text:
    No. 13,764.
    Americus Watson vs. Succession of Thomas Barber.
    Syllabus.
    1. Where in effecting a partition by authentic act, a surviving widower in community specifically admits that the other contracting party is the son and sole heir of his deceased wife, and they reciprocally convey to each other the immovable property of the community, neither such widower, nor his heirs, can, thereafter, for the purposes of a supplemental partition, and without alleging and proving that he was deceived by fraud practiced upon him by such other party, be heard to deny the admission so made.
    2. Where an authentic act is resorted to for the purpose of effecting -a partition, and it mentions immovable property, and disposes of it, and also mentions movable property, as existing and being subject to partition, but makes no disposition of it, the partition, as effected by said act, will not be held to be complete and final. And the action for a supplemental partition, one of the parties being in possession of all the property to be affected thereby, is barred only by the prescription of thirty years.
    3. Where the parties to an agreement fail to express themselves clearly, the court must endeavor, from the aid of circumstances, and by a reasonable construction of their acts, to arrive at their meaning.
    APPEAL from the Sixth Judicial District, Parish of Morehouse — * Hudson, Judge ad hoc.

      Andrew Augustus Oumby, for Plaintiff, Appellee.

      Madison & Madison, for Defendant, Appellant.
   Statement of the Case.

The opinion of the court was delivered by

Monroe, J.

The plaintiff alleges, in substance, that he is the son and heir of Doreas, the first wife of Thomas Barber, by her former marriage, according to the custom of slaves, with Woodley1 Watson; Sr.; that a community of acquets existed between said Doreas and Thomas, and that said Dorcas died upon May 20th, 1889. That, thereafter, upon October 3rd, 1889, said Thomas Barber and petitioner entered into an act of partial partition, whereby the real estate which had belonged to the community recently existing between said Thomas and Dorcas was partitioned, but that said partition did not embrace, or relate to, any movable property, rights, or credits which had belonged to said community, and that said movable property has never been partitioned.

The plaintiff further alleges that at the time of the death of Dorcas Barber the said community owned three thousand dollars in cash, a crop worth two thousand dollars, and live stock, farming implements, etc., worth at least one thousand dollars; that all of said property was retained by said Thomas Barber, and converted to his own use, and that, as the son and heir of Dorcas Barber petitioner is entitled to his share of the same. He prays judgment for three thousand dollars, for recognition of his status as son and heir of Dorcas Barber, and for a partition of the property still in the possession of the succession which had belonged to the community between said Dorcas and Thomas Barber. The defendant filed a plea of prescription, which was referred io the merits, and answered, substantially, as follows, to-wit;

She denies that plaintiff is the legal heir of Dorcas Barber, and alleges that said Dorcas was never married toi Woodley Watson, Sr., even according to slave custom,, but that the-slave wife of-Woodley Watson, Sr., was named Matilda, and that, in any event, such alleged marriage was inchoate, and was never validated by the parties sustaining the relation of husband and wife after their emancipation, and hence that the same produced no civil effects. And defendant alleges that any admission to the contrary by Thomas Barber was made through and by reason of fraud practiced on him and is not binding on his succession. But, should it be held that plaintiff is the heir of said Doreas Barber, then, and in the alternative, defendant alleges that the partition made between him and Thomas Barber in 1892 (though made in error so far as Thomas was concerned) was final, and that plaintiff thereby obtained all that he was entitled to, and is estopped by his acceptance of the same, and his acquiescence, during the life of Thomas Barber, to claim anything more.

It appears from the evidence that Thomas and Doreas Barber lived together for many years as man and wife; that the plaintiff was always recognized as the son of Dorcas; and that the plaintiff’s son, Woficlley Watson, was, practically, adopted by Thomas and Dorcas, and lived with them from the time that he was a child. It further appears that. Dorcas died in May, 1889, and that, in October of the same year, upon the suggestion of Thomas Barber a contract was entered into between him and Americus Watson, by act in authentic form, from which we make the following excerpt, to-wit:

“State op Louisiana, “Parish of Morehouse. Act of Partition.
“Know all men by these presents : That the following contract and act of partition and bargain and sale is this day entered into by and between Thomas Barber and Americus Watson of said parish, viz: The said Barber is the surviving husband, and said Americus Watson the surviving son and sole heir, of Dorcas Barber, dec’d, late of said parish and State. Said Barber and said Watson declared that, at the death of said Dorcas Barber, she and said Tom Barber were the owners of the following community property, to-wit:
“1st. The Ross land, situated * * * containing three acres, more or less. 2nd. The tract known as the Maxwell tract * * * containing 112.61 acres, more or less. ' * * * 3rd. The Robertson tract * * * containing 160 acres, more or less. 4th. Tax title lands * * *” (three tracts, amounting in the aggregate to 100 acres). “Also some personal property.. And said parties declare and acknowledge that they have entered into the following partition of said property, to-wit: The said Barber declared that he has and, by this act, does give, grant, transfer, and deliver unto said Americus Watson, his heirs and assigns, forever, all his rights, title, interest, claim, and demand in and to the Maxwell tract ** * * containing 112.61 acres, more or less * * *. And in consideration of which the said Americus Watson declared that he has given, granted; sold, transferred, released and delivered to said Thomas Barber, his heirs and assigns forever, all his rights, title, interest, claim, or demand in, and to, the remainder of the property belonging to the community which existed between said Thomas Barber and said Dorcas Barber, dec’d, and said Americus Watson hereby obligates himself, his heirs and assigns to forever warrant and defend said Barber in the title to said property, which consists of: 1st. The Ross tract * * * containing three acres, more or less. 2nd. The Robertson tract * * * containing 160 acres, more or less. 3rd. The tax title-land * * *. To have and to hold, unto the said Barber, his heirs and assigns forever. The crop now on the Maxwell tract belongs to said Thomas Barber, and he is to be allowed to gather the same and not to be interfered with by said Watson, and is to have the use of the cotton houses, cabins, etc., necessary in harvesting and gathering said crop. In faith whereof, etc.”

Upon the trial the defendant offered to prove that Amerieus Watson was born whilst his supposed parents were living, the father with another woman, and the mother with another man, and although the learned judge ad hoc ruled against the admission of such testimony, upon the objection of the plaintiff’s counsel that defendant is estopped by the admissions contained in the contract which has just been recited, considerable testimony, having no other purpose in view than to sfyow that Amerieus Watson was incapable of inheriting from Dorcas Barber, seems to have found its way into the record.

The plaintiff, upon the other hand, offered testimony to show what personal property, such as live stock, farming implements, etc., was on hand at the time of the death of Dorcas Barber, and this testimony was also excluded, on the ground that plaintiff is estopped by said act of partition. He was, however, permitted to show that Barber had, in bank, at the date mentioned, three thousand one hundred and sixty-two 12-100 dollars, although he told plaintiff that there was no.money, and there was judgment in plaintiff’s favor for one-half that amount, rejecting- his demand in all other respects.

Opinion.

There was no error in the ruling of the trial judge upon the admissibility of the evidence offered on behalf of defendant. By his explicit-admission, in the solemn form of an authentic act, that Amerieus Watson was the “surviving son and sole heir of Dorcas Barber,” Thomas Barber had estopped himself from denying the fact so stated, at least, for any purpose connected with that for which said act was executed, and those claiming under Mm are likewise estopped. By that act, as we interpret it, Amerieus Watson, in the capacity- of sole heir of the deceased half owner, granted and conveyed to Thomas Barber all his rights, title, and interest in, and to; the real estate of which Barber was then possessed, except such as was conveyed by Barber to him, and Barber voluntarily consented thenceforth, to hold said property, so far as an undivided half interest was concerned, by the title so acquired, and he so held it at the time of his death, and it is that ti tie that the defendant has inherited.

It is true that the defendant alleges, in her answer, that Barber entered into the contract- embodied in said act through error, but there was no attempt to show that Watson deceived 'him in any way, or to show that he did not know all the facts of Watson’s past history, which the defendant has attempted to prove. He had been living with Watson’s mother for about forty-five years, and was a man- of uncommon intelligence, and it was he who proposed the contract, not Watson. It must be presumed, therefore, that he knew what he was about, and that he considered that he was obtaining an equivalent for the property that he parted with, and he could not have been heard to deny his written, authentic admission to that effect, nor can the defendant, who holds under him. And, being bound to that admission, the defendant would also be bound to the admission that Watson was capable of conveying the interest which represented that equivalent, since the two propositions are interdependent upon each other.

“Where the party solemnly admits a fact by a deed under his hand and seal, he is estopped not only from disputing the deed itself, but every fact which it recites.”

Hermann on Estoppel, Sec. 615.

“A purchaser admits the vendor’s title and right to sell.”

Armour vs. Case, 9 Ann. 242.

“Defendant in a petitory action, who has admitted, verbally and in writing, that he holds under plaintiff, cannot dispute his title.” Beaumont vs. Covington, 6 R. 189; Morrison vs. Keller, 10 Ann. 542; Webb vs. Deeson, 11 Ann. 84.

“The heirs of a decedent cannot assert that a deed made by a decedent was without consideration. They can assert only such rights as the dead man could assert if living.” Jackson vs. Rowell, 87 Ala. 685 (4 L. R. A. 637).

As to the exclusion of the testimony offered on behalf of the plaintiff, we are of opinion that, for reasons which will be stated, plaintiff has sustained no prejudice thereby. It will be observed that the act of partition recites that Thomas Barber and his wife owned, at the time of his death, “The following community property,” and then follows a description of the real estate, after which is the statement: “Also some personal property. And said parties, declare and acknowledge that they have entered into the following partition division of said property, to-wit:” And then follows a description of the real estate, the title to which is vested in Watson; “in consideration oí which” (as the act recites) “the said Americus Watson declared that he had given, granted, sold, transferred, released, and delivered to said Thomas Barber, his heirs and assigns forever, all his rights, title, interest, claim, or demand, in, and to, the remainder of the property belonging to the community which existed between said Thomas Barber and said Dorcas Barber, dec’d; and said Americus Watson hereby obligates himself, his heirs and assigns forever, to warrant and defend said Barber in the title to said property, which consists of,” etc. (followed by a description of the real estate, other than that which had been conveyed to Watson). So that, by the words “which consist of,” considered in connection with the property to which they are applied, it is clear that the comprehensive terms of conveyance previously read must be limited to the real estate specifically described, and we must look elsewhere to ascertain what became of the personal property belonging to the community, the existence of which is recognized. But we look in vain. Beyond the recognition of its existence, it is never again mentioned. The crop on the Maxwell tract is spoken of, but it is claimed by Barber, as his individual property, and the claim is conceded. The act, then, establishes the fact that there is “Also some personal property,” which was subject to partition, but it fails to partition it. And we are forced to go outside of the act to find what was done about it. Watson tells us that he subsequently received three mules and fifty-five dollars for his interest in thirty head of cattle, and we think it fairly dedueible that he accepted that distribution as a settlement with respect to the movable property, other than the cash in bank. It is demonstrated, therefore, that whilst the partition of the immovable property was effected by means of the written instrument, the partition of the movable property, not including the cash in bank, was effected outside of that instrument, and hence, testimony at this time, as to what it consisted of, would be irrelevant.

Concerning the money in bank, the plaintiff testifies that he was told that there was no money, and we think it likely that he was uninformed as to the amount, and was content to accept the property which Barber offered to him, with the understanding that he was not to press Barber any further. It is true that the witness testified that Barber wanted to marry again, and in this he is corroborated by the fact that Barber did marry again, but it is also true that until he married, and unless he married, the witness had no claim to any property in his possession as long as he lived. And it is quite within the range of possibility that if Barber had found that a second marriage was likely to prove too expensive, he would have denied himself that luxury, and the plaintiff would have been denied the use and enjoyment of the Maxwell place, and of the mules and the money, of which, as it was, he went into possession immediately.

We are of opinion, then, considering the circumstances as presented, and the fact that the understanding of the parties was not made definite, that a reasonable construction of that understanding leads to the conclusion that Barber was to be left in the enjoyment of such of the community assets as.were not included in the partition — i. e.,-the money —and hence,'that while the action for the supplemental partition is barred only by the prescription of thirty years, the succession of Barber is not liable for the interest upon the balance left in his hands, save from judicial demand, as allowed in the judgment appealed from, which judgment is, therefore, affirmed at the cost of the appellant.

Rehearing refused.

Provosty, J"., takes no part — this case having been submitted prior to his taking his seat on this bench.


source: Caselaw Access Project

author: Breaux, J.

license: Public Domain

text:
    No. 13,858.
    Mrs. Elodie Mire vs. Yazoo and Mississippi Valley Railroad Company
    Syllabus.
    Until the enactment of Statute 70 of 1886 to recover from a railroad corporation for stock killed or injured, one had to prove his demands. He had the onus of proof, and it devolved upon him to show that the injury was the result of defendant’s negligence. By Statute 70 of 1886, the onus of proof is shifted from plaintiff to defendant, and defendant must sustain the material grounds raised in defense.
    Judged by the statutory rule of evidence, it is not with sufficient certainty shown that defendant is not liable. •
    Part of the property was destroyed by defendant’s cars, without its coming to the knowledge of its. employees on the train. The running train collided with one of the animals of plaintiff at one place; a little further on it collided with another ; and, possibly, still further on with a third of plaintiff's animals. The distance run (keeping into account the distance that the headlight threw its light ahead of the train) was distance enough within which to stop the train before arriving at a place where a number of mules were killed, for the value of which the court holds that the defendant is liable. The employees not having seen the two, or possibly the three mules at all, it appears reasonably certain that no timely action was taken toward avoiding the killing of those that had huddled together at the place where a number'were killed'or injured, and for which defendant is.held liable.
    APPEAL from the Twenty-First Judicial District, Parish of Iberville — Talbot, J.

      L. D. Beale, for Plaintiff, Appellee.

      Thomas J. Kernan, for Defendant, Appellant.
   The opinion of the court was delivered by

Breaux, J.

Plaintiff claims damages in the sum of twenty-one hundred and ninety-five dollars for killing eleven of her mules, one horse, and injuring another of her horses, in all thirteen head killed and injured.

Defendant’s train on its way north on the morning of the thirteenth of November, 1899, at about three o’clock was near Bayou Manchac, the dividing line between the parishes of East Baton Eouge and Iberville. Plaintiff had about sixty head of live stock in all. They, in the night, made their escape from the lot in which it was customary to confine and secure them under lock. They passed from East Baton Eouge over the bridge on the bayou Manchac into the parish of Iberville on to a neighbor’s plantation oyer which the railroad runs.

There is a railroad spur below the Manchac bridge at a distance of about nine hundred and seventy-five feet from that bridge. The first mule, after the collision, was found about fourteen hundred feet below the bridge. We judge that the second mule was struck at about eight hundred feet nearer the bridge, and the third about six hundred and twenty-five feet from the bridge. The locomotive engineer in charge of the train testified that directly after he had passed Manchac switch, about one hundred feet, he saw a number of mules ahead in the center and on both sides of the track; he immediately shut off the steam, applied the air brake, opened the sand lever, and the stock alarm was sounded. After he had seen the stock, the engine ran about ninety feet when it struck two mules, just before arriving at the bridge one or two more were struck, and at the bridge they huddled together on each side when a number were struck and killed or injured.

The train consisted of eighteen loaded freight cars, tender and caboose. The testimony discloses that this train was stopped about fifty or sixty feet beyond the bridge in question. At the time of the collision, the train was moving at the usual rate of speed, that is about eighteen or twenty miles an hour. To the following question propounded to the fireman, “Had you been looking out before you got to the switch?” he replied, “I had just finished putting the coal on the fire; I could not see as well as if I had my head out instead of putting coal on the fire.” We will not summarize the testimony at great lenglh at this time, as we will have occasion later, in our opinion, to refer to the facts as shown by the evidence.

The judge of the District Court in an elaborately prepared opinion, arrived at the conclusion that the defendant was liable and pronounced judgment for the plaintiff, condemning the defendant to pay the sum of twenty-one hundred and ninety-five dollars, with legal interest from judicial demand. From this judgment defendant appeals.

We have found, as urged by the defendant, that the train was well equipped and the brake system in good order. No complaint on the ground of inefficiency of the train and appliances finds support in the evidence. The sole question is whether the engineer and fireman should have seen these animals before they did see them. This is the important issue. The engineer and the fireman testify that it was dark and foggy.

Plaintiff’s witnesses not only swear that there was no fog, but say that the atmosphere was not even murky. Some of them say, however, that the night was dark. The number of plaintiff’s witnesses who testified regarding the weather, was larger than those of defendant. This should not be a controlling consideration unless, as in this ease, it is consistent with’ the other facts and circumstances. The judge of the District Court who heard the witnesses on this and other points, says that the preponderance is entirely with the plaintiff. We who do not know these witnesses are inclined, after a study of their evidence, as relates to its weight, to a similar view. The latter were on the ground a few minutes after the accident where they remained for some time, while defendant’s train remained only a few minutes. They, plaintiff’s witnesses, saw where the animals had been thrown and the imprint of their struggle where they fell. They could measure distances and fix upon the place the stock was killed or disabled. The first animal was struck about fourteen hundred feet from the place where the last animal was struck. The testimony informs us that the distance within which it is possible to stop a train of the number of cars loaded as these were is about eight hundred and fifty feet.

Beyond question, the trainmen should have'seen the first mule struck one hundred and fifty feet or two hundred feet before it was struck. They should have seen the second and third before they were struck. They passed and threw them off without knowing it. Although the night may have been unusually dark, and the place also, because of cane breaks near the track, yet it is obvious that the headlight of the train threw light in front a sufficient distance to render it possible to see a mule or horse on or near the track some feet before coming to it. Had the defendant’s employees on the train seen the first mule killed within the scope of the headlight, in all likelihood the result would have been different. Had they seen the second mule struck or the third, the application of the brake at the moment would have broken its force and stopped it in time to avoid the accident at or near the bridge. The defense urges that the first animal struck was standing on the left of the track, that it was of a dark color and that the engineer could not see it from his position at the right of the engine. Granted. What about the second, and third, mules? Why were they not seen? We have not found that these questions are satisfactorily answered by the testimony. Attempts at explanation that are not clear and convincing will not suffice. The eyes of a railroad must be more penetrating than those by which ordinary enterprises are guided. The rapid and frequently dangerous modes of transportation require vigilance at all times. The onus of proof was with the defendant. It devolved upon it primarily to sustain the defense that the “killing or injury was nob the result of fault or carelessness on its part or the negligent or indifferent running or management of their locomotive or train.” Statute 10 of 1886.

Judged by this law, the defense has not made out its case, in so far as relates to the number of animals killed while huddled together at the bridge. It has not satisfied us that proper vigilance was exerted during the run which resulted in killing three of the number. As to these three, in view of the fact that it may be that it would not have been possible to stop in time, we do not think that the deféndant is liable, but as to the others, we are convinced that they are,, if' account be taken of the cited statute.

The decision in Day vs. Railroad Co., 35 Ann. 694, was pronounced several years before the enactment of the statute just cited. Under laws which did not cast the burden of proof on the defendant and did not raise presumptions of negligence, the court in the cited case, reviewing the facts, said that the 'mules were found at a distance one from the other of eight' hundred feet, that the failure of the engineer to stop his train after having struck the first mule is gross negligence and condemned the defendant to pay the value of all the animals killed.

We, desiring to be on the safe side, even under the cited statute, arrive. at the opinion that the defendant is not liable for the three killed as before mentioned, but that it was negligent to kill others immediately after these three which should have served to vigilant eyes as a warning to stop and that the stop would have resulted in not eomriiitting further damages than in killing the three. In the cited case the court held that the act was grossly and culpably negligent. Here it was at least “indifferent running”, words of the statute cited supra. If the employees of defendant were sufficiently energetic, it is not made evident by the testimony. Defendant’s evidence, contradicted as it is by plaintifE’s witnesses on material points, has not resulted in rebutting the presumption the statute creates when accidents happen to live stock. In leaving this subject we will add that the animals as well as the owner are entitled to a timely warning of danger.

It remains for us to determine the amount for which the defendant is liable. A witness who had the opportunity of judging as to the value of these animals said that he estimated their average value at one hundred and eighty dollars. Defendant, as relates to amount is, therefore, charged with the value of eight mules at one hundred and eighty dollars each, making one thousand four hundred and forty dollars; with the value of one horse at one hundred and sixty dollars; and with the injury to one horse at fifty dollars; making a total of one thousand six hundred and fifty dollars.

It is therefore ordered, adjudged, and decreed that the judgment appealed from is amended by reducing the amount from twenty-one hundred and ninety-five dollars to sixteen hundred and fifty dollars, and, after reducing the amount as just stated, the judgment is affirmed with legal interest allowed on the last mentioned amount from date ns stated in the judgment amended.

The costs of appeal are taxed to appellee.


author: Blanchard, J.

text:
    No. 13,952.
    Louis J. Marbury vs. Mrs. Mary E. Colbert.
    Syllabus.
    1. Redeemable sales of Immovable property, unaccompanied by delivery of the thing sold, will be considered, as between tbe parties, m tbe absence of evidence to the contrary, as mere contracts of security, and tbe vendee out of possession may take this position equally with the vendor.
    2. A sale which stipulates the equity of redemption — vente a remere — passes title to the purchaser, but to this end it is necessary that the vendee should give a real and reasonably adequate consideration and take actual possession of the property, or else that such explanation be forthcoming, when required, of the continued possession of the vendor as excludes the idea of his still-existing ownership.
    CERTIFIED from the Court of Appeals, First Circuit, by the judges thereof applying for instructions.
   The opinion of the court was delivered by

Blanchard, J.

This was an appeal from the District Court, parish of Bienville, to the Court of Appeals, First Circuit.

On consideration by the latter’ court the judgment appealed from, which was one rejecting the demand of the plaintiff, was affirmed.

An application for rehearing by plaintiff followed, and, thereupon, the judges of the Court of Appeals, dividing in' opinion, certified to this court the following propositions of law, arising in said cause, concerning which they ask instructions, viz:—

“First. To what extent is parol testimony admissible, in the absence of any allegation of fraud or error, to show that the parties to a contract of sale, in which is stipulated the right of redemption, intended it merely as a security for debt ?”
“Second. Can a vendee in- a contract of sale, stipulating the right of redemption in favor of the vendor, only intended by the parties at the time as a security for debt,-after the expiration of the period of redemption, disregard the so-called act of sale and recover a personal judgment against the vendor for the price stipulated in the contract, as the consideration of the sale?”

The facts are these:—

Mrs. Colbert, the defendant, borrowed of the plaintiff a sum of money. Interest on this sum for the period of the loan was capitalized and the principal and interest thus aggregated $432.

To secure this debt it was agreed that the plaintiff should take title to certain real property, with the reservation of the power of redemption in the vendors.

Accordingly, defendant and others, joint owners, conveyed to the plaintiff certain lots of ground in the town of Gibbsland for the stated consideration of $432, and the act of sale stipulated the right of redemption in favor of the vendors at any time up to January 1st, 1899, on returning the purchase price.

None of the parties to the contract, at the time of its execution, intended it any thing more than as a security 'for money loaned, and the vendors continued in possession of the property, had the same assessed for taxes in their name and paid taxes thereon.

They failed to exercise the right of redemption, and long after the time therefor had elapsed, the defendant notified the plaintiff that she recognized his title to the property as perfected by the failure to exercise the right of redemption, caused the property to be stricken from her assessment for taxes and to be assessed in the name of plaintifE.

Whereupon the plaintiff instituted the present suit against Mrs. Colbert, the borrower of the money and one of the vendors of the property, praying judgment against her for the amount of the loan, principal and interest, already shown to be $432, with recognition of his hypothecary right on the property transferred as security for the debt.

The purpose of his suit is not to have himself decreed owner of the property and put in possession of the same as such. Just the reverse. His object is to enforce his claim as a debt due him by Mrs. Colbert for money borrowed, to recover judgment against her for the amount, to have his debt declared a lien on the property and be made executory.

His contention is not that by the failure of his vendors to redeem he became owner of the property in indefeasible title.

Per contra, his position is that the act of conveyance was never intended to be a sale of the property to him, that in reality it was only intended as security for the return of the money borrowed, that it only conferred, and was intended to confer, in his favor, a special lien or hypothecary security for the debt, that he cannot be forced to take the property for the debt, but is entitled to pursue his debtor in the courts, recover personal judgment against her, executory on the property by reason of the security resulting from the conveyance made to him, and then, if there be any balance of the debt left unsatisfied, hold her for it.

The defense is that the sale was made for the purpose stated in the written act; that plaintiff is estopped to deny the same, or to contradict its recitals, or vary its import; that the transaction became a closed incident when plaintiff’s vendors failed or declined to seasonably exercise the right of redemption; that thereupon and thereafter plaintiff became vested with an indefeasible title to the property, must hold it nolens, volens, must look to it only for reimbursement and satisfaction of the claim he asserts; and that he cannot proceed aliunde this title to hold defendant for the debt.

Wa are not apprised whether or not the consideration of the sale, $432, represent a fair price for the property. Presumably it does and more, since the vendors are quite willing the vendee should hold the property for the debt, and the vendee’s suit shows he is not willing io consider it the equivalent of his claim.

Ruling — Where a sale is made with the equity of redemption stipulated for and the vendor continues in possession of the property as owner during the whole period allowed for the redemption, such a transaction will be regarded, on its face, not as a real sale but as a contract of security.

Here, the vendor remained in possession during the redemptory period, more than twelve months, continued to act as owner, exercised dohiinion over the property, permitted its continued assessment in her name, and paid the taxes thereon.

More than this, it was not until long after expiration of the redemptory period that the vendor notified the vendee she recognized his title to the property, and caused a change in its assessment to be made from her name to his.

Undoubtedly, under the jurisprudence of this State as established by a long line of decisions, this vendor could, under the circumstances as here disclosed, have successfully resisted the demand of the plaintiff to be decreed absolute owner of the property, had he instituted a petitory action to that end, following the expiration of the period of redemption without its exercise.

She could successfully have pleaded that a real sale of the property had not been intended, but only the granting of security rights thereon, and demanded that plaintiff be restricted to making his money out of the property instead of taking the whole under the nominal title.

If this be so as to the vendor why not as to the vendee? It is a poor rule that “will not work both ways.” Has the vendor in such cases greater rights under the law than the vendee ? Is it optional with the vendor to treat the contract either as a sale, or as a mere contract of security, as may suit his interest or convenience, but as for the vendee he is not permitted to treat it otherwise than as a sale, however detrimental to his interest?

We think the vendor has no such superior rights over the vendee.

If Mrs. Colbert may treat the conveyance in question not as a sale, but as a mere pignorative contract, so may her vendee. It would be neither logical nor just to hold such contract a sale as to.one party and as a security as to the other, under the same state of facts.

Hence, we hold that redeemable sales of immovable property, unaccompanied by the delivery of the thing sold, will be considered, as between the parties, in the absence of evidence to the contrary, as mere contracts of security, and either party to the contract is at liberty to maintain this position.

A sale which stipulates the equity of redemption — vente a remero— passes title to the purchaser, but to this end it is necessary that the vendee should give a real and reasonably adequate consideration and take actual possession of the property, or else that such explanation be forthcoming, when required, of the continued possession of the vendor as excludes the idea of his still existing ownership.

It is believed that these conclusions are supported by the following authorities:—

Collins vs. Pellerin, 5 La. Ann. 99; LeBlanc vs. Bouchereau, 16 La. Ann. 11; Ware vs. Morris, 23 La. Ann. 665; Parmer vs. Mangham, 31 La. Ann. 348; Crozier vs. Ragan, 38 La. Ann. 154; Howe, Executor, vs. Powell, 40 La. Ann. 307; Baker vs. Smith, 44 La. Ann. 925; Davis vs. Kendall, 50 La. Ann. 1121.

And it is considered that in the announcement of these conclusions will be found a sufficient answer to both questions propounded herein.

It is ordered that this ruling be certified to the Honorable Court of Appeals, First Circuit, for its guidance.

Provosty, J., dissenting, handed down a written opinion in this case.


author: Monroe, J.

text:
    No. 13,688.
    Havana American Company vs. Board of Assessors et als.
    Syllabus.
    1. An appeal will not be dismissed, under C. P. 897, for failure of'the appellant to file an assignment of errors, where the transcript is duly certified as containing all the testimony adduced, and the grounds for reversal relied on are apparent upon the face of the record.
    2. The exemption accorded to manufacturers, under Article 207 of the Constitution-of 1879, as extended by_ the amendment proposed By the joint resolution No. 92 of 1886, became operative upon, the adoption of that Constitution prior to January 1st, 1880, and continued in force for twenty years.
    8 If any tax-payer, entitled to such exemption, paid the tax of 1880, *he has a claim for reimbursement, but such payment does not authorize the extension of the period of the exemption, as fixed by the Constitution.
    APPEAL from the Civil District Court, Parish of Orleans — Ellis, J.

      Dinkelspiel & Hart (Edward Dinkelspiel of counsel), for Plaintiff, Appellee.

      Edward K. Skinner, for Board of Assessors, Defendants, Appellants.

      Francis G. Zacharie, for State Tax Collector, Defendant, Appellant.
   The opinion of the court was delivered by

Monroe, J.

Plaintiff sued in the District Court to annul an assessment, upon merchandise and machinery, for State and city taxes for the year 1900, upon the following grounds, as stated-in its petition, to-wit:

That, under the Constitution of 1879, as amended in 1888 by virtue of joint resolution No. 92 of 1886, said property was exempted from taxation for a period of twenty years; that the first year in which said exemption was made was the year 1881, the taxes for 1880 having been paid on said property; that, therefore, said exemption does not expire until the year 1900, inclusive, only after which date can property exempted, because used for manufacturing purposes, from municipal taxation, be assessed for State taxes; that petitioner made due demand upon said Board of Assessors to erase said null and void assessment without avail; that petitioner is entitled to the cancellation of said taxes for the reasons above stated.”

The case as against the city of New Orleans was discontinued, but judgment by default was entered and confirmed against the Board of Assessors and the State tax collector with respect to the State tax, and those defendants have appealed.

When the case was called for argument- the counsel for the plaintiff suggested that the appeal should be dismissed, under Art. 897 C. P., because of the failure of the appellants to file an assignment of errors. The transcript is certified by the clerk as containing all the evidence adduced on the trial, and the grounds upon which the defendants rely for a reversal of the judgment are apparent upon the face of the record. It has been held that Article 897 of the Code of Practice does not apply in such a case. Nott et als. vs. Brander et als., 14 La. 370; Waters, Camden & Co. vs. Briscoe, 11 Ann. 639; Bossier vs. Carradine, 18 Ann. 261; Keller vs. Judson, 18 Ann. 282; State of Louisiana (Hubert Gerard, Relator), vs. Adam Giffen, Treasurer, et als., 15 Ann. 420.

On the merits; the proposition of the learned counsel is, that the property in question, being capital and machinery used in the manufacture of articles of wood, in a factory employing not less than five hands, was exempted from taxation, under Article 207 of the Constitution of 1879, and the amendment thereto, as set forth in Act 92 of 1886, for a .period of twenty years, and that the twenty years did not expire until the end of the year 1900, for the reason that said exemption did not become operative until 1881.

The convention which adopted the Constitution of 1879 met upon April 1st and adjourned upon July 23rd of that year. By Article 262 of said Constitution, provision was made that it should be ordained and established from and after the last Monday in December, 1879; and it was so ordained and established, and the General Assembly, elected under its authority, convened upon the 12th day of January, 1880. The exemption, therefore, became operative upon, or before, the first day of January, 1880, and if the plaintiff paid taxes for that year, it may have a claim against the State for reimbursement, but it does not follow that “the exemption of twenty years from the adoption of the Constitution of 1879,” as granted by the amendment of 1886, is, therefore, to be extended so as to include twenty-one years.

For these reasons, it is ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and reversed and that the demand of the plaintiff be rejected and its suit dismissed at its cost in both courts.

Eehearing refused.

Provosty, J., takes no part, this ease having been submitted prior to his taking his seat on this bench.


author: Monroe, <T.

text:
    No. 13,689.
    S. Hernsheim Bros. & Co., Ltd., vs. Board of Assessors et als.
    Syllabus.
    1. An appeal will not be dismissed, under C. P. 897, for failure of the appellant to file an assignment of errors, where the transcript is duly certified as containing all the testimony adduced, and the grounds for reversal relied on are apparent upon the face of the record.
    2. The exemption accorded to manufacturers, under Article 207 of the Constitution of 1879, as extended by the amendment proposed- by the joint resolution No. 92 of 1886, became operative upon the adoption of that Constitution prior to January 1st, 1880, and continued in force for twenty years.
    3. If any tax-payer, entitled to such exemption, paid the tax of 1880, he has a claim for reimbursement, but such payment does not authorize the extension of the period of the exemption, as fixed by the Constitution.
    APPEAL from tihe Civil' District Court, Parish of Orleans — Si. Paul, J.

      Dinkelspiel & Kart, (Edward Dinkelspiel of counsel), for Plaintiff, Appellee.

      Francis C. Zacharie, for State Tax Collector, Defendant, Appellant.

      Edward K. Skinner, for Board of Assessors, Defendants, Appellees.
   The opinion of the court was delivered by

Monroe, <T.

The facts and the law of this case are the same as in the case of Havana American Co. vs. Board of Assessors et al., this day decided.

For the reasons assigned in that ease, therefore, it is ordered, adjudged and decreed that the judgment appealed from herein be annulled, avoided, and reversed, and that the demand of the plaintiff he rejected at its cost in both courts.

Rehearing refused.

Provosty, J., takes no part, this case having been submitted prior to his taking his seat on this bench.


author: Blanchard, T.

text:
    No. 13,681.
    Alexander C. Hutchinson vs. Henry Rice et al.
    Syllabus. .
    1.. One, who, without interest as creditor, co-debtor, or heir, pays the mortgage note of another acquires no subrogation to the rights of the creditor unless it be expressed, and made at the same time as the payment. He has a claim for reimbursement against the party for whose benefit the payment was made, but only as ordinary creditor.
    2. The pledgee of mortgage notes, receiving same after their maturity, may claim no greater rights than the pledgor had, certainly so far as the mortgage securing the notes is concerned.
    3. While Art. 2160 of the Code declares that a debtor, borrowing a sum of money to pay his debts, may, by public notarial act, subrogate the lender to the rights of the creditor, and that this subrogation takes place independently of the creditor, the recital is controlled by Art. 2162, which, in effect, provides that in case of a subrogation made by the debtor, the creditor may exercise his right for what remains due him in preference to the debtor's subrogee.
    APPEAL from tbe Civil District Court, Parish of Orleans— King, J.

      Denegre, Blair & Denegre and Andrew Hero, for Plaintiff, Appellee.

      Dart & Ke7-nan for Louis Mathis, Defendant in Rule, Appellant.

      Dinkelspiel & Hart (Edwai-d Dinkelspiel, of counsel), for Metropolitan Bank, Defendant in Rule, Appellant.
   The opinion of the court was delivered by

Blanchard, T.

Plaintiff was the holder of four notes, each for $13,500, and of one for $1620, executed by Henry Rice to his own order and by him endorsed.

These notes were secured by special mortgage which Rice had eon sented to in favor of the plaintiff, resting on certain property owned by Rice.

They were the last of a series of notes secured by the mortgage. All of the series had been held by the plaintiff, and those to first mature had been taken up, as they fell due, ~by payment, as plaintiff thought and believed.

The last of the series (those first above referred to) not being met at maturity, plaintiff sued out executory process in -foreclosure of the mortgage.

At the sale which followed, he became the purchaser of the mortgaged property for a sum less than the aggregate of the notes sued on.

It appearing that there had been no cancellation of the mortgage as to the earlier notes which he had parted with on the supposition of their payment, and that one of said notes for $1000 was claimed to be held by Louis Mathis, and ten of same, aggregating $10,620, were claimed to be held by the' Metropolitan Bank, and that these respective holders asserted mortgage rights on the proceeds of the sale, plaintiff took a rule on all parties in interest to show cause why the mortgage as to the notes referred to should not be declared extinguished and its inscription erased from the mortgage records, and also why a tax lien for the State taxes of 1898, on the property, said to be asserted by the Metropolitan Bank, should not be declared of no avail as against the seizing creditor and purchaser.

The bank answered claiming to hold the notes in its possession under pledge executed by Henry Rice & Son, a commercial firm, to secure ail indebtedness due- it by the firm for advances of money made. In other •words, the bank held the notes as collateral to secure overdrafts and bills payable to it by the firm of Henry Rice & Son. A written act of pledge of the notes to the bank, it seems, was made by the. firm.

Its contention is the notes were never paid, but, on the contrary, were merely taken up by the firm of Henry Rice & Son and subsequently pledged to it, without notice or knowledge on its part that they were otherwise than valid, subsisting obligations secured by mortgage

The contention of Mathis is that he loaned Henry Rice the money to take up out of the hands of the plaintiff the note he holds; that the identical money he supplied was used for the purpose; that at the time, he and Rice appeared before a notary public 'and Rice executed to him and in his favor an act of conventional subrogation of all the rights in and to the note and mortgage 'securing it which the then holder (plaintiff herein) had; and that this public act of subrogation makes all the recitals and declarations required by clause 2 of Article 2160 of the Civil Code.

' Both the bank and Mathis claim to share pro rata in the .proceeds of the sale of the mortgage property. •

The judgment of the trial court sustained the plaintiff’s rule, made the same absolute, ordered the cancellation of the mortgage to the extent of the notes 'held by the bank and the one held by Mathis, denied to both any participation in the proceeds of the sale, and denied to the bank any lien on the property for taxes paid.

This appeal by the bank and by Mathis followed.

Ruling — The evidence shows the notes which the Metropolitan Bank holds were paid at their maturity, and were acquired by the bank after-wards.

As the notes fell due, Philip Rice, who was the junior member of the firm of Henry Rice & Son, appeared at the plaintiff’s place of business and paid them to parties there who had been designated by plaintiff, in his absence, to réeeive the money.

These agents of the plaintiff had no other thought than that they were receiving payment of the notes. There was no intention or purpose whatever, on their part, to sell or transfer them to Phil Rice, or to the firm of Henry Rice & Son.

The firm’s checks were given in payment of the notes, which required no endorsement of the plaintiff (the holder), since they were not payable to his order, but that of their maker, Henry Rice, who had endorsed them in blank at the time the mortgage was executed. So, when the money was forthcoming to meet the notes, the parties acting for plaintiff merely handed the notes over to Phil Rice.

No word whatever was said between them and himi that the notes were not being paid, but taken up by those'interested in keeping them alive as outstanding obligations. There was nothing said or done to indicate that the transaction was otherwise than as they considered it— a payment. Phil Rice intimated in no way that he was not paying the notes, but buying them for his firm.

He, the evidence shows, had authority from his father, the maker of the notes and the head of the firm, to handle the financial affairs of the firm.

His authority to pay the notes with the firm’s money undoubtedly existed. That he did so, the evidence satisfies us.

If he-intended not to pay the notes for his father, but to buy them for his firm, he should have so notified plaintiff’s agents.

Had he done this, those acting for plaintiff would not have received his money and surrendered to him the notes, or else, receiving it, would have endorsed on the notes their subordination, so far as the mortgage was concerned, to the remaining notes held by plaintiff.

There was here no conventional transfer and subrogation. Such subrogation occurs, declares C. O. 2160, “when the creditor, receiving his payment from a third person, subrogates him in his rights, actions, privileges and mortgages against the debtor; this subrogation must be expressed and made at the same time as the payment.”

Subrogation to a creditor’s rights and liens only takes place in favor of a third person who pays the debt (if such third person has no interest in paying it) by an express agreement tci that effect entered into at the time of payment.

Brice vs. Watkins, 30 La. Ann. 21; Hoyle vs. Cazabat, 25 La. Ann. 438; Fishel vs. Mercier, 37 La. Ann. 359.

Hence, “payment of a note secured by mortgage by one not bound for it, and who had no interest in discharging it, will not subrogate him to the rights of the party to whom he paid. The payment will extinguish the debt and the mortgage given to secure it; and the claim for reimbursement will constitute the party who paid an ordinary creditor of him for whose benefit the payment was made.”

Nicholls vs. His Creditors, 9 R. 476; Wiel vs. Ginnery Co., 42 La. Ann. 493.

So, too, there was here no. legal subrogation. The firm of Henry Eiee & Son are not shown to have been creditors of Henry Eice and, therefore, as such having an interest to take up the latter’s outstanding mortgage liabilities. Neither were they co-debtors of the debt and, thus, interested in discharging it. C. C. 2161; Bank vs. Compress Co., 43 La. Ann. 841; Zeigler vs. His Creditors, 49 La. Ann. 145.

The Metropolitan Bank, receiving the notes from Henry Eiee & Son, aft’fir maturity, can claim no greater rights than the firm itself had, certainly so far as the mortgage securing the notes is concerned. And we hold that Henry Eiee & Son did not buy the notes of plaintiff; the latter did not sell to him. The transfer was a payment, and Eice & Son and their pledgee, the bank, can make nothing else out of it against the will and to the detriment of the plaintiff.

It was not the case of notes being held as collateral security merely, where upon payment of the original debt the collateral would pass unimpaired to the debtor, to¡ be validly reissued by him under some circumstances. Levy vs. Ford, 41 La. Ann. 873.

As to the State taxes for the year 1898, the bank in its answer sets up no claim on account of taxes paid by it. It does not ask to be recognized as subrogated to the State’s lien on the property.

Besides, the evidence shows that the receiver appointed to the insolvent firm of Henry Rice & Son secured an order from the court directing him to pay these taxes. Ha obtained the money from the bank for the purpose, or got the bank to pay the taxes, and issued to the bank his receiver’s certificate covering the amount, with 8 per cent, interest. He then applied to thu court for its approval of the certificate as a debt of the receivership, to be paid in due course of administration, and the court granted the order.

This was a year before the purchase of the property by the plaintiff, and during this time the bank asserted no privilege on the property for taxes paid. It seems to have been content tq look to the receiver’s certificate for reimbursement. It filed no third Opposition claiming to be paid by preference over plaintiff the amount of the taxes it had paid, and it does not appear that the bank took any subrogation from the tax collector, on payment of the taxes, as seems to be contemplated by Sec. 88 of Act 85 of 1888, and Sec. 89 of Act 170 of 1898.

Again, as we have seen, the bank did not occupy the position of holder of mortgage securities affecting the property on which it paid taxes, and can not, therefore, claim legal subrogation on that ground.

The same is true of Henry Rice & Son, whose receiver took the action above referred to for payment of the .taxes of 1898.

On the whole, we do not think the tax lien made out, even if the bank had claimed benefit of same.

As to the mortgage note held by Louis Mathis, it appears a notarial act of subrogation was made to him by Henry Rice pursuant to the 2nd clause of O. O. 2160.

The plaintiff, holder of the note at the time, was no party to this act, and while the Code declares (Art. 2160) such subrogation takes place independently of the will of the creditor, this recital is controlled by Art. 2162, which, in effect, provides that in ease of a subrogation made only by tbe debtor, the creditor may exercise his right for what remains due in preference to the debtor’s subrogee.

See Hoyle vs. Cazabat, 25 La. Ann. 438.

Judgment affirmed.

Provosty, J., takes no part.


author: Provosty, J.

text:
    No. 13,873.
    Baer Bros. vs. Mrs. C. G. Terry and Husband.
    Syluabus.
    1. It is beld that defendant's husband was acting for his own account and not as agent of defendant in buying the mules, the price of which is sued for.
    2. If by Missouri law a wife may bind herself for a debt of her husband, and if a wife while residing in Missouri does so bind herself, the obligation will be enforced against her after she becomes a resident of this State.
    3. Capacity to become obligated on promissory notes is tested by the law of the domicile, not by the law of the place where the notes are payable.
    IN EE Baer Bros. Applying for Gertiorari, or Writ of Eeview, to the Court of Appeals, Second Circuit, State of Louisiana,

      Hudson, Potts & Bernstein, for Applicants.

      Andrew A ugusius Gunby, for Defendants, Eespondents.
   The opinion of the court was delivered by

Provosty, J.

The husband of the defendant bought twelve mules 'of the plaintiffs in Bellville, Illinois, and for $677.50 of the price gave the two notes of himself and defendant, executed in St. Louis, Missouri, and reading, we promise to pay; and for $27.00 of the price gave a note executed in Bellville, Illinois, and signed by himself alone. He represented to the plaintiffs that he was buying the mules for his wife and as her agent.

The petition, after alleging the sale, without however stating where it took place, and after alleging the indebtedness of-the defendant for the purchase price, and that the consideration of this indebtedness inured to the separate benefit of defendant and of her paraphernal property — goes on to allege that at the date that the sale was made three notes were given by defendant, and that these notes are annexed to the petition for reference. The notes are not expressly stated to have been given for the purchase price of the mules, and are not described, except as here stated. They were filed with the petition.

Defendant is sued as purchaser of the mules, not as-maker of the notes; she is sued as a Louisiana wife bound for the price of movables purchased by her for the separate benefit of herself and her paraphernal property; not as a Missouri wife bound on notes executed by her in the State of her domicile, for a debt of her husband. The petition contains not a word of allegation of the laws of Missouri, or of the notes having been executed while defendant was a resident of Missouri.

These things in order to be proved'had to be alleged; and in this we agree with defendant’s counsel. But we differ with the able and learned counsel in his contention that because the notes are made payable in Louisiana, the capacity of the defendant to make them must be tested by Louisiana law. Capacity to contract is tested by the law of the domicile. Rorer Interstate Law, p. 263. Nor do we agree with the counsel’s contention that, assuming defendant to have been liable on the notes before she came to this State, the law of this State prohibiting wives from binding themselves for the debts of their husbands precludes recovery against hei-j That law is satisfied and its whole object and purpose is accomplished when Louisiana wives are protected against binding themselves for the debts of their husbands; — this protection is not extended to Missouri wives, and if these bind themselves in the State of their domicile for the debts of their husbands, they cannot be permitted to come to this State to be 'divorcéd from their obligations. When defendant crossed our borders as an immigrant to our soil the debt was already hers, and it has continued to be such. There is nothing in the atmosphere of Louisiana law and Louisiana jurisprudence to disintegrate, or dissolve, valid obligations; to such it is a healthful and bracing atmosphere.

Is defendant bound as purchaser of the mules? At the time of the purchase of the mules and of the execution of the notes defendant and her husband lived in St. Louis, Missouri. They each owned a plantation in Louisiana, near Monroe. The defendant’s plantation was in charge of renters, who supplied themselves and owned their own teams. Defendant’s control and management of the plantation consisted in being owner of it and in receiving the rent after the local bank had collected it. The husband of defendant would come to Louisiana every spring, to see after his own plantation, and would incidentally attend to taking the rent notes from the defendant’s tenants — who were the same from year to year — and in depositing these notes in the local bank. The twelve mules were consigned by the husband to a merchant in Monroe with whom he was dealing, and were placed in a livery, and there were taken by tenants from both plantations, by arrangement made with the husband, five of the mules going to defendant’s tenants. These tenants had good credit with the local merchants, and nothing shows that there was any necessity for the defendant to get mules for them, or that the mule transaction was not a venture of the husband’s on his own private account. The defendant testifies that she did not buy the mules; that her husband bought them for his own account; that she had nothing' to do with the transaction; that her husband was not. her agent. From these facts there is but one possible conclusion, and that is that the husband was not the agent of defendant in the purchase of the mules. His saying to plaintiffs that he was her agent, did not make him so. The statements did not emanate from the defendant, and were not in the nature of admissions; and when sought to be proved by the witnesses who heard them were merely hearsay, and were properly objected to on that ground.

The judgment of the Court of Appeals is affirmed with costs in both courts.


text:
    No. 13,737.
    Bridget Decuir et al. vs. Godfoy Decuir et als.
    Syllabus.
    1. If a judgment be absolutely void for defects patent on the face of the proceedings, the party opposing its effects as to him is not driven to a direct action in the court which rendered it to secure the declaration of its nullity
    2. Thus, in a suit for partition of property, where defendants interpose a former judgment and sale under it as a shield of defense, plaintiffs may, In the court seized of jurisdiction of the cause, urge as against such judgment the existence of absolute nullities rendering the same void.
    APPEAL from the Nineteenth Judicial District, Parish of Iberia— Thorpe, Judge ad hoc.

      Edward Simon, -for Plaintiffs, Appellants.

      Walter J. Burke & Bro. and Louis Octave Hacker, for Defendants, Appellees.
   The opinion of the court was delivered by

Blanchard, J.

Three plaintiffs. Bridget Deeuir, wife of Prade, Odile Deeuir, wife of Guillory, and Eugenie Deeuir, wife of......... instituted suit against a number of defendants, alleging them to be their co-owners, for partition of a tract of land in Iberia parish, containing 160 arpents.

The allegation is made that the property cannot be divided in kind and its partition by licitation is sought.

Defendants answer, in substance, that the land in question was sold at sheriff’s sale in September 1873 under a decree of court; that prior to this sale it was divided into four lots of 40 arpents each; that at said sale Alexander Singleton, Joseph Deeuir, William Ferdinand and Godfoy Deeuir each purchased one of the 40 arpent lots; that the purchasers went into possession respectively of the lots so purchased and erected improvements on same; that they have held as owners in good faith under titles translative of property for more than twenty-three years; and that their title is protected by prescription which they plead.

The tract of land in question was originally owned by Balthazar Decuir. He died in 1861 and his succession was opened in the parish of St. Martin, where he had lived and where the land was situated.

He left a large family of descendants and the parties in interest in this suit are his heirs at law.

Singleton, Ferdinand and Joseph Deeuir, who purchased as above at the sale made in 1873, had all married daughters of Balthazar Deeuir. Godfoy Deeuir, who was the other purchaser, was his son.

Following the death of Balthazar Deeuir, Alexander Singleton became curator of his succession. He caused all the property of the succession, save the realty (the tract of land now in question) to be sold, paid out of the proceeds all the debts and charges against the estate, and filed an account showing a balance due the heirs and a tableau of distribution of the same among them. This was in 1861.

The Civil War coming on, nothing further appears to have been done in this succession until 1872, when Bridget Deeuir, wife of Prade, Joseph Deeuir, husband of Elizabeth Deeuir, and Godfoy Deeuir filed a petition in the then parish court of St. Martin’s parish, alleging their heirship of Balthazar Decuir and giving the names of other descendants and heirs, whom they made parties defendant.

They averred the ownership in indivisión of these heirs in the tract of land now in question, that they were unwilling to hold the same longer in indivisión, and desired its partition.

They represented it could not be divided in kind to advantage among so many and asked its sale to effect partition.

An order or judgment in this proceeding was rendered in August 1873, directing the sale of the property and a commission issued to the sheriff of Iberia parish to effect the sale, which he did, and it was at this sale that Alexander Singleton, Joseph Decuir, William Ferdinand and Godfoy Decuir purchased as aforesaid.

It is this sale that the defendants herein rely upon to defeat the present demand for partition.

In reply to the answers of defendants setting up this sale in bar of the action, plaintiffs filed an amended petition, in which they averred that the tract of land is still held in common by the heirs of Balthazar Decuir for the reason that the judgment ordering the sale just alluded to and the sale itself were and are absolute nullities.

This nullity, it is represented, grows out of the fact, among others averred:—

That Eugenie Decuir, one of the heirs (and one of present plaintiffs), was not cited, nor legally represented in said suit and made no appearance therein — being at the time an absentee from the State.

That Odele Decuir, wife of Guillory, one of the heirs, was not asked to be cited, was not cited and did not become a party to the suit. That the suit being an ordinary action for partition by heirs against heirs, all of full age, and the property being of a value exceeding $500, the Parish Court of St. Martin’s parish was without jurisdiction, the property being situated out of the parish and defendants being non-residents of the parish. 'That Alexander Singleton became a purchaser at the sale of a portion of the property in the teeth of a prohibitory law —he being at the time administrator of the succession.

The prayer of this amended petition was the same as in the original petition — that the partition be ordered and the property be sold to effect it.

The territory now forming the parish of Iberia originally pertained to the parishes of St. Mary and St. Martin.

In 1868 the parish of Iberia was created. That part of the new parish where the land in question is situated was, prior to 1868, within the jurisdiction of St. Martin parish. So that, when the partition suit of Bridget Decuir et al. vs. Celimene Decuir et als., No. 6789 on the docket of the Parish Court of St. Martin parish, was instituted in 1872, it was with reference to property then situated in another parish, and against defendants residents of that other parish.

The trial judge looked upon the instant suit as one to set aside and annul the judgment rendered by the Parish Court of St. Martin parish in 1873 and the sale of realty made by the sheriff of Iberia parish in that year in virtue of that judgment.

In this he was mistaken. The present suit has for its object the partition of property represented to be still held in undivided ownership by the heirs of Balthazar Decuir.

Holding that under Article 608 of the Code of Practice an action of nullity can only be brought before the court, or its successor, which rendered the judgment, and that no discretion was left to him since the record disclosed patent on its face a jurisdiction other than his, he dismissed the suit for want of jurisdiction, reserving to plaintiffs all legal rights in the proper forum.

The error of this ruling lies in the failure of the judge to distinguish between judgments that may be voidable and those absolutely void.

As to the former, suits of nullity must be brought before the court which rendered the judgments. As to the latter, if a judgment is absolutely null for defects patent on the face of the proceeding, the party opposing its effect as to him need not resort to a direct action in the court which rendered it to secure the declaration of its nullity.

Bledsoe vs. Erwin, 33 La. Ann. 618. In that ease the court used this language:—

“If the charge of nullity of judgment had been coupled with a main and controlling demand, the question of validity of judgment could be inquired into and determined by any court having jurisdiction of that demand, which was the true or real object of the suit.”

And it was there held that in an action to recover land from one who claims to have acquired it under a judgment absolutely null, it is not necessary that the plaintiff should even allude to such judgment.

See also Clark vs. Hebert, 15 La. Ann. 279.

If a judgment be an absolute nullity, 'this nullity may be invoked by any one against whom it is interposed, at any time and anywhere.

This proposition is supported by a long line of decisions of which the following are some:—

Edwards vs. White, 29 La. Ann. 650; Alter vs. Pickett, 24 La. Ann. 515; Bernard vs. Vignand, 1 N. S. 8; Quine vs. Mayes, 5 R. 511; Williams vs. Clark, 11 La. Ann. 761; Simpson vs. Hope, Sheriff, 23 La. Ann. 556; Madden vs. Fielden, 19 La. Ann. 505; Walnorth vs. Stevenson, 24 La. Ann. 251; Conery vs. Rotchford, Brown & Co., 30 La. Ann. 692.

If the Parish Court of St. Martin parish, which rendered the judgment and ordered the sale upon which defendants herein rely, was without jurisdiction raiione materiae to entertain the suit, the judgment and the sale predicated upon it are absolute nullities, the judgment never existed as a judgment, and this could be taken advantage of by plaintiffs in the present suit in the District Court of Iberia parish. They are not driven, as the court ruled, to a direct action to annul in the court of St. Martin parish.

Alter vs. Pickett, 24 La. Ann. 515-517; Edwards vs. Edwards, 21 La. Ann. 611; Hartman vs. Rentrope, 21 La. Ann. 662.

So, too, if a judgment be rendered without citation, and when there has been nothing deemed by the law the equivalent of citation or appearance, it imports such an absolute nullity that any one the least interested in opposing its effects may have such nullity pronounced, and it may be so pronounced by the court having jurisdiction of the then main demand, whether it be the tribunal which rendered the void judgment, or some other.

Walnorth vs. Stevenson, 24 La. Ann. 251; Simpson vs. Hope, Sheriff. 23 La. Ann. 556; Madden vs. Fielden, 19 La. Ann. 505.

Here it is urged by plaintiffs that the Parish Court of St. Martin had no jurisdiction ratione materiae in the matter of the judgment and sale of property ordered in 1873. It is insisted that the Parish Court, under the Constitution of 1868, had no jurisdiction of a suit for partition of property where the value óf the property exceeds $500.00, and Johnson vs. Labatt, 25 La. Ann. 143, is cited in support of this.

It is further insisted that in matters relative to the partition of real property, suit must be brought in the parish where the property is situated, and C. P. 105 is cited.

Again, it is urged that one of the heirs, who was a non-resident of the State (now one of plaintiffs), was not cited, or represented in that suit, and that others were not legally cited, nor made appearance in the case the equivalent of citation. It is insisted that in a suit for the partition of succession property all the heirs must be made parties, and where one of the heirs is not made a party the judgment ordering partition is null. In support of this C. P. 1024; Miguez vs. Delahoussaye, 25 La. Ann. 531, and Kindrick’s Heirs vs. Kindrick, 19 La. Ann. 36, are cited.

It is further urged that Singleton, the administrator of the succession, the partition of whose remaining property, after payment of the debts, among the heirs was the object of the suit in St. Martin parish in 1872 and 1873, became the purchaser of part of the property, and it is insisted that the sale, certainly as to the property he bought, is a nullity because contravening a prohibitory law.

It is not our purpose to pass upon any of these questions now. They have not been adjudicated by the court of the first instance. The case comes to us practically dismissed by the district judge upon an exception of want of jurisdiction.

We hold there was error in this, and that the case must be sent back.

We hold, further, that the present suit is one for partition of property, and that when defendants interpose a former judgment of sale under it as a shield of defense, plaintiff may urge as against such judgment the existence of absolute nullities rendering the same void ah initio, and is entitled to have the issue thus raised passed upon, and is not driven to bring an action of nullity in the court of St. Martin parish.

All rights to all parties in reference to these issues are reserved.

For the reasons assigned, it is ordered, adjudged and decreed that the judgment appealed from be avoided and reversed and that this cause be remanded to the court a qua for further proceedings according io the views herein expressed and the law- — appellees to pay cost of appeal.

Provosty, J., takes no part.


author: Monroe, J. Blanci-iard, J.

text:
    No. 13,608.
    Kate P. Jourdan vs. H, L. Garland, Jr.
    Syllabus.
    1. Act No. 50 of 1886 so amends Article 375 C. P. as to permit the recovery of damages as against the plaintiffs in the writs, and in the same proceedings whereby the writs are set aside, in all cases of illegal arrest, attachment, sequestration, provisional seizure and injunction.

      2. It follows that the plaintiff in executory process whose order of seizure and sale has been enjoined may reconvene and, in the same proceeding, obtain judgment dissolving the injunction and condemning the plaintiff in injunction in damages.
    3. But there has been no change in the law upon the subject of the right or manner of recovery as against the surety on the injunction bond in such a case, as to whom the defendant in injunction must, as heretofore, resort to an action on the bond.
    IN EE. Gabriel Sintes et als. applying for certiorari, or writ of review, to the Court of Appeals, Parish of Orleans, State of Louisiana.

      Theodore Gotonio for Appellant.

      William 8. Benedict for Miss Kate P. Jourdan, Eespondent.
   The opinion of the court was delivered by

Monroe, J.

On the application for a rehearing by Blanchard, J.

Monroe, J. Miss Kate P. Jourdan, the titular plaintiff in this suit, being the holder of certain past due notes, executed by the defendant, H. L. Garland, Jr., and secured by mortgage on real estate in. New Orleans, caused the mortgaged property to be seized, under executory process, and advertised to be sold in satisfaction of her claim. Thereupon, the proposed sale was injoined at the suit of Mrs. Caroline Cotonio, and Gabriel Sintes became the surety upon the injunction bond. There was a trial in the District Court resulting in a judgment for the defendant in injunction dissolving the writ and condemning the plaintiff in injunction and the surety on the- bond in damages, and the parties so condemned appealed to the Court of Appeal for the Parish of Orleans, where the judgment appealed from was affirmed. Thereupon, and after an ineffectual attempt to obtain a rehearing, said parties applied to this court for relief by way of certiorari and review, setting forth various grounds of complaint and among them that the seizing creditor was not entitled to recover damages in the same proceeding in which the injunction was set aside. Upon the petition filed by them, the following order was made, to-wit: "The writ applied for “ is denied as to the judgment rendered by the Honorable the Court of “ Appeal in so far as the same deals with the merits of the injunction,

“ and granted as to that part of the judgment which sustains the decree “ of the District Court awarding fifty dollars damages against the “ principal and surety on the injunction bond,” etc.

The only question which we have now to consider, therefore, is as to the correctness of the judgment condemning the plaintiff in injunction and the surety on his bond in damages in the same proceeding wherein the injunction was dissolved.

In Dejean vs. Hebert, et als., 31 Ann. 729, it was said by this court: “ The order of seizure and sale is so far a judgment that it can bo “ appealed from, but it is not a judgment in the true, legal, sense of the “ term; it does not possess all its features. It is granted without citación, decides! no issues, adjudicates no rights, in addition to those “ mentioned in the act, and the party injoining such an order can, with “ his surety, be held liable but by an action on the bond.”

This ruling was affirmed in Thompson vs. Lemelle, 32 Ann. 933; Burgess et al. vs. Gordy, Sheriff, 32 Ann. 1296; Hodgson vs. Roth, 33 Ann. 941; Boyer vs. Sheriff, 40 Ann. 657; Simonds vs. Sheriff, et als., 46 Ann. 473.

Of the decisions thus referred to, but two have been rendered since 1886, and in neither of these does it appear that Act No. 50 of that year was called to the attention -of the court. That act amends and re-enacts Article No. 3Y5 of the Code of Practice, which is an article providing in what cases reconventional demands may be brought. The amendment consists in the addition of the following language, to-wit: “And " provided further, that in all cases of arrest, attachment, sequestration, “provisional seizure, and injunction, the defendant may, in the same “ suit, by reconventional demand, recover from the plaintiff the “ damages he may have sustained by the illegal resort to such writ.”

There can be no doubt that, under the law, the defendant in any injunction, whether against an order 'of seizure and sale or against an ordinary judgment, is entitled “to recover from the plaintiff” in such injunction, in the same proceeding, and upon a demand in reconvention, such damages, as he (the defendant) may have sustained by reason of the illegal resort toi the writ. And it has been so held in Syndic vs. Sheriff, et als., 48 Ann. 410. But it does not follow from this that there can be such recovery from the surety on the injunction bond. The right to recover from the surety, in the same judgment in which the injunction is dissolved, is conferred by Article 304 C. P. But Article 304, as we have-seen, applies only to cases where ordinary judgments are injoined and not to injunctions restraining orders of seizure and sale; and -whilst the Act of 1886, amending Article 375, places all injunctions on the same level so far as the right to recover damages against the plaintiff is concerned, there has been no change in the law with respect to the right of recovery as against the sureties on the injunction bonds, which remains as it was before the passage of said act. It follows, therefore, that where an order of seizure and sale is in-joined, the defendant in such injunction, in obtaining the dissolution of the writ, may obtain judgment, in reeonvention, for damages against the plaintiff in injunction, but not against the surety on the bond, as to whom he must, as heretofore, resort to an action on the bond.

It is, therefore, ordered, adjudged and decreed that the judgment of the Court of Appeal, rendered in the matter of Kate P. Jourdan vs. H. L. Garland, Jr., affirming the judgment of the District Court in said cause, and condemning Gabriel Sintes, surety, in the sum of fifty dollars ($50), as.also the judgment of the District Court, which was thus affirmed, be annulled, avoided and reversed, in so far as said judgments condemn said Sintes, and that the reconventional demand of said Kate P. Jourdan, as against said Gabriel Sintes, be dismissed, reserving, however, to said plaintiff in reconvention her recourse upon the bond signed by said Sintes by means of a separate action.

It is further ordered that said Sintes recover from said Kate P. Jourdan such costs as may have been legitimately expended by him.

It is further ordered that the demands of the applicants be, in all other respects, denied and this application dismissed at the cost of Mrs. Caroline Cotonio. ■

On Application for Rehearing.

Per Curiam.

Blanci-iard, J.

No sufficient grounds for the rehearing applied for appearing the same is denied, but in the matter of costs the decree heretofore handed down is amended so as to impose the costs of the application made to this court for its writ of review equally upon Mrs. Caroline Cotonio, appellant, and Kate P. Jourdan, appellee.


text:
    No. 13,565.
    John M. Kelly vs. Charles Mendelsohn.
    Syllabus.
    1. Where porperty is pursued in enforcement of a local assessment, to secure which the statute grants the first lien, it suffices to proceed contradictorily with the man in possession as owner under recorded title translative of ownership.
    2. And the purchaser at the sale which follows acquires a good title by the adjudication, for it is a proceeding in rem — one to enforce a real charge, a debt on the property irrespective of the person owning.

      ^ PPEAL from the Civil District Court, Parish of Orleans — Theard,

      Denegre, Blair & Denegre, for Plaintiff, Appellee.
    Charles Mendelsohn, Defendant, Appellee, in propria persona.

      Üharles F. Glaiborne, for Isidore Newman, Adjudieatee, Appellant.
   The opinion of the court was delivered by

Blanchard, J.

The plaintiff is a street-paving contractor. The city of New Orleans advertised for bids for paving Tulane avenue. Plaintiff became a bidder and the contract was awarded to him.

Under the law authorizing this paving the abutting property became liable to three-fourths of the cost and the city the remaining one-fourth. '

A special assessment against the abutting property for its proportion of the liability is authorized, and the statute declares that-

“Such local assessment shall havd a first privilege, superior to the vendor’s privilege and all- other privileges and mortgages.” Act 119 of 1886.

' The plaintiff executed his contract, laid the paving, the same was accepted by the city, and certificates were issued to him showing amounts due by the abutting proprietors according to the frontage of their respective holdings on. the street.

Square of ground No. 725, in the First District of the city, fronted on the paved street a distance of 281.57 feet. Title to this property was at the time in Samuel J. Hart and Helen H. Hart.

The city’s certificate issued to the plaintiff, showing $743.71 to be due him by the Harts as proprietors of the square mentioned.

Subsequently, and before the Harts paid the debt, a mortgage which Judah Hart, their ancestor, had consented to on the property, was foreclosed, and at the sale defendant herein (Charles Mendelsohn) became the purchaser. He retained in his hand a sufficient amount of the purchase price to discharge the plaintiff’s lien, which ranked the mortgage, and assumed payment of the debt.

He, thereupon, went into possession of the property under the sheriff’s deed as owner.

He failed to settle with plaintiff and the latter brought the present suit, the object of which was to enforce his lien on the property.

In due course judgment was rendered in his favor decreeing recovery of the amount from defendant, recognizing the lien asserted and condemning the property to be sold to pay the debt.

Execution issued and at the sale which followed Isidore Newman became the adjudieatee.

He refused to take title, was ruled into court and after hearing there was judgment ordering him to comply with his bid.

He appeals.

His contention is that ’the title tendered him is not good and his objections to it are set forth at length.

These objections all relate to the alleged insufficiency of the title by which Mendelsohn held the property and of that by which the Harts and their immediate vendors held it.

They do not relate to any vices of form or matter in the proceedings which culminated in the adjudication of the property to him.

Ruling — It was the property itself that owed the debt to Nelly, the plaintiff. He proceeded to enforce his rights against it contradictorily with the man he found in possession as owner under a registered title translative of ownership.

The proceeding was one in rem, and the title Newman acquired is good even if there be defects in the title of Mendelsohn and the Harts— though, as to that, no opinion is expressed.

That such a proceeding as this is one in rem was so held in Barber Asphalt Co. vs. Watt, 51 La. Ann. 1346, and the fact that Mendelsohn, by his assumption of the debt, incurred personal liability therefor does not alter the case.

The plaintiff could well proceed in the same suit against Mendelsohn on his personal assumption, and against the property in enforcement of the local assessment. This he did.

The property was sold in enforcement of the local assessment. The person asserting ownership and in possession as such under title record-, ed was the only party the plaintiff could well proceed against in (he matter of such enforcement.

He surely could not be expected to run down through the courts all the parties who ever owned the property, their 'heirs and assigns, in orfler to have it determined in whom the best title or legal title really is, and then proceed against such person.

It sufficed that he made party defendant the man in control of the property under an apparent title.

This is in strict accord with the doctrine announced in Rosetta Gravel Co. vs. Jollisant, 51 La. Ann. 804, where it was held that:—

“The lien and right of pledge resulting from a local assessment for street paving attaches to property of the abutting proprietor without reference to the person in whom title is actually vested, and proceedings taken against same for tbje enforcement of such lien and pledge, is one in rem,< notwithstanding the title holder be cited for the purpose of carrying the same into effect.”

Judgment affirmed.


text:
    No. 13,861.
    The State vs. E. B. Walker.
    Syllabus.
    Tbe title of Act No. 35, of 1900, is both inadequate and misleading, and fails to express the object of any provision in the act which is susceptible of independent enforcement. The act, therefore, contravenes Article 31 of the Constitution, and is void.
    APPEAL from Second City Criminal Court, City of New Orleans— Aucoin, J.

      Walter Guión, Attorney General, and J. Ward Gurley, District Attorney, (Lewis Guión and George B. Smart, of counsel), for Plaintiff, Appellant.

      Dmkelspiel & Mart, for Defendant, Appellee.
   The opinion of the court was delivered by

Monroe, J.

This is an appeal, by the State, from a judgment in favor of the defendant, on a motion to quash based upon the alleged unconstitutionality of Act No. 35 of 1900.

It was charged by affidavit, “That during the month of January 1901, in the parish of Orleans, aforesaid, and within the jurisdiction of the Second City Criminal Court, one E. B. Walker did, then) and there, wilfully and unlawfully violate section 1st of the Act 35 of 1900, relative to trading stamps, contrary to the form of the statute”, etc. And thereupon the defendant, through his counsel, moved to quash said affidavit and set aside the proceedings against him, on the grounds:

1. That A.ct No. 35 of 1900 violates Article 31 of the Constitution of the State, in that it embraces more than one object, and said objects are not expressed in the title.

■ 2. That said act violates Article 48 of said Constitution, in that it attempts to regulate business and trade.

3. That it violates Article 2 of said Constitution, and the 14th Amendment to the Constitution of the United States, in that it prohibits freedom of contract, denies the equal' protection of the laws to all persons, and thus deprives certain persons, including the defendant, of liberty and property without due process of law. The act in question reads as follows, to-wit:

“An Act
“Making it a misdeameanor to issue trading stamps or other devices.
“Section 1. Be it enacted by the General Assembly of the State of Louisiana; that any person, or persons, who shall: “First; Issue trading stamps, or other devices, to any person engaged in any trade, business, or profession, with the promise, express or implied, that he will give to the person presenting to him such stamp, or stamps, money, or anything of value, without receiving from such person the value thereof, or make to any such person any concession, or preference, in any way, on account of the presentation of such trading stamps, or other devices; or,
“Second; Being engaged in any trade, business, or profession, shall distribute, or present, to any person dealing with him any such tradiug stamp or other devices, in consideration of any article purchased of, or any service performed by, him, shall be guilty of a misdemeanor, and, upon conviction, shall be fined, not more than one hundred dollars, or be imprisoned, in the parish jail, for not more than six months, or both, at the discretion of the court.
“Section- 2. Be it further enacted ,etc., It shall not be unlawful for any merchant, or manufacturer, to place his own tickets, coupons, or other vouchers in, or upon, packages of goods sold, or manufactured, by him. Such tickets, coupons, or other vouchers, to be redeemed by such merchant, or manufacturer, either in money, or mechandise, whether such packages are sold directly to the consumer, or through retail merchants; this exception to apply also to newspapers. Nor shall it be unlawful for any persons to issue, with such packages, tickets, coupons, or other vouchers so issued by such merchant or manufacturer. Provided that this act shall not apply to tickets, coupons, checks, or other devices, issued to laborers or other employees, for services rendered. Any person violating any of the provisions of this act shall be guilty cf a misdemeanor, and, upon conviction, shall be fined, not more than one hundred dollars, or be imprisoned, in the parish jail, for not more than six months, or both, at the discretion of the court.”
“Section 3. Thisi act shall take effect from and after January 1, 1901.”

It will be observed that the first paragraph of the first section of this act applies to persons, whomsoever they may be, who issue trading stamps or other devices, etc., and the offence, (if it can be so considered), which is there denounced, is the issuance, etc., of such stamps or devices; and that the second paragraph of said section applies exclusively to persons, engaged in businessi or professions, who, after such stamps, etc., have been issued, distribute them in consideration of purchases'made of, or services rendered to, them; whilst the second section of the act exempts from the penalties denounced by the first: — merchants, or manufacturers, who issue and distribute their “own tickets, coupons, or other vouchers, in, or upon, packages of goods sold, or manufactured, by them”; — retailers, who distribute, presumably with the packages bought by them, the “tickets, coupons, or other vouchers” so issued and distributed by the merchants and manufacturers; — employers who issue tickets, etc., to their employes, for'services rendered;— and newspapers, which enjoy the exemption accorded to merchants and manufacturers.

The general subject legislated upon, it may be said, is the issuance, and the distribution, after the issuance, of trading stamps and other devices; and the object, aim, or purpose, of the legislation is to regulate and, in part, suppress, such issuance and distribution, by the imposition of certain penalties.

But, from the title of the statute which we are considering, it would appear that it has no other object than to prohibit under penalty, the issuance of such stamps, etc., although, by the terms of the text, it is made a distinct offence to distribute them. It seems clear, therefore, that, whilst it might be considered that the different provisions of the said statute were adopted with a .view to the accomplishment of one object, that object has not been expressed in the title. It is contended, however, on behalf of the State, that the title is sufficient to maintain the constitutionality of so much of the act as may fairly be embraced within its meaning — the argument being, that those provisions to which the title applies are susceptible of enforcement independently of the others, and hence that, quoad such provisions, the act should be upheld. There is no doubt that this doctrine finds support in more than one of the decisions of this court. Williams vs. Payson, 14 Ann. 7; State vs. Exnicios, 33 Ann. 253; State vs. Crowley et als., 33 Ann. 782; State ex rel. Mouton vs. Judge, 49 Ann. 1535. But this ease does not fall within it. The title of the act in question here indicates that the act, itself, is a general, criminal, statute, applicable to all persons, without distinction as to classes or occupations; but there are no corresponding provisions in the text. It is true that, by the first paragraph of Section 1, considered apart from the rest of the act, the penalty for issuing the stamps, etc., “to any person engaged in any trade, business or profession, with the promise”, etc., is imposed upon everybody alike, but this provision is so modified by Section 2, that a merchant or manufacturer may issue as many stamps as he chooses, by placing them in, or on,.the packages of goods manufactured or sold by him, and any person who buys such packages may dispose of them, and of the merchant’s, or manufacturer’s tickets, coupons, or vouchers, accompanying them, as he thinks proper; but there is no such exception in favor of persons engaged in trades and professions, or of the public at large. And whilst the merchant or manufacturer who sells a box of matches, or a yellow envelope, may issue his stamps ad libitum, by placing them in, or on, such box or envelope, he is guilty of a misdemeanor, if he should deliver them to his customer in a separate package.

This appears to us to be a discrimination between! merchants and manufacturers and other people, and between such merchants and manufacturers, inter sese, with respect to their manner of conducting business, of which the title of the act affords no hint or suggestion. The title, therefore, even as applied to the particular provisions to which it is proposed to confine it, is not only inadequate, but misleading. The other propositions upon which the motion to quash was predicated are strongly supported, but they need not be considered at this time.

Judgment affirmed.

Provosty, J., takes no part.