author: Watkins, J.

text:
    No. 10,841.
    Volcy Amet vs. A. L. Boyer et als.
    1. In ease an owner of real estate, title to which is derived by inheritance, is reinstated in possession by means of a comprobase and retrocession on the part of an adverse claimant, and she subsequently conveys it to another, who is thereafter evicted by the instrumentality of a mortgage consented and recorded against it in the meantime, and which is made effective by reason of said acknowledgment and retrocession not having been recorded as a conveyance; Held, that the right of action of the heir against .the party retroceding the title for the reparation of losses sustained on account of the eviction of her vendee arises as soon as her vendee recovers judgment against her on that account.
    ■2. The petition of such an heir, alleging such a state of facts, discloses a cause of action as against the party who made the retrocession of the land; for, notwithstanding the petitioner was primarily guilty of fault in not properly and in time having the retrocession in her favor recorded, that fault in no way contributed to the fault of the defendant in fraudulently and surreptitiously recording a mortgage against it in favor of another, and third personsyire years subsequently. There is not a causal connection between these acts of neglect and wrong-doing.
    a. Such transferee and evicted vendee having instituted suit against his vendor for the consequences of eviction, and she having called in warranty said party retroceding the title to her, and he, on his own exception, having been discharged on the ground that the call in warranty was inadmissible; Held, that such a decree as that sustaining the exception of no cause of action can not be maintained as res Mitifícate In respect to such a suit as that above indicated, to which a like plea of no cause of action is urged.

      4. The action instituted by the heir in such case, is one sounding in damages ex-delicto, as it is for the recovery of damages inflicted upon her by the means, and as the result, of the illegal and wrongful acts of the party retroceding the property in recording a mortgage thereon which occasioned her vendee’s eviction, and was the foundation of the judgment againsther. Such a claim only confers a right of action from the date of the judgment fixing the amount of the vendee’s loss, and which is the measure of her damage.
    5. A retrocession is not a new title, but the recognition of onepreviously existing in another.
    APPEAL from the Twelfth District Court, Parish of Avoyelles. Coco, J.

      Irion & Lafargue for Plaintiff and Appellee:
    Every act whatever of man that causes damage to another obliges him by whose-fault it happened to repair it. Art. 2315, C. C. *
    The right of action arises when the final judgment causing damages is obtained, and not when payment is made. 25 An. 307.
    Damages are caused the moment a final judgment is entered against a persón and his right of action for the recovery of same thereon arises.
    Upon a charge of complicity in a fraud, in an action for recovery of damages, persons must be made parties to defend themselves against the charge of fraud made against them. 40 An. 157. It is not necessary to ask a money judgment against them.
    Exceptions of no cause of action and res judicata are answers to the merits, and should be so declared in an action for damages for alleged frauds. •
    Courts have it in their power to declare a paper styled a peremptory exception an answer to the merits. 20 An. 42S.
    The plea of no cause of action admits all the allegations in petition, and when tried as an answer on the merits the defendant can not be permitted to contra- • diet this admission by other allegations or proof.
    The judicial admission of the allegation in petition relieves the court of the investigation as to whether or not the plaintiff has proven her case, and the only question is, “Does the petition set forth a cause of action?”
    A judgment rendered in a previous suit between the same parties has not the force of res adjudícala when the matter at issue in the previous suit was different-31 An. 1.
    A judgment of dismissal of a call in warranty, which in express terms reserves: any right of action to one whose demand is thus dismissed, is not a bar to a separate action afterward between the same parties. A plea of res adjudícala based upon such judgment will not in said action be entertained.
    A judgment that constitutes a bar to another suit must be rendered in a proceeding between the same parties, or their privies, and the point of controversy must bo the same in both cases and determined on its merits. If the first suit was dismissed for defect of pleadings, or parties, or a misconception of the form of proceeding, or the want of jurisdiction, or was disposed of on any gi*ound which did not go to the merits of the action, the judgment rendered will prove no bar to another suit. 4 Wall. 232.

      To maintain the plea of res judicata there must he an identity of parties, of capacity, of object and of cause. 30 An.,861.
    Preseriptiomcommences to run only from the moment the right of action accrues. 12 An, 161.
    It does not run while there is an inability to sue. 20 An. 171.
    The right of action arises when the final judgment is rendered. 25 An. 807.
    A suit for damages, based on the article of the Code which provides that every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it, prescribes in one year from the time the damage was actually sustained. 20 An. 171.
    When there is a continuation of a wrongful act, prescription commences to run •from the day the damage was sustained. 16 An. 851.
    Prescription begins, not from the time of the. wrongful act, but from the time damage was sustained in consequence of it. 86 An.-150.
    A tutor who declares in articles of agreement, submitting differences existingbetween tutors and wards to an arbitrator, that his title to land bought at sale Qf his ward’s parents’succession is null, and declares in said paper that he returns said land to his ward and co-heirs, and afterward, in a supplemental tableau, reiterates the fact that he so returned tlie land, are judicial admissions whi.eh estop him from denying said ward and her co-heirs to be owners of said land, and from setting up title to it himself for want of registry of said articles of agreement. A tutor who mortgages land under said circumstances will bo mulcted in damages.
    Articles of agreement submitting the differences existing betoen tutors and wards to an amicable compounder, and upon which, judgment was based, arc law as to said parties. The right to deny or oppose' any provisions of said agreement will not be allowed.
    Damages will be allowed to extent of injury suffered. When act is malicious, ex-omplai'y damages will bo added.

      Thorpe <Sc Peterman for Defendants and Appellants:
    1. Where an evicted vendee recovers* judgment against his vendor, suit by the latter against the alleged author of the cause of eviction for damages is premature if instituted before payment of the vendee’s judgment, and the penalty is dismissal of tlie suit. O. V,, Article 158; 7 Da. 290; 10 Da. 120; 38 Da. 103; 15 An. 707-8; 21 An. 50; 81 An. 121; 10 An. 16.
    2. A judgment maintaining an exception of no cause of action, urging that plaintiff prays for relief which can not be granted according to law, will support the plea of res judicata, to a petition disclosing the same cause of action between the same parties and for the same relief. Hy the cause of action is meant the immediate facts or circumstances, on proof of which the party’s right of recovery depends. Tlie cause of action is the same when the same evidence will support both actions, although the action may happen to be brought in different forms. ID-C. 0., Article 2286; 2 Stark ie on IOv., Sec. 61, 2 Sm. D. O. (Hare and Wallace), 668, 809; Herman on Kstoppel, 26, 82, 11, 68, 99; Hilliard on Torts, 27; 14Da. 286-1; 19Ibid., 828: 8 An. 171; 11 Du. 58; 12 An. 198-9; 28 An. 019; 88 An 1869; 81 An. 811, 815; 85 An. 558; 82 An.829; «Da. 187; 11 Da. 139; 20 An. 820.

      8.Tlie unexplained use of the words “reserving to the plaintiff whatever rights-, he may have” or “ without prejudice,” in a judgment sustaining an exception of no cause of action, can not be construed to authorize the renewal of the suit against the same party for the same cause of action and substantially for the same relief, nor can such words deprive the judgment of its character and effect as res judicata. 8 L. 69; 30 An. 230; 23 An. 619; 32 An. 829.
    4. A purchase by a tutor at his own sale of property in which his minor has an undivided interest, if null, is only relatively so, and will prevail until its-nullity is sought and decreed in a direct action against all parties to the sale 16 An. 135.
    5. Neither the judicial nor extrajudicial declarations óf a purchaser at a public sale can be allowed to impeach a judicial title. 4L An. 1126.
    6. Title to property can only bo shown by one of the modes designated by law as capable of being the vehicle of ownership. 5 An. 433.
    7. For breach of a grantor’s warranty no other measure of damages tliaji those prescribed by the Civil Codo can be employed. 6 An. 295; 20 An. 260.
    8. The consenting of conveyance of or incumbrance upon the property of another if actionable, is'a quasi offence and gives only the action for damages ex delicto. The prescription of one yoarapplies andruns from the day after themalcing of the act of conveyance or incumbrance. 31 An. 563; 39 An. 28, 29; R. C.’O., Arts. 2315, 3536; 12 An.346; 13 An.126, 609; 14 An. 390; 15 An.418; 2 An. 200; 6R. 382; 6 BI. ‘ (N. S.) 691; 2 31. (N. S.) 24; 20 An. 171; 12 An. 357; 10 An. 656;’ 6 R. 382; 31 An. 528; 24 l’enn. tít. R. 144.
    9. Acts of others/subsequentto defendant’s acts alleged to bo tortious,do not make-him responsible in damages unless those acts be the inevitable consequence of that of defendant. One who is himself in fault can not recover damages for a wrong resulting from such fault, although the party causing the injury be not justifiable under the laws. 1 Sutil, on Dam 51,53; Hilliard on Torts, 27; 10 An. 656; 29 An.* 710; 4 Gray, 395.
    10. After asserting claims as a creditor for the price of property sold, a vendor or any one under him is estopped from denying the character and reality which he has attached to the transaction, and real tender is an essential condition precedent to a suit to annul a'judicial sale. 39 An. 107; 37 An. 875; 42 An. —.
    11. An instrument of writing containing neither description,price nor express’ words of present grant and contemplating further acts to be done by the parties is not a conveyance of immovable property under the law of Louisiana. 11 An. 87; 37 An. 751; 1U An. 160; 13 An. 361; 23 An. 725; 3Q An. 1117; 34 An. 677; 40 An. 712.
    12. A compromise is. a contract, and, to have the force of the things adjudged, it must be perfect and completo in itself and leave nothing for ascertainment by parol proof. 8 So. R. 530.
   The opinion of the court was delivered by

Watkins, J.

Plaintiff claims §5000 against A. L. Boyer as damages, sustained at his hands and through his illegal and tortious acts, in reference to a tract of land which was the subject of a protracted litigation, and of which she was the owner by virtue of an inheritance from her mother’s succession, in part-, and from a deceased brother and sister, in part.

Jacques A. Boyer, brother of A. L., and one Henry Bielkiewicz, are made parties defendant and cited, though no judgment against them is prayed for.

The immediate cause of plaintiff’s suit is the alleged rendition of a final judgment against her for the sum of $3477.05, in the suit entitled Jacques A. Boyer vs. Volcy Amet, 41 An. 721. And that that suit and judgment were the successors and supplements of the preceding suit entitled Jacques A. Boyer vs. L. A. Joffrion, sheriff, et al., 40 An. 657.

As this claim is the sequence of a protracted litigation, in which the plaintiff (only recently arrived at her majority) and her two uncles (only recently discharged from their trusts, the tutorship of herself and her brother and sister, and the administration of their father’s and mother’s estates) figured as parties litigant, in sundry capacities, the correctness of its allowance or rejection must depend in a great measure upon a careful statement of the facts and allegations pertinent to the issues raised therein.

The following is a fair synopsis of the plaintiff’s claim, viz:

!.• That upon the death of her father and mother, the defendant, A. L. Boyer, became the tutor of her sister, and 'J. A. Boyer became the tutor of her brother and herself and the administrator of their father’s and mother’s successions.

2. That among the properties belonging to.siad mother’s estate was the tract of land which serves as the foundation of this demand, and of which said tutors caused a pretended sale to be made on the 18th of May, 1878, and thereat same was adjudicated, ostensibly, to Henry Bielkiewicz who was a party interposed to accept title for said A. L. Boyer.

3. That said sale was illegal, null and void, being fraudulent and simulated — a fraud practised upon the minors whereby their title was never really and actually divested, and which vested no title in the alleged purchaser.

4. That after her majority and marriage she instituted suit against both of said tutors, calling upon them for accounts, etc., and finally all the matters therein involved were, by the mutual consent of all parties, submitted to arbitration, and appropriate articles of agreement were drawn and signed.

5. That one of the questions which was settled and determined by the arbitration was, that A. L. Boyer had acquired no title to the land specified, and that the paper title he held was a nullity, and that the land was ordered to be returned to the heirs of her mother, Palmyra Boyer, of whom she is the sole surviving heir, her brother and sister having died meanwhile.

6. That, in pursuance of the award of the amicable compounder, plaintiff, as sole heir of her mother, 'entered into possession of said property in 1881, and in December, 1885, sold, it to J. A. Boyer; and that, in May, 1886, the defendant, A. L. Boyer, taking advantage of the fact of his act of retrocession to her not having been recorded in the proper conveyance office, consented a mortgage upon it in favor of Jean Artigues for $1550, which was subsequently foreclosed, her vendee evicted, and she by a final judgment sentenced to make restitution to him, on that account, of the sum of $3650.

7. That in so doing A. L. Boyer knowingly and designedly perpetrated a fraud upon her, and occasioned her the damages claimed; same being the amount of the judgment against her, attorney fees, anxiety of mind, etc.

A variety of exceptions were -preliminarily interposed in behalf of the different defendants, and some of them having been overruled, and others referred to the merits to stand as part Of the answer, the answer was filed.

It is a general denial coupled with the following special defences, viz: •

1. That the alleged sale of the 18th of May, 1878, to Bielkiewicz was duly advised by a family meeting duly convoked; and that he purchased from the latter in good faith for $1550, and never thereafter conveyed or transferred said land to plaintiff, but expressed a willingness to convey same to her upon the condition that she would make restitution to him of said sum.

2. That the plaintiff, as heir to her mother’s estate, received said' sum thus realized for said property and is thereby estopped from now asserting the nullity of the sale.

3. That it is not eompetent for plaintiff to claim said lands or any rights as owner thereof, without first paying or tendering to the defendant the price claimed and received by her.

4. That, in the event the court declares said sale to be a nullity, he pleads and claims, in reconvention, in the alternative, the sum of $1305.

5. That plaintiff, in suit No. 7794, having judicially averred and declared that she had derived said land from him, .such pleading estops her from averring that hé never acquired it at all or that the damages she claims resulted from his having wrongfully pretended to sell property which he did not own.

The judgment of the District Court went in plaintiff’s favor for $8200 and rejected the defendant’s reconventional demand, and he has appealed. In this court the appellee made answer to the appeal and requested that the judgment be increased to $5000 as originally claimed in her petition. •

As the parties litigant have been before this court in two preceding cases, a reference to them and the points decided therein will simplify the questions at issue in the present case.

In Boyer vs. Joffrion, 40 An. 957, the plaintiff claiming ownership of the land in question, by virtue of a duly recorded title from Volcy Amet, enjoined the foreclosure of the mortgage which was consented thereon in favor of Artigues and called plaintiff, Amet, his vendor in warranty. She in turn cited A. L. Boyer in warranty; but, on exceptions, the demands in warranty were dismissed and the case went to judgment upon the issues remaining in the case — the court deciding that the mortgage was inforceable because the public records disclosed title in the mortgagor at the date of the inscription of the mortgage on May 29, 1886.

The court held that, while it was true that A. L. Boyer was not a parij1 to the controversy in which the validity of the adjudication of the property to Bielkiewicz was involved, the finding of the arbitrator annulling said adjudication, and the judgment of the court homologating same, were binding on him; that these occurred in 1888, prior to the conveyance to J. A. Boyer by Volcy Amet, which was duly reeorded'on the day of sale, more than two years antecedent to the execution and registry of the Artigues mortgage. Yet all of these occurrences did not, in anyway, affect said mortgagee, because “the finding of the arbitrator, and the judgment annulling the adjudication, divesting A. L. Boyer of title to the property, had not been recorded previous to the granting of the mortgage.”

But while thus holding, with respect to Artigues, and dissolving the injunction of J. A. Boyer, yet it conclusively appears that, in so far as Volcy Amet and A. L. Boyer were, concerned, the annulment of said probate adjudication to Bielkiewicz, hisconveyance to A. L. Boyer, and his retrocession of the property, were facts accomplished and completed, inter sese.

The property having been seait to sale under Artigues’ mortgage, it was adjudicated to J. A. Boyer for the price of §1800 in cash. He, thereupon, instituted the suit of Boyer vs. Amet, 41 An. 721, for the recovery of the original price he had paid the defendant for the property, viz: §8200 and the costs and other expenses of the injunction suit, in reparation of the losses he had sustained in con - consequence of his eviction from the property.

In that case the court was called upon to review the entire litigation, and in the course of their opinion they expressed the following views in reference to A. L. Boyer’s claim of title and the arbitrator’s award, viz:-

“ Now, it appears that the validity 'of A. L. Boyer’s purchase of the tract of land in question had also been involved, and that as part of the adjustment of the differences, then existing between the parties, Boyer acknowledged the nullity of his purchase, and agreed to retrocede the property thus acquired by him to the heirs of the succession.
“To that effect the act of submission contained the following declaration, or article, viz:
“That A. L. Boyer returns to the said heirs the land * - * * bought by him in 1878, and that said sale to'him is hereby annulled, reserving to said A. L. Boyer all the rights lie had, or may have had, at the time of- the sale of said land.”

Reference is made by the court to the fact, that by reason of the death of her brother and sister, Yoley Amet became the sole heir to the estate of herr mother, Palmyra Boyer, and they then stated that “the article in which A. L. Boyer acknowledged the nullity of his title was not a matter between himself and the suscession, or his administrator, but it grew out of an agreement between himself and the heirs directly, in a litigation instituted by the defendant himself * v * The retrocession,’ * * * was not to the succession, or (to) its representatives, but it was to che heirs themselves, who were themselves placed in possession without the intervention or assistance of the administrator.”

It thus appears that the parties to this litigation have been before this court in the cases cited, and in different capacities have either litigated or attempted to litigate all of the issues appertaining to the land in question; and that the practical result of the litigation, as it existed when this suit was filed, on June 12, 1890, was, that the land of which the plaintiff was owner by inheritance, and of which the defendant, A. L. Boyer, had been apparently invested with the indicia of ownership, had been by him retroceded to her; it had been conveyed to J. A. Boyer by recorded title; the same had been mortgaged by A. L. Boyer to Jean Artigues, and by him sent to sale; and the evicted purchaser had obtained judgment against his vendor for the’ losses he had sustained in’ consequence of the eviction.

It further appears (this result having been ascertained), that there is but one question for solution, and that is, the consequences of A. L. Boyer’s alleged illegal acts, and plaintiff’s right of action against him for a recovery. It is from this standpoint that w.e must view the plaintiff’s case, and the defendant’s exceptions and defences; and it was for this reason that the' argument of the exceptions was postponed. We will now take them up and dispose of them in their order.

I.

The first exception that occurs in the regular course of proceedings is that plaintiff had paid nothing on the judgment-of J. A. Boyer against her, at the time of instituting this suit, and hence her action is premature. That fact is conceded by the plaintiff, but she denies the correctness of the defendant’s conclusion therefrom.

The contention of defendant’s counsel is that plaintiff’s right of recovery could arise only from the fact of her having made payment, and not from a simple judicial condemnation to make payment. That her right, if any exists, is to be indemnified for actual loss suffered, and that she has no right of action for future damage.

This is a mistaken premise from which to tfiew the plaintiff’s case.

This is a suit against A. L. Boyer for damages inflicted upon the plaintiff by his “illegal, wrongful and tortious acts,” in perpetrating á fraud upon her, in the manner and under the circumstances detailed in her petition, and recited above.

It is nowhere alleged, and it nowhere appears in the record, that there were any contractual relations between A. L. Boyer and J. A. Boyer in respect to the land in question:.

It was, primarily, property of the succession of' Palmyra Amet, mother of plaintiff, and was adjudicated to Bielkiewicz, and by him conveyed to A. L. Boyer, who was at the time both administrator of Palmyra Amet’s succession and tutor of plaintiff. In an arbitration and settlement between A. L. Boyer and the plaintiff, the former acknowledged the nullity of his alleged purchase, and consented to and did make a retrocession of the property to the heirs of Palmyra Amet, and they went into possession. Thereafter Volcy Amet, as sole heir, conveyed to J.'A. Boyer; and subsequently A. L. Boyer executed a mortgage thereon in favor of Artigues, which sent it to sale. The seizure and sale thereof were unsuccessfully resisted on the part of J. A. Boyer, and, upon his injunction being dissolved, he sued the plaintiff and recovered a judgment as stated. Prom this statement it is clear that plaintiff’s demand for damages is not an incident of the sale she made to J. A. Boyer, but the result of the illegal acts of A. L. Boyer, in enabling Artigues to divest J. A. Boyer’s title, and to evict him of. the property'. That the judgment of the court fixing definitely the amount of J. A. Boyer’s loss, on that account, and adjudging her to pay the same, can be referred to in this case for the sole purpose of determining the quantum of damages, quoad this item. Whether plaintiff has made payment or not is matter of no consequence, so far as A. L. Boyer is concerned. The plaintiff’s vendee was evicted from the land, through the instrumentality of a mortgage he consented on the property, and, on that account, judgment was entered up against her. These are the only facts with which A. L. Boyer is concerned. This is made evident — if the proposition were not self-evident on its face — from the fact that plaintiff made an effort to have A. L. Boyer respond in warranty in the two suits above referred to, but same proved unavailing. He was not liable in warranty, for the simple reason that he was not a vendor of plaintiff — he haAdng merely retroceded to her a title of Avhich she had been illegally dispossessed.

This exception Avas properly overruled.

H.

J. A. Boyer and Henry Bielkiewiez excepted that the petition stated no cause of action as to them. There is no prayer for judgment against them. They were merely joined as nominal, though necessary, defendants, amd were in all likelihood cited for the sole purpose of assisting the plaintiff in obtaining the relief she prayed for against A. L. Boyer, principal defendant — they having been recipients of titles to property of Palmyra Amet’s succession, intermediately, but being at.present without interest therein.

This exception was correctly overruled.

III.

In the next place, the defendant filed pleas of res adjudieata and no cause of action, and same were, over his objection and exception, referred to the,merits, to stand as part of the answer, but on final trial both pleas were overruled by the judge a quo.

We are of opinion — and have so ruled frequently and recently— that these pleas should have been tried and disposed of by the District Judge in limine, and he erred in declining to do so. And, proceeding to deal therewith as he should have done, we will invert the order of defendant’s counsel’s argument and discuss the plea of no cause of action first.

We are clearly of the opinion that a cause of action is stated in view of the facts which are recited in the beginning of this opinion, but to put the matter beyond question we make the following quotations from plaintiff’s petition — the ground on which counsel seek to sustain their exception being that the probate sale of the land in question was, at most, only relatively null,' and A. L. Boyer’s retro-cession thereof was only a promise 'of sale — viz: “ Petitioner represents that there wore no debts against said minors which called for a sale of their property and that said order was improvidently granted by the court and fraudulently obtained by the tutors. The said property was sold on the 18th of May, 1879, and apparently adjudicated to Henry Bielkiewicz, who immediately thereafter, on the same day, transferred said property to Alonzo L. Boyer, tutor of Laura Amet, and one of the auctioneers who made the sale.

“ Petitioner represents that said Bielkiewicz was not a purchaser in good faith, blit was an interposed person acting for’and in behalf of Alonzo L. Boyer, tutor. * * u The said sale was illegal, null and void, for the reason that the tutors themselves became the purchasers of all the property, etc., * and said sale was simulated and a fraud perpetrated upon the minors by their tutors.

“For the reasons above set forth petitioner represents that the heirs of Palmyra Boyer were never divested of their title to the land above described, that Alonzo L. Boyer never acquired a title thereto, and that as between him and the heirs of Palmyra Boyer the ownership of said land remained in them.”

Subsequent litigation and the submission thereof to an arbitration is then recited and petitioner then concludes thus:

“But, one of the points of this agreement, which was fully settled' and determined by the arbitrators and by the parties themselves, was that the sale by which Alonzo L. Boyer had acquired a paper title to the land, which belonged to the succession of Palmyra Boyer, described above, was a nullity and that * * (same) belonged to the succession of Palmyra Boyer. ”

On full proof of these averments being made, it is manifest that the act of A. L. Boyér, in placing a mortgage on the property, as stated, was .a fraud on the plaintiff’s rights, and done with full knowledge on his part. It is manifest that he did not occupy the position of a possessor of a title which was only relatively null, and for the revocation of which an additional decree was necessary, in order that plaintiff could reach him, and make him respond for the consequence of his illegal act.

On the averments of plaintiff’s petition, the defendant never had any title to the land, and he occupies the position of one who mortgaged a piece of property he never owned. It is of no consequence to the defendant that plaintiff’s title had not been recorded. He' knew that the property was hers, and'that he had no right to put an incumbrance upon it. That plaintiff did not record her title, so that the divestiture of defendant’s title might have appeared, was neglect may be conceded; but it in no wise contributed to the act of the defendant. .It is likewise of no consequence that it is alleged — • and also a fact — that at the time of the registry of defendant’s mortgage, the plaintiff had parted with title. The property in the possession of her vendee was affected' by it. He was evicted thereby, and has obtained judgment against her, in consequence thereof. All of these facts are alleged, and such allegations state a cause of action.

IY.

' We will next consider the defendant’s plea of res adjudiaata, which is based upon a ruling of the District Judge in sustaining an exception of no cause of action, which was tendered by A..L. Boyer as defendant cited in warranty in the suit of Boyer vs. Amet, 41 An. 721. It appears that in that suit — the one in which judgment was rendered against the plaintiff — Volcy Amet set out in her answer a full' and detailed statement of the facts, as given in substance by the court, and called A. L. Boyer in warranty to defend the suit, and respond to such judgment as might be rendered against her therein. To this call in warranty A. L. Boyer excepted that the defendant,. Volcy Amet, was not entitled to call him in warranty in the afdresaid action, and in this respect her answer disclosed no cause of' action.

On these exceptions the District Judge ruled as follows:

“ This cause coming on to be heard upon exception of no cause, of action filed on behalf of A. L. Boyer, called in warranty in answer of defendant, Volcy Amet, filed in the above numbered and entitled cause, and the law and the evidence being in favor of said-exception, it is by reason of all the foregoing ordered, adjudged .and decreed that there be judgment upon said .exception in favor of the said A. L. Boyer, called in warranty, as aforesaid, dismissing the said call in warranty, and against the said Volcy Amet, wife-of Tobie Lougarre, with costs, reserving to said Volcy Amet, defendant, any right of action she may have against the said A. L. Boyer.”

To sustain the plea of res adjudieata on the ruling above quoted,, the defendant must make it appear affirmatively and clearly that, the cause of action is the same in both cases.

For the code provides that:

“The authority of the thing adjudged takes place only with-respect to what was the object of the judgment. The thing demanded must be the same; the demand must be founded on the same cause of action; the demand must be between the same parties and formed by them against each other in the same capacity.” R. C. C. 2286.

This simple precept of the code has been repeatedly defined and-interpreted, without much force or perspicuity being given to it. Morton vs. Packwood, 3 An. 174; Patterson vs. Bonner, 14 La. 233; Johnson vs. Webb, 8 An. 126; Shaffer vs. Scuddy, 14 An. 582; Florence vs. Wilcox, 14 La. 58; Association vs. Mason, 23 An. 619; Trescott vs. Lewis, 12 An. 198.

But the distinction between the cause of action set out in the-answer referred to and the one set out in the plaintiff’s petition is so> clear and well defined as to require no extended argument. The. call in warranty was predicated upon a suit against the defendant.. Volcy Amet, on a breach of her contract of warranty .in an act of sale, while the suit of the plaintiff, Volcy .ámet, is one sounding in damages ex delicto. The very reason that the exception in that suit prevailed, is the one why the one tendered in this case should not. The fact that the judge, in sustaining the exception of A. L. Boyer in that suit, fully reserved the rights of Volcy Amet, would indicate that this was the view he entertained of it.

In order to constitute a decree of court res judicata, three things must concur, in respect to the object of the suit, or the cause of action, viz: (1) The thing demanded must be the same; (2) the demand must be founded on the same cause of action; (3) the demand must be formed by the parties “ against each other in the same capacity. ’ ’

In the suit of Boyer vs. Amet, the demand to which the defendant Amet sought, by her answer, to make A. L. Boyer a party, was not a demand made against him in the same capacity as that to which he is made a party in this suit. This is evident. Hence the plea must fail the defendant, because it is wanting in its most vital and essential element — that is, sameness of capacity of the litigants.

V.

The next exception is a plea of the • prescription of one year against this suit as an action for damages ex delicto. From what has been already premised in the way of statement and argument it must be apparent that we have viewed it, and now.view it, as an action ex delicto. We think that the quotations from the petition already made clearly define it to be such an action. The cause of action is distinctly founded upon the faults, the illegal acis and alleged wrongdoings of A. L. Boyer. These are the essential indices of an action ex delieto. City of New Orleans vs. Bank, 31 An. 566; Knoof vs. Blatter, 39 An. 28.. ■

The only question for determination in order to decide whether the plea is good, is one of fact, and that is at what time was the injury inflicted of which the plaintiff complains. This suit was filed on the 12th of June, 1890, and if the injury was inflicted within one year prior to that date her action was timely.

Judgment was rendered against the plaintiff by this court in July, 1889, sentencing her to pay the sums of $3200 and $227.50 to J. A.. Boyer, as her evicted vendee. These two are the principal items in hex’ claim of $5000 damages against the defendant, A. L. Boyex’, as the losses that his previous illegal acts have occasioned her.

The initial point from which to compute plaintiff’s damage in our opiixion is the date of that judgment.

True it is that the mortgage which A. L. Boyer granted on this land was executed and recorded in May, 1886, and that was the act of his which primarily initiated the loss of the plaintiff. It is true that registry operates notice to all third persons of aix encumbrance on real property, but the import of that legal principle is that all persons dealing with the realty thereby affected are put upon their guard, and any rights they may thereon subsequently acquire are affected thereby.

But the record discloses that the plaintiff had disposed of the land in question to J.. A. Boyer, and his title had beexx duly recorded six months antecedent to the registry of Artigues’ mortgage. Plaintiff having parted with her title was not required to make any further examination of the record: She had xxo interest to subserve by so doing, axxd the registry of Artigues’ mortgage was no notice to her. True it is that she was cited as co-warrantor in the suit of Boyer vs. Joffrioix, but she in turn cited A. L. Boyer, And oxx Artigues’ exception both' were dismissed. It is also true that the plaintiff was again cited ixxto court in Boyer vs. Amet, but she in turn cited A. L. Boyer, and oxx his exceptioxx he xvas discharged. If effect be givexx to the judicial notices furnished the plaintiff by those suits of her veixdor’s evictioxx, and of the possible loss the same might cause her, it also shows that she did all iix her power to bring the matter to the notice of the defendant, aixd if reparation had been thereixx attainable for her he is responsible for her failure to secure it.

If such a citatioxx does ixot constitute, iix strictness of law, a legal interruption of prescription, in the sense of R. O. O. 3513, it does constitute an equitable estoppel against the defendant.

But we need not go to the exteiit of deciding' either, as we think other grouxids control the questioix fully, and clearly demonstrate that plaintiff possessed no actioxxable right for the recovery of damages ex delicto, against the defendant, until final judgment had been rendered against her.

In confirmation of this proposition — if confirmation were xxeeded — • it is only necessary to refer to the defexxdant’s exceptioxx of prematurity of action, which is predicated on the ground that the plaixxtiff had no right of action until she had paid the judgment of J. A. Boyer. In answer to that proposition we said that plaintiff’s right of action arose as soon as that judgment liquidated the amount of the loss he had sustained in consequence of eviction.

Now while it is true that those exceptions were propounded in the alternative and the rejection of one can not be urged as a plea of res judicata or estoppel against the other; yet our finding the date of the judgment to be the time her cause of action arose, is a reason why we should reject defendant’s plea of prescription. The plea is not good.

VI.

Various other exceptions and pleas were urged in the court below, but as they are not argned in brief, we will pass them by.

VIL

On the Merits.

The main question discussed in the brief of appellant’s counsel is “that defendant’s title of May 18, 1878, was valid,” etc., and in verification of that statement he cites the fact that plaintiff received and was the beneficiary of the price of ¡¡¡>1305 Bielkiewiez paid at public sale for the property, which was only relatively null.

Counsel then employs this expression, viz:

“ The expression of ‘return of said land to the heirs ’ is equally ineffective, for in addition to the want of description and identification, it must not be lost sight of that this expression was always qualified by a reservation of defendant’s right to a return of money, showing conclusively that nothing was ever intended by him but an unexecuted agreement to convey land upon the performance of something by the intended grantees. This is enforced by the communications of S. R. Thorpe, Esq., and Hon. Aristides Barbin, offered in evidence by the defendant and excluded on objection, but attached to the bill of exception found at page 171 of the transcript.” Brief, p. 40.

This reference is made to the arbitrator’s award and its effectupon his title. By this means he seeks to meet and defeat plaintiff’s charge of simulation, and lay the foundation for his claim in reconvention. In other words, as stated in answer to defendant’s plea of no cause of action, the substance of his claim is that his title is to be viewed as one that is relatively null, and his consent to the arbitration proceedings as tantamount to a promise of sale, the execution of which can only, be enforced by a suit for a specific performance.

We have decided otherwise. Boyer vs. Joffrion, 40 An. 657; Boyer vs. Amet, 41 An. 721.

But, as those decisions do not bind the defendant, A. L. Boyer, who was no party to them, we will treat the question as res nova and discuss it again. Por this purpose we may briefly summarize the following facts, as'they appear of record, viz:

In 1881 the parties to this litigation entered into an agreement to compromise their differences. It is premised by the statement that, in order to dispose of all differences and disagreements between the undersigned heirs of the succession of Palmyra Boyer and Eugene Amet, growing out of the settlement of said succession, and the administrators and tutors of said heirs, and in order to finally settle said succession without litigation, the parties hereby agree (1) that. A. L. Boyer returns to saidheirsthe thirty-seven and one-half acres of land bought byjiim in 1878, and that said sale to him is hereby annulled, reserving (to him) all rights he had, or may have had, at the time of the sale of said land.”

2. It is further stated “that the within submission shall have the force and effect of a transaction or compromise entered into for the purpose of avoiding litigation.” This agreement was carried into effect by the award of the arbitrator.

The following facts are thereby established, viz: (1) that A. L. Boyer returned the land to the heirs; (2) that the sale to him was thereby annulled; (8) that “ all rights he had at the time of the sale of the land’ ’ are reserved to him.

This is clearly equivalent to a retrocession of the land to the plaintiff as sole heir of the succession of Palmyra Boyer. A retrocession means the restitution of an ancient title to a true owner. Such an act confers no new title; it merely recognizes and confirms a previously existing title in another. R. C. C. 2272, et seq., Payne vs. Nowell, 41 An. 852.

The title is thereby necessarily recognized as having been in the succession of Palmyra Boyer, and from it transmitted to plaintiff as heir. The effect of that arbitration was such as to exclude all countervailing proof, and its recitals are the final and conclusive evidence, of what the submission was, and no other proof is admissible against it, or in explanation of it. Lampkins vs. Railroad Co. 42 An. 997; Colhoun vs. Lane, 39 An. 594.

The arbitration and compromise in this case was for the object of preventing litigation, and not to put an end to a lawsuit. R. C. C. 3071.

The measure of damages which plaintiff has suffered is the amount she has been adjudged to pay her vendee on account of the loss she has suffered by eviction under the mortgage of Artigues and such additional sums as she may be able to prove. The reputed price paid by Bielkewicz at probate sale, $1805, or that for which the latter ostensibly assumed to sell to the defendant, are not controlling. In the arbitration proceedings nothing was said or proved on that score. Nothing was decided by the arbitration either. In this case, in which the alleged fraudulent simulation of the latter’s title is laid as a foundation stone, none of the parties take the stand as witnesses, and no parol proof is adduced on the subject. We are of the opinion that the compromise and arbitration are sufficient to support plaintiff’s charge and ancient, primordial title, and she is consequently entitled to the affirmance of the judgment in her favor, but the evidence does not justify an increase of the amount allowed. The defendant’s reconventional demand must be considered as having been'rejected as of non-suit for want of any proof to sustain it.

On the whole our conclusion is that the proof in the record abundantly warrants the affirmance of the judgment as rendered.

Judgment affirmed.

On Application por. Rehearing.

(a) The first ground assigned in defendant’s application is, that the.title he derived through Bielkiewicz, from the succession of Palmyra Amet, was not a simulation, for the reason that he actually and really paid therefor $1805, which the plaintiff received and still retains, and as the counterpart of that statement counsel refers to the evidence of the defendant and Bielkiewicz on that subject in support of the defendant’s reconventional demand for that sum.

On page 18 of defendant’s original brief we find this statement, viz:

At the trial the only evidence offered by plaintiff to sustain the charges of fraud in the judicial sale of May 18, 1878, was the testimony of M. M. Dufour, given against objection. His statement confiicted with the prooes verbal and the testimony of Bielkiewiez and A. L. Boyer. The remainder of the plaintiff’s case was made up of documents heretofore recited and of specific offers of the judgment, writ of execution and return thereon in suit No. 7951, being Jacques A. Boyer vs. Voley Amet. These do not show that a dollar was ever paid upon that judgment, nor is there any other evidence in this record which shows that this plaintiff has ever made any payment upon it.
“On the part of defendant the following evidence was offered: Petition and order for family meeting to advise as to sale of property of Amet minors; prooes verbal of family meeting, homologation thereof and order of sale; Appraisement of the property, that of the land being $1305; account of J. A. Boyer, tutor of Voley and Albert Amet; account of A. L. Boyer, tutor of Laura Amet; answer and call in warranty in suit No. 7794, being J. A. Boyer vs. Artigues and the Sheriff; citation to A. L. Boyer and return in said suit; certificate of date of fifing of mandate of the Supreme Court in said suit.”

Relying upon this summary by defendant’s counsel, the testimony to which our attention has been for the first time attracted, in the present application, escaped notice in our original investigation and report.

But, in our opinion, this testimony does not improve the defendant’s case.

The substance of it is as follows, viz:

1. That M. M. Dufour attended the public sale and bid in the property at the request of the defendant, who furnished him some money for that purpose.

2. That, instead of taking title in his own name, he (Dufour) transferred his bid to Bielkiewiez, at the latter’s suggestion, and turned over to him the money he had received from the defendant, to whom Bielkiewiez was to transfer the property.

3. A. L. Boyer says that “at a former sale (he) was authorized to buy in (the property) for the heirs, and he thought (he) was taking the same position in this instance; that he must have given Mr. Dufour, for that purpose, $700 or $800.” But, notwithstanding this, statement, he subsequently said, and in the same connection, that “ he bought the property from Bielkiewiez, and paid him for it the amount mentioned in the sale from him to (witness),” i. e., 81560.

4. Bielkiewicz says Dufour bid in the property, and that afterward he called his (Dufour’s) attention to the fact that there were judgments against him, and said (to him) “ you had better give me your bid;” and he consented and turned over to him (witness) the money the defendant had furnished him, and paid the amount of his bid, 81305, to J. A. Boyer, tutor, he (Bielkiewicz) furnishing the difference; and on the same day conveyed the property to the defendant for 81560, And, in the same connection, he said, “After the (act of) sale was passed I returned him (defendant) the same money I took from Dufour.”

There is an irreconcilable conflict between these statements; and taken altogether, it is utterly impossible to say who paid for the property, or what was paid for it, or with whose money the price was paid. And to further confuse the matter, J. A. Boyer, tutor and administrator, when interrogated fails to state that he received the money for the property sold.

But even conceding that the money was paid, the defendant does not insist that he acquired the title. And in so far as the restitution of the sum expended is concerned, the defendant’s mortgage in favor of Artigues sent the property to sale, and it realized over 81900, and this sum inured to his benefit and overpaid him arid nothing is due.

(t>) The date from which the twelve months’ prescription begins to run is correctly stated as that of the final decree of this court in July, 1889. The judgment of the District Court, it is true, was affirmed on appeal, but during the pendency of the defendant’s suspensive appeal its effect was held in suspense and it was not exigible. Had the defendant instituted suit after her appeal had been taken, it would have been considered as an abandonment of it and possibly defeated her just demands against the defendant altogether.

On other grounds nothing further need be said.

With reference to the application of the plaintiff and appellee for a rehearing for the purpose of urging her demand for an increase of judgment in her favor, it need only be said that our decree simply affirms the judgment of the District Court, and its decree, was deliberately and carefully rendered. There is no appearance of it having been the result of accident or oversight. In the court below there was no suggestion of the kind made by plaintiff’s counsel.

•There was no motion made for a new trial and plaintiff did not appeal. In this court no error apparent in the record is suggested on which we could act in making the desired change. The decree of the judge a quo is not to be lightly considered or changed for other than substantial considerations and when injury has been sustained.

Rehearing refused.


source: Caselaw Access Project

author: McEnery, J.

license: Public Domain

text:
    No. 10,758.
    Peter Labouisse vs. Orleans Cotton Rope and Manufacturing Company.
    Applications for continuances on account of the absence of one of the parties to a suit, is a matter loft to the sound discretion of the trial judge, and will not bo interfered with unless manifestly unjust.
    Where a ease is allotted to one division in the Civil District Court, parish of Orleans, and a judge in another division talces jurisdiction and the parties make no objection, it is too late to urge the matter in this court.
    A solidary oo-dehtor can not compete with his creditor to prevent payment to the latter of the solidary debt out of the proceeds of the property of the other debtor.
    APPEAL from the Oivil District Court for the Parish of Orleans. Monroe, J.

      ■ Bayne, Denigre & Bayne for Plaintiff and Appellee:
    The transcript made up under tlie direction of opponent’s counsel, purporting to embrace three several parts, is not aided by any assignment of errors, and is so confused and incomplete that the appeal should be dismissed. Miller vs. SUctwell, 88 An. 108; Samuels vs. Brownell, 88 An. 84.
    The opposition and claims of the appellant were dismissed, and the judgment of the court a gxm dismissing the same (as showing no cause of action) was aflirmed by this court, and is conclusive of the controversy herein. Opinion Book Xo. — P* —■
    Plaintiff Labouisse and the Canal Bank sued the Orleans Rope Manufacturing Company, of which Mr. Lallande was president, and obtained judgment, upon upon which they issued execution and sold property of their debtor to pay the same. After these judgments were obtained the syndic of Lallande's creditors filed a petition asking for judgment against the Rope Manufacturing Company upon the same notes which belonged to Labouisse and tlie Canal Bank, and upon which the syndic had no claim. Mr. Lallande, as president, confessed judgment in favor of his syndic, and the syndic now claim to be paid by preference over the plaintiff and tlie Canal Bank from the proceeds of sale realized under their executions. The statement of the-claim refutes it. 88 An, R0; 11 An. 25)8.

      W. S. Benedict for the Syndic and others, Defendants and Appelants, cited:
    36 An. 519; 30 An. 1332; 40 An. 149.

      Walter S. Finney and Henry C. Miller for the Oanal Bank, Plaintiff and Appellee:
    1. A judgment will not bo disturbed as between persons not parties to the suit.
    2. A continuance on the ground of absence of party must be ashed in limine. It is "■ discretionary on the part of the trial judge. 36 An. 716.
    8. ' Objection, suggested for first time in appellant’s brief, to jurisdiction of onG division of Civil District Court because a case is allotted to another must be raised in limine. The proceeds of sale were realized under writs of plaintiff Rabouisse and Canal Rank from seizure made at the same time. See p.-33 An. 1421; 39 An. 302; James vs. Meyer, 42 An.
    4. A solidary co-debtor can not compete with his creditor to proventthe payment to latter of the solidary debt out of the proceeds of the property of the other co-debtor.

      ó. A party can not confess judgment as “ president ” in his own favor as an individual to the prejudice of his judgment creditors.
    6. A confessed judgment by a party as “president” in favor of himself individually on claims due to, others and by them already merged in judgments against the corporation of which lie is president is a nullity.
   The opinion of the court was delivered by

McEnery, J.

The plaintiff and the Oanal Bank, judgment creditors of the defendant company, issued executions on their judgments, seized and sold the property of the company. These judgments were obtained on notes upon which J. B. Lallande was the endorser. Lallande was the president of the company. He went into insolvency.

After these judgments were obtained, Lallande, president of said company, confessed judgment in favor of Eugene Soniat, the syndic of this insolvency, against said company for a large amount.

The confession of judgment, which was rendered executory, was predicated upon two items of indebtedness; the endorsements upon which the plaintiff and the Oanal Bank had obtained judgments, and for advances made to the defendant company by Lallande.

The plaintiff and the bank each took a rule on the sheriff to distribute the proceeds of the sale of the property seized and sold under their executions.

Eugene Soniat, syndic, filed a third opposition, claiming that by virtue of the judgment rendered on the confession of Lallande in favor of his insolvency and against said company, he, as syndic, had a priority on said proceeds over the seizing creditors.

The rules were made absolute. Soniat, syndic, appeals.

The rules were fixed for trial and continued to another day, when they were tried. The syndic complains of the denial of his application for a continuance. The grounds alleged are that he was an important witness and that he was absent on business in a neighboring court on behalf of the insolvency.

The continuance was applied for during the course of the trial.

Had the syndic been present and testified, his evidence could have no material bearing on the case. He could' not establish an indebtedness when none existed, nor could he create a privilege when the law allowed none.

The trial judge, however, disposes of the whole matter, in his statement, where he says the continuance was applied for to delay the ease. In such case the discretion of the trial judge will not be interfered with. Cameron vs. Lane, 36 An. 76.

The petition on which the confession of judgment was based shows that the defendant company owed Lallande nothing as indorser. He did not pay the notes.

The account annexed to the petition is not a privileged claim.

Lallande, as the indorser of the notes given by the company to the plaintiff and the Canal Bank, could not compete with them out of the fund realized from the sale of the company’s property, as the company was a solidary co-debtor with him.

The Mutual National Bank was also a judgment creditor of the defendant company. The syndic complains that the bank was not made a party to the note. This is a matter that does not concern the syndic. It was the privilege of the bank to assert its own rights.

It is suggested in the brief filed by the syndic that, as the seizure was made in Division B of the Civil District Court, no other division had jurisdiction to regulate the seizure.

The Civil District Court had jurisdiction of the case. The divisions are parts of the. same court. The objection made comes too late. It ought to have been urged in limine in the lower court. Perine vs. Riley, 39 An. 303; James vs. Meyer, 43 An. ante, 38.

Judgment affirmed.


author: Breaux, J.

text:
    No. 10,808.
    Charles K. Burdeau, Tutor, vs. J. C. Davey, Syndic, et als.
    1. A tutor can not legally appropriate to his own use the property-of minor children placed in his charge by the court, nor can creditors recover property of minors and have it brought into an insolvency because the tutor has transacted with reference to the property as if his o\vn.
    It had not been converted; there was no question of identification; it is therefore the property of the minors. *
    2. An order can be made that minors’ funds be deposited and their interest protected until the question of responsibility and fidelity to a trust is considered and decided and such decrees a2-e made as their interest demands.
    8. Defendants having severed in their defences and having joined issue and denied plaintiff’s right, the title to the property having been established contradictorily with them, are ordered to pay the costs.
    APPEAL from the Civil District Court for'the Parish of Orleans. King, J.

      Geo. L. Bright for Plaintiff and Defendant cited: C. P. 157, 551, 152; 9 An. 810.

      Gurley & Mellen, Howe & Prentiss, and Bernard MeCloskey for Defendants and Appellants:
    1. Payment to the tutor of a debt due the minor discharges the debtor.
    2. Where a trustee invests in his own name trust funds, the cestui que trust can not elect to claim the pi-operty in which' the funds have been invested, instead of holding the trustee personally liable, where third innocent persons would be injui-ed by such election. Case, Receiver, vs. Beauregard et als., 1 Woods, p. 25.
    8. 'Where a tutor invests in his own name funds of a minor, the minor can not exercise the right of election, even when the rights of third innocent persons would not be affected thereby. 1-Iis right of election would not arise in any case until his majority, 1-Iis only claim during minority is against his tutor as his debtor for the amount of funds misappropriated. Calmes vs. Carruth, 12 Rob., pp. 660, et seq.

    4. AVhere the tutor mates a surrender, the property standing in his name, though it may have been acquired with the funds of the minoi-, “passes to his creditors by his surrender,” and the minors are only his creditors. Calmes vs. Carruth, supra.

   The opinion of the court was delivered by

Breaux, J.

This suit is brought by plaintiff as tutor to have his children declared the owners of 2-55 interest in the firm of Joseph A. Aiken & Oo., and of interest in a certain contract made by Joseph A.‘Aiken with the city of New Orleans, whereby he originally acquired the revenues of the wharves and landings within its limits.

This contract was transferred by Joseph A. Aiken to the firm of Joseph A. Aiken & Co.

The first contract with the city, transferred as just stated, bears date May 30, 1881. It was modified December 7, 1881, and was extended five years from 20th"'May, 1886.

Joseph A. Aiken was the grandfather of these minors.

At his death their'mother as an heir acquired an interest in th'e firm and in the contract. On the 3d day of March, 1882, she appointed her husband, C. K. Burdeau, her agent. In the power of attorney it is set forth, with some particularity, that she is the owner of the interest before mentioned in the firm of Joseph A. Aiken & Co.

The act appointing the husband agent is'signed by the other members of the firm.

The mother of these minors died on the 16th day of September, 1882.

In the inventory of her succession this property is described, appraised, and the right is carried as belonging to the minors.

They were placed in possession as heirs by an order of court.

The plaintiff was appointed tutor of his minor children.

Two acts of partnership were entered into. There is no question about the interest of the minors in the first.

In 1885 the term of the lease was extended five years from May, 1886, and the right was secured by Joseph A. Aiken & Co. to collect wharfage dues during the existence of the extended lease.

From this time the business was managed by the second partnership.

In the act of extension as wrell as in that of partnership, after the extension, the plaintiff is a party personally and not as tutor.

The new firm was composed of the same members as the old, with the exception of the difference in name just mentioned and with the addition of a new member, George H. ICirke.

The property and rights of the new firm were the same as those of the old firm. The plaintiff personally did not contribute other or new capital, nor did any of the other members of the firm. The cash belonging to the old firm was used in the new firm. The old books were closed and a new set opened.

In the change it became necessary, in support of the entries, for-the tutor to give receipts' for certain moneys and amounts representing property of his children in the old firm. Afterward he personally received and receipted for the dividends.

On the 22d day of April, 1889, Burdeau made a surrender of his property to his creditors, and recites in his schedule that 2-55 interest in his name, in the firm of Jos. A. Aiken & Oo., wharf lessees, belongs to his minor children.

He also charges himself with certain amounts he collected for his children and which were expended without any order of court.

Part of this amount is alleged to have' been expended for the minors and a part appropriated to his own use. After the schedule had been filed, containing the declaration that bis minor children inherited this interest in the firm of Jos. A. Aiken & Co., from the succession of their mother, he transferred it to a creditor by written order.

The account of the syndic filed in due time shows no assets to pay ordinary creditors.

Two firms, creditors, oppose the account and charge that the syndic failed to take needful steps to recover the interest of the insolvent in the firm of Aiken & Co. The syndic’s account was approved by the court, the oppositions of these creditors were dismissed and their rights were reserved to institute suph proceedings as needful to bring into the insolvency any assets belonging to the insolvent.

At their instance the syndic brought suit in accordance with, suggestion in the reservation of this judgment of dismissal and notified the firm of Aiken & Co. to retain the interest before stated., the revenues and profits, as the property of said Burdeau.

Thafirm has complied with the notice,and thereupon plaintiff brought suit against the said firm, the syndic and the creditors for this interest, and in addition sues the latter for damages in the sum cf fifteen hundred dollars for prosecuting the insolvent with a view of forcing him to settle their claims to the detriment of the minors, in having charged him with fraud and other causes founded in alleged malice and wantonness.

The defendants have joined issue with the plaintiff.

The statement of facts declares that the issues are with reference to the ownership of the 2-55 interest in the said firm and the revenues, whether in the children or in their father. If the children’s, the question of damages claimed arises.

The District Court decided that the interest belongs to the minors and orders J. A. Aiken & Co. to invest that interest in bonds of the State of Louisiana or real estate in the parish of Orleans.

That the dividends held in trust by Albert Baldwin belong to the minors, and orders that he be accordingly notified.

The minors’ demand for damages against the two firms, creditors, viz: Marx Levy & Bro. and E. Oonery & Son, is dismissed and the syndic is condemned to pay all costs.

From this judgment all the parties have appealed.

The defendants seek to establish an absolute similarity between this case and that of Calmes vs. Carruth, 12 Rob. pp. 660, et seq.

In the latter case the title to a slave was declared to be in the father, “ although he appropriated perhaps the funds belonging to the children to purchase her.”

In the case at bar the title of the minors was not divested and did not pass to the creditors of Burdeau by his surrender. There was no purchase on his part.

He could “not either personally or by means of a third person, purchase, lease or hire the property of the minor, or accept the assignment of aüy right or claim against his ward.” O. O. 337. The right of the minors remains. The substitution of the personal name of the tutor could not have the effect of divesting their ownership.

The record of the court establishes their ownership; the subsequent acts of the tutor could not have the effect of annulling the right this record shows.

In the case of Receiver vs. Beauregard and others, 1 Woods, p. 125, quoted by defendant’s counsel, it is said:

“Where trust property is converted, and the proceeds can be-identified, it may undoubtedly be followed by the cestui que trust, and brought back to be appropriated to its original purposes. Money of a bank, embezzled or misappropriated by its officers, may undoubtedly be followed up in the same way if the money itself or its proceeds can be identified, and no innocent person is injured by the recovery. But supposing the money now in question could be thus appropriated, the impossibility of identifying it and of doing justice to third parties renders the application of the principle impracticable.” The able and ingenious counsel for the defendants will argue from the premises that the property has been converted and that the minors have received through their tutor all that is due to them, and therefore have no interest in Jos. A. Aiken & Oo.

There was an attempt made by the tutor to divest the children of their ownership, but the property remains; it has not been converted, and is susceptible of absolute identification. It is a part of that firm; the illegal declaration at one time of the tutor to the contrary has not effected any change. If there had been an absolute sale made, or the funds of the minors had been realized and afterward had been so applied as to escape identification, the decision would apply, but in the present case no such condition arises.

Our brother of the District Oourt, actuated by a commendable desire to protect the interest of the minors, ordered certain investments to be made and funds to be retained.

The decree in this respect will be amendéd by directing that their funds be deposited in bank and that their other property remain in the possesion of said firm until in a court of competent jurisdiction, at the instance of the under tutor, who is directed to take legal proceedings, decrees and orders shall have been made as the interest of minors require.

sjt :■{ ¡¡s jjs í¡< # %

With reference to damages:

The plaintiff’s allegation of malice against him could not give a right of action against the minors.

The courts are open to all creditors. In this case, owing to the changes attempted by the plaintiff in his interest, there was a probable cause — particularly as it is shown that the creditors sued acted under the advice of counsel, who conscientiously thought that the interest of the minors had passed from them to their tutor.

In the matter of costs complained of:

The right of plaintiff was denied, not only by the syndic, who might have been joined by the other defendants to have the property brought in the insolvency, but by each defendant separately in his own behalf.

It is adjudged and decreed that the judgment appealed from be amended, and it is therefore ordered that the funds be deposited in bank and that the other property of the minors remain in the possession of the firm of Geo. A. Aiken & Co. nntü orders and decrees are made by a competent court for the protection of the interest of the said minors, and that defendants pay costs of both courts.

As amended judgment affirmed.