author: Breaux, J.

text:
    No. 10,650.
    The State of Louisiana vs. Euzebe alias Charles Charles.
    Wherever there is a difference in the recitals of a hill of exception between the statement made by the trial judge and the statement of counsel, the former is accepted as correct.
    Declarations made by the party shot, immediately after the shooting, are a part of the facts of the cáse and of the events inseparable from the crime, and are admissible in evidence, as part of the res gestee.

    They are instinctive words and not words of narration.
    The term of the District Court did not conflict with a tenn of the Court of Appeals when the accused was convicted (on a day previous to the time fixed to hold a term of that court) and sentence was passed upon him six days afterward, at a time when it was not proven that that the Court of Appeals was still in session.
    APPEAL from the Twenty-first District Court for the Parish of St. Martin. Mouton, J.

      Walter H. Rogers, Attorney General, for the State, Appellee.

      Edward Simon for Defendant and Appellant.
   The opinion of the court was delivered by

Breaux, J.

The defendant appeals from a sentence of two years’ imprisonment at hard labor. He is charged with having shot one John Davis with intent to murder.

1. During the trial he objected to the testimony of three witnesses, on the ground that it was hearsay.

The court overruled the objection, admitted the testimony and held that it was part of the res gestee.

To the court’s ruling a bill of exception was reserved.

In the recital of the testimony in this bill there is disagreement between the court and counsel about the facts.

The recitals of counsel are different from those .of the judge.

The latter, under the decisions of this court, will be accepted as correct. State vs. Young, 40 An. 488.

The trial judge, in his recital in the bill of exception, states:

The facts related occurred on the spot where the offence was committed; at the same time the parties (witness and accused) were standing from each other a distance of about twenty feet.

The defendant presented a motion for a new trial and another in arrest of judgment.

2. In the former he alleges that the term of court at which he was tried necessarily lapsed, owing to a term of the Court of Appeals fixed by law for the fourth Tuesday of April.

The accused was found guilty prior to that time.

He was sentenced after that date.

He also sets forth that he was not allowed sufficient time to prepare his defence.

3. In the motion in arrest of judgment his counsel alleges that the special jury was summoned for the week beginning April 21, 1880.

That the case was set for trial previous to that time.

It was, in the first place, set to be tried on that day.

When the case was called it was reassigned for trial instanier.

The minutes disclose that the defendant expressed himself as ready to go to trial.

1. The doctrine of res gestee is not reduced to certain rules as to the interval of time between the moment the crime was committed and the declaration.

If it is in certain cases it has no bearing on the case at bar, for the trial judge states in the bill reserved that the declaration was made at the same time.

The facts as presented leave no possible ground for discussion.

The objections were overruled and the testimony admitted as part of the res gestee.

2. The defendant pleads that the court’s term came to an abrupt end on the 21st of April, as the term of the Court of Appeals is fixed, under the law, for the 22d of that month in St. Martin parish.

On the 21st, when the ease was called, the defendant expressed himself as ready for trial.

He took the chances of an acquittal, but instead, he was on that day found guilty.

He was sentenced on the 28th of April.

It may be that the court adjourned from the twenty-first to the twenty-eighth to avoid conflict with the term of the Court of Appeals, or it may be that the latter did not hold a session that term. No evidence was introduced about court terms. The records do not show when the -term of the District Court commenced, nor when it adjourned.

We have no ground to conclude that its terms were fixed to conflict with the terms of the Court of Appeals.

We take notice of the fact that the Court of Appeals holds a term commencing at the time mentioned, but we will not presume that it was in session the day on which the accused was sentenced.

There is no reason why a District Court can not adjourn to a day subsequent to the term of an intervening Court of Appeals.

The objection has already been decided. State vs. Boyd, 38 An. 375.

3. The complaint urged with reference to the haste shown in the trial has no merit, for it is disclosed by the minutes that the “ State and the accused signified that they were ready to go to trial:”

The minutes of a court are evidence of the highest rank, and are conclusive of the facts mentioned.

No objection with reference to any undue haste of the trial was presented before conviction.

Judgment affirmed.


source: Caselaw Access Project

author: Bermudez, C. J.

license: Public Domain

text:
    No. 10,487.
    The Citizens Bank of Louisiana vs. Henry M. Hyams et als.
    Proceedings under the Act oí Congress oí July 17,1S62, to condemn and confiscate property, when consummated, did not divest tlie/e« or naked ownership, which continued to dwell in the eonfiseatee. Nothing beyond the life estate or usufruct passed to the adjudioatee.
    The claim of a mortgage creditor of the eonfiseatee who becomes the adjudicates and pays the price, is not thereby extinguished by confusion.
    A sale of that which was thus acquired by such creditor, does not transfer the/ee or naked ownership, but only the life estate or usufruct, which determines atthe death of the eonfiseatee, when the fee passes to the heirs.
    The intervention of the eonfiseatee in an act purporting to dispose of the fee and life estate, and his ratification thereof, produce no legal effect.
    That which the eonfiseatee could not do directly he could not accomplish indirectly.
    The fee or naked ownership continued in him, notwithstanding condemnation and adjudication, without any power on his part to control or dispose of the same in any manner, or to any extent whatever. Stock contributions are prescriptible by ten years.
    . Prescription does not run against a debt secured by a pledge as long as the creditor has possession of the pledge. ^Detention of it is a constant recognition of the debt and renunciation of prescription, which prevents prescription from, beginning to run.
    Under its charter the Citizens Bank is entitled to proceed against the heirs of a stock holder for the satisfaction of its claims, secured by mortgage and pledge* and enforcement of the same by seizure and sale of the property, without recurring to the hypothecary action. It can not, however, recover a personal judgment where they have accepted under benefit of inventory the succession of their author.
    PPEAL from the Civil District Court for the Parish of Orleans. VoorhieSj J.

      Henry G. Miller for Plaintiff and Appellant:
    A confiscation decree and sale under the Act of Congress of 17th July, 1862, to confiscate the life estate of certain offenders, does not disturb the mortgages on theproperty. Act of Congress, 12th Statutes at large, p. 589; Bx parte Lange, 18 Wall. 177; Hatter of Macuard, 20 Wall. Ill; Avegno vs. Schmidt & Ziegler, 85 An. 585.
    Hence the purchase by the Citizens Bank at such confiscation sale of the life estate of its debtor, even though the bank afterward undertook to sell the property under the erroneous impression that the bank acquired title to the property by the confiscation sale, did not in the least disturb or affect the bank’s loan and stock debts and mortgage securing them.

      Charles Carroll for Defendants and Appellees:
    1. The Citizens Bank having bought the stock of II. AC. Hyams and assumed the obligations to pay instalments thereon — at a sale of such stock which was provoked by the bank — such purchase extinguished by confusion the obligations of Hyams on the stock.
    2. The Citizens Bank having, as owner and with the consent of II. H. Ilyams, sold the stock once belonging to the latter to Isaac S. Ilyams, taking a note and mortgage of the latter, thereby released II. H. Hyams from his obligations in the premises.
    3. The Citizens Bank having no mortgage on the property herein pursued, can not seize or sell the same.
    4. Plaintiff’s action is a personal one, and is barred by the prescription of ten years.

      W. 8. Benedict on the same side:
    1. The purchase by a mortgage creditor of the mortgaged property extinguishes the mortgage.
    2. Such purchase, a subsequent sale to a third person, then a repurchase by legal process, creates confusion, and no right is left to the vendor save by personal action.
    3. Personal actions only exist for ten years, and in this case such action is prescribed.
   The opinion of the court was delivered by

Bermudez, C. J.

This is an action to recover certain calls or contributions due on stock, and the balance of a loan; the former secured by mortgage, the latter by a pledge of the shares.

It is brought against the heirs of Henry M. Hyams, who are in possession.

Their defence is, that the claim is extinguished by confusion and prescription, and that no personal judgment can be rendered against them, as they are beneficiary heirs only.

The District Court non- suited the plaintiff with a reserve of right to proceed in a different form.

From the judgment they rendered the bank appeals.

The record shows that, in 1860, Henry M. Hyams became a stock holder of 292 original or 272 reduced shares of $100 each of the Citizens Bank, representing nominally $27,200, to be paid for as provided for by the charter; and, that he obtained from the bank in the place of his vendor a loan of $7884, for which he issued his note payable according'to the provisions of the charter, securing it by a pledge of his shares, the payment of which had been guaranteed by a special mortgage, with stringent clauses, on certain real estate.

In 1865, under the Act of Congress of July 17, 1862, proceedings were instituted against Hyams, for the confiscation of the property.

The bank intervened, asserted its claims, and a judgment of condemnation only being rendered, all the rights, title and interest which Hyams had in and to the property, that could be seized, sold and divested, under the act, were offered at public auction by the Marshal and adjudicated to the bank, which, after paying the charges, applied the residue to its claim.

Subsequently, in 1866, under the impression that it had acquired the absolute ownership, the fee and the right of enjoyment, the bank executed an act of sale of the same to Isaac S. Hyams, on certain terms, Henry M. Hyams intervening and ratifying what was sought to be done.

Later, in 1876, the vendee failing to respond to his engagements, under the act, the bank brought suit against him, had the property and the shares seized and advertised for sale and became the adjudicatee.

Further on, Henry M. Hyams having departed this life, his heirs brought suit, in 1886, before the United States Circuit Court to be declared the owners of the property and shares, and judgment was rendered thus recognizing them, with a reserve of the rights of the bank, however.

Finally, contributions having been called by the bank on the shares and payment having been demanded of the amount due on the loan and no payment being made, the bank brought, in 1886, the present suit, to enforce her rights.

The defences set up by the heirs are not well founded. The claims of the bank are extinguished neither by confusion nor by prescription, unless partially.

1. The ownership of the property and stock never was acquired by the bank.

The fee never was divested from the confiseatee. It continued to reside in him, without any' right of control, utendi, fruendi vel abutendi, notwithstanding the condemnation and confiscation, until his death, when it passed by inheritance to his heirs. Lang’s case, 18 Wall. 117; Marmard’s case, 20 Wall. 114; Bosworth’s case, 738 U. S., p. 92.

While providing for the confiscation of the property, the law would not leave in the owner an interest susceptible of being sol'd, and with the proceeds of which he could continue in his resistance. See Borland’s case, 4 Mason 174.

It is only upon the theory that the fee is not divested, that anterior creditors are permitted to enforce their claims contradictorily with the debtor or his representative, and that it passes by inheritance to the heirs.

That which was condemned and passed to the bank was the life estate of the confiseatee.

The sale of the ownership of the property and of the stock by the bank to Hyams, Jr., was an empty and idle ceremony. As the bank had no title to the naked ownership, the sale was that of another’s-property, and so a nullity. R. O. C. 2542. That which the bank conveyed was the life estate or usufruct which it had acquire!, nothing more.

The intervention of H. M. Hyams in the act, and Ms ratification of what was thereby proposed to be done, had no legal meaning or effect.

Although it be true that the fee was not divested from H. M. Hyams by the confiscation, it is no less so that he had no right whatever to control it or dispose of the same in any manner, directly or indirectly. So that, what he then did, or nothing, amounted to the same. Th& fee continued to dwell in him until he died. Ill. C. R. R. Co. vs. Bosworth, 133 U. S., p. 92; Avegno vs. Schmidt, 113 U. S. 293-800; Shields vs. Shift, 124 U. S., p. 352.

When the bank sued Hyams, Jr., and became the adjudicates at the sale, what passed to it was that which it had previously conveyed to him, and which it had acquired at the condemnation sale, the life estate or usufruct.

Finally, at the death of H. M. Hyams, the life estate having determined, and the/ee which was in him having passed to his heirs from him, these became the owners of the property and shares, such as the same stood, cum onere. So that it is apparent that the bank never having united the qualities of creditor and debtor, its claims were not extinguished by confusion. R. C. C. 2217.

2. The defence of prescription can not avail, in every respect. The stock contributions could not be prescribed against until the same had been called.

There was one for §584 called for in December, 1873. All the others were called for in December, 1876, and subsequently, within the ten years preceding the institution of this suit, in July, 188G.

The call for the contribution of §584 is prescriptible, and was barred by the prescription of ten years, at the bringing of the action. This reduces the amount claimed to §2588. R. C. O. 3544.

The possession of the pledge was a constant recognition of the debt, which prevented prescription from even beginning to run.

It is not the contract, or act of pledge, that interrupts prescription; but it is the detention of the thing pledged. Such possession is a constant renunciation of prescription, every instant that it begins to run. Mareade 7, 205; Troplong Prescx. 65, 75, 254, 534, 618, 628; 21 An. 128; 22 An. 107, 117; 23 An. 293; 10 Otto 450; Conger vs. New Orleans, 32 An. 1253.

Under the terms of Section 24 of the charter of the bank, and even under the general law, the bank had a right to press and enforce the claims herein set np against the heirs, via ordinaria, even if they were third persons. The charter formed part of the contract, as though it had been incorporated into it.' Under its provisions, the bank could pursue the property, regardless of any alienation, in ihe hands of any possessor holding by any title, just as it could have done had it possessed against the original mortgágor and debtor. A fortiori had it such right, when the property was in the hands of the heirs of such debtor, without being subjected to pursue the forms and endure the delay of a hypothecary action, to which it was relegated by the lower court.

The bank however can not hold the defendants liable as unconditional, but as beneficiary heirs only. As such they are not responsible beyond the assets of their author. C. P. 734; R. C. C. 1058; 7 R. 500; 7 An. 319; 25 An. 628; 33 An. 1444; 34 An. 998; H. D. 1469.

The child is prohibited from taking the father’s property unless he pays the father’s debts. 31 An. 450; 34 An. 117.

The amount of contributions due is $2588, with interest, and that of the stock note reduced by credits is $5600, with interest.

The stock is secured by mortgage on the property described in the petition and the stock note is secured by the pledge of the stock and the mortgage guaranteeing the shares.

It is, therefore, ordered and decreed that -the judgment appealed from be reversed and that there now be judgment in favor of the' plaintiff, the Citizen» Bank, and against the defendants as beneficiary heirs of Henry M. Hyams and without liability beyond the assets of his succession, to-wit:

Clarence D. Spriggs, Mrs. Bettie M. Hyams, wife of Andrus H. Butler, Josiah Chambers, tutor of Daisy Hyams, Emma Hyams, Lelia A. Hyams, represented herein by her tutor and curator ad hoc, W. R. Rutland, executor of Henry M. Hyams, Jr., and tutor of his minor children, Laura R., Judith L. Rutland, Nellie C., Augusta M. and Edith C. Hyams, and

It is ordered and decreed that the Citizens Bank is entitled to' seize and sell the property described in its petition and in the act of mortgage of Henry M. Hyams to the Citizens Bank of date 23d of October, 1860, passed before Felix Grima, and to seize and sell also' the 277 shares of the capital stock of the said bank, owned by said Henry M. Hyams, to pay and satisfy the loan debt, contracted by the late Henry M. Hyams, Sr., to-wit: $5600, with 10 per cent, interest from July 1, 1886, and to pay and satisfy also the stock debt due to the bank of $2588, with 8 per cent, interest upon $156 thereof from the 1st of December, 1876, and on $156 thereof from the 1st of December, 1877, and on $584 thereof from the 1st of December, 1881, and on $584 thereof from the 1st of December, 1882, and on $584 thereof from the 1st of December, 1883, and on $544 thereof from the 1st of December, 1884, and on $584 thereof from the 1st of December, 1885, and costs, and the said mortgage in favor of the bank, to secure the payment of said debts, is hereby recognized and decreed to exist upon the aforesaid mortgaged property described in the petition and in the act of mortgage aforesaid, and the privilege upon said shares of stock, to secure payment of said debts, is also recognized and decreed to exist upon said stock, and the mortgage accorded by said act to secure the stock debt of the bank of $26,028 not due, but liable to be called for under the charter of the bank and the laws relative thereto, is hereby recognized and decreed to exist upon the aforesaid property, is to be assumed by the purchaser of the property, and to subsist thereon until final payment.

It is further ordered that the plaintiff and appellant recover cost in both courts.


author: Fenner, J.

text:
    No. 10,536.
    Mrs. Clara C. Godwin vs. Frederick Neustadtl.
    1. The authentic act makes lull proof between the parties thereto, and in absence of fraud, error, violence or other matter affecting the consent, the parties to such acts can only assail their verity and i-eality in two inodes, viz: 1. By a counter letter. 2. By the answers of his adversary to interrogatories on facts a.nd articles.
    2. When the plaintiff, having no counter letter, proceeds imlimine to probe the conscience of the defendant by evoking his answers to interrogatories, such answers stand as part of the pleadings, and if they are destructive of plaintiff’s action, an exception of no cause of action will lie.
    3. Though answers to interrogatories on facts and articles may generally be contradicted; yet. when evoked in such a ease as a substitute for a counter letter, to prove what could otherwise be proved by nothing but a counter letter, such answers can not bo contradicted by anything but a counter letter.
    4.Plaintiff, liaving no counter letter, is bound to stand either on tlio authentic act or on defendant’s answers, and either of these being destructive of her action, it is to the interest of both parties that the litigation should be terminated at once without useless costs and delays.
    A PPEAL from the Civil District Court for the Parish of Orleans. Monroe, «71

      Moise & Fitch for Plaintiff and Appellant:
    1. The allegation that a certain person is the universal legatee of one deceased, carries with it the right to prove the fact by the record of tlio succession of said deceased.

      2. Where a wife by a judgment of court is put in possession of her husband'3 estate as his universal legatee under the conditions stated in his last will and testament, and when said testament contains a statement of assets and liabilities, and a certain person claims to be a creditor of the testator, but is not so acknowledged in the statement of liabilities in the will, and where the wife accepted the succession, on the faith of a correct representation of assets and liabilities in the will, she can abandon the property of the succession to the said creditor, and be relieved from the personal liability attaching to unconditional heirs and universal legatees.
    3. A conveyance of real estate to protect property from the vexatious pursuit of one judicially declared not to be a creditor is not immoral, nor contrary to public policy. Maker vs. McGuire, 37 An. 623; Aubie vs. Gill, 2 An. 342; Gridin's Kxr. vs. Lopez, 5 Mart. 145; 40 An. 560.
    4. A suit in disaftlrmancc of an illegal contract will be onterl ainod by the courts. Thus, where an illegal agreement is still executory — not carried out — a parly may repudiate it and demand that the condition of things be reinstated as it was before the agreement. Spring Co.’vs. Knowlfcon, 105 r. N/58, and authorities therein cited; benjamin on Sales, rice. 503 a.

      Horace E. Upton and B. II. Lea for Defendanfc and Appellee :
    1. Courts of justice will not aid parties to enforce or relieve them from the effects of contracts made in violation of law. Xo action can bo maintained upon contracts made in violation of law. 12 An. 155,166; 10 An. 70. They who como into court with unclean hands ought to be told proculeslote profani, the temple of justice of your country is the house of God, it should not be made a den of thieves. Hood vs. krellsen, 31 An. 581; bernard vs. Auguste, l An. 69,70.
    2. The law gives no action to enforce, a contract without a cause, or for a false and immoral cause, whoever may demand it, unless in eases of the innocent holders of the evidences of such contracts in a commercial form. Gravicrvs. Oarraby, 17 La. 118.
    3. A simulation not fraudulent con not be proved by parol, as between the parties, and if fraudulent as to both parties, the law gives no action to enforce such contracts. 19 La. 409.
    4. A vendor without a counter letter can not set up his own fraud and simulation to annul the sale, nor can his heirs, who have no greater rights. Suitors who allege injury to themselves, or those they represent, can alone be heard in a court of justice. Cross on Pleadings, p. 84; 6?M* 524; 9 It. 280; 9 M. 352.
    5. A party can notvary or destroy his voluntary written agreements by other than written evidence, which includes answers to interrogatories on facts and articles. 12 An. 739; 5 An. 315; 22 An. 382; 11 An. 113; 17 An. 2.
    . The unbending jurisprudence of this State does not all'ow a party to vary or destroy his own voluntary declarations or written agreements by anything short of written evidence. Cary vs. Richardson, 35 An. 505; Anderson vs. benham, 40 An. 330.
    6. There is no rule of evidence bettor known and settled in our jurisprudence than this — that the fact of simulation admits of no other proof between the parties to a contract, or their representatives, than a counter letter, or something equivalent thereto. 2 X. S. 14; 6 X. S. 206; 8 X. S. 448; 3 L. 4; 19 L. 412; C. O. 2256; Merlin, Yerbo Simulation; Huranton, Yol. 13, pp. 338, 339;'Toullier, Yol. 9, p 233; 3 Rob. 452, 453.

      7. Interrogatories on facts and articles may bo propounded to the vendee, but his answers, uncontradicted by written evidence, showing the reality of the transaction will conclude the vendor. 85 An. 1052.
    Answers to interrogatories propounded to prove a transfer of real estate can not be contradicted by parol. 26 An. 252, 698; 10 An. 705, 706.
   The opinion of the court was delivered by

Fenner, J.

The plaintiff sues to recover title to certain innnovaable property which had been conveyed by her by an authentic act of sale to defendant, on the ground that said sale was a simulation, executed for the purpose of protecting the property from seizure under a judgment which might be rendered against her in a suit then pending.

No fraud, error, violence or other matter affecting the validity of plaintiff’s consent to the authentic act of sale is alleged; nor does she pretend that she has, or that there exists, or ever existed, any counter letter.

Plaintiff attached to her petition interrogatories on facts and -articles addressed to defendant and designed to probe his conscience as to the truth of the facts alleged. Defendant answered, setting up an entirely different state of facts from that propounded by plaintiff, denying the simulation of the transfer and averring that it was a real transaction, intended to secure the legitime of defendant’s wife as forced heir of her father and with the understanding that he, defendant, was ultimately either to convey the property to his said wife or to sell it and devote the proceeds to her benefit.

After the filing of these answers, defendant filed three exceptions, viz: first, that the petition discloses no legal cause of action; second, that the action can not be maintained because based on considerations illegal, immoral and contrary to public policy; third, that the action seeks to enforce an obligation founded on a false or unlawful cause.

After trial of these exceptions, the judge a quo rendered judgment maintaining the exception of “no cause of action,” from which this .appeal is taken.

Although the judgment on its face purports to maintain only the first of the exceptions above stated, it is treated here as maintaining all of the exceptions, and counsel on both sides devote their discussion mainly to the question whether or not plaintiff should be sent out of court, because the cause of action set forth in her petition discloses a fraudulent and immoral transaction, the purpose of which was to defeat her creditors, and subject to the rule that “courts of justice will not aid parties to enforce or relieve them from the effects, of contracts made in violation of law.”

Under the view We take of the case, we do not find it necessary to-decide this question.

The plaintiff makes part of her petition the authentic act of sale-which she seeks to contradict and destroy.

The Code declares that “ the authentic act is full proof of the agreement contained in it against the contracting parties and their heirs or assigns, unless it be declared and proved a forgery.” R. C. O. 2236.

It is horn-book law in our jurisprudence that the verity and reality of authentic sales can be assailed by the parties thereto only in two-ways, viz: first, by means of a counter-letter; second, by the answers of the other party to interrogatories on facts and articles. Forest vs. Shores, 11 La. 418; Hewlett vs. Henderson, 9 Rob. 379; Succession of Thomas, 12 Rob. 215; Semere vs. Semere, 10 An. 704;, Tesson vs. Guzman, 27 An. 266; Newman vs. Shelley, 36 An. 100; Crozier vs. Ragan, 38 An. 154. See also Rawle vs. Fannessey, 6 N.. S. 206,; Maignan vs. Gleises, 4 La. 1; Badon vs. Badon,. Id., 169; Brousseau vs. Indrique, Id., 351; Liantand vs. Baptiste, 3 Rob. 441; Bank vs. Tucker, 6 Rob. 443; Macarthy vs. Bank, 8 Rob. 102;, Macarty vs. Gasquet, 11 Rob. 270; Dabadie vs. Poydras, 3 An. 153; Gantier vs. Briault, 4 An. 487.

The same authorities show that the answers of a party to interrogatories stand in lieu and as the equivalent of a counter letter,, and are received on the same principle. See particularly 36 An. 100; 10 An. 704, and 9 Rob. 379.

Such answers, when made, stand as part of the pleadings. (Same cases last quoted.')

Although answers to interrogatories on facts ahd articles are generally subject to contradiction, yet when they are resorted to for the purpose of supplying the place of a counter letter, and to make proof’ which nothing else but a counter letter could make, they are evidently not subject to contradiction otherwise, at least than by a counter letter. This principle is, substantially announced in Semere vs. Semere, 10 An. 704, and is an evident corollary of the reasons on which such answers are admitted.

Now in the ease at bar, it is conceded that there exists no counter letter. Plaintiff, to supply its absence, appealed to the conscience of her adversary, and his answers stood in the record as part of the pleading’s at the time when the exception of no cause of action was filed. The case stands precisely as if plaintiff had attached to her petition a counter letter to the same effect as the answers of defendant.

It is obvious that if the latter had been the ease, the exception of no canse of action would have been good, because the counter letter so alleged would have been totally inconsistent with the relief sought in the action and destructive of it.

So the answers of defendant evoked by her, and standing as part of the pleadings, must be given the same effect. They destroy her cause of action and throw her out of court. It is for the interest of .plaintiff that the litigation, in its present shape, should be terminated, since it can have but one result. Unless plaintiff has a counter 'letter, which is not pretended, she must stand either on the authentic act or on the answers of defendant, and either of them is fatal to her action.

Had plaintiff, in her petition, simply propounded the simulation of the authentic act without declaring on any counter letter, and without appealing to the conscience of her adversary, the exception here raised would have found its place under objections to testimony. But when the plaintiff declares on a counter letter, or when, as in this case, having none, she resorts to interrogatories to defendant, the answers to which are given, the counter letter or the answers form then part of the pleadings, and if they are destructive of the cause of action, an exception to that ’effect properly lies in limine.

Judgment affirmed.


author: "Watkins, J. Bermudez, O. J.

text:
    No. 10,478.
    Mrs. Amelia M. Putnam et al. vs. New York Life Insurance Company, Consolidated with Mrs. Mary S. Putnam vs. New York Life Insurance Company.
    1. A life insurance policy in which a married woman is named as beneficiary vests a complete title in her as separate, paraphernal property, which can not be pledged as security for the debts of her husband or of the community.

      H. Same can not be converted into a separate property of the husband, or into a community asset afterward by its surrender to the insurer by the insured, and the issuance to the latter by the former oí a new policy in which another and different beneficiary is named, without the consent of the former beneficiary is first legally obtained.
    3. In case such substituted policy is only intended as a security for a previously existing indebtedness of the insured to such last-named beneficiary (and the recitals of this policy clearly indicate that it was issued in the place oí a previously existing one) the company can not be held liable therefor, having been adjudged liable for the full amount of the surrendered policy. In such case the bar of equitable estoppel does not apply so as to put upon the insurance company a dual obligation.
    APPEAL from the Civil District Court for the Parish of Orleans. Foo?’Mes, J.

      Henry O. Miller for Plaintiff and Appellee:
    A policy of insurance on the life of the husband, issued in favor of the wife, can not be surrendered by the husband, and if the surrender is, notwithstanding, accepted by the insurance company, and a new policy issued, payable to the creditor of the husband, the wife’s right will be unaffected, and the company will be liable to the wife on the death of the husband, the same as if there had been no surrender. Bliss vs. Life Insurance Oo., See. 387, p. 554; Sec. 339, p. 557; 52 N. Y. 312; 71 N. Y. 261; 23 An. 455 ; 26 An. 326; 83 An. 322.

      W. S. Parkerson on the same side.
    Buck, Dinkelspiel & Hart and T. J. Semmes & Legendre for Defendant and Appellant:
    ■Where an insurance company, at the request of the husband, recalls a policy issued on his life, payable to his wife, and issues a new policy in place thereof, it will not be liable to the beneficiary named in the second policy when he had or ought to have had knowledge of the existence of the prior policy, arid the fact that the wife of the insured was the beneficiary. Such knowledge on the part of the beneficiary prevents him from invoking the doctrine of estoppel against the company. Bigelow on Estoppel (4th ed.), p. 608; Herman on Estoppel, p. 1128, See. 1004; 62 N. Y. 72; 82 N. Y. 604; 12 Abb. Pr. XT. S. 289.
   On Application fob a Reheabing.

The opinion of the court was delivei*ed by

"Watkins, J.

On the 5th day of January, 1852, the defendant issued a policy of insurance on the life of James M. Putnam for $5000, -of which Mary S. Putnam, his wife, was named as beneficiary. , ■

Opon, certain representations, that policy was, by the assured, surrendered to the company, and on the 29th of January, 1868, it issued a second policy of exactly the same tenor as the former one, except in respect to the name of the beneficiary, which is stated in the latter-to be Emmett Putnam, brother of the assured. The suit of Amelia M. Putnam et al., widow and heirs of Emmett Putnam, substituted beneficiary, is brought on the policy of 1868, while that of Mary S. Putnam is brought on the policy of 1852, she being the surviving wife-of the assured, and the first named beneficary.

By consent the two cases were consolidated and tried together,, and, on the trial, there was judgment against the company, and in favor of Mrs. Mary S. Putnam in one ease and in favor of the company, and against Mrs. Amelia M. Putnam et als., dismissing their suit, in the other, two separate decrees having been rendered. From each one of those judgments, the losing parties, respectively, have appealed.

I.

With regard to Mary S. Putnam, beneficiary in the surrendered policy, the case appears to be as follows, viz:

As to her, the company’s contract was complete in its incipiency, and never changed, thereafter, with her consent. In law, this policy inured to hor separate, paraphernal benefit, though not separate in property from her husband, the insured, and its character of paraphernal property could not be changed to that of separate property of the husband or that of the community without her consent, lawfully obtained. As such, it could not be placed as security for the husband’s debts. To this effect there are many authorities. Succession of Kugler, 23 An. 455; Succession of Herring, 26 An. 326; Succession of Clark, 27 An. 269; Succession of Bofenschein, 29 An. 714; Pilcher vs. N. Y. Life Insurance Co., 33 An. 322.

This principle obtains, also, in the State of Connecticut: Vide Lemon vs. Life Insurance Company, 38 Conn. 294. Also, in New York: Vide Barry vs. Bruno, 71 N. Y. 62; Barry vs. Life Insurance Company, 59 N. Y. 587; and Dalton vs. Willner, 52 N. Y. 312.

All the premiums were paid on this policy prior to the 29th of January, 1868, by James M. Putnam, the insured, and to that date it was kept in force.

The tendency of the proof is to show that, in 1868 and prior to that date, James M. Putnam was indebted to his brother, Emmett Putnam, in the sum of about $2000, and, in order to secure its payment, the policy first issued and just described was surrendered and another issued in its stead, in which Emmett Putnam is named as the beneficiary. The claim and contention of Mary S. Putnam are, that, as to her, the policy of 1852 was unaffected by the attempted substitution of a new one, in 1868, without her knowledge or consent; and that -she is entitled to recover of the insurer the full amount thereof and without regard to the existence or non-existence of the substituted policy.

In Pilcher vs. New York Life Insurance Company, 33 An. 322, the same question arose and was decided in favor of the wife, as the beneficiary named in the surrendered policy, the court deciding that as to her, the policy substituted was not a new one, but merely a continuation of the first one.

In that case the point was made that, after the surrender of the old and the issuance of the new policy, payments of premiums were made by the assigns thereof, and'for that reason she could not recover the whole sum insured.

But we maintained her demand, holding that it mattered not that she herself had not paid the premiums after the substitution had taken place, because “it was not required that she should herself make the payments; vitality being preserved in the policy in her favor no matter by whom the premiums were paid, as they were paid on a policy which, as to her, -existed in her favor.”

The only case we have been able to find, which is opposed to that theory, is Landmen vs. Knowles, 22 N. J. Eqy. 594. The facts of that case were, that the mother of complainant entered into a contract with an insurance company to insure the life of their father, and she paid the premiums annually up to the date she assigned the policy to a creditor of the insured; and, subsequently, the premiums were paid by the assignee.

Upon the happening of the death of the father, the beneficiaries named in the first policy claimed the full amount of insurance, on the ground that the policy issued for their benefit, and the gift was fully executed by their mother, and its revocation was beyond her power. The assignees contested their claim,.insisting on his rights under the second policy. The _courfc held the plaintiffs entitled to the full value of the policy up to the time it ceased to be kept alive by their mother; but, construing the assignment as an evidentintention on her part to make no other payment of premiums, and the act -as equivalent, in effect, to a forfeiture of their interest therein, it construed the payment of premiums by the assignee, subsequently, as the perpetuation of a right acquired thereby, and which fully vested in him, and recognized his demand to the extent of the value of the policy, less the interest of the first beneficiaries, as specified.

But the doctrine of the Pilcher ease is founded in reason and on authority, and'must' control. Burroughs vs. Life Assurance Co., 97 Mass. 359; Knickerbocker Life Insurance Co. vs. Wiltz, 99 Mass. 159; Life Insurance Co. vs. Burroughs, 34 Conn. 305; Chapin vs. Fellowes, 36 Conn. 132; Lemon vs. Life Insurance Co., 38 Conn. 294; Life Insurance Co. vs. Brant, 1 Ins. Law Journal (Mo.) 38; Barry vs. Brune, 71 N. Y. 282; Barry vs. Life Assurance Co., 59 N. Y. 589.

The general doctrine is formulated in Bliss on Life Insurance, Sec. 348, thus;

“It will be perceived that, in all these cases, the principle is maintained that no person other than the persons designated in the policy can assign or surrender it, and that in such assignment or surrender all the persons must concur, or the interest of those not concurring is not affected.”

In Barry vs. Brune, supra — a case almost parallel to the instant one — the court said:

“ It is clear that the old policies were the consideration of, and the inducement to, the new policies. The new policies could not have been obtained but for the possession and surrender of the old policies ; and the premiums upon the new policies were paid in part by cash dividends due upon one of the old policies. Bruñe thus, by means of the possession of the old policies which belonged to the plaintiff, and by using and surrendering them, obtained the new policies. The real substance of the transaction was a substitution of the new policies for the old, for the purpose of getting security which the old one did not give him. Under the circumstances of this case, both upon reason and authority, the substituted policies, in equity, take the place of the old policies, and the money payable thereon must go to the party entitled under the old policies. For this conclusion there is abundant reason and authority.”

Hence we take it to be perfectly clear, that Mary S. Putnam, beneficiary in the surrendered policy, is entitled to recover against the insurance company.

2. Whether or not the widow and heirs of Emmett Putnam are entitled also to recover from the company, under the substituted policy of 1868, must depend mainly on a question of fact, rather than one of law. For it is plain that the defendant can be held but once liable, if. it made but one contract of insurance, unless, as we determined in the Pilcher case, it has, by its own act, attached to the policy “ a new character and liabilitj^, and by mere change of date, and name of beneficiary,” given it validity to different parties, and tlnis created a double obligation on itself.

In the instant case, the defendant company issued a policy in 1852 on the life of James M. Putnam. In 1868 that policy was surrendered and a new one issued, in all respects similar to the former, the only differences between the two being in date and name of payee. Premiums were paid on the old policy, up to the date of its surrender, and on the new one after its issuance.

The company did not exact or receive double premiums. On this statement it is clear that the question of defendant’s responsibility to the widow and heirs of Emmett Putnam must be determined on the principles of equity and estoppel. This is the contention of their counsel, for, in his brief at page 5, he says: “The New York Life Insurance Company having issued the policy herein sued upon, is estopped from denying its validity; first, because, by issuing the policy as it did, it secured an advantage to itself, in that it obtained by the transaction two parties who were interested in keeping the policy alive by the payment of premiums, whereas before it had only had one; second, in that by issuing the policy, it asserted certain facts to be true, on the faith of which Emmett Putnam was induced to change his position.”

(а) On the first proposition but little need be said, as it appears to us that there are just as many persons who had an interest in keeping the premiums regularly and promptly paid before the surrender of the old policy as after the issuance of the new one, viz: The insured and the beneficiary — though it was not, perhaps, the same interest.

(б) What are, then, the facts which the company, by issuing the policy of 1868, asserted to be true, “on the faith of which Emmett Putnam was induced to change his position.”

It is not pretended that Emmett Putnam became the creditor of his brother James, the insured, after the substituted policy was issued in his name as beneficiary. It is not claimed that after the issuance of this policy Emmett Putnam permitted his brother James to increase his indebtedness to him by'loans of money, or otherwise. It is not contended that Emmett agreed with James to accept this policy in payment of a debt then due; or as a pledge or security for a debt, secured by other pledges or securities which were released. No. The counsel of the widow and heirs says, in his brief, on same page:

“ This policy was evidently given to him by James M. Putnam, when Emmett Putnam was seeking to collect (a) pi'e-existing debt. When ho received the policy, he desisted from any attempt to collect it, and, during the twenty years which followed, neither he nor his heirs took any steps to collect that debt. They had been led to believe by the insurance company that they were perfectly secure (it), having undertaken to pay to them the sum of |5000, upon the death of James M. Putnam.” (Italics ours.)

Upon this statement, it is manifest that the substituted policy was only intended, ©r regarded, by Emmett Putnam as a pledge for the security of the pre-existing debt of James M. Putnam, and, hence, neither he nor his heirs, “ during the twenty years which followed,” took any steps “to collect that debt;” and that the effect of the company’s issuance of the substituted policy was not to induce action on the part of Emmett Putnam, but to superinduce inaction and delay on his part. It is not claimed, and the proof does not show, that James M. Putnam was solvent in 1868, when the new policy was issued, and became insolvent thereafter, and that Emmett Putnam, as a creditor of his, suffered injury thereby. The settled jurisprudence is that possession by a creditor of a debtor’s goods, as collateral security for the debt, both interrupts and suspends prescription, during the period of possession, hence no prescription has run against Emmett Putnam’s right of action against the succession of his brother.

The fact of James feeling constrained to resort to such an expedient as he did to secure his brother’s claims leads to an inference of his insolvency at that time; therefore Emmett could have sustained no injury. But it is contended that Emmett Putnam paid premiums on the new policy, and that fact is cited to instance a change of his former position. But this position is not borne out by the evidence. It shows conclusively that James M. Putnam paid premiumsYn the substituted policy for many years, and until after the death of Emmett Putnam. That after the latter’s death a friend of his widow-paid a part of the premiums for the years 1884, 1885, 1886 and 1887. That the inshred died in 1887. These payments were: For 1884, $16; for 1885, $53.87; for 1886, $57.75; for 1887, $57.25 — aggregating in amount $172.37; whereas the amount of annual premiums specified in the policy is $112. It is manifest that the “reversionary dividends” due the policy holders were utilized, and the amount of cash employed in the payment of premiums was correspondingly reduced.

Counsel further argues that the new policy was “ a separate and distinct liability” of the company, and that its promise was unconditional. An examination of the policy will show evidences to the contrary. Some of its recitals are as follows, viz: First, “ And the said company do hereby promise and agree' to and with the assured * * * well and truly to pay * * * the said sum assured to the said E. Putnam, * * * deducting therefrom all notes or credits for premiums on this policy, also old notes on previous policy, same number, unpaid at that time.” Second, “ And it is also understood and agreed by the within assured to be the true intent and meaning hereof; that if the declaration made by or for the said James M. Putnam in the application for a policy or any part thereof, and bearing date the 5th of January, 1852, and, upon the faith of which this policy is made, shall be found in any respect untrue, then and in that case this policy shall be null and void.”

These two paragraphs are quite sufficient for our present purpose. Instead of the new policy appearing on its face to be “ a separate and distinct liability” of the company, it appears that the “ old notes (due) on premiums ” on an old policy of same number were to be deducted from the. amount assured in the former; and that the declaration made by James M. Putnam in his application for a policy issued on his life on the 5th of January, 1852, was the one on the faith of which the one of 1868 was predicated, and for the verification of which Emmett Putnam, as beneficiary of the latter, was bound. By these two clauses the two policies were inseparably blended together, and the latter made to depend upon the former. Of this Emmett Putnam and his heirs and assignees were fully notified thereby, and by these recitals they are conclusively bound, as the latter are suing for the enforcement of this policy. It is a unit, and can not be divided for or against itself, but it must be taken in its entirety.

• One of the distinguishing features of the Pilcher case was that the insured husband and the company were ascertained to have confederated^ together to make it appear as though there had been a default on the part of the former in the payment of premiums,, and that consequently the policy had lapsed. That thereupon a new policy, in appearance, issued, of which the assured and his assigns were the specified beneficiaries. When issued this policy was assigned for value, and passed into the hands of the bank.

' These acts we considered and construed to be a fraud upon an innocent third person, who had parted with his money on the faith of a policy containing no notice of its being a substitution, and whereby the company was estopped from showing the real state of the case, for its own relief and protection.

The principle on which estoppel is raised in such a case, is aptly stated by the New York court. They say: “Conduct of one party is an estoppel upon him only when it induces action in another, which can not be withdrawn from him without, loss.” Warring vs. Sanborn, 82 N. Y. 604; Payne vs. Burnham, 62 N. Y. 72; Bowen vs. Brown, 30 N. Y. 541.

■ May on Insurance says: “To constitute an estoppel there must be such conduct on the part of the insurer as would, if they were not estopped, operate as a fraud on the party who has taken, or neglected to take, some action to his own prejudice, in reliance upon it. When nothing has been done or left undone by the insured, in reliance upon the act, or the non-action of the insurer, there can be no estoppel.” Pages 771, 772.

Like precepts are found in all text books. 1 Greenlief, Sees. 22, 27, 207, 208; Bigelow on Estoppel, pp. 369, 473; 6 Waite on Actions .and Defences, 701.

These authorities are cited for the double purpose of showing their application to the Pilcher case, and their inapplicability to this one.

Our conclusion is that the judgments appealed from are correct in principle, but that they are subject to a slight modification in favor of the widow and heirs of Emmett Putnam, so as to allow them the sums expended in the payment of premiums, with interest.

It is, therefore, ordered and decreed that the judgments appealed from be so amended as to allow defendant in suit of Mary S. Putnam a credit of the sum of $172.37, with 5 per cent, per annum interest from date of judicial demand, with costs of appeal; and so as to entitle the plaintiffs, Amelia M. Putnam et al., to recover of the defendant therein a like sum, with interest and costs in both courts. It is further ordered that the judgments appealed from be, in other respects, affirmed.

On Application for Rehearing.

Bermudez, O. J.

The judgment appealedlfrom in the first case having been amended in favor of Mrs. Amelia M. Putnam, by allowingher $172.37, for which she should have had judgment, the company was liable for costs in both courts, and the judgment appealed from in the second case of Mrs. Mary S. Putnam having been amended against Mrs. Mary S. Putnam by reducing it by $172.37, the company was entitled to costs of appeal, but remained liable to costs below.

The costs were, therefore, correctly apportioned and the complaint that they were not is ill founded.

Rehearing refused.


author: McEnbry, J.

text:
    No. 10,639.
    State of Louisiana vs. Pierre Bertin.
    When the record contains no hill of exception, motion in arrest of judgment, or assignment of errors, and there is no error on the face of the record, the verdi and judgment will not be disturbed.
    APPEAL from the Criminal District Court for the Parish of Orleans. Balcer, J.

      Walter R. Rogers, Attorney General, for the State, Appellee:
    If the record contains neither a bill of exceptions, motion in arrest of judgment assignment of error or error patent on its face, the judgment appealed from will be affirmed. 11 An. 328.
    Application for new trial must be sworn to. 37 An. 1.
    The evidence upon which a motion for anew trial was denied by the court below can not be considered an appeal, unless brought up by a bill of exceptions. 39 An. 780 ; 38 An. 581.

      John G. McMahon for Defendant and Appellant.
   The opinion of the court was delivered by

McEnbry, J.

The accused was convicted of entering a store in the night time, without breaking, and of grand larceny, and sentenced to twelve years’ imprisonment in the penitentiary. He has appealed from the verdict and sentence.

There is no bill of exception, motion in arrest of judgment, or an assignment of errors in the record. There are no errors to be found on the face of the record, after an inspection of the same, that would entitle the accused to relief.

The motion for a new trial is not sworn to, and there is no question of law brought up in a bill of exceptions which we can consider in connection therewith.

The judgment appealed from in such a case will not be disturbed. State vs. Sweeney, 137 Hu., p. 1; State vs. Deas, 38 An. 581; State vs. Davis & Fletcher, 41 An. 328; State vs. Tranchon, 41 An. 619.

Judgment affirmed.


author: Bbrmüdez, C. J.

text:
    No. 10,599.
    Shreveport & Arkansas Railway Company vs. J. M. Hollingsworth et als.
    The Constitution authorizes the expropriation of lands for railroad necessities, on previous payment of the value thereof, and of damages, where any have been sustained.
    Intere,st is allowable on the amounts allowed as the value, from judicial demand, where the company has taken possession, and has not paid prior thereto; but on the damages only from judicial liquidation.
    APPEAL from the Second District Court, Parish of Bossier. Drew, J.

      Alexander & Blanchard and Young & Thatcher for Plaintiff and Appellant
    cited: 2 La. 580; 5 La. 328; 13 La. 371; 1 An. 382 ; 3 An. 702; 15 An. 504; 18 An. 28.

      Wm. TI. Bristol for Defendants and Appellees.
   The opinion of the court was delivered by

Bbrmüdez, C. J.

The object of this suit is the expropriation of certain land of the defendants for the roadway of the company.

The defence is a denial of the right of expropriation of the ownership and the admission of such right to the extent of a servitude only.

By reconventional demand the defendants claim the value of the land, some special damages, and general, actual and prospective damages.

The controversy was developed, argued and submitted to two juries, who failed to agree.

In order to end it the parties consented to have it determined by the court.

The District Judge allowed to the owner of the Hollingsworth place $1000 as the value of the land (some ten acres), $375 for a lost crop and the removal of a fence, and $3750 general damages; and to the owners of the Williams place $500 for the value of the land (some five acres), and $1000 general damages, with interest on all amounts allowed to the defendants from the filing of their answer, considered as the date of the judicial demand.

The plaintiffs appeal, contending that all the amounts should be reduced by 50 per cent. The defendants on the other hand, while contending that the same ought to have been much larger, enter an appearance of resignation should the judgment be affirmed.

Some twenty witnesses in chief aud in rebuttal have been heard, and documentary evidence has been adduced.

The lands are at a short distance from the city of Shreveport, prospering and to prosper.

■ They front on the Red river, draining from it to the rear. They are sandy, high and dry. The center, or about, is the portion judiciously selected for the building of the road.

The principal improvements have been put up on the transition soil. The road apparently divides the lands into halves.

I.

The right of the company to expropriate is recognized by law and jurisprudence, and can not form the subject of serious contention.

From the days of Rome, when land owners could prevent the construction of aqueducts to supply the city with water and otherwise resist the divestiture of their property, to our times, the right and power of expropriation has undergone such radical changes, required by public exigencies, for the greater good of the people, that the owner may be dispossessed of the ownership; but with the condition of equitable indemnity previously made, not only for the value of the property, but also, when the contingency arises, for the damage which may consequently be sustained by him. Const., Art 156; 11 L. 190; 22 An. 26; 35 An. 947, 1045; 38 An. 164; R. C. C. 497; Cooley’s Const. Lim., p. 670, el seq.; No. 537, el seq.

In such cases the owner is assimilated to a debtor to society, -in certain emergencies, as in ordinary matters a debtor is to his creditor, the use of his property, in the one case, for public utility, being subjected in satisfaction of it, as in the other it is made liable to the payment of an individual claim by the arm of the law.

II.

The value of the land is established by a number of intelligent, disinterested, experienced, unbiased and reliable witnesses whose testimony is not counterbalanced. It is fixed by them at $100 per acre.

The ten acres from the Hollingsworth place are shown to yield an annual rental of $100 at least, which, however, reduced by the payment of taxes and repairs, would not be realized by usual interest, on the allowed amount were it loaned out.

Much is said to like effect of the five acres from the Williams place to show its value; both lying in the vicinity of a rapidly growing city.

III.

The proof in the record touching the quantum of damages sustained is contradictory and as usual unsatisfactory. Some witnesses say that the lands will in no way be damaged, while others are positive that the injury extends to $10,000 as to the Hollingsworth place, and that it is quite considerable as to the Williams place.

The two plantations are represented as planned, disposed, drained symmetrically, so as to promote profitable management, and as being in high state of improvement and cultivation.

The great damages complained of are that they are cut into two parts, and that communication from the one to the other by laborers, vehicles, etc., is obstructed; that the owners are deprived of the free use and enjoyment of their property and also of the increase in value of the same, owing to its vicinity to a prosperous city.

The District Judge has valued the damages to the Hollingsworth place at $3750 and those to the Williams place at $1000, without, however, undertaking to claim for such adjustment absolute accuracy.

When the testimony of credible witnesses is considered, coupled with the claim of the plaintiffs for a reduction of all allowances to 7ial/and the satisfaction of the defendants who ask no increase, we incline to the belief that, while the evaluation put to the expropriated land and the special damages may remain untouched, the adjustment of the general damages may be justly interferred with by reducing them, so as to give $2800 to the owners of the Hollingsworth place and $750 to those of the Williams place.

It is difficult to conceive how, notwithstanding the speculative testimony adduced, more damage can be sustained by the divested owners.

IV.

Considering the fact that the company had taken previous possession without anterior indemnity, we think that interest is allowable on the value of the lands from judicial demand, which is the date of the claim in reconvention, namely, the 11th July, 1888, but we do not consider that interest should run on the amount of damages, unless from the date of the final liquidation thereof by the judgment of this court, which is the only time when the plaintiffs know the precise extent of their-liability for the same, after which they can be delinquent.

It is, therefore, ordered and decreed that the judgment appealed from be amended so as to allow to the owners of the Hollingsworth place $2800, and to the owners cf the Williams place $750, to be divided according to their respective rights, with interest on the value of the lands from July 11,1888, and on the general damages from the finality of the present judgment, appellees to pay costs of appeal and appellants those of the lower court.


text:
    No. 1223.
    The State of Louisiana vs. Tony Cosgrove, alias Maginnis.
    Evidence of prior threats is not admissible in support of a plea of self-defence in homicide, unless they have been followed by an overt act or hostile demonstration, at the time of killing, of such a character as to indicate that the deceased was then and there about to execute said threats, and to justify defend-, suit in believing that his life was in such apparently imminent danger as to authorize him to take his adversary’s.
    APPEAL from the Criminal District Court for the Parish of Orleans, Marr, J.'

      C. H. Luzenberg, District Attorney, for the State, Appellee.

      J. Q. Flynn for Defendant and Appellant.
   The opinion of the court was delivered by

Fenner, J.

The defendant was indicted for murder and convicted of manslaughter.

In absence of any appearance by counsel on his behalf, we have given careful consideration to the bills of exception found in the record. Two of these bills are taken to the exclusion by the judge of evidence offered to prove prior threats and assaults by deceased against the defendant. The judge’s ruling is sustained by his statement: First, that the threats and assaults referred to occurred several months before the killing; second, that they were not followed by any such hostile overt act at the time of the killing as would lay the foundation for their admission.

The judge states that the only overt act proved against deceased at or about the time of the killing consisted in his having shaken his finger in the face of accused, adding: ‘ ‘ This was not repelled by blow or assault by Cosgrove, and was not followed up by blow or assault by Fitzgerald. Fitzgerald resumed his seat on the bench where he had been previously sitting, and Cosgrove sat on the steps where he had been sitting facing the bench. After an interval of from three to five minutes, according to some of the witnesses, Cosgrove fired successively three shots,” etc.

This statement does not disclose any such overt act on the part of deceased as, taken in connection with the prior threats, justified the defendant in believing that deceased was then and there about to carry the threats into execution and that his life was in such apparently imminent danger as to justify him in taking his adversary’s. These are, under our jurisprudence, the necessary characteristics of the overt act or hostile demonstration which may serve as the basis for the introduction of evidence of prior threats, of the dangerous character of the deceased -and the like. State vs. Birdwell, 36 An. 859; State vs. Jackson, 33 An. 1088; State vs Labuzan, 37 An. 489.

The third bill to the refusal of the judge to give certain special charges, is so conclusively disposed of by the reasons of the judge and by his statement of the charge actually given, that it needs no comment. The only serious ground of the motion for new trial was the alleged error in excluding the testimony embraced in the bills above referred to, and our disposition of them applies to this motion.

Judgment affirmed.


author: Watkins, J.

text:
    No. 1224.
    The State of Louisiana vs. Frank St. Clair and Fred Lewis.
    The defendants were jointly indicted for burglary and larceny in a single count. The case went to a jury, who returned a verdict finding them guilty of larceny. The judge directed the clerk not to file the verdict, and requested the jury to return and consider the case again, and find a verdict according to the instructions given them, at the same time reminding them that the court “ had not submitted to them for their finding, whether the defendants were guilty of larceny or not, as an independent offence, and that their finding was not responsive.” Thereupon, the jury, failing to agree upon a verdict, they were discharged, and a new jury were impanneled, by whom a verdict of guilty of burglary and larceny was rendered. Held, that the verdict of the jury first rendered was legal and valid, and the defendants could not bo again put in jeopardy by anew trial under the same indictment. Under this state of facts defendants’plea of autrefois'convict of larceny, and autrefois acquit of burglary, should have been sustained.
    APPEAL from the First District Court, Parish of Caddo. Hieles, J.

      J. Henry Shepherd, District Attorney, for the State, Appellee.
    Robt. J. Looney for Defendant and Appellant:
    1. The issues are confined to the defendants’ motion and pleas in bar. Trans. 6,7,8.
    2. The bill of indictment is legal and perfect; so admitted by the State by his demirrer. See also State vs. Dopas, 31 An. 487; Statevs. Johnson,34An.48; State vs. Brown, 35 An. 1058; State vs. Morgan, 89 An. 214.
    3. The issue is legal and perfect by plea of not guilty. See Trans.
    , 4. The trial was in all respects regular and legal from .the calling of the jury until the return of their verdict of guilty of larceny — this is admitted by the demurrer — and can not be questioned.
    5. That the verdict was in perfect response to the charge in the bill of indictment, and can not be denied or questioned. See State vs. Morgan, 39 An. 214.
    6. Neither the errors of the judge in arbitrarily refusing said verdict, nor the errors of the defendants’ counsel in not excepting there to, have anyhing to do with the issues here. See 1 Bishop Crim. Law, Secs. 978,991,993, and the notes.
    7. The Constitution makes but throe exceptions of waiver of the plea once in jeopardy. See Const., Art. 5. And as the State admits the unquestionable fact that the bill is legally perfect, the issue legally perfect, the trial perfect, and the verdict of guilty of larceny is legally perfect, there remains but one question : Was or could there be a mistrial in any legal, just or reasonable sense?
    8. Thepleaof once in jeopardy is always treated as a distinct thing from motions for new trials, motions in arrest of judgment and bills of exceptions and by-rules directly peculiar to that subject. See 1 Bishop Crim. Procedure, Secs, from 805 to 831, and 1 Bishop Crim. Law, Secs, from 978 to 1064.

      9. There is no waiver shown. We have made no motion for anew trial; no motion in arrest of judgment has been sustained. A perfect verdict responsive to the-charge in the bill was returned, which completed the trial; therefore there could be no mistrial. Defendants refer to 1 Bishop Criin. Law, Secs. 978, 991, 995, 996r 998, 999, 1001, 1001, 1005, 1006, 1007, 1018, 1011, 1015, 1016, 1027, 1037, 1012, 1013, 1011,1015,. 1016, 1057, 1062, 1063, 1061. Also 1 Bishop Grim. Procedure, Secs. 815, 819, 820. Also State vs. Cheovirs, 7 An. 10; Knob. Grim. Dig., pp. 818, 319,350, 351.
   The opinion of the court was delivered by

Watkins, J.

The indictment is for burglary and larceny in a single count. The case went to a jury, who returned a verdict finding the defendants guilty of larceny, whioh was read by the clerk, who was immediately instructed by the court not to record the same 'as a verdict, and the juiY were directed to retire and “find a verdict according to the instructions given them," the court, at the same time, reminding them that it “had not submitted to them for their' finding, whether the defendants were guilty of larceny or not, as an independent offence, and that their finding was not responsive."

The jury retired and again considered the case, without arriving at any conclusion, and, on the following day, the judge discharged them, ex proprio motu. Three days later the cause was reassigned for trial, but before the jury were empanneled, counsel for the accused filed several pleas in ■ bar to a further prosecution under the indictment, viz: first,- once in jeopardy, by the trial just adverted to; second, autrefois convict of the crime of petit larceny; third, autrefois acquit of the crime of burglary. To these pleas the District Attorney filed a demurrer, to the effect that the matters were insufficient in law to bar' a further prosecution. This demu,rrer was sustained by the trial judge, the pleas in bar were overruled by him, and the accused were tried and found guilty of burglary and larceny. Counsel retained a bill of exceptions to the judge’s rulings; and, after the trial, filed a motion in arrest of judgment, substantially, on the same grounds as those stated in the pleas in bar, and it was, also, overruled.

On this state of the record the question for decision is, whether the finding of the first jury was or not a valid verdict, such a one as the court was bound to accept at their hands; or had the judge the right to instruct the clerk not to record the one tendered, as a verdict, and direct the jury to retire and consider the case again, and find such a-verdict as would conform to the instructions given in his charge.

The reasons assigned by the judge below are set out at length in his written opinion, and they may be summarized as follows, vis!

1. That counsel for the accused was present and heard the charge that was given to the jury, and made no objection to it, nor did he request any special instructions to the jury.

2. That if the verdict of the jury is not in keeping with the instructions of the court, and does not find the facts charged by the judge to be material to a conviction, but returns the accused guilty of a crime not included in or covered by his instructions to them, he has the legal right to instruct the clerk not to record such verdict, and to decline to receive it at their hands, and to recommit them with instructions.

8. That the requirement of the judge to give the jury a knowledge of the law applicable to the case, and to avoid the statement of abstract principles impertinent to the facts proven in the case, imposes on him the duty of determining what legal principles are at issue, under the pleadings. Hence, if there is, in his opinion, no evidence whatever to support any given charge, the judge has authority to prevent such charge going to the jury.

Or, in other words, if the finding is not responsive to his charge, or be rendered through mistake, the judge should not receive the verdict, but should send the jury back with explanations.

4. He assigns as his reason in this case, for his refusal to accept the verdict rendered by the first jury, that the crime of larceny, as an independent offence, was not submitted for the consideration of the jury, because there was an entire failure of evidence tending to prove the charge of larceny.”

5. That, in such an indictment, the crime of larceny is not necessarily connected with burglary, and that a verdict which is silent as to the crime of burglary, and only finds the accused guilty of larceny, is responsive to only a part of the charge, and therefore the court ought not to receive it.

After careful consideration of the written opinion of the District Judge, we deem it our duty to say, with due respect to his learning and judicial ability, that if his theory be correct, the verdict of the jury, in any given case, would be completely under his control, in spite of the law, which declares that the jury shall be the sole and exclusive judges of the facts. For what becomes of the power of a jury to judge of the facts, if the judge has the authority to decline to receive a verdict, because, in Ms opinion, it is not in keeping with Ms charge, and does not find the facts charged by Mm to be material to a conviction, but returns the accused guilty of a crime not included in or covered by his charge ?

Or, if he has the right to decline to receive a verdict because, in his opinion, there had been an insufficient amount of evidence introduced to establish a given charge in an indictment, and which he had declined to submit for the consideration of the jury ? If the trial judge possesses such power and right of supervision, his judgment would dominate that of the jury over the facts of a case completely. Surely, this can not be the law in this State.

When a trial has been had upon a valid indictment, and to which no objection has been urged, and, after hearing the evidence and the charge of the judge, the jury return a verdict, the accused is entitled, as matter of right, to have it recorded, and the judge is without authority to set same aside ex proprio motu, because he is of opinion that the evidence justified a different one, and was not sufficient to justify the one which was returned. The only way in which such a verdict can be brought before him for review is by a motion for a new trial or one in arrest of judgment. We are at a loss to perceive what the judge’s charge has to do with the verdict, so long as neither the State or the accused have made any complaint about it.

The judge has no control over the submission of the case. His direction of the trial ceases with the rendition of his charge to the jury.

The defendants’ plea in bar should have been sustained, and all further proceedings discontinued after the first verdict was brought into court.

The Constitution declares that “ no person shall be * * * twice put in jeopardy of life, or liberty, for the same offence, except on his own application for a new trial, or when there has been a mistrial, or a motion in arrest of judgment is sustained.” Const., Art. 5.

The defendants made no complaint of the first verdict. They certainly made no motion for a new trial. There was no mistrial, because there was a unanimous verdict. They filed no motion in arrest of judgment.

On the plainest principles of construction, the second trial of the accused on the same indictment did put the liberty of the accused in jeopardy the second time, in direct violation of the bill of rights. They were legally convicted of larceny, and their pleas of autrefois convict of larceny and autrefois acquit of burglary should have been sustained, and the motion to arrest the judgment of the court under the second verdict should have prevailed.

It is, therefore, ordered and decreed that the judgment and decree appealed from be annulled, set aside, that the former verdict finding the defendants guilty of larceny be reinstated and that the cause be remanded for further proceedings according to law.


author: MoEnery, J.

text:
    No. 1225.
    The State of Louisiana vs. Joshua Turley.
    Where the record in a crimiual case presents neither bill o£ exception, motion to quash or in arrest, nor assignment of errors, and there is no error patent on the face of the record, the judgment appealed from will be affirmed.
    APPEAL from the Twenty-sixth District Court for the Parish of St. Charles. Rost, J.

      Gervais Lie he, District Attorney, for the State, Appellee.

      II. Kenner and C. A. Baquié for Defendant and Appellant.
   The opinion of the court was delivered by

MoEnery, J.

The defendant was indicted for horse stealing, tried, convicted,arid sentenced to one year’s imprisonment at hard labor, from which he appealed.

There is in the record no bill of exceptions, assignment of errors, motion in arrest of judgment, or motion to quash. On examining the record we find no error on the trial. When the record in a criminal case presents neither bill of exception, motion to quash nor in arrest, nor an assignment of errors, and there is no error patent on the face of the record, the judgment will be affirmed.

Judgment affirmed.


text:
    No. 1226.
    H. Ware vs. A. M. Morris.
    ■The defendant having authorized his attorney to abandon the appeal if he thought that the judgment would bo aflirmed, the attorney having informed him that in his judgment such would be the result, and having abandoned the appeal, not having executed a bond or taken up the case on appeal, the counsel representing the plaintiff having been informed by the counsel representing the defendant at the time that the appeal had been abandoned and the judgment acquiesced in, the property, to recover which a petitory action had been brought, having been delivered to plaintiff by defendant’s counsel, and the defendant never having objected to the change of possession, rent dues on the place at the time judgment was obtained having been paid to plaintiff by defendant’s lessee, in accordance with the direction of defendant’s agent:
    Held, that there was acquiescence, and that the judgment has been executed and the right of appeal is lost.
    APPEAL from the Sixth District Court for the Parish of Morehouse. Baird, J.

      Bussey & Naff for Plaintiff and Appellee.

      IÍ. B. Todd and C. J. & J. 8. Boatner for Defendant and Appellant.
   On Motion to Dismiss the Appeal on the Ground oe Acquiescence.

The opinion of the court was delivered by

Breaux, J.

On the 19th day of May, 1887, defendant’s counsel applied for an order of [devolutive appeal, which was granted, returnable to this court on the first Monday in June, 1887.

The appeal was not completed.

In May, 1888, the first counsel in the case being no longer employed, other counsel presented a petition of appeal from the judgment, in'which it was alleged that the first appeal had not been perfected by giving bond and filing the transcript.

This appeal was made returnable to this court on the first Monday of June, 1887. A motion to dismiss]was filed on the ground that the defendant and appellant has acquiesced to the judgment.

In support of this motion a letter of the defendant to his attorney, dated the 30th of May, 1887, was filed, also the affidavit of the attorney who represented the defendant in 1887. There was also filed .an affidavit of defendant’s agent.

This evidence received the attention of our court at the time the ■case was submitted in June last-

With reference to the acquiescence and voluntary execution of the judgment alleged, it was held that unless the affidavits were rebutted or conclusively explained ‘ ‘ it seemed clear that appellant had lost his right of appeal.”

The case was remanded to the lower court, with instructions to the judge to hear evidence on the questions of abandonment and .acquiescence vel non.

The court’s decree having been complied with, the questions are before us for our decision.

In 1887 there were two suits pending before the court a qua. The first, entitled H. Ware and Son vs. N. S. Greenwood, instituted to reinstate a lost deed; the other, entitled H. Ware vs. A. M. Morris, was a petitory action.

In the former case, the plea of res adjudieata had been filed. It was overruled on the 18th May, 1887.

The day after, judgment on the merits was rendered in favor of the plaintiff.

In the other case, that of Ware vs. A. M. Morris, part of the same litigation, judgment was rendered in favor of the plaintiff on the 23d day of May, 1887.

The counsel who represented the defendant at the time, wrote to him about these suits. (In both he represented him.) The former is auxiliary to the latter. There can be no question that the letter written by the counsel was dated the 24th day -of May, 1887, the day after the judgment had been rendered.

The defendant testifies that he was advised that the plea of res adjudicata had been overruled, but that he did not receive any notice or the least information, after the judgment on the merits had become final.

The testimony of the attorney who, at the time, represented the defendant in these cases is different.

He states, “ I wrote N.S. Greenwood about the date of the judgment one or more letters, stating the status of the case.”

“ My letter to Greenwood was written after final judgment.”

To the best of his recollection he wrote full particulars, he says;

In his answer to the letter of May 24, the defendant expresses disappointment at the result of his suit, and leaves it to his attorney to appeal or not. The attorney testifies that he had informed' the defendant of the hopelessness Of his case on appeal.

He had received the information, for he writes in this letter that “it seems that you hav'e no hope that the judgment can be reversed.”

Thus informed he nevertheless wrote to him and requested him not to appeal “ if you think there is no chance to reverse.”

It is contended that the letter from the attorney was written immediately after the plea of res adjudieata had been overruled, and not after judgment on the merits; that in consequence he could not be held to have acquiesced in a judgment respecting which he had not been informed.

The facts disclosed in the note of evidence preclude us from reaching the conclusion that the directions given and the statements made were not preceded by the least knowledge, on the part of the defendant, that a judgment against him had been rendered.

The attorney at the time employed declares: “I had no hope of' gaining the case on appeal, and it is my recollection that upon the receipt of the letter leaving the matter to my judgment, I acted as I thought to the best interest of my client and did not carry the appeal up.”

The agent of the defendant, after having consulted this attorney, directed the lessee of the defendant to pay the rental to plaintiff’s-counsel.

In accordance with'this direction the rental of the places for 188*7, 1888 and 1889 were paid to them. The then attorney and the agent of the defendant together delivered the property to plaintiff’s counsel.

Not the least objection was made.

The property was sold.

The sale was made after the counsel for the defendant had abandoned the appeal, and had informed the plaintiff that he did not intend to appeal.

The defendant authorized the abandonment of an appeal; those authorized have acted upon this authorization.

The rights resulting are fwits aceomplis; a condition which commenced under defendant’s direction, and has became binding and irrevocable by his acquiescence.

The attorney has acted within the scope of his letter. His acts have not been repudiated, and therefore bind the principal.

The taxes assessed in 1887 were not paid'by the defendant. The property has been assessed in the name of those to whom plaintiff sold. The defendant has not given himself the least concern about, the assessment ¡or the taxes.

The special agent testifies that he was agent of the defendant for the years 1885, 1886 and 1887, and in that capacity leased the property involved in this litigation, and remitted the rents to him for all these years except the year 1887.

The principal never called on him for the rental of this year nor of subsequent years.

He surely knew that this rent had been collected, and the disposition made of the amount.

The agent testified that he wrote to him on the subject, and it is. not made evident that the information has not been received.

There is acquiescence; the judgment has been executed and the • right of appeal is lost.

The motion is granted, and the appeal is dismissed.

Judgment affirmed.


text:
    No. 1227.
    George C. Waddill vs. George Walton et als.
    Act 107 of 1SS0 provides exclusively “ for the sale of property forfeited or sold to the State for delinquent taxes or licenses;” and tax sale made under said act, which describes the property sold as having been forfeited to the State at a particular date and for taxes of a particular year, is null and void when it is proved that the property was never forfeited at the date or for the taxes stated.
    Even if forfeiture at a different date' and for different taxes could be proved, yet it appearing that the price at which the property was adjudicated was less than the taxes due for which the forfeiture is claimed, this would he a cause of nullity, because violating the express prohibition contained in Act 107 of 18S0.
    Where the holder of a tax title appears as plaintiff in a petitory action against the former owners in possession, ho is bound to establish his title, and can not overeóme objections to it on the ground of prescription.
    APPEAL from the Eighth District Court, Parish of Madison. Montgomery, J.

      Stone & Murphy for Plaintiff and Appellant:
    1. Revenue Act of 1871 governed tlie assessment and collection o£ taxes (subject to amendments of 1872, 1873, 1874, etc.) until the passage of the General Revenue Act of 1877. See these acts and 39 An. 1007.
    2. No dead was over required to evidence a forfeiture to the State, under any revenue act passed during existence of Constitution of 1868, unless under those acts authorizing collection by suit.
    3. An assessment of property to a succession, where there was nothing to show the assessor that the succession had been closed or that the heirs had taken possession, is valid. Brown & Learned vs. Kent, 38 An. 807.
    4. An unimportant, unauthorized recital by a tax collector in a tax deed, though erroneous, will not affect the purchaser’s title. Reference to a former title in an act of sale, though that former title he defective, will not operate against the purchaser or affect his good faith unless it be proven dcliors the act that the purchaser had knowledge of the defect or informality in theformer title. 38 An. 885; 3 R. 223.
    5. Prescription runs against and in favor of the State. O. 0., Art. 3521; 9 An. 141; 30 An. 1262.
    6. No action can he brought to invalidate a tax title more than three years old, and a former owner can not deprive the purchaser of tile benefits of the pica of three years’ prescription by wrongfully attempting to take possession of the property and forcing the purchaser into the position of a plaintiff. Acts 1874, No. 105; 39 An. 406-1003.

      A. L. Slack for Defendant and Appellees.
   The opinion of the court was delivered by

Fenner, J.

The property in controversy belonged to Charles D. Dunlap, who died in 1855, and, under his will, passed to the defend.ants, who are his widow and daughter. It was originally a cultivated plantation, but, owing to overflows, in common with many other ■estates in Madison parish, its cultivation was abandoned and it lay idle for many years. The defendants,, however, occupied it through tenants in 1876 and 1877; and in 1887 they again put tenants upon it, who occupied it at the time when this suit was brought. There is no pretence that anybody else ever occupied the land.

In February, 1889, the plaintiff brought this petitory action against the defendants, in which he avers that he is owner of the property by virtue of a tax title evidenced by two deeds of sale, viz: first, a tax collector’s deed to him, under a tax sale made on May 1, 1886, for delinquent taxes due under assessments made in the name of A. N. .Spencer; second, another deed . made in 1882, by which the collector sold the property to Spencer, as property forfeited to the State for delinquent taxes assessed in the name of the estate of Dunlap. Of course the validity of plaintiff’s title depends upon that of the sale to Spencer; for if defendant’s title had never been divested by a valid forfeiture to the State and a Valid sale to Spencer, assessments in the name of Spencer could furnish no basis for a sale of defendant’s property. Recurring to the deed to Spencer, we discover that it was executed under Act 107 cf 1880, which provides exclusively “for the sale of property forfeited or sold to the State for delinquent taxes or licenses.”

The deed describes this property as having been “ assessed, listed, advertised and'forfeited in the name of estate of Charles D. Dunlap,” and, further, as having been “ forfeited to the State of Louisiana on the 3d day of December, 1879, for the taxes due thereon for the year 1878, and not since redeemed, as provided by law.”

Now, it is clearly proved, and indeed it is admitted, that the property was not forfeited to the State on the 3d day of December, 1879, or for the taxes of 1878; and thus, on the face of the deed, the basis on which it rests is entirely destroyed.

Plaintiff seeks to escape the effect of this by proving that the property had been forfeited to the State in 1874 for the taxes of' 1872. Even if this were proved, it is obvious that the State neither asserted nor conveyed any title founded on such forfeiture.

Moreover, the Act 107 of 1880, under which the sale was made, provides: “The tax collector shall not receive a bid for a less amount than the sum necessary to pay all taxes that may be due,”' etc.

Now, it appears from the very delinquent list recorded in the Auditor’s office, and relied on as operating a forfeiture under the 68th section of Act 42 of 1871, that the taxes of 1872, for which the forfeiture is claimed, amounted to $137.60; and the deed to Spencer shows that the property was adjudicated to him for $73, declared to be “ one dollar more than the sum necessary to pay all taxes, etc., due.”

Thus, whatever forfeiture be relied on, the title falls. If the forfeiture recited in the deed be considered, the sale is null, because there was no such forfeiture. If the forfeiture claimed for the taxes of 1872 be asserted, then the sale is equally null for violating the express prohibition of the statute by receiving, and adjudicating upon, a bid less than the taxes due.

The effort oí the plaintiff in a petitory action to sustain his title by .a plea of prescription against any attack thereon'by the defendants in possession, can not be countenanced. The plaintiff has cited ño precedent for such a reversal of the ordinary principles of pleading and of prescription, and we shall not establish one.

We have maintained the prescriptions of three and of five years in favor of tax purchasers in possession, as a shield, against action by former owners to invalidate such titles, and to oust them from possession. But when the holders of such titles, having never obtained possession, assume the character of petitory plaintiffs and seek to oust the former owners whose possession has neverjbeen divested, they must establish their title unaided by such prescriptions.

Defendants have brought no action to invalidate plaintiff’s tax title.

They are simply defending their own possession and title against an attack made by him. He must submit to the burden imposed on every petitory plaintiff of showing a title, not merely prima facie, but absolutely good. Saunders on Taxation, p. 313.

Plaintiff here has not only failed to show such title, but we think the evidence establishes that he has none.

He has no equity on his side, for the uncontradicted evidence •shows that he admitted that the purchase by Spencer was really made for him, and he suffered the property to go to sale for taxes which were really due by himself, and became the purchaser at that sale.

The judge a quo granted a judgment of non-suit, and appellees ask that it be converted into a judgment rejecting plaintiff’s demand. We think they are entitled to such amendment.

It is therefore adjudged and decreed that the judgment appealed from be so amended as to reject the demand of plaintiff absolutely, without prejudice to his right to claim reimbursement of outlays made for taxes, etc., and that as thus amended the same be now •affirmed, plaintiff to pay costs in both courts.