-half interest therein was subject to the debts of the husband.

If, as contended by defendants, the crops belonged to the community, they are subject to the debts of the husband and may be seized and sold to pay them, even though the debts were created prior to the establichment of the community.

Davis vs. Compton, sheriff, 13 La. Ann. 396.

Meadows vs. Dick, 13 La. Ann. 377.

Guice vs. Lawrence, 2 La. Ann. 226.

Glenn vs. Elam, 3 La. Ann. 615.

Hawley vs. Bank, 26 La. Ann. 230.

If the community property be sold to ¡pay the husband’s debts, it must be sold, of course, subject to the community debts.

Thompson vs. Vance, 110 La. 26, 34 So. 112.

As there are no community .debts involved here, it follows that if the crops seized belonged to the community the judgment creditors of the husband could haTe seized and sold the entire interest therein: to satisfy his debts.

But it is contended by plaintiff that the crops do not belong to the community; and .hat is the sole question to be determined.

The lower court held that the crops seized were the separate, paraphernal property of the wife, and we think, under the facts disclosed by the record that holding is correct.

The land on which the crops were produced is the separate, iparaphernal property of the wife. She and her husband occupied it as a homestead, but she retained the separate management, control and administration thereof.

In the year 1925, the wife, who is a colored woman, with her own labor and with the assistance of a hired hand and with the use of at least one mule and farming implements which belonged to her, prepared the land and planted the crops. The husband, who was in the habit of abandoning his wife at intervals, was absent when the crops were planted but returned after-wards and assisted in their cultivation. Just how much of his time he devoted to the cultivation of the crops is not clear, but he rendered his wife some assistance. However, we gather that the wife and the hired hand who, it seems, did not remain throughout the year, did most of the work in making the crops.

She borrowed money with which to make the crops without the assistance of her husband. Everything advanced for making the crops was advanced to her and upon the faith of her credit and not upon the credit of the community. This, according to the testimony of all the witnesses, had been the, custom ever since she was married. When she borrowed money for the place, she signed the notes individually, without the husband’s assistance. When she bought goods, they were charged to her and not to the husband. She sold the crops and collected and deposited the proceeds to her account and paid her debts.

So that not only did she retain the, control and management of the property, but she had the entire supervision of all farming operations, including the disposition of the crops and the handling of the proceeds.

It is true that in the year 1925 the crops that were seized were produced largely by her own labor, and counsel for defendants contend that, for that reason, the crops belonged to the community; but they cite no authority in support of their contention. They say, in brief—

“It must be admitted that the earnings of both the husband and wife fall into the community.”

As an independent proposition, that is true, for Article 2402 of the Civil Code so provides, and it has been held that the earnings of a wife who keeps a boardinghouse (Isaacson vs. Mentz, 33 La. Ann. 595; Succession of Pinard vs. Holten, 30 La. Ann. 171), or who operates a sewing machine (30 La. Ann. 171) fall into the community. (But, see Act 186 of 1920.)

But the (point here involved is to be determined not upon the provisions contained in the above cited article of the Code, nor upon the holdings in the cited cases, but under Article 2386 of the Civil Code, which reads, in part, as follows:

“When the paraphernal property is administered by the husband, or by him and the wife indifferently, the fruits of this property, whether natural, civil, or the result of labor, belong to the conjugal partnership, if there exist a community of gains.” (Bold type ours.)

The converse of that proposition is equally true. Where the paraphernal property of the wife is administered by her, the fruits of the property, whether natural, civil, or the result of labor, are hers. It was specifically so held in the case of Rouyer vs. Carroll, 47 La. Ann. 768 (see page 778).

In that' case the property involved was purchased in the wife’s name for ipart cash and for the balance she gave notes. She testified that she paid the notes- — ■

“ * * * From saving rents and also from pieces of property and my own work, my own industries.”

With respect to the portion of the money which the wife in that case derived from her own work and her own industries, counsel contended that it became an asset of the community; but the court, citing Article 2386 of the Code, held to the contrary, because it was obvious that her earnings arose from her efforts in operating property which belonged to her and which she administered.

■ In the case at bar, the crops produced on this property were fruits and were produced as the result' of'labor. It does not matter whether they were produced by the labor of the wife or by her and the husband conjointly; they belonged to the wife who owned and had exclusive management and administration of the property. They did not fall into the community.

In the case of Lambert vs. Franchebois, 16 La. 1 (5), the court said;

‘‘It is perfectly clear that the paraphernal property of a married wpman is' not bound for the debts contracted by the husband; and that the fruits, proceeding from süch property, do not belong to the community unless the wife permits the husband to administer it.”

Citing Civil Code, Article 2363 (2386) and Article 2371 (2402).

It would be conceded, we think, that in case a wife living in community with her husband but who retained the administration of her paraphernal property devoted her time and energies as an overseer or manager of her plantation and produced crops, the crops would not fall into the community and become subject to the husband’s debts.

■ Then why should crops produced .on her property under like circumstances with the labor of her own hands be subject to a different rule?

It would be conceded also, we think, that if the husband had contributed his services in making the crops as overseer but as agent for his wife, the crops would be hers and not subject to his debts.

Then why Should he own an interest therein because he had contributed to the making of them with the labor of his hands ?

Belle Hill owned the- land, she administered it, she procured the money and supplies to make the crops, and the debts created for such money and supplies were her debts 'and not the debts of the community.

The crops were therefore her separate property.

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


text:
    No. 2845
    Second Circuit
    BRITTAIN v. OLLA LUMBER
    (Jan. 28, 1927. Opinion and Decree.)

      (Syllabus by the Editor.)
    1. Louisiana Digest — Subrogation—Par. 14, 16; Alienation — Par. 21.
    In view of Article 2645 of the Civil Code the assignment of a laborer’s claim carries the privilege granted under Act 23 of 1912.
    2. Louisiana Digest — Subrogation — Par. 14, 16, 17; Alienation — Par. 21.
    The transfer of laborer’s claim carries the privileges granted by law, Act 23 of 1912, and no express subrogation is necessary.
    3. Louisiana Digest — Sales—Par. 304, 316.
    A vendor’s lien and privilege on logs sold is not enforcible where the vendor cannot identify all or can identity only a part of the logs sold.
    Appeal from the Eighth Judicial District Court' of Louisiana, Parish of La Salle. Hon. F. E. Jones, Judge.
    Action by Walter Brittain against Olla Lumber Company.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    G. W. Flowers, of Jena, attorney for plaintiff, appellee.
    J. M. Henngan, of Jena, attorney for defendant, appellant.
   WEBB, J.

The Olla Lumber Company, a partnership composed of W. B. ’ Clark and W. N. Atwood, operated a sawmill which they had leased from. B. E. Zeagler and J. W. Harris, and as it did not promptly meet its obligations to its laborers or persons working at the sawmill and persons who had sold it logs, as well as to its lessors, Zeagler and Harris, who had also sold logs to the company, these creditors, the laborers and persons who had furnished logs, being represented by an attorney, and Zeagler and Harris representing themselves, demanding of the lumber company a settlement, each having knowledge of the other’s negotiations, but not being a party thereto.

That at this time the company had several hundred dollars in bank, some open accounts or claims against parties to whom it had sold lumber, and also some lumber on its yard, and that it gave to the attorney representing the laborers and other parties part of the money in bank and also orders on persons against whom the company had claims which together were of an aggregate amount equal to the claims of the persons represented, and to Zeagler and Harris the company gave some orders and also a chattel mortgage covering the lumber on its yard.

The orders given to the parties represented by the attorney not being paid, these parties made an assignment of their claims to one of their number, W. A. Brittain, who brought suit against the company and the individual partners for the amount of the claims held by him, setting forth the amount due him by the defendants, being thirty-three dollars, and the amount of the claims assigned to him, all of which aggregated five hundred and twenty-four dollars and twelve cents, which, he alleged, was for wages due laborers, and further alleging that the lumber company was disposing of its property with intent to defraud its creditors, 'etc., and that plaintiff had a privilege on the lumber, prayed for and obtained the issuance of writs of attachment, provisional seizure and garnishment, the latter running against the Olla State Bank and the Urania Lumber Company.

Plaintiff prayed for judgment in the amount claimed and interest and for recognition of his privilege resulting from the attachment and provisional seizure, etc., and for all orders and general relief.

The Olla State Bank answered, denying that it had any funds or property belonging to the defendants, and the answer of the Urania Lumber Company reads, in part, as follows:

“Respondent, Urania Lumber Company, is not indebted to O'lla Lumber Company, neither to W. B. Clark, nor William Atwood, in any sum whatsoever; further answering, respondent has purchased from Sam Shamblin four cars of lumber and is indebted to said Sam Shamblin in the amount of nine hundred eighty and 24-100 dollars; whether the said Sam Shamblin sold this lumber individually or for the Olla Lumber Company, your respondent is not in position to say, nor does respondent know whether any of the above parties have any interest whatever in the lumber purchased from Sam Shamblin.”

■ The defendants, the company and individual partners answered, admittiing they were indebted to plaintiff and to the persons who had assigned their claims to plain, tiff, but that they did not know the amount of the indebtedness, and alleged that the claims had been paid in a compromise agreement and that two of the claims alleged to have been acquired by (plaintiff, one of A. J. Holloway for one hundred and twenty dollars, and J. A. Cox for ninety-six and 60-100 dollars, did not oarry any privileges, and, further, that the writ's had been wrongfully issued and had damaged defendants, and reconvened for judgment in the amount of the damages alleged to have been sustained.

Zeagler and Harris filed an intervention and third opposition, in which they alleged that defendants were indebted unto them in the sum of one thousand eighty-six and 14-100 dollars, secured by a chattel mortgage on lumber, which lumber had been sold by defendant with the consent of intervenors with the specific understanding that the proceeds would be delivered to intervenors, and that the proceeds of such sale in the hands of the Urania Lumber Company had been seized by plaintiff, as shown by the answer of the garnishee, Urania Lumber Company, and that intervenors had a privilege on said, funds.

They further alleged that the indebtedness claimed by plaintiff had been paid, and that the assignments made to plaintiff were invalid and did not carry the privilege securing the credits transferred, if such credits bore a (privilege, which was denied; and, in the alternative, in the event the court should hold that plaintiff could recover judgment against defendant and the claims held by him bore a privilege superior to the privilege of intervenors and opponents, that the claims of A. J. Holloway and J. A. Cox did not bear a privilege, as the same arose from an indebtedness due for logs sold to defendant lumber company.

Intervenors prayed for service on Brittain, plaintiff, and the sheriff, and for judgment recognizing their privilege on the property seized and upon the proceeds, and that their privilege be recognized as of superior rank to the privilege of plaintiff, and that the property seized by plaintiff be ,held not subject to the writ of sequestration (sic) and attachment and that the writs be set aside and plaintiff’s demand for recognition of a privilege be rejected and the proceeds of the sale be delivered to opponents; and, in the alternative, that the claims of A. J. Holloway and J. A. Cox be held not to have borne any privilege, and for all orders and decrees necessary and general relief.

The plaintiff answered the intervention, pleading, in effect, a general denial, and, on trial, judgment was rendered in favor of plaintiff in the sum of five hundred and nineteen and 24-100 dollars with interest from date of judgment, and the judgment otherwise reads as follows:

“It is further ordered, adjudged and decreed that the lien resulting from the sequestration (sic) issued herein be recognized and enforced insofar as the claim of the plaintiff in the amount of three hundred two and 24-100 dollars ($302.24); the claim of A. J. Holloway and J. A. Cox being rejected insofar as the lien is concerned.

“It is further ordered, adjudged and decreed that the lien and privilege of the third opponents Benjamin E. Zeagler and James W. Harris by virtue of chattel mortgage, be recognized and enforced as against the property after the payment of the claims on which privilege by virtue of writ of sequestration (sic) was enforced as listed above.

“It is further ordered, adjudged and decreed that defendants pay all costs of this suit.”

The plaintiff and intervenors both took orders of appeal, the intervenors alone perfecting their appealed.

While the foregoing statment may indicate that there are many questions of fact and of law at issue between the parties, we assume, however, from their briefs, that such is not the case, as the intervenors and opponents in their brief state—

“If it were only a matter of whether the defendant should or should not pay the claims of the laborers, possibly it would be well enough to ■ render judgment as prayed for by the plaintiff”;

And—

“The judgment of the trial court is, we think, in accordance with the facts insofar as rejecting the claims of Holloway and Cox, because clearly they had no lien on the proceeds of 'the sale of this lumber and the only objection which we urge on this appeal is that the third opponents are entitled to the entire proceeds from the sale of the lumber, with the exception of thirtyithree and 30-100 dollars ($33.30) which is the amount alleged by W.' Brittain to be due himself.”

And plaintiff, in his brief, says:

“* * * the judgment in this case was in accordance with the facts insofar as the amount was concerned * * * we do not believe the judgment was in accordance with the law, in rejecting the lien and privilege as to Holloway and Cox.”

And considering the case more or less from the statements of the parties in their briefs, we think it follows that each of the parties concedes that the other has a privilege or lien on the property or funds in the hands of the court and that the point urged on behalf of intervenors and third opponents that the assignment of the laborers’ claims did not carry the privilege granted by the statute (Act No. 23 of 1912) to the laborers, and on behalf of plaintiff that the claims of Holloway and Cox bore a privilege which has been recognized as of superior rank to the privilege or lien of the intervenors.

Considering these questions in their order:

I.

We are of the opinion that the assignment of the laborers’ claims carried the privilege granted under the statute.

“The sale of a credit includes everything which is accessory to the same, as suretyship, privileges and mortgages ”

C. C., 2645.

And the transfer of laborers’ claims carries the privileges granted by law and no express subrogation is necessary.

Saloy vs. Dragon, 37 La. Ann. 71.

II.

While the evidence establishes that Holloway and Cox sold logs to defendant, Olla Lumber Company, it does not show that the lumber seized was manufactured, in whole or in part, from such logs; and if the vendor’s privilege on logs could follow the manufactured product (which we do not decide) it would not attach, as the lumber was not shown to have been manufactured from the logs. (See Newman vs. Cannon, 44 La. Ann. 579, 10 South. 933), and we conclude the claims acquired by plaintiff from Holloway and Cox did not bear any privilege.

The judgment is affirmed.


text:
    No. 2734
    Second Circuit
    ROYAL ROUTE CO. v. WHITTINGTON & NICHOLSON CONSTRUCTION CO.
    (Dec. 11, 1926. Opinion and Decree.)
    (Jan. 28, 1927. Rehearing Refused.)

      (Syllabus by the Editor)
    1.Louisiana Digest — Sequestration—Par. 2,14, 22; Pleading — Par. 62.
    A petition for a sequestration based on a privilege must contain an allegation that the defendant was lawfully in possession of the property when the privilege arose and any other circumstance Under which the law recognizes a privilege on the property. In the absence of which the suit will be dismissed on an exception no cause of action.
    2. Louisiana Digest — Shipping—Par 86.
    Under Article 3246 of the Civil Code the captain of a vessel has a privilege for the freight charges during fifteen days after the delivery of the merchandise if they have not ¡passed into third hands.
    3. Louisiana Digest — Shipping—Par. 33.
    The word “captain” used in Article 3246 of the Civil Code comprehends the word “carrier” or “owner of the vessel”.
    4. Louisiana Digest — Sequestration—Par. 1, 12.
    The sequestration provided by Article 163 of Code of Practice is purely an action in rem and the jurisdiction falls as to all defendants when the thing seized is released.
    5. Louisiana Digest — Courts—Par. 9, 16.
    In an action in rem the court must look to its own jurisdiction without' any plea raising the question.
    Appeal from Seventh Judicial District Court ot Louisiana, Parish of Concordia. Hon. R. M. Taliaferro, Judge.
    Action by Royal Route Company against C. C. Whittington and Nicholson Construction Company.
    There was judgment for defendants and plaintiff appealed.
    Judgment affirmed.
    G. P. Bullís, of Vidalia, attorney for plaintiff, appellant.
    Dale, Young & Dale, of Vidalia, attorneys for defendants, appellees.
   WEBB, J.

The plaintiff, Royal Route Company, a corporation organized under the laws of this state, operates a steamboat on the Mississippi river, and it brings this action to recover for freight charges on a shipment made on the 18th day of April, 1925.

The suit was filed in the Seventh Judicial District Court for the Parish of Concordia on April 26, 1926.

The plaintiff, in substance, alleges that, on April 18, 1925, C. C. Whittingon, a resident of the Parish of East Carroll, employed it to transport a ditching machine belonging to the Nicholson Construction Company of Lake Providence, Louisiana, and that, acting under the employment, it transported’ the machine and placed it on the river bank at Yidalia, Louisiana, in the Parish of Concordia, where it has remained in the possession of C. 0. Whittington; that it has a privilege on the machine for freight charges, and that it is within the power of Whit'tiugton to conceal, part with or dispose of the machine and that it fears he will do so during the pendency of the suit and that it is necessary that a writ of sequestration issue to protect its rights in the premises.

Plaintiff prays for the issuance of a writ of sequestration and for service and citation on C. C. Whittington and the Nicholson Construction Company recognizing plaintiff’s privilege on the machine for the amount of the judgment' rendered against Whittington and that the machine be sold and the proceeds applied to the payment of the judgment rendered against Whittington.

The writ of sequestration was issued and the machine was seized by the sheriff of Concordia parish. The record does not show whether or not service was made, on C. C. Whittington, or the Nicholson Construction Company.

On May 14, 1926, Whittington appeared by counsel solely for the purpose of excepting and did except to the jurisdiction of the court rationae personae, and oh the same date the Nicholson Construction Company appeared and moved to dissolve the writ of sequestration upon the grounds that the affidavit upon which the writ had issued was false and untrue and that the proceedings, as against it, being solely in rem, as alleged, that the privilege of plaintiff, if it ever existed, was prescribed under the prescription of fifteen days as provided by Article 3246 C. C., and reconvened for damages, attorney’s fees.

The Nicholson Construction Company, after filing the motion to dissolve and on the same day, answered admitting that it was domiciled in the Parish of East Carroll and that it was the owner of the machine and denied the other allegations of the petition.

It alleged that it was in possession of the machine and pleaded an exception of no cause of action, and, further, the prescription of fifteen days under Article 3426 C. C., and prayed for relief accordingly.

The exceptions and motions do not appear to have been tried separately from the merits.

The minutes show that the cause was tried, evidence adduced and, after argument of counsel, taken under advisement, and judgment rendered and signed sustaining the plea of prescription filed by the Nicholson Construction Company and the plea to the jurisdiction filed by C. C. Y hittington and plaintiff’s suit dismissed at its cost.

Plaintiff appealed.

OPINION.

The plaintiff admits that the exception filed by C. C. Whittington to the jurisdiction of the court was, as to the demand for a ¡personal judgment against him, properly sustained, but contends that, as to the action in rem, it should have been overruled; it being contended that even though the plea of prescription filed by the Nicholson Construction Company was properly sustained as to it, the cause should be remanded fot- trial as against Whittington.

Plaintiff further contends that- the plea of prescription filed by Nicholson Construction Company was improperly sustained, arguing that the prescription pleaded is not applicable, in that Article 3246 C. C., has no application where the claim for freight charges is by the carrier, in which case, it is contended, the law has not specially provided for the duration of the privilege, and that- it exists as long as the property remains in the possession of the debtor and until the right of action on the debt is extinguished by prescription.

The record indicates that the motion to dissolve the writ of sequestration filed by the Nicholson Construction Company was referred to the merits and that the exception to the jurisdiction filed by C. C. Whittington was tried with the merits in the action against the Nicholson Construction Company. The plaintiff did not take any exception to such proceeding in the trial court and it has not been suggested here that the proceedings were irregular. However, as there is some uncertainty as to the grounds upon which the plaintiff insists that the cause should be remanded, we shall consider the case as if the trial was on the exceptions and plea of no cause of action and of prescription, although we conceive that as the evidence introduced on the trial is not in the record we would be authorized to affirm the judgment dismissing plaintiff’s suit on the presumption that the evidence offered would warrant such action.

Counsel rather ingenuously places in the front the claim that the trial court erred in sustaining the plea to the jurisdiction filed by Whittington insofar as it relates to the action in rem, and the effect of such error upon the judgment rendered by the court in sustaining the plea of prescription filed by the construction company, and the dismissal of plaintiff’s suit; but we shall pass these questions and come to the consideration of the case on the pleas filed by the construction company and the effect of such pleas on the case as against both defendants.

In this connection we assume that it will be conceded that the right to proceed in rem against the property of the Nicholson Construction Company, a resident of the Parish of East Carroll, is based upon the provisions of Article 163 of the Code of Practice, reading, in part, as follows:

“* * * in all cases of provisional seizure or sequestration, the defendant may be cited, whether in the first instance or in appeal, * * * within the jurisdiction where the property provisionally seized or sequestered is situated or found, though he has his residence out of that jurisdiction * * * provided that all judgments rendered in such cases shall be only operative up to the value of the property proceeded against, and not binding for any excess over the value of the property in personam against the defendant.

The ordinary writ of sequestration is based upon a ¡privilege, pledge or mortgage upon property usually securing a debt of the owner of the property or the debt of another where the law has given a privilege or pledge or the owner has consented to a pledge or mortgage to secure such debt.

Considering now the plea of the Nicholson Constructon Company, that is, the execution qf no cause of action and the plea of prescription, in the order named.

We find that there is no allegation whatever in 'the plaintiff’s petition which connects the construction company with the debt alleged to be due the ¡plaintiff by C. C. Whittington, nor is there any allegation which, if accepted as true, shows that the law has created a privilege on the property sought to be sequestered to secure the debt alleged to be due by C. C. Whittington. It is not alleged that C. C. Whittington was lawfully in the possession of the property of the construction company when he instructed plaintiff to transport it or that it was transported for •the benefit of the construction company, nor any other circumstance under which the law recognizes a privilege on the property of the Nicholson Construction Company to secure a debt due by C. C. Whittington, and we are of the opinion that as there must be some allegation of fact from which it' follows that a ¡privilege exists on the property of one person to secure the debt of another and as the petition does not allege any such facts, ■the petition fails to state a cause of action.

■ However, should we construe the plaintiff’s pleading in such a liberal manner as to hold that there is any allegation of fact therein which would warrant the conclusion that plaintiff has a privilege on the property of the Nicholson • Construction Company to aecure the debt of Whittington, or that from the nature' of the claim and the allegation that -the property was in the possession of Whittington and that the burden of pleading and. proof was on the Nicholson Construction Company to establish that its property was not subject to a privilege to secure the debt of

C. C. Whittington, we are of the opinion that the same result would follow from the plea of prescription filed by the Nicholson Construction Company.

As stated, there is no minute of the evidence introduced on the trial, and we must assume that the evidence established that the property sequestered had been out of the possession of the plaintiff for fifteen days and in the. possession of Whittington, as| alleged by plaintiff, or in the possession of the Nicholson Construction Company, as alleged by it.

Article 3246 of the Civil Code declares that:

“The captain has a privilege for the freight during fifteen days after the delivery of the merchandise, if they have not passed into third hands. He may even keep the goods, unless the shipper or consignee shall give him security for the payment of the freight.”

And being of the opinion that the word “captain” should be read so as to comprehend the carrier or owner of the vessel, we find that the plea of prescription filed by the Nicholson Construction Company was properly sustained (Mississippi Transportation Co. vs. Fosdick, Mann. Unrep. Cates, 3; Harry vs. Denniston, et al., 5 Rob. 130; Wilson vs. Banner, 1 Rob. 558; Granger vs. Campbell, et al., 7 La. Ann. 611).

The court in actions purely in rem must look to its jurisdiction without any plea raising the question, and we are of the opinion that the action provided by the law, Article 163 C. P., in which the property of a resident of this state may be proceeded against in another jurisdiction than that of his residence, is an .action purely in rem; that in such cases the jurisdiction does not' actually attach until the property is actually seized and in possession of the court through its officers, and that the jurisdiction falls when the ; thing seized is released.

The Nicholson Construction Company was made a party defendant by seizure of its property and it could file such pleas and exceptions as it deemed necessary and demand that they be passed upon without awaiting the progress of the action against C. C. Whittington, and whenever the court in passing upon the plea of the Nicholson Construction Company (such as an exception of no cause of action) reached a decision which necessarily divested it of the possession- of the property, upon which its jurisdiction was based, its jurisdiction fell, and it was without power to proceed against any other party to the action where the jurisdiction of the court was as to such party likewise dependent upon the possession of the property.

If the court had any jurisdiction over C. C. Whittington, it resulted from the seizure of the property, and when the property was released it's jurisdiction fell, and the court could not proceed against Whittington unless he had submitted himself to its jurisdiction.

We find that the plea or exceptions (no cause of action and of prescription filed by Nicholson Construction Company) should have been sustained and that it necessarily follows the property should have been released and that jurisdiction of the court fell and that the suit was properly dismissed.

The judgment is affirmed.


author: ODO'M, J.

text:
    No. 2840
    Second Circuit
    HAWTHORNE, ET AL., v. JACKSON PARISH SCHOOL BOARD, ET AL.
    (Dec. 11, 1926. Opinion and Decree.)
    (Jan. 28, 1927. Rehearing Refused.)

      (Syllabus by the Editor)

    1. Louisiana Digest — Education—Par. 6; Judgment — Par. 110, 112, 116, 198, 200.
    Tax payers have not the right to lend themselves to the school board to set aside a judgment against the school board rendered several years- previous which is res adjudicata.
    2. Louisiana Digest — Judgment—Par. 98, 110, 200, 201.
    In view of Articles 606 and 607 of the Code of Practice, a judgment which is res adjudicata as to the parties and their privies cannot be annulled merely because of the alleged ground that it or any part of it is contrary to law.
    3. Louisiana Digest — Education—Par. 6, 8; Judgment — Par. 112.
    Under Section 6 of Act 120 of 1916 and Act 17 of 1914, amended by Act 17 of 1918, the parish school boards are bodies) corporate in law with power to sue and be sued and are governing authorities of school districts. A judgment against them is binding and cannot' be attacked by tax payers of the district.
    Appeal from the Third Judicial District Court of Louisiana, Parish of Jackson. Hon. J. W. Elder, Special Judge.
    There was judgment for plaintiffs and defendants appealed.

      Judgment reversed and duit dismissed.
    W. J. Hammon, of Jonesboro, attorney for plaintiffs, appellees.
    E. L. Walker, of Jonesboro, attorney for defendants, appellants.
   ODO'M, J.

This is a suit by twenty tax payers of School District No. 39 of Jackson parish, to have certain portions of a judgment rendered in the district court in a suit styled Ruston Manufacturing Company vs. Jackcon Parish School Board, No. 1981, declared “erroneous, illegal, null, void and of no effect”.

The judgment sought to be annulled was rendered in the district court in 1921. That case was appealed to this court and, in November, 1921, the judgment was affirmed.

In the case at bar there was judgment in the lower court in favor of the plaintiffs and defendants have' appealed.

OPINION.

In 1920, the Jackson Parish School Board created School District No. 39 in that parish and shortly thereafter called an election to take the sense of the property tax payers in said school district on the proposition of issuing bonds and levying a tax to raise funds with which to erect a high school in said district. The results of the election being favorable to the tax, the school board issued the bonds, sold them and with the proceeds constructed the high school building. No contract was let for the erection of the building. The board purchased all material, employed the labor and, so far as the record shows, Supervised the work of construction.

It purchased certain building material from the Rust'on Manufacturing Company, for which it failed to pay. After the building was constructed, the Ruston Manufacturing Company brought suit against the School Board of Jackson parish to recover the amount due and asked that its lien and privilege as furnisher of material be recognized and enforced against the building and ground on which it waa situated.

The school board admitted the debt, but claimed that plaintiff was not entitled to a lien and privilege on the building and ground. There was judgment in the district court in favor of the plaintiff for the full amount claimed and—

“* * * further ordered, adjudged and decred that plaintiff’s privilege as furnisheh of material be and is hereby recognized in plaintiff’s favor upon the high school building at Quitman, Jackson parish, Louisiana, built in the year 1920, by the Jackson Parish School Board, with the right to seize and sell the same for the satisfaction of this judgment. The lien and privilege granted herein does not operate against the ground upon which the building is situated.”

This judgment was rendered on June 14, 1921.

The case was appealed to this court and in November, 1921, the judgment was affirmed.

No steps were taken by the plaintiffs to collect their judgment until 1925, when it procured the issuance of a writ of fi. fa. and was about to have the building seized and sold when the Jackson Parish School Board, the defendant in the • original suit, brought injunction proceedings against the Ruston Manufacturing Company to restrain it from proceeding to sell said building on the ground that that part of the judgment recognizing a privilege on the school building was erroneous, illegal, null, void and of no effect.

The Ru::,ton Manufacturing Company interposed a plea of res adjudicata, which was sustained by the lower court and the suit dismissed.

That case was not appealed.

The present suit by twenty property taxpaying citizens of School District No. 39, followed.

These tax payers allege that the building erected by the school board with funds thus raised is not the property of the board but belong to. them as tax payers and that they therefore have an interest in contesting the legality of the. judgment rendered in the case of Ruston Manufacturing Company vs. Jackson Parish School Board, and especially allege that—

“* * * that part of the judgment which recognized a lien on the Quitman school building was rendered without • citation to any of its owners, and that insofar as it pretended to grant a lien and privilege on the Quitman school building with the right to seize and sell the same was and is erroneous, illegal, null, void and of no effect and Hhould be so declared by this Honorable Court.”

Further alleging that the said judgment had become final as between the Ruston Manufacturing Company and the Jackson Parish School Board and that the building will be sold unless plaintiff is restrained by the court in this' suit, they pray that there be judgment against the Ruston Manufacturing Company — ■

“* * * decreeing that part of its judgment in its ituit styled Ruston Manufacturing Company vs. Jackson Parish School Board, which pretends to grant a lien and .privilege ■ upon the Quitman public school building with the right to seize and sell the same in satisfaction of said judgment to be erroneous, illegal, null, void and of no. effect, and forever enjoining and restraining the said Ruston Manufacturing Company from attempting to enforce the aame insofar as it affects said Quitman public school- building, in' School District No.. 39 of Jackson parish, Louisiana.”

The Ruston Manufacturing Company interposed a plea of prescription of one year, exceptions of no cause and no right of action, and the plea of res adju-dicata.

T'he judge ad hoc referred these pleas and exceptions to the merits.

While the present suit is brought in the name of citizens and tax payers, it is evident that they are parties interposed and that the Jackson Parish School Board is the real plaintiff; for we find in the record a petition signed by these tax payers addressed to—

“To Mr. Wm. J. Hammon, attorney for the Jackson Parish School Board.”

Reciting—

"* * * we ask that you take any legal steps that may be necessary to prevent the sale, using our names as party to the suit, with the understanding that we do not become responsible in any way for the cost of suit or any other expense connected therewith.”

Mr. Hammon is district attorney and ex-officio attorney for the school board. He testified as a witness and waei asked if the suit was not brought at the suggestion of the school board and he answered that it was not but was brought by the tax payers with full, knowledge and consent of the school board; and on being asked who was financing the suit he said:

“If would be a matter of opinion, but my judgment is that the Jackson Parish School Board agreed to cover the costs.”

We note that the school board was a party defendant in the suit. Mr. Hammon filed an answer for the board reciting, in part:

“Now comes the Jackson. Parish School Board made and cited as one of the defendants in the above cause, and for answer to plaintiff’s petition says.”

Then followa an admission that all the allegations of fact set out in the first twelve articles of plaintiff’s petition are true and—

“That the questions of law are submitted to the court for determination.”

Mr. Hammon, therefore, represents the plaintiffs and one of the defendants.

It seems to us, therefore, clear that these plaintiffs are parties, interposed, acting for the school board which must stay in the background, as it has exhausted its remedies to have the judgment against it set aside.

We find that the special judge before whom the case was tried was similarly impressed, for in his written reasons for judgment he said, amongst other things:

“* * * no doubt the school board, feeling that they may not have been represented as well as they should have on another in order to try and save the property for order to try and save the property for the benefit of the school children.”

Pretermitting the question as to whether these tax payers would have a standing in court to prevent the sale of this property .on any other ground, we do not think they had any right to lend themselves to the school board to set anide this judgment.

Johnson, et al., vs. City of New Orleans, 105 La. 149, 29 So. 355.

Aside from this, however, there are other and more pertinent reasons why the relief which plaintiffs seek cannot be granted. They are in court for the sole purpose of setting aside and annulling a judgment which became final 'more than four years previous to the filing of this suit. They allege that the portion of said judgment which recognized and granted a privilege on the school building was rendered without legal grounds and is therefore illegal, null, void and of no effect, and they pray for judgment against the Ruston Manufacturing Company, accord: ingly.

They present no issue except the one stated. They do not allege and their counsel does not now contend that there were any irregularities in the proceedings leading up to the judgment. They do not attack the judgment as a whole but only that part of it which recognized the Ruston Manufacturing Company’s privilege on the building and they attack that part of it upon the alleged ground that the judgment is contrary to the law. But that is not a cause for which a judgment may be annulled.

Code of Practice, Articles 606 and 607.

It is not alleged in plaintiff’s petition, nor is it suggested by counsel, that the school board was not properly represented, that there was want of citation, that the judge was incompetent, that there was no joinder of issue, or that the judgment was obtained through fraud or other illegal-practices.

It is not alleged or suggested that the School Board of Jackson parish was not the proper party defendant in the original suit. The board’s authority to sue and be sued and" to stand in judgment in such matters is not disputed; but plaintiffs put forth as their caues of action, their ground of nullity, that the part of the judgment which they seek to set aside was contrary to the law.

In the case of Landry vs. Bertrand, 48 La. Ann. 48, it was held that an action of nullity does not lie upon the general allegation that the judgment rendered was contrary to the law and the evidence.

In Conley vs. His Creditors, 118 La. 864, 43 So. 530, it was held that error in a judgment was no ground for nullity, and that in cases where such error- is complained of tbe remedy is by appeal.

And in the case of Hoggett vs. Crandall, 39 La. Ann. 976, 3 So. 899, the court said:

“We do not claim that our judgments are infallible; but' when they become final they are certainly irreversible by inferior courts and even by ourselves on mere grounds of error. In thus deciding, we do not forget nor do we violate the principle that in actions to annul a judgment the judgment so assailed cannot be pleaded as res adjudicata. That -principle only applies to grounds of nullity which were not considered and validly determined in the judgment itself.”

In the case of Ruston Manuftcuring Company vs. Jackson Parish School Board, the cole decided issue -was whether or not the plaintiff had a lien and privilege on the building. That issue was decided in the district court and was determined adversely to the board. The board resorted to its only remedy, that of appeal. On appeal this court specifically held that the plaintiff was entitled to the privilege and so decreed. That judgment became final long before the present suit was filed, and whether right or wrong, is binding upon all parties thereto and their privies.

In the case of Heroman vs. Louisiana Institute for the Deaf and Dumb, 34 La. Ann. 813, the Supreme Court said:

“If there is any other ground of annulling the judgment than error of decision upon the issues involved, the decision upon those issues is final’ as between the .parties to the litigation and operates as res adjudicata. This, is self evident. No principle of law is more inflexible than that which gives the absolute conclusiveness of such a judgment upon the parties and their privies. Whether the reasons upon which it was based were sound or not, and even if no reasons at all were given, the judgment imports absolute verity and the parties are forever entopped from disputing its correctness. Matters once determined in a court of competent jurisdiction, may never again be called in question by parties or their privies against objection, though the judgment may have been erroneous and liable to and certain of reversal in a higher court.”

The judgment sought to be annulled in this case is final. It is res adjudicata as to the parties and their privies.

These plaintiffs allege that they were not made parties to the original suit, but they do not allege or suggest any reason why they should or could have been made parties.

Parish school boards are bodies corpo’rate in law with power to sue and be sued. - Section 6 of Act 120 of 1916.

Said boards are governing authorities of .all school districts created by them. Act 17 of 1914 as amended by Act 17 of 1918.

In the case of Ruston Manufacturing Company vs. Jackson Parish School Board, the school board represented the citizens and tax payers of District No. 39. In its corporate capacity and as governing authority of the district, it purchased the material from the Ruston Manufacturing Company and erected the building. In plaintiff’s suit to collect its bill the school board was properly made defendant. The citizens of the district were not proper parties to that suit. They now have no cause or right of action to annul a judgment obtained against the board as governing authority of the district, the board being properly cited and represented.

But even if it may be said that these citizens should have been made parties to that suit (which is not true) and that they have an interest therein., they are estopped to contest the validity of the judgment on the grounds alleged. They were citizens and tax payers of the district when that suit was filed. They stood by and saw the school board litigate to a final conclusion the very issues which' they present in this suit.

Counsel for plaintiffs cites many decisions to the effect that property dedicated to public use cannot be sold under execution. These authorities are not pertinent, for the reason that that issue is not before the court'.

For the reasons assigned, it is ordered, adjudged and decreed that the judgment appealed from be reversed and that plaintiffs’ demands be rejected and their suit dismissed.