author: Bermudez, C. J.

text:
    No. 7507.
    Mrs. R. Thompson et al. vs. Henry Meyers et al.
    Tho right of passage through an alleyway, granted for the common benefit of abutting lots, is prescribed and lost by non-user during ten years. The alloy is not a locus publicus, and the prescription sot up is not one acquirendi causa.

    APPEAL from the Fifth District Court for the Parish of Orleans. Royers, J.

      Sami. R. Rlanc, for Plaintiff and Appellee:
    1. Plaintiff sues to have opened to use, an alley, originally laid off for the use of her lot and six others.
    2. Defendants, and their authors, plead prescription of ten years, and ask to he quieted in their occupation.
    3. The servitude of passage was established by a common preceding owner of all the lots, on Ms own property, and when he sold the lots he gave each the use only, of this right of way over his land, the soil of which he never conveyed.
    4. • The prescription pleaded by defendants is acquirendi cama, for nnless they have acquired rights greater than the mere use, they cannot exclude lot No. 1 from its servitude or use of way.
    5. The elements or essentials for acquiring are entirely wanting. There was no good faith, but palpable bad faith. No one possessed under a just title. No possession during ten years. No object which could be acquired by prescription by the defendants.

    (>. Their possession, such as it was, was insufficient, for they did not possess as owners in fact, and in right. They had no possession continuous, uninterrupted, peaceable and unequivocal.
    7. As a fact, no one had occupied for ten years any part of the alley, and the two-thirds of it were in no way trespassed on before 1872.

      8. One having use of an alley in common with others, cannot seek an advantage to himself, to the disadvantage of a neighbor’s right, by asserting that that neighbor has ceased using the passage, when lie, himself, has prevented that use by obstructing the way.

      J. Q. A. Fellows, for Defendant and Appellant:
    1. The defendants claim, under tho prescription of 10 years, the release from a servitude claimed against them by the plaintiff.

      2. The common alley claimed is not a public place, but a private one, tlie use of which is the only right given the plaintiff by her title.
    3. This case is a servitude and is prescribed against by a non-user on abandonment of ten years. The prescription is one of liberandi eausa. TLje defendants claim a release from a burden.
    4. The defendants’ claim is one of release, and is not one aequirendi causa, and therefore the prescription of 30 years is not the prescription applicable to the case.
    5. The law of prescription is applicable, because it is against a private right.

      Brauglm, Bucle di JDinlcelspiel, same side, for Neugass & Friedlander :
    1. It is a petitory action to sue for recovery of any immovable right, to which real estate may be subjected. A suit for the recovery of a real servitude is such immovable right. C. C. 709, (705), 722, (718).
    2. Plaintiff, in a petitory action, can recover only on the strength of his own title, and not on the weakness of defendant’s; nor even in the absence of any title but that based on possession. Possideo quiapossideo. Louqne’s D. p. 520; Hennen's D. p. 1115.
    3. Aright to servitude is extinguished by the non-usage of the same during ten years. C. 0. 789, (785).
    4. The action for damages in matters of trespass is prescribed by one year. C. 0.3530, (3501).
    5. Ten years’ possession with a just title acquires title to immovables. C. C. 3474, (3137).
   The opinion of the Court was delivered by

Bermudez, C. J.

This is a petitory action by the plaintiffs, who claim to have the ownership of a real right to which certain real estate is subjected indefinitely.

The object of tlie suit is to have it judicially declared that the plaintiffs, as owners of a certain contiguous piece of property, have a right of way, or passage, to a named street, through a certain strip of ground, in the possession of the defendants. The plaintiffs, besides, claim $6,000 damages.

The main defense is, that if the right to the servitude ever existed, it was extinguished by the non-usage of the same during ten years.

From a judgment in favor of the plaintiffs, this appeal is taken.

The evidence clearly establishes that, when the original plaintiff, Mrs. Thompson, purchased the lot described in her petition, she was entitled to a right of way,.such as was claimed, at the institution of this suit, through the spot in question.

It appears that in 1841, the whole property, comprising that of plaintiffs and that of defendants, was owned by tlie same person, who caused it to be divided into lots, for tlie common benefit of which the alley was established, the title to each lot, subsequently sold, mentioning this important appendage or accessory.

It is established that the alley was used by Mrs. Thompson, up to 1863, for domestic purposes, and that it has not been used by those subsequently in possession of her property, since 1864. This suit was instituted in 1878.

We have considered the testimony of a lady neighbor, witness for the plaintiff, which is to the effect that the alley was open in 1869 and 1870, when she had occasion to go through it after her son, who had a hahit of climbing Mrs. Thompson's fence to go to the grocery store, at the opposite corner of the square, not kept on Mrs. Thompson's lot.

That testimony is merely the result of hearsay, and is outbalanced by that of-almost every witness heard in the case, which shows that the alley was boarded up in 1864, and that the man who kept the grocery had moved from it some twelve years before the action was brought. Even if her testimony stood uncontradicted, it could not prove interruption of the prescription set up, because the act to do so, must be done, il‘ not by the person entitled to the use, or by persons represent ng at least by one going to and from his premises for the ordinary legitimate purposes for which the alley was provided. Neither the act of the witness, nor that of her son crossing the alley, was done in the exercise of the right of way, primitively consented. They were the unauthorized acts of strangers, not within the original intendment of the grantor and grantees, and contrary to the purpose in view. They cannot be considered as done with the sanction, or for the benefit of Mrs. Thompson, and should be viewed as the clandestine acts of intruders and trespassers, not done a l’occasion du fonds.” Pardessus des Serv. II, No. 302, 308; Dalloz Serv. Sec. 7, Art. 1, § 1, No. 1; Laurent 8, 409; Sirey, C. N. 706, No. 24; Dalloz, 1860, 3 Juillet; Duranton, V. p. 674, No. 684; Demolombe xii, No. 995.

In a petitory action, a plaintiff must recover on the strength of his own title, and not on the weakness of that of his adversary. In presence of the defense of non-user, aud particularly of the evidence in support, which establishes facts affirmatively, the plaintiffs, in order to recover, should have, if not primarily established, adduced at least in rebuttal, proof of use of the alley, by herself, or by some one under her authority, in her name. Up to a period clearly within the ten years preceding her action, she has not done so. 12 M. 70; R. C. C. 804; 1 R. 321; 20 A. 52.

The Code distinctly provides that a right to a servitude is extinguished by the non-usage of the same during ten years, which, for discontinuous servitudes, begin from the day they ceased to be used. By discontinuous or interrupted servitudes, are meant such as need the act of man tobe exercised, such as the right of passage, dra-wing water, pasture and the like. R. C. C. 783, (1) 789, 786, 722, 723; 20 A. 52; 1 R. 321; 12 M. 70; 14 A. 283; 12 A. 473; 3 Toull. Nos. 689, 691 ; Duranton 5, 436, 491; Merlin R. V. Servitudes, § 33, No. 11.

The theories that the original proprietor made a dedication to public use, and that the prescrix>tion invoked is one acqiwremdi causa, cannot be applied in this case. '

When tlie original proprietor sold the abutting lots, he did so with measurements to the borders of the alley, with the use of an alley in common to the seven lots, according to the plot mentioned in tho deeds and controlling them. The servitude was created in favor of tho seven lots and of the owners of tho same. The public was not given the right of using it, as it could have done a street or a highway. R. C. C. 458, 459.

A dedication to public uso is tire expropriation of the owner, by himself, for the benefit of tho public. Tho property thus dedicated becomes a locus piiblicus, the non-user of which by the public, does not vest title in individuals occupying or enjoying the same.

The defendants do not set up title of ownership in themselves to the soil through which the passage is claimed. Even if they liad, it is quite doubtful, to say the least, whether that pretension could be passed upon, contradictorily with the present parties to this litigation, for it is not so clear that, in giving the uso of the alley, the original owner has so divested himself of titlo to the soil, that he could not recover possession, titulo clomini, in tho event of a peremption or forfeiture of the right ofpassage by tho lot owners. R. C. C. 658, Hence, the prescription set up is not one acquirendi causa.

Wo think that tho plaintiff has failed to make out her titlo to the use and enjoyment of the alleyway, and that her claim thereto was improperly recognized.

It is, therefore, ordered and decreed, that the judgment appealed from be reversed, and it is now ordered, adjudged and decreed, that there be judgment in favor of the defendants, rejecting plaintiffs’ demand, with costs in both Courts.

Rehearing refused.

Levy, J., absent.


source: Caselaw Access Project

author: Fexner, J.

license: Public Domain

text:
    No. 7690.
    Louisiana Oil Co. vs. The Board of Assessors.
    A corporation is liable to assessment for the excess of tbe market value of its capital stock over and above tbe value of its tangible property otherwiso assessed and taxed. Oases in 31 A. 475, 852, and 32 A. 20, establish this rule, and are to he followed on tho principle of stare decisis.

    Buies in matters of assessment and taxation should be stable, and when once settled, should not he lightly disturbed.
    APPEAL from the Third District Court for the Parish of .Orleans. Monroe, J.

      W. S. Benedict, for Plaintiff and Appellant.

      J. Ward Gurley, Jr., Assistant City Attorney, Sarn’l P. Blanc, for Defendant and Appellee.
   The opinion of the Court was delivered by

Fexner, J.

The plaintiff was assessed in the year 1879, for taxes to be paid in 1830, as follows: Real estate, $50,000; capital stock, $67,100.

The last item was reached by deducting from the total capital stock of the Company, at its market value, the assessed value of its real estate, in accordance with the provision's of Act No. 9 of 1878.

The correctness of the valuations, and processes by which the result isreached, is not disputed; but plaintiff claims that the assessment of capital stock should be cancelled-and erased from the rolls, because its whole capital, resulting from the payment of its stock, had been invested in the real estate, machinery, etc., taxed under the heading of real estate, and that it possessed no other capital or property of any kind.

The question presented is whether a corporation is liable to assessment for the excess of .the market value of its stock over and above the value of its tangible property.

The question seems no longer open for discussion. It has been exhaustively considered and settled in the affirmative by several decisions of this Court. N. O. Gas Light Co. case, 31 A. 475; St. Charles St. R. R. case, id. 852; N. O. & Carr. R. R. ease, 32 A. 20.

The fact that the corporations concerned in those cases possessed certain valuable franchises, which, no doubt, contributed to the value of their stock, does not affect the case. It is of no consequence what gives the actual value which the stock has. It suffices that the stock has value, and that the value is actual and ascertainable, as evidenced by the sales on the market.

The laws, under which the assessment was made, contemplate the assessmentand taxation of “ all investments and values.” Act 8 of 1878, Sec. 1. '

Under this heading the shares of corporations unquestionably fall, and they are proper subjects of taxation.

Act No. 9 of 1878, prescribes specifically the mode in which these “ investments or values ” are to be estimated and assessed, to-wit: by estimating the entire stock of the corporation at its market value, and then deducting therefrom the value of its tangible property otherwise assessed. The surplus constitutes an assessable “value,” liable to taxation, and which it is not pretended is otherwise assessed or taxed. These constitute the principles settled, after much controversy, by the cases referred to.

It is desirable that rules for assessing property and values, upon which depend the public revenues and the financial administration, should bo stable, and, when once settled by decisions of the highest Court, they should not be lightly disturbed.

Judgment affirmed at appellant’s cost.

Levy, J., absent.


author: Fenner, J.

text:
    No. 8399.
    State of Louisiana vs. C. E. Girardey.
    Under tlie law, the oliarge upon sales at auction is oollectible by the auctioneer from the vendors, but it is the unconditional duty of the auctioneer to pay the State’s charges, whother he collects or not from the vendors.
    It is always in his power to collect from the vendors, as he cannot be required to make a salo without payment of, or security for the charge.
    The law, by its terms, covers all sales not specially exempted. No law exists exempting succession, bankruptcy and judicial sales. The employment of auctioneers to make such sales is purely optional.
    The duty, however, is only due upon actual complete sales.
    APPEAL from the Civil District Court for the Parish of Orleans. liightor, J.

      J. 0. JSgan, Attorney General, Max LinJcelspiel, for Plaintiff and A'ppellee:
    1. The duty of one-half of one per cent, on auction sales, prescribed by Sec. 155, R. S., must be paid to the State by the auctioneer. !R. S. Secs. 140-146.
    2. The law levying the duty is constitutional. 28 A. 717; 31 A. 381.

      T. J. Semmes, TV. JB. Lancaster, Spencer & White, for Defendant and Appellant:
    The duty on auction sales is not a tax on the property, nor a license on the auctioneer, but a charge on the fact of sale. 28 A. 717; Wintz vs. Girardey, 31 A. 381.
    It is to be paid primarily, not by the auctioneer, but by the owner. Ib.

    The auctioneer must, under penalties, pay the amount into the treasury, (R. S. 146); but that is necessarily on the condition that the owner has paid him.
    He cannot be held to pay another’s debt without having received the amount from him, and he cannot be held liable for a failure to collect whore the power of collection has not been placed in his hands.
    The half per cent, duty is on voluntary sales only.
   The opinion of the Court was delivered by

Fenner, J.

The State sues to recover from defendant the duty of one-half of one per cent, on the price of sales made by him as a licensed auctioneer, under Sections 141 to 152 of the Revised Statutes.

The claim of the State is based upon a statement of sales furnished by defendant himself, in performance of the official duty imposed upon him by Section 147, R. S., which, though not conforming in all respects to the requirements of the law, furnishes a basis for an estimate of the amount due.

The defense substantially is, that the duty is imposed upon, and payable primarily by, the owner of property sold, and not by the auctioneer; that the auctioneer’s responsibility to the State is conditioned upon the payment to him by the owner; and that the law affords him no means of enforcing payment by the owner.

The provisions of the law are too clear to be misunderstood. The charge is to be paid by the owner to the auctioneer, and’ the latter has the unquestioned right to require and enforce the payment. Boye vs. Girardey, 28 A. 717 5 Wintz vs. Girardey, 31 A. 381.

But it is made the unconditional duty of the auctioneer' to pay the charge to the State. This duty is exin-essly covered by his bond, and, in case of his neglect to pay, he forfeits his license. R. S. 140, 146.

The law does not concern itself with whether he collects or not. It is his duty to collect. It is in his power to collect, because he cannot be compelled to make a sale, unless the owner pays, or secures to his satisfaction the payment of this charge.

If he chooses to remit the charge, or to take the risk of payment, the State cannot suffer. He knows that the la\v requires him to pay, in any event, and he must protect himself. If he chooses to make the sale and take his chance of collection, the risk is his own, and, the sale being made and completed, his liability to the State is absolute.

It is next objected that the duty is not chargeable against succession, bankruptcy and judicial sales. The law makes no distinction whatever in favor of such sales. The language is : “ all property, rights or credits, -which shall be- sold at public auction, or at private sale, by any auctioneer (except such as are or may be exempted by law) shall be subject to a duty of one half of one per centum, etc.” R. S. 145. Unless there exists some law exempting sales of the sort above mentioned, they fall necessarily -within the purview of the Statute. We know of, and have been referred to, no such law.

The question of the constitutionality of the charge upon such, or upon any sales, is not properly presented in this case. Indeed, the answer filed by the defendant specially avers that “ the duty claimed is a debt due by the persons whose goods are sold.” If so due, under the view's above expressed, it was the duty of the defendant to collect and to pay.

The question of the constitutionality of the charge, however, has been elaborately considered by this Court. The conclusions reached were, in substance, that the duty was not a tax within the purview of constitutional provisions limiting the rate of taxation or prescribing equality and uniformity; that it was in the nature of a simple charge for the exercise of the privilege of selling through licensed and bonded officers provided by the State for the security and advantage of those who may voluntarily elect to avail themselves of such privilege. Wintz vs. Girardey, 31 A. 381.

These reasons and principles apply to succession, bankruptcy and other judicial sales which may be made by auctioneers, equally with other sales.

The employment of auctioneers to make such sales is not compulsory. Section 18 of the Revised Statutes provides that “ all sales of property of successions, of property belonging to minors, or in which minors are interested, of property of interdicted persons and property surrendered, made pursuant to an order or decree of any court of this State, may be made either by the sheriff or by an auctioneer, or by the representatives of successions, tutors of minors, curators of interdicted persons, or syndics of insolvents, as the case may be; and it shall be the duty of the Court ordering the sale, to direct that the same be made by the sheriff, or by such airctioneer as shall be selected by the parties, or by the representatives, etc.”

Thus, it is apparent that it rests within the option of the parties interested to avail themselves or not, of the privilege of sale by an auctioneer. If they are unwilling to pay the charge exacted for the exercise of this privilege, the law provides them with other modes of sale, subject to no such duty.

, We have examined this question very carefully. We regret it was not more fully argued and will readily correct, on rehearing, any error into which we may have fallen.

We axe of opinion, however, that the charge is only due upon actual, completed sales. We find an item'in defendant’s report of “sales in suspense and incomplete, $157,335.” Concerning which the evidence furnishes no sufficient explanation. We shall protect defendant’s possible rights by granting a non-suit as to the duties claimed on this account.

Under plaintiff’s prayer for amendment of the judgment, we must increase the amount so as to cover the duties on the balance of the sales.

It is, therefore, ordered, adjudged and decreed, that the judgment appealed from be amended, by increasing the amount thereof from $147.91-1 to $2,283.76, with 5 per cent, per annum interest, from September 3d, 1881, being duty due on all the sales reported by defendant, except those reported as “ sales in suspense and incomplete, $157,335,” and that as to the claim for duties on these sales, the demand of plaintiff be dismissed, as in case of non-suit, defendant and appellant to pay costs of this appeal.

On Application por Rehearing.

We find no error in the principles of law laid down in our original opinion.

It is averred, however, with great positiveness:

1. That during the entire existence of the law, the State has never before received or demanded the tax upon succession, bankruptcy and judicial sales.

If this be true, and if the conduct of the State had been such as to mislead the defendant as to his duty in collecting the tax on such sales, it would be a great hardship now to compel him to pay what ho had never collected, and the State might be estopped from, making such a demand.

2. That in making his return of judicial sales, the defendant, not supposing them to be liable to duty, had not distinguished between those sales of that class which were actual and completed and those which were not, and that he should, in any event, be allowed to show the truth in this respect..

3. That part of the reported sales were of bank stocks, on which the duty, under R. S. 161, is one-quarter and not one-half per cent., and that he should be allowed to show the amount of such sales.

4. That there are some judicial sales in which the employment of auctioneers is compulsory on the parties in interest. If this be true, such sales would not, as to such parties, fall within the principles on which our decision rests.

On the whole, we are satisfied that the interests of justice, which is all the State can be supposed to desire, require the remanding of the. case, in order that all matters involved may be subjected to a closer investigation. No party could be benefitted by the delay which would result from the'granting of a rehearing, and we may safely assume that speedy justice will be advanced by making our decree on this, application.

It is, therefore, ordered, that our former decree herein be annulled, and set aside. It. is now ordered, adjudged and decreed, that the judgment appealed from be avoided and reversed, and that this case be remanded to the lower court, to be there proceeded with according to law and to the views expressed in this, and in our former opinion herein, costs of this appeal to abide the result of the suit.

Levy, J., absent.


author: Levy, J.

text:
    No. 8510.
    Nathaniel Hoggatt vs. Vicksburg, Shreveport and Pacific Railroad Company.
    Lands taken "by the public for a particular use of any kind, by the exercise of the power of expropriation, cannot be applied to any other use, to the detriment of the landholder.
    Where a building erected on land, expropriated for the purpose of a railroad station, is used as such, but a private business is carried on in certain rooms by one, who is the agent of the railroad, and receives his compensation in being allowed the use of these rooms, in which railroad freight is however stored when necessary, it is not such a diversion by the railway from the use for which the land was expropriated, as to authorize an action for damages.
    APPEAL from the Eighth Judicial District Court, Parish of Madison. Lelony, J.

      J. G. Ilaivlces, Jno. JB. ¡Stone, JBoatner cC Liddell, for Plaintiff and Appellant:
    1. Under the laws providing for compulsory transfer of property, such estate alone can bo taken as is necessary for the purposes for which it is taken. (7 A. 184; 2ST. 0. Railroad Co. vs. Gay, 32 A. 741).
    2. A corporation cannot apply property taken under these laws to a different purpose from that for which it is expropriated. Cooley on Constitutional Limitations, 556; Matter of Albany St., 11 Wend. 152; 26 Conn. 255.
    3. This is true, even where the fee is acquired. Crawford vs. Delaware, 7 Ohio, 459; Cooley on Constitutional Limitations, 556, note 1.
    4. Defendant did not acquire the absolute ownership of the land by the judgment, only “ the land for the use of the Railroad.” T. 39, 40.
    Even if the judgment could be construed to embrace within its terms the entire estate, such, construction could not be allowed. Bradly vs. 3ST. Y. & hT. H. Railroad Co., 21 Conn. 294.
    Expropriation laws and the proceedings under them are to be strictly construed against the corporation. Parker vs. Great Western Railway, 7 Scott LT. R. 780; 7 A. 184; 17 Ohio. 340.
    Using property for a different purpose from that for which it was taken, is a violation of the terms upon which it was taken. Defendant has used the property expropriated for a purpose entirely foreign to the purpose for which it was taken, and in so doing damaged plaintiff.
    IF. B. Biitman, IF. Farrar, for Defendant and Appellee:
    1. Expropriation of property by a corporation clothed with perpetuity, conveys the fee. N. O. P. R’y Co. vs. Gay, 32 An. 471.
    2. Perfect ownership gives the unlimited right of disposal and enjoyment. C. C. 491.
    3. Ownership is perfect when it is perpetual; it consists of the usus, fructus and abusu-s.

   The opinion of the Court was delivered by

Levy, J.

The plaintiff as owner of certain lands contiguous to the railroad, at and near Mounds Station, brought suit against the Vicksburg, Shreveport and Pacific Railroad Company, ci aiming ten thousand dollars as damages, resulting from the establishment and carrying on, on the depot lands and buildings, of a mercantile business by said Company and its agent, and praying for the abatement of said business, on the ground of its being a nuisance and injurious to plaintiff, and unauthorized and illegal, under the expropriation of said laud or depot grounds to the uses of the Railroad Company.

There was judgment in the lower court in favor of the defendant Company, rejecting plaintiff’s demand.

The admitted facts are as follows :

The plaintiff was, in 1857, joint owner of a tract of land in Madison Parish, as heir of his deceased father, Anthony Hoggatt.

In 1857, the Vicksburg, Shreveport and Texas Railroad Company brought suit under the expropriation Act of 1855, against the succession of Anthony Hoggatt, for a tract of land which the Company claimed to be necessary for the purposes of their railroad. The Company obtained judgment for a tract or strip of the land one hundred feet wide, and ft. long, containing 48‡ acres.

Upon this tract of land the Company laid its track and built a depot known as “ Mounds Station.”

The Company employed one Freind L. Maxwell, in September, 1872, as depot agent at this place, and in consideration for his services as agent, the Railroad Company agreed that he should carry on a mercantile business in the depot huildincj.

This permission was in full compensation for his services as agent.

This mercantile business was carried on by the agent upon the terms stated, from September, 1872, until the present time, and still continues.

The depot of the Company, in which this business is carried on, consists of three rooms, one an office of the Company, also used by Maxwell, as merchant, 20x18 feet, and another room, 17x26 feet, used as a ware-room for the Company, and a third room, 70x22 feet, with an L. 17x24 added, known as the mercantile establishment, and is used for general mercantile pursuits, and when the Company is crowded with freight, it is sometimes stored.

It is also admitted that plaintiff is sole owner of all that tract through which the Railroad passed, and of the land adjoining and contiguous to the property expropriated by the Railroad Company at Mounds Station. That plaintiff erected a store building in September, 1869, which has, from that date until the present time, been used for mercantile pursuits.

That plaintiff notified the Company to stop the mercantile business at the depot. These are the admitted facts.

In support of his demand, plaintiff contends that the Railroad Company acquired the lands from the succession of Anthony Hoggatt, under the expropriation proceedings in 1857, contradictorily with the heirs of that succession, it being private property, for the purposes and uses thereof, as claimed in those proceedings, and as a public use by said corporation limited to the general public objects necessary for carrying on said Railroad Company’s operations, and that that property, thus taken, cannot be diverted from these purposes, and used for a purpose different from that for which it was expropriated, and this, no matter whether the mere easement was acquired, or a fee simple, and if diverted, the Company should not only be compelled to abate the bus-’ incss, as a public and a private nuisance, but is liable for damages which may be caused to the original owners and contiguous proprietors.

Defondant resists plaintiff’s demand on the ground that it became the absolute owner in fee simple of the said lands and grounds, tlieir full value and collateral damages having been demanded by, and payment therefor made to the original owners, and having acquired perfect ownership, has the unlimited right of disposal and enjoyment, and this perfect ownership being' perpetual, consists of the urns, fmotus and abusus.

In the suit for expropriation, the plaintiff prayed that the “lands aforesaid be adjudged and decreed to plaintiff upon payment of all such damages as may be sustained, in consequence of the expropriation of said lands.”

In'their answer, defendants prayed “that plaintiff’s demand be rejectod at tlieir costs, or if judgment shall bo rendered .expropriating the land .for said corporation, then, that defendants have judgment against them for the value of the land, and $10,000 damages, sustained by said succession.”

There wasg'udgment that “ the land set forth and described in plaintiff’s petition, and the plat annexed, be expropriated to the use of the plaintiff as prayed for, upon the payment to the defendant of the sum of $1,448,” etc.

Article 2630 R. C. C., which prescribes the mode of proceeding in the compulsory transfer of property, requires that the petition shall contain “ a prayer that the land be adjudged to such corporation, upon the payment to the owner of all such damages as he may sustain, in consequence of the expropriation of his land for such public work.”

Art. 2632 requires that the jury shall “ determine what is the value of the land described in the petition, with its improvements, and what damages, if any, the owner would sustain, in addition to the loss of his land by its expropriation.”

The charter of the Company is perpetual, although its duration was first limited to twenty-five years, the legislature subsequently made it perpetual.

We think the absolute right and estate in an.d to the laud vested in the Company by the judgment of expropriation, but at the same time we think the land could only be expropriated and used for the purposes of the railroad in the interest of the public, and its use confined to necessary legitimate railroad purposes.

“The interest of a Railroad Company in its location, although technically an easement, is not limited to an ordinary right of way, such as is required by highways, but it justifies a use of the land for all the purposes of a railroad.” Pierce on Railroads, 159.

“ The Company cannot, as to land taken under the right of emiuent domain, do acts which, though lawful in a private land owner, are altogether outside of railroad purposes." Ib. 160.

In 34 N. J. 201, it ivas held : “ The true rule is, that land taken by the public for a particular use, cannot be applied, under such a sequestration, to any other use, to the detriment of the laud owner. This is the only rule which will adequately protect the constitutional right of the citizen. To permit land taken for one purpose, and for which the land owner has been compensated, to be applied to another and additional purpose, for which he has received no compensation, would be a mere evasion of the spirit of the fundamental law of the State.”

Individual property can be compulsorily appropriated by the public only for public use. Dillon on Mun. Corp. § 460 ; 6 How. 545; 6 McLean, 517.

“ Since the power to condemn private property against the will of the owner is a stringent and extraordinary one, based upon public necessity as an urgent public policy, the rule requiring the power to be strictly construed, and the prescribed mode for its exercise strictly followed, is a just one, and should, within all reasonable limits, bo inflexibly adhered to and applied.” Dillon on Mun. Corp. § 469.

We are thus confirmed in our opinion by the authorities just cited, and in this case the question presented for our consideration and decision remains: Is the land referred to, used for railroad purposes, or has the Company diverted its use from that contemplated in its demand for expropriation and its actual expropriation ?

The business complained 5f, is not and has not been carried oil by the Railroad Gompany, but iscarried on in the premises, located on the expropriated lands, by Maxwell, as his private business, and for, and onliis own account, the Company assenting thereto and granting the use of its building for that purpose, in consideration of Maxwell’s services, without any other compensation or remuneration, as agent of the Company at the station or depot. The land was expropriated for a depot or station, for the construction of necessary buildings as a station, and for sidings, etc., usual and necessary at such places; and its main and principal use is for the purposes stated.

It is not contended that the Company is itself carrying on or actually and directly engaged in mercantile business on said premises, or that any of tlie buildings oil tbe land were constructed for tbe purpose of carrying on snob business, or that they wore constructed with any such view. We rather infer that they are such buildings as are necessary for depot or station purposes, and are in the main used therefor. In lieu of stipulated money wages or pecuniary compensation, the Company allows to its agent the use, to a certain extent, of a portioij of tho building, in which tho agent, for his own account, keeps a store and carries on mercantile business, while the admission shows that the rooms which ho thus uses, are also used by the Company for storing freight, whenever needed for that purpose. We do not feel justified, therefore, in saying that the Company is diverting the expropriated property from the purposes and uses for which it was acquired, and that there is such a diversion as would authorize an interference, nor do wo think the plaintiff can maintain his demand for damages.

The judgment appealed from is affirmed at costs of appellant.

Rehearing refused.

Justice Todd dissents, and reserves his right to assign his reasons therefor.


author: Bermudez, C. J. Poché, J.

text:
    No. 8437.
    Mrs. A. P. Nugent vs. Mrs. D. L. Stark and Husband.
    The recusation of a judge .proprio motu when such judge is asked an appeal from a judgment rendered in a case in which ho acted as counsel for the application, is proper and legal.
    The appoiutmcnt of an attorney in such a case to grant the order, is allowed by law. When the record does not show that such attorney lias taken the oath required by the Constitution from all officers, it will be presumed to have been taken. AJ/idavit in this Court to the contrary will not be noticed.
    When a case is called for trial, and two attorneys for plaintiff are present and ask a continuance on the ground of the absence of another attorney, represented as the leading counsel, and on refusal of the court to continue tlie case, they withdraw from the case without taking an exception, and the case is tried, and judgment is rendered for tho defendants, without mentioning the absence of the plaintiff, and the defendants had set up a defense which could have made the basis of a direct and independent action, a judgment can be rendered on the merits of such defense.
    When there is no evidence, statement of facts or bill of exceptions in the record, and no proper assignment of errors, the judgment will not be reviewed.
    APPEAL from the Seventh Judicial District Court, Parish of Avoyelles. Yoist, J.
    Appeal was granted, in this case by JSdwards, J. ad hoe, Twelfth Judicial District Court, successor of above court.

      JS. U. Farrar, for Plaintiff and Appellant.

      Overton & Thorpe, for Defendant and Appellee.
   On Motion to Dismiss.

The opinion of the Court was delivered by

Bermudez, C. J.

The defendant seeks to have the appeal dismissed, because there is no order of appeal, that claimed as being such having been made by one who had no authority to grant it.

Tt appears that the present Judge of the lower court had been of counsel for the plaintiff, and that when the petition for an appeal was presented to him, he recused himself, if not on suggestion, at least prop rio motu, and appointed a lawyer, having the qualifications of a Judg?, to act in his place, ad hoc; that such lawyer considered the petition for an appeal, and granted the order asked.

It is claimed that the District Judge liad no right to recuse himself, that he, therefore, had no right to appoint a lawyer pro hoc vice, and that this lawyer has not taken, previous to acting, the oath required by the Constitution from public officers.

We think not only that the Judge had a right, but that it was his duty to recuse himself. Had the defendant been cast, she could have recused him, on an application for an appeal, because “ he had been employed as advocate in the case.” C. P. 333, No. 3.

The plaintiff herself could have exercised the same right, or even verbally intimated the propriety of his recusing himself on the same ground. It would have been highly indelicate, to say the least, on the part of the Judge to have granted the appeal, at the instance of the very person whom he had professionally represented in the controversy, before his elevation to the bench. He was right in recusing himself.

A Judge who has been of counsel in a suit, should consider himself incompetent, and not wait until he be recused, to withdraw from the case. He might, however, where the parties do not object, or do consent, make mere formal orders, as may be needful for a continuance. 45 N. H. 53.

It has been held that where a Judge is recused, he cannot himself try the issue raised on that point by his denial, but must refer it to be tried as provided by law. 33 A. 1293.

A Judge should studiously abstain from all and any judicial action which could retard or accelerate the rendition or execution of a judgment in such a case. If he had the right to grant an appeal, he had that of refusing one, in the exercise of his discretion, and then, why not, also, to grant or refuse an injunction and try and determine the same?

The authority in 2 A. 628, is to the effect that where a Judge who could have been, has not been recused by either litigant, and has not recused himself proprio motu, refuses an order of appeal, he can be and was compelled by mandamus to grant one, because the fact of the existence of a valid ground for recusation does not necessarily make him incompetent; that he only becomes such, when he has been recused, or has recused liimself, on his own motion. In this case the Judge lias recused himself, and has, therefore, acknowledged and declared his incompeteney.

He had a right to appoint a lawyer to act in his place the moment he recused himself. Const. Art. 112; Act 1830, No. 40. When appointed and qualified, that lawyer replaces completely the Judge of the Court, and can discharge all the duties which that Judge could exercise, if acting, but only for the purpose and in the case in which the appointment is made.

The lawyer appointed in this ease accepted the trust, and has acted as Judge ad hoc, by granting the order.

It is insisted -that it does not appear from the record that he has taken the oath required by the Constitution, Art. 149, from all State officers, before entering upon the discharge of his functions, and an attempt is made to establish the failure to do so, by affidavit, in this Court.

It is true the record does not show that such oath was taken, neither does it show that the District Judge himself has qualified. If the record fails in that respect, the defendant has no one to blame but herself. In order to enable this Court to exjn-ess an opinion on the subject, it is clear that she should have taken steps to have the order rescinded in the lower court, and put the proof of the omission on record. She lias not done it there, she cannot now do it here. Were we to consider the affidavit offered, we would be taking original jurisdiction, which we cannot do. 32 A. 665.

We must presume that the Judge ad hoc took the qualifying oath. Omnia rite acta presumiuitnr.

The motion to dismiss is, therefore, overruled.

On the Merits,

The plaintiff sued on a note secured by mortgage, andón an account.

The defendant pleaded the general issue, that the debt is her husband’s, and res judicata as to the note, and no ownership in plaintiff as to the account, praying for a full and final judgment in her favor, forever quieting her in all matters relating to Richard Nugent & Co., and transferrees, and decreeing that she is in no manner indebted to the plaintiff in this suit, either on account, or by reason of any note or mortgage, as set forth in the petition.

It appears that on the day of trial to which the case had previously-been continued, a motion was made for another continuance by two of the attorneys representing the plaintiff, on the ground that theleading counsel was absent and unable to attend at the term of the Court, and other reasons which are not insisted upon here; that the Judge refused the continuance; that thereupon, a request was made by the attorneys to withdraw from the case, which was granted. Before retiring, they took no bill of exceptions.

The record does not show that the plaintiff was absent and not otherwise represented, or that evidence was not heard. The judgment rendered is in these words :

“ In this cause, after issue joined, the case coming on to be tried according to previous assignment, the law and the evidence being in favor of the defendant, it is, therefore, ordered, adjudged and decreed, that there be judgment in favor of the defendant and rejecting plaintiff’s demand. It is further ordered, adjudged, and decreed, that the plaintiff pay all costs of this suit.” .

That is the judgment appealed from. In this Court, the plaintiffhas filed an assignment of error. It charges:

1. That the judgment was rendered without any evidence whatsoever being produced to the Court in support of the same.

2. That the plaintiff and her counsel being absent, when -the cause was tried, it was unlawful to render any judgment but one of non-suit.

First. It is no fault, of the appellee that the record does not contain, the evidence which the Judge says was heard. She was not bound to have it taken in writing. The appellant, under the law and the jurisprudence, should have secured a statement of facts before appealing. C. P. 602, 603; H. D. 80 ; L. D. 48. She has failed to do so. We must presume that the Judge had sufficient evidence before him to justify his judgment, which we cannot reverse on that ground.

Second. Even if the plaintiff was not present, or was not represented, it was no reason why the defendant, who had set up a serious and substantial demand, which could have formed the basis for a distinct suit, and who had prayed for a specific judgment, should not have pro-, needed with the case. This is no longer an open question. 33 A. 415; 11 A. 287 ; 5 A. 298 ; 13 A. 343.

We are unable, under the circumstances, to review the judgment and say that it is incorrect.

It is, therefore, affirmed with costs.

Poché, J.

I concur in the opinion and decree on the merits.

Rehearing refused.

Levy, J., absent.


author: Todd, J.

text:
    No. 8474.
    Zoemie Harang vs. Jules A. Blanc.
    Where a party bays property from a married woman, be cannot, when sued by her to annul tlie contract, set up that the property never belonged to her, but to the community existing between her and her husband at the time of the purchase.
    A married woman is not estopped by her declarations in the act of sale or conveyance, from seeking to annul it, on the ground that the act in question was an attempt to take her paraphernal jjroperty to pay or secure the debts of her husband. The principle, as usually recognized and enforced, is not applicable to a married woman, when assailing acts charged to be in contravention of the law prohibiting a wife from binding herself or her property to pay the debts of her husband.
    "When a married woman, not separated in property, signs an obligation with her husband and other parties for a debt, for which they are bound in solido, but which has not enured to her separate benefit, she is not liable therefor.
    APPEAL from the Twentieth Judicial District Court, Parish of Lafourche. Knolloclc, J.

      Clay Knoblock, Sam'l P. Blanc, for Defendant and Appellee.

      Taylor Beat-tie, for Plaintiff and Appellant.
   The opinion of the Court was delivered by

Todd, J.

The plaintiff, the wife of Theophile Harang, Sr., sues to recover a part of a plantation in the Parish of Lafourche, known as the “ Harang Plantation,” and to annul an act by which her said interest in the property was conveyed to Jules A. Blanc, one of the defendants.

Subsequently to the date of the said act sought tobe annulled, Blanc, sold the interest claimed by the plaintiff, to her son, Theophile Harang, Jr., on a credit, and had caused a writ of seizure and sale to issue, to enforce the special mortgage given to secure payment of the price. This writ was enjoined by the plaintiff, and Theophile Harang, Jr., and the Sheriff were made parties to the suit.

The plaintiff alleges as the ground of nullity of the act in question; that it was not a sale of her interest, as it purported to be, but an attempt to render her and her property responsible for the debts of her husband, and that she was informed, at the time of signing the act, that it was a mere formality intended to carry out a previous partition of the estate between her and her co-proprietors, and protect the property from seizure from outside parties.”

The defendant, Blanc, for answer, denied all the allegations of the petition, except that he had acquired the property by purchase and had sold it to Theophile Harang, Jr., and caused executory process to issue against it, as charged; that plaintiff knew of the sale in question, made by respondent, and recognized its validity, and that she and her husband had likewise acknowledged the validity of his (respondent’s) title to the land. The case was tried on these issues, and from a judgment-against her, the plaintiff has appealed. Theophile Harang, Jr., though cited, did not answer, nor was any default taken against Mm.

Before the date of the conveyance, referred to, to Jules A. Blanc, the defendant, the title of record to the Harang Plantation,” was in the names of Octave Harang, Pierre Desalles, Theophile Harang, Sr., and plaintiff, the wife of the last named, as co-proprietor, each being the' owner of one. undivided fourth of plantation. The plaintiff acquired her interest therein from D. Durac, on the 31st of March, 1868; and the money paid therefor is stated in the act of sale to have been received from plaintiff’s mother.

Subsequently, on the 5th of May, 1876, the plantation, by an act under private signature, was partitioned among the joint proprietors, by which the plaintiff, for her fourth, and Theophile Harang, Sr., her husband, for his fourth, received for their joint share what may be termed, according to the description given in the act, the upper part of the plantation.

By a public act, passed before a notary irablic of the Parish of Lafourche, dated on the 7th of May, 1876, but really passed and signed, as admitted, on the 7th of June, 1876, the several co-proprietors mentioned, conveyed their respective interests in the plantation to Jules A. Blanc, defendant; the conveyance embracing the entire Harang Plantation. This act is termed by the parties a sale, but on its face is a elation enpeiiement, for whilst it is stated that the price is $24,000 cash, it further declares that this sum is owing to the purchaser by the four vendors, on account of sundry mortgages and judgments against the parties, purchased by the said Blanc.

On the 29th of January, 1880, Mr. Blanc conveyed the upper part of this plantation — being the same part received in the partition by plaintiff and her husband, above mentioned — to Theophile Harang, Jr., and retained a mortgage for the stipulated price, for which he caused the executory process to issue, as before stated.

The main defense relied on by the defendant, Blanc, against the plaintiff's claim to the land is, that she never had a title to it, and that her pretended purchase from Durac was a purchase by the matrimonial community, of which her husband was the head. This question, touching plaintiff’s original title, cannot be a subject of controversy between these parties in this suit. As respects the interest in the land sued for by the plaintiff, the record shows that the sole title to it, possessed by the defendant, Blanc, is derived from plaintiff’s conveyance to him on the 7th of June, 1876, referred to. In that act, which he signed, and in which he accepts the conveyance, it is expressly declared that the plaintiff is the owner of one undivided fourth of the plantation, and her title is specially referred to and acknowledged to have been acquired by her purchase from Durac, on the 31st of March, 1868, above mentioned. And in the same act, Theophile Harang, Sr., plaintiff’s husband, conveys his own separate fourth of the property, and authorizes plaintiff, as his wife, to convey her interest.

Plaintiff’s title to this interest had been previously repeatedly recognized in writing by this defendant.

Thus, in the sale by Octave Harang to said Blanc, on the 12th of May, 1875, of his interest in a canal and some swamp lands, the property sold was described to be a part of the Harang Plantation, one-fourth of which plantation the parties declared belonged to Mrs. Harang, the present plaintiff. And a like declaration is made in an act of the 31st of May of the same year, in which plaintiff and her husband conveyed to Blanc their respective interests in the same canal and swamp lands.

And again, among the very debts held by Mr. Blanc, and for which the conveyance to him purports to have been made, was a mortgage debt purchased of Louis Bush, evidenced by an act of mortgage given by plaintiff on this same separate interest of hers in the,plantation, as part of the price of her purchase thereof.

Plaintiff, it will thus be seen, is the author of the defendant, Blanc’s, title to this interest claimed by her in the present.suit, and so firmly settled is it in our jurisprudence, as to become elementary, that a party cannot gainsay or dispute the title of his author.

As was said by this Court:

If either the pleadings or evidence show'that the parties trace their titles to the same source, neither will be permitted to attack the title of their common author, and that a party cannot controvert the title of one under whom 'he claims.'’’1 15 A. 685, and authorities there cited.

So clear are our convictions on this point, that we cannot yield to the authorities referred to by the counsel for the defendant, derived from a different system than that prevailing in this State.

We do not mean to say, however, nor does the principle in question militate against the idea, that a purchaser from one party may supplement his title by buying up the titles of other claimants to the property. In this case the only title that defendant can assert to the property is that derived from the plaintiff. She sold it to him, and lie bought from her, and so declared in the deed. The husband did not join in the sale of this interest, but merely authorized his wife,to sell, and in the same act the defendant acknowledged that plaintiff was the owner of this interest and became the owner by her purchase from Durac.

There is nowhere in the pleadings any pretense that these declarations and acknowledgments were made by this defendant in error, or were induced by fraud.

It is true, that if the husband of plaintiff were ever to claim this property, as belonging to the community, he would be estopped by this conveyance of his wife, made by his authority; and this is tire extent of the authority on this particular point, referred to by counsel.

It is also urged, that the plaintiff is estopped, by reason of her conveyance to defendant, and the declarations made in the acts from denying its truth and seeking its nullity. It has often been held, that where a married woman seeks to avoid an act, which she attacks upon the ground that it contravenes the provisions of a prohibitory law designed for her protection against marital influence, that the principle of estoppel, as usually recognized, is not applicable.

Thus, in the case of Chaffe vs. Oliver, administrator, 33 A. 1009, where a wife had conveyed her land to secure the debt of her husband, and the land had been reconveyed to her at a stipulated price, and a mortgage retained to secure it was sought to be enforced, the present Court used this language :

“It is settled, to epitomize our jurisprudence, that such transactions cannot be sustained; that the wife ail'd her legal representatives cannot-be bound thereby; that she may attack and annul them, or may defend against them; that she is not estopped by her own acts in aid of the transaction, which are presumed to be done under marital influence; that whatever the form of the contract, its true character may be inquired into and laid bare; and that in her assault upon even authentic acts, she is not confined -to counter letters and interrogatories on facts and articles, but may resort to parol evidence to establish their true nature and purpose.” Citing, 14 A. 169; 16 A. 11; 5 A. 572; 2 A. 756; 12 A. 852; 12 R. 84; 1 A. 429; 4 R. 508.

In the case of Bisland vs. Provosty, 14 A. 169, among those cited, a husband mortgaged certain property, the wife joining in the act, and affirmed that the title of the property was in the husband, and renounced all rights to the same, yet it was held that she might sue for and recover the property.

In the act of conveyance to the defendant, Blanc, of the Harang Plantation, it is recited that he was the holder of claims against the proprietors of the plantation to the amount of about $40,000, which were valued at $24,000. Among all these debts, the only one we' find for which the plaintiff at the time was liable, was the mortgage debt for part of the price due by her on her purchase from Durac, above mentioned, originally for $2,684, on which there was a balance due, according to our estimate, of $617.27, at the time it was acquired by Mr. Blanc, on the 8th of February, 1875. It is true that among the other debts were obligations signed by her with her husband, and the other co-proprietors of tho plantation, but as she could not bind liorself for her husband, nor conjointly with him, as urged by her, we cannot recognize them as valid dobts against her. C. C. 2398; 16 A. 311.

It is, however, contended by plaintiff’s counsel, that this debt was extinguished by compensation, by the amount that Mr. Blanc became indebted to her on account of his purchase of her interest in the swamp lands and tho canal. This is not made clear by the evidence, and we must resolve the doubt against her,- since the burden of tho proof is upon her. It is also asserted that, if not' thus extinguished, that the charges of usurious’interest and commissions alleged in tho accounts of the defendant, Blanc, should be disallowed, to an amount sufficient to balance her debt in question. With this plaintiff has nothing to do. She is not charged with these items, and the accounts containing them have been accepted by Theophile Harang, Sr., her husband, and other parties, and they are not open to inquiry in this suit.

This debt of the plaintiff, though not extinguished, cannot be viewed as constituting a price for her interest in the plantation. For the entire property the price was stipulated at $24,000, and plaintiff’s share of the same would be $6,000, nearly ten times the amount of tho consideration she received; that is, tho debt for which she was liable.

An attentive examination of the evidence in the record, however, satisfies us, that though, on the face of it, the conveyance in question is manifestly a giving in payment, as stated, yet the real purpose and object of it was to afford Mr. Blanc what he deemed a better security for the debts held by him against the plantation or its proprietors.

For instance, the relative position of the parties to this instrument is not changed after its execution, The vendors still remain iu possession for several years, and continue to cultivate the plantation, and tho defendant to assist them by advances, etc. And how, except in this hypothesis, can we explain or construe the letters of the defendant on this subject 1 In a letter written on the 26th of May, 1876, and in which was enclosed the act which was subsequently signed on the 7th of June, conveying the plantation to him, and addressed to Octave Harang, occur these expressions, written in French, which we translate:

“After my return iu October or November, I will proceed to free the property from the mortgages and judgments which now encumber it, and will sell one-half to each one, as we have agreed.” * * • “ I wish it well understood and agreed, that the notes and mortgages you shall give me for the purchase of the property, shall be mine, full and complete, until I am paid, as we have agreed.”
“I am thus particular in explaining myself before leaving, to the end that should an accident befall me, my heirs knowing what they should do when they find your property in my name. Take care of this letter, which will be your protection in case of accident.”

P. S. “Let Theophile understand his position with you, and if you are. satisfied — -you two — we have but to sign the act.”

In another letter he urges Theophile to pay his part of the taxes on the property.

Again, he says, in a letter to Octave: “ If Theophile will and can pay me to-morrow all he owes me, I will return to him all his notes judgments, etc., and say to him, God speed you.”

And in another letter, written after the act of conveyance to him was prepared, but before it was signed, addressed to 0. Harang, after referring to a proposition from Theophile, about the adjustment of his indebtedness, he says: “ I would wish, in the meantime, that Theophile should understand that if, between .you two, you owe me $32,000 to $35,000, reduced to $8,000 or $9,000, in buying your debts at 25 to 30 cents on the dollar, with mortgage on the plantation, I would be better guaranteed in preserving my security on the whole plantation than in dividing it.”

Iu another letter, written in September, 1879, to Theophile Harang, he expresses a desire to close the business with him and Octave, and suggests a sale of a part of the plantation, commencing from the two ends, so as to leave to them a part of the place free from debt.

All this leaves no doubt that the object of the conveyance in question, was to secure the debts held by Mr. Blanc against the place. It might, be considered as an auteehresis, but that the debtors still retained possession, and therefore, it may, with more propriety, be viewed as a mortgage. This hypothecary right against plaintiff, and her interest in the plantation, does not extend beyond the amount of the debt for which, at that time, she was personally liable, and which is, in amount, as above stated. And she is not, on execution of the decree, entitled to avoid the contract assailed by her, except by first paying the amount of this debt and interest.

The plaintiff was not entitled to enjoin the sale of the one-half of the upper part of the plantation, on which she claims a mortgage, by reason of this mortgage, and to this extent her injunction was properly dissolved.

Our first impression was, that with the views expressed, we would have to remand the case, with a view to afford Theophile Harang, Jr., who was cited, and to whom a sale of the land was made by this co-defendant, Blanc, an opportunity to be heard, but considering Ms testimony in the record and his injunction suit against this same seizure, which is now before us on appeal, and submitted, wo are satisfied that it would be in vain thus to remand, for that purpose, as there is evidently no issue between liim and the plaintiff, and, therefore, it is preferable to make a final disposition of the case.

The equities in favor of the defendant, Blanc, in his business dealings with these parties, are strongly urged in his behalf, and the conduct of plaintiff’s husband, in connection with the matters out of which this controversy has grown, is severely criticised. However this may be, we see nothing in the evidence, that connects plaintiff with anything that is censurable relating to these transactions, or that could affect or impair the inflexible rules of law upon which we base mu-decision.

It is, therefore, ordered, adjudged and decreed, that the judgment appealed from be annulled, avoided and reversed, and proceeding to render such judgment as should have been rendered, it is ordered, adjudged and decreed, that the plaintiff be, and she is hereby declared owner of the undivided one-half of the upper part of the Harang Plantation, as described in the petition, and that she be put in possession of the same on paying to the defendant, Jules A. Blanc, the sum of six hundred and seventeen dollars and seventy-three cents, with eight peleen t. interest per annum thereon, from the 8th of February 1875, and that the contract attached, entered into on the 7th June 1876, and dated on May 7, 1876, be annulled as to the plaintiff, and so far as it purports to convey her said interest in the Harang Plantation ; and it is further ordered, adjudged and decreed, that the plaintiff’s injunction, so far as it seeks to restrain the sale of the part of said plantation herein claimed by her as owner, be perpetuated, but so far as it enjoins the sale of the part on which she claims a mortgage, that it be dissolved; defendant, Jules A. Blanc, to pay the costs of both Courts.

Mr. Justice Poché recuses himself, having been consulted as counsel.

Levy, J., absent.


author: Tone, J.

text:
    No. 8478.
    Theophile Harang, Jr. vs. J. A. Blanc et al.
    When a party, before buying, knows of the defect of his own vendor’s title, he is not entitled to withhold or suspend, the payment of the price, nor demand security against eviction, if he be threatened therewith, on account of such defect.
    The judgment of the lower court is, therefore, affirmed.
    APPEAL from the Twentieth Judicial District Court, Parish of Lafourche. Knobloch, J.

      Taylor Beattie, for Plaintiff and Appellant.

      Olay Knobloelc, Sam'l B. Blanc, for Defendant and Appellee.
   The opinion of the Court was delivered by

Tone, J.


author: Lew, J. Pocrcft, J. Fenner, J.

text:
    No. 7319.
    Francois Lacroix, C. H. Stewart, Transferree, vs. Andre Camors and Henry St. Gez.
    Where purchaser at tax sale has purchased property of A for a certain price, and paid over to the sheriff the amount of the writs, retaining in his own hands the balance; and afterwards, both the right of redemption, which A has by law, and all bis interest in the property are seized and sold by a creditor in another proceeding, A no longer has any claim to the balance in the hands of the original purchaser, iu fact no interest at all, as whatever he may have had has been sold.
    A jmtition for a rehearing, which does not set forth the grounds on which the complainant charges the judgment is erroneous, though accompanied by a motion for delay to file pnuted briefs in support of application for rehearing, does not comply with tholaw, and hence does not retard the operation of the law under which the judgment becomes final.
    APPEAL from tlie Fourth District Court for tlie Parish of'Orleans. Houston, J.

      Gluts. Zouque, for Plaintiff and Appellant:
    Í. The adjudicatee at sheriff’s sale, made for cash, must pay the full amount of his bid.
    2.The sale of a tax payer’s right of redemption does not deprive him of his claim for the amount of the adjudication of the property.

      Sinyleton & Browne, same side, on ai>plication for rehearing:
    1. That in case of a sale made by a sheriff, the adjudication divests the defendant of whatever title he has in the property sold and vests the sathe in the adjudicatee. R. C. C. 2G08, 2617, 2620 ; R. C. P. 690 ; 6 La. 550 ; 13 La. 290; 19 La. 235; 9 Rob. 405, 414; 11 Rob. 270.
    2. That the paper title to property thus sold must not be confounded with the ownership, since it is nothing more than the mere evidence of title or ownership. R. C. C. 1762.
    3. That the purchaser, at sheriff sale, of property sold to pay taxes has the light, after satisfying the writ under which tlie property was sold, to retain a sufficient portion of the remainder of the piice to pay the tax mortgages and liens resting upon the property thus purchased by him, aud that he is bound thus to apply the sum reserved, and not retain and use it for his own benefit and apply other money in his hands, belonging to defendant in execution, to pay such tax mortgages and liens. R. O. P. C79.
    4. That the vendor, with the light of redemption for a stated period, has the right to receive the price for which the property sold, and retain it until he exercises his right of redemption, at which time he must return the whole price. R. C. C. 2567, et seq.

    5. If he fails to redeem, he lias the right to retain the price for which his property was sold with the right of redemption. That 1 lie failure to redeem does not forfeit the pnce for which the property sold. Jí. C. C. 2567; 32 An. 784.
    íí. That any hiatus in a legislative act, which act clearly suggests what the omissions are which constitute such hiatus — aud if such omission, if not supplied or construed with the act, violates clear provisions oflaw and works great injustice to parties, then the court in last resprt must supply the omissions constituting such hiatus and thus administer right and justice between the parties, and not wrong and injury.

      A. Robert, P. JE. Théard, G. H. Théard, Vitas. J. Théard, for Defendants and Appellees:
    1. Real estate sold for taxes is redeemable upon reimbursement to the purchaser of the amount paid by him, with fifty percent, additional and costs. R. S. 3464; Acts of 1870, E. S., p. 40, Sec. 22.

      2. If the amount claimed by the tax collector be less than the price bid, and the balance of said price be retained by the purchaser, the owner of the real estate possesses two rights: 1st. lie may redeem upon reimbursement of the real amount paid by the purchaser, with fifty por cent, additional, as aforesaid. 2d. Or, he may ratify and confirm the sale, and claim the balance of the price bid.
    3. But, if, befoie exercising either of these two lights, he allows his property to bo seized again by an ordinary creditor under a judgment against liim, and his right of redemption under tho former sale be at tho same time seized and sold, then the owner is entirely and absolutely expropriated, and ho loses his rights, both of redemption and of ratification, under tho tax salo These rights become vested in tho purchaser of the property under tho second sale, and he, alone, can redeem the property.
    4. No definitive deed of sale can be executed without payment of the taxes. R. S. 3020. Hence, tho purchaser may tender, and the sheriff may accept, as a portion of the price oi adjudication, the amount of taxes paid by the purchaser, in order to obtain a clear title.
    5. No balance due by the purchaser at the tax sale can bo paid to the original owner, if he lias allowed liis property to be again seized and sold with the right of redemption.
    6. The right of redemption cannot be sold separate from the xiroperty itself. It is inherent to the property, and the price may be settled in taxes.
   The opinion of the Court was delivered by

Lew, J.

Certain property of Francois Lacroix was seized and offered for sale by the Sheriff of the Parish of Orleans, to satisfy executions of fieri facias on judgments for City taxes. At that sale Andró Camors hid the price of $7,100, and the property was adjudicated to him. The amount due on the writs was $2,000, which sum Camors paid to tho Sheriff, retaining in his hands the balance of $5,100. Under the law, Lacroix had the right to redeem the i>roperty within a certain time, on payment in cash of the amount of fifty per cent, over and above the amount of the tax, and all costs incurred by the sale, and tho amount of all taxes paid since the sale.” Before the expiration of the time, within which the right of redemption could ho exercised, tho same property and the right of redeeming it ,werc seized in the ease of the Metropolitan Bank vs. F. E. Dumas and Francois Lacroix, and offered for sale, when the property and the right of redemption were adjudicated to H. St. Gez, for the sn:n of $10,00!), of which St. Gez paid $6,295.04, in cash, and $3,704.96, in tax receipts for taxes due on said property. St. Gez thou exercised the. right of. redemption and sold the property to Camors for the sum of $16,000. ■ It is admitted by the defendant that St. Gez was only a nominal party,‘and that he made tho purchase above mentioned, at the instance, for the benefit, and for the purpose of perfecting Camors’ full title to the property.

Lacroix, in his lifetime, instituted this suit for the purpose of recovering the sum of $5,100, retained by Camors on the first sale, and also the sum of $3,704, the amount paid in tax receipts on the second sale. After the death of Lacroix, his rights to this suit were sold at probate-sale and C. H. Stewart bought the same, and this suit is now prosecuted by Stewart.

Tliere was judgment of the Court a qua in favor of defendants, and plaintiff has appealed.

lVe find no error in the judgment. The purchaser at the tax sale paid to the sheriff the amount called for by the writ under which the sale was made. The defendant, in the writ, had been not fully divested of his title and ownership of the property. He had, under the law, two years within which he might, on certain fixed conditions, redeem the property and have his full ownership and possession restored to him. His acceptance or receipt of the amount bidin excess of that due on the writs, would have been a ratification of the sale and would have extinguished his right to redeem. Before the expiration of the right of redemption, other judgment creditors seized this same-property, all his right, title and interest therein including the right of redemption, and the last adjudication divested him of the property and his rights therein. The purchaser stood in his shoes, was transferree of all his rights and cut him off entirely. It would be most inequitable and unreasonable if his claim in this suit were recognized.

If Lacroix had redeemed the property, it cannot, for a moment, be contended that he would have to pay to Camors the whole amount of the adjudication, including the $5,100 which Camors had never p'a-id to anybody. The very terms of the law declared what he should pay, to-wit: the amount of taxes paid and fifty per cent, additional thereon, and the costs and taxes subsequently paid. At the second sale all his right, title and interest in the property were disposed of, including the right of redemption, and we think he was, by the last sale, stripped of the property and all claims incidental to or growing out of it. The. purchaser at the first sale became also the purchaser under the second sale, and is entitled to all the- rights which Lacroix had. St. Gez, when he acquired the right of redemption, could exercise it just as Lacroix himself could have done, and did so exercise it. To require him to do or pay more, has no foundation in law, equity or justice* The Judge, a quo well urges, in his reasons for judgment, that every bidder at the sale of the right of redemption knew that, iu order to redeem the property, he would be. only compelled to pay to Camors the amount the latter had paid for it, with fifty per cent, additional, and evidence of this amount was in the public records.

It is clear that if Lacroix had, himself, redeemed, he would not have been entitled to the balance of the purchase money from Camors. He did not, it is true, so redeem, but his right of redemption was sold, and all his rights growing out of, and incidental thereto, were acquired by another who stood in his place, with all rights, no more, no less; in other words, 1ns transferree acquired and represented only the rights and powers, in that regard, which Lacroix had possessed. JEi'go, if Lacroix could not, on the redemption claim the balance of the purchase price, if he redeemed, how can he do so, when he has parted with all right to redeem which has been vested in such transferree, subject to all the conditions which attached to the right when held by Lacroix.

We find no error in the judgment appealed from, which is affirmed at appellant’s costs.

On Application por Rehearing.

Pocrcft, J.

In this case, a judgment was rendered by us affirming the judgment appealed from, on the 20th of March, 1882.

On the 30th of March following, within six judicial days, appellant filed the following petition :

The petition of C. H. Stewart, the transferree of all the rights of plaintiff and appellant, respectfully shows that he is advised thatthere is error in the judgment rendered by this Honorable Court against him, from which he now seeks to be relievod by this application for a rehearing, upon the grounds fully set forth in the printed brief to be filed.”

And on the same day he presented the following motion and obtained the order thereto attached:

Oil motion of Singleton & Browne and Charles Louque, attorneys for appellant, and a showing that appellant has filed a petition for a rehearing, and that a delay of fifteen days is necessary to enable counsel to prepare and print an argument in support of said application.
It is, therefore, ordered by the Court, that there be a delay of fifteen days granted to appellant’s counsel to file a brief in support of his application for a rehearing.”

On the 6th of April, following, appellees moved for a rule on appellant to show cause why the judgment rendered by this Court should not be considered final; on the ground that in the petition filed for a rehearing by appellant, on March 30th, 1882, he did not set forth the reasons for which he thought the judgment was erroneous, or cite the authorities in support of his¡ opinion, as required by Art. 912 of the Code of Practice, and did not comply with Rule IX of this Court.

The relief prayed for is resisted by appellant, who strenuously contends that his manner of proceeding is in keeping with the practice of attorneys, and is sustained by the uniform and uninterrupted interpretation given by both Bench and Bar, to the provisions of Art. 912 of the Code of Practice, and of Rule IX of this Court.

The Article of the Code reads as follows:

In the interval bet.ween the day on which the judgment is rendered and that on which it becomes final, a party dissatisfied with the judgment may apply to the Court for a new hearing in the cause; and for this purpose shall present a petition, in which he shall state substantially the reasons for which he thinks the judgment erroneous, and shall cite the authorities in support of his opinion.”

Paragraph 1 of the Rule IX, reads as follows:

“ Applications for rehearing must be by petition, filed within the legal delay, and must be accompanied by a printed statement of all the points and authorities on which the party founds his application. Additional time for elaborating the argument on such points and authorities may be granted upon a proper showing, if made before the delay expires.”

The Code of Practice and the Rule both unequivocally and positively require that the application for rehearing must disclose the reasons for which the judgment is charged to be erroneous.

In the exercise of its discretion the Court has provided for a delay to allow the party complaining to elaborate his points, upon which the Code is silent.

But under either proceeding, the application must contain the grounds on which the judgment is assailed.

It is therefore clear, that an application for rehearing which complies neither with the Code nor with the Rule of Court, is fatally defective, and cannot retard the operation of the law under which the judgment becomes final.

The application in this case, complying with neither, cannot be entertained by the Court.

Our attention is called to cases where this Rule, which we consider imperative and inflexible, has been overlooked and not enforced by this Court, acting as alleged, under the uniform practice of veteran attorneys of great capacity and of acknowledged respectability. We can but deplore such erroneous departures from a rule of law so clear, so positive, and so easy of conception and execution, and we conceive it our plain duty, when called upon as in this case, to enforce the rights of a party who claims, according to law, that the judgment rendered in his favor be considered as final, when his opponent has failed to comply with the law, which extended to him the means of having the judgment suspended for the purpose of are-examination of the cause.

Custom or an interpretation which prevailed for a long series of years cannot be successfully invoked to defeat the clear and unambiguous meaning of a express provision of law. 4 N. S. 497, Hicks vs. Duncan & Sons.

Usage can be consulted for the construction of an ambiguous Statute, but not in the case of a clear and mandatory law.

Meeting with a similar proceeding in the case of Rosina Brown vs. Stroud, Executor, 34 A. , wo had determined to apply tho rulo in that caso, hut for reasons which .we give in tho opinion, we abstained, and took occasion to call the attention of tho Bar to this growing loose practice, and had thought that the warning would have been heeded.

Counsel in this case have preferred to deal with our ruling intended to secure a compliance with correct practice, as an obiter dictum, and now present a case in which the point can be finally disposed of.

There is error in the statement of counsel, that the loose practice wlxicli wo seek to correct lias been uniformly sanctioned by this Court, or universally followed by the Bar.

An inspection of the records in the Court shows that a very large number of attorneys strictly comply with the rule as written in the Code.

In the case of the Succession of Tabary, 30 A. 190, the application for rehearing was refused, because it was unaccompanied by a printed statement of the points and authorities on which die party founded his application. The record of that case shows that the manuscript application for rehearing contained numerous i>oints of alleged error in tho judgment.

For similar reasons a rehearing was refused in the case of Lafayette Fire Ins. Co. vs. Remmers, 30 A. 1349.

There is no force in the argument that by our order granting a delay to appellant, for the purpose of elaborating his points,, wo have can-celled Bule IX, quoad this particular case.

It is but fair to state that neither the application nor the motion were read to us, but were referred to by title and endorsement alone. We conceived that the application'filed was in compliance with the law, and we granted the delay contemplated by our Buie, for the purpose of elaborating grounds or points submitted, but not for the purpose of submitting grounds or points not contained in the application.

But if even wo had intended to suspend the effect or operation of our rule, we have no power, and certainly did not intend to deprive appellees of their rights under Article 912 of the Code of Practice.

Whenever a positive rule of law requires a thing to be done, or a proceeding to be instituted within a specified time, courts of justice are powerless to extend tho time thus prescribed or limited, unless the power can be derived from an express provision of law authorizing the exception from the general rule. Thus, the time prescribed by Article 587 of the Code of Practice, for the filing of transcripts of appeal, may, on proper showing, be extended by the appellate tribunal, under the special power conferred by Art. 883, and so of the extension of time authorized to bo granted by Art. 316 of the Code, to a defendant for the purpose of filing his answer.

Hut as no i>ro vision of law sanctions the modification of the positive rule established by Art. 912, C. P., touching the manner of applying for a rehearing, the attempt of this Court to provide for a different rule, or to sanction a contrary proceeding, would be as null as would be the attempt of a District Court in extending, beyond ten days, the time prescribed by Art. 575, for the filing of the appeal bond in suspensive appeals.

Whenever we inadvertently grant an order which may, in its practical effect, contravene a law of the State, we have no hesitation to rescind such order. Chretien vs. Poincy, 32 A. 132; same, 30, Succession of Kuntz.

Our conclusion is, therefore, that the rule was properly taken.

It is, therefore, ordered, adjudged and decreed, that the rule herein be made absolute; that a copy of the judgment rendered in this case on March 20,1882, be issued according to law, and that appellant pay costs of this proceeding.

Dissenting Opinion.

Fenner, J.

I find it impossible to concur in the views of my colleagues on this question.

If nothing had been done by the applicant for rehearing,' cxccjft the simple filing of a petition defective in the requisites prescribed by Art. 912, C. P., doubtless this would not operate to suspend the finality of the judgment. Hut the order granted by us on bis motion, filed with his defective petition, and within the delay allowed by law, granting him further time to file a brief in support of Ms petition, was equivalent to the granting of an extension of time within which to file the reasons and authorities.

He could not justly be deprived of the benefit of this order on any other ground than that of its absolute nullity, by reason of our want of power to grant such an order.

If tin? question of power were an open one, much might be said in Kupportof the position now assumed by the Court.

But it is notorious that, from a period beyond the memory of the present generation of lawyers, it has been the frequent practice of this Court to receive such petitions and grant such orders, and to give them effect as suspending judgment, and to consider and pass upon applications for rehearing so made, precisely as if made in strict compliance with law. If no express adjudication is found upon the point, this is not, in my judgment-, attributable to the failure of the Court to notice such proceedings, but ratlier to tlie fact that nobody ever before doubted or questioned the power of the Court to grant such orders upon such petitions, save in exceptional cases; the forms and delays prescribed by law, in judicial proceedings, are subject to judicial regulation and control on timely application.

This Court has constantly assumed and exercised such powers over the particular matter here presented. If, now, we conclude to reverse this practice, the obviously proper course would be simply to refuse to grant such orders upon such petitions, in the future, and to direct the clerk never to enter such order without first seeing that the petition conforms to the law as presently construed by us. But having granted the order, it seems to me that justice to attorneys and litigants requires that it should have the effect which it has always had under the practice of the Court.

As an illustration of my view, that Statutory mandates in such matters are not to be too technically enforced, I observe that tins following Article of the C. P. 913, reads as follows :

“The Court shall consider the reasons adduced in such petition, without argument, and if it grants a new hearing of the cause, shall state the points on which it wishes to hear the parties anew.”

This Court constantly grants rehearings without stating points. Are such orders nullities ?

I apt convinced the defendant in rule is protected by our order granted within the six judicial days, and, therefore, dissent from the opinion and order herein.


text:
    No. 8417.
    Police Jury Parish of Jefferson, Right Bank, vs. J. B. Arleans.
    A person cannot be arrested under a warrant issued by a justice of the peace charging him with violating an ordinance of the Police Jury of the Parish of Jefferson, relative to juries, and sentenced to fine, and, in default of payment, to imprisonment by such justice.
    He cannot be thus summarily punished. Heither the law organizing the parish, nor the general laws of the State authorize such a proceeding. A party, for such an offense, can only be proceeded against by information, or indictment, or civil suit provided in the statute.
    APPEAL from the First Justice’s Court, Parish of Jefferson, Right Bank. Berthoud, 3d Justice of the Peace, acting in place of Gardere, 1st Justice of the Peace, absent.
    N. 8. Ga/rlisle, for Plaintiff and Appellee:
    1. Proceedings by affidavit, warrant and arrest, to recover flues for violation of municipal ordinances, are neither, strictly speaking, civil or criminal in their character, hut, paw taking of the nature of both, are called quasi criminal. Dillon, Corp., 3d Ed. § 411.

      2. 'Where tlie legislature has conferred authority on a municipal corporation over a certain subject, the act of the corporation will be supported by every fair intendment and presumption. Their ordinances are entitled to a reasonable construction, and their terms should not be strictly scrutinized for the purpose of mating them void. Dillon, Corp., § 420, notes.
    The power to pass ordinances and appoint offioers to enforce them, includes all necessary power to malee sucli ordinances effectual; hence, municipal corporations have implied powers to impose reasonable and proper fines upon those who violate their ordinances. Boone, Corp., § 292.

      A. JEJ. Billings, for Defendant and Appellant:
    Proceedings by affidavit, warrant and arrest to recover fines for violation of police jury ordinances, are unauthorized by law ¡ tbe proper proceeding is by civil suit, brought by the Distiict Attorney, in the name of the Parish, for its benefit. Acts 1834, Sec. 7, p. 18; 33 A. 983.
    The power to enforce a municipal ordinance by imprisonment in default of payment of a fine must be expressly given. 14 A. 37; 30 A. 497; Dillon on Municipal Corporations, 3d Ed., § 3D3, and note.
   Tlie opinion of tlie Court was delivered by

Todd, J.

Tbe defendant is appellant from a judgment condemning him to pay a fine of ten dollars, and in default of its payment, to be imprisoned for ten days in tbe parish prison.

He was charged, by affidavit, with the violation of an Ordinance of tlie Police Jury of said Parish relative to ferries ; that is, in ferrying persons across the river for hire, in contravention of said Ordinance. A warrant was issued by the Justice of the Peace before whom the complaint was made, -under which he was arrested and brought before the Justice, and sentenced as stated.

The Ordinance offered in evidence directed such a proceeding and punishment. It is, however, urged by the defendant, that this Ordinance was unwarranted by law, and the proceeding complained of under it, was therefore, illegal, null and void.

The authority of the Police Jury to pass the Ordinance is claimed to be derived from an Act of 1834, to define the authority, duties and functions of the Police Jury of the Parish of Jefferson, and Sec. 2750 of the Revised Statutes.

We fail to perceive any authority, conferred by either of the Acts cited, or by any other law, on this Police Jury, to justify the passing of an ordinance prescribing- such a proceeding.

The first Act referred to, whilst it confers authority to pass regulations and ordinances to promote the peace and welfare of the Parish, and to establish a police to enforce said regulations and ordinances, and whilst providing for punishment by fine, expressly declares that the same may he recovered by suit, brought in the name of the Parish, before the Parish Court, in any Justice of the Peace. Acts of 1834, p. 18-

Sec. 2750, Rev. Sfcat., gives the power to tho Police Juries of all the Parishes in the State, to pass all ordinances deemed necessary, relative to roads, bridges and ditches, and to impose fines and penalties to enforce the same; hut, it makes special provision that such fines and penalties are to he recovered and enforced by indictment or information in the name of the State, or by ordinary process before any court of competent jurisdiction.

The law is silent as to any other process or remedy. Police Juries can exercise such powers only as are clearly delegated to them, or snch as inay he required to carry into effect tho powers expressly conferred. There being no such delegation of power in this case to warrant the proceeding complained of, the ordinance is null and the proceeding and sentence illegal. Town of Plaquemines vs. Ruff, 30 A. 497; 14 A. 37: Dillon Mun. Cor. §351.

It is, therefore, ordered, adjudged and decreed, that tho judgment appealed from be annulled, avoided and reversed, and the proceedings quashed, and tho defendant, discharged; plaintiff to pay costs of both Courts.

Levy, J., absent.