text:
    No. 9080
    Orleans
    SOUTHERN HAT COMPANY, INC., Appellants v. ELLIE SCHILL
    (October 19, 1925, Opinion and Decree)

      (Syllabus by the Court)

    1. Louisiana Digest—Appeal—Par. 625, 627, 635.
    Where the findings of fact by the trial court are supported by all the probabilities suggested by the evidence, there is a very strong presumption that the conclusions of fact reached by the trial judge are correct.
    Appeal from Civil District Court, Division “E”. Hon. Wm. H. Byrnes, Jr., Judge.
    This is a suit for a balance due by a salesman to the one who had employed him.
    Defendant claimed money in a reconventional demand.
    The claims of both defendant and plaintiff were dismissed and plaintiff alone has appealed.
    Judgment affirmed.
    Milling, Godehaux, Saal and Milling, and Eugene D. Saunders, of New Orleans, attorneys for plaintiff, appellant.
    H. W. Robinson, of New Orleans, attorney for defendant, appellee.
   WESTERFIELD, J.

Plaintiff alleges that it employed defendant as a salesman during the period from January 1 to September 1, 1921, on a basis of 12% commission on sales effected by him; that during defendant’s employment plaintiff paid him $1194.90 and his commissions amounted to only $566.53, and that, therefore, defendant owes plaintiff the difference, or $629.48.

Defendant denied the indebtedness and claimed $260.86 in reconvention.'

The claims of both plaintiff and defendant were dismissed by the District Court and plaintiff alone has appealed.

We have only to consider whether plaintiff is entitled to a judgment on his demand.

The case turns upon the credit to be given the evidence of two contradictory witnesses, Mr. Gerson, the president of the plaintiff corporation, and the defendant himself.

Both agree that the original employment contemplated that defendant should pay his own traveling expenses and receive nothing more than 12% commission on his sales. Mr. Gerson contends that this agreement was unchanged throughout. defendant’s entire employment, whereas Schill, the defendant, claims that after working a month for plaintiff on that basis he quit and remained idle for about one month because he found he could not make a living on those terms, whereupon he was approached by Mr. Sear, plaintiff’s secretary-treasurer, and urged to try it again, and as an inducement defendant's traveling expenses were guaranteed. That is to say that if defendant did not earn sufficient commissions to cover his advances for expenses, the surplus advances were to be charged to profit and loss.

If Gerson is correct plaintiff must recover, and if Schill, the judgment must be affirmed.

On plaintiff’s behalf it is argued that it would be unreasonable to believe that the Southern Hat Company would pay defendant’s expenses without limiting the amount, and defendant says no limit was given him. The evidence shows that advances were made iñ small sums and plaintiff could easily control the amount of expenses. On the other hand, it is much more unreasonable to suppose that the plaintiff would allow defendant to become its debtor for $628.48. Moreover, plaintiff admits that defendant stopped working for it for the time he claims but offers no explanation. Schill quit plaintiff’s employ (and we find nothing in the record to indicate whether voluntary or involuntary) on September 1, 1921, ahd this suit was not filed until May 19, 1922. There are no letters in the record to defendant demanding payment nor any testimony indicating that there was any démand for payment-before the suit whs brought. Mr. Sear, who was in th’e court foóín as is evidenced by his testimony in the record, does not Contradict Schill, Who testified that Sear sp'dke to him severáí times about business and Assured Scbill that “you need not worry about this; you ate getting yoiir expense's just the same”; and also Mr. Gerson was said by S'cliill to have invited him (S'chill) to spend a ’couple of day's with hirh at his store in Glenmora, Louisiana, saying: “We are guaranteeing your expenses sb you can lay off for a while”, and Mr. Gerson makes no denial though present in court. The trial judge refused to folio# plaintiff after hearing the evidence, and finally it is most improbable that anyone would be willing, as it is claimed Schill wa's, to #otk seven months, furnish an automobile and buy gasoline for the car and food and lodging for himself without earning at any time the actual cost of maintenance of man and machine, to say nothing of compensation for services rendered and time expended.

FOr the reasons assigned the judgment appealed from is affirmed.


source: Caselaw Access Project

author: CLAIBORNE, J.

license: Public Domain

text:
    No. 9974
    Orleans
    ARCTIC PURE ICE CO., Appellant v. ROBERT L. M. RATHE
    (Oct. 5, 1925, Opinion and Decree.)

      {Syllabus by the Court.)

    1. Louisiana Digest—Courts—Par. 89.
    The City doiirts for the Parish of Orleans have no jurisdiction of a réconventiohal demand exceeding three hundred dollars.

      Appeal from First City Court, Hon. Alexander Bahns, Judge.
    This is a suit for the price of ice sold and delivered. There was a reconventional demand for more than the jurisdiction of the court in which the original suit was brought. There was judgment in favor of defendant on his reconventional demand and plaintiff appealed.
    Judgment reversed, because of lack of jurisdiction of the court granting the judgment.
    Prow’ell and McBride, of New Orleans, attorneys for plaintiff, appellant.
    McCloskey and Benedict, of New Orleans, attorneys for defendant, appellee.
   CLAIBORNE, J.

This is a suit for $204.11 the price of ice sold and delivered.

It was filed in the City Court, under Sec. 91 of the Constitution of 1921, p. 65, conferring jurisdiction upon said Court “of all suits for moneyed demands above $100 and not exceeding $300.00”.

The defendant admitted plaintiff’s claim but urged in reconvention or compensation a demand against the plaintiff for $1500 for services rendered to plaintiff.

There was judgment for plaintiff against the defendant for the amount claimed ($204.11), and in favor of the defendant on his reconventional demand against plaintiff for $1500.

The plaintiff has appealed from the judgment of $1500, against it on the reconventional demand. That is the only question before us as the defendant has not appealed.

The judgment of $1500 in favor of the defendant on his reconventional demand against the plaintiff is clearly an error and a nullity as the court that rendered it was without jurisdiction ratione materias.

The courts of original jurisdiction have no jurisdiction of demands in reconvention or other incidental demands exceeding the amount of their jurisdiction as fixed by the Constitution. It is only in cases of an appeal from the judgment on a recon-, ventional demand that the appeal lies to the court having jurisdiction of the main demand. Sec. 1 p. 35, Const. 1921, Art. VII.

It is therefore ordered that all that portion of the judgment appealed from on the reconventional demand in favor of plaintiff in reconvention Robert L. M. Rathe and against defendant in reconvention Arctic Pure lee Co., Inc., for the sum of Fifteen Hundred Dollars with legal interest from September 1, 1924, until paid be reversed and set aside, and that defendant pay the costs of the district court and of this Court of Appeal.

Judgment reversed.


author: CLAIBORNE, X

text:
    No. 10,049
    Orleans
    JOHN MOURI v. J. MANGUNO AND SON, Appellant
    (Oct. 5, 1925, Opinion and Decree.)

      (Syllabus by the Court.)

    1. Louisiana Digest—Mandate—Par. 85, 88, 89.
    A principal when informed of an agent’s unauthorized act must repudiate it at once or he will be bound by it.
    2. Louisiana Digest—Mandate—Par. 74, 76.
    A third person acting in good faith will not be permitted to suffer where an agent clothed with apparent authority disobeys the private instructions of his principal.
    Appeal from the First City Court, Division “B”, Hon. Val. J. Stentz, Judge.
    This is a suit for the recovery of money paid out for the account of the defendants. There was judgment for plaintiff as prayed for and defendants appealed.
    Judgment affirmed.
    G. R. Bossetta, of New Orleans, attorney for plaintiff, appellee.
    R. A. Tichenor, of New -Orleans, attorney- for defendants, appellant's.
   CLAIBORNE, X

This is a suit for the recovery of money paid out for account of the defendants.

Plaintiff, a resident of Long Beach, Mississippi, alleged that the defendants, who are residents of New Orleans, sent out Louis Porte to Long Beach to select, purchase, and ship to them turnips; that the said Forte could not purchase turnips unless he paid for them cash; that thereupon Porte phoned to defendants for authority to .get some one at Long Beach to advance the cash to pay for the turnips; that the defendants authorized him to do so, and promised to pay cash for the same on delivery; that Forte asked plaintiff to advance the money to pay for the turnips explaining to him his authority from Manguno; that plaintiff, through Tony Stallone, then phoned to the defendants to ask them whether it would be all right for him to pay for the turnips purchased by Porte to which defendants answered that it would be all right and that they would pay for the turnips C. O. D.; that acting under this authority plaintiff paid for the turnips selected and purchased by Porte for the defendants, and shipped them by express C. O. D. to the defendants; that he paid for the turnips_______________________________________________$255.58 and for telephones________________________________ 5.40

making a total of____________________________$260.98 that the .defendants accepted and

paid for two barrels paying.'.......11.20

leaving a balance due_______________$249.78

and refused to accept delivery of the other barrels; that owing to the perishable nature of the turnips and in order to minimize the loss plaintiff caused the other barrels of turnips to be sold by Taormina and Co., which realized, after .paying expenses of storage, freight, drayage, loading, and commission, a net balance of $31.58, leaving •a balance due to plaintiff of $218.20 for which he claims judgment.

For answer the defendants admitted having talked with someone over the phone in reference to the shipment; in this conversation the person talking to your respondents was informed that if the turnips were of the grade specified, that is would run from 5 to 6 dozen bunches per barrel, that respondents would pay. for the same if shipped C. O. D.”; they admitted that they refused to accept the shipment; but denied all the other allegations of the petition. They further averred that sometime during January, 1925, Louis Porte came to respondent’s place of business and represented that he thought that he could purchase some turnips on the Gulf Coast of Mississippi and was told that your respondents would pay him 75c per dozen for turnips of the size 5 to 6 dozen bunches to the barrel and the said Louis Porte whs instructed to ship the turnips C. O. D. Respondents had agreed to buy from the said Louis Porte, and agreed to pay the price agreed upon, but he was not in any way authorized to make purchase for account of yóur respondents or to make any of the arrangements as set forth in plaintiff’s petition. Respondents aver that the shipment of turnips referred to were not of the class of goods which respondents agreed to buy from the said Louis Porte.

Upon inspection respondents found that the turnips were inferior in quality and were so very small that the barrel contained from 11 to 13 dozen bunches per barrel, the market value of which was not the price which respondents agreed to pay for as per verbal arrangement with the said Louis Porte.

There was judgment for the plaintiff as prayed for, and defendants have appealed.

The question for solution is, did the defendants employ Porte to go out and purchase turnips for their account, or did the defendants merely agree to buy from Forte turnips for a stipulated price, provided they averaged a certain size of 5 or 6 dozen bunches to the barrel?

It would serve no useful purpose to reproduce the lenghty testimony in this case or to compare or contrast it.

The testimony fully established to our satisfaction that the defendants employed Louis Forte to proceed to the Mississippi Coast, and there to buy turnips for account of the defendants at a price not to exceed 75c per dozen bunches F. O. B. railroad. Forte was to act as a buyer for account of the defendants. His compensation was to be the difference between the price he paid for them and the 75c the defendants authorized him to pay for them. The defendants advanced him $5.00 to pay his fare out to Gulfport, and supplied him with some 100 tags bearing the inscription “J. M. and S.” (John Manguno and Son).

When Forte arrived in Long Beach he found many turnips; but no farmer would sell otherwise than on terms of “cash and carry”. Forte then advised the defendants of the situation. They told him to ship all he could C. O. D.

Forte then called upon his countryman, John Mouri, plaintiff in this case, and asked him to pay the farmers and that he would get his money back in 24 or 36 hours. In order to verify Forte’s statement, Mouri called in another compatriot, Tony Stallone by name. They both testify that they acquainted one of the defendants, Peter Manguno, with what Forte had told them and asked him whether it would be all right for Mouri to pay for the turnips. Manguno answered that it made no difference to him as he would pay C. O'. D. for the turnips.

Thereupon Mouri took Forte in a truck to different farmers. Forte selected the turnips and helped to pack them in barrels, and Mouri paid cash for them. Mouri then shipped the barrels in his name to the defendants C. O. D. The - defendants refused to accept all but two barrels, on the ground that the turnips were too small; that they had instructed Forte to buy turnips 5 or 6 dozen bunches to the barrel, while those shipped to him averaged 12 dozen bunches to the barrel. However they offered $4.00 a barrel for them which plaintiff refused. The rejected barrels were sold by Taormina and realized net $31.58.

The defendant, Peter Manguno, denied that Forte informed him that he would get Mouri to pay for the turnips. But in that he is contradicted by Forte, by Mouri, and by Stallone.

It is evident that Mouri’s hesitation to pay for the turnips was overcome by Manguno’s answers in the telephone. Mouri’s testimony is likely. For turnips were scarce and high, and what difference was it to defendants when they paid C. O. D. whether the money went to the farmer or to Mouri?

Having been informed of Mouri’s intention to pay for the turnips, Manguno should have protested against such action and informed Mouri that Forte had no authority to act for him. Having remained silent Manguno has acquiesced in Forte’s action and is liable to the plaintiff.

A principal, when informed of an agent’s unauthorized act, must repudiate it at once or he will be bound by it. 1 N. D. 838 No. 11; State vs. Frisch, 45 La. Ann. 1284, 14 South. 132.

The defendants’ complaint about the size of the turnips does not concern the plaintiff. All he was interested in knowing was that Forte was authorized to buy the turnips and to get him to pay for them. He did not know that Forte had been limited, if such is the fact, to the purchase of turnips of a particular size. That was a matter between Forte and the defendants exclusively. Conrad vs. LeBlanc, 29 La. Ann. 126; Walker vs. Cassaway, 4 La. Ann. 20; 1 H. D. 837, No. 7.

Judgment affirmed.


author: WESTERFIELD, J.

text:
    No. 10,130.
    Orleans
    WILLIAM LUKE v. POLICE JURY OF THE PARISH OF JEFFERSON, ET AL., Appellant
    (Oct. 19, 1925, Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest—Appeal—Par. 110, 111.
    Under Section 5 of Act 29 of 1924 regarding injunctions, -where the case involves a question of public interest, the authority of the Police Jury to appoint and remove its employees, a suspensive appeal should be granted to a preliminary injunction.
    On application for suspensive appeal, from Twenty-fourth Judicial District Court, Parish of Jefferson, Hon. L. Robert Rivarde, Judge.
    This is an application for a suspensive appeal from an order granting a preliminary injunction.
    Order granting a suspensive appeal.
    John E. Fleury, of New Orleans, attorney. for relator, appellant.
   WESTERFIELD, J.

This is an application for a suspensive appeal from an order granting a preliminary injunction. The court a qua having refused the application, it is renewed here under Sec. 5 of Act 29 of 1924. From our examination of the record it appears that the case involves a question of public interest namely, the authority of the Police Jury to appoint and remove its employees and we are therefore of opinion that we should in the exercise of the discretion vested in us by the act grant the suspensive appeal prayed for.

It is therefore ordered that the Police Jury of the Parish of Jefferson be and they are hereby allowed a suspensive appeal from the judgment of the Twenty-Fourth Judicial District Court for the Parish of Jefferson, dated June 5, 1925, in which said judgment William Luke is granted a preliminary injunction against the Police Jury of the Parish of Jefferson restraining and enjoining the said Police Jury from taking any action toward the removal of the said William Luke, as Dipping Yat Inspector of the Parish of Jefferson, all in conformity with Section 5 of Act 29 of 1924, except as to the appeal bond which the said Police Jury is dispensed with furnishing under special law, provided that the proceedings pending in the lower court are not to be stayed by this decree.


text:
    No. 10,255
    Orleans
    CITY OF NEW ORLEANS v. CANAL BAKERY AND DELICATESSEN, Appellant
    (October 17, 1925, Opinion and Decree).
    (See page 789 herein.)
    (March 15, 1926. Suspensive Appeal to Court of Appeal Granted.)

      (Syllabus by the Court.)

    1. Louisiana Digest—Municipalities—Par. 183; Mandamus—Par. 32.
    Considering the right of the citizen to engage in any legitimate business without permit is constitutional and the right of appeal is also guaranteed by the constitution of the state and that the defendant may suffer an irreparable injury from a preliminary injunction enjoining him from operating a private market while the plaintiff will suffer none, in the exercise of the discretion granted to us by Act 29 of 1924, a suspensive appeal is granted relator herein from the preliminary injunction on his furnishing bond for costs.
    MANDAMUS PEREMPTORY
    This is an application for a mandamus to order the district judge to grant the defendant a suspensive appeal from a preliminary judgment enjoining him from operating a private market.
    Mandamus made peremptory.
    Paul W. Maloney, John C. Davey and Edward Dinkelspiel, attorneys for relators.
   ON PETITION FOR MANDAMUS

CLAIBORNE, J.

This is "an application for a mandamus to order the District Judge, Division “B”, M. M. Boatner, Judge, to grant the defendant a suspensive appeal from a preliminary judgment enjoining him from operating a private market.

The plaintiff alleged that the defendant was operating a private market for the sale of fresh meat at retail upon the premises, No. 1932-1934 Canal street; that the said premises are within 3200 feet of two public markets and that consequently the operation of said private market is in violation of Ordinance 7361, C. C. S., as amended; that the said defendants are operating the said market without a permit from the municipal authorities, which constitutes a public - and an injury to petitioner’s property rights; and an injunction was necessary to protect its rights and the right of the inhabitants of the city. The city prayed for an order directing the defendant to show cause why a preliminary injunction should not issue enjoining .the defendant from operating said private market and for final judgment perpetuating said judgment.

The order issued as prayed for.

Various irregularities in the proceedings are urged by defendant preceding its answer. It would serve no useful purpose to consider them, as they do not affect his right of appeal.

Eight affidavits in support of the facts alleged in the petition are annexed to it.

On the return day of the rule the defendant filed exceptions that it showed no cause of action, that it was vague and indefinite for several reasons, and that the ordinances relied upon by the plaintiff are unconstitutional for being discriminatory in favor of other private markets within 3200 feet in violation of the state and federal constitution.

After hearing the rule the court overruled the exceptions and made the rule absolute and issued a preliminary writ enjoining the defendant from operating its private market upon its premises, 1932 Canal street. 1

From this judgment the defendant applied for a suspensive appeal, which the court refused to grant. Hence the application of defendant and relator herein to order the trial judge to grant the same. Its petition repeats in substance the allegations of its answer to the rule.

The refusal of the trial judge to grant the suspensive appeal is based upon Act No. 29 of 1924, Section 5, p. 41. It reads as follows:

“Section 5. Where, upon a hearing, a preliminary writ of injunction shall have been granted, by an interlocutory order or decree, * * * a devolutive but not a suspensive appeal may be taken as a matter of right from such interlocutory order or decree; provided * * * the court may, in its discretion, allow to any party enjoined a suspensive appeal from any order granting a preliminary injunction, and may, in its discretion, also stay further proceedings in the cause until the appeal has been decided, upon the party appealing giving bond with surety * * * in such sum as the court may fix as sufficient for the protection of the opposite party or other party in interest in his damages and costs and conditioned for the payment of all damages and costs sustained by such opposite party or other party in interest by reason of the suspension of such order by such appeal; if in such case a suspensive appeal be refused by the lower court, the appellate court having jurisdiction, or any judge thereof,- may, in like circumstances and under like conditions, allow the same in aid of its appellate jurisdiction; provided further, that any appeal, devolutive or suspensive must be taken and bond furnished within ten days from entry of such order or decree, and such appeal shall have precedence in the appellate court, but the proceedings in other respects in the court below shall not be stayed during the pendency of such appeal unless otherwise ordered by the court granting the same.”.

An attentive reading of this section removes the impression that it denies to any party suspensive appeal from a preliminary order granting an injunction. All it takes away is the absolute unqualified legal right to the suspensive appeal.

It grants to the trial court “in its discretion” the power to grant the suspensive appeal or "refuse it.

If “a suspensive appeal be refused by the lower court” then “the appellate court may in like circumstances and under like conditions allow the same in aid of its appellate jurisdiction”.

The question as to the right of a suspensive appeal from a preliminary judgment granting or refusing an injunction therefore resolves itself into one of discretion in the judge of the district or appellate court.

■ Considering that the right of the citizens to engage in any legitimate occupation without permit is constitutional, and the right of appeal is also, guaranteed by the constitution of the state, and that the defendant may suffer an irreparable injury from the injunction granted herein, while the plaintiff will suffer none by delay, we have arrived at the conclusion in the exercise of our discretion to grant the defendant the suspensive appeal prayed for.

State vs. John Mahner, 43 La. Ann. 496, 9 South 480; State vs. Dubarry, 44 La. Ann. 1117, 11 South. 718; State vs. Kuntz, 47 La. Ann. 106, 16 South. 651; 118 U. S. 356; State vs. Judges, 37 La. Ann. 396; Lochbaum vs. Southwestern B. & L. Mfg. Co., 121 La. 176, 46 South. 201; State vs. City Judges, 144 La. 952, 81 South. 435; State vs. Judge, 28 La. Ann. 547; City of Shreveport vs. U. S. Fidelity and Guaranty Co. 131 La. 933, 60 South. 621.

It is therefore ordered that the mandamus herein issued be made peremptory insofar as to grant relator a suspensive appeal from the judgment herein rendered on August 31, 1925, granting a preliminary injunction on relator furnishing within ten days a bond for costs in the sum of two hundred and fifty dollars, provided the proceedings in this case in other respects in the district court shall not be stayed during the pendency of such appeal unless otherwise ordered by this court.

It is further ordered that the city of New Orleans pay the costs of these proceedings.

Mandamus peremptory.


author: BELL, J.

text:
    No. 10,273.
    Orleans
    WESLEY M. E. CHURCH v. TOM TAYLOR
    (Oct. 19, 1925, Opinion and Decree.)

      (Syllabus by the Court.)

    1. Louisiana Digest—Appeal—Par. 307.
    An ordinary'suspensive appeal bond as provided by Code of Practice Articles 575, 1131, rather than one under Revised Statutes 2157, covering “all such damages as appellee may sustain”, will not suspend the execution of á judgment ousting a lessee who -appeals therefrom. Procedure under Act 112 of 1916 will not avail such appellant as a means of correcting such omissions or insufficiency in a bond.
    Petition for writ of Mandamus, Hon. William A. Bahns, Division “A”, First City Court.
    This is a mandamus on the Hon. Wm. A. Bahns, Division “A”, First Court to require him to grant the appellant a suspensive appeal from a judgment of eviction.
    Writs recalled and suspensive appeal denied.
    Joseph Rosenberg, of New Orleans, attorney for relator.
   OPINION.

BELL, J.

By judgment rendered September 11, 1925, in the possession suit of Wesley M. E. Church vs. Tom Taylor, No. 130,716 of the Docket of the First City Court of New Orleans, the defendant (relator herein) was ordered to vacate and deliver unto the Wesley M. E. Church, property known as No. 527 South Liberty Street. In said proceeding, Taylor filed a special and duly verified defense to the possession suit, all in conformity with R. S. Sec. 2157, as in such cases provided. On the same day upon which the aforesaid judgment was rendered, and therefore within twenty-four hours of its rendition, as provided by R. S. Sec. 2155, Taylor applied for and was granted a suspensive appeal to this Court, and furnished forthwith an ordinary appeal bond in the sum of One Hundred Dollars, the amount of said bond being fixed by the trial judge, who is made respondent herein.

On September 16, 1925, five days before the return day for appeal, counsel for plaintiff and appellee filed a motion and immediately obtained an order from respondent Judge rescinding the previous order of September 11, 1925, whereby relator had been granted a suspensive appeal. The motion to rescind was predicated upon the averment that the appeal bond was not such as was required by law (R. S. 2157), inasmuch as it did not stipulate nor was the appeal as granted conditioned upon appellant’s giving “bond with good sufficient security for all such damages as the appellee may (might) sustain”.

Relator avers, in the proceedings now before this Court, that he was not given any notice whatever of the insufficiency in the bond as above noted, and that under Act 112 of 1916 he was entitled to such, notice and to an opportunity, within the delays prescribed by the Act, to furnish a new and proper bond or to correct and supply any inaccuracies or omissions in his original bond. It is further averred that only on the last day, that is, the return day for lodging his appeal, he was apprised for the first time that the court a qua had rescinded the order granting him a suspensive appeal; that he immediately moved the court for leave to correct the bond so as to conform with the law as in such cases provided; but that the court denied him such relief and also refused to recall the order of September 16, 1925. Thereupon, relator applied for writs of certiorari, prohibition and mandamus from this Court. An order was accordingly issued, returnable October 5, 1925, and in response to relator’s demands the respondent Judge of the First City Court shows the facts to be substantially as herein-above recited; and, further answering, respondent contends:

First. That no solvent or proper appeal bond as required by law was ever furnished by relator in the aforesaid possession suit.
Second. That Act 112 of 1916—under which relator now contends he should have been permitted to supply proper bond—-fails to disclose anything which affects the issues herein presented.
Third. That respondent had an absolute right on the application of the plaintiff in the possession suit to rescind the order of appeal which respondent had granted, for the reason that relator had not furnished bond within twenty-four hours, as required by the Revised Statutes, Section 2157.

Considering these contentions in the order noted, we find from the record before us that neither the solvency of the sureties upon the appeal bond nor insufficiency of the bond in amount as fixed by the trial judge was ever challenged. The sole objection to the bond, as appears from appellee’s motion to rescind, was that it did not bind or obligate the principal or sureties on said bond to indemnify appellee for all such damages as appellee might sustain because of such appeal. The bond, on its face, is shown to be insufficient in this respect and contrary to the provisions of Revised Statutes, Section 2157, relative to appeals from judgments restoring the possession to lessors of their leased property.

Relator admits the insufficiency of his bond to the extent that he has failed to furnish such appeal bond as is required by the aforesaid section of the Revised Statutes.

Respondent’s second contention, regarding the inapplicability of Act 112 of 1916 to the facts or issues now before us, seem amply supported by the opinion rendered in Doullut vs. Rush, 142 La. 443, 460, 77 South. 110, 116; also Doullut vs. Rush, 144 La. 479, 80 South. 665. In the above cited cases, ejectment proceedings were brought against defendant as lessees of certain property, who urged, in special defense, that the contract sued upon was not one of lease but of sale. From an adverse judgment condemning the defendants to pay accrued rents and to vacate the property, a suspensive appeal was taken to the Supreme Court, and an ordinary appeal bond, not one as required by Revised Statutes, 2157, was furnished. Plaintiffs thereupon moved in the trial court that the appeal be set aside, insofar as it purported to operate suspensively. This motion being denied, plaintiffs thereupon made application to the Supreme Court for writs of certiorari and prohibition, which were duly granted, the court ordering that the appeal, insofar as it purported to. suspend execution of the judgment appealed from, should be dismissed, and that the respondent Judge should be directed to cause the sheriff to proceed with the execution of said judgment. We quote in part from the opinion of tbe court:

“Our conclusion, as to the matters thus considered, is that defendants were, and are, not entitled to the suspensive appeal which has been granted them, for the reason that the exception and answer filed by them do not constitute the special defense required by R. S. 2157, in that the allegations of fact therein contained were not susceptible of proof (the evidence being inadmissible) and that the oath by which those allegations were supported did not, and could not, truthfully have set forth that the facts alleged entitled defendants to retain possession of the premises in question. Another reason, supporting the conclusion stated, is that the condition of the bond given by defendants reads ‘shall satisfy whatever judgment shall be rendered against them’, etc., whereas Section 2157, R. S., declares that:
“ ‘No appeal from any such judgment shall suspend execution unless' the defendant * * * give bond, with good and sufficient security for all such damages as the appellee may sustain.’
“In the instant case, the bond was given in the form prescribed by Article 579 of the Code of Practice, with a condition having no application to the judgment sought to be appealed from;' whereas, it should have been given in the form prescribed by R. S. 2157, which declares that no appeal shall suspend the execution of such judgment unless the bond be given in' that form.
“Our examination of Act No. 112 of 1916, p. 241, fails to disclose anything whicn affects the issue here presented.”

In Audobon Hotel Company vs. Braunig, et al., 119 La. 1070, a similar defective- bond was given, as in the present case. The Supreme Court, in that case, upon refusing to set aside the ruling of the trial court which had dismissed the appeal because of defective bond, said:

“* * *; and, finally, that if the other condition had existed, they failed to comply with the condition precedent to the taking effect of even a valid and competent order of appeal, by failing altogether o give the bond required by law, and necessarily contemplated by such order.”

It is true that the ruling in the Audobon Hotel case was rendered prior to Act 112 of 1916, but we find it quoted with approval in the case of Doullut vs. Rush.

The third contention of respondent, to the effect that relator failed to furnish the appeal bond within twenty-four hours from the rendition of the judgment appealed from, is not borne out by the record. This fact, if true, would be of no consequence, for the reason that we are constrained to hold that the appeal bond furnished in this case was of no effect.

Relator urges our adherence to the ruling made by this Court in Onorato vs. Sanchez, 14 Orl. App., 319, in which it was held:

“Under the provisions of Act 112 of 1916, any error or omission in a judicial bond, or deficiency in form or substance, or in the amount thereof, or the solvency of the surety thereon, may be corrected within two days after notice given to the party furnishing such bond; and this is broad enough to allow a correction in any case where there has been a bona fide attempt to furnish a bond and surety according to law.”

The clear purpose of the legislative enactment of 1916 was given to every litigant in any suit brought within any of thé courts of this State the absolute right, after notice and after stipulated delays to correct any error either as to form or substance in the giving of any bond incident to appeals. The appellant’s day in court was thus assured to him in respect to such interlocutory procedure. Our appreciation of the Statute was as we attempted to express it in Onorato vs. Sanchez, decided April 16, 1917. However, our learned brothers of the Supreme Court, in Doullut vs. Rush, decided October 29, 1917, have given the statute a more restricted interpretation, certainly as to suspensive appeal bonds, which may be furnished in ejectment proceedings, and we, accordingly, adjust our former views to conform with the ruling there made.

For these reasons, the writs herein issued are. recalled, and the relief prayed for by relator is denied at his cost.


author: CARVER, J.

text:
    No. 2426
    Second Circuit
    POLICE JURY OF WINN PARISH v. W. T. HEFLIN, as Sheriff, et al.
    (October 19, 1925, Opinion and Decree)
    (See Supreme Court Report of This Case, 159 La. —, 105 South. 377)
    Appeal from Ninth Judicial District Court of Louisiana, Parish of Winn. Hon. F. E. Jones, Judge.
    Harry Fuller, attorney for plaintiff, appellant.
    A. Leonard Allen, of Winnfield, Hawthorne and Stafford, of Alexandria, attorneys for defendants, appellees.
   CARVER, J.

The police jury of Winn parish brought this suit against the sheriff and treasurer of that parish to recover $1605.75 alleged to have been paid illegally by the latter to the former out of the sheriff’s salary fund in the parish treasury.

The District Judge sustained an exception of no cause of action and dismissed the suit.

From this judgment the police jury appealed to this court.

The members of this court, pursuant to Section 25 of Article VII of the Constitution of 1921, certified the case to the Supreme Court for instructions. It submitted to that court the following questions:

I.

Is the supervisor of public accounts authorized to decide disagreements between the district judge and the president, of the poli,ce jury as to the sheriff’s need of additional expense money in the absence of an emergency? ,

II.

If so, the absence of an emergency being alleged, were the judge and supervisor authorized to approve the requisition made after the expense had been incurred, or could they do so only before it was incurred?

III.

If not authorized to grant the approval after the expense was incurred, can the police jury sue for the amount demanded by the sheriff and paid by the treasurer on an approval made after incurring the expense?

The Supreme Court answered questions .numbers I and II in the affirmative and question number III in the negative.

For the reasons given by the Supreme Court in its decision, reported in Police Jury. vs. Heflin, 159 La. 375, 105 South. 377, the judgment of the lower court is affirmed.


text:
    No. 1751
    Second Circuit
    J. R. MADDEN v. JERRY R. LOWE, et al.
    (October 21, 1925, Opinion and Decree)

      (Syllabus by the Editor)

    I. Louisiana Digest—Appeal—Par. 390.
    A devolutive appeal cannot avail either the defendant or an outsider in defense of an order of seizure and sale in ex-ecutory proceedings. The reason is that the decree of the appellate court could not have the effect of annulling a sale of the mortgaged property pending the appeal.
    Appeal from Third Judicial District Court of Louisiana, Parish of Bienville. Hon. J. E. Reynolds, Judge.
    This is a devolutive appeal by defendants from an order directing issuance of a writ of seizure and sale obtained by plaintiff in foreclosing a mortgage and vendor’s privilege by executory process.
    The appeal is dismissed.
    Goff & Barnette, of Arcadia, attorneys for plaintiff, appellee.
    L. K. Watkins, of Minden, attorney for defendants, appellants.
   ON MOTION TO DISMISS

CARVER, J.

This is a devolutive appeal by defendants from an order directing issuance of a writ of seizure and sale obtained by plaintiff in foreclosing a mortgage and vendor’s privilege by executory process.

Plaintiff moves to dismiss the appeal on the ground that the writ has been executed by the sale of the property against which it was directed.

The appeal was perfected on the day the sale was made but a few hours before it was made.

In the case of Gouaux vs. Lockport, etc., Co., 156 La. 889, 101 South. 255, the Supreme Court said:

“A devolutive appeal cannot avail either the defendant or an outsider in defense of an order of seizure and sale in ex-ecutory proceedings. The reason is that the decree of the appellate court could not have the effect of annulling a sale of the mortgaged property pending the appeal. Citizens’ Bank of Columbia vs. Bellamy Lumber Co., 140 La. 497, 73 South. 308; King vs. Hardwood Manufacturing Co., 140 La. 753, 73 South. 853; Ouachita National Bank vs. Shell Beach Construction Co., 154 La. 709, 98 South. 160.”

The appeal is dismissed.

REYNOLDS, J., recused.


author: ODOM, J.

text:
    No. 1830
    Second Circuit
    W. S. PERRY v. FRIEND SHOCKLEY
    (October 21, 1925, Opinion and Decree)

      (Syllabus by the Editor)

    1. Louisiana Digest—Mandate—Par. 73, 74, 76.
    Where the testimony clearly shows that wagons belonging to A were sold by B to C without A’s authority, the purported sale will not give ownership to the purchaser C.
    2. Louisiana Digest—Transaction or Compromise—Par. 8.
    A transaction or compromise proposed between B and C to which A was not a party will not bind A in any way.
    3. Louisiana Digest—Sales—Par. 83, 76.
    One who purchased wagons from another who had no authority to sell them will not be entitled to money spent for repairs to make the property fit for his use upon his returning the wagons to the owner.
    Appeal from Third Judicial District Court of Louisiana, Parish of Bienville. Hon. J. E. Reynolds, Judge.
    This is a suit /coupled with a writ of sequestration for possession of two wagons.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    J. Rush Wimberly, of Arcadia, attorney for plaintiff, appellee.
    Goff & Barnette, of Arcadia, attorneys for defendant, appellant.
   ODOM, J.

Plaintiff brings this suit asking to be adjudged the owner of two log-wagons in the possession of and claimed by the defendant and to have them restored to his possession.

Upon his allegation of ownership of the said log-wagons and of the illegal possession thereof by defendant, a writ of sequestration was issued and the wagons were seized.

Defendant answered, denying plaintiff’s ownership of the wagons, but admitted that he was in possession of them and further:

“Shows that he acquired the two log-wagons sued for by contract of exchange with J. B. Starnes of El Dorado, Arkansas, some months ago, having given the said J. B. Starnes two four-wheel log-wagons and twenty ($20.00) dollars in cash for said wagons sued for.”

He further pleads that he acquired said wagons in good faith, believing said Starnes was the owner thereof; but that since has learned that Starnes was the duly authorized agent of plaintiff and was acting as his agent in selling the wagons, and that plaintiff, having constituted said Starnes his agent with authority to sell,

“He is now estopped from disputing the authority of the said Starnes in selling said wagons to defendant”.

He further alleges that, prior to the filing of this suit, the plaintiff brought suit in the magistrate’s court for the recovery of the wagons and had the same seized and that he was damaged by said seizure in the sum of $75.00 on account of the loss of the use thereof and loss of time in carrying them to court and that he has been damaged in the further sum of $50.00 by the seizure of the said wagons under the writ issued in this case on account of loss of time and the use of them, and that he has been forced to pay an attorney $35.00 to defend this suit, making in all $160.00, for which amount he asks judgment in reconvention.

In the alternative, he asks to be paid $125.00 for repairs on the wagons in ease the court should hold that the plaintiff is the owner of them.

The case went to trial on the issues thus made and there was judgment in favor of the plaintiff decreeing him to be the owner of the wagons, sustaining the writ of sequestration and ordering the' wagons restored to his possession.

The defendant has appealed.

The testimony shows that the plaintiff, Perry, was the ownei- of the two log-wagons in dispute and that he left them on a certain lot at or near the city of El Dorado, Arkansas, which lot was occupied and used by J. B. Starnes.

The plaintiff testifies that he left the wagons on the lot and told Starnes not to let anyone take or interfere with the wagons during his absence.

He states specifically that he gave Starnes no authority either to use or dispose of the wagons in any way, but, on the contrary, states that he told him not to dispose of them.

It seems that a short time after Perry left the wagons Starnes traded them to Shockley, the defendant in this case. Shockley claims that he traded for the wagons in good faith, believing that Starnes had a right to dispose of them.

Starnes was called as a witness on behalf of the defendant and his testimony is to the effect that the wagons were left in his charge, but he does not state that the plainiff, Perry, gave him specific authority to dispose of them.

The testimony, therefore, makes it perfectly clear that the wagons were disposed of by Starnes without authority.

It therefore follows that the defendant, Shockley, obtained no valid title to them.

It appears that some time after the wagons had been delivered to the defendant by Starnes, Perry learned of the transaction and went to Shockley and informed him that the wagons were his property; that Shockley then told Perry of the transaction he had had with Starnes and expressed his regret that there was to be a controversy over the question of ownership, and he says that Perry at that time specifically stated to him that he was not satisfied with the trade made by Starnes.

It seems that Shockley suggested that they send for Starnes in order that they might get the matter straightened out.

Later on Starnes went to see Shockley and the matter was discussed between the two and Starnes - suggested that they get Perry and see if some compromise of the matter could not be effected.

The three, Perry, Shockley and Starnes, met- later on and Starnes expressed to them his regret that a controversy had arisen over the ownership of the wagons and stated that he would be glad to see Perry and Shockley get together on some kind of compromise. Starnes then suggested that as a compromise of the matter he would purchase a new log-wagon to cost not less than $125.00 and deliver the same to the plaintiff, Perry, in the city of Shreveport.

The evidence shows that Perry agreed to accept this proposition, provided the new log-wagon should be delivered to him prior to the trial of this suit, which was then pending in the District Court.

It does not appear that Shockley had anything to do with the proposed settlement between Perry and Starnes. He was not to contribute toward the purchase of the new wagon. However, he did agree to advance Perry the sum of $30.00 to pay his expenses while going to El Dorado and Shreveport in the effort to get a new wagon.

The transaction with reference to a settlement of the suit was all between Starnes and Perry. The understanding was that if Starnes procured a new wagon and delivered it to Perry that Perry would be satisfied; Starnes would keep the wagons which Shockley had traded to him and Shockley would keep the wagons which Starnes had turned over to him.

Counsel for defendant argue that on account of this proposed settlement Shockley was left out of the transaction altogether and thereby became the owner of the wagons -which Perry now claims and that Perry should have pursued Starnes to force him to carry out the agreement which he had made.

We do not think, under the testimony, that Perry ratified the transaction between Starnes and Shockley so as to transfer the ownership of the wagons in dispute to Shockley. Starnes made the proposition that he would get a new wagon for Perry and Perry agreed to accept it and to dismiss the suit; hut his acceptance of the proposition was based upon the purchase and delivery of the new wagon to him. He did not agree that Shockley should become the owner of the wagons that he claimed unless the new wagon was delivered to him.

The testimony shows that Starnes did not carry out the agreement, as he was not able to purchase the new wagon on account of not having the money; and Starnes testified that up to the trial of this case he had not been able to get the money and, of course, could not carry out his part of the agreement.

We do not think that this had the effect to transfer ownership of the.two wagons from Perry to Shockley. Therefore, Perry was at the time of the trial of the suit the owner of said wagons.

Having reached this conclusion, all other questions raised in the suit are disposed of.

Shockley claims that he has been damaged by the seizure of the wagons. Of course, if Perry was the owner of the wagons he had the right to seize them.

Shockley claimed that he made repairs on the wagons while they were in his possession and that the wagons are now or were at the time of the trial of this suit in the District Court more valuable than when he got them, and he asked to he reimbursed the amount thus expended. Shockley does not say just what was done in the way of repairs on the wagons, except that he put a new coupling pole and a new screw on each one of them at a cost of $9.50 for each wagon. The testimony of Perry, the owner of them, is that they were in good condition when he left them with Starnes, except the coupling pole and the hounds on one of them were broken, and he says it would have cost but little to repair the wagon. Shockley, as already stated, does not state just what repairs he made, except as to the coupling pole and the screw, nor does he make it clear when the repairs became necessary or when they were made, and so far as the court is informed some of the repairs which he made may have become necessary on account of the usage which he was making of the wagons. He was using them all the time to haul logs and some repairs to wagons used for that purpose must he anticipated all the time they are being so used, especially to old ones.

An evicted purchaser is never entitled to recover amounts which he has spent for improvement which are necessary to make the property fit for his use.

Smalley vs. Creditors, 3 La. 387.

As a matter of equity, we doubt if defendant should recover for these repairs, as he has constantly used the wagons for several weeks d-nd for the same length of time the owner has been deprived of the use of them and has had to lease other wagons for his use.

Eor the reasons assigned, it is ordered, adjudged and decreed that the judgment of the lower court he affirmed with costs.

REYNOLDS, J., recused.


author: OD.OM, J. CARVER, J.

text:
    No. 1903
    Second Circuit
    ISAIAH MILLER v. MRS. J. E. CATES, ET AL.
    (October 21, 1925, Opinion and Decree.)
    (December 1, 1925, Rehearing Refused.)

      (Syllabus by the Editor.)

    1. Louisiana Digest—Prescription—Par. 219.
    Where a plaintiff brings an action to correct a description of land as contained in the deed, the defendant cannot plead prescription' of one year, provided by Article 2498 of the Civil Code for diminution of the price or for the canceling of the contract.
    2. Louisiana Digest—Error and Mistake— Par. 15, 16.
    Where the evidence clearly shows that the defendant intended to sell and the plaintiff intended to buy the land in controversy and that the description of the land was omitted from the deed by an oversight of the Notary a proper correction should be made to the deed by a judgment of the court.
    3. Louisiana Digest—Appeal—Par. 625, 636.
    The finding of the trial judge on questions of fact where the evidence is conflicting not being manifestly erroneous is affirmed.
    4. Louisiana Digest—Evidence—Par. 240.
    As between the parties to the sale, parol evidence is admissible for the purpose of correcting an error in a description of land in a deed.
    ON APPLICATION FOR REHEARING.
    5. Louisiana Digest—Marriage—Par. 76.
    Where a wife sold property to the plaintiff who paid for it by giving money and a note, the fact that the defendant permitted her husband’s creditors to receive the money instead of receiving it herself, does not bring the case within the prohibition prescribed by Article 2398 of the Civil Code. The sale thus made is valid.
    Appeal from Third Judicial District Court of Louisiana, Parish of Bienville, Hon. J. E. Reynolds, Judge.
    This is a suit to correct an error in the description of the land sold by a notarial Act. A plea of prescription was filed by defendant.
    There was judgment for plaintiff and defendants appealed.
    Judgment affirmed.
    Goff and Barnette, of Arcadia, attorneys for plaintiff, appellee.
    Samuel Barksdale, of Ruston, F. R. Taylor, of Ruston, attorneys for defendant, appellants.
   OD.OM, J.

This is a suit to correct an error, in a description of land sold by notarial act.

Plaintiff alleges that he is the owner and in possession of the SE% of SE% of Section 5 Township 18 North, Range 7 West in the Parish of Bienville which he purchased from the defendant, Mrs. J. E. Cates on the 8th day of December 1917, but that through error in the writing of the deed this land was omitted from the description.

He alleges that the deed made by defendant Mrs. J. E. Cates to him is not the depository of the intention of the parties and should be corrected by judgment of the court so as to include the SE% of SE% of Section 5.

Defendant answered admitting that she executed the deed to plaintiff but denied that there was any error in the description in the deed.

She further sets up in answer that the deed which she made to the plaintiff was a nullity for the reason that she received no adequate consideration for the land and she attacks the sale for lesion beyond moiety.

She prays that the plaintiff’s demand be rejected and, in reconvention, that the deed made by her to him on December 8, 1917, be decreed null.

In this court defendant pleads the prescription of one year, setting up that this is “a suit quantum minoris and is prescribed in twelve months”.

ON THE PLEA OE PRESCRIPTION.

Article 2498 of the Civil Code provides that the action for supplement of the price on the part of the seller, and that for diminution of the price or for the canceling of the contract on the part of the buyer, must be brought within one year from the day of the contract, otherwise it is barred.

The plea of prescription, we assume is filed under this law. But it is perfectly clear that the plaintiff, the purchaser from Mrs. Cates, the defendant, has not brought an action to cancel the contract nor for the diminution of the price. His suit is to correct an error in the description of the land as contained in the deed. He alleges that he purchased the SE^ of SE% of Section 5 Township 18 North, Range 7 West but that through error in drawing the deed this land was omitted, and he prays for judgment “correcting the deed so as to include and describe said subdivision”.

The plea of prescription is therefore overruled.

It seems that Mrs. Cates, the defendant, was indebted to the mercantile firm of Hamner & Co. in a considerable sum, which indebtedness was long past due. Hamner & Co. had made repeated demands for payment of the debt but due to the fact that she had no money she could, not pay. However, she owned some land which she agreed to sell in order to satisfy the debt. Hamner & Co. did not want the land but ascertained that Isaiah Miller, the plaintiff herein, would purchase the land but was not willing to pay a price sufficient to satisfy the debt of Hamner & Co., and Hamner & Co. agreed to discount their debt so as to bring the land within the price Miller was willing to pay. Mrs. Cates was willing to sell in order to pay the debt and a sale by her to Miller Was agreed upon.

The sale of the land was by notarial act passed before W. H. Lazarus, a Notary Public of Bienville Parish, dated December 8, 1917, and signed by Mrs. Cates, authorized by her husband, Elton Cates, the land described in the deed being as follows: NW% of NE%; NE% of NW%; and N% of NW% of NWÍ4 of Section 5 and ten acres on east side of NE% of NE% of Section 6, Township 16 North, Range 7 West, and twenty-five acres on north side of NW% of NEJ4L of Section 9, Township 18 North, Range 7 West; with no acreage expressed; but a calculation shows that the description calls for 135 acres.

The defendant owned the SE% of SE1^ of Section 5, Township 18 North, Range 7 West at the date of the sale, and it is plaintiff’s contention that he purchased 175 acres, including the 40 acres in controversy, which was omitted from the description in the deed by error.

Defendant contends that she intended to sell and did sell only 135 acres as described in the deed.

Mr. Leslie, Hamner, a member of the firm of Hamner & Co., who seems to have negotiated the sale, swears positively that he talked the matter over with Mrs. Cates and her husband and that they agreed to sell 175 acres, and that Mrs. Cates and her husband went to Arcadia, the parish site, and looked up the description of the land which she owned and found that she owned not only the land described in this deed but the SE% of SE% of Section 5 also.

He says that the whole matter was discussed and that Mrs. Cates agreed to seil 175 acres including the land in controversy.

He further testifies that when the error was discovered Mrs. Cates agreed to correct it and asked him to prepare a correction deed including the forty acres omitted and that, he prepared a deed in accordance with her request but that he did not present it to her for her signature on account of the fact that there arose about that time some litigation between her and one Joby Miller over the verity of a certain judgment which said Joby Miller had obtained against her under a foreclosure proceeding on a mortgage operating against the land in controversy, which mortgage it appears was given long before the sale to plaintiff.

The plaintiff, Miller, testified that Mrs. Cates went to him to sell 175 acres of land in Sections 5, 6 and 9 and that based no her proposition to sell 175 acres he agreed to purchase and that both Mrs. Cates and her husband said on the day of sale that there was 175 acres of land.

He says they thoroughly understood that they were selling that much land and, as before stated, it takes the forty acres of land alleged to be omitted from the deed in order to make up an area of 175 acres.

The plaintiff testified that he would not have purchased the tract had he not thought that the land in controversy was included.

On the other hand, the defendant and her husband swear positively that she did not intend or agree to sell the land in controversy; that she sold only 135 acres as described in the deed, and Elton Cates, the defendant’s husband, swore that he told his wife that .if she intended to sell the SE% of SE^A of Section 5 he would not sign the deed to authorize her.

Mrs. Cates denied that she told Leslie Hamner that she was willing to correct the error, although she admits that she spoke to him about it.

In the suit above referred to between Mrs. Cates and Joby Miller wherein Mrs. Cates successfully attacked and had annulled a Judgment which Joby Miller had obtained against her, she gave testimony as follows:

“Q. Didn’t you make Isaiah a deed?
“A. Yes, sir.
“Q. Well, when he found out you made an error in the deed, you say Joby offered you $5.00 to correct it?
“A. Yes, sir, he offered me $5.00 to sign it.
“Q. And you made Isaiah a deed and through error that land was left out?
“A. I think so.”

The testimony was given in another suit which was tried prior to the trial of the present suit and was introduced in this suit and filed without objection.

The land referred to is evidently the land in controversy in this suit, as that was the land which she had previously mortgaged to Joby Miller.

Mr. Lazarus,' .the Notary who wrote the deed and before whom it was passed, testified that all parties were present when he prepared it and that when he got to the place in .the deed where the description of the land should be inserted he found that the parties did not have it and that they had to go to Leslie Hamner to get it and that Hamner sént over a slip of paper with the description written upon it. The slip of paper is in evidence. The .description is written with lead pencil and includes not only the land described in the deed but also the SE^ of SE1^ of Section 5, the land ip. controversy which was omitted. This slip of paper went back into the hands of Hamner after the sale and was kept in his files along with other papers in connection with the transaction and was produced by him for the purposes of this trial.

It is defendant’s contention that this slip of paper, which was presented to the Notary at the time the deed was written, did not contain a description of the SE14 of SE% of Section 5, and it is suggested that this particular description was inserted on the slip of paper after it got back into the hands of Hamner.

Mr. Lazarus, the Notary, could not swear positively whether the SE% of SE% of Section 5 was included in the description on the price of paper at the time he wrote the deed. He says it may have been and that he omitted it by mistake.

Our examination of the paper on which the description was written convinces us that the SE% of SE!4 of Section 5 was inserted thereon at the time it was presented to the Notary.

The description as written on the paper is as follows:

“10 on east side NE NE 6 )
“Ny2 of NW of NW )
“NE of NW )
“NW of NE )
“SE SE 5 18 7 )
“25 acres NW of NE 9 )

It will be noted that the ten acres first described is in section 6. No section number follows the next three subdivisions described but the figure 5, indicating the section number, follows the description “SE SE”, and the “18 7”, indicating the township and range, follows on a straight line, indicating, as we think, and as evidently interpreted by the Notary, that those four subdivisions were in Section 5, Township 18, North Range 7 West. The figures “5 18 7” are written on a straight line to the right of “SE SE”.

It is perfectly evident from the appearance of the writing that the description “SE SE 5 18 7” was all written by the same person and we conclude that this line of letters and figures was on the paper at the time it was presented to the Notary; otherwise he would not have known what section, township and range to insert.

Not only that, but to the writ of the first five subdivisions described there is a brace which encloses all five subdivisions.

By reference to the slip of paper above referred to we note that there is a slight difference in the appearance of the writing in which the 'first four subdivisions are described and that in which the SE% of SE!4 is written. But Mr. Hamner explains this difference by saying that he 'made the description of the first four subdivisions from some records in his office and that he got the other description, that is, SE % of SE*4, over the telephone and that he' carried the slip of paper to the telephone and wrote the latter description while there.

It will also be noted that the description:

“25 acres NW of NE 9” is inserted on the slip of paper below the “SE SE 5 18 7”. This former description is included in the deed, which indicates that it was Written on the paper when the Notary received it and there is no suggestion that it was inserted thereon subsequently to the preparation of the deed. The appearance of the paper does not indicate that the description “SE SE 5 18 7” was written in as an afterthought.

Our conclusion is that the plaintiff intended to purchase and that the defendant intended to sell the land in controversy and that the description of the land was omitted from the deed by oversight of the Notary.

Our conclusion on this point is strengthened by the fact that the District Judge, who heard the witnesses testify and who probably know them personally, so held.

The evidence is conflicting, and we cannot say that the trial judge manifestly erred in his findings.

It is settled that as between the parties an error in the description of land in a deed may be corrected through judicial process and that parol evidence is admissible for that purpose.

Levy vs. Ward, 33 La. Ann. 1033.

Coleman vs. Thibodaux, 119 La. 474, 44 South. 269.

Garrett vs. Spratt, 131 La. 707, 66 South. 199.

For the reasons assigned, it is therefore ordered, adjudged and decreed that the judgment appealed from be affirmed with costs.

ON APPLICATION FOR REHEARING.

CARVER, J.

Defendants’ counsel, in an application for rehearing, urge:

1. That plaintiff having alleged in his petition that the forty acres in question was omitted from the deed and another tract included in lieu thereof, cannot recover merely on showing the omission by error of the tract for which he asks judgment.

2. That the evidence fails to show that the land in question, namely, SE1^ of SE% of Section 5, Township 18 North, Range 7 West, was omitted by error.

3. That the court erred in finding that plaintiff Was in possession of the land in question.

4. That the deed was void because within the prohibition of Article 2398 of the Civil Code.

5. That the deed was without consideration passing to Mrs. Cates.

I.

The gravemen of plaintiff’s complaint is the omission by error of the land sued for, and not so much the inclusion of the other tract. If the 40 acres was intended to be bought and sold and was omitted from the deed through error Of the Notary, we think this would entitle plaintiff to recover whatever be the facts about the 25 acres which were included and which plaintiff claims did not belong to defendant. Furthermore, while the, matter is not so very clear by the deeds, yet it is very likely that the 25 acres on the north side of the NW % of NE% of Section 9 did not belong to defendant. The deeds to be found in the record do not exactly correspond to those offered in evidence. Those offered were as follows:

BY THE, PLAINTIFF.

Drake to Heflin.
Heflin to Gibson.
Gibson to Burgess.
Burgess to Standifer.
Standifer to Wiley Miller.
Wiley Miller to Mrs. E. C. Miller.
Mrs. E. C. Miller to Sallie Reno.
Sallie Reno to Copeland.
Mrs. E. C. Miller to Joby Miller.

BY THE DEFENDANT.

Heflin to J. E. Miller.
Mrs. Julia Cates and Clarence Miller to Mrs. Ninny Spear.
Mrs. J. E. Cates and Mrs. Ninny Spear to Clarence Miller.
Of the deeds offered by plaintiff, the following are not found in the record, namely:
Drake to Heflin.
Heflin to Gibson.
Standifer to Wiley Miller.
Mrs. E. C. Miller to Sallie Reno.

The rest are in the record, and we also find a deed from Heflin to Drake given in 1877 covering the NW% and W% of NE*4 of Section 9 an.d other land, with right of redemption reserved. Perhaps this right of redemption was exercised, because the deed from Heflin to J. E. Miller, the first husband of defendant, of date October 6, 1898, covers 25 acres in NW% of NE14 of Section 9 and other land.

Defendants’ theory ■ is that by virtue of this deed and the deed from the heirs of Clarence Miller to Ninny Spear, and the heirs of Ninny Spear to Clarence Miller, which two deeds assigned to the vendees therein certain lands in settlement of their interests in J. E. Miller’s succession, that this left defendant the owner of the 25 acres in NW% of NE% of Section 9.

Of the deeds filed by plaintiff, though, the one of Wiley Miller to Mrs. E. C. Miller is dated February 5, 1898, and covers the whole NE% of Section 9.

The deed from Mrs. E. C. Miller to Sallie . Reno is not in the record.

The one from Sallie Reno to Copeland is in the record. It is dated July 13, 1912, and covers NE'% of NE,1^ and 6 acres off of the east side of W% of NE% of Section 9.

The deed from Mrs. E. C. Miller to Joby Miller is also in the record. It is dated April 9, 1915, and covers, besides other land, 20 acres on the west side of W% of NEÍ4 of Section 9.

The deed from Wiley Miller to Mrs. B. C. Miller antedates the deed from John Heflin to J. E. Miller by several months. It is likely, therefore, that defendants’ title was not good to the 25 acres in NW% of NE% of Section 9. Even if it were, though, as said above the question is not so much the inclusion of this land as the omission of the other.

II.

As to the sufficiency of the proof, on the question of whether the SE% of SE% of Section 5 was mutually intended to be included or not, this is purely a question of fact.

An appellate court should not in any case reverse the District Judge on such a question unless it finds that he manifestly erred. This rule is of special application where the question turns on the credibility of witnesses, as is the case here.

III.

The question whether the plaintiff or the defendants were in possession of the 40 acres is immaterial. The plaintiff is entitled to possession. The (description) being out of it cannot affect his rights.

IV.

Civil Code, 2398, does not, in our opinion, apply to this case, which was a sale to a third person for the purpose of raising money to pay a debt and not a giving in payment to a creditor to satisfy a debt.

The article reads:

“The wife, whether separated in property by contract or by judgment, or not separated, cannot bind herself for her husband, nor conjointly with him, for debts contracted by him before or during the marriage.”

If she had conveyed the property to Hamner, the creditor, and if the debt for which it was conveyed was her husband’s, it might be claimed that the transaction was within the prohibition of this article. As to this we express no opinion. But she did not do this. She sold the property to the plaintiff who paid for it by giving money and a note. The fact that defendant permitted her creditor to receive the money instead of receiving it herself does not alter the situation. If she had received the money herself she would have had the right to pay. it either to her own or to her husband’s creditor. It was equally her right to permit the creditor to receive it from the purchaser directly. Besides, the deeds shows that besides the $200 cash paid on the purchase plaintiff gave a note for $550.00 payable to the order of Mrs. Cates. This note must have been endorsed by Mrs. Cates over to Hamner.

V.

What is said under the last heading applies to defendants’ fifth complaint also. The debt was not the consideration flowing to Mrs. Cates but, as shown above, Miller did pay the purchase price. Her permitting it to go to Hamner, whether Hamner was her creditor or her husband’s does not entitle her to deprive Miller of property which in good faith he has bought and paid for.

Rehearing refused.


text:
    No. 1909
    Second Circuit
    HUGH J. COYLE, ET AL. v. MRS. JESSIE BURTON, ET AL.
    (October 21, 1925, Opinion and Decree)

      (Syllabus by the Editor)
    1. Louisiana Digest—Abandonment—Par. 2.
    Where one who previously supposed herself to be the owner of land allows the fences to go down and built another one along another line between this line and the rest of the land after the discovery that, according to the records, the land belonged to the United States, these circumstances will show her intentions to abandon the land.
    2. Louisiana Digest—Abandonment—Par. 3.
    Under Article 3448 of the Civil Code, possession of land is lost with the consent of the former ■, possessor when he does some act which manifests his intentions of abandoning possession.
    3. Louisiana Digest—Abandonment—Par. 3; Possession—Par. 7.
    Under Article 3449 of the Civil Code, the heirs of one who abandoned possession of property thereby lost their possession of it.
    4. Louisiana Digest—Prescription—Par. 20, 25.
    In order to acquire immovable property by the prescription of ten years under Articles 3478 and 3479 of the Civil Code, good faith on the part of the possessor, a just title, and ten years’ possession are necessary.
    5. Louisiana Digest—Prescription—Par. 59.
    Good faith on the part of the possessor pleading prescription of ten years under Articles 3478 and 3479 of the Civil Code is shown by the fact that the property on all the accessible records belonged to the United States when the homestead entry was made and the defendant had advertised to prove up the homestead, to which the party contesting made no objection.
    6. Louisiana Digest—Prescription—Par. 34, 35, 37.
    In view of Articles 3442, 3443, 3444, 3492, 3487, 3437 and 3498 of the Civil Code, corporeal possession of immovables enjoyed under an application to the United States for title subsequently leading up to a title is a sufficient corporeal possession in the beginning to enable the party to complete prescription by civil possession.
    Appeal from Second Judicial District Court of Louisiana, Parish of Webster. Hon. J. E. Reynolds, Judge.
    This is a petitory action in which the plaintiffs seek to recover a tract of land for plaintiffs and defendants appealed.
    Judgment reversed and the defendants quieted in the ownership and the possession of the land in controversy.
    Drew & Drew, of Minden, attorneys for plaintiffs, appellees.
    Stewart & Stewart, of Minden, attorneys for defendants, appellants.
   CARVER, J.

This is a petitory action in which the plaintiffs seek to recover a tract of land described as the northwest quarter of southwest quarter of Section 9, Township 23 North, Range 11 West.

Plaintiffs, except Coyle, claim the land by inheritance from George F. Brailey and his wife.

Coyle claims as purchaser from another one of the heirs.

Brailey bought the land in contest in 1886 and had actual possession until his death in 1888. The widow and heirs continued in possession for a time not definitely fixed but probably beyond 1896.

The deed by which Brailey acquired embraced the whole southwest quarter of Section 9 and the northeast quarter of northeast quarter of Section 17 which cornered with it. He, and his widow and heirs after his death, lived on the land in Section 9 but not on the “40” in dispute.

Under one fence were enclosed a part of the lands in dispute and a part of the rest of what Brailey bought.

A patent had issued from the United States government in 1861 to one Liverman covering the forty in dispute and also the east half of southwest quarter of Section 9, but this patent had remained in Washington and the Braileys seem not to have known of it prior to 1917.

In posting the Liverman entry on the tract book in the Natchitoches land office it was erroneously posted as covering east half of southwest quarter and northwest quarter of southeast quarter instead of east half of southwest quarter and northwest quarter of southwest quarter.

In the book of government entries on file in Webster parish—furnished, no doubt, by the register and receiver of the Natchitoches land office—the error made on the tract book was repeated, and it seems the same error was made on the tract book in the general land office at Washington.

By reason of this error the land in dispute appeared by the tract books at Natchitoches and Washington and the land entry book in Webster parish to be vacant public land of the United States.

Up to a time not definitely fixed in the testimony it had been generally recognized as belonging to the Braileys, but some time before 1899 its supposed vacant condition, as shown by the erroneous book entries became known, and in the spring of 1899 William Barnes began cultivation of the clearing on it and on April 12 of that year made formal application at the Natchitoches land office to enter it under the homestead law. He had bought what was probably a supposed settlement right from J. A. Smith, a half-brother of Mrs. Brailey, who had made some effort to homestead it. The testimony does not show the extent of this effort or the time at which it was made.

Barnes fenced about twelve acres of the forty, using some of the old rails remaining of a fence which had been allowed to go down, together with new rails made by himself, and made a crop on it that year. He died in the winter of 1899. He lived during that year in a little cabin that he thought was on the land. His widow remained in the house about a month after his death, when she moved away to Spring-hill, a distance of about three miles, to be near her relatives. In moving, she had no intention of abandoning her rights. She visited the place from time to time, tried to rent it, sold some timber from it to Bodcaw Lumber Company at a time not fixed by the testimony, and on October 14, 1901, sold a right of way over it to the Louisiana and Arkansas Railway Company.

On January 2, 1906, she submitted final proof on the homestead entry, receiving final certificate May 5, 1906, and a patent August 27, 1907. The patent was recorded in Webster parish March 27, 1915.

After moving away from the place she never cultivated it either herself or by any tenant, never lived on it, never paid taxes except, perhaps, for the year 1914 or 1915. Her visits to the place, efforts to rent it, selling the timber and granting the right of way to the railway company, were the only acts of dominion or possession performed by her from the time she moved away until she sold it to the defendant, Mrs. Burton, in 1915.

In making her final proof she and her witness testified that the cabin she and her husband had lived in though thought to be on the land was about twenty feet from the line and that her husband had not built any house on it except a corn crib which was then (January, 1906,) no longer there, presumably having burned or rotted down.

The proof taken in this ease leaves it somewhat uncertain whether the dwelling house was on -or just off the land. This house was on or near the southeast corner. It seems there was also a little house on the northeast corner.

The testimony conclusively shows that the Braileys never had any possession and that Mrs. Brailey at least never intended to have any after the discovery was made that, according to the records in Webster parish, the land belonged to the United States. Mrs. Brailey permitted the fence to go down- and built another one along what was supposed to be the line between this land and the rest of her land.

The testimony shows that the building of this line fence was a definite and deliberate yielding of possession to Barnes. Indeed, she had apparently abandoned possession before this, having left the fence go down on this land.

When Mrs. Burton was negotiating to buy from Mrs. Barnes, Mrs. Brailey showed her what was supposed to be the line between her land and the Barnes land, and said she was glad Mrs. Burton was going to buy the Barnes land.

Between the time Mrs. Brailey built the line fence in 1899 and the time she showed the supposed line to Mrs. Burton in 1915, and, indeed, until the steps taken in settling the succession of Mr. and Mrs. Brailey in 1919, the Braileys had no possession whatever and never made any claim to the land. They lived adjoining it and knew of Barnes’ possessing it and claiming it and of Mrs. Barnes’ proving it up, making no objection to any of this. Coyle says he considered the land vacant till he got a letter from the commissioner of the General Land Office, which was in 1917.

Thus we see that possession was lost from Mrs. Brailey to Barnes, if not indeed before that- to Smith, by Mrs. Brailey’s virtual consent. Civil Code, 3448, which reads as follows:

“Possession is lost with the consent of the possessor:
“1. When he transfers this possession to another with the intention to divest himself of it.
“2. When he does some act which mani"ests his intention of abandoning possession, as when a man throws into the street furniture or clothes, of which he no longer chooses to make use.”

As to the other Braileys, if they did not consent to the abandonment they at least lost possession to Barnes under Civil Code, 3449, which reads as follows:

“A possessor of an estate loses the possession against his consent:
“1. When another expels him from it, whether by force in driving him away, or by usurping possession during his absence and preventing him from re-entering.
“2. When the possessor of an estate allows it to be usurped and held for a year, without, during that time, having done any act of possession, or interfered with the usurper’s possession.”

The abandonment or loss of possession, of course, could not divest the Braileys of their title, but it was an acknowledgment of Barnes’ possession which might enable him or his successors in title to acquire by prescription.

The Brailey title had probably become perfect at the time they abandoned possession, so the crucial question is whether Mrs. Barnes thereafter acquired a title by the prescription of ten years. This prescription, of course, requires, Civil Code 3478 and 3479, good faith on the part of the possessor, a just title and ten years’ possession.

Some effort is made to impugn the good faith of Mr. and Mrs. Barnes, hut the testimony satisfies us that they were in good faith. It is true that for a long time previously the land had been generally recognized as belonging to the Braileys, but they had apparently abandoned their claim, it appearing on the accessible records as belonging to the United States, Smith having taken steps towards homesteading it and the Braileys’ attitude seeming one of acquiescence in the situation as shown by those records. They knew of Mrs. Barnes’ advertisement to prove up the homestead and made no objection. All this, we think, justified Mrs. Barnes in believing that she was acquiring the land from the true owner.

As to the title, of course, until Mrs. Barnes received the final certificate on May 5, 1906, she had no title but was merely an applicant for title.

During the year 1899 Barnes had actual, corporeal possession of about twelve acres. We have seen how and how little possession Mrs. Barnes enjoyed from the time she moved from the place until she sold it to Mrs. Burton in 1915. Since Mrs. Burton’s purchase she has had actual, corporeal possession. Neither her possession nor her ownership was questioned until 1919 when in the settlement of the successions of Mr. and Mrs. Brailey the lands of the succession were advertised for sale, the advertisement including the tract in dispute. On seeing this advertisement Mrs. Burton brought a possessory action against the Braileys, alleging the advertisement and the contemplated sale as a disturbance of her possession, and on trial of that suit she obtained judgment quieting her in her possession.

It is clear that the possession enjoyed by Barnes in 1899 and by his widow for a month after his death was corporeal as to the part of the tract under fence and would have been sufficient to start the current of prescription of ten years if Barnes had had a title. After Mrs. Barnes moved away, it may be contended that she had no corporeal possession either before or after acquiring title on May 5, 1906, when the final certificate issued; but it is clear that she did have civil possession as defined by Civil Code, 3429:

“Possession is civil when a person ceases to reside in the house or on the land which he occupied, or ceases to detain the movable which he possessed, but without intending to abandon the possession.”

Other articles of the Code provide that when a person has once acquired corporeal possession the mere intention thereafter to possess suffices to preserve the possession. (Civil Code, 3442.)

That the intention of retaining possession is presumed where a contrary intention does not decidedly appear. (Civil Code, 3443.)

That to thus retain possession, there need not be positive intention to do but mere negative intention suffices, the presumption being that the intention continues until revoked by a contrary intention. (Civil Code, 3444.)

That the actual possessor, when he proves that he has formerly been in possession, shall be presumed also to have been in possession in the intermediate time. (Civil Code, 3492.)

That in order to complete possession already begun, the civil possession shall suffice, provided it has been preceded by the corporeal possession. (Civil Code, 3487.)

That it is not necessary that a person, wishing to take possession of an estate should pass over every part of it; it is sufficient if he enters on and occupies a part of the land, provided it be with the intention of possessing all that is included within the boundaries. (Civil Code, 3437.)

That when a 'person has a title and possession conformably to it, h'e is presumed to possess according to the title and to the full extent of its limits. (Civil Code, 3498.)

Mrs. Burton’s actual possession since her purchase, added to Mrs. Barnes’ civil possession, amounts to more than ten years’ possession under title, this suit having been instituted more than ten years from the time the patent was issued to Mrs. Barnes.

If this possession does not avail to complete the prescription, it can only be because there has been a lack of corporeal possession since acquisition of title, and because the corporeal possession enjoyed before that must be ignored for the reason that during its continuance Mrs. Barnes had no title but was only an applicant for title.

It seems to us, though, that this is too great a refinement and that the corporeal possession enjoyed under an application for title subsequently leading up to a title is a sufficient corporeal possession “in the beginning” to enable Mrs. Barnes to complete prescription by civil possession.

Beyond this, though, the operation of the railroad on the right of way Mrs. Barnes granted in 1901 was an enjoyment of corporeal possession of part of the land not, indeed, by Mrs. Barnes herself but by her authority. In a sense, the railroad company was her tenant, using the land of which the fee was in herself, she having only granted a right of way or passage over it. In this view she had corporeal possession all along since 1901.

For these reasons it is decreed that the judgment of the lower court be reversed, that the demands of the plaintiffs he rejected, and that defendants, Mrs. Jessie Burton and husband, be quieted in the ownership and possession of the land in controversy.

REYNOLDS, J., recused.


text:
    No. 1910
    Second Circuit
    MATHILDA BROWN, AND HUSBAND v. T. A. GLASS, ET AL.
    (October 21, 1925, Opinion and Decree)

      (Syllabus by the Editor)

    1. Louisiana Digest—Evidence—Par. 240; Registry—Par. 7.
    Between the parties to an act of sale and their heirs errors can he corrected; but such errors cannot be corrected to the prejudice of the third persons who have acquired in good faith reliance on the public records.
    2. Louisiana Digest—Prescription—Par. 22.,
    Under Article 3502 of the Civil Code the prescription of thirty years extends only to that which has been actually possessed by the person pleading it.
    3. Louisiana Digest—Prescription—Par. 22; Possession—Par. 6.
    Under Article 3501 of the Civil Code, corporeal possession necessary to the prescription of thirty years which has been commenced may be preserved by external and public signs announcing the possessor’s intention to preserve the possession; such as keeping up roads and levees, payment of taxes, and other similar acts.
    4. Louisiana Digest—Prescription—Par. 221.
    Where the evidence clearly shows that the plaintiff who claimed title by virtue of thirty years’ prescription does not know exactly when possession of the property 'by her began, the court cannot assume that she took possession over thirty years before prescription was interrupted by defendant’s answer setting up title.
    Appeal from Second Judicial District 'Court of Louisiana, Parish of Webster. Hon. J. E. Reynolds, Judge.

      This is a possessory action for title to land which was converted into a petitory action by one of the defendants, Crichton Company, Ltd.
    There was judgment for plaintiff against both defendants and defendant, Crichton Company, Ltd., appealed.
    Judgment reversed as to Crichton Company, Ltd.
    The right is reserved to plaintiff to remove the improvements.
    Stewart & Stewart, of Minden, attorneys for plaintiff, appellee.
    Drew & Drew, of Minden, attorneys for defendants, appellants.
   CARVER, J.

This is a possessory action which, without objection on the part of plaintiffs and, indeed, with their virtual consent, was converted into a petitory action by Crichton Company, Ltd., one of the defendants, which claims title by purchase in 1916 from W. C. Welch, who bought in 1913 from Morgan E. James, who bought in 1912 from Isaac Green, to whom it was donated by his father, George Green, by act dated July 7, 1891, and recorded July 13, 1891.

The various deeds in this chain of title were duly recorded within a few days from their respective dates.

The plaintiff, Mathilda Brown, born Green, has no written title other than deeds from • the heirs of George Green executed in 1919, wherein they assume to correct an error alleged to have been made in the above mentioned donation, and also an error alleged to have been made in a contemporaneous donation made to Mathilda Green, who was a daughter of George Green.

It is claimed by the plaintiffs that the donation to Mathilda, which by its terms covered the southeast quarter of southwest quarter of Section 13, Township 19 North, Range 9 West, was intended by both donor and donee to cover the southwest quarter of southwest quarter of Section 12, Township 19 North, Range 9 West, which is the land in dispute.

They further claim that the donation to Isaac was intended by both donor and donee to cover the northwest quarter of southwest quarter of Section 12, Township 19 North, Range 9 West, instead of that described in the donation, viz.: Southwest quarter of southwest quarter of that section.

Plaintiffs further claim that, at the time of the donation, the donor delivered the land in contract, southwest quarter of southwest quarter of Section 12, to Mathilda and that she took and has ever since held actual possession thereof; and they plead the prescription of thirty years.

I.

It is well settled that as between the parties to an act and their heirs errors, such as those here alleged, can be corrected; but it is quite as well settled that such errors cannot be corrected to the prejudice of third persons who have acquired in good faith reliance on the public records.

Gonsoulin vs. Sparrow 150 La. 103, 90 South. 528, and cases there cited.

In the Sparrow case three of the justices dissented; but certainly one of them and presumably all three did so on the ground that the plaintiffs in that ease were not in good faith.

In this case there is nothing to impugn the good faith of Crichton Company, Ltd.

Plaintiffs’ counsel cite on this question:

Levy vs. Ward, 33 La. Ann. 1033.

Coleman vs. Thibodaux, 119 La. Ann. 474, 44 South. 269.

Garrett vs. Spratt, 131 La. Ann. 707, 60 South. 199.

The Levy case was between the vendee and the administrator of the vendor.

The Garrett case was against the heirs of the vendor.

And the Coleman case was between the original parties themselves.

The rule is different when as in the Gonsoulin case, cited above, the contest is not against the vendor , or his heirs but against third persons purchasing on the faith of the public records.

II.

PRESCRIPTION OP THIRTY YEARS

Citation was served on Crichton Company Ltd., on April 8, 1922. It filed answer May 26, 1922, claiming title, and thereby interrupting prescription. This was thirty-one years, one month and eighteen days after the donation.

The testimony shows that Mathida claimed the land in dispute ever since the date of the donation; that she cleared some of it; and that during many of the years she cutivated a part of it; but it does not show how much she cleared or cultivated or exactly what part or even when she first took possession of any of it. 'She never lived on it but lived in a house' that she built on an acre adjoining which she acquired from her brother, Dallas. This house was not built until after the death of her husband, Ellis Johnson.

She testifies that she worked some, of the land (but does not say how much or what part) before her father died; but the date of her father’s death is not shown. She says she does not know exacty when he died, but thinks it 28 or 29 years before giving the testimony (January 9, 1923). This would place his death in 1894. We cannot assume from this testimony that she took possession prior to May 26, 1892, which would be thirty years before prescription was interrupted by defendant’s answer setting up title.

The testimony further shows that when her daughter married, Mathilda went to live with her and lived with- her about two years. If this was after the donation, which is likely, then it is probable that Mathilda never did any cultivation until more than two years after the donation, which would be less than thirty years before service of citation.

She says, page 15;

“Q. Mathilda, when did your father die?
“A. I couldn’t tell about how long. Reckon about twenty-eight or- twenty-nine years.
“Q. You didn’t get on this forty acres of land until after your father’s death?
“A. I don’t know exactly how long he been dead.
“Q. Did you get on this tract of land before your father’s death?
“A. Yes sir. Worked some of that land before my father died.
“Q. When was that?
“A. That’s been a good little bit.
“Q. How long is a pretty good little bit? About how long?
“A. Reckon after my husband died.
•“Q. Which one?
“A. Ellis Johnson.
“Q. How long did you stay off the place?
“A. I didn’t stay off very long.
“Q. How long is very long?
“A. About two years, I think.
“Q. Some two years?
“A. -Yes, sir, about two years; but I paid the taxes.
“Q. Never mind that, did you ever leave after that?
“A. No, sir; I don’t know exactly ’cause I been there a good while.
“Q. When you were off with your daughter, that’s been since your father’s death?
“A. Yes, sir.
“Q. After you had been sent into possession of the land?
“A. Yes, sir, since that my father died.”

Also on page 12:

“Q. When he made this donation what did he do, if anything, toward putting you in possession of a tract of land?
“A. He just made the division. Just showed us our forty acres of land.
“Q. What land did he show you as being that he gave to you?
“A. The tract that was next to my brother, Dallas.
“Q. "What did you do with the land when he made this donation?
“A. I paid taxes on it.
“Q. Do anything else? Anybody live on it?
“A. No one at that time.”

J. W. Miller, a witness for plaintiffs, testified, page 5:

“Q. She has been on the property continuously since the death of her father?
“A. She married Ellis Johnson; the first husband was Tom Reed and the second husband was Ellis Johnson, and her last husband is Henry Brown.
“Q. She moved away after she married which one?
“A. Which one?
“Q. When did she move off the place?
“A. Well, she stayed separated a long time and then her daughter married and she lived with her daughter and son-in-law down below here and then after they went to Oklahoma, her and Ellis Johnson married, and then -
“Q. Where did she live then?
“A. Out on what was called Jno. O’Rear Place, and Ellis Johnson hauled wood from her forty to town, and after Ellis died she turned in and built a house for her, and then she and Henry Brown married.”

But even if possession was taken of any of the land .over thirty years before service of citation, it is not shown how much or what part.

In the prescription of ten years possession of a part under title to the whole is possession of the whole; but the thirty-year prescription extends only to the part actualy possessed.

Civil Code, 3503, is as follows:

“How favorable soever prescription may be, it shall be restricted within just limits. Thus, in the prescription of thirty years, which is acquired without title, it extends only to that which has been actually possessed by the person pleading it.”

Under Article 3501, where corporeal possession has commenced, it may, if not interrupted, be preserved by external and' public signs announcing the possessor’s intention to preserve the possession, such as keeping up roads and levees, payment of taxes, and other similar acts.

It is likely that plaintiff has paid taxes on the property in dispute for more than thirty years; but while such payment is sufficient to preserve a possession under this article, it is not sufficient to constitute taking of possession, which must be corporeal.

Under- our appreciation of the facts, we are constrained to disagree with our learned brother of the District Court.

It is decreed that the judgment of the lower court be reversed and Crichton Company, Ltd., hereby is decreed the owner and entitled to possession of the land in dispute, to-wit: Southwest quarter of

southwest quarter of Section 12, Township 19 North, Range 9 West.

The right is reserved to plaintii’f, Mathilda Brown, to remove her improvements.

Reynolds, J., recused.


author: REYNOLDS, J.

text:
    No. 1925
    Second Circuit
    C. D. KEEN, ET AL. v. A. DELATTE
    (October 21, 1925, Opinion and Decree)

      (Syllabus by the Editor)

    1. Louisiana Digest—Judgment—Par. 51.
    Where plaintiff sued under an alleged contract which was not proven and the evidence showed a possible right to a judgment under a quantum meruit . the case will be propery non-suited.
    Appeal from First Judicial District Court, Parish of Caddo. Hon. T. F. Bell, Judge.
    This is a suit for an amount claimed of defendant for having stored building material on plaintiff’s lot.

      There was judgment dismissing the suit, but reserving plaintiff’s rights.
    Plaintiff appealed.
    Judgment affirmed.
    John B. Files, of Shreveport, attorney for plaintiffs, appellants.
    Moore & Johnson, of Shreveport, attorneys for defendant, appellee.
   REYNOLDS, J.

This is a suit for $400.00 claimed of defendant for having stored building material on plaintiffs’ lot.

The district judge construed the petition as being a suit on a contract, and correctly under the evidence dismissed the suit, reserving to plaintiffs their right to sue on a quantum meruit.

The evidence in the case used as a guide to properly construe plaintiffs’ petition warrants the court in treating the case as a suit to recover on a contract, for no effort was made by plaintiffs to show how much of their lot was used by defendant or the rental value of the portion used.

Plaintiff W. C. Woolf testified, page 5:

“He wanted to use the back end of the property for storing material on.”

There is no evidence as to what portion of the lot was used by defendant or as to the rental value of the portion used.

Plaintiffs contend that defendant, by using a portion of their lot, became responsible for the rental value of the entire lot. This could only result from a contract, express or implied.

As a trespasser, defendant would only be responsible to plaintiffs for the rental value-of the portion of the property actually used by him, and for all damages caused to plaintiffs by his wrongful acts.

But there is no evidence on the part of plaintiffs as to the rental value of the portion of the lot used .by defendant.

Under the evidence the most that plaintiffs could reasonably ask for is a non-suit, and in effect this was granted them under the judgment of the District Court reserving to them the right to file a suit upon a quantum meruit.

It is therefore ordered, adjudged and decreed that the judgment of the District Court be affirmed.