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    No. 11,960.
    Leon J. Carroll vs. Succession of D. R. Carroll and Charlotte L. Carroll, and the Heirs thereof.
    Collation is based upon the theory, that the person collating has withdrawn from the parent money or property which otherwise would have gone to swell the mass of the succession; it can not apply to amounts which had never been actually received; so where it is shown that a father in a marriage contract declared that he then and there settled a certain amount of dowry upon his daughter, and it is shown subsequently that no such settlement of dowry had been made, the heir will not be held to collate that which she had never received. Art. 2329, C. C., does not apply when there was no reality in act of donation.
    Donations inter vivos must be accepted in precise terms; in order that the heir be held as a donee and ordered to collate, it must be shown that she was a party to the alleged act between her parent and her husband and accepted the donation.
    APPEAL from the Civil District Court for the Parish of Orleans, Bightor, J.

      B. B. Howard for Plaintiff, Appellee.

      Carroll & Carroll for Mrs. T. W. Castleman, Defendant, Appel lant.

      Clegg & Quintero for Charles V. Carroll, Defendant, Appellee.

      Dart & Kernan for Mrs. Proehaska and others, Defendant, Appellee.

      E. M. Hudson for Mrs. Airey and Mrs. Janin, Defendants, Ap pellees.
    Argued and submitted March 24, 1896.
    Opinion handed down May 4, 1895.
    Rehearing refused June 1, 1896.
    Mrs. Charlotte L. Bendy, wife of Daniel R. Carroll, died in April, 1892, leaving an estate in community with her husband. The latter was appointed administrator of her succession. . He himself died in February, 1894. The heirs of the husband and wife are the same persons.
    Mrs. Janin, one of the heirs, answered, setting up that there were collations due by different heirs, claiming as follows:
    Of Mrs. Airey, three thousand three hundred dollars; of Mrs. Thomas, three thousand three hundred dollars; of Mrs. Janin, three thousand three hundred dollars; of Mrs. Proehaska, seven thousand nine hundred and eighty-two dollars and twenty-one cents; of Mrs. Nichols, nine thousand one hundred and twenty-four dollars and thirty-six cents; of Charles V. Carroll, three thousand three hundred dollars; of Leon J. Carroll, three thousand three hundred dollars; of Miss Emma MeLearn, one thousand one hundred and forty dollars; of Miss Blanche MeLearn, one thousand one hundred and forty-five dollars; of John G. MeLearn, one thousand one hundred and thirty-five dollars and forty-four cents; of Thomas L. Carroll, three thousand three hundred dollars; of Mrs. Ann Castle-man, two hundred and fifty dollars and twenty-five thousand dollars.
    Mrs. Nichols, Mrs. Proehaska, Mrs. Thomas, Charles Y. Carroll and the MeLearn heirs all made the same answer substantially, claiming that the various heirs should be made to collate for the amounts for which they were respectively chargeable, and each specially charging that Mrs. Castleman was chargeable as claimed by Mrs. Janin.
    Mrs. Castleman denied that she was indebted to the successions or liable to collate therein to an amount greater than two hundred and fifty dollars. She averred that Mrs. Virginia Carroll, widow of Thomas L. Airey, was indebted to the succession in the sum of twenty thousand dollars, the same having been advanced and donated to her by her father as set forth in the marriage contract between her and her husband, by notarial act of November 3, 1860; that she further owes two hundred and fifty dollars advanced to her by the deceased, and the further sum of three thousand and fifty dollars advanced to her by the executors; that she should be made to collate the sum of twenty-three thousand three hundred dollars in the partition.
    She averred as to the best of her knowledge and belief that Charles Y. Carroll was indebted in the sum of seventy-eight thousand eight hundred dollars for gifts, donations and advances made to him by D. R. Carroll and his executors, in different amounts and dates set out in the answer which he should be made to collate.
    She also averred that the following named heirs were liable to collation : Thomas L. Carroll for fourteen thousand two hundred and eighty-four dollars and ninety cents; Mrs. Thomas for three thousand three hundred dollars; Mrs. Janin for three thousand three hundred dollars; Mrs. Proahaska seven thousand nine hundred and eighty-two dollars; Mrs. Nichols nine thousand one hundred and twenty-four dollars and thirty-six cents; Miss Emma McLearn one thousand one hundred and forty-five dollars; Miss Blanche McLearn one thousand one hundred and forty-five dollars; John G. McLearn, Jr., one thousand one hundred and thirty-five dollars and forty-four cents.
    The claim advanced against Mrs. Castleman for twenty-five thousand dollars is charged as being “the value of a certain plantation known as the Coosa plantation, in the parish of Concordia,” believed and averred to be a disguised donation made to her by her father, D. R. Carroll, during the lifetime of her mother under form of a sale to her husband, Thomas W. Castleman, and estimated to be worth that amount, twenty-five thousand dollars.
    The District Court rendered a judgment “that the following named heirs herein collate by taking less for the several amounts received by them from their father or through the executors of the estates of their father and mother, to-wit: Leon J. Carroll, for the sum of three thousand three hundred dollars; Charles V. Carroll, for the sum of three thousand three hundred dollars; Mrs. Mary R. Prochaska, for the sum of seven thousand nine hundred and eighty-two dollars and twenty-one cents; John G. McLearn, for the sum of • one thousand four hundred and thirty-five dollars and forty-four cents; Mrs. Clara Janin, for the sum of three thousand three hundred dollars; Mrs. Anna Castleman, for the sum of two hundred and fifty dollars; Miss Blanche McLearn, for the sum of one thousand one hundred and thirty-five dollars; Miss Emma McLearn, for the sum of one thousand one hundred and forty-five dollars; Mrs. Virginia Airey, for the sum of three thousand three hundred dollars; Thomas L. Carroll, for the sum of fourteen thousand two hundred and eight-four dollars and ninety cents; Mrs. Stella Nichols, for the' sum of nine thousand one hundred and twenty-four dollars and thirty-six cents; Mrs. Louise Thomas, for the sum of three thousand three hundred dollars.”
    It is further ordered, adjudged and decreed “that the demands of Mrs. Anna Castleman against Mrs. Virginia L. Airey, against Charles V. Carroll and against her co-heirs herein, as set out in her plea and answer, filed on the’ 13th of November, 1894, save and except as in this decree above recognized and fixed, are disallowed and rejected.
    “That the demands of the several heirs as against Mrs. Anna Castleman for the value of property received by her during the lifetime of her father, D. R. Carroll, in addition to the amount of two hundred and fifty dollars hereinbefore fixed, be recognized as due; and that the said Mrs. Anna Castlema'n do collate by taking less in the sum of twelve thousand five hundred and forty-five dollars and sixty-three cents; together with the costs of this court, caused by this demand.
    “ That the notary public heretofore named for that purpose do proceed with the final partition of the proceeds of the sales herein-before made by order of this court, and of the other effects of the estates of D. R. Carroll and wife among the heirs thereof, in accordance with the la.w, and this decree recognizing the rights and interests of the several heirs subject to the collations herein decreed to be as follows: Mrs. Louise Thomas, wife of S. O. Thomas; Mrs. Anna Castleman, wife of T. W. Castleman; Mrs. Stella Nichols, wife of Nichols; Mrs. Clara Janin, widow of A.- T. Janin; Mrs. Virginia Airey, widow of T. L. Airey; Mrs. Mary R. Prochaska, Leon J. Carroll, Thomas L. Carroll and Charles V. Carroll, each for one-tenth, and Misses Emma and Blanche McLearn and John G. Me-Learn, grandchildren, each for one-third of one-tenth part of said estates.”
    Mrs. Anna Castleman appealed from this judgment. The appellees answered the appeal, praying that the judgment be affirmed, except as to an amendment asked to be made in their favor, increasing by one thousand dollars, with interest from the date of the opening of the succession of D. R. Oarroll, the amount which Mrs. Castleman is held bound to collate.
   The opinion of the court was delivered by

Nicholls, C. J.

Mrs. Anna Castleman claims that her sister, Mrs. Thomas L. Airey, should be held to collate twenty thousand dollars.

On the 3d of November, 1860, a marriage contract was entered into between Miss Virginia Carroll, daughter of D. R. Oarroll, and Thomas L. Airey. The father intervened in the act, declaring that he thereby settled upon the intended wife, as dowry, the sum of twenty thousand dollars. Thomas L. Airey in the act acknowledged to have received said amount from D. R. Oarroll in ready money then and there paid, and consented to remain charged with the same.

On the 4th of October, 1892, Airey and wife and D. R. Oarroll appeared before Samuel Flower, notary public, and two witnesses, and an act was passed in which, after reciting the marriage contract above mentioned and the acknowledgment therein of Thomas L. Airey that he had received the twenty thousand dollars settled as dowry, the parties severally declared “that by mutual consent and agreement by and between all the said parties the said sum of twenty thousand dollars had been returned and paid back by the said Thomas L. Airey to the said D. R. Oarroll, who acknowledged the receipt thereof; that accordingly the donation made by the said D. R. Oarroll to said Virginia Carroll of the said sum of twenty thousand dollars dowry is hereby forever revoked and dissolved, and the settlement of dowry made in the said marriage contract is hereby declared to be null and void, and the said donation and settlement of dowry are hereby settled.”

In answer to interrogatories on facts and articles propounded to her, Mrs. Thomas L. Airey declared “the money in question, twenty thousand dollars, was returned long before (before the date of the act passed before Samuel Flower) to my father by Mr. Thomas L. Airey — in fact it was returned to my father by Mr. Airey on November 3, 1860, immediately after the signing of the marriage contract before Oharles Springer, notary public. My father had handed over the twenty thoasand dollars in currency notes, and after the signing of the marriage contract Mr. Airey returned the identical money to my father * * * This was done in my presence before leaving the place the signing took place.”

The opponent, Mrs. Castleman, invokes Art. 2329 of the Oivil Oode against the defence set up on behalf of Mrs. Airey. She also calls to our attention the fact that at the date of the act before Flower, the wife of D. R. Oarroll was no longer living, and contends that D. R. Carroll was powerless to revoke the settlement of dowry so far as the succession of Mrs. D. R. Oarroll was concerned. Art. 2329 of the Oivil Code is as follows:

“ Every matrimonial agreement can be altered by the husband and wife jointly before the celebration of marriage, but it can not be altered after the celebration.”

We do not think that the provisions of that article have any application to the matter now before the court. It is true that in the act before Flower the parties declare that the donation made by the father in the marriage contract was thereby “revoked;” but the question is one of the reality of the original donation rather than one as to its revocation, and whether or not twenty thousand dollars passed or was intended seriously to pass from Daniel R. Oarroll to Thomas L. Airey for or on account of his wife. Laurent, in his work Du Contrat de Mariage (Laurent Code Oivil, Vol. 21), after discussing at some length the irrevocability of marriage contract, says on p. 110, Sec. 86: “ Le contrat de mariage contient parfois des énonciations fausses; il constate un apport qui n’a pas été fait, il donne quittance d’une dot qui n’a pas été payée. Faut-il appliquer, dans oes cas, le principle de l’immutabilité des conventions matrimoniales et maintenir les déclarations qui s’y trouvent jusqu’a ce que les parties intéressées les aient détruites par l’inscription en faux ? A notre avis, l’article 1395 est hors de cause, et on a tort de l’invoquer; on ne déroge pas a une convention par la convention méme. La véritable question porte sur une difficulté de preuve. L’acte fait-il foi jusqu’a l’inscription de faux de l’apport et du payement de la dot ? La négative est certaine; elle résulte des principes qui régissent la force probante des actes authentiques. L’acte fait foi, jusqu’a inscription de faux, du fait matérial de la déclaration, il ne prouve que jusqu’a preuve contrairela vérité de la déclaration. On peut done soutenir sans devoir s’inscrire en faux, que l’apport constaté au contrat de marrage n’a pas été fait, que le payement de la det a été fictif.

In Dalloz & Vergé “ Code Oivil Annoté,” we find the following authorities on that subject: Dalloz & Vergé, under Article 1395,C. N. No. 96: “ De ce que le contrat de mariage est irrévocable, il ne suit nullement qu’on doive réputer sinceres et vraies toutes les énonciations qu’il contient. Il peut étre argué de simulation par les tiers, et la preuve contraire recevable soit par témoins, soit par un ensemble de présomptions graves, précises et concordantes (Jurisprudence Générale Contr. de Mariage 381).

No. 98. * * * “Est contestable par les autres enfants la mention portée dans le contrat de mariage de l’un d’eux, et qui désigne le beau-pére de la future comme ayant repu la dot constitueé á celleci, quand réellement il n’a rien repu et qu’il n’a été constitué aucune dot, et la preuve peut résulter, entre autres présumptions, d’une contre-lettre non revétue des formalités exigées par les Articles 1395 et 1396 Gode Civil.”

Req. 5, Janv., 1831. Jurisprudence Générale. Contrat de Mariage, 382.

No. 99. “Une cour a pu, sans porter atteinte á l’immutabilité des conventions matrimoniales, dispenser du rapport á une succession une dot constituée par contrat de mariage si le payement de cette a été simulé.”

Req. 13 Juin, 1831. Jurisprudence Générale. Contrat de Mariage, 383.

No. 100. “Si les énonciations contenues au contrat de mariage sont contestables par simulation, la preuve de la simulation ne résulte pas nécessairement de la contre-lettre postérieure du mariage qui reconnaítrait la fausseté des énonciations.” Jurisprudence Générale. Contrat de Mariage, No. 384. Dalloz & Vergé under Art. 1122, C. N.

No. 27. * * “La déclaration du défunt qu’il n’a pas versé et qu’il était dans l’impossibilité de payer la somme par lui donnée á terme á l’un de ses enfants dans son contrat de mariage est opposable aux autres enfants, qui ne peuvent, des lors, exiger le rapport de la somme donnée lorsqu’ils n’articulent contre cette déclaration aucuns faits partieuliers de fraude.” Req. 20 Janvier, 1864, D. P. 65 1222. Dalloz & Vergé under Art. 1438, C. N., No. 56.

“En presence de la déclaration dn défunt qu’il n’a pas payé la somme par lui donnée á terme a l’un de ses enfants par contrat de mariage, il n’y a pas lieu de demander le rapport de cette somme.”

In the case at bar there is neither question of fraud involved nor of interference with the rights of forced heirs. The heirs other than the opponent recognizes that the money was really returned to D. R. Carroll, as stated by Mrs. Airey in her testimony, and the return of the money was evidently before the celebration of the marriage of Airey to Miss Carroll. We are of the opinion that the District Court correctly held Mrs. Airey not liable for the collation of this amount. Collation is based upon the theory that the person collating had withdrawn from the parent money or property which otherwise would have gone to swell the mass of the succession. It would be gross injustice to hold Mrs. Airey liable for an amount which neither she nor her husband had actually received. Mrs. Castleman moved to strike out a portion of the answers of Mrs. Airey to interrogatories on facts and articles, on the ground that they were not responsive to the questions asked; that she was seeking to prove by parol matters and things which could only be shown by written evidence over the signatures of D. R. Carroll and wife; that the statements were in conflict with the statements and acts of Mrs. Airey and her husband in certain acts of sale, and that Mrs. Airey was estopped thereby from claiming or asserting that the twenty thousand dollars dowry had ever been returned. We think the action of the court in over-ruling the objection was correct. Mrs. Castleman herself resorted to interrogatories on facts and articles, and she could not object to answers she had herself solicited. When Mrs. Airey did answer, she had the right, under Art. 353 C. P., in doing so, to state any fact tending to her defence, provided they were closely linked to the fact on which she was being questioned. We think her answers were so closely linked and they were admissible. Mrs. Castleman overlooked the fact that all the parties themselves to the original act, did, subsequently, by notarial act, recite the fact of the return of the money referred to as having been received as dowry, and that one of those parties was her father, through whom she was claiming as an ordinary heir. Mrs. Airey had a perfect, right, in her answers, to fix the time of the return of the money. There was nothing done by Mrs. Airey in the acts referred to which estopped her from setting up the return of the twenty thousand dollars by her husband to her father.

Mrs. Oastleman claimed in the District Court that Charles Y. Carroll should be held to a collation of seventy-eight thousand eight-hundred dollars. - In this court “ it is submitted that he should be condemned to pay twenty-two thousand four hundred and fifty-nine dollars.”

In the brief filed in her behalf, it is said: “ We have no evidence but the answers of Charles Y. Carroll to interrogatories on facts and articles. Now what does he admit he has received? All of his-answers must be read together to get a clear idea of the situation and of bis manner of replying. They are not full, frank, or explicit, and the interrogations, to a large extent, should be taken for confessed.”

We have compared the answers and questions, and while some portions of the latter have not been covered, we think that they have been substantially responded to in respect to all material points. Had more definite answers been desired, proceedings to-that effect could have been taken. We discover no purpose to evade the questions. Our attention having been directed specially to a-statement made at one time by Mr. Charles V. Carroll, that the agreements between himself and his father in regard to the profits of - theEscobal factory had been made in January, 1887, and to a subsequent admission by him, to the effect that the written acknowledgment of his father touching that matter, which he produced in court, and which was dated January, 1887, had been, in reality, made out and signed in 1892, we do not attach the same importance to this difference of statement that counsel does. We think the paper made-in 1892 was intended as an acknowledgment or recognition of an antecedent agreement made in 1887. We do not think that the answers to the questions have been successfully attacked. This conviction carries with it an affirmance of the judgment of the District Court as to this particular collation.

The claim of the different heirs that Mrs. Oastleman should be charged with a collation of twenty-five thousand dollars as the value of the Coosa plantation, alleged to have been a disguised donation to her from her father in the form of an onerous contract of sale to her husband, T. W. Oastleman has caused to be brought before us an immense record, a large part of which requires no special allusion to under the conclusions which we have reached.

On December 31, 1879, Daniel R. Carroll sold to his son-in-law T. W. Castleman, the Coosa plantation in the parish of Concordia, for ■eight thousand five hundred dollars; two thousand dollars being -cash and the balance represented by two promissory notes of three thousand dollars each, secured by special mortgage on the property.

On the 19th of December, 1882, T. W. Castleman executed a special mortgage on this property in favor of D. R. Carroll, to secure the payment of two promissory notes, each for five thousand dollars.

On January 5, 1886, T. W. Castleman sold the plantation to Stanley O. Thomas (the husband of a sister of Castleman’s wife) for ■eight thousand dollars cash.

On the 3rd of March, 1892, S. O. Thomas sold the property to W. H. Hudnall and Mrs. E. Castleman (the wife of a brother of T. W. Castleman) for nine thousand five hundred dollars; five thousand dollars cash and the balance of four thousand five hundred dollars represented by two promissory notes, secured by special mortgage. T. W. Castleman appeared as the agent of Thomas in- making this sale.

On January 7, 1886, D. R. Carroll executed a receipt for the sum of eight thousand eight hundred and eighty-eight dollars as “ being amount due him in full on two promissory notes for the sum of three thousand dollars, each dated December 31, 1879, due and payable one and two years after date, with eight per cent, interest from date until paid; said two notes are secured by mortgage on the Coosa plantation, and were given to secure balance of purchase price by act passed before N. B. Trist, notary public, on the 31st day of December, 1879. This receipt is given on account of my not being able to find said notes at this time to deliver to him.

On the 29th of February, 1888, D. R. Carroll and T. W. Castleman made affidavit before Trist, Notary, to the following effect:

“ We, the undersigned, Thomas W. Castleman and Daniel R. Carroll, do on oath, declare that the two notes made by said Castleman to his own order and by him endorsed, dated April 5th, 1882, each for the sum of five thousand dollars, payable respectively at the Canal Bank, on the 15th of December, 1882, and 1st of January, 1883, and secured by mortgage on the hereinafter described property in favor of said Oarroll, have been paid and satisfied, but that the same have been mislaid and can not on that account be produced, and the said Oarroll, as the last holder and owner thereof, and as the party in whose hands the said notes were paid does hereby authorize and empower the recorder of the parish of Concordia and Tensas to erase and cancel from the records of their offices the mortgage which to secure the payment of said notes the said Oastleman granted in favor of said Oarroll by act before N. B. Trist, notary public, in New Orleans, dated December 19, 1882, on the following described property: (Here follows a description of the property mortgaged, being the Ooosa plantation aforementioned, several lots in the town of St. Joseph and Tensas parish, and all the right, title and interest of T. W. Oastleman in the succession of T. L. Oastleman.)

On the 12th January, 1889, D. R. Oarroll obtained a judgment in the District Oourt for the parish of Tensas, against Thomas W. Oastleman for the sum of fifteen thousand dollars. On the 9th of January, 1894, D. R. Oarroll transferred, for five hundred dollars, his interest in said judgment (D. R. Oarroll’s wife having in the meantime died) to Anna Oastleman, wife of T. W. Oastleman.

On October 9th, 1889, Mrs. Anna Oastleman, on.an allegation that her husband’s affairs were in a disordered condition, resulting from the disasters which had lately befallen the country, and that since his marriage she had received in cash from her father the sum of one thousand dollars, the same being a manual gift which her said husband had used in his planting business, obtained a judgment of separation of property from her husband, and a dissolution of the community, and a monied judgment against him for nine hundred and thirty dollars. From the evidence it appears that Stanley O. Thomas acted as the commission merchant of Thomas W. Oastleman for the Ooose plantation, from the time of his purchase of the same up to the sale of the plantation, on March 3, 1892, by Thomas himself to Hudnall and Mrs. E. Oastleman — the property though standing in the name of S. O. Thomas being really that of Oastleman, as will be afterwards mentioned. That Thomas W. Oastleman, in addition to owning the Ooosa plantation, was the lessee of a plantation in the parish of Madison, known as the “ Mound plantation,” and that D. R. Carroll was the commission merchant of Oastleman in respect to the Mound plantation business; that the ten thousand dollars mortgage which has been referred to was given to secure D. R. Oarroll against Oastleman’s indebtedness to him as arising from that business, and that the fifteen thousand dollars judgment against Castle-man was a judgment based on indebtedness to Carroll by Castleman on account of the same business.

It appears that Castleman in the course of his business became indebted to his factor S. O. Thomas, and that the transfer to the latter, though apparently a sale was in reality a security to Thomas for his claim. The property was ostensibly bought by Thomas for eight thousand dollars cash. He says he gave his check for that amount payable to the order of Castleman; that Castleman passed this check by endorsement over to D. R. Carroll; that Carroll gave him (Thomas) his own check for the same amount. Prior to that time, Castleman had obtained from D. R. Carroll possession of the two mortgage notes which represented the credit portion of the purchase of the Coosa plantation from Carroll to himself, and had handed them to Thomas as-collateral, to secure his indebtedness to him. Thomas held the notes at the time of the transfer to him of the plantation, but they were at that time misplaced. They were finally delivered to Castleman. Thomas wrote out a counter-letter when the property was placed in his name, in which he recognized that he held it only by way of security. When Thomas sold the property in 1892 to W. H. Hudnall and Mrs. E. Castleman, he received out of the price four thousand dollars cash, which he .credited to Castleman’s indebtedness, and he turned over the two mortgage notes to Castle-man himself, one thousand dollars of the price went to Castleman’s brother on account of some relations between the two. Thomas subsequently purchased these two notes from Castleman for himself and some third person not named. According to bis testimony he did so, because Castleman told him he wanted to buy a piece of property, “the home (said the witness) in which he now lives.”

Thomas says that when the property was transferred to him, he held the original two notes representing the purchase price of Coosa and showed them to D. R. Carroll, who told him that Castleman had paid no portion of the purchase price of that plantation. A large part of the record brought up consists of letters which passed between Castleman and D. R. Carroll, both before and after the sale of the Coosa plantation to Castleman, which conclusively establish, in the opinion of the heirs advancing the claim against Mrs. Castleman when taken in connection with the other testimony in the case, the fact that the act of sale of the Ooosa plantation to Oastleman was a disguised donation from D. R. Oarroll to Mrs. Oastleman, through her husband. There was unquestionably a desire on the part of the father, prior to the sale to the husband, to make a donation of the property to the daughter, and an undoubted willingness on the part of the son-in-law to receive it,.though not in the form which Oarroll had proposed this should be done. Oastleman, himself, suggested to Oarroll that a sale shouid be made to himself, and the notes should be sent or given to the wife; that he would then aeknowlledge himself indebted to his wife for the amount of the notes, or a larger amount if it were though advisable; Oastleman’s object evidently being to own the property and to hold it protected against claims against himself, which might thereafter arise by recording a mortgage claim against himself in favor of his wife. Oastleman testifies that the matter was abandoned in consequence of advice received from his iriend, Judge Spencer, and that thereupon an actual sale of the property was made to him, though, as he says, for an amount considerably less than the value of the property, Oarroll saying he had .done as much for his other sons-in-law. He says he promised Carroll that he would not sell the place without his consent; also, that he would give his wife the benefit of any excess in value in the place should he sell it. There, are in a number of letters written by Oastleman to Carroll after the, sale, expressions which give rise to a strong belief that there was some kind of an understanding between these two parties that the sale to Oastleman should be made to enure ultimately to the benefit of the wife. Oastleman speaks of the property frequently as a gift, and refers to his wife in that connection, and Carroll obviously was of the opinion that he was benefiting his daughter. Oastleman says that these references by him to the sale as a gift, was by reason of the fact that Oarroll had sold him the plantation below the actual value on which he placed an exaggerated estimate, and that his relations were such with his wife’s father that he had to humor him and deal with him in a way which he admits was not up to an exact standard of right. He says he was a very obstinate and peculiar man, and he had to act accordingly. Counsel of opposing heirs charge Oastleman with duplicity and double dealing in this matter; they say he for years lulled D. R. Oarroll into the belief that he was in good faith holding the property for his wife, protected by a recorded claim, while in point of fact he was attempt-lug to hold it exclusively for his own benefit, but at the same time they take the position that the act of sale was a disguised ■donation from the father to the daughter. Oastleman testifies that the receipts given by Carroll were true; that he actually paid the four notes referred to therein, and he is corroborated to some extent by his brother as to certain payments made by him upon the purchase price of Coosa. He says that he was under the impression that notwithstanding the payment of the price itself, the notes would still be ■outstanding and susceptible of being legally used as collateral for his ■debts; that Thomas, as well as himself, was of that opinion, and that when D. R. Carroll offered to make endorsements upon the notes of partial payments as made, he, Castleman, objected, stating to him that by such endorsements the notes could no longer be used for that purpose; that he obtained those notes from Carroll for that express purpose, leaving the payments of the price to be evidenced toy receipts. It- might be conceded that if Castleman, instead of toeing a son-in-law of D. R. Carroll had been his son and presumtive heir, and a claim were being made against him as an heir for collation, a strong case would have been presented in support of that ■claim, but the claim for collation is directed not against Castleman, but against his wife, for and on account of transactions between him and her father. From that standpoint matters assume a very different shape.

There is no evidence going to show that Mrs. Castleman was either directly or indirectly a party to the sale or act in question, or that she consented to accept the property at all, still less with obligation to collate in any way for the same. On the contrary, ■there is evidence that she positively declined to do so. Certainly neither her father nor her husband, nor both together could force her •by any. agreement between themselves to assume obligations to which she gave no consent! During the period that the property stood in the name of ■ her husband upon the public records, it was subject to become, as in fact it did become liable for the payment of her. husband’s debts, with no power of protection on her part against such a result. Her own father, after the sale in question, took a special mortgage on the property to secure a debt of ten thousand - dollars due him by the husband, and Thomas, to whom it was afterwards transferred,- recevied out of the price of the sale made by him to Hudnall and Mrs. E. Castle-man four thousand dollars wherewith to pay a debt unquestionably not that of the wife, but of Thomns W. Castleman. Prior to this, Thomas had received additionally six thousand dollars, arising from moneys paid on insurance policies covering buildings and cotton on the property which had been destroyed by fire, which amount was also applied by him to the payment of debts due him by the husband. Assuming as a fact, that the husband did deceive the father, and that there was a secret understanding between D. R. Carroll and Castleman, that the sale was a simulation, and that the real character of the act was an intended donation to the daughter, the penalty for this deceit could not be visited upon the daughter, who was not a privy to it.

We are not prepared to say that the sale was a simulation or a disguised donation to his daughter, though I). R. Carroll, may have intended that it should enure indirectly to some extent to her benefit. We are inclined to think that the sale to Castleman was a real sale, .but one made at a low price to him. There was no necessity for disguise in this transaction. D. R. Carroll was a man of large wealth; there existed no reason why he should not have made a donation to his daughter of the full value of the place entirely freed from collation, if he thought proper so to do. There is no claim or pretence that the rights of forced heirs have been interfered with. The question is one of simply ordinary collation. Carroll had a legap right to give the property to the daughter; she had the'legal right to receive it.

There is, therefore, no ground for applying in this case any question of donations in favor of a person incapable of receiving through dispositions, whether disguised under the form of an onerous contract, or in the name of persons interposed. The case calls for no presumption that the son-in-law is an interposed person. Were he such a person, the act, under Art. 1491, C. C., would be a nullity, not one giving rise to collation against the wife, no party to it. Neither is there any ground for the application of the provisions of Art. 1248, C. C., which declares that “the advantage which a father bestows upon his son, though in any other manner than by donation or legacy, is likewise subject to collation. Thus, when a father has sold a thing to his son at a very low price, or has paid for him the price of some purchase, or has spent money to improve his son’s estate, all that is subject to collation.”

That article, in the absence of any question of interposition, does not extend to a sale made between a man and his son-in-law.

Though we have no article in the Louisiana Code corresponding to Art. 849, O. N., which is to the effect that:

“Les dons et legs faits au conjoint d’un époux suecessible, sont réputés faits avec dispense du rapport.
“Si les dons et legs sont faits conjointement á deux époux, dont l’un soulement est suecessible, celui-ci en rapporte la moitie, si les dons sont faits a l’epoux suecessible, il les rapporte en entier,’-’ we know of no text of the law making a wife liable to collation indirectly for gifts or donations to her husband. Succession of Landry, 25 An. 183; Ardis vs. Theus, 47 An. 1437. We do not here refer to cases in which the rules of interposition would be properly applied. There being no reason for applying those rules here, the particular form in which Carroll manifested his intention or desire to-benefit his daughter, if such he had, would tend rather to show that he desired to so shape matters as to exempt her legally from collation, than that he was seeking 'through improper methods to bring about a similar result. It is a significant fact that nowhere in the books or papers of the father is to be found any charge against the daughter.

In France the decisions generally ascribe resort to an act in the form of an onerous contract, as evidencing an intention to exempt from collation the party benefited by the act. Thus we find in Dalloz & Vergé under Art. 843, C. N., the following:

No. 85. “ Suivant une opinion le seul fait de déguiser la donation emporte dispense de rapport.” Grenoble, 6 Juillet, 1821; J. G. Success, 1120; Lyon, 22 Juin, 1825; Ibid et Dispos entre vifs, 4619;, Agen, 4 Mai, 1830; Ibid et Dispos entre vifs, 614; Caen, 26 Mars,. 1833; J. G. Success, 1120; Reg, 9 Mars, 1837; Ibid, et Dispos entre vifs 1633; V. autor en ce sens J. G. Succ. 1120.

No. 87. II en est spécialement ainsi de la libéralité déguisée sous: la forme, soit d’une vente d’immeubles.” Rennes, 10 Fevrier, 1818; J. G. Succ. 1120; 1 Toulouse, 7 Juillet, 1829; Ibid, Bordeaux, 20 Juillet, 1289. Ibid.

No. 97. “Lorsquela donation est déguisée la dispense de rapport. n’a pas besoin d’étre exprimée dans.les formes de 1’Art. 919; elle peut résulter de toute manifestation quelconque.” Req. 9 Mars, 1837, J. G. Success, 1122, et Dispos entre vifs, 1633.

Opponents claim, however, that Mrs. Castleman ultimately derived benefit from the sale of the Coosa plantation; they say she ultimately received from the price of the last sale thereof the money with which certain property which they say stands in her name in New Orleans, was purchased. That by accepting that money she made herself privy to the antecedent acts between her father and her husband looking to conferring upon her a benefit through the sale of the Coosa plantation. There is no necessity of examining into what the legal situation would be were such the case. We find no evidence in the record to establish the fact itself.

We think the judgment of the District Court condemning Mrs. T. W. Castleman to collate twelve thousand five hundred and fifty - five ■dollars and sixty-three cents for. the Coosa plantation is erroneous. We think the various heirs should pay legal interest upon all sums received by them prior to the death of D. R. Carroll, and for which they are held to collate from the date of his death, and that the different heirs should also pay legal interest on all amounts received by them since the death of D. R. Carroll from the dates upon which the amounts were respectively received. We see no reason for passing at present upon the rights and interests of parties in the judgment obtained by D. R. Carroll against Thomas W. Castleman; that matter is left open for future adjudication and action. We see no ground for holding Mrs. Castleman liable to collation for one thousand dollars as prayed for in the motion of appellees to amend the judgment. That claim seems to have originated in this court; we find no allusion to it in the pleadings in the District Court, and no argument touching it was made in this court. We do not know upon what it was based, possibly it was upon the amount which formed the basis of the judgment of separation of property between Castleman and his wife, but we do not feel at liberty to deal with that •question as matters stand.

For the reasons herein assigned, it is ordered, adjudged and decreed that the judgment of the District Court, in so far as it “adjudges and decrees that the demands of the several heirs as against Mrs. Anna Castleman for the value of property received by her durngthe lifetime of her fathei D. R. Carroll, in addition to the amount •of two hundred and fifty dollars hereinbefore fixed, be recognized as due,” and as it “ ordered and decreed that the said Mrs. Anna Castleman do collate by taking less in the further sum of twelve thous- and five hundred and fifty-five dollars and sixty-three cents, together with the costs of this court caused by this demand ” be and the same is hereby annulled, avoided and reversed.

. It is further ordered, adjudged and decreed that the different heirs in the successions of D. R. Carroll and wife be and they are hereby decreed to owe legal interest upon the various amounts which they received prior to the death of D. R. Oarroll, and for which they have been held to collate from the date of the death of the said D. R. Carroll; and legal interest upon the amounts which they have received since the death of D. R. Carroll, from the dates of the respective receipts of said amounts.

It is further ordered, adjudged and decreed that the right of the heirs to claim from Mrs. Anna Castleman, by way of collation, the amount of one thousand dollars, which they set up in their motion to amend the judgment appealed from, be and the same is received and left open for future examination, as are also the rights of all parties in and to and in respect to the judgment obtained by D. R. Carroll against Thomas W. Castleman.

It is further ordered, adjudged and decreed that the judgment appealed from, except in so far as the same is herein annulled, avoided and reversed and herein amended, be and the same is hereby affirmed. Appellees to pay costs of appeal. Costs in court below to abide the final decision in the cause.


source: Caselaw Access Project

author: Miller, J. McEnery, J.

license: Public Domain

text:
    No. 11,943.
    Succession of Mrs. Henrietta Kaiser.
    On Motion to Dismiss.
    when the subjects oí a judgment are distinct acquiescence in one will not defeat the appeal as to the judgment on other and distinct demand.
    On the Merits.
    where executors have the administration of a succession composed entirely of stocks which have a market value, hut fluctuate, and they sell the same at private sale in small lots for the interest of the succession, when a public sale would have had the effect of depreciating the value of the stock, by putting on the market large amounts at one time, they will not be held responsible for the loss in value estimated at the highest market quotations, when no demand has been made upon them by particular legatees, or the universal legatees, to pay the legacies, and for this purpose demand a public sale of the stocks by an order of court.

      APPEAL from the Civil District Court for the Parish of Orleans. Théard, J.

      Percy 8. Benedict and Robert G Rugué for Executors and Appellees,

      Benjamin Rice Forman for Residuary Legatees, Appellants.
    ON Motion to Dismiss.
    Submitted on briefs December 16, 1896
    Opinion handed down January 6, 1896.
    On THE MERITS.
    Argued and submitted April 8, 1896.
    Opinion handed down April 20, 1896.
    Rehearing refused June 1, 1896.
   On Motion to Dismiss Appeal.

The opinion of the court was delivered by

Miller, J.

Under the will of the deceased, there was, after some special legacies, the usufruct of a sum of money to Mrs. Siegel, at her death to accrue to her children, who were constituted her uni - versal legatees. The executors filed an account which was opposed by Mrs. Siegel individually, and as tutrix of one of the children, and by the children of age as universal legatees. The opposition claimed the executors were liable for a large amount for loss alleged to have arisen from their administration, and opposed a number of items of the liabilities placed on the account. The judgment sought by the opposition was that the executors be decreed liable for the alleged loss, that the items opposed be stricken from the tableau, and that they be ordered to pay the money the usufruct of Mrs. Siegel. From the judgment amending the account in some respects in favor of Mrs. Siegel for the money constituting her usufruct and awarding the residue to the universal legatees, the executors appealed. Soon after their appeal they paid the money to Mrs. Siegel, taking her receipt, concurred in by her children, who waived any security from her usufructuary. Subsequently the universal legatees apprehensive the executors would abandon their appeal, obtained an order as appellees to bring up the record with a view of answering the appeal and they have filed the record. They also obtained an appeal, and hence are here as appellees and appellants. They are met in this court with a motion to dismiss, based on the payment of the money given in usufruct by the will to Mrs. Siegel, and awarded by the judgment of the lower court. The receiving of this money, it is claimed by the executors, is acquiescence by the universal legatees in the judgment of the lower court on their opposition, and, therefore, a bar to their appeal.

Acquiescence in a judgment precludes any appeal, and it will make no difference that it is acquiescence iü part only of the judgment. C. P. Art. 567. But this rule applies to the judgment on the demand, the subject of the settlement or other form of acquiescence. If the demands passed on by the judgment are distinct, it is not easy to see that a settlement tendered and accepted as to the one, can be deemed acquiescence in the judgment rejecting other demands, not at all connected with that settled or abandoned. Whenever the subjects of the judgment are distinct, it seems to us the adjustment and withdrawal of one of the demands will not prejudice the appeal as to the other subjects of controversy. In this case the executors, after their appeal, paid from the succession funds the usufruct legacy to Mrs. Siegel. The universal legatees joined in the receipt for the reason, as we infer, to waive any right that the executors might have to require security from the usufructuary. This settlement undoubtedly put an end to the appeal of the executors so far as the judgment directed that payment. It was the voluntary execution of the judgment by them. It was the acceptance of the money Mrs. Siegel claimed in the opposition. But the demands of the. universal legatees against the executors that they should be charged with the losses on the succession property, and that certain items should be stricken from the account, were not at all connected with the demand of the usufructuary. On the appeal of the universal legatees, they had the right to be heard on their demands. They had fortified that right by their own appeal. Code of Practice, Arts. 688, 589, 590. There was in our view no acquiescence to bar the right of the legatees, growing out of these appeals. Their assent to the payment of the money due to their mother, not contested, and whether contested or not, is immaterial, was not acquiescence in the judgments on the other and different demands of the universal legatees. Liles vs. The New Orleans Canal and Banking Company, 6 Rob. 273; Clements vs. Cassily, 3 An. 358; Mitchell vs. Lay, 3 An. 593; Dwight vs. Brashear, 12 An. 860; Flowers vs. Hughes, 46 An. 439.

The motion to dismiss is therefore denied.

ON the Merits.

McEnery, J.

The deceased died in Germany. She left a will in which she made a number of particular legacies, and disposed of the residuum of her estate.

The particular legatees and the universal legatee pursue the executors to make them responsible for not disposing of the personal effects in time, claiming that a failure to do so has resulted in loss to-them. The particular legatees have no cause of complaint as there is enough in the succession to pay them in full. There was a usufruct of six thousand dollars, and a particular legatee for the amount This has been paid, and the payment is evidenced by a receipt for the amount.

The estate consisted entirely of stock in corporations. The contention of the universal legatee is that this stock should have been sold under an order of court in ten days, the same as is done in the case of the administration of vacant successions. We express no opinion on this, because it is unnecessary. But conceding the law to be the same for a succession administered.by executors, as that of a vacant, succession, the executors could only be charged with the difference in value between what it would have brought had an order for the sale been provoked and its value at the time it was disposed of. The testimony shows that at the opening of this succession there was financial depression; that to put the large amount of stock that the succession owned on the market would have caused its decline and it would not have realized the value of the stock. It could be better disposed of at a private sale in small blocks. Some shares of the same kind of stock were sold above the inventoried value, but these sales were exceptional. On the whole, the-evidence discloses that the executors were careful and prudent, and acted upon the most conservative line of conduct in order to realize as much as possible from the stock. Letters were issued to the executors on the 29th day of June, 1893. In November following the •judge of the Civil District Court, parish of Orleans, issued an order that they should dispose of the stock at private sale. He was evidently impressed with the same idea which controlled the executors in the discharge of their duty.

The stock was of high class, paying good dividends. There was, apparently, no use for its immediate sale. There was no formal demand made upon the executors by the particular legatees for the payment of their legacies. With propriety had such demand been made the executors could have satisfied the particular legacies at the market value of the same, had the legatees been disposed to accept the same.

The Citizens Bank stock was appraised at eighty-five dollars, but the executors realized one hundred dollars for the same. The St. Charles Street Railway stock was appraised at seventy-five dollars per share, and sold from seventy-six dollars and twenty-five cents to fifty-four dollars and fifty cents. The New Orleans City & Lake Railroad stock, appraised at one hundred and thirty dollars per share, sold for one hundred and twenty-four to one hundred and eleven dollars.

The stock fluctuated in value, and it was problematical whether if sold in ten days after the succession was opened it would have realized a greater price. At any rate there was no formal demand made upon the executor to pay the legacies, either by the particular legatee or the universal legatee. They finally provoked a sale of the stock remaining in the succession, and it brought less than the market quotation; that is, it steadily declined as it was offered. The executors were only able to sell in small quantities. The testimony of the brokers as to the inexpediency of offering the stock in large quantities at public sale was confirmed by these public sales. The bidders were limited in number. There can be no doubt that the executors acted for the best interest of all concerned. They are business men of high standing and evidently knew the market and the best means of disposing of the stock. We are satisfied that the succession has lost nothing by their administration.

Objection is also made to the payment of the fees of the notary, appraisers, attorneys and the commissions of the executors. The attorney for absent heirs, the appraisers and the notary were paid on the order of the judge, and the executors are protected by this decree. The lower judge fixed the fees of the attorneys for the executors on the amount of the estate in Louisiana, and we think his estimate of the value of the legal services rendered is correct, and we will say the same in reference to the' fee of the attorneys who-provoked the exhibition of the will.

The executors’ commissions were properly calculated upon the-estate administered here by them.

Judgment affirmed.


author: Miller, J.

text:
    No. 12,097.
    Cornelius McCarthy vs. The Whitney Iron Works Company.
    while it is the duty of the master to keep his premises in a safe condition so as not to endanger the life or limbs of the servant, yet the servant will be denied relief agninst the master for injuries arising out of the unsafe condition of his-premises, if with ordinary prudence the servant could have avoided the injuries. 2 Thompson on Negligence, pp. 9i6 et seq., 1008, sec. 15 et seq.

    A PPEAL from the Civil District Court for the Parish of Orleans. ■l* Monroe, J.

      Benjamin Rice Forman for Plaintiff, Appellant.

      Saunders & Miller for Defendant, Appellee.
    Argued and submitted April 21, 1896.
    Opinion handed down June 1, 1896.
   The opinion of the court was delivered by

Miller, J.

The plaintiff sues for damages for personal injuries sustained in the course of his employment as a laborer in defendants’ service, and due, he alleges, to their negligence. The answer-denies any neglect on the part of the defendants, and charges that plaintiff’s injuries were due to his own imprudence. The appeal is by plaintiff.

The work in which plaintiff engaged was digging a pit on defendants’ premises used for molding castings. The excavation was about ten feet, and when the bottom of the pit was reached, the plaintiff was struck by a heavy piece of iron left in the pit by the “overflow as the witnesses term it, of some previous casting, and which fell because the earth around it was removed by plaintiff and his fellow workmen in the progress of the excavation. Of course, this piece of iron formed by the hardening of the melted metal remaining from a former casting, was not attached to the walls of the pit, or secured in its position in any way, but kept in place only by the earth around it, was bound to fall when the earth was removed. The shape of the iron disclosed, as the excavation proceeded, was irregular, wide at bottom, coming to a point at the top, with rough, uneven sides, and of a character to suggest it served no purpose fn the pit. It is in proof that when the digging had reached a point to reveal a part of this iron, its appearance attracted the attention of the workmen, caused some comment, and one of the witnesses testifies he tried to shake it; another, that it obstructed the work, and there were expressions of the workmen in reference to this impediment, and another witness states he told plaintiff not to undermine it, but he testifies, he heard no such warning nor does it appear it was heard by the other workmen. When the iron fell, plaintiff about finishing his work, begun in the morning, it then being evening, was levelling the bottom of the pit with his back to the iron. The heavy weight falling on him, inflicted injuries to his hip, legs and ankles of a character so serious as to make him a cripple with diminished use - fnlness for life. On the issue of the knowledge of the defendants of the presence of this piece of iron in the pit in which' their laborers were employed, there is the testimony that the previous proprietor of the premises using the pit for the same purpose as that for which defendants used it, left this iron in it; there is testimony that since their purchase defendants had molded large castings frequently in the pit, and there is the statement from one of the witnesses that their foreman knew of the iron and had said, before the accident, it should have been removed.

The duty of the employer to take all reasonable care against accidents to his workmen or servants, in the course of their employment, includes the obligation to keep the premises in which their services are to be rendered in safe condition. Especially is this obligation enforced in respect to latent dangers of which the employer is aware, or which with reasonable.diligence he could have informed himself. The servant takes no risk of such dangers unless the circumstances are such that he should have become aware of them in the performanee of his duties. When thus apprised, or when the danger should have suggested itself,, the protection of the servant against such risk, latent at the outset is withdrawn, or at least, qualified, 2 Thompson on Negligence, pp. 946, 947 et seq. 972, 959, 965, 1009. If this case was simply that of a workman injured while working in a pit in which there was a mass of iron apt to fall at any moment, and which did fall on him, he having no warning of the danger, it would be difficult to relieve the employer from responsility. His ignorance of the danger to which the servant was exposed, advanced as a defense, might be answered by his obligation to know that of which with reasonable diligence he would have known. But while this responsibility of the master is recognized, there is a limitation. The servant is presumed to take the risk of danger plainly revealed to him. From 11 o’clock in the morning till evening, the plaintiff and his fellow workmen were engaged in this work. They perceived this mass of iron with every indication that it was a foreign body placed or left in the pit. In the testimony of plaintiff, or at least, of his fellow workmen, they recognize the iron was an overflow, as they term it from a previous casting. It is difficult to resist the conclusion that the character of the iron, and that it was kept in place only by the earth they were removing, must, or at least, should have occurred to the workmen while the work was proceeding. It may be claimed the plaintiff supposed there were fastenings to keep the iron in place. But fastenings for such a body would hardly occur to any man of ordinary observation and reason. The law in this class of cases holding the master responsible, supposes the injury, the subject of complaint, is due to his negligence. But if the party seeking relief has encountered a plain danger, he could have completely avoided by the ordinary prudence exacted of all, the alleged neglect of the master ceases to be a factor, and the overshadowing imprudence of the servant is deemed the cause of the injury he sustained from the peril he incurred, and should have shunned (2d Thompson Negligence, p. 1008, sec. 15 et seq). In this case the iron was revealed in part, at least, as soon as four feet of the earth was removed, and in its •entirety before the bottom of the pit was reached, but no call was made on the defendant or its foreman to have the iron removed. The foreman in charge states he knew nothing of the iron. Whether or nob he did, the workmen knew of it. If that call had been made and disregarded, there would be some reason to attribute their persistence in the dangerous work to the natural reliance of the servant on the protection of the master, and on his superior judgment. But no communication was made to him. Thus, in the presence of an obvious danger there was no call to remove the iron, which, if made, would doubtless have spared the plaintiff the misfortune that came on him. It is suggestive, too, that plaintiff alone of the five workmen employed was in reach of harm. We are disposed to think the attention and comment of which the iron was the subject while the work was in progress had its influence in producing on his fellow-workmen an appreciation of the danger of which the plaintiff was unconscious, and as already stated, his back was turned to the iron when it fell on him. The review of the whole testimony points to that imprudence on plaintiff’s part which is fatal to his suit.

We have considered the authorities from the text books and the decisions cited by plaintiff. Hanson vs. Railway & Transportation Company, 88 An. 111; Faren vs. Seliers, 39 An. 1011; Clairain, Tutrix, vs. Telegraph Company, 40 An. 178; Myhen and Wife vs. Electric Light & Power Company, 41 An. 967. The express sion in one of these cases that contributory negligence on the plaintiff’s part, not imprudent nor negligent in a legal sense, will not bar his recovery of damages, might have had application to some phase of that case, but on the rehearing the court felt impelled to sensibly qualify the expression. The other decisions affirm that the master must provide the servant with safe appliances to do his work, and relieves him from the risk of latent defects in the the machinery he is expected to use. That duty of the master extending as it is to keeping his premises in a condition not to endanger the life or limbs of the servant, we have borne in mind in dealing with the case. But it seems to us that the decision here is controlled by that limitation of the master’s responsibility, excluding it when the injury to the plaintiff seeking relief, is due to his own carelessness. The record, in our view, puts the plaintiff in the position of undermining or removing all support from the iron, with the certainty that ought to have suggested itself that every spadeful of earth he was removing brought him nearer to the fall of' the iron, and that risk to which he exposed himself from the fall. It is the case of one provoking by heedlessness, the injury of which he complains, and which ordinary prudence on his part could have been averted. We are reluctant to reverse the verdict of the jury, but are confirmed in our conclusion by the fixed conviction of the lower court, which led it to set aside the verdicts of two juries.

It is therefore ordered, adjudged and decreed, that the judgment of the lower court be affirmed with costs.


text:
    No. 12,092.
    Mrs. Caroline Hodding et als. vs. The City of New Orleans.
    The supplemental assessment roll, provided by law to supply omissions or correct errors in the original roll, must be accompanied with notice to the property owner proposed to be bound by the supplemental assessment, but payment of the State taxes based on such assessment, will preclude the owner from urging the want of such notice when called on to pay the city taxes levied on the same assessment. Acts 1888, No. 85, Sec. 11; Acts 1890, No. 106, Sec. 11.
    The court again affirms that notice to the owner of the tax sale for taxes assessed since 1879, is indispensible to pass title, and a paper purporting to give such notice, left with one not the agent of the owners, is no notice. Constitution article 210; Act No. 85 of 1888, Sec. 40, et seq.; 44 An. 912; 45 An. 1109; 46 An. 403.
    A PPEAL from the Civil District Court for the Parish of Orleans. King, J.

      Benjamin Bice Foreman for Plaintiffs, Appellants.

      Henry Benshaw, Assistant City Attorney, and Samuel L. Gilmore, City Attorney, for Defendant, Appellee.
    Argued and submitted May 8, 1896.
    Opinion handed down June 1, 1896.
   The opinion of the court was delivered by

Miller, J.

The plaintiffs sue to annul a tax sale of their property made to satisfy the city taxes of 1889, as well as the assessment under which the sale was made. The grounds of the suit are, that the assessment was made without notice to the plaintiffs and without notice to them the sale was made. The defence is, that plaintiffs are estopped from disputing the assessments by paying the State taxes, based on the same assessments, and the answer maintains that the tax sale was made in accordance with law. From the judg-ment against plaintiffs, they appeal.

It appears that the property was assessed on the regular roll of 1889 as the property of Anna L. Carter et als. The owners were the widow and children of the late Needier K. Jennings, Anna Maria Jennings, Alice, Caroline, Cora and Anna Jennings. Discarding this assessment, the city made a supplemental assessment in 1898, exhibiting the names of the owners.- Notices of the proposed sale of the property for these taxes of 1889, addressed to Anna M. Jennings, ef als., were served upon Mr. B. R. Forman, who stated to the serving officer, he, Forman, had no authority to act for the plaintiffs, and the sale to the city followed in March, 1894. In the deed of sale to the city there is the statement that notices were served on the delinquent taxpayer, hereafter mentioned, and the names thus indicated as receiving notice, we find to be Anna M. Jennings, et als. At a later period the plaintiffs paid the State taxes on the property according to the supplemental roll, and instituted this suit to annul the assessment and recover the property from the city.

Our law provides for the assessment of property omitted, or assessed in the wrong name on the roll of the year, with the limitation that such assessments to supply .omissions or correct errors in the rolls shall not extend beyond the previous three years. This provision is common in the revenue statutes of all the States, and has stood for years as part of our law. R. S., Sec. 3262; Act 88, No. 85, Sec. 11. Of course, the power to assess property omitted carries the necessity of notice to- the owner indispensible in all assessments. This is implied by the language of Sec. 11 of the Act •of 1888, under which the supplemental assessment in controversy was made, and we perceive that in the revenue act of 1890, No. 106 See. 11, there is careful provision for the mode of notice. The pleadings in this ease put at issue this, question of notice, and there is no proof on the subject. We find, however, that the plaintiffs paid the State taxes, based on the assessment. We maintain the assessments on this recognition. Notice is to convey knowledge to the taxpayer that his property is assessed, and if he manifests that knowledge by payment of the State taxes, the purpose of the law in respect to requiring notice must be deemed accomplished.

It seems unnecessary to repeat that the title of the owner can not be divested by a tax sale for taxes accrued since 1879, without notice to the owner of the sale. The requirement is expressed in the plainest language in the organic law, has been repeated in every revenue statute since the Constitution, and time and time again has been enforced by this court. Constitution, Art. 210; Act No. 77 of 1880, Secs. 25 to 28; Act No. 96 of 1892, Sec. 49 et seq.; the later acts and Act No. 85 of 1888, Sec. 40 et seq.; Norres et al. vs. Hays et al., 44 An. 912; Montgomery et als. vs. Land and Lumber Co. et al., 46 An. 403. Lambert vs. Craig, 45 An. 1109, and similar cases. In this case, instead of following the direction of the statute as to the notice of the tax sale, we have the substitution of a paper addressed to one only of the owners left with a member of the bar, not the agent in-any sense, to admit of such service upon him. For want of the required notice the sale must be set aside.

It is therefore "Ordered, adjudged and decreed that the judgment of the lower court be avoided and reversed; that the assessments on the supplemental roll of 1889 be maintained as valid assessments against plaintiffs, but that the sale of the plaintiffs’ property under said assessments be avoided and annulled, and that defendant pay costs.


author: Nicholas, C. J.

text:
    No. 11,941.
    Michael Walsh et al. vs. Mrs. Josephine Harang and Husband.
    The publication required by law in tax sales for collection of delinquent taxes prior to 1880, must conform to legal requirements. Advertisements standing in lieu of notices must present on their face the data necessary to place parties in interest on their guard. The law contemplates publication under a legal assessment.
    In an action of warranty, interest on the price can well be held to be balanced by the rent.
    A warrantor by a call in warranty and service of defendant’s pleadings therein,, is advised of the attack made upon the title he had conveyed, and it is his duty to inform himself by inspection of the record of the character of the attack.
    When a defendant in a petitory action is evicted from land upon which he has paid taxes he should recover from the plaintiff the taxes paid. 12 An. 535.
    A purchaser, beiug a possessor in good faith, against whom a judgment of eviction has been obtained, is entitled to recover a judgment for such amount of improvements made by him as enured to the benefit of plaintiff. 10 Rob. 178.
    The warrantor is not liable for the fees of an attorney employed by the party evicted. 14 An. 826.
    APPEAL from the Civil District Court for the Parish of Orleans. Ellis, J.

      F. L. Richardson, Reman & Wall for Plaintiffs,-Appellees.

      Alfred E. Billings for Defendant, Appellant.

      J. Zach. Speamng for Defendant in Warranty, Appellant.
    Argued and submitted March 14, 1896.
    Opinion handed down April 6, 1896.
    Rehearing refused Jane 1, 1896.
    Plaintiffs were the heirs of Michael Walsh, who died in New Orleans on the 7th of December, 1866, bring suit to recover certain property acquired by Negrotto from the State Tax Collector of the upper district of New Orleans, under a sale passed in June, 1885, purporting to be under authority of Act No. 82 of 1884, for taxes charged against said property. That said sale was null and void for this: There was no assessment against said property, and if any pretended assessment should be shown by defendant, it was not in the name of any owner during the years of said assessment. Second, there was no notice of said sale to petitioners, the owners, and should any law have authorized the sale of petitioner’s property, without notice, said law was invalid and violative of Art. 210 of the Constitution and the Fifth Amendment of the Constitution of the United States.
    Negrotto had made a sale of said property to Mrs. Josephine Lamarque, wife of Joseph Harang, and who being then in possession of said property under said sale, was made defendant. Judgment was asked, decreeing the title of the defendant to be null and void, and condemning her to pay rent at the rate of twenty dollars per month from the date of possession. Negrotto was called in warranty by Mrs. Harang.
    The district court rendered judgment; in favor of the plaintiffs; against the defendants, Mrt. Joseph Harang and husband, decreed, plaintiffs to be the owners of the property claimed and as such owners entitled to the possession thereof, decreeing the titles of saidl defendants to be null and void and condemning her to pay rents to. plaintiff at the rate of twenty dollars per month from January 24, 1894, until paid and costs; further decreed that plaintiff pay defendant the sum of six hundred and sixty-eight dollars value of useful improvements, with legal interest from date of judgment, and that no writ of possession issue until said sum be paid defendant, and that there be judgment in favor of defendant against Negrotto, called in warranty for the sum of eight hundred dollars, the purchase price, with legal interest from March 10, 1894, and for one hundred dollars attorneys fees, incurred in defending the suit and for the costs recovered by plaintiffs and defendants, and all costs incurred in the call in warranty.
    All the defendants appealed.
   The opinion of the court was delivered by

Nicholas, C. J.

The property was adjudicated in June,. 1885, to the defendant at a tax sale made under Act No. 82 of 1884. He received a deed on the 6th of July, 1885, and was placed in possession of the property on the 18th' of August of the same year. In the deed of sale it is recited that the property had been previously ad - judicated to the State under the provisions of Act No. 98 of 1882, to ■enforce the payment of the unpaid State taxes due. on and by said property for the years 1870, 1875 and 1878. That it had been again-under Act 82 of 1884 advertised for sale to enforce and collect the payment of said State taxes due on and by said property, which taxes still remained due and unpaid. That the property was duly and legally assessed in the name of Michael Walsh or Walsch for the years 1870, 1871, 1873, 1874, 1875, 1876, 1877, 1878 and 1879. That the tax collector had offered it for sale at public auction, and Dominique Negrotto being the last and'highest bidder in the sum of forty-five dollars, he had adjudicated the property to him; that there were then due and unpaid taxes of the city of New Orleans on the property for the years 1871, 1873, 1874, 1875, 1876, 1877, 1878 and 1879, amounting to two hundred and ninety-one dollars and fifty cents. The receipt of the forty-five dollars was acknowledged and was declared payment in full for all taxes due to the State and city of New Orleans prior to December 31, 1880. In this deed the purchaser Negrotto declared “he assumed and promised to pay all the State and city taxes on said property for the year 1880 and subsequent years together with all interest charges, fees and commissions which may be due and unpaid.”

The deed is made upon a general printed form similar to that ■described in Hoyle vs. Southern Athletic Club (Ante p. 882). There is no special reference in the deed to the advertisement made of this particular property, but a general sweeping recital that “such properties were always advertised in the name of the party in whose name it was assessed (and when it was known) in the name of the present owner if different from the assessed name.

On the 16th of October, 1890, Negrotto sold the property under full warranty to Mrs. Josephine Lamarque, wife of Joseph Harang, lor eight hundred dollars; four hundred dollars being cash and the balance represented by three promissory notes of the purchaser ■signed by her to her own order, and by her endorsed, each for the sum of one hundred aud thirty-three dollars and thirty-three and one-third cents, payable respectively one, two and three years after date with interest at eight per cent, per annum from date. Mrs. Harang went at once into possession of the property and is still in possession of the same. On the 20th of January, 1894, she and her husband were cited as defendants in the present petitory action. On the trial it was admitted that the defendant, Mrs. Harang, had paid the State and city taxes upon the property in the amounts and at the dates specified in her answer; also that if a certain named witness for defendant were present he would swear thathe was the carpenter employed to make for the defendant the repairs to the house upon the property in question; that the repairs were necessary and beneficial to the property, and that he was paid therefor six hundred and fifty-eight dollars, as alleged in defendants’ answer, and that he would testify to the correctness of the bill.”

The taxes so admitted to have been paid by defendant were:

State taxes lor 1890................................................................................................. $8 83

State taxes for 1891............................................................................................. 11 00

State taxes for 1S92 ................................................................................................ 11 45

City taxes for 1890.............................................................................................. 24 74

City taxes for 1891................................................................................................. 18 35

City taxes for 1892.................................................................................................... 32 80

Total............................................................................................................$119 67

It was also admitted on the trial that if the warrantor, Negrotto, who was absent, were present, he would testify that at the time bought the property in 1886 it was in a bad state of repair, and would not have rented for anything, that it would have brought in no revenue by way of rent up to the time he made repairs, upon it. Also that he would swear “ that the amounts alleged by him in his answer to have been paid by him, were paid by him, and that the repairs were necessary, that he paid the sum of forty-three dollars and fifty cents, State taxes, interest, cost and charges on the property from 1880 to 1889 inclusive. The sum of two hundred and thirty dollars and seven cents, being the amount of city taxes, interest, costs and charges on the property from 1880Jto 1889 inclusive. The sum of forty-two dollars and thirty-six cents being the amount expended by him to redeem the property from the State for sales made for State taxes for 1880, 1881, 1882 and 1888. That he paid two hundred and forty dollars and twenty-five cents in making necessary repairs, which repairs were necessary and beneficial to the property, and that he paid forty-five dollars at the tax sale at which he bought the property.” The sale made to the State for State taxes for 1880, 1881, 1882 and 1888 alluded to in the admission are not in the record.

Michael Walsh, the owner of the property, died in 1866, his wife Mary Ann Walsh, qualified in 1867 as administratrix of his succession. She herself died in 1878. Michael Walsh and wife left as heirs, three sons, John J., Michael E., and Thomas Walsh. What their-ages were at the date of their parents death does not appear.

Thomas Walsh, one of the sons died, leaving a son, Michael J. Walsh (one of the plaintiffs).

We are satisfied from the evidence that in all tax proceedings in reference to this property, it was dealt with as the property of Michael Walsh or Walsch, although he died as far back as 1866. The assesments were always in that name; the publications and advertisements were in that name, and if notices were attempted to be given, they must have been given in that name. There is no mention whatever anywhere of the succession of Michael Walsh or his-heirs or his legal representatives or allusion to them.

It is claimed that no notice other than that by publication was necessary to be given in proceedings for the enforcement of delinquent taxes prior to 1880. That is true, but the publication itself,, when so made as giving notice, should have to conform to legal requirements. The advertisement standing in lieu of notice should have presented on its face the data necessary to place parties in interest on their guard and should by correct descriptions as to property and owners, have conveyed information to owners that they were in danger of being divested of their property. The law contemplated publication under a legal assessment, not publication under an assessment made against a party who had been dead ever since 1866.

Under the decisions of this court such an assessment must be held an absolute nullity, and advertisements and notices made upon it also nullities. The prescriptions pleaded do not apply to this case.

The judgment in favor of the plaintiffs for the property must be sustained. We are next called on to consider the incidental rights and obligations of the parties springing from the situation. The defendant, Mrs. Harang, complains that she should have recovered from the plaintiff the State and city taxes paid by her for the years 1890, 1891 and 1892.

In Weber vs. Coussy, 12 An. 586, the court, referring to taxes paid by a defendant evicted from property which he had purchased, said “they were paid for by him for the benefit of the plaintiff if the plaintiff was the owner of the property. Instead of being charged against defendant warrantor they should have been charged against plaintiff, and the writ or possession suspended until it was refunded to defendant as negotiorum gesto)' for plaintiff. It would truly be very convenient for many an owner of swamp lands around New Orleans to suffer another person (who perhaps has acquired them at tax sale) to pay the taxes from March, 1846, to December, 1856, and just before ten years’ prescription has accrued to step in with his petitory action and recover the land free from all taxes.”

As the defendant under our decision herein will not be allowed interest against her warrantor on the price paid by her until judicial demand, under her prior occupancy of the property, she will to the extent of that interest have really paid for the same, the value of the occupancy being taken as equal to the interest, she should not be burdened additionally with payment of taxes. Defendent claims to be entitled against the warrantor to interest from the date of the several payments of the purchase price instead of from judicial demand. From the period of her purchase up to the judicial demand in the present suit, defendant has had possession of the property freed from the payment of rent. Interest on the price can well be held to be balanced by the rent. The warrantor complains that the ■court has entirely ignored his claims for re-imbursement for taxes and improvements. The court assigned as its reason for so doing that no issue had been made up between the plaintiff and the warrantor. If by this was meant that the warrantor should have caused his answer to be served upon the plaintiff and to have been joined thereon by default and answer, we think the court erred. When the defendant under the call in warranty went into the case and assumed the burden of the action, he became substantially the defendant therein. Plaintiff was as much called on to notice his pleadings and prayer without service and default as a plaintiff is called on to notice and defend without service upon him or judgment by default, the reconventional demand of an ordinary defendant — some question was made in the earlier stages of the trial as to whether the warrantor was entiled to have service made upon him of the petition of the plaintiff in the case. The point has not been pressed, but it may be well to say that a warrantor by tlie call in warranty and service of defendant’s pleadings thereon, is advised of the attack made upon the title he had conveyed, and it is his duty to inform himself by inspection of the character of the attack. The warrantor complains of the allowance of attorneys’ fees against him in favor of defendant. He avers also that he is entitled to reimbursement from plaintiff for the taxes which he has paid for his benefit, as much so as defendant was entitled to reimbursement for those which she paid; also that he is entitled to be paid for his improvements. Had the defendant not sold the property to Mrs. Harang and been in possession of the property himself, he would unquestionably be entitled to reimbursement for both the one and the other, and he maintains that the sale to the defendant makes no change in the legal sitúa - tion. He contends that when he pays back to his vendee the full-price which she paid to him, included therein will be the increased value to the land given to it by his improvements at the time of defendant’s purchase and therefore unless he can recover from the plaintiff, he will have to lose entirely the outlays which he made for the same, and plaintiff will to that extent enrich himsalf at his expense. The defendant in this suit limited her claim for improvements for those which she herself placed upon the property. In LeJeune vs. Barrow, 11 An. 502, judgment was rendered against the plaintiff for the value of all the improvements upon the property. Defendant obtained judgment for the entire price paid by him to his vendor. The district judge apportioned the money which the plaintiffs were1 condemned to pay for the useful improvements put on their land by the adverse possessors rate-ably between the defendant and her warrantor according to the estimated value of the improvements made by each. On appeal this court said: “This seems to be equitable and we have been referred to no authority which sanctions a different doctrine. Wright (the warrantor) has to refund to his vendee (Barrow) the price which the latter paid him for the land as improved by the former. The improvements then existing enhanced this price in proportion to their value. If on the eviction of his vendee Wright has to restore the whole price and to receive nothing in return for his improvements, while Barrow recovers from the plaintiff the value not only of his own improvements but of those made by the vendor, it is obvious that Barrow would be twice paid for the same thing.” The fact that Wright had disconnected himself from the property and lost possession of it through his sale to Barrow does noc seem to have militated against his right in the same suit to demand from LeJeune, the plaintiff therein, the same claims which he could have advanced were he the defendant in possession. We think the present suit the proper occasion in which Negrotto should advance his claims, and that he should not be remitted to a separate future independent suit against the plaintiffs. Laizer vs. Generes, 10 Rob. 179.

If plaintiffs have any defences or counter' claims they can either advance them directly or by amending their pleadings. Circuity of action will thus be avoided, and the provisions of Art. 210 of the Constitution relative to repayment of price to purchasers at tax sales on the setting aside'of their titles can be made effective. The plaintiff in this case took no exception to- the form of proceeding, but voluntarily litigated the issues tendered. We think Negrotto is entitled to recover from the plaintiffs the taxes he has paid on the property for the benefit of the plaintiff, not including penalties and costs. We are not prepared to say that fhe amount expended by the warrantor for improvements made as far back as those which warrantors claim for are chargeable against the plaintiff. He may have derived and may derive no benefit from them. We are inclined to think that twenty dollars per month for rent may have been too large an amount with which to charge the defendant in the interval between the bringing of this suit and the surrender of possession of the same. We should judge that the value of the occupancy of the house is to some extent due to the moneys expended upon it by the defendant or the warrantor, or both. That fact should have some weight in fixing the rent during the period referred to. We think the ends of justice will be best subserved by remanding the cause to the District Court so as to adjust on some points the incidental rights of the parties, particularly as the District Court has not passed upon some of them. We think the judgment in favor of the plaintiffs decreeing them to be owners of the property which they claimed, and ordering defendant to pay rent from judicial demand until delivery of possession of the same is correct. We think the amount as now found to be paid per month as rent should be set aside, and that the amount for the same should be fixed de novo by the District Court. The judgment in favor of the defendant against the plaintiffs not being objected to must, so far as it now stands, be affirmed, but it must be amended by decreeing that defendant should recover from the plaintiffs additionally the sum of one hundred and nineteen dollars and sixty-seven cents for taxes paid by defendant on the property. We think that Negrotto should recover judgment against the plaintiffs for the amount of taxes, less penalties and costs which he has paid upon the property. 33 An. 531; Stafford vs. Twitchell, 35 An. 487; Davenport vs. Knox, 35 An. 1086; Hickman vs. Dawson, 37 An. 357; Fishel vs. Mercier. That he should also recover judgment against the plaintiffs for such amount for improvements made by him as shall be found to enure to their benefit. The judgment in favor of defendant against her warrantor for attorneys’ fees should be set aside. Melancon’s Heirs vs. Robichaud, 19 La. 357; Williams vs. LeBlanc, 14 An. 757; Hale vs. New Orleans, 13 An. 499; Laborde vs. The City, 13 An. 327; Sarpy vs. New Orleans, 14 An. 311; Late vs. Armorer, 14 An. 826.

For the reasons herein assigned it is hereby ordered, adjudged and decreed that the judgment appealed from be and the same is hereby annulled, avoided and reversed in so far as it renders judgment in favor of the defendant, Mrs. Josephine Harang, against her warrantor, Domingo Negrotto, Sr., for one hundred dollars for attorneys fees.

It is further ordered, a’djudged and decreed that said judgment be amended by striking out twenty dollars as the amount of the monthly rent for Which defendant is chargeable in favor of the plaintiffs, the amount of the monthly rate being left open to be fixed and determined by the District Court upon the remanding of the cause to it as hereinafter directed, and by making the payment of said rent terminate upon surrender of the property to the plaintiffs by the defendant.

It is further ordered, adjudged and decreed that the judgment be amended condemning plaintiffs to pay to defendant, in addition to the sum of six hundred and sixty-eight dollars, value of useful improvements, the additional sum of one hundred and nineteen dollars and sixty-seven cents, amount of State and city taxes paid by the defendant for and on account of the property recovered by plaintiffs, the said two amounts to bear interest from July 3, 1895, and by ordering that no writ of possession issue herein until the payment of these two sums to the defendant.

It is further ordered, adjudged and decreed that this cause be remanded to the District Oourt in order to hear and pass, in accordance with the views herein expressed, upon the claims set up by the warrantor against the plaintiffs, and to fix and determine the amount of monthly rent for which the- defendant shall be chargeable from judicial demand upon her, until surrender of the property.

It is further ordered, adjudged and decreed that the judgment appealed from, except in so far as it is annulled and amended herein, and in so far as left open for determination by the District Oourt on the remanding of the cause as herein directed, be and the same is affirmed, costs of appeal to be divided between plaintiffs and defendant.