author: Watkins, J.

text:
    No. 11,523.
    City of New Orleans vs. Board of Administrators of the Tulane Educational Fund.
    The Board of Administrators of tile University of Louisiana having contracted and agreed with the city of New Orleans, for a fair and adequate consideration, to educate five boys of indigent parents, to be appointed annually from the public schools of the city of New Orleans, said administrators and their successors and assigns can be kept to their agreement, and held bound to accept and educate the designated number of boys of indigent parents, when properly appointed.
    The mayor of the city is incapacitated to enter into an act of compromise, and bind the city thereby, unless specially authorized by competent authority, and he can not, by acting under such a compromise, estop the assertion of the city’s legal rights.

      Rightor, J. PPEAL from the Civil District Court, Parish of Orleans.

      E. A. O’ Sullivan, City Attorney, for Plaintiff artel Appellee:
    A contract entered into under the laws by the Oity Council can not be in any way modified or impaired by any officer of the council.
    To be appointed annually means to appoint each year.

      J. McConnell and E. H. Farrar Attorneys for Defendants and Appellants :
    A party can not enjoy the fruits of a compromise and at the same time repudiate the corresponding obligation imposed on him by it. Stewart vs. Haas, 23 An. 784.
    In this case the petition represents that the city taxes, amounting to twenty-six thousand six hundred and forty-one dollars and thirteen cents in value, were remitted, as the consideration for certain free scholarships, while, on the contrary, the ordinance of the City Council directing the remission to be made is silent as to the value, and describes said taxes as being uncertain in amount or value, and uncollectible by legal process. The right ' to collect these same taxes from the “Mechanics’ Society” being reserved by the City.
    When the City, in consideration of the remission of taxes of uncertain value and uncollectible by law, as above stated, has secured five continuous free scholarships, and the university, to avoid contention, consented to receive and educate double the number required by the agreement, the City has no just ground of complaint.
    When an agreement stipulated that the university should educate five boys of indigent parents, to be appointed by the Mayor and Administrators of the City, it is incompetent for the City, by sub - sequent ordinance, passed without the consent of the University, to change the status of the appointees, or vest the power of selection exclusively in the Mayor.
    Where a clause in a contract, otherwise doubtful, has received an interpretation by the conduct of the parties for a period of nine years, whether by both parties, or by one with the express or implied assent of the other, furnishes a rule for its interpretation. O. C., Art. 1956.
   The opinion of the court was delivered by

Watkins, J.

The object of this suit is to obtain the enforcement of an alleged contract which the defendants entered into to educate five boys of indigent parents, to be appointed annually from the public schools of the city of New Orleans; that is to say, to coerce the said administrators to receive annually five cadets, to be appointed by the mayor, and to give them the regular course of education established by that institution.

It is alleged that the consideration of said contract was the remission on the part of the city of the taxes assessed against the property formerly known as the Mechanics’ Institute, for several years, so as to enable the then University of Louisiana to purchase the same for educational purposes.

It is further alleged that by an act of the Legislature additional powers were conferred upon said university, and “ in recognition of the benevolent acts and munificent gifts of Paul Tulane the corpo - rate name of the University of Louisiana was changed to the Tulane University of Louisiana, and created in lieu and stead of the State Board of Administrators of the University of Louisiana the Board of Administrators of the Tulane Educational Fund.”

It is further alleged that demand was made by the mayor of the city upon the defendant administrators to receive five boys to be by him appointed annually, in conformity to the aforesaid contract— naming the five boys to be by him appointed — and that said demand was by the defendant administrators refused.

Plaintiff’s prayer for judgment conforms to the allegation of its petition.

The defendants’ answer avows their willingness, “ as provided in said Ordinance No. 6767, to educate five boys of indigent parents, to be appointed annually from the public schools by the mayor and administrators of the city of New Orleans; meaning thereby that there shall be five scholarships so appointed, the vacancies in which are to be filled annually, and not as illegally claimed, that every year the mayor is entitled to appoint five students who are to receive free education at the hands of this board.”

Further answering, they aver that the said ordinance was the subject of contention between the mayor of said city and Board of Administrators of the University of Louisiana, as to what the rights of the mayor was under the said ordinance, and after much discussion the said board * * on the 14th of April, 1883, adopted a resolution * * to the effect that the obligation of said board extended only to furnishing free tuition to five students, and that the mayor had power to fill all vacancies in the five, whenever occurring, so that there should be always five students in the university without cost, and no more. That on the 10th of May, 1883, a resolution was adopted by said board * * which purported to be a compromise between said city and Board of Administrators, proposed by the city •attorney, by which said board agreed to educate ten (10) boys of •indigent parents, to be appointed as mentioned in said Ordinance .6767, all-vacancies to be filled by the mayor. It being the intent of said resolution that ten boys should be so educated free in said University of Louisiana, the teim of tution to be four years.”

' The defendants further aver and repres.nt that during the ten .years that have intervened between the date of the adoption of the said resolution and the receipt of the mayor’s demand of date May 10, 1892, the selection and appointment of ten students has been made in accordance with the aforesaid compromise; and they further . and finally state that, ‘ ‘ without admitting any legal liability in the premises, and with full reservation of all and singular their legal rights in the premises, they are willing that ten students should continue to be received and educated in the manner and according to the terms of said compromise.”

On these issues the following judgment was pronounced in favor of he plaintiff, namely: “Declaring the contract entered into between the defendant and the city of New Orleans to be in full force and effect, and commanding the said board to receive, within thirty days, and to continue to receive each and every, year thereafter, five boys, to be selected under said contract by the mayor of New Orleans, and to retain said boys, yearly appointed as aforesaid, until their collegiate course is completed, under the rules and regulations of the said university.”

From this judgment the defendants prosecute this appeal.

It is evident that there are but two questions for our consideration; (1) the import, of the defendant’s original contract; (2) the effect of the alleged compromise.

, While the contract is found in a proviso at the foot of the ordinance, yet we think it but right that we should reproduce the entire ordi - nance, and have extracted same from the defendant’s brief:

“ Oity Ordinance No. 6767.
(No. 6767. Administration Series.)
" Whereas, it is to the interest of the people of this city that every facility be afforded the University of Louisiana for increasing its usefulness and furthering its purposes of education, now so well begun and ably conducted, and it is represented to the council by the president of the board of administrators that more room and buildings are needed, and that the building known as the ‘ Mechanics) Institute ’ is, from its location and construction, the only suitabl- and possible addition to be had;
“ Whereas, it is further represented by said board that an opportunity now offers by which they can obtain every right and title in and to said Mechanics’ Institute for a small price, but that they are prevented or deterred from acting because of certain taxes claimed by the city of New Orleans as due by the Mechanics’ Society, and asserted to be an incumbrance on said property; and whereas, said taxes are only due for such times as said building was not occupied by the ‘ society,’ and then only on the value of the parts not so occupied, inconsistencies which would greatly reduce the said taxes as they now stand; and further, considering that the partial title now existing in the State has prevented and will forbid the subjection of said property by the city to the payment of said taxes by a sale or other conveyance, in that no satisfactory and indefeasible title can be made to a purchaser; therefore:
‘1 Section 1. Be it ordained by the Mayor and Administrators of the Oity of New Orleans in council convened, That any tax lien, privie ege or mortgage heretofore claimed by the city of New Orleans for any municipal, taxes assessed on the ‘ Mechanics’ Society, ’ for any and all years, and written or recorded as bearing on the property known as the ‘ Mechanics’ Institute,’ be relinquished, canceled and annulled as to said property whenever the University of Louisiana, through its Board of Administrators, shall have obtained full title to and possession of said property, and to this end the mayor is instructed to intervene in the act affecting such transfer of title and giving possession, to carry out the provisions of this ordinance, and until said intervention and act has been completed said taxes and privileges, etc., shall continue undisturbed; provided nothing herein shall be construed as relieving the ‘ Mechanics’ Institute ’ from its obligations for said taxes.
“Sec. 2. Be it ordained, etc., That a copy of the title to said Board of Administrators, embodying the intervention of the mayor as aforesaid, shall be furnished the administrator of accounts of the city of New Orleans, and the same shall be and constitute his authority to erase and annul from his hooks, and from those of the recorder of mortgages, all of said taxes, privileges and mortgages, so far as they affect said pioperty — the Mechanics’ Institute.
“ Provided, that the said institute binds itself to educate five boys of indigent parents, to be appointed annually from the public schools by the mayor and administrators of the city of New Orleans.
“Adopted by the council of the city of New Orleans, December 21, 1880.”

The controverted question is now, as it has been for many years past, as to the correct interpretation to be placed upon the phrase “to educate five boys of indigent parents, to be appointed annually,” as it occurs in the proviso to Ordinance 6767.

Both the city and the administrators have given their respective interpretations thereof, as the foregoing sketch of the pleadings discloses, and the district judge having accepted that of the plaintiff as the correct one it is our province to det:-rmine whether his opinion is erroneous vel non.

The code has established and formulated certain fixed rules for “the interpretation of agreements.”

One article declares that “ legal agreements having the effect of law upon the parties, none but the parties can abrogate or modify them. * * * That courts are bound to give legal effect to all such contracts according to the true intent of all the parties.

“That the intent is to be determined by the words of the contract, when these are clear and explicit, and lead to no absurd consequence.” R. O. O. 1945.

Another article declares that “ the words of the contract are to be understood like those of a law, in the common and usual signification, without attending so much to grammatical rules as to general and popular use.” R. C. O. 1946.

Another article declares that all clauses of an agreement are interpreted, the one by the other, giving to each the sense that results from the entire act.” R. O. O. 1955.

Following these rules for the interpretation of agreements we are of opinion that the judge a quo gave a correct interpretation to the language of the proviso of the ordinance. The intent and purpose oí the parties are plainly and easily discoverable from the words of the contract.” The obligation of the defendant was “to educate five boys of indigent parents, to be appointed annually from the public schools.” These words mean just what they say, “five boys * * appointed annually;” and, as the courts are bound to give legal effect to all contracts according to the intent of the parties, we feel bound to affirm the correctness of the ruling of the district judge in this respect.

With reference to the alleged compromise, set up as a matter of defence, there is nothing said in the judgment, but from the tenor of it, it is to be presumed the judge disregarded it; he could not have otherwise reached the conclusions he did.

The following is an extract from the minutes of the Board of Administrators of the University of Louisiana of March 28,1888, viz.:

“ Extracts prom Minutes.
I ‘ Extract from minutes of the Board of Administrators of the University of Louisiana, held March 28, 1888. Present: President J. H. Kennard, and Messrs. Howard, Macon, Labatt, Lavillebeuvre, Seymour, Lafitte and Mayor Behan, constituting a quorum.
“ The president stated that the meeting had been called at the request of the mayor, who wished to learn exactly the agreement concerning the five scholarships in the academical department of the university, allowed the city of New Orleans. Mr. Mayor Behan wished to know whether he had the right to appoint five persons to scholarships each year, without considering whether those appointed in previous years remain at the university or not, or whether it had been agreed that not more than five persons appointed by the city should be entitled to tuition free at any one time. After much discussion, during which Mr. Baldwin entered and took his seat, it was decided, upon motion of Mr. Macon, that the decision of the question should be postponed until the original resolution of the board, which the secretary was unable to find, granting the right to the city, could be found.
“ Respectfully,
“ Chas. B. Stafford, Secretary."

The following is an extract from the minutes of the board in April, 1888, viz.:

II Be it resolved, That the sense of this board with reference to the rights of the city of New Orleans to the appointment of free students to the University of Louisiana is that the obligation resting on the university, under the existing ordinance and agreement, extends only to furnishing tuition free to five students; that the mayor has power to fill all vacancies in the five whenever occurring; the true inten and meaning being there shall be five students in the university without cost, and no more.
Mr. Labatt and Mayor Behan voted against the resolution.”

The following is an extract from the minutes of the Board of Administrators on the 16th of May, 1883, viz.:

Extract of minutes of Board of Administrators of the University of Louisiana, held May 10, 1883:
“ The president stated that the object of the meeting was to consider the matter of city scholarships. Judge Kennard stated that he had had a conference with the city attorney, and that to save the university from the expense of litigation he had agreed to present to the board a resolution drawn up by the city attorney, with some changes agreed to by the same person, settling the matter by compromise. The president then read the motion, which was as follows :
Whereas, a doubt exists as to the number of boys it is the duty of the University of Louisiana to educate at one time under the provisions of Ordinance No. 6767, A. S., and as it is for the best interest of all parties that the same should be amicably arranged, and that equal justice should be done both to the University and to the Oity;
Be it resolved by the Board of Administrators of the University of Louisiana, that the board, etc., binds and obligates themselves always to educate at one time ten boys of indigent parents, said boys to be appointed ill the manner pointed out in the Ordinance No. 6767 aforesaid, all vacancies to be filled by the mayor. It being the full intent of this resolution that there shall always be ten boys, as aforesaid, educated free in the university at one and the same time, and no more; the term of tuition to be four years, said students to be subject to the same rules when admitted as other students.’
Mr. Baldwin entered while the motion was being considered, and the president restated the case. Mr. Lafitte then offered the board the resolution prepared by the city attorney. Mr. Lavillebeuvre seconded it, and it was unanimously carried.”

Taking into consideration the foregoing proceedings and resolutions of the Board of Administrators, and giving to them the full weight and force to which they are entitled, it is our opinion that they do not evidence a compromise, for the main reason that they were ex parte. It is quite true that they disclose that the president of the Board of Administrators had an interview with the city attorney in reference to city scholarships, “ and that, to save the university from the expense of litigation, he had agreed to present to the board a resolution drawn up by the city attorney, with some changes agreed to by the same person, settling the matter by compromise;” but neither the proceedings nor the resolution of the board declare that the. city attorney had authority to bind the city in any manner, or that he had acted on the request or at the suggestion of the proper city authorities in so doing. And the proceedings, as well as the resolution, show that it was the resolution of the Board of Administrators alone that construed their previous contract, without the sanction or concurrence of the city; and it is therefore not binding on the city as a compromise.

The defendants’ counsel invite our attention to their willingness to receive and educate five boys of indigent parents as stipulated in the Ordinance 6767 and refer to the altered phraseology of the Ordinance No. 7050, adopted January 3, 1882, in this respect. It is as follows, to -wit:

“Ordinance 7050: Be it resolved, That the mayor is hereby authorized to select and appoint said five cadets from among the deserving boys or lads attending the public schools of the city of New Orleans. Adopted January 3, 1882.”

That ordinance did not and could not alter the terms of the prior ordinance and the contract made under it in any respect. Under this last ordinance the appointing power was conferred upon the mayor alone, in lieu of the mayor and administrators of the city; but it did not relieve the mayor from the duty of making selections of appointees from those boys who have indigent parents — the language of this ordinance being “to select and appoint said five cadets.” It is of equivalent import. We do not regard it of any special consequence that the mayor acted on the faith of the alleged compromise and annually appointed the number of boys therein designated. The. city could be no more bound or estopped by the ex parte action of. that officer, in this respect, than in attempting to effect a compromise, or in assenting to it after it was made as stated.

Judgment affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    No. 11,500.
    William J. Behan et als. vs. Board of Assessors et als.
    1. Under the revenue law of 1890 real estate, with the buildings, improvements and appurtenances, are directed and required to be separately assessed from the machinery, apparatus, etc., appertaining to a jute factory thereon placed.
    2. Notice having been served upon the parish board of assessors, to the effect that the property of a manufacturing establishment is exempt from taxation, can not serve as a demand for the reduction of an excessive assessment.
    3. The tiling of an assessment roll in the office of the recorder of mortgages acts as a lien upon each specific piece of real estate thereon assessed, and the same property becomes subject to a legal mortgage after the 31st day of December of the current year.
    Monroe, J. PPBAL from the Civil District Court, Parish of Orleans.

      Farrar, Jonas & Kruttschnitt Attorneys for Plaintiffs and Appellants: •
    Separate assessments of the naked real estate, and of the improvements upon it, áre violative of Sec. 16 of Act No. 106 of 1890, and are absolutely null and void.
    Under See. 32 of Act No. 106 of 1890, the delivery of the tax roll to the recorder of mortgages does riot operate a lien or mortgage upon the property until the 31st day of December of the current year. Hence the purchaser of property in May. purchased the property free from mortgages for the taxes of the current year.

      R. Lyon for Tax Collector, Defendant and Appellant.
   The opinion of the court was delivered by

Watkins, J.

Alleging themselves to be the joint owners of certain real property situated in the city of New Orleans, and described in their petition, together with all of the buildings and improvements thereon, as well as all of the rights, ways, servitudes and privileges thereto appertaining, and also of the entire machinery, engines, boilers, loom, frames, shaftings, pulleys, elevator, etc., thereon situated — the whole constituting the plant and fixtures of said property — the petitioners represent that, on the 3d day of May, 1893, same was purchased for their account at sheriff’s sale, and that the proces verbal of adjudication thereof was duly registered in the conveyance records of the parish of Orleans on the 19th of July, 1893.

That, upon examination of the tax records and the recorder’s office, they Arid certain assessments against the property, which, in their estimation, are null and void, and should be so adjudged and declared, and canceled and erased for the following reasons — same being summarized in the plaintiff’s brief, as follows, viz.:

“ The points for which we contend, and upon which we rely to establish the absolute nullity of the second assessment, are as follows, to-wit:
“ 1. That the assessment for machinery and appurtenances is a dual assessment, as this property is covered by the assessment of the real estate upon which it is located.
“2. That even if it be not a dual assessment, it is null and void, because it is an assessment of Axtures or immovables by destination separate from the real estate to which the same are attached.
“And even if the assessment be not entirely null and void, we claim that it does not operate a lien upon the property of the plaintiffs, for the reason that they acquired this property at sheriff’s sale before the taxes for the year 1893 had matured so as to become a lien.”

The prayer of the petition is, in substance, that the judgment of the court decree that the assessment placed by the Board of Assessors on the assessment rolls of 1893, for the sum of one hundred and twenty thousand six hundred dollars, “ on the jute factory, all machinery and appurtenances, locomotive and all other motive powers,” is absolutely null and void and of no effect; or that in the alternative, it decree that said assessment does not bear a lien and privilege upon said property; and that in the event both the assessment and lien be maintained, that the latter be so reduced as to correspond with the true value thereof.

The answer of the Board of Assessors and tax collector is a general denial.

On these issues the case was tried and judgment rendered in favor of the defendants, and the plaintiffs have appealed.

The case of the plaintiffs is very carefully stated in their counsel’s brief, and for the purpose of being accurate we extract the portion that is deemed most pertinent, to-wit: “That both of said assessments are in the name of the Crescent Jute Manufacturing Company; that they are both on the same property; that all of the machinery, appurtenances and motive power of every description whatsoever, in the jute factory at the corner of Chartres and St. Ferdinand streets, are upon the real estate described in the first of said assessments, and are appurtenances and a part of said real estate, and are immovables by destination. That said assessment, upon the cash value of lands and lots of ground aforesaid, including buildings and improvements of whatever kind, assessed at twenty-nine thousand four hundred dollars, exhausted the power of the Board of Assessors, and that said second assessment is a duplicate or dual assessment, and therefore null and void; that the Crescent Jute Manufacturing Company, which was the owner of said property at the time when the assessment rolls of the parish of Orleans were exposed for inspection in the year 1893, applied for thq cancellation of said assessment to said Board of Assessors during the time prescribed by law, but that the assessors, nevertheless, failed to cancel the said assessment, and that the assessment is null, not only because it is a dual assessment, but also because the said machinery, motive power and everything included in said assessment of one hundred and twenty thousand six hundred dollars constitutes machinery and property employed in the manufacture of textile fabrics in a factory, wherein more than five hands are and were employed, and that the same is therefore exempt from taxation by Art. 207 of the Constitution, for the year 1879; that the sum of twenty-nine thousand four hundred dollars, at which the said real estate is assessed, is greater than the full market value of the real estate, and of all the machinery, appurtenances and improvements thereupon, including the property covered by said second assessment, and that the real value of all of said property, so assessed at twenty-nine thousand four hundred dollars, does not and did not at the time of the assessment exceed twenty thousand dollars; that even if the assessment on machinery was not a dual assessment, it is null and void because an assessment of improvements on real estate separate from the real estate upon which the same are located contrary to the laws of this State; that even if the assessment be declared to be a legal and valid assessment against the Crescent Jute Manufacturing Company, it is, nevertheless, inoperative, in so far as the property acquired by petitioners is eoncerned, and does not bear a lien or privilege upon the same because the same was acquired by petitioners at sheriff’s sale, prior to the time when the same became a lien upon said property under the laws of the State of Louisiana.”

(a) The following is a verified copy of the assessment complained of, viz.:

u Assessment Roll for the Parish of Orleans, 1893.

The foregoing constitutes a single assessment, and is not in any. sense a dual or double assessment, or one that was made by piecemeal, and at different times or dates.

The roll — an extract from which is brought up in the original— plainly shows that under heading No. 1, “Cash value of all lands and lots * * including buildings and improvements of whatever kind,” the lots of ground and the buildings and improvements thereon belonging to the Crescent Jute Manufacturing Company, were assessed at twenty-nine thousand four hundred dollars; while under heading No. 13, “ All machinery and appurtenances, locomotive and all other motive power” belonging to said company were assessed at one hundred and twenty thousand six hundred dollars. This assessment was made in exact compliance with the blanks furnished to and in use by the parish assessors.

An examination of Sec. 1 of Act 106 of 1890 shows that the assessment was made in exact conformity to its provisions, the act in terms requiring an assessment of “ all real estate, with the buildings and improvements thereon or thereto attached,” as one item of property that is subject to assessment; and separate and apart from this is the assessment of “engines, boilers, apparatus, appurtenances, appliances and attachments for steam, electric and other engines,” and the like. It matters not that a portion of the latter description of property was, at the time, immovable by destination, the Legislature was perfectly competent to authorize and require an assessment made in this manner, and it was the manifest duty of the revenue officers to accept it, and act under it as their guide.

(b) As the proof shows that all the properties assessed belonged to the Crescent Jute Manufacturing Company, and this establishment had not been actually engaged in manufacturing jute for at least two years prior to the assessment in question, same is not exempt from taxation under Art. 207 of the Constitution. But this exemption is not pressed in argument.

(c) With respect to the objection that was urged on the part of the Crescent Jute Manufacturing Company to the assessment previous to the sale of the plaintiffs, the preponderance of evidence shows the objection urged by the corporation was that it was not liable to assessment at all, and not that the assessment was based upon too great a valuation — consequently, -the Board of Assessors did not have before ■them for consideration the question of the reduction of the assessment at all.

One of the notices that was served on the president of the board will suffice. It is of the following tenor, viz.:

“ New Orleans, March 15, 1893.
Mr. J. M. Gleason, President Board of State Assessors, Parish of Orleans, City Hall:
■ “Dear Sir — I am instructed by our president, Mr. E. A. Behanj to say that we object to any taxes being levied against our factory, as our laws exempt manufactories in textile fabrics from any and all taxes.
“ The supposition that we made no continual runs last year does not debar us from benefaction, according to our legal adviser’s opinion.
“ Very respectfully,
“ Crescent Jute Manufacturing Company,
(Signed) “ Louis Moths, Secretary.”

In July, 1893 — long subsequent to the sale of its property to the plaintiffs — the secretary of the company addressed a communication to the State Auditor, requesting the cancellation of the assessment, on the ground that the factory had been shut down for three years, and portions of the machinery had been used for other purposes, but this application was declined by the auditor, on account of his want of authority to make the cancellation.

As there was no preliminary application for the reduction of the assessment of the property of the Crescent Jute Manufacturing Company prior to the sale thereof to the plaintiffs, the latter can not now be heard to make complaint in a court of justice, that the assessment was erroneous or excessive. Shattuck & Hoffman vs. City, 39 An. 206.

(d) Under the law it was the duty of the assessors in the city of New Orleans to file with the recorder of mortgages a complete assessment roll by the 1st of June, and it is made the duty of the recorder of mortgages to immediately file said roll, and to retain and keep same among the records of his office — though the inscription thereof in the mortgage office “shall not operate as alien or mortgage upon the property until the 31st of December of the current year.” Secs. 31 and 32 of Act 106 of 1890.

But the following section qualifies the provisions of the former, thus:

“ That from the day the said tax roll is filed in said mortgage office it shall act as a lien upon each specific piece of real estate thereon assessed, which shall be subject to a legal mortgage after the 31st day of December of the current year,” etc. Sec. 33 of Act 106 of 1890. ~ •

Consequently, plaintiffs’ property is subject to the lien, if not to the legal mortgage of the statute — their deed of sale having been recorded on the 19th of July, subsequent to the filing of the assessment roll.

Judgment affirmed.


text:
    No. 11,445.
    Cornelius C. Beard vs. Peter Lufriu.
    Although the defendant in a proceeding for confiscation had no power of alienating the reversion or remainder which was still in him after the confiscation and sale, still an alienation of it by him, by a deed of warranty, accompanied by a covenant of seizin, or delivery of possession on his part, estops him, and all persons claiming under him, from asserting title to the premises, or against the vendee or grantee, or his heirs or their assigns, or from conveying it to any other person whomsoever.
    PPEAL from the Civil District Court, Parish of Orleans. King, J.

      F. L. Richardson Attorney for Plaintiff and Appellee:
    The effect of the general amnesty proclamation in 1868 was to restore the citizen who had taken sides in the late Confederacy to the right of disposing of his interest in his confiscated property as completely as if never taken from him. Bosworth vs. the Illinois Central Railroad Company, 133 U. S. 192.
    There was no change in the Federal jurisprudence on the subject, and the question had not before been presented. Jenkins’vs. Collard, 145 U. S. 546.
    An heir holds by no better title than his ancestor. Griffin vs. Blanc, . 15 An. 5.
    An act of partition between co-heirs not sufficient to show possession ■ in good faith from the vendee of the heir. Brown vs. Brown, 15 An. 169.
    A mistake in the application of the law to well known fact will not relieve a. purchaser, even though he takes under legal advice. Dohan’s Heir vs. Murdock, 41 An. 494.
    An adjudication completes the sale. 6 La. 550; 10 An. 26; 12 An. 335.

      Chas. F. Claiborne Attorney for Defendant and Appella nt:
    Up to and including the year 1886, the jurisprudence of the United States Supreme Court was that a judgment of condemnation and a sale under the confiscation act divested the confiscates of a life estate or usufruct in the property sold, and deprived him of the exercise of any right of ownership over the naked ownership of the same; and that, at his death, both elements of ownership were united in his heirs. Wallach vs. Van Riswick, 92 U. S. - 202; Chaffraix vs. Shiff, 92 U. S. 214; Pike vs. Wassell, 94 U. S. 711; French vs. Wade, 102 U. S. 132; Avegno vs. Schmidt, 113 U. S. 293. .

      And that this incapacity to exercise the rights of ownership over the property confiscated by sale or will was not removed by a pardon or amnesty. 91 U. S. 21, Semmes vs. United States; Knote vs. United States, 95 U. S. 149; 4 Wall. 333, 380; Confiscation Cases, 20 Wall. 92; Wallach vs. Van Riswick, 92 U. S. 202, 213 214.
    The Supreme Court of the United States changed its ruling upon these questions in the year 1889. Illinois Central Railroad vs. Bosworth, 133 U. S. 92; Jenkins vs. Collard, 145 U. S. 552. .
    But this change of ruling can not affect one who acquired rights .under the pre-existing jurisprudence. Because the interpretation by the judiciary of a particular statute becomes a part thereof, and rights acquired thereunder are vested rights which can not be divested by a subsequent change of jurisprudence. 10 An. 122; 37 An. 55; 40 An. 500; 2 Black (U. S.) 603; 16 Howard (57 U. S.) 432; 1 Wall. 175; 4 Wall. 270; 9 Wall. 477; 19 Wall. 678; 105 U. S. 294; 101U. S. 677, 687; 116 U. S. 361; 109 U. S. 105; 16 Wall. 684.
    A possessor in good faith is entitled to be “ reimbursed the expenses he may have incurred on it,” or “ a sum equal to the enhanced value of che soil.” O. O. 3453, 3416, 508, 500.
    In a petitory action plaintiff must show title in himself and in his author. 15 An. 169.
   The opinion of the court was delivered by

Watkins, J.

This is a petitory action, and the only question for the court to decide is, which has the better title to the property in dispute — the plaintiff or defendant.

The judge a quo gave judgment in favor of the plaintiff in respect to the property, rejecting his demand for reuts and revenues antecedent to the institution of the snit, and giving the defendant judgment against the plaintiff for the sum of one thousand three hundred and seven dollars and twenty-five cents on his reconventional demand for betterments, and allowing him to retain possession of the property until this allowance shall be paid.

From that judgment the defendant has appealed, and the plaintiff and appellee answers the appeal, and, denying that the defendant and appellant was a possessor in good faith, prays an amendment of the judgment appealed from, so as to condemn him to pay rents and revenues during the term of his possession.

Inasmuch as the appellee, in his answer to the appeal, does not ask a revision of the judgment in respect to the amount allowed the defendant for improvements, it is fair to assume that he is contented therewith. Hence there are but two questions for us to deal with, namely: (1) title vel non in the plaintiff; (2) bad faith vel non in the defendant.

The plaintiff’s chain of title to the property in suit is as follows, viz.:

1. By a conveyance from John Arrowsmith to H. M. Hyams on the 7th of January, 1854.

2. By certain proceedings and judgment of the United States Circuit Court against H; M. Hyams, confiscating his property under the act of Congress of date August 6, 1861, and an adjudication by the Marshal of the United States to Jotham Potter on the 18th of May, 1865.

3. By a conveyance from Jotham Potter to H. M. Hyams on the 3d of February, 1866.

4. By a conveyance from H. M. Hyams of three-fourths undivided interest to his son, Isaac S. Hyams, on the 4th of May, 1866.

5. By a conveyance from Isaac S. Hyams to the plaintiff, 0.0. Beard, of said three-fourths interest, in act of partition and exchange of date June 4, 1870. And in his petition plaintiff alleges that he derived title “from Isaac S. Hyams by act of partition and exchange passed before E. Barnett, late notary, on the 4th of June, 1870 ” — the act last described.

The defendant’s title is derived through a judicial partition in kind amongst the heirs of H. M. Hyams, on the 3d of January, 1885 — the latter having died on the 25th of June, 1875 — and, in the partition, the lot containing the property in dispute was drawn by Ingram R. Hyams. And on the 20th of February, 1886, Ingram R. Hyams conveyed the property to the defendant.

The question for decision is, whether the plaintiff’s title from Isaac S. Hyams is better than the title the defendant derived from Ingram B. Hyams — both titles being derived from H. M. Hyams as a common author; and Isaac S. and Ingram R. Hyams being heirs of H. M. Hyams.

In the defendant’s answer it is alleged that Isaac S. Hyams never had any title to transfer to the plaintiff; and that, in consequence of the confiscation proceedings against H. M. Hyams, and the adjudica - tion thereunder, “ there was not left to said H. M. Hyams any interest of any kind which he could convey as he did, but that the ownership of said property reverted to the heirs of H. M. Hyams at his death,” etc. The defendant’s counsel cites and relies on the following decisions of the Supreme Court as sustaining his view, viz.: Wallach vs. Van Riswick, 92 U. S. 202; Chaffraix vs. Shiff, 92 U. S. 214; Pike vs. Wassell, 94 U. S. 711; French vs. Wade, 102 U. S. 132; Avegno vs. Schmidt, 113 U. S. 293.

That such was the theory entertained by counsel who had charge of and conducted the proceedings in the partition of the H. M. Hyams property, there can be no doubt, as it appears from the face of the proceedings themselves; but the Supreme Court has expressed a different opinion, in a case more recently decided than either of the cases referred to — Jenkins vs. Collard, 145 U. S. 547.

That case, like the instant one, was an action of ejectment, brought by the heirs of Jenkins, the confiscatee, for the recovery of the property which was confiscated, and the life estate in which had ■been sold, and of which (property) the defendant, Collard, became the possessor, during the lifetime of the. confiscatee, plaintiffs alleging they had become seised of the legal estate in the premises by reason of the death of their father, and entitled to possession. The facts of that case seem to have been, that in 1863 all the estate of Jenkins was confiscated and sold to Bepler, who afterward conveyed to the defendant, Collard, to whom Jenkins subsequently made a formal deed of conveyance, on the 26th of August, 1865. On this state of facts, the Circuit Court held that only the technical life estate of Jenkins was confiscated by the decree of the court in 1863, “ but there was left in him the reversion or remainder which he sold and conveyed to the defendant, by deed of August 26,1865, and that consequently the plaintiffs had no interest in the property.”

The Supreme Court, in passing upon this question, examined and carefully reviewed all of their previous utterances in reference thereto, and announced their adherence to the doctrine, that a confiscation sale only disposed of the life estate of the confiscatee, but at the same time held that Jenkins’ deed to Collard, of August 26, 1865, operated as an estoppel against him, and all persons under him, from claiming title to the property sold as against the grantee and his heirs and assigns, or against his conveying it to other parties.

The court gave effect to the conveyance, made by the confiscatee subsequent to the confiscation sale, and several years antecedent to the President’s amnesty proclamation, on the authority of Van Renssalaer vs. Kearny, 11 Howard, 297, and Irvine vs. Irvine, 9 Wallace, 617. That decision is exactly applicable to the case at bar — the purchaser at the confiscation sale having executed a reconveyance to the confiseatee, H. M. Hyams, soon after the adjudication, and H. M. Hyams having executed a conveyance to his son, Isaac S. Hyams, on 4th of May, 1866, prior to the amnesty proclamation. The following quotation from the opinion of the court in that case will be interesting and instructive, viz.:

“Of the reversion or remainder of the estate of the offending party no disposition was ever made by the government. It must therefore be construed to have remained in him, but, under the ruling in Wallach vs. Van Riswick, without any power in him to alienate it during his life. That disability was enforced when he (Jenkins) executed, with his wife, the deed of the premises August 26, 1865. The proclamation of pardon and amnesty was not made by the President until December 25, 1868. This deed, however, was accompanied with a covenant of seisin on his part, and that he would warrant and defend the title against the lawful claims of all persons whomsoever. Admitting that he had no present estate in the premises and none in expectancy, he was at liberty to add to his deed the ordinary covenants of seisin and warranty, and the same legal operation upon future acquired interests must be given to them, as when accompanying conveyances of parties whose property has never been subject to confiscation proceedings. “ That warranty estopped him and all persons claiming under him from asserting title to the premises against the grantee and his heirs and assigns, or conveying to any other parties. “ When, subsequently, the general amnesty and pardon proclamation was issued, the disability, if any, that had previously rested upon him against disposing of the remaining estate, which had not been confiscated, was removed, and he stood, with reference to that estate, precisely as though no confiscation proceedings had ever been had. “ The amnesty and pardon in removing the disability, if any, resting upon him respecting that estate, enlarged his estate, the benefit of which enured equally to his grantee. The removal of his disabilities did not affect the purchaser’s right under the decree of confiscation. The latter remained in the full enjoyment of the property during the life of the offending party, but he had no claim upon the future estate, nor did the heirs of the offending party have any such claim upon it as to preclude the operation of any previous warranties by him respecting it.” (Our italics.)

We have italicized the portions of the opinion that have particular pertinence to the case before us — the deed from H. M. Hyams to Isaac S. Hyams, of date May 4, 1866, being prefaced with the declaration that the said vendor did “grant, bargain, sell and convey * * * with all legal warranties, and with substitution and subrogation to all his rights and actions of warranty,” etc.

Following the authority of that case — and it is unquestionably authoritative — the conclusion is clear that the warranty clause in the deed of H. M. Hyams to Isaac S. Hyams operated as an estoppel upon the heirs of H. M. Hyams — notwithstanding the fact the deed was executed antecedent to the President’s amnesty proclamation of December 25,1868 — and effectually bars their claim of title by inheritance, and likewise their assignee or vendee.

The subsequent general amnesty which relieved the coniiseatee of the disability that rested upon him, placed him in exactly the same position he would have occupied with reference to the property, had no confiscation proceedings been had; but the benefit of the relief enured equally to his vendee and those holding under him. So that, at the death of H. M. Hyams, his warranty title to Isaac S. Hyams operated against his heirs and their assigns and defeats recovery by either. Of all the cases the Supreme Oourt has decided, notone is so completely apposite to the case at bar as Jenkins vs. Oollard. The material distinction between that case and Railroad Company vs. Bosworth, 183 U. S. 92, is that the act of sale that Bosworth executed to the railroad company was dated in September, 1871 — several years after the issuance of the President’s amnesty proclamation; but the ease of Wallach vs. Van Riswiek, 92 U. S., is quite similar in principle to the instant one, in that the confiscatee became the purchaser at the confiscation sale in 1863, and made a conveyance to Van Riswick, the defendant, on the 3d of February, 1866. Of the title in that case the court said:

“It has been argued that the proclamation of amnesty, after the close of the war, restored to Charles S. Wallach his rights of property. The argument requires but a word in answer. Conceding that amnesty did restore what the United States held when the proclamation issued, it could not restore what the United States had ceased to hold. It could not give back the property which had been sold, or any interest in it, either in possession or in expectancy. Semmes vs. United States, 91 U. S. 21. Besides, the proclamation of amnesty was not made until December 25, 1868.”

These three decisions are in line, and perfectly consistent, though dealing with different phases of the same subject. The conclusions at which we have arrived with regard to the effect of the conveyance from H. M. Hyams in 1866 render it unnecessary for us to give any extended examination into or discussion of, the intervention of H. M. Hyams in the act of sale from Isaac S. Hyams to the plaintiff on the 4th of June, 1870, for the purpose of relinquishing his rights of mortgage on the property sold. We may pass it with the simple statement that it has at least, the effect of confirming, after the removal of his disabilities, his contract of sale with warranty during their existence. With regard to the good faith of defendant, the following facts appear from the record, to-wit:

1. That he acquired the property by a deed that is translative of property on its face, and which contains nothing on its face that tends to show any imperfections in the title of his author, or any illegality in the proceedings through which he acquired it.

2. That previous to his accepting title he employed a lawyer to examine it, and the lawyer pronounced it perfect and complete.

3. That his vendor acquired title by and through a judicial partition regularly made and-duly homologated.

4. That under his deed he obtained possession, and has since retained it without question or complaint from any one, and has placed thereon valuable improvements.

We are of opinion that the principles of law announced on the subject of good faith in Montgomery vs. Whitfield, 41 An. 649, are strictly applicable, and bring this case under the operation of Arts. 503 and 3451 of the Civil Code.

The latter declares that “the possessor in good faith is he who has just reason to believe himself master of the thing which he possesses, although he may not be in fact, as happens to him who buys a thing which he supposes to belong to the person selling it to him, but which in fact belongs to another.” The former declares that he is a bona fide possessor who possesses as owner, by virtue of an act sufficient in terms to transfer the property, the defects of which he was ignorant.”

It is quite apparent that the defendant had just reason to believe himself master of the property that he had purchased and of which he ifras placed in possession, although he was not in fact. He certainly acquired it by virtue of an act sufficient in terms to transfer the property, the defects.of which he was ignorant. In Montgomery vs. Whitfield we said that Art. 503 “ does not convey and was not intended to convey the idea that the defects of title might be made known to (a purchaser) from extraneous sources previous to the acquisition of the property, and thus deprive him of his good faith at the commencement of his possession.”

The defendant’s title does not rest upon the judgment of a court that is void for want of jurisdiction, or for the lack of citation, as in case of Walworth vs. Stevenson, 24 An. 251, and authorities cited. Nor is the nullity of defendant’s title apparent from a simple inspection of it, as in Dohan vs. Murdock, 41 An. 494. We regard the defendant as a good faith possessor, and not bound for rents and revenues.

Judgment affirmed.

Rehearing refused.

Chief Justice Nicholls recuses himself, having been of counsel for some of the parties to the title in question.


text:
    No. 11,405.
    John Cooney vs. Mrs. Mary Ryter and Whitney National Bank.
    No one is presumed to have intended to make a donation.
    In case aperson makes a deposit in bank for the account o£ another, pursuant to a previous agreement, that, on a certain condition, the latter is to employ it for a designated purpose, and the former afterward calls for the restitution of said sum, before the fulfilment of said condition, he is entitled to have such custodian of the fund thus deposited respond to his call.
    In case the claim of the respondent to such demand be, that an absolute donation of said sum of money was intended, he carries the burden of proving such donation by a fair preponderance of proof.
    APPEAL from the Civil District Court, Parish of Orleans. King, J.

      J. J. McOann and Lazarus, Moore & Luce, Attorneys for Plaintiff and Appellee:
    A gratuitous donation is never presumed; the presumption of law is against any such donation.

      The donor must reserve enough from his possession for a subsistence, and unless he does so, any donation made by him is a nullity. C. C. 1497; 11 Rob. 302.

      Wynne Rogers and B. Titohe Attorneys for Defendant and Appellant :
    Plaintiff claiming on a loan can not recover by proving a deposit. 10 R. 92, Bouehé vs. Michell.
    The manual gift, that is the giving of corporeal movable effects, accompanied by real delivery, is not subject to any formality. O. O. 1539.
    Money or a cheek may be the subject of a manual gift. 27 An. 200, Succession of ETale; 27 An. 466, Burke vs. Bishop.
    Where defendant is in actual possession of a sum of money and the plaintiff endeavors to recover that sum by alleging that she holds the same in trust for him, the onus is upon him to prove the trust. Failing to establish the trust as averred, he can not recover.
    He can not be permitted, when the exigencies of the case require it, to prove that the sum of money which he averred to have been received by the defendant as a trust was, in point of fact, a donation; and to seek to annul that donation by showing that it should be revoked because it left him no means of subsi tenee.
   The opinion of the court was delivered by

Watkins, J.

This suit has for object the recovery of two thousand five hundred dollars on deposit in the Whitney National Bank.

It appears that this sum of money was deposited by plaintiff for the account and in the name of his sister, Mrs. Ryter, the defendant, on or about the 29th of June, 1893, his contention being that this deposit was for safe-keeping, merely, during his temporary absence on a visit to California; while that of the defendant, Mrs. Ryter, is that it was an absolute donation to her; or, to employ the language of the plaintiff’s petition, “ that being unmarried, and without forced heirs, it was his purpose and intention to make pro - vision, in the event of his death, for the children of his said sister, Mary Ryter, and that the deposit of the funds as aforesaid was made in view of petitioner’s absence from the State as aforesaid. * *

That said Mary Ryter was fully advised of the purpose and intention of your petitioner and consented to allow the said fund to be deposited in her name, recognizing at all times that your petitioner was the owner of said fund and entitled exclusively to t:ie use and disposition thereof.”

Averring amicable demand without avail, the plaintiff demands possession of said fund and a decree recognizing him as owner thereof; and he prays for the maintenance of his writ of sequestration and the perpetuation of his writ of injunction. The defendant first pleaded a general denial, and subsequently amended her answer and specifically denied that she held this fund in trust, and, on the contrary, averred that the plaintiff had made her an absolute donation of it. On the trial there was judgment in favor of the plaintiff for the sum of two thousand five hundred dollars, less fifty dollars that had been checked out of bank by Mrs. Ryter; and the latter has appealed.

All parties admit that the relation of the Whitney Bank to the other parties to the suit is that of a mere stakeholder, and without interest in the result of the controversy.

Aside from the fact that the fund was deposited in bank by the plaintiff to the credit of the defendant, there is but little evidence which throws any light on the controversy, outside of the evidence of the parties to the suit; and the substance of the story of each is of like character, as their respective judicial declarations.

The following points are collated in the plaintiff’s brief as those established by the evidence, and relied upon by him as showing that no gratuitous donation was intended by him, to-wit:

“The parties, though brother and sister, had not visited one another or been on speaking terms for several years, and they had no love nor affection for each other.
“ That the plaintiff had not approved or liked the deceased husbands of the defendant.
11 The plaintiff gave to the defendant, immediately before making the deposit in the bank, twenty dollars with which to purchase such necessaries as she might need.
“The defendant asked permission of the plaintiff to draw on the amount deposited in case of necessity, and this permission was granted by the plaintiff after the deposit had been made.
“ The defendant, according to her own testimony, had another source of revenue or livelihood, being the wages of herself and her children, from which her rent was paid and herself and family supported; and independent of this, she expected at the time to sell her house for two hundred and ten dollars. This was known to the plaintiff, and this amount of two hundred and ten dollars, in addition to her wages and the wages of her children, would, under ordinary circumstances, have supported them during the absence of the plaintiff.
‘‘The alleged donation would have left the plaintiff virtually a pauper, and in case of sickness or accident he would be entirely dependent upon the charities of the world, or of a sister, for whom he had no love and affection, and who had none for him.”

In addition to the foregoing, and which are substantially proven by the record, we find and extract from the record the following statements of the plaintiff, viz.: “ Before I left I says to her, ‘ Mary, come with me to the bank, I want to put two thousand*five hundred dollars in your name until I get back from California; but when I get back from California I will try and buy a piece of property to put you and the children in, to keep you from paying rent.’ She went to the bank and I pulled out the twenty-five one hundred dollar bills and handed them to the clerk of the bank,” instructing the bank official to put it in the name of his sister, Mrs. Ryter, the defendant. Coupled with this statement is the positive declaration of the witness that he never gave the money to his sister, but that she was to hold it for him in trust until his return from California.

Again, the plaintiff states that he went with his sister to a real estate agent, the latter introducing him, and he said: “I am glad you are selling that house of hers (Mrs. Rytbr's) because she has never been able to pay any taxes or insurance upon the place; and it was more an incumbrance than a benefit to her. And I told him in the presence of her that if he would negotiate to buy but one of those four corners, that I would buy it and put my sister and her children in it.” He says the sum of one thousand eight hundred dollars was named.

Again, this witness states that he told his sister, that when he returned from, California he would try and get her a house and give her a chance once more to make a living for herself and children; and that he offered her ‘ ‘ a couple of hundred dollars, if she got the grocery, to buy a stock.” He further states that he said when he returned from Oalifornia he would buy a piece of property and put her and the children in it.

The following question and answer puts the plaintiff’s view of the case very clearly:

“ Q. Why was the money placed in the name of your sister — for her or your protection? ”
“A. I put it in her name (so) that if I would get killed she would be the owner of it. It was my money. When I would get back I was supposed to draw it out and buy a house and put her in it.”
“ Q. Did you intend to give her that house if you put her in it?”
“ A. No, sir; because she had a house taken a.vay from her — sold for debt.”
‘ ‘ Q,. Did you make a donation of the two thousand five hundred dollars, involved in this controversy, to your sister? ”
A. Give it to her? ”
“ Q,. Yes.”
A. No, sir; no, sir; oh, no!”
* * * * * if* s{:
Q,. Did you give your sister authority, when you deposited that money in bank in her name, to draw out any part of that money?”
“A. Never. Only in case of sickness or death. I told her she could draw only on that condition; and if Mr. Danziger could purchase that piece of property, for her to give him a couple of hundred dollars to bind the sale, and when I got back I would attend to the rest.”

One of the defendant’s witnesses confirms the story, in reference to the plaintiff’s contemplated investment in property, in which his sister and her children were to live — that “ he would fix up to pay her debts, and she would be on top again.”

The only material difference there is between the statements of the plaintiff and defendant, consists in the fact that the former insists that the money was only entrusted to the latter to be ultimately employed in purchasing a house for the use and occupancy of the latter and her children, while the latter contends that the money was ■actually given to her to enable her to buy a home for herself and children.

She states what she conceived to have been the exact words of the plaintiff, thus:

“ Q. What were his exact words when he spoke to you about giving you this money? ”
“ A. The exact words were (that) this money was to buy a place, and in case of want I could draw and use it. These were the last words I asked him, when he was goiug away. I says, ‘In case I would want money * * * can I draw on that money and use it? ’ He says, ‘Certainly.’ ”

The foregoing is, substantially, all the testimony in this record on the matter in dispute, and, in our opinion, it fully confirms the correctness of the conclusions of the district judge.

Judgment affirmed.

Rehearing refused.


author: Bkejaux, J.

text:
    No. 11,452.
    Schmidt & Ziegler vs. G. B. Ittman et al.
    The plaintiffs sued on open account and alleged that the account had been acknowledged by promissory notes.
    The defendants severed in their defence.
    A Partner.
    One of the defendants contended that he was not a partner.
    plea oe Insanitv.
    The executrix representing the succession of the other defendant contended that he was not sane at the time the goods were bought, and subsequently when the notes were furnished.
    bim, oe Exceptions.
    By the first (the surviving partner) objection was made to the admissibility of evidence, as to him, on the ground that it was an attempt to hold him for another person’s debt, and that the open account had been novated by the notes in question.
    The partnership was sued, and from it the amount due was claimed. The notes were furnished by the partnership. Evidence was admissible to prove that the defendant was not a third person, but a.partner.

    Evidence oe' partnership.
    There was a partnership formed many years ago between the two brothers.
    At the time stipulated in the formal act of partnership, for ending the partnership, it does not appear to have been dissolved.
    The property, under the formal act of partnership, was the joint property of the partners.
    It is not satisfactorily established that the joint ownership was dissolved.

      The property in which the partnership business was conducted was leased to the defendants jointly. The partner who defends on the ground that there was no reconduction of the partnership, obtained extension for the payment of the partnership debts. His active management and"control of the business were such as to create the belief, on the part of others at the place of business, that he continued as a partner.
    The amounts he has drawn and the acknowledgments indicate a continuous partnership business.
    Though Not Known to Creditor.
    The partnership being established, the principle applies that, whenever one is a partner, he is responsible for the debts of the partnership, though it may not have been known by the creditor that he was a partner.
    Plea Untimely Filed.
    The other defendant, the executrix, was without right to raise an issue of fact, by pleading it after the case has been argued and submitted for decision.
    The issue is passed upon on the plea of general denial, originally interposed.
    Facts Not Notorious or Known to Creditor.
    It is not proved that the defendant, who died since the suit was instituted, was insane at the times the goods were bought. If he was insane, it was not a notorious fact. It is not shown that the plaintiffs were aware of any insanity on his part. The fact of insanity became known at the date the notes were furnished. They are of no avail, valueless, and plaintiff is without right to charge him with the price of goods sold to him on the day the notes were executed and goods sold subsequent to that date.
    The judgment appealed from is amended by deducting the price of the goods sold on the dates just stated.
    APPEAL from the Civil District Court for the Parish of Orleans. King, J.

      W. 8. Benedict and if. O. Cage Attorneys for Plaintiffs and Appellees:
    No amendment can be admitted after the case has been tried, argued and submitted. 11 K,. 418; 12 An. 116.
    A supplemental and amended answer alleging insanity filed under these circumstances was properly stricken from the record on motion of the plaintiffs, although it was styled a peremptory exception.
    Where the affairs of a firm are managed by one of the partners under a power of attorney, goods sold and delivered to the firm on his orders and used and consumed in the firm’s business must be paid for, although one of the members of the firm was insane at the time.

      Although one of the members of the firm be insane, the partnership continues. It is his interdiction which dissolves it. C. O. 2876, 2883.
    Commercial partners are bound in solidoJor the debts of the partnership. O. C. 2872.
    The secret partner is equally li.able with the publicly avowed partner. 30 An. 640.

      James J. MeLoughlin Attorney for Succession of Geo. B. Ittrnan, Defendant and Appellant:
    Where defendant has offered no evidence whatever, and where plaintiffs have offered without restriction the record of another suit to which defendant was a party, the plaintiffs are bound by all the facts disclosed therein and will not be permitted to deny their verity. 39 An. 1089, Kallman vs. Creditors.
    When plaintiffs themselves offer evidence which discloses the fact that a deceased defendant was insane and incapable of contracting at the time they contracted with him, it is permissible for the executrix of the succession, after the evidence is in, to file a peremptory exception based upon the facts disclosed by the plaintiffs’ testimony, and such exception is not an answer, but is a peremptory exception, admissible at any time before judgment is rendered. C. P. 346; 42 An. 735.
    Such an exception does not raise new issues, for it rests entirely upon the facts put in evidence by the plaintiffs, and they are estopped by their own acts from objecting to the effect of their own testimony introduced without qualification.
    One contracting with a person notoriously insane can not enforce the contract, even though the formal judgment of interdiction had not been pronounced at the time of the contract, if it be proven that the insanity which caused the interdiction existed when the contract was made. And it is sufficient for the purpose of Art. 402, O. 0., to establish that this insanity was of such a nature that no one seeing and conversing with the party could be deceived as to his condition. Fuzier-Herman, An. Code Civil, Yol. 1, 609, paragraphs 8, 12, 13; 32 An. 91; 32 An. 170.
    One who has accepted notes in settlement of a debt, and has credited same on his books as a settlement and has protested one of the notes, has novated the debt and can not repudiate such settlement and sue on the open account as it existed before the notes were given. Hennen’s Digest, authorities quoted, “ Novation;” II., 3, page 994, new edition.
    An insane person can not be held as'Ja partner in an establishment under articles which expired many years prior to his insanity, and in the management of which he took no part during his insanity, and from which neither he nor his estate derived any benefit.

      Henry P. Dart Attorney for Jacob Ittman, Defendant and Appellant.
   The opinion of the court was delivered by

Bkejaux, J.

Plaintiffs brought this action to recover the sum of two thousand two hundred and forty-six dollars and seventy-one cents and interest, they claim as due by the defendants, who are, they allege commercial partners.

They aver that it was for goods and merchandise sold by them to the defendants.

They declared upon an account and alleged in their petition, that in recognition of their indebtedness the defendants had furnished them with a number of notes, maturing at intervals of thirty days, which remain unpaid.

One of the defendants, George B. Ittman, had been interdicted at the date suit was brought. His curator was cited as party defendant.

After, suit had been instituted, this defendant died. His daughter, as testamentary executrix of his estate, was made defendant.

Each defendant pleaded a general denial. They separated in their defence.

No evidence was offered by the executrix.

The other defendant defended on the ground that he was not a partner, and offered evidence to prove that he was not responsible for the debts, as he was not, he contended, a member of the firm sued.■

The 'testimony discloses that in January, 1881, the two brothers, George B. and Jacob, formed a partnership to end on October 31, 1882. It was not expressly renewed at the end of the term stipulated.

The style of the firm under the contract of partnership was George B. Ittman, and the plaintiffs contend that the partnership continued by tacit reconduction, and that the goods, the price of which they sue for, were sold to a commercial firm of which George B. Ittman and Jacob Ittman were partners; that they were used by the firm in operating a barroom.

In the formal articles of partnership, it is stated that Jacob was the owner of one-half of the interest in the business, stock, fixtures, and appurtenances.

He put in the concern an amount stated, and thereby acquired a half interest.

The records do uot show that there ever was a final settlement made between the partners, and that the firm was dissolved at the time for its dissolution stipulated in the written agreement of partnership.

The business was conducted during all the years succeeding the stipulated term of the partnership as it had been conducted originally under the formal contract.

The prominent facts showing the continuance of the partnership are, that the property in which the partnership business was conducted was leased by the partners jointly.

That in a matter of bank accommodation Jacob Ittman represented himself as one of the partners, and as a partner obtained an extension of time for payment; that the debits and credits of the partnership accounts were kept, as they had been kept under the formal articles of partnership, and that Jacob Ittman received his portion as a partner; that he on different occasions acknowledged his interest as a partner.

After the sickness of his brother in 1892, he had entire charge of the business, to the date of his brother’s interdiction in June, 1893.

All the testimony, except his own, shows that his management was that of a partner.

His statement regarding the character of his management is not only contradicted by witnesses, but is inconsistent with the history of the business, as made manifest by the books of the firm.

The evidence of plaintiffs consists of their accounts sued on, and the notes signed by the defendant firm.

They also offered the interdiction proceedings in the snit in which one of the defendants was interdicted.

The note of evidence was closed, and after argument of counsel for both plaintiffs and defendants, the case was taken under advisement by the court.

While it was under advisement, the executrix filed a supplemental and amended answer and peremptory exception, in which she alleged, in substance, that plaintiffs could not recover on their accounts, for they held notes which had been introduced in evidence, and that these notes had been signed by the late George B. Ittman, after he had become notoriously insane; also that he was thus affected at the times (previous to the execution of the notes operating an acknowledgment) the goods, described in the open accounts, were sold and delivered.

On plaintiff’s motion, averring that it was not a peremptory exception, but an amended and supplemental answer, it was treated as of no effect and excluded from the' record. The District Court pronounced judgment for the plaintiffs and against both defendants in solido.

From the judgment both defendants have appealed.

BILL OP EXCEPTION.

The defendant Jacob Ittman, through his counsel, argues that the notes were signed by George B. Ittmann, and that there is no allegation that they were taken in error, that the suit was brought against the defendants as commercial partners.

He invites attention to the fact that, at the opening of the case he interposed the objection that, upon the face of the papers, it was an attempt to hold the defendant Jacob Ittman for another person’s debt, and that the open account had been novated. That this objection was overruled and a bill reserved.

Had the evidence supported the contention that Jacob Ittman was not a partner and that he was only an employé, the points urged would be unanswerable. The testimony leaves that theory of the defence unsustained by the facts. There was no error committed in admitting the testimony offered to prove that a partnership existed, and in not sustaining the plea of novation urged as an objection to the admissibility of the testimony.

THE EXISTENCE OP THE PARTNERSHIP.

At the risk of some repetition, we resume a statement of the facts regarding the partnership, as follows:

There was a partnership originally in the name of George B. Ittman.

This is undisputed.

The property belonged to the partners in equal shares.

There was no settlement of the partnership. .

The partner Jacob Ittman obtained extension of time for payment of partnership debts.

Those near him, occupying desks in one of the apartments occupied in conducting defendants’ business, looked upon him as a partner, because of his active management and control of the business.

He has actively and interestedly attended to the business of the partnership. He has drawn amounts from the partnership funds, not consistent with his statement that he was an employé.

His signature in one of the books.in evidence, together with that of his brother and copartner, at the end of the statements of amount received, indicate, not a receipt for wages, but an agreement between partners as to amounts received by one of them from the partnership funds.

MAY HAVE BEEN UNKNOWN AS A PARTNER AND YET RESPONSIBLE.

With reference to the knowledge of the creditors.

The responsibility of a partner may exist, though it was not known by the creditor that he was a member of the partnership.

Whenever the parties intend a partnership between themselves, they are, or at least may be held to be, partners as to third persons. Story on Partnership, Sec. 49.

The existence of a dormant partner may be unknown to the creditor, and yet he may be held liable to the extent of his responsibility as a partner. Lindley on Partnership, Vol. 1, p. 339.

The secret partner can escape liability only by the failure of the creditors to discover the relation he holds to the business. Chaffraix & Agar vs. Lafitte & Co., 30 An. 631.

Commercial partners are bound in solido. They were commercial partners and bound for the payment of the debt.

AN ANSWER INVOLVING ISSUE OR EAOTS RILED TOO LATE TO BE CONSIDERED.

The other defendant, the executrix, could not be heard to raise an issue of fact after the case had been argued and submitted for decision.

The question of insanity, vel non, of the late George B. Ittman at the time the debt" was contracted, was purely one of fact, and if the executrix desired to avail herself of that defence, it should have been seasonably presented.

But she contends that the record in the interdiction proceeding, introduced in evidence by plaintiffs without limitation, established more than the mere fact of interdiction and the appointment of a curator.

This manifestly was the purpose of plaintiffs in introducing this record.

The omitted limitation of the effect it should have is seized upon by the defendant as cause sufficient to enable her, some time after argument, to plead the absolute incapacity of the defendant at the dates the purchases were made.

We are compelled to decline all consideration of an exception tendered, going to the merits of the cause, on an issue of fact. It was really an answer. C. P. 419, 420; Boagni vs. Anderson, 32 An. 920; Cohn & Bruen vs. Levy, 14 An. 355; Guilbeau vs. Thibodeau, 30 An. 1099.

THE PLEA IS CONSIDERED UNDER THE GENERAL ISSUE.

This conclusion, however, does not exclude all consideration of the defence presented.

Had the plaintiffs, while proving their claim against this defendant, proved that he was notoriously insane, the executrix would have a right, under her plea, originally interposed, of general denial, to a judgment of non-suit.

THE EVIDENCE DOES NOT PROVE INSANITY AT THE TIME.

There is no proof of record that he was notoriously insane at the dates that the goods were sold to the defendant firm.

He became ill in October, 1892, and from that time his family seriously considered his mental condition.

It was only a short time prior to his interdiction that his mental condition became generally known.

THERE WAS NO NOTORIOUS CAUSE FOR INTERDICTION, NOR WAS IT PROVED THAT PLAINTIFFS KNEW OF ANY ABERRATION OF MIND.

It is announced in French jurisprudence, that acts anterior to the interdiction may be annulled, if there was notorious cause for interdiction at their date. Cass., 11th of March, 1862, S. 63, T. 136, pp. 63, 634.

Proof of a notorious cause for interdiction must be made, in order to defeat payment of goods purchased at their value in due course of trade. Laurent, Yol. 5, p. 376."

In the two cases cited by counsel for the defendant (Fecel vs. Guinault, 32 An. 91; Lagay vs. Marston, 32 An. 170) the insanity was evident and the causes for interdiction well known to those who were parties to the contract annulled.

The records disclose an entirely different state of facts in the case at bar.

The mental condition of the sadly afflicted man was, so far as appears of record, a cause of concern and sorrow to the family, becomingly undivulged, until secrecy was no longer possible.

PRICE OF GOODS NOT ALLOWED, PURCHASED FOR BUSINESS, AFTER CREDITOR WAS AWARE OF INSANITY, ONCE CAUSE FOR INTERDICTION HAD BECOME WELL KNOWN.

The defendant, in argument, urges that plaintiffs sued on the notes they hold and not on their account. The fact is, that they declared on their account; that without defence or objection on that score, they proved the correctness of the account, and used the notes in corroboration of its correctness.

Had they brought action on the notes they would not have recovered, for the drawer was notoriously insane on the first day of June, 1893, the date they were made.

The insanity of George B. Ittman was notorious on the first day of June, 1893, and the fact known to the plaintiffs on that day.

The price of the goods sold to him and charged to his account on that, and days subsequent, can not, under the law, be recovered, and to that extent the judgment must be canceled, in so far as he is concerned.

It is therefore ordered, adjudged and decreed that the judgment appealed from be amended by deducting the sum of ninety-eight dollars and forty-six cents from the amount of twenty-two hundred and forty-six dollars and seventy-one cents the executrix was condemned to pay, and that in all other respects it be affirmed, with costs of appeal to be paid by the plaintiffs and appellees, and those of the lower court as directed in the decree.