author: Blanchard, J. Monroe, J.

text:
    No. 12,628.
    St. Landry State Bank vs. Julius Meyers et als.
    Syllabus.
    1. Unless error, fraud or latent ambiguity be averred, parol testimony is inadmissible against or beyond what is recited in a written act, or as to what may have been said before, or at the time of making it, or since.
    2. Application is made of the principle upon which rests the maxim: “Expréselo imius personae, rel rei, est exchislo alterms.”

    3. Nor can a party be permitted to accept and enjoy the benefits of a contract and at the same time repudiate Its obligations.
    On Reheaking.
    1. Where a contract is made between persons professing to act for themselves and not as representatives of others, and one of the contracting parties seeks to fix a liability arising therefrom upon an alleged principal of the other, the burden of proof rests upon the party, so seeking, to show that the contract was made by the other on behalf of such principal and inured to the benefit of the latter.
    2. The meaning of a word, used in a contract, is to be ascertained by considering it in its relation to the context, -and -to the immediate subject matter of such contract, and not by attributing to it an absolute signification, irrespective of the connection in which it is used.
    3. Where a provision inserted in a written contract by one of the contracting parties, is susceptible of two interpretations, the other contracting party is entitled to the interpretation most favorable to him, but parol evidence maybe admitted without special plea, to explain the ambiguity.

      APPEAL from the Eleventh Judicial District, Parish of St. Landry —Dupre, J.

      E. D. Estilleite, Thomas II. Lewis and E. B. DuBuisson for Plaintiff, Appellee.

      Saunders & Miller, Kenneth Baililio and William G. Perrault for Defendants, Appellants.
    On rehearing by ÜMonkoe, J.
   The opinion of the court was delivered by

Blanchard, J.

The plaintiff is a corporation doing a banking business at Opelousas, Louisiana. In January, 1896, Alphonse Levy was its president and Julius Meyers was one of its directors. They had been filling such positions for several years.

In that month there was published in one of the newspapers of the town a quarterly statement of the condition of the bank. This was furnished under the oath of the cashier, J. T. Skipper. It dkowed the bank to be not only solvent, but prosperous. Overdrafts to the extent of $4,527.17 only were declared to exist.

This statement was false and perjured.

One month later Levy, the bank’s president, was dead by his own hand, and an investigation into the affairs of the bank disclosed that it had been looted and wrecked.

This was accomplished, in the main, by means of overdrafts drawn by the mercantile firm of J. Meyers & Oo., the largest business house in the parish.

The members of this firm were Julius Meyers and Alphonse Levy. The aggregate of the overdrafts of the firm exceeded $54,000, an amount in excess of the capital stock of the bank.

The announcement of the insolvency of J. Meyers & Co. followed and liquidators to wind up its affairs were appointed. Before its failure the real estate owned by the firm and its members had been covered by mortgages for large amounts.

Criminal proceedings were taken against Julius Meyers and J. T. Skipper for the part they had taken in wrecking the bank.

While the liquidation of the affairs of J. Meyers & Co. was being proeeedecl with, a new commercial concern, known as the Opelousas Mercantile Company, Limited, arose upon its ruins. The organizers and stockholders of this association were the brother-in-law and four nephews of Julius Meyers. One of the nephews, Isaac Roos, became president of the corporation.

This concern installed itself at the same stand and proceeded to conduct the same character of business as that done by J. Meyers & Co.

It became the virtual successor of that firm, and straightway undertook to possess itself of all the assets of tjhe insolvent house, including valuable real estate in several parishes. To this end it proceeded to purchase at a large discount (about 35 per cent, on the desliar) the outstanding indebtedness of J. Meyers & Co., and in a short time had acquired it all, save about $200.

So that at the time the present suit was brought, the Mercantile Oo. was, practically, the only creditor of the defunct house, holding claims against it and against Julius Meyers of over $100,000.

There is evidence it was considered by some of the people of Opelousas as “Julius Meyers” — that is to say, as the continuation of the same business, at the same stand, by Meyers under a different name.

. Following the disclosure of the looting of the bank, an effort, and it seems a successful one, was made to save it from ruin.

Five of the directors advanced funds to tide it over its difficulties.

This was done in the form of deposits for which the bank issued certificates of deposit. The amount so deposited aggregated $13,000, of • which Julius Meyers furnished $5000, taking, under date of March 12, 1896, a deposit certificate which reads as follows: “Julius Meyers has deposited in this bank five thousand dollars payable subject to conditions (see agreement), in current funds on the return of this certificate properly endorsed.”

The agreement referred to was dated March 11, 1896, and was to the effect that the five directors who signed it had agreed to deposit in the bank the respective amounts set opposite their names, and to leave the same on deposit for the space of twelve months, unless the Board of Directors should decide that the financial condition of the bank admitted of the withdrawal of the same, in whole or in part, before that time.

At the same time Meyers, notwithstanding the failure of his house, seems to have been able to make a further advance to the bank of $5,000, this time in the form of the purchase by him of that much interest in the overdraft which the insolvent and dissolved firm of J. Meyers & Co. owed the bank.

The liquidators of his firm (of whom he was one) also made an advance to the bank, about the same time, in the nature of an anticipated dividend upon the bank’s claim .against the firm.

This last advance amounted to $10,125. It thus appears that the bank received in March, 1896, on account of the overdraft of J. Meyers & Co., $15,125, and had advanced to it by the five directors aforesaid the further sum of $13,000, making- in all $28,125, enabling it to continue business.

Following the death of Alphonse Levy, E. M. Boagni had become president of the bank.

On June 17, 1896, a letter was written him from New Orleans suggesting terms of settlement or purchase of the bank’s claim for overdraft against J. Meyers & Co., in these words:—

“Mr. Upton says that if the St. Landry bank will agree to accept 35 per cení, on the face of its debt, keeping, besides, what has already been paid to it, he believes that the creditors can be 'settled with at 35 per cent, of the face of their claims. I am satisfied the oiler will be made if the bank will accept. Please let us know at once whether the bank will settle on the terms proposed. If it will, Mr. Roos will come up at once.”

This letter was written by Mr. E. D. Saunders of the New Orleans bar, who had been engaged professionally in connection with the failure of J. Meyers & Oo. in Opelousas.

The “Mr. Upton,” referred to in the letter, is Mr. IT. E. Upton, also of the New Orleans bar. As the suggestion of settlement came from him, it is important to inquire whom he was representing in proposing it. His testimony was not taken and he does not appear as counsel in the case.

It is claimed by defendants that he was the attorney of Mr. Henry Roos, Sr., one of the proposing purchasers of the bank’s claim against Meyers & Go. This Mr. Roos was the brother-in-law of Julius Meyers.

The president of iihe bank, however, testified that he considered the proposition contained in the S/aunders’ letter as coming from Julius Meyers, since it was submitted at the instance of Mr. Upton, whom he knew to be the attorney, or counsel, of Meyers. Certain it is that Mr. Upton had been the adviser of Meyers in his business trouble and had gone to Opelousas in that capacity. Isaac Roos, who testified, while claiming that Upton represented Henry Roos, Sr., in making the offer, admits that he was at the same time the attorney of Julius Meyers. Both Isaac Roos and Henry Roos, Sr., were in New Orleans at the time and the “Mr. Roos” of whom the letter speaks might have been either of them. Both were stockholders in the Opelousas Mercantile Company.

Mr. Boagni, president of the bank, answered the Saunders letter on the 19th of June — two days later — as follows: “That the bank would, for immediate settlement of the J. Meyers & Oo. claim, accept 35 per cent, on the face of its claim, not taking into account nor being held to account for money already received.”

Later it developed that Isaac Roos and his associates, who formed or were about to form, the Opelousas Mercantile Go., Limited, were to be the purchasers of the bank’s claims against J. Meyers & Co.

In pursuance of the purpose of this corporation to acquire control by discount of all the claims outstanding against that firm, Isaac Roos appeared at the bank on July 31, 1896, with a form for the sale and assignment of the bank’s claim to himself and associates.

This was handed to the president of the bank, who caused duplicate type-written copies to be made, first adding in clauses toi make it conform to the bank’s understanding of the transaction.

But Roos did not propose to deal solely with the bank’s president in the matter of the purchase of so large a claim, and suggested that the Directors be assembled to authorize the deal.

Accordingly a meeting of the Directors was then and there called, and at that meeting the agreement proposed to be entered into, as typewritten in the bank, together with an important addition made thereto by Isaac Roos, was submitted, and a resolution was passed formally adopting it and authorizing the president to execute the same on behalf of the bank. The agreement was recited at length in this resolution and spread upon the minutes of the meeting.

Mr. Roos was present at the bank before and during the time the meeting of directors was held, had carefully read over and re-read the paper embodying the agreement as the same had been type-written at the bank, had demanded the insertion of a clause proposed by him, this had been done, and he then fully assented to it, and as thus agreed on it was submitted to the Directors and adopted by them.

It was then signed by E. M. Boagni, president of the bank, and by Isaac Roos foi himself “and associates”, without naming the latter.

The clause, and the only one, Roos had demanded should be inserted, was as follows: “This does not include the $8,044.61 now on deposit in this bank for account of liquidators.”

As the case turns on the construction to be placed upon the agreement so executed, we copy it in full as follows:

“For value received, the St. Landry State Bank, of Opelousas, La., through E. M. Boagni, its president, and pursuant to a resolution of its Board of Directors (a copy of which is hereto attached), hereby sells, assigns, transfers and delivers unto Isaac Roos, Henry Roos, Sr., Isidore Silverberg, Nathan F. Roos and Ilenry Roos, Jr., all of its claim for Fifty-Four Thousand Three Hundred and Thirty-Seven and 46-100 Dollars ($54,337.46) against the firm of J. Meyers & Co., of Opelousas, La. (being the amount due said bank by said firm) fully subrogating said Isaac Roos, ITenry Roos, Sr., Isidore Silverberg, Nathan F. Roos and Henry Roos, Jr., to all its rights and actions on said claim, to be exercised and enforced by them as fully as they might have been by said Bank, but for this transfer, sale and assignment.
“It is understood and agreed that this transfer is made without recourse on us.
“That we are not to pay or to he held to account for money receive<ij from the liquidators, or frdm Julius Meyers. 1 This does not include the $8,044.61 now on deposit in this Banile for account of the liquidators.
“That Six Thousand Three Hundred and Thirty-Nine and 37-100 Dollars to be paid in cash; that Six Thousand Three Hundred and Thirty-Nine and 37-100 Dollars, to be paid on or before Twelve Months from date of this agreement; and that Six Thousand Three Hundred and Thirty-Nine and 37-100 Dollars, to be paid on or before Twenty-Four Months from date of this agreement. The deferred two payments to be evidenced by notes signed by Isaac Roos, Henry Roos, Sr., Isidore Silverberg, Nathán F. Roos and Henry Roos, Jr., to be endorsed by the Stock Company to be formed, said notes to bear six per cent, interest from date, and attorney’s fees to be fixed at 10 per cent, in case of suit to enforce payment. I will not assert, nor attempt to enforce against the firm of J. Meyers & Co., nor against the Liquidators, or members thereof, or their estates, any claim or liability whatever arising from or growing out of the endorsement by said J. Meyers & Co., or by said members thereof as endorsers or sureties of any notes held or owned by us, however acquired.”

The particular clause, about the melaning of which this legal warfare is waged, is that italicized, which, it will be observed, includes the sentence Roos had caused to be inserted.

The bank stipulated: “We are not to pay or to be held to account for money received from the liquidators, or from Julius Meyers”. Roos agreed to this with the addendum: “This does not include the $8,044.61 now on deposit in this bank for account of the liquidators.”

What other moneys had been received from the liquidators and from Julius Meyers?

As already shown:

L Amount Meyers deposited on the 12th of March, under agreement with the other directors..................$ 5,000 00

2. Amount he paid to the bank on account of purchase of an interest in the overdraft due the bank by J. Meyers & Co............................................. 5,000 00

8. Amount advanced by the liquidators of J. Meyers & Co. as anticipated dividend on the overdraft............. 10,125 00

Total...........................................$20,125 00

There is no contention over the last two items of $5,000 and $10,125. It is not disputed that they are covered and were intended to be covered by the terms of the agreement.

The whole controversy is over the first item of $5,000.

The bank contends it is clearly embraced within the scope of the language used and that such was the intendment of the parties at the time.

Defendants assert just the contrary.

Too great latitude was permitted in the court below in the reception of evidence explanatory of the contract and its meaning. None of the answers filed by the several defendants averred error, fraud, or latent ambiguity, and that being' so, the familiar rule of evidence, that parol testimony is inadmissible» against or beyond what is recited in a written act, or as to what may have been said before, or at the time of making it, or since, should have been more strictly enforced. C. C. 2276; H. D. Vol. 1, Evidence XV. (d), No. 3 et seq. Bills of exception by both sides attest the effort at exclusion.

There was much conflict of testimony. Boagni, bank president, testified the contract meant to include all the money received, except that deposiled by the liquidators. lie says he and others for the bank figured at the time what the bank would realize, under the arrangement, on the overdraft account, and made it out from 70 per cent to 12 per cent, and to get this they included all moneys whatsoever received from Meyers and the liquidators, except the $8,044.61 which was excluded by the express terms of the agreement.

The cashier and several of the directors corroborate him in this, and declare they would not have authorized the transaction had they not considered the $5,000, in controversy herein, included within the moneys the bank was to retain and not be held to account for.

Isaac Roos, the other signer of the contract, testifies that neither the $5,000 nor the certificate representing it, was mentioned, had nothing to do with the transaction, and was not included in the moneys the bank was authorized to retain.

There was testimony corroborative of him in- thesel particulars.

It is not our purpose to analyze the evidence pro and con. Suffice it that our consideration of the case, judging it by the evidence, impresses us that the balance of probability, weight of circumstance, and preponderance of testimony, all support the contention of the plaintiff.

But we need not go beyond the contract itself. It is sufficiently clear and explicit to disclose its own meaning. The bank was not to pay back or be held accountable for money it had, prior to that time, received from the liquidators, or from Julius Meyers. This was not confined to moneys paid to it or received by it on account of, or in reference to, the overdraft of Meyers & Co. It included all moneys the parties named had delivered -into the possession of the bank, except that expressly excluded.

When Roos came to stipulate for exceptions, he must, at his peril, have the excepting clause embrace all money intended not to be included. JSxpressio unius personae, vel réi, exclusio alberius.

It will not do to say there was a certificate of deposit out for this $5,000 and the amount was due to the holder.

The certificate was noil-negotiable in form, and, besides, the evidence discloses it was at that time, certainly just after, in the possession of Isaac Roos. With the consummation of this purchase of overdraft from the bank, Roos and his associates were carrying out a purpose to acquire, at large discount, all the outstanding claims against L Meyers & Co. They did acquire them all and thus came into the control of all the property and assets of the firm, including the deposit certificate. The liquidation of the firm’s affairs became merged into the business of the Opelousas Mercantile Co., Limited, of which Isaac Roos was president, and the chief liquidator, J'. R. Norman, became the business manager of the corporation.

It thus appears that Roos and his associates, who constitute the Mercantile Co., have a direct interest in maintaining Julius Meyers’ title to the $5,000.00 certificate of deposit. This was admitted on cross-examination by Isaac Roos.

It is quite true that the proposition first made the bank to purchase the overdraft, embodied in the letter of Mr. Saunders of date June 17th, only contemplated that the bank should keep what had already been “paid” to it — i. e. the $5,000.00 paid by Julius Meyers for purchase of an interest in the overdraft, and the $10,125.00 paid by the liquidators as anticipated dividend. But the bank changed this in its letter of June 19th, so as to make it read that the bank should not be held to account for money already deceived, and when the agreement came to be written up this was still further enlarged and made to read that the bank should not pay, or be held to account for money received from the liquidators or from Julius Meyers.

The negotiation to purchase the overdraft, therefore, ended with a stipulation meaning that the bank should not have to pay to Julius Meyers what he had deposited there, as well as that it should not be held to account for money received from him, or from the liqiiidators otherwise.

It will be readily seen there was a marked difference in the language used by Saunders and that used by Boagni, president of the bank, in their respective letters, as well as that incorporated in the agreement itself when it came to be drawn up and signed. The agreement followed the line adopted in Boagni’s letter, using, however, fuller and broader terms, and was accepted by Roos.

“Money received” is not the equivalent of “money paid.” The former has a larger, more comprehensive scope and meaning.

The bank did not answer Saunders agreeing to settle on the terms his letter proposed.

It accepted a proposition to settle on an agreed basis of 35 per cent., but added other words to the effect that it would retain all moneys it had received from the parties named.

Saunders made use of the words “paid to it” — meaning money paid to the bank on the overdraft or in reference to it.

Boagni made use of the words “already received” — meaning moneys theretofore received by the bank from the parties who figured in the transactions with it, not confining it merely to moneys paid to it on the claims it held against Meyers & Oo., or received in reference to such claims.

The man, who, as a member of the firm, owed the bank’s claim for overdraft, had placed other money there besides the $5,000.00 paid in the purchase, individually, of an interest in the claim, and the words of the contract with Roos and associates were made broad enough in their scope to include such other funds.

This deposit was money the bank was using as it did other bank funds. It had been received by the bank, as hereofore seen, from Meyers to assist it over difficulties which had been brought upon it by him. What more natural or probable, therefore, than that the bank should demand retention of this fund, along with the other moneys, in a transaction consummating the sale,, at a big discount, of its claim for the overdraft to parties who were the close relatives of Julius Meyers, who were buying up all claims against him and his firm, getting possession of all its property and assets, and who had formed or were about to form a corporation which was the practical successor of the firm?

The fact that Boagni, as president of the bank, wrote across the face of the duplicate contract in the possession of Roos, the day following its execution, thd words: “Received payment as per this agreement,” does not militate against this view. That was but.an acknowledgment of payment to him of the cash portion of the purchase money of the sale of the overdraft, and of the reception of the notes for the deferred portion of the purchase money — as per the agreement. It would indeed have been more business-like to have then demanded and insisted upon the delivery of the deposit certificate; but, as already shown, this certificate was not in negotiable form, and the bank had the money it called for in possession, which was the all important matter.

The president of the bank testified that Julius Meyers told him after the contract was signed that Isaac Roos had the $5,000.00 deposit certificate. Meyers was in Opelousas when the ease was on trial, but did not go on the stand and this statement of the president was not challenged.

In the conversation alluded to Boagni asked Meyers for the certificate. Then it was that the latter referred him to Roos, telling him Roos had it and he would have to deal with him in reference to it. There was here neither a claim of ownership of the certificate, nor a repudiation of anything Roos had done or contracted to do in reference to the certificate.

There are other proofs of the agency of Roos to bind Meyers in this transaction with the bank. In it he disposes of Meyers’ interest (that which he had purchased) in the overdraft. Meyers has never repudiated this. If it does not prove agency, it proves something more than agency, identification of interest between Meyers and the other defendants herein.

In the contract he also stipulated in favor of Julius Meyers that the bank should release him and his firm from liability as endorser or surety on any notes of other persons held by the bank.

Meyers appears to be enjoying the benefit of this stipulation; yet it is now claimed for him that Roos was without authority to represent him in the matter. He ismot to be permitted to take the benefits conferred by the contract and at the same time repudiate its obligations.

These and other circumstances support the contention that one of Isaac Roos’ associates in the deal with the bank was Julius Meyers, and if not this, then that Isaac Roos had authority to speak and act for him in the transaction. The court below erred in holding otherwise on this branch of the case.

Our conclusions are that the contract of July 31, 1896, did by its terms include the $5,000.00 deposit, and that Isaac Roos acted therein for Julius Meyers as well as for himself and other associates, and that Meyers, if he did not confer antecedent authority, subsequently assented to and acquiesced in what was done, thus ratifying the same.

The judgment appealed from must be amended in this particular.

It is, therefore, ordered, adjudged and decreed that plaintiff bank be and is recognized as the owner, as against these defendants, of the certificates of deposit for five thousand dollars issued by it to Julius Meyers on the 12th of March, A. D. 1896, and it is ordered that defendants herein deliver said certificate of deposit to the said bank.

It is further ordered, adjudged and decreed that on failure to do so within a reasonable time, plaintiff bank, in the alternative, do have and recover from defendants in solido the sum of five thousand dollars, with legal interest from judicial demand until paid, costs of both courts to be taxed against defendants.

And as thus amended the judgment appealed from is affirmed.

On Rehearing.

Monroe, J.

The death, in 1896, of Alphonse Levy, its president, led to the discovery that the plaintiff bank was in a condition of greafl financial embarrassment. Its capital was $50,000.00; the account of the commercial firm of J. Meyers & Oo., of which Levy was the managing partner, was overdrawn to the extent of $54,33*7.41, and that firm was not in a condition to make the overdraft good, though it was supposed, at that time, that its assets equalled, or exceeded its liabilities, and that the bank would eventually recover a large proportion, if not the whole, of its claim. In the meanwhile, however, it was necessary that something should be done to tide over the immediate trouble; and two measures of relief were adopted, to-wit: {A petition was presented to the District Court by several large creditors of J. Meyers & Co., including the bank, praying for the appointment of liquidators, and also praying that! the liquidators so appointed be authorized to advance, to the bank, $10,000.00, on account of the dividend which it was believed would eventually be declared in its favor. In these prayers, Julius Meyers, the surviving partner, who was also a director of the bank, and several creditors of the firm, other than the petitioners, joined, and the order was made accordingly. In addition to this, an agreement was entered into between the directors of the bank which reads as follows:

“We, the undersigned members of the Board of Directors of the St. “ Landry State Bank, hereby agree to deposit in said bank, this day, the “respective amounts opposite our names, and to maintain and leave “ said deposits in said bank for the space of twelve months from date, unless, in the opinion of the majority of the Board of Directors, the “ financial condition of the bank shall be such, as to allow said deposit- “ ors, from time to time, within said twelve months, to withdraw, either “ a portion, or the whole, of their aforesaid, respective deposits.
“E. 11. Boagni, two thousand dollars ($2,000.00).
“J. T. Stewart, two thousand dollars ($2,000.00).
“I. M. Lichtenstein, two thousand dollars .($2,000.00).
“Ant. Dietlein, two thousand dollars ($2,000.00).
“Julius Meyers, five thousand dollars ($5,000.00).
And, this agreement having been carried into effect, each of the depositors received a certificate, reading, save as to the name and amount “Julius Meyers has deposited in this bank “five thousand “ dollars, payable, subject to conditions (see agreement) in current “ funds, on the return of this certificate.
(Signed) “Fritz Dietlein, Cashier.”

The bank also received, from Julius Meyers, a further sum of five thousand dollars, which was paid on account of the purchase by him of a pro rata interest in the claim of the bank against his late firm, so that the bank had received, by March 12, 1896, from these different sources, an aggregate of $28,000.00, to which is to be added a small amount, otherwise obtained through the liquidators; and, Mr. E. M. Boagni having succeeded Mr. Levy as president, the doors of the bank were kept open.

The liquidators appointed by the court were ITenry Newman, a creditor residing in New Orleans, J. T. Stewart, a director in the plaintiff bank, and Julius Meyers, the surviving partner. The latter gentleman took no active part in the liquidation, Mr. Newman was represented by Mr. J. R. Norman, who was sent from New Orleans for that purpose, and who, with Mr. Stewart, conducted the liquidation. Within a short time, the liquidators and some of the creditors were engaged in negotiations with certain persons, who, apparently, contemplated buying the outstanding claims against J. Meyers & Oo., and we find, in the record, the following letters — the one from Mr. Saunders of the New Orleans bar, addressed to Mr. Boagni, president of the plaintiff bank, and the other, the reply thereto. Mr. Saunders writes:

“June 17, 1896.
“Yours of recent date, regarding agreement of Iiiller and Newman “ to share the responsibility reed. The desired, and promised agree“ment will be prepared and forwarded. Mr. Upton says, that, if the “ St. Landry Bank will agree to accept 35 per cent, on the face of its “ debt, keeping, besides, what has already been paid to it, he believes that the creditors can be settled with at 35 per cent, .on the face of “ their claims. I am satisfied that this offer will be made — if the bank “ will accept. Please let us know, at once, whether the bank will settle “ on the terms proposed. If it will, Mr. Roos will come up at once. “ An immediate reply will greatly oblige us all.
“(Signed) E. D. Saunders."

Mr. Saunders, at that time was representing the liquidators, as their attorney, and had no interest in the persons who proposed to make the offer to which he refers, though exactly whom he was representing does not appear to have been very definitely .known to his correspondent. Mr. Boagni’s reply is dated June.19th, and reads as follows:

“Replying to your valued favor of the 17th inst., I beg to say that “ bank would, for immediate settlement of the J. Meyers & Co. claim, “ accept 35 per cent, on the face of its claim, not taking into account, “ nor being held to account for, money already received.
“(Signed) E. M. Boagni, Pres, etc.”

It requires rather close observation to detect a difference between the terms of the offer, such as it is, as made by Mr. Saunders, and the terms of the acceptance by Mr. Boagni. It may be discovered, however, that Mr. Saunders writes “If the St. Landry State Bank “will agree to accept 35 per cent, on the face of its debt, “ keeping, besides, what has been paid to it,” etc., whereas “ Mr. Boagni replies “that bank would, for immediate settle“ment of the J. Meyers & Co. claim, accept 35 per cent, on the a face of its claim, not taking- into account, nor being held to account “for, money already received." Mr. Saunders understood that the acceptance was in accordance with the terms of the offer, and he so informed the people interested. Mr. Boagni claims that it was intended as modifying the terms of the offer, and was, in effect, a counter proposition, the purpose of which was, by the use of the word received, instead of the word paid, as used by Mr. Saunders, to include, in the amounts for which the bank was not to account, not only the $10,000.00 received from the liquidators, and the $5,000.00 received from Meyers, in payment, but also the $5,000.00 which Meyers, in common with the other directors, had deposited in, and loaned to, the bank. He says, in his testimony, speaking to Mr. Saunders, “I meant that to make a “ proposition that we were not to pay back money that was paid to us.” Being asked by Mr. Saunders “Did you at any time, state to me, either “ in writing or verbally, that your acceptance was different from my “ proposition ?” He answered “no sir, not to my recollection.”

M. Stewart, being interrogated by Mr. Saunders, upon the same subject, gives the folio-wing testimony: Questions by Mr. Saunders: “Then I understand you to say that the directors intended to submit a “different proposition from the one I submitted? ‘Yes, sir.’ Did the “ directors intend to call my attention, or the attention of any one else, “ to the difference between the propositions made by me, and the proposition th'ey made? A. They made a different one. Q. Did they “ intend to call my attention to the fact that my proposition was differ- “ ent from theirs ? A. They thought that you might be able to dis- “ tinguish the difference.”

Following the exchange of letters, between Saunders and Boagni, Mr. Henry Roos, Sr., of New' Orleans, being one of the parties to whom the said letters referred, went to Opelousas with a view to looking into the affairs of J. Meyers & Oo. and of determining whether he and his associates would make the offer which had been thus suggested as likely to be made, but he returned home without having taken any definite action in the matter.

In the meantime, the negotiations appear to have made some progress, and, upon January 26th, Mr. Boagni, for the bank, wrote to the liquidators:

“Gentlemen — In the matter of action in the J. Meyers & Oo. affair, “ as agreed, delay expires to-morrow. I wish to be informed as to “results of investigations of Mr. Henry Roos, et al. We intend to “ proceed, unless something tangible is presented.
“(Signed) E. M. Boagni, President.”

This letter reached the liquidators the day before Mr. Roos’ departure, and its contents were made known to him, and the next day, as he was leaving to return to New Orleans, the liquidators handed him a letter, to the following effect:

“Mr. Henry Boos — ■
“We are in receipt of a communication from the St. Landry State “ Bank, dated the 26th inst. (of) the contents of which you are fully “ aware, and which forces us to ask of you information, which must be “ definite, as to the result of your investigations here into the affairs “ of J. Meyers & Co., in liquidation, which was made with the view of a settlement of the said business, so mentioned between us. In the “ event that you see proper to accept the settlement proposed, that said “ proposition must be in writing, and a duplicate one to be delivered to “ Mr. Saunders, or the other mailed to us here, and that no proposi- “ tion will be entertained unless, accompanied by certified check for “ $5,000.00, as a guarantee of good faith on part of would-be purchasers, subject to withdrawal provided the deal is not consummated. You “must also understand that no proposition for less than the contem- “ plated settlement will be entertained.
“(Signed) II. Newman, per Norman,
“J. T. Stewart,
“Liquidators of J. Meyers & Qo.”

Some delay seems to have ensued after the writing of this letter, but, upon July 30th, Isaac Roos, who was associated with Henry Roos, Sr., in the proposed investment, went to Opelousas, from New Orleans, taking with him the skeleton of a projet of an agreement, which had been prepared by Mr. Saunders, and was to be completed and signed by him, for himself and associates, and by the St, Landry Bank, on its own behalf, for the purchase, by Roos & Co., of the claims of the bank against J. Meyers & Co. in liquidation. There can be no doubt, we think, that Roos’ understanding, at that time, derived from Saunders, was, that the bank for the purpose of the trade, or settlement, which was to be made, was to hold on to the $10,000.00, which had been paid to it by the liquidators, and to the $5,000.00, which had been paid by Julius Meyers, but the $5,000.00 which had been deposited, and loaned, by Meyers did not enter into his calculations. His associates in the matter were Henry Roos, Sr., who is a brother-in-law of Julius Meyers, Isidore Silverburg, a nephew of Meyers, and Nathan F. Roos, and Henry Roos, Jr., nephews of Meyers’ wife. The purpose of the associates was to acquire all outstanding claims against J. Meyers & Co., and re-establish, and carry on, by means of a mercantile company, composed of themselves, the business which had been conducted by that firm. The meeting between the parties, that is to say, Isaac Roos, representing himself and his associates, and Mr. Boagni, and others, representing the bank, took place at the bank, on July 31st, and resulted in a contract, in the following terms, to-wit:

“Opelousas, La., July 31, 1898.
“For value received, the St. Landry State Bank of Opelousas, through E. M. Boagni, its president, and pursuant to a resolution of “ its Board of Directors (a copy of which is hereto attached), hereby “ sells, assigns, transfers, and delivers, unto Isaac Roos, Henry Roos, Sr., Isadore Silverburg, Nathan F. Roos, and Henry Roos, Jr., all of “ its claim, for fifty-four thousand, three hundred and thirty-seven “46-100 dollars ($54,387.46), against the firm of J. Meyers & Co., of “ Opelousas, La. (being the amount due said bank by said firm), fully “ subrogating said Isaac Roos to all its rights and actions on said “ claim, to be exercised and enforced by them as fully as they might “have been by said bank but for this transfer, salé and assignment. “It is understood and agreed that this transfer is made without recourse “ on us (that we are not to pay, or to be held to account for, money “received from the liquidators, or from Julius Meyers; this does not “ include the $8,044.81, now on deposit in this bank for account of the liquidators).
“That six thousand, three hundred and thirty-nine and 37-100 dol- “ lars to be paid in cash. That six thousand, three hundred and thirty-“nine 37-100 dollars to be paid on or before twelve months from the “date of this agreement. And that six thousand, three hundred and thirty-nine 37-100 dollars to be paid on or before twenty-four months “ from the date of this agreement. The deferred two payments to be “ evidenced by notes, signed by Isaac Roos, Henry Roos, Sr., Isadore Silverburg, Nathan F. Roos, and Henry Roos, Jr., and to be indorsed by the stock company to be formed, said notes to bear six per cent. interest from date, and attorney’s fees to be fixed at ten per cent., in case of suit to enforce payment.
“I will not assert nor attempt to enforce against the firm of J. “ Meyers & Oo., nor against the liquidators, or members thereof, or their “ estates, any claim or liability, whatever, arising from, or growing out “ of, the indorsement by said J. Meyers & Oo. or by said members “thereof, as indorsers, or sureties of any notes held or owned by us, “ however acquired.
“(Signed) St. Landry State Bank,
E. M. Bokom,¿President.
“(Signed) Isaac Roos and Associates."

It appears that the type-written projet, prepared by Mr. Saunders, contained only the first and last clauses, as they appear in this contract, i. e., the clause beginning “for value received,” and ending “sale and assignment;” and the clause beginning “I will not assert,” and ending “however acquired;” and that the other clauses, those out of which this litigation has arisen were inserted by the representatives of the bank; the words, “this does not include the $8,044.61 now on “ deposit in this ba^ik for account of the liquidators,” being added just before the instrument was signed, at the suggestion of Mr. Roos, and for the reason that the account thus mentioned had been collected in the course of the liquidation of the firm of I. Meyers & Co., and deposited in the bank by the liquidators, and it was thought best to make it perfectly clear that it was not to be retained by the bank, as money which it had received from the liquidators, in the sense in which it had received the $10,000.00. Several persons were present during the completion and signing of the contract, and, from their testimony, it does not appear that the ñame of Julius Meyers was mentioned, or that anything was said about the certificate which had been issued to him for the $'5,000.00 deposited, and which was attempted to be seized at the inception of the suit. The evidence shows that Meyers had given to Isaac Roos his power of attorney to act in his place as liquidator, but the instrument was strictly confined to that subject. It is also shown that Roos represented Meyers, that is to say, he consulted with Meyers’ attorney, etc., in connection with a criminal prosecution which had been instituted against him, growing out of the relations of his firm with the bank. Several of the witnesses for the plaintiff testify, also, that they were under the impression that Roos was authorized to represent Meyers, generally, but no one states that either Meyers or Roos ever said so, nor is there any evidence that Roos acted for Meyers at any time, except .in-the matters mentioned above, and one other, to-wit: the day following the signing of the contract, Roos spoke to Boagni about the claim of a Mr. Andrus against J. Meyers & Co., asking whether said claim, or-part of it, could not be paid from the $5,000.00 which Meyers had deposited in the bank; and he testifies that Meyers had authorized him to do so. He also says that Boagni said that he would see about it, or something of that kind; and'¿Boagni testifies in substance, that he was so much surprised at the proposition that he had nothing to say. On that same day, August 1, the stipulations of the contract were carried out in so far as that the cash payment was made and the notes were signed by all the associates except two, whose signatures were not very important, financially, and were obtained after-wards; and a receipt was written across the face of the duplicate, in possession of the associates, in the following terms:

“Received payment as per this agreement; Opelousas, La., Aug. 1st, “ 189C. (Signed) E. M. Boagni, President.”

Nothing, whatever, was said at the time of the payment thus made and of the delivery of the notes, and the signing of the receipt, concerning the $5,000.00 deposit of Julius Meyers, or about the certificate which had been given (herefor. Boagni testifies that, at some other time, later on, he spoke to Isaac Roos about the certificate, and that Roos promised to deliver it, but Roos, categorically and emphatically, denies this statement, and it is conclusively shown that, about August 15th, Boagni, Roos, Saunders, Norman and Baillio were present in the bank, for the purpose of settling another matter, and that, upon Boagni’s speaking of the bank’s having a claim to said certificate, Roos exhibited great surprise and asked him why he had never spoken of it before.

It may be remarked, in concluding this statement of the ease, that Mr. Upton, whose name is mentioned in Mr. Saunders’ letter, is shown to have been the attorney of Julius Meyers, and also the attorney of Henry Roos, Sr., but there is no specific testimony as to whom he professed to represent in making the statement to which Mr. Saunders refers. The only direct evidence, however, as to any interest of Julius Meyers in the contract out of which the case arises, is to the effect that he has, absolutely, no interest whatever.

The judge of the lower court held that the evidence did not justify the conclusion that Roos acted as the agent of Meyers, or that he was authorized to do so, and hence, that Meyers’ certificate, and his deposit, could not be considered as affected by the contract of July 31st. But he, also, held that said contract called for the $5,000.00, and that as Roos and his associates had failed to show Meyers’ authority they were bound, personally, and he gave judgment accordingly; and, from that judgment, Roos and his associates appealed. Upon the former hearing, in this court, the conclusion was reached that Roos had acted with the authority of Meyers, or in his behalf, and that the contract entitled the bank to the certificate, and there was judgment on that basis.

Opinion.

The fact that the defendants in this case are the brother-in-law, and the nephew, and nephews-in-law, of Julius Meyers, has very little significance for the purposes of the question which is to be decided; since it must be admitted, by any reasonable mind, that, whilst they might have been, and might now be, acting for Meyers, and with Meyers’ money, it is just as likely, as an abstract proposition, that they might have been, and might'now be, acting entirely for themselves, and with their own money. Seeking for information in other directions, we find that only two witnesses, Roos and Silverburg, testify directly upon the subject of Meyers’ supposed interest in the purchase of the bank’s claim and in the operations of the Mercantile Company, to which that claim was evidently transferred, and they both swear positively, that he had, and has, no interest in either.

If we, then, appeal to the surrounding circumstances, the theory that it is Meyers, acting through his family connections who is the real party in interest, is equally without support, for there is not a circumstance, disclosed by the evidence, which can be said to make that theory even probable, still less to sustain it.

Alphonse Levy, Meyers’ partner, took his own life, in February, 1896, and left the affairs of the firm, of which he was the acting, managing, partner, as well as of the bank, of which he was president, in a condition of the utmost confusion. It is hardly to be supposed, that if the money which he had obtained from the bank had been still in his possession, or in that of his firm, he would have been driven to such a desperate extremity, and there is no evidence in the record to indicate that the trouble which he sought to escape was not greater than he believed that he could endure. His sudden taking off, necessarily, left the burden on the shoulders of the partner, who survived, and it does not require a vivid imagination to enable one to understand that the position of that partner was not a pleasant one. It was his firm, carrying' his name, which had been wrecked and dishonered, and it was he who lived to be called to account, by wronged and indignant creditors, not only civilly, but in the criminal courts of the community in which he had been a prominent merchant and citizen. This present suit was instituted in February, 1897, about a year after the deplorable occurrence which has been mentioned, and the trial, in the District Oourt, took place some months later. Liquidators, representing creditors for over $100,000.00, had in the meanwhile been placed in charge of the affairs of the late firm, and it may readily be supposed that they had informed themselves fully concerning those affairs, and that the acts and doings of Julius Meyers had not escaped their attention. The president of the plaintiff bank has said, in his testimony, “I prosecuted Mr. Julius Meyers, prosecuted him criminally;” so that nothing of value, left in the Opelousas business of J. Meyers & co., was likely to have been overlooked; and, if the circumstances under which that business has since been carried on had been such as to indicate that it was conducted for the benefit of Julius Meyer, it seems probable that we should have heard of it through the transcript. But the facts shown are, that Julius Meyers has left Opelousas and is living in New Orleans; that other men have established, and are conducting, under the name of the “Opelousas Mercantile Company,” a business which has succeeded that of which he was the owner, and there is nothing- to indicate that they are not, financially, and otherwise, perfectly competent to conduct such a business for their own account, or that they are philantrophists, !who had rather devote their energies to working for an uncle, or uncle-in-law, than to the pushing of their own fortunes. When we proceed further, and reach the immediate facts with which we have to- deal, we find that, very soon after the condition of affairs was ascertained, negotiations of some kind were begun, looking to the purchase of the outstanding claims against J. Meyers & Co., and the only suggestion, which, in the remotest degree, connects Julius Meyers with those negotiations is, that Mr. Upton, who is mentioned in Mr. Saunders’ letter, is shown to have been Meyers’ attorney. But Mr. Upton was also the attorney of Mr. Henry Roos, Sr., Meyers’ brother-in-law, and it was Henry Roos, Sr., and his associates who were contemplating making the purchase. It was he who visited Opelousas and examined into the affairs of J. Meyers & Co. with that view, and it was lie, of whom Boagni wrote to the liquidators, saying, that he wanted to be informed of the results of his examination, and insisted that he should make something definite in the way of a proposition. And the proposition came — not from Julius Meyers, or from any one pretending to represent him, but from Roos and his associates, who were, dealt with, by the bank, as responsible men, acting for themselves. The contract was made in their name, and they paid the cash and gave the notes called for by it. And whatever ambiguity, in other respects, there may be in the language used, that language suggests no doubt as to who the contracting parties were.

Isaac Roos swears that he was not the agent of Meyers in the matter, and there is no witness who swears that he was, or who can point to any cricumstance, or combination of circumstances, leading to that conclusion. The provision of the contract, whereby the bank agreed not to hold J. Meyers & Company, or the members of that firm, on any indorsements owned by it, was simply part of the understanding, that the bank was selling all of its claim which made it certain that it was not to compete with its vendees in the discussion of the debtors’ property. But, suppose that Isaac Roos held Meyers’ full and unreserved power of attorney on the 31st of July, it surely will not be contended that he could dispose of, or did dispose of, $5,000 of his principal's money, by virtue of a carefully worded, written, contract, in which nothing of that kind is made to appear, but which, upon the contrary, declares in specific terms, that he is acting for himself and certain other named persons; and the consideration of which inures to him and to those persons, and not to Meyers.

In order, therefore, to justify a judgment which will appropriate the $5,000 in question, belonging to Meyers, for the purposes of the contract between the bank and Roos and company, we must first determine that Meyers is a party to, and beneficiary in, that contract, and then go a step farther and determine that, as between him and Roos and company, the $5,000 is his just, or his agreed, proportion of the price which they were paying the bank. And neither proposition is established by the evidence, nor can it be said that there is even an attempt to establish either of them. In addition to these considerations, it may be said that, if Julius Meyers had felt disposed to take up again the broken and tangled thread of his business life in Opelousas, there would seem to have been nothing to have prevented-him from making the offer, of 35 cents on the dollar, to his creditors, in his own name, if the theory of the plaintiff, that it was his money which was used, be correct. Why then should he have resorted to the complicated, and circuitous method which is attributed to him?

Proceeding further with the inquiry: If Julius Meyers was not one of the beneficiaries of the contract between the bank and Roos & Company, was it not perfectly apparent to the bank that his $5,000 could not be used for the purposes of that contract ? Is it not a difficult proposition to maintain, that the bank was deceived in this matter, and led into the belief that Roos & Company were turning over to it Meyers’ $5,000 deposit, when it is not even claimed that Roos & Co. were pretending to act by the authority of Meyers ? If there is anything of which the record is absolutely bare, it is both allegation and proof that Roos, acting for himself and associates, at any time, or to any body, asserted, or pretended, that he was also acting for Meyers. It is alleged that he was, in point of fact, Meyers’ agent, but, as we have seen, the proof fails to establish it; and it appears, affirmatively, upon the face of the contrac!) sued on, that it was not entered into by him in that capacity. But it is not even alleged, still less proved, that he claimed to be the agent of Meyers. On the contrary, the witnesses all agree that, during the time when the contract was being completed and signed, neither Meyers’ name, nor his deposit, nor his certificate of deposit, were mentioned. The bank, therefore, is in 'the position of holding in its possession, on deposit for the account of Julius Meyers, the sum of $5,000, for which its certificate is outstanding; and of claiming the ownership of said sum, by virtue of a contract made with some other parties, in their own names, and for their own benefit, upon the ground that such persons were the agents of Meyers, though it is not alleged that they acted as such in the making of the contract, and the contract itself shows the contrary; or, that contention failing, it claiims that such persons undertook, without pretending to be the agents of Meyers, to dispose of his money, and, being without authority, are personally liable.

If Roos had gone into the Opelousas bank to buy a draft on New' York for $5,000 and had offered, in payment, a deposit, then in the bank to the credit of Meyers, he would have been asked for his authority thus to make use of money belonging to another person, and if he failed to produce it the bank would have refused to furnish the draft. But we are told, in this case, that the bank gave value to Roos upon his undertaking to furnish the consideration in that way, and not only was he not asked for his authority, but the instrument in writing, by virtue of which he obtained the value, declared, upon its face, that he was giving and taking only upon his own account.

But, finally, did Roos and his associates undertake to dispose of Meyers’ $5,000 deposit, and did the bank do the incredible thing of parting with any value by reason of such an undertaking? We think that both of these questions must be answered in the negative. Whatever may have been the idea of the officers of the bank in substituting the word received for the word paid, in the correspondence with Saunders, that idea was never conveyed to him by the substitution, nor would it have been conveyed to any, except an uncommonly suspicious, mind. And the same thing may be said of the language of the contract. Roos had gone to Opelousas with a distinct understanding of the contract that he was to make, and the language written into it by the bank, after he reached there, was readily susceptible of an interpretation in accordance with that understanding; and he therefore signed the instrument.

The word received, as applied, in that instrument, to money which the bank had obtained from Meyers, is certainly susceptible of two meanings, and Roos was justified in supposing that it was used in the sense which made it applicable to the subject with which he was dealing, rather than to a matter, with which he was claiming no authority to deal, and with which the bank knew that he could not deal, without the express and disclosed authority of Meyers.

The subject of the contract was the claim of the bank against J. Meyers & Company, which the bank was to sell to Roos. But the bank had been “paid”, or had “received” $10,125 from the liquidators, and $5,000 from Meyers, on account of that claim, and it was part of the bargain, that the money so paid and received should not be refunded, and yet, that the bank should get 35 per cení, on its claim, as though no such payments had been made, and the words “money received from the liquidators, or from Julius Meyers”, were used to express that idea, and to protect the bank against being called on to refund the price of a thing which it would, otherwise, have appeared to be selling twice. There was no occasion to apply them to the $5,000 which Meyers had deposited, since that was a matter between Meyers and tho bank and in no manner affected the claim that Roos was buying. It occurred to Roos that, perhaps, the $8,044.61, which the liquidators of J. Meyers & Company had on 'deposit, might be involved, and he mentioned it, and had some words inserted in the contract respecting it. He was interested in doing so, just as he was interested in the provision to the effect that the bank should make no claim on 'the indorsements of J. Meyers & Company which it might hold; the only difference being, that, in the case of the money, if the liquidators retained it, they would use it to pay debts which would otherwise compete with the claim that he was buying; and, in the matter of the indorsements his agreement prevented them from competing with that claim.

It is true, no doubt, that 'the deposit was money which the bank had “received” from Julius Meyers, but it had. been received in reality as a sort of a loan, and had not been received in the relative sense in which that word was. used in the contract. It would be as reasonable to say of an agent who has been appointed to take charge of a particular business, and whose contract happens to provide that he shall account for, or deposit, all money received; that he should deposit a legacy received from the estate of his father, or money received, on his own account, from any other source, simply because it falls within the’ literalism of the word “received.”

We are, therefore, of opinion 'that the judgment appealed from is erroneous, in holding the defendants liable; and it is, accordingly, ordered, adjudged, and decreed that said judgment be annulled, avoided and reversed, in so far as it condemns Isaac Roos and his associates, and affirmed, in so far as it rejects the demand as against Julius Meyers.

And it is further ordered, adjudged and decreed that the demand herein made, as against Isaac Roos, Henry Roos, Sr., Henry Roos, Jr., Nathan E. Roos, and Isidore Silverberg, be rejected, and plaintiff’s suit be dismissed; plaintiff to pay all costs.

Nici-iolls, C. J., and Breaux, J., concur, for reasons assigned in separate opinions.

Watkins, J., and Blanchard, J., dissent, adhering to the original opinion.


source: Caselaw Access Project

author: Nicholls, C. J. Breaux, J„

license: Public Domain

text:
    No. 13,488.
    Alexis Brian vs. Arthur A. Bonvillain.
    Syllabus.
    A purchaser of real estate from one actually the owner thereof, and so appearing on the public records, is not affected by facts dehors the record of which he had no knowledge, by which his vendor, as between himself and other parties might have been held estopped to have claimed such ownership.
    A person may be estopped himself by signing as a witness an act, in which third parties contract with each other with reference to rights in which he may have an interest, but the recording of that act does not per se convey constructive knowledge to the general public of any personal connection by the witness with the recitals of the act and its subject matter.
    A tutor ad hoc to minors should take an oath as such and not as curator ad hoc.

    APPEAL from the Twenty-Fourth Judicial District, Parish of St. Mary — Allen, J.

      Milling & Sanders for Plaintiff, Appellant.

      Philip H. Mente, (Bernard Titehe, of Oounsel,) for Defendant, Appellee.
    Statement of ti-ie Case.
   The opinion of the court was delivered by

Nicholls, C. J.

The plaintiff alleges himself to be the owner of an undivided one-ninth interest in certain real estate in the Parish of St. Mary, described in his petition, which he avers he acquired in August, 1898, through an exchange of property which he made with J. O. Sigur, the owner thereof. That J. O. Sigur acquired same by inheritance from his grandmother, Mrs. Gracieuse Comen, wife of Edward Sigur, who survived her husband; but who died in the year 1894, she dying intestate and being an owner of an undivided one-third interest in the said above described property at her death, and said succession being accepted by her heirs; the said heirs being Mrs. Gracieuse Sigur, wife of Charles E. Noveret; J. O. Sigur, inheriting the interest that would have gone to his father, Hermogene Sigur, deceased, a son of the said Mrs. Gracieuse Comen, and the heirs of Mrs. Gallery, her daughter.

That the said Mrs. Graeieuse Sigur, nee Oornen, acquired an undivided one-half interest in the said above described property by being the wife of Edward Sigur, who acquired said property during the married life of himself and his said wife, and which was, at his death in 1884, community property between him and his wife, she accepting at his death the community of acquets aSnd gains existing then, she after-wards disposing of a portion of said property, leaving her an undivided one-third interest therein.

That Arthur A. Bonvillam, a resident of the Parish of St. Mary, is in possession of the whole of said above described property, including the interest of petitioner.

That when he acquired said interest in said property, he also acquired the rents and revenues due thereon; that the rental value of the entire property is well worth the sum of four thousand, five hundred dollars per annum, and petitioner is entitled to one-ninth thereof, being five hundred dollars. That Bonvillain has been in possession of and has derived a revenue from said property since the year 1895, and there is due petitioner the sum of five hundred dollars for the use of said property for each of the years, 1895, 1896 and 1899, and the same amount for each additional year until the final termination of this suit, with five per cent, interest thereon from judicial demand.

The prayer of the petition was to be decreed the owner of the property of which plaintiff alleged himself to be the owner, and for judgment for the sum of twenty-five hundred dollars additional for each year until the final termination of the suit, with legal interest from judicial demand.

Defendant, after pleading the general issue, further answered that he denied that the plaintiff ever acquired any right, title or interest in the property described in his petition by reason of the transfer set up in his petition; that the act was a simulation resorted to for the purpose of presenting pretensions in the name of a third person, which the transferer could not advance legally in his own. He denied that at the time of the act of transfer to plaintiff, his transferor had any right, title or interest in the property.

He averred that he, respondent, was the owner of an undivided half of the “Home Plantation,” described in plaintiff’s petition; that he acquired the same for the price (which he had paid) of nineteen thousand dollars, from Mrs. Gracieuse Noveret, wife of C. E. Noveret, by notarial act of May 14th, 1894.

That on the same day, by notarial act before the same notary, his vendor (Mrs. Noveret), in consideration of the sum of twelve thousand, eight hundred and twelve 50-100 dollars, cash, paid by her at that time, acquired from L. E. Gallery, Jos. E. Gallery, Ohas. H. Gallery, Jos. A. Gallery and Mrs. Bertha R. Minvielle, wife of Dr. George P. Minvielle, all these being the children of Mrs. Olara Sigur, wife of Gustave Gallery, also an heir of Edouard Sigur and of his widow, the undivided third of the said property.

That on the same day, by authentic act passed before said notary, his vendor, Mrs. Gracieuse Noveret, who is the mother of his first wife, Mrs. Elmire Noveret, donated], by authentic act to defendant’s said first wife, the undivided half of said property; that said donation was made entirely subject to collation; that said donee has since died, leaving tjhree minor children, issue of her marriage with defendant; that the value of said donated property was, in said act of donation, fixed at the sum of nineteen thousand dollars, and the obligation to collate was likewise fixed at that sum; that said donor, Mrs'. Gracieuse Noveret, had another child, Ooralie, these two daughters being the sole issue of her marriage with Charles E. Noveret, (who authorized her in the making of said sale, and said donation, but who has since died), and that said Coralie Noveret is now the second wife of defendant.

And he averred that said purchase of said one-third of said plantation, by Mrs. Gracieuse Noveret, on May 14th, 1894, from her aforesaid vendors and có-heirs, was for the sole and express purpose of acquiring so much of the title thereto as she might not then already have had, and for the express purpose of enabling her to make the aforesaid sale and donation to defendant and his first wife, Elmire Noveret.

And defendant averred that said J. Oscar Sigur signed, as a witness, the authentic act by which Mrs. Gracieuse Noveret acquired the said undivided one-third of the said plantation.

He averred that on the same day, by authentic act passed before the same notary, defendant’s first wife, Mrs. Elmire Bonvillain, for six thousand, five hundred dollars ($6,500,00) cash, paid her, then sold to Mrs. Gracieuse Noveret, her mother, a tract of land containing 82 18-100 acres, in the Oypremort prairie; that this sale was made by the said vendor in order that the said sum arising therefrom might be used, as it was used, by defendant to aid him in purchasing the aforesaid half of the said “Home Plantation,” described in plaintiff’s petition, for which sum defendant became and is now indebted unto the separate estate of his first wife.

He averred that there were three heirs of Edouard Sigur and of his wife, Mrs. Gracieuse Oornen, viz: The said Mrs. Gracieuse Noveret, wife and widow of Charles E. Noveret; Iiermogene Sigur, who died long since and whose sole heir and representative was and is the said J. Oscar Sigur; and Clara Sigur, wife of Gustave Gallery, who died and whose legal representatives were the said L. E. Gallery, Jos. E. Gallery, Charles H. Gallery, John A. Callery and Mrs. Bertha Gallery, wife of Dr. George P. Minvielle.

He averred that on said May 14th, 1894, when the said notarial acts were passed, they being so passed by the said notary at the residence of Oharles E. Noveret, in the Parish of St. Mary, all the parties herein named, as heirs of Edouard Sigur, and of his wife, Mrs. Gracieuse Comen, as well as this defendant, then and there met, and were present and there remained until all said acts, as well as the further authentic act hereinafter mentioned, were passed and signed, and that all of them, especially the said J. Oscar Sigur, took cognizance of all that is alleged as happening on that day at that place.

He averred that it was then and there stated and declared in the presence of the said J. Oscar Sigur, and of defendant, and was then and there accepted as a fact, and so acted upon by all parties mentioned, especially by defendant, that said J. Oscar Sigur had no interest remaining in, or claim or demand against, any part of the real estate once belonging to his said grand parents, and that said Sigur acquiesced therein and held out this statement to those present as the truth and fact. That it was then and there, and in the presence of the said parties, explained and declared that there being some money arising out of the partnership of Noveret & 'Sigur, of which Mrs. Edouard Sigur, widow as aforesaid, had been a partner and was when she died, a part thereof belonged to her estate and was to be divided among her heirs, and that this sum was then and there paid in equal portions to Mrs. Gracieuse Noveret, to J. Oscar Sigur and to the children of Mrs. Clara Gallery; that said J. Oscar Sigur acquiescing in the statement made before all there present that he had no interest in any of the said real estate, and that his sole interest in the estates of grand parents was only as to the cash money then remaining, accepted said sum of money; that he then made an additional claim as to certain old furniture in the residence of the Home Plantation, upon which an additional sum of one hundred and fifty dollars ($150.00) was paid him, and that these sums were all that he made any pretense to that day, and that therewith he declared himself entirely paid and satisfied.

And defendant showed that, that at the same time and place, said J. Oscar Sigur, and all said other persons named herein as co-heirs, signed another authentic act — defendant and his attorney being called to act, and signing, as witnesses to shid act — in which said T. Oscar Sigur, admitting- the payments made to him as set out, declared that he had no further claim against any of his said co-heirs on account of his being an heir as herein recited; that the sale then made by the children of Mrs. Clara Gallery, to Mrs. Gracieuse Noveret, disposed of all the real estate belonging- to the estate of Mrs! Gracieuse Oornen, wife of Edouard Sigur; and that in said act he and his coheirs acquitted each other, mutually and fully, of all demands they had against each other by reason of their being co-heirs of said Mrsi. Gracieuse Oornen, deceased, a copy of which act was annexed and made part of the answer.

That by act passed before G. B. Shepherd, notary, December 27th, 1884, said. Sigur haying inherited one-sixth of the said “Home” Plantation from his grandfather, Edouard Sigur, his grandmother, Mrs. Gracieuse Oornen, donated to him one-sixth of the same property, making him owner of the one-third thereof; and that on the same day, and by act before the same notary, he exchanged and transferred to Mrs. Gracieuse Noveret, his co-heir, said one-third of said property, thereby divesting himself of the interest in said property which he had inherited from the estate of his grandfather, which divestiture was admitted in the petition of plaintiff.

That all the written acts herein mentioned were duly recorded in the hooks of conveyance and donations in the office of the recorder of the Parish of St, Mary, as required by law.

That by the said Sigur’s conduct, silence when he should have spoken, his acquiescence and participation, and his representations at the place mentioned and in the presence.of those herein named on May 14th, 1894, when the said sale was made to defendant, and the said donation, subject to collation, was made to Ms said wife, and by Ms holding out to defendant and all others present that he had no interest as an heir or in any other manner to any part of the real estate described in plaintiffs petition, and that he had no interest as an heir or otherwise save as to the cash money that was then paid him, and for which he receipted, and declared himself fully satisfied, and as to said remnant of furniture, and by failing to object or protest against any trading in said real estate, or against this defendant investing his money therein, said Sigur was estopped to claim any part of the said real estate, and had no such claim against defendant or his wife, and could and did pass none to the plaintiff in this suit, and that none was ever intended to be passed.

That since the said Home Plantation passed to him and his wife, said Sigur has always recognized them as lawful owners, and though he has been in great poverty since then, he never, himself, made any claim such as his pretended assignee now pretended; that he had sought work on said plantation under defendant, and had always treated the present owners of said plantation as lawful owners until he signed the said pretended transfer of his rights as an heir.

And as to the order of court putting the said heirs of Mrs. Edouard Sigur in possession of her estate in July, 1895, which is alleged by the plaintiff, defendant averred that this was after the acts recited as happening- on May 14th, 1894; that her said succession had been, in fact, closed on May 14th, 1894, by acceptance by all said heirs, and that this fact was declared by said Sigur and his co-heirs by authentic act on that day; that it was later found that a certain sum of money was due the said estate by the United States for bounty on the sugar crop of 1894, being part of the money due to the firm of Noveret & Sigur; and- that it was necessary to produce to the disbursing officers of the United States a copy of a judgment of a probate court showing who were the heirs of Mrs. Edourd Sigur, who might be entitled to receive her share of the said bounty; that it was well understood by said Sigur and all others, that, while this judgment was useless under the laws of the State of Louisiana, for the purpose of any probate matter, it was required by the regulations of the said disbursing officers, and that it was nothing more than a means of collecting said bounty, and had no further meaning or relevancy.

And alleging that he acquired the undivided half of the said property in good faith, and had always possessed it in good faith, he averred that he had placed thereon useful and necessary improvements for the purpose of developing it as a sugar plantation and to manufacture and refine sugar thereon, consisting of machinery, buildings and apparatus of that kind, as well as boring wells, erecting a new residence thereon, ditching, taking in new lands, and in every manner extending and developing said plantation, which improvements were fully worth the sum of seventy-five thousand ($75,000.00) dollars; besides which he had paid the taxes on the said property since he and his wife became the owners thereof, amounting to-dollars; and that he was entitled to be reimbursed the proportionate part of the said sums in the event that a judgment was rendered against him in this matter.

Respondent prayed'that plaintiffs demand be rejected and dismissed, but in the event of a judgment in favor of the plaintiff then he have judgment against plaintiff for a proportionate amount of the sums spent by him, defendant, and that plaintiff be ordered to pay him the said amounts before he can take possession of any portion of the property.

Upon the filing of this answer, plaintiff filed an amended and supplemental petition in which, after declaring that he adopted and reiterated the allegations and prayer of the original petition, and that he had learned through the answer that there were minors interested and proper parties defendants in the suit, he prayed, without in any manner admitting that they had an interest in the property, that they should be made parties therein, and to that end he prayed that a tutor ad hoc be appointed to the minors, Sidney A., Ehnire P. and Noveret C. Bonvillain, and suggested that Philip II. Mentz would be a proper person to be appointed.

He prayed that the said appointment be made, and for citation and service of the original and supplemental petitions on said Jninors, through said tutor ad hoc, and for judgment as in his original petition.

Philip II. Mentz was accordingly appointed tutor ad hoc to the said minors, and it was ordered that he qualify by taking the oath required by law. _ He took an oath as curator ad hoc of the minors and filed an answer as tutor ad hoc, adopting as their answer the answers filed by their father for himself. . .

The District Court rendered judgment maintaining the plea of estoppel filed by the defendants, and rejected and dismissed plaintiff’s suit, and he appealed.

Opinion.

This is a petitory action for the recovery, by the plaintiff, of an undivided ninth interest in certain described real estate in the Parish of St. Mary. The action was directed, originally, against Arthur A. Bonvillain, who was alleged to be in possession of the same, but a supplemental petition was subsequently filed by which the minors, children of Bonvillain and his wife, Elmire Noveret, were made parties. Considering- them as having been properly cited, the case went to trial without objection, resulting in a judgment in favor of the defendants, from which plaintiff appealed.

Recitals in several of the acts offered in evidence are perplexing in character, particularly in the act between Mrs. Gracieuse Cornell, widow of Edouard Sigur and her grandson, J. Oscar Sigur, the vendor of the plaintiff, and in the act of exchange between Gracieuse Sigur, wife of C. E. Noveret, and the children of Clara Sigur, deceased, wife of G. Gallery.

These recitals will be referred to later. We have to take the case as we find it.

Edouard Sigur died in the Parish of St. Mary in the year 1884, leaving a surviving wife, Gracieuse Comen, as widow in community, and a number of heirs, one being J. Oscar Sigur, who was a son of Tlermogene Sigur, a predeceased son of Edouard Sigur; another, Gracieuse Sigur, wife of C. E. Noveret, and the others the children of a deceased daughter, Clara Sigur, who was the wife of Gustave Gallery.

Edouard Sigur left a very considerable estate, the greater portion consisting of the “Home” and “Richland” Plantations.

The widow, at the death of her husband, became the owner, in right of the community, of one-hcdf or three-sixths of the Home Plantation; Mrs. Gracieuse Noveret, the owner of one-third of one-half or one-sixth; the children of Clara Sigur (Mrs. Oallary), of one-third of one-half or one-sixth. J. Oscar Sigur of one-third of one-half or one-sixth.

The grandmother of J. Oscar Sigur, by act of the 27th December, 1884, before Shepherd, notary, made a donation to him of one-sixth of the Home place, free from collation.

The children of Clara Sigur (wife of Gustave Gallery), a predeceased daughter of Edouard Sigur, and wife, intervened in this act ratifying and confirming the donation so made. They were made to say that “said property should not, thereafter, be subject to any collation on the part of said donee as an heir of his said grandmother, and they each for himself fully and freely relinquished! and abandoned to the said Joseph O. Sigur, all their respective rights, claims and demands, in and to all said real estate, property hereinbefore donated by them, and each of them held and owned as heirs and legal representatives of the estate of Edouard Sigur, and recognizing and warranting and guaranteeing the title to said tract of land as complete, perfect and irrevocable.”

In the clause of the act of donation which referred to collation it was declared “this donation is made not subject to any future collation by said donee as an heir of the donor, but is donated to the said Oscar Sigur for the purposes of the settlements this day made with and among the heirs of said estate.”

The sixth donated by the grandmother of J. Oscar Sigur, to him, added to the portion inherited from his grandfather, gave him an interest of two-sixths or one-third of the property. On the same day that this donation was made to him, Gracieuse Sigur, wife of O. E. Noveret, transferred to J. Oscar Sigur, and to the children of Clara Sigur (Mrs. Callary) the one-sixth interest which she had inherited in the Richland Plantation as heir of her father Edouard Sigur, for and in consideration of the transfer to her by way of exchange of the two-sixths (one-third) held by J. Oscar Sigur on the “Home” place. What consideration was given by the Callerys to either Oscar Sigur or Mrs. Noveret for the portion of the Richland Plantation, so conveyed to them, does not appear, for they made no transfer of any kind in this act.

. The result of these transactions was to leave the Home Plantation in the widow, to the extent of two-sixths (one-third); to the Callerys to the extent of one-sixth (1-6); to Mrs. Noveret to the extent of three-sixth (1-2); (the sixth inherited from her father, plus the two-sixths received by exchange with J. Oscar Sigur).

Matters seem to have remained in this situation until the death of Mrs. Edouard Sigur, in 1894.

By her death Mrs. Noveret acquired an additional interest in the Home place to the extent of one-ninth; the Callerys an additional interest of one-ninth; and J. Oscar Sigur became de novo interested in the property to the extent of one-ninth, or stating the interest of the parties in other terms, Oscar Sigur owned two-eighteenths; the Callerys five-eighteenths, and Mrs. Noveret eleven-eighteenths (more than one-half).

On the 14th of May, 1894, the Callerys sold to their aunt, Mrs. Noveret, one undivided third or six-eighteenths of thei property, more than they really owned — by one-eighteenth.

On the same day (14th May, 1894), Mrs. Noveret sold to Arthur A. Bonvillain, the husband of her daughter, •Blmire Noveret, .an undivided half of the property, she really owning at that time an interest to that extent in the property.

Upon the same day this sale was made, Mrs. Noveret transferred to her daughter, Mrs. Elmire Bonvillain, by way of “avancement d’hoirie and donation,” subject to collation by taking less (C. C. 1251, 1253) to the amount of nineteen thousand dollars, the other undivided half of the Home Plantation.

In making these two transfers she exceeded, to the extent of one-ninth, her interest in the property. It is this interest of one-ninth which J. Oscar Sigur, claiming to be the owner thereof, transferred to the plaintiff.

Oscar Sigur denies having sold the same to the Callerys, to Mrs. Noveret, or to any one else, prior to his transfer to the ifiaintiff, and the defendants admitted very frankly, from the bar, that they were unable to show any divestiture in their favor of this ninth interest, and unless they could hold J. Oscar Sigur and the plaintiff, Brian, holding-under him, estopped from claiming it, that the plaintiff was entitled to have his right recognized and decreed.

The District Court held the plea of estoppel interposed by them to be well grounded, and it is to this feature of the case to which we now direct our attention.

The facts on which this contention rests is, first, that J. Oscar Sigur signed, as a witness, the act on the 14th of May, 1894, by which the Callerys transferred one undivided third interest in the Home Plantation.

Secondly, his being- present when the heirs of Mrs. Edouard Sigur met at the house of her daughter, Mrs. Noveret, for the purpose of settling the affairs of a planting partnership which had existed for a number of years between herself and her said daughter, and disposing, between the heirs, of a quantity of movables, furniture, etc., at which meeting an .act sous seing prive was signed (and acknowledged) by the different heirs, and among them J. Oscar Sigur, which contained recitals which would effectually bar the latter from setting up, subsequently, any interest in the property of the succession of his grandmother; and, thirdly, by being present when various acts of transfer were made, particularly that of- sale from Mrs. Noveret to Arthur Bonvillain, and that of donation by Mrs. Noveret to her daughter, Mrs. Elmire Bonvillain, and not then advancing or making known any adverse pretentions on his part.

The evidence shows that Oscar Sigur did sign, as a witness, the act of sale from the Oallerys to Mrs. Noveret, of an undivided third interest in the Home Plantation, and the record contains a copy of the act of settlement between, the heirs to which the defendants refer. The act, after reciting the names of the parties to the same, and their relationship to Mrs. Edouard Sigur, declares that they (have) had “entered into the following agreement for the purpose of settling and adjusting their interests in the estate of the said Mrs. Gracieuse Comen, deceased widow, as stated.”

“Said parties accept her succession as evidenced by the sale this day passed by the said Mrs. Bertha Minvielle and her brothers (the Gallery children), this day passed by Mrs. Gracieuse Noveret, before Charles-A. O’Neill, a notary public, in and for the parish of St. Mary.

They declare that said sale disposes of all the real property of said deceased, and whereas there was a planting partnership existing between said deceased and her daughter, Mrs. Gracieuse Noveret, which ended with the death of Mrs. Gracieuse Sigur, said deceased widow. They declare that the aforesaid sale, which embraced the growing crop on the Home Plantation, disposed, to their satisfaction, of that asset of said firm; and there being on hand the sum of-dollars, the property of said firm, said parties declare that they have received the following sums from Charles E. Noveret, who was the agent and manager of the affairs of said firm; Mrs. Gracieuse Noveret has received the sum of two thousand dollars and sixty-two 50-100 dollars; Mrs. Bertha Minvielle, L. Emile Gallery, Joseph E. Gallery, Charles Hermogene Gallery, John A. Gallery, have received the sum of two thousand, two hundred and sixty-two 50-100 dollars ($2,262.50); Joseph Oscar Sigur has received the sum of two thousand, two hundred and sixty-two 50-100 dollars ($2,262.50), which said last sums so received exhausts the cash assets of said firm; and the said parties declare that the said payments so made to them are a complete settlement of the affairs of said firm, and they exonerate said álgent, Charles E. Noveret, from any and all future demands by reason of said partnership.

“Said J. Oscar Sigur also declares that he has received from Mrs. Gracieuse Noveret the sum of one hundred and fifty dollars ($15.0.00), being in full ¿settlement of his interest in the furniture in the dwelling on the Home Plantation; and that he has now no further demands against any of of the aforesaid parties on account of his being an heir of said deceased.

“And said parties further declare that by reason of further payments made this day, which are satisfactory to them, said Mrs. Gracieuse Noveret became the sole owner of all the furniture and movables in the dwelling on said Home plantation.

“Said parties, therefore, acquit each other mutually and fully of all demands they may have against each other by reason of their being co-heirs of said deceased.”

**«•#**«•

The act was signed.

L. E. Gallery.

E. J. Gallery.

J. A. Gallery.

B. R. Minvielle.

I authorize my wife (signed) Geo. P. Minvielle. J. O. Sigur. O. H. Gallery. Gracieuse Noveret. I authorize my wife (signed)' C. E. Noveret. (This act was never re'corded.)

The evidence shows that J. Oscar Sigur was in and about the premises at the time of the execution of the different acts then passed between different parties, but not' that his attention was particularly directed to any of them.

It is claimed that Oscar Sigur slept upon his rights, but those now claimed were derived from hisl grandmother’s succession, which was only opened in 1894.

The plaintiff in the case is before the Court as a purchaser for value, who acquired the property on the faith of the public records. If his vendor at the time of the sale, actually owned the property which he conveyed, and on this record he evidently did so, and it no where appeared upon the public records that he had divested himself of- ownership of the same, plaintiff was authorized under the registry laws to purchase as he did, secure against any actions, conduct, statements en pais of his vendor, of which he had no knowledge, which might as between the vendor and certain other parties have caused him to be held estopped from thereafter claiming an interest in the property.

There is nothing to show that the plaintiff had notice or knowledge of any act either of omission or commission made by Oscar Sigur, which could have worked such an estoppel, unless the recording of the act by which the Callerys transferred a third inteitest in the Home Plantation to Mrs. Noveret, to which he had attached his name as a witness, should have conveyed legal notice to some extent to him.

We do not think the recording of that act conveyed notice for two reasons. In the first place, a person desiring to purchase property is not called upon to search the records to ascertain or to know the names of the witnesses to all the various acts in which persons other than his own proposed vendor figure as the parties, and secondly, because even if this particular act had come under plaintiff’s observation, its terms were not of such a character as to arrest his attention or place him upon inquiry.

The Callerys actually had at the time of this new transfer, undivided interests of ownership in the Home Plantation; the act of transfer declares their extent to be an undivided third; they might well have had such an interest, and this from sources entirely independent of Oscar Sigur.

The act does not declare that they held any portion of their interests from him nor is there a word to show that as a fact they did so. They were heirs of Edouard Sigur, their grandfather, and later of their grandmother, and neither the general public dealing with Oscar Sigur, nor Oscar Sigur himself acting simply as a witness, were under any obligation to examine either into the soufice or the extent of their interests. If the Callerys were claiming in their act of sale to Mrs. Noveret, to sell, or Mrs. Noveret anticipated ■ buying any interest in the Home Plantation as having at one time 'been vested in Osear Siguí, it was certainly more their duty to have so stated to Sigur at the time, than it was his to assume that they were about to deal with property with respect to which they had no right to contract, and therefore to examine into matters and prevent them.

Reviewing the situation we find that Mrs. Noveret has undertaken to dispose of the whole of the Home Plantation, first by a sale of one half to Arthur Bonvillain, and next of another half by a dation en avancement d’ftbirie subject to collation1, by taking' less to her daughter, Emire, wife of Arthur Bonvillain (now deceased) ; that in so doing she disposed to the extent of two-eighteenths of a greater interest than she really owned; one of these eighteenths having evidently been derived through the sale to her by the Callerys, who did not own the same at the time of said sale; and the other eighteenth held by her under no title whatever, so far as the record shows; that at the time of Mrs. Noveret’s sale to Arthur Bonvillain she owned a sufficient interest in the Home Plantation to have validly conveyed to him the interest she did.

In the discussion of this case, counsel of defendants urge upon us that the children of Arthur Bonvillain and his deceased wife, Gracieuse Noveret, (the other defendants in the cause) will be held to collate the property donated to their mother, in the settlement to be made of the Succession of Mrs. Noveret, between them and their aunt, Cor alie Noveret, the sister of their mother, and who is now the second wife of their father; that her liability to collate by taking less, withdrew the act between their mother and their grand mother from being a pure gratuitous donation, and made it take on the character of an onerous obligation.

They also urge before the court, that on the 14th day of May, 1884, Gracieuse Noveret sold to her mother, Mrs. Noveret, certain pro-, perty for the price of Sixty-Eive Hundred Dollars, which was declared in the act of sale to have been paid cash to the vendor, when in point of fact the price was not paid in money, but by crediting the vendor’s husband, Arthur Bonvillain, with that amount on the price due by him on his own purchase of the half of the Home Plantation from Mrs. Noveret; the husband thus becoming a debtor to his wife; Arthur Bonvillain testified that such was the fact.

The fact that Gracieuse Sigur (Mrs. Bonvillain)-, consented, on accepting title to one-half of the Home Plantation, to collate for the same by taking less, placed it in her ownership none the less by right of her inheritance (anticipated it is true) from her mother, and not under a purchase.

If, from any cause, she could be evicted from any part of the property so conveyed to her she will be relieved pro tanto in her obligation of collation.

No explanation was made before us as to what was- claimed to be the legal effect of the sale from Mrs. Bonvillain to her mother, by reason of the former not having received the price thereof, but having become the creditor of her husband for the same.

We do not see what bearing it has upon the rights and obligations of the parties to this litigation.

By consent of parties all questions as to improvements, revenues, etc., were not to be passed upon herein, but reserved for future examination and adjudication.

We have reached the conclusion that the judgment of the District Court is erroneous, and that it should be reversed, but we do not think the situation is such as to authorize us to pronounce judgment in favor of the plaintiff as matters stand.

We do not think the minors are properly before the court, as the oath taken by Philip H. Mentz, was not as Tutor ad hoc, but as Curator ad hoc. We will be obliged to remand the cause.

For reasons assigned it is hereby ordered, adjudged and decreed that the judgment appealed from be and the same is hereby annulled, avoided and reversed, and the cause is remanded to the District Court for further proceedings according to law.

Breaux, J„

having been of counsel for the Callery heirs in matter of the settlement of the Succession of Edouard Sigur, recuses himself.

Rehearing refused.