text:
    No. 11,744.
    Tutorship of Henry and Adelbert Crane, Account of Mrs. A. S. Crane. Opposition of the Two Emancipated Minors.
    A policy of life insurance made payable to the wife and children, of the assured inures to his surviving widow and to his children in equal portions, share and share alike.

      'The share of a minor in the money collected upon such a policy is not an asset of the community, but of his separate estate; and it does not pass under the surviving widow’s usufruct, though it becomes subject to her administration, as tutrix.
    In the event it becomes necessary for the protection of the minors’ interest in the property of the dissolved community, as well as for the preservation of the widow’s usufruct, that the tutrix should use and expend the insurance money in discharge of pressing community debts, she is chargeable with legal interest as on money loaned at interest, from date of use to date of accounting.
    Such interest constitutes the revenues of the minors on which the ten per cent, commissions of the tutrix is to be calculated.
    The expense of an account is at the cost of the emancipated minor.
    A PPEAL from the Seventh Judicial District Court for the Parish of Madison. Montgomery, J.

      Stubbs & Bussell for Accountant and Appellant.

      M:errick & Merrick and A. L. Slack for Appellees.
    Argued and submitted, March 27, 1895.
    Opinion handed down, April 22, 1895.
    Opinion refusing rehearing, May 20, 1895.
   The opinion of the court was delivered by

Watkins, J.

Albert E. Crane died in August of 1871, leaving a widow, Abigail S. Crane, and two minor children — Harry McP. and Adelbert E. Crane, opponents herein — as issue of his marriage, surviving him.

Widow A. S. Crane accepted the community of acquets and gains and took possession of the entire estate as surviving 3pouse and as usufructuary, and qualified as natural tutrix of the minors, and caused an inventory to be taken.

The property inventoried was all community, and consisted of a cotton plantation in the parish of Madison, a small amount of personal property, and a large amount of open accounts against plantation laborers, the appraised value of which aggregated about thirty-four thousand dollars.

The plantation was heavily mortgaged, and the deceased was otherwise largely indebted at the time of his death.

The deceased carried a policy of life insurance in the North American Life Insurance Company of New York for den thousand dollars, which was made payable to Abigail S. Crane, wife, and the children of Albert P. Crane;” and, after his death, same was collected by the surviving spouse, and used by her in the payment of community debts and succession charges, this amount not being carried into the inventory as an asset of the community.

At the time of the father’s death the elder child was six years old, and the younger was an infant of one year of age; consequently the elder arrived at his majority in 1886 and the younger in 1891.

About the latter date the two emancipated minors proceeded by rule against their mother and natural tutrix for an account of her tutorship; and when same was filed they opposed it on several grounds.

They likewise called upon her for accounts of her administration and of her usufruct, and she filed the same, and they were likewise opposed.

All of the foregoing accounts and oppositions are contained in the' transcript before us, but our examination will be restricted to the two accounts of tutorship, as there is in the record an agreement of counsel to the effect that nothing else shall be submitted — thus omitting from present consideration all questions appertaining to the widow’s unexpired usufruct and the settlement of the succession of the deceased.

Being usufructuary of her deceased husband’s share in the community property during her widowhood, the widow was entitled to the fruits and revenues thereof, without any liability to account therefor; and being subject to her usufruct, the property necessarily remained under her dominion and control, and freed from any right of interference on the part of the heirs during its existence. Hence, the question of her expenditures in the satisfaction of community debts and charges were properly pretermitted from the discussion, as being premature. The amount thus expended for account of the heirs of the deceased can not be adjusted until the proper time for her to account has arrived; and that question must be eliminated from the present discussion.

It must be limited exclusively to the money which was collected on the policy of life insurance, considered as separate and distinct from the community, and from that fact the two following necessary consequences flow, viz.:

1. That the surviving widow was not entitled to its gratuitous use and enjoyment.

2. That she is liable to opponents, as emancipated minors, for the restitution of the capital and an accounting for its interest or revenues.

This is not questioned by the accountant’s attorneys, but they do insist upon her right, first, to use and apply the annual interest on the sums due in paying her commissions of ten per cent.; second, to reimburse herself therefrom the expenses of their support and maintenance before and alter their majority; third, to withdraw from their capital a sufficient amount to reimburse herself the amount of her expenditures in excess of the interest; fourth, to retain one-half of the remaining balance as her share of the proceeds of the life policy.

These are the disputed and contested questions in the case.

On these issues judgment was rendered, decreeing that the respective shares of the two children of the deceased in the policy of life insurance of ten thousand dollars was three thousand three hundred and thirty-three dollars and thirty-three and one-third cents to each, whereas the accountant charged herself accordingly.

It further decreed that, in respect to the item of revenues of said fund, H. M. Orane, on his separate account, have judgment for interest at the rate of five per cent, per annum from the 1st day of January, 1872, the date the insurance was collected, up to the 20th day of January, 1886, the time at which he arrived at the age of majority.

It further decreed that, in respect to the item of revenues of said fund, A. F. Orane, on his separate account have judgment for interest at the rate of five per cent, per annum from same date up to the 22d of July, 1891, the date at which he arrived at the age of his majority.

It further decreed that the accountant be entitled to receive, and to credit herself with “ ten per cent, on the aggregate annual revenues of said above sums, under Item I of the credit side of her accounts;” and it further ordered that the amounts claimed for support, maintenance and education of said opponents, under Item II of said credit side of said accounts be reduced to one hundred and fifty dollars per annum — that is to say, one hundred and fifty dollars from the 1st of January, 1872, up to the respective majorities of ■the two children as above set forth.”

It also decreed that an allowance of one hundred and twenty-five dollars, as compensation in the way of attorneys’ fees, was a proper ■charge against each of the opponents, and that said sums were proper credits in her favor on her accounts.

It further decreed that the amount of six thousand eight hundred ■and seventy-one dollars, which is charged against H. M. Crane, and the amount of five thousand and sixty-four dollars and ninety-four ■cents, which is charged against A. F. Crane, be rejected and disallowed.

To the foregoing particulars the following general statement is ■added:

“It is further ordered and decreed that, after the statement of this judgment shall have been made it should appear on striking a balance, the judgment should entrench upon the respective capitals •of said minors, to-wit: Three thousand three hundred and thirty-three dollars and thirty-three and one-third cents, that so much thereof is annulled, it being decreed that the said heirs shall each •receive hereunder said one-third interest in said policy, with five per cent, interest from this date.”

It finally recognized and gave effect to the legal mortgage of the ■opponents upon the real property of the tutrix, .for the said respective net amounts, with legal interest from the date judgment was rendered.

From that judgment the tutrix and accountant appealed; and, in this court, the opponents appeared and answered, and requested that the judgment in.their favor be so amended (1)' as to allow them interest on the respective amounts found due up to the date of filing the accounts of the tutrix, the 9th of April, 1894; (2) so as to reject the commissions awarded in favor of the tutrix and accountant; (8) ■by rejecting in toto the several sums of one hundred and fifty dollars annually in favor of the said tutrix and accountant; and (4) by reducing the amount of the compensation allowed for attorneys’ fees to .just one-half thereof.

And, as thus amended, their prayer is for the affirmance of the judgment.

By a reference to the account rendered by the tutrix of the tutorship of Adalbert L. S. Crane, it will appear that she has charged herself with two thousand five hundred dollars as the amount of his share of one-fourth of the life insurance policy; and the further sum of two thousand seven hundred and ñfy dollars as “the revenues thereof,” that is to say, five per cent, per annum interest on that sum from the 1st of January, 1872, “ twenty-two years.”

It further appears that she credits herself on the account with the following sums, viz.:

(1) Commissions of ten per cent, on annual revenues.................................. $275 00

(2) Expense of clothing, schooling and maintenance, for thirteen years at $200 ....................................................................... 2600 00

(3) undry items of cash furnished opponents since the 1st of September 1885, aggregating ..................................................................... 5064 97

(4) Attorneys for preparing and filing account........................................ 125 00-

The account of the tutorship of Harry McP. Crane is exactly similar to the foregoing, varying only in respect to details.

As the averments of the oppositions run upon the lines of the judgment appealed from, and the answer of the appellees, it is unnecessary to furnish any additional details thereof.

I.

It has been settled by repeated decisions of this court, that money which is collected after death of the husband and father, upon a policy of life insurance made payable to his wife and children, is not an asset of the matrimonial community but of their separate estates.

Succession of Bofenschen, 29 An. 711; Succession of Hearing, 26 An. 326; Succession of Clark, 27 An. 269; Pilcher vs. New York Life Insurance Company, 33 An. 322; Succession of Kugler, 23 An. 455; Putnam vs. Insurance Company, 42 An. 739.

This principle is recognized by the New York court, that State being the habitat of the insurance company.

Barry vs. Bruno, 71 N. Y. 62; Barry vs. Life Insurance Company, 59 N. Y. 587; Dalton vs. Wilmer, 52 N. Y. 312.

See also: Lemon vs. Life Insurance Co., 38 Conn. 294; Life Insurance Co. vs. Burroughs, 34 Conn. 305; Chopin vs. Fellows, 36 Conn. 132; Life Insurance Co. vs. Brant, 1 Ins. Law Journal (Mo.,) 138; Burroughs vs. Life Assurance Co., 97 Mass. 359; Knickerbocker Life Insurance Co. vs. Wiltz, 99 Mass. 159.

The last expression of this court upon the subject is found in Stuart vs. Sutcliffe, 46 An. 240.

It thus appears that the interests, or shares of the two emancipated minors were assets of their separate estates, respectively, and consequently they did not pass under their mother’s usufruct, but they did pass under her administration as their natural tutrix. C. C. 337.

Being charged under the law with the care of the persons of her wards, and entitled to represent them “in all their civil acts” (C. C. 337), the natural tutrix was competent and authorized to collect the insurance money, on joint account for them and herself, and “to administer their estates as a prudent administrator would do.” Ibid.

The tutrix became thus lawfully possessed of the insurance money, but she incurred the consequent legal obligation of making restitution and account to her pupils at the dates of their respective majorities.

This is not denied on either side, but a difference has arisen between opponents and accountant with regard to the amount of their respective shares of the insurance money — the widow claiming half and opponents two-thirds.

In not one of the eases referred to was the question presented or decided. But it has been decided frequently in other jurisdictions.

Por instance, in Jackson vs. Nelson, 17 N. E. Rep. 529, it was decided as follows, viz.:

“ It is plain Mrs. Nelson is not entitled to hold this money absolutely. Even under similar language in a will the children would have a right which they could enforce in a court of equity. Proctor vs. Proctor, 141 Mass. 165; 6 N. E. Rep. 849; Loring vs. Loring, 100 Mass. 340; Williams vs. Bradley, 3 Allen, 270, 281, 285; Raikes vs. Ward, 1 Hare, 445; Crockett vs. Crockett, Id. 451; In re Harris, 7 Exch. 344. There is nothing to show that it was intended that the sums to be devoted to the benefit of the children should be, in the first instance, determined by her in her discretion, subject to accountability. There are no words saying it shall be at her disposal for their benefit, or that she is to maintain or support them * * * In the purposes of the Royal Arcanum children are placed on an equality with widows. There is nothing showing any intention to have a permanent or continued trust. The words of the certificate are simple. She is to take the money ‘ for the benefit of herself and the children.’ In many of the cases under wills there was something to show some discretion reposed in the primary donee, or some duty of support or some power of disposal; but here there is nothing of the kind. Several of the eases under wills tend strongly to show that, under language like this, the widow and the children would be entitled to share equally.. Jones vs. Foote, 137 Mass. 543; Loring vs. Loring, 100 Mass, 340; Proctor vs. Proctor, 141 Mass. 165; 6 N. E. Rep. 849; Jubber vs. Jubber, 9 Sim. 503. In the present case, in view of the circumstances, and of the bald language used in the certificate, we can not go behind the plain words, and are of the opinion that Mrs. Nelson and the three children are each entitled to one-fourth part of the money.”

It will be observed that the terms of the certificate of membership that was involved in that case are almost identical with the terms of the policy of insurance that we have under consideration here.

In Felix, Guardian vs. Ancient Order of United Workmen, 1 Pacific Reporter, 281, the Kansas court held that a policy of life insurance which provides that the insurance money shall “ be paid to the wife and children” of the assured “ without designating in what portions the same shall be paid * * * should be paid to his wife and children equally. Each should receive an equal share, or, in other words, each should receive one-fourth of such fund. This is the natural construction of the language.” In that case there were three children of two different marriages.

In Hamilton vs. Pitcher, 53 Mo. 334, it was held that a deed “to Mrs. Pitcher and her children” passed a title to them as grantees, and that “they took as tenants in common; id certum est, quod cerium reddi potest. Mrs. Margaret W. Pitcher being a tenant in common with her existing children, had a share in the lot, equal to one of the children.”

In Taylor vs. Hill, 56 N. W. Reporter 738, the Wisconsin court held:

“As to the shares which the widow and children are entitled to take under the policy, we are clearly of the opinion that in the absence of any designation in the policy of inequality in the shares all the beneficiaries shared equally.”

In New York Life Insurance Co. vs. Inland, 14 S. E. Reporter, 617, the Texas court announced a similar principle.

If we are to follow the course of the jurisprudence of other States —and there is no reason why we should not, upon a homogeneous subject, we must maintain the correctness of the judgment appealed from on this question.

There is no analogy between the principle stated and that governing the inheritance of forced heirs and the settlement of the legal community, under our Code; because in the former case the mother and surviving widow is not an heir; and in the latter, the death of the father only passes his undivided share in the property.

It bears a closer analogy to that controlling the universal legacy. R. C. C. 1606, 1609.

An examination of the decisions under those articles has not, however, developed any case where the point has been squarely decided.

In Succession of Jordy, the case of a donation mortis causa is stated, in which the bequest was in favor of “the surviving wife and minor children;” and the decision shows that the natural trftrix “ rendered an account of her administration and surrendered the property for a partition between her and the surviving heirs ” — but there is no showing as to how the division was made.

But in Walker vs. Barrow, 43 An. 863, is presented a title made to Mrs. Walker and her four children, and we held that it was one of only joint ownership.

Consequently our conclusion is to treat the question as res nova and align our decision with those decisions we have quoted from other States and affirm the judgment, recognizing the tutrix and opponents as entitled to equal shares of one-third to each in the proceeds of the policy of life insurance.

II.

We think it quite evident that there is due to opponents interest, at the rate of five per cent, per annum, from the date given as that when the policy of insurance was collected up to the date of filing these accounts, the 9th of April, 1894, instead of the dates at which the opponents arrived at their respective majorities.

If this was not the correct rule for computing the interest the tutrix would be exonerated from the payment of interest between those two dates. Indeed, the tutrix’ account with Adelbert L. S. Crane allows “twenty-two years’” interest on its face, and that carries the computation beyond his majority.

We can perceive nothing that should defeat the opponents’ claim to interest on their respective shares after their respective majorities.

III.

Opponents’ counsel insist that the tutrix should not be allowed commissions of ten per cent, on the amount of the opponents’ annual interests, on the ground, mainly, that they were not revenues, because she has used and consumed the entire capital, and that opponents’ claim was only an interest-bearing debt against her.

The law declares that “ the tutor may retain as a commission for his care and labor ten per cent, on the annual amount of the revenues of the property committed to his charge.” R. C. C. 349.

The Code declares that “the interest on money” is one of the “ civil fruits ” which belongs to an usufructuary. R. C. C. 545-547.

It necessarily follows that the tutrix is not obliged to look to the rents, income or interest of the assets of the community property to compensate her for “her care and labor” as tutrix; and the necessary corollary of the provisions of that article is that the interest on the separate money of opponents is its civil fruit, and constitutes “ the revenues ” on which the commissions of the tutrix are to be calculated.

The Code says that “ the damages due for delay in the performance of an obligation to pay money are called interest.” R. C. C. 1935.

The record shows that, at the time the tutrix collected the insurance money, there was a pressing necessity for its employment in the discharge of community debts in order to prevent the sale, and perhaps sacrifice, of the community property, and thus enable her to protect and preserve the interests of the minors, and her own as well, and also to protect her usufruct.

Here was a laudable and praise-worthy object.

Under such a state of circumstances the transaction is rather-to be viewed as an irregular investment of the money producing: interest, just as it would have done if it had been loaned on interest regularly.

We are disinclined to adopt counsel’s theory, but prefer to adopt and maintain that of the judge a qua in this respect.

IV.

We think the allowance in favor of the tutrix of one hundred and1 fifty dollars annually, for the reimbursement of her expenses in the. support and maintenance of the minors respectively, is but just and reasonable.

The Code declares that “ the expenses for the support and education of the minor ought to be so regulated that nothing decent or necessary shall be wanting to him according to his condition in life.” R. C. C. 350.

We think the judge acted in view of this wise and salutary rule in making that allowance, and we will not disturb his judgment in that particular.

V.

On the score of attorney’s fees there is nothing offered in the way of proof or argument to justify us in diminishing the amounts allowed.

VI.

Counsel for the tutrix insist upon the judgment of the lower court being so amended and increased as to allow her the sums claimed on her accounts, respectively, of six thousand eight hundred and seventy-one dollars against H. M. Orane, and five thousand and sixty-four dollars and ninety-four cents against A. E. Orane, in reimbursement of sums she had expended for their accounts.

These sums are largely in excess of the annual revenues of opponents, and the tutrix did not procure the authorization of a family meeting. Consequently the tutrix was without any legal warrant for making such large expenditures for their accounts. R. C. C. 350.

But counsel attract our attention to the fact that the sums charged include amounts expended for the accounts of opponents since they arrived at their majorities.

Her claim thus assumes the character of a quasi contract, and her attitude is changed to that of a negotiorum gestor, subjecting opponents to the resulting obligation of making reimbursement. R. C. C. 2300.

The investigation and-decision of this question lies outside of and beyond the domain of this settlement of accounts, and we will make our judgment one of non-suit, and refer its solution to the future settlement of the succession of the deceased.

VII.

The judgment puts the cost on the accountant, whereas the Oode declares that “ the account of the tutorship is given at the expense of the minor; the tutor advances that expense.” R. C. C. 359.

It is true that the accounts were only filed at the instance of opponents, but that is all the law obliged the tutrix to do. R. C. C. 357.

The judgment appealed from must be amended in the following particulars, viz. :

1. So as to charge the accountant with five per cent, per annum interest on the amount of the respective shares of the opponents from the date specified in the decree up to the 9th of April, 1894— date of filing her accounts.

2. So as to make the decree rejecting the credits on the accounts for amounts in reimbursement of expenditures by the tutrix for the maintenance and support of the opponents during their minority and after they became of full age, in excess of the annual allowance of one hundred and fifty dollars each, one of non-suit.

A.nd it is further ordered and decreed that as thus amended the same be affirmed at the cost^of the opponents jointly.

On Application por Rehearing.

It was the purpose and intention of our decree to leave open any and all questions affecting or appertaining to the final account and settlement of the succession of Adelbert S. Crane, as well as that of the community between the deceased and accountant.

With this statement the rehearing is refused.


source: Caselaw Access Project

author: McEnbry, J. Watkins, J.

license: Public Domain

text:
    No. 11,789.
    Leopold Fellman vs. Felix J. Dreyfous.
    The distinction does not exist iu the jurisprudence of Louisiana between words which are actionable in themselves without proof of special damage and words actionable only with reference to some actual consequential damage.
    Any words, written or spoken, which are calculated to injure another, may be the foundation of a suit for slander or libel.
    Whenever words have the slanderous meaning alleged, not by their own intrinsic force, but by reason of some extraneous fact, this fact must be averred in tra-versable form.
    Where a letter is written to a party containing the alleged slanderous words it is only on the trial on the merits that it can be shown whether or not the defend - ant’s letter was in cohdence, and communicated facts in good faith, which he believed were true in order to protect the party to whom they were communicated, and whether the privilege resulting from such communication was forfeited by the unnecessary publication of the communication to other parties not interested.
    A PPEAL from the Oivil District Court for the Parish of Orleans. Theard, J.

      Omer Villeré for Plaintiff, Appellant:
    Any writing which bears on its face a charge, or tends to vilify another, or implies a want of honesty in another, is a libel. 94 Am. Dec. 456; 6 Ohio, 532; 9 Wis. 540; 13 R. I. 324; 3 Johns. 384; 7 C. and P. 680; 3 Salk, 236; 4 Mason, 115; 3 How. 266.
    An action may be maintained for written words, which, if spoken only, would not be actionable. Am. and Eng. Ency., Vol. 13, pp. 294, 296, 298.
    A sealed letter, mailed to a third party, is a publication. 1 Spencer (N. J.) 208; 6 Cush. 71; 1 Camp, 215.
    In Louisiana, actions for slander and libel are not limited to words actionable per se. 16 La. 389; 36 An. 467.
    It is not necessary, to constitute a libel, that the name of party be given in full. Waits Actions and Defences, Vol. 4, pp. 286 et seq.

    In actions of libel, proof of damage is not necessary. 14 La. 198; 3 An. 69; 11 An. 206; 27 An. 219.
    Injuries to feelings and social standing are grounds for damages. 23 An. 280; 38 An. 161.
    Letters which intimate a suspicion of dishonesty may be a libel. Am. and Eng. Ency. p. 303; 23 Fla. 395.

      Dart & Kernan for Defendant, Appellee.
    Argued and submitted, May 8, 1895.
    Opinion handed down, May 20, 1895.
   The opinion of the court was delivered by

McEnbry, J.

This is a suit in damages for libel, plaintiff claiming two thousand five hundred dollars, and this appeal is taken from a judgment maintaining an exception of no cause of action and dismissing plaintiff’s suit.

The pleadings in the case are as follows:

“To the Honorable Civil District Court for the parish of Orleans.

“The petition of Leopold Fellman, a resident of Galveston, inthe> State of Texas, respectfully represents:

“ That Felix J. Dreyfous, a resident of the city of New Orleans did, falsely and maliciously, slander your petitioner in a letter ad-dresssed by him, the said Dreyfous, to his sister, Mrs. B. Fellman, of New York, which letter is dated January 15, 1894, and contains the following slander on your petitioner, to-wit:

“ ‘ Leopold F., however, imagined that I should have aided in stealing from others in order that he should be paid. I am not of his build, nor are my ideas regarding honesty and propriety the same as his. I am of a higher school of morality. I stand here under the shadow of our father’s image. He was a noble instructor indeed. His hands were never soiled. Not one of your advisers (outside of Isaacs, of whom I know nothing favorable or unfavorable) can say as much. I withdrew from the Kern case because the Kern-Fell-man side of it was too nasty.’

“ Petitioner avers that said Dreyfous mailed said letter to his said sister, and that he maliciously directed said slander against your petitioner; that your petitioner has always hada good reputation for morality and integrity; that he was one of the advisers of said Dreyfous’ sister, Mrs. Fellman; that said Dreyfous knew it, and intended maliciously to refer to him in his said letter.

“That said letter obtained circulation among people with whom your petitioner had business and social intercourse, and that the slander therein was calculated to injure him in the opinion of his fellow- citizens.

“ That your petitioner learned of the existence of said letter only in last November, and obtained possession thereof only in the latter part of January last.

“ That said publication has damaged your petitioner in the sum of twelve hundred dollars, for injury to his feelings, social and commercial standing. * * * ”

To this petition the defendant filed the following exception:

“ 1. That the plaintiff’s petition does not set out the entire letter sued on, nor is it annexed to said petition, and exceptor is entitled to oyer of said document.

“ 2. That this petition itself is vague and indefinite, and does not give exceptor such information as he is entitled to herein.

“ 8. That the petition sets forth no cause of action.

“ Wherefore exceptor prays that after hearing, the plaintiff be ordered to procure and file the letter referred to by him in his petition within a time to be fixed by your Honor, under penalty; that in any event he be ordered to amend his petition in the particulars herein-above referred to, or that his suit be dismissed at his costs, and petitioner prays for judgment maintaining these exceptions and rejecting plaintiff’s suit, and for all general and equitable relief.”

The exception was maintained and the plaintiff appealed.

In response to the exception the plaintiff produced and filed the letter mentioned in this petition. It contained the part copied in the petition and alleged to be libelous.

It is now the settled jurisprudence of this State that any language defamatory in character, oral or written, which injures another in his business, office, social standing, or in his feelings, is actionable when uttered malo animo. The malice and the injury may be inferred from the nature of the communication, the character of the words and the falsity of the accusation. Spotonno vs. Fourichon, 40 An. 423; Weil vs. Israel, 42 An. 955; Warner vs. Clark, 45 An. 863.

Plaintiff’-s allegations aver all the elements essential to support the action. In the case of Warner vs. Clark, the letter of the defendant was apparently a harmless business communication to their customers notifying them that the plaintiff was no longer in their employ, and requesting their friends and customers to give him no recognition on their account. On proof that this letter was not for the purpose of protecting themselves, but in connection with other circumstances, to injure the plaintiff, we maintained, although amending it, the judgment of the lower court, awarding damages against d'6feB dants.

Intrinsically there was no defamation of plaintiff, and apparently no injury inflicted upon him by the letter of defendants. There were extraneous facts shown, however, which justified a judgment against defendants.

Whenever words have the slanderous meaning alleged, not by their own intrinsic force, but by means of some extraneous fact, this fact must be averred. In the petition of plaintiff the alleged slanderous words are set out in traversable form, and it is specially averred that they referred to the plaintiff.

The distinction does not exist in the jurisprudence of this State between words which are actionable in themselves, without proof of special damages, and words actionable only with reference to some consequential damages. Under the broad provisions of the Oode (Art. 2818) they are both placed on the same footing, and the plaintiff is entitled to such special damages only as he can prove that he has suffered. As malice is essential to constitute slander, which may be shown by proof, or may be inferred from the nature of the words, their falsity, the conditions under which they were published or uttered, and all the attendant circumstances, in its absence 'no damage, unless alleged and proved, can be awarded against the defendant. Malice, however, is presumed to exist until the contrary is shown. 1 Saund. 242, N. 2.

It is slander or libel to speak or write words which are injurious to the reputation of another. The plaintiff alleges that the words written by the defendant and circulated among his acquaintances were injurious to his reputation. This averment is sufficient to maintain the action. Under the exception we cannot determine whether or not the defendant was slandered.' The facts leading to this conclusion are not before us.

It will be an occasion on the trial of the merits to ascertain whether the letter of defendant was in confidence, and in good faith communicated facts which he believed were true in order to protect the party to whom they were communicated, and whether the privilege resulting from such a communication, was forfeited by the unnecessary publication of the communication to other parties not interested. Townseud on Libel and Slander, pars. 241, 242, 248.

It is therefore ordered, adjudged and decreed that the judgment appealed from be annulled avoided and reversed, and it is now ordered that this case be remanded to be proceeded with in due course of law, the appellee to pay costs of appeal.

Dissenting Opinion.

Watkins, J.

I do not think any cause of action is stated against the defendant, and, consequently, nothing can be accomplished by sending the case back for trial.


author: McBnery, J.

text:
    No. 11,801.
    The State of Louisiana vs. Daniel Murray.
    Jury commissioners may be appointed by the judge out o£ term time, and the fact of the appointment and the evidence of the same may be recorded by the clerk in. the minute book at that time.

      In all eases where correct copies of indictment and service have not been served on the accused, he must malre his objections before trial, otherwise he will be considered as having waived them.
    A PPEAL from the Eighteenth Judicial District Oourt for the Parish of Lafourche. Caillouet, J.

      M. J. Cunningham, Attorney General, and B. F. Winchester, District Attorney, for Plaintiff, Appellee, cite: 44 An. 783, 976; 45 An. 1164.

      Bea'tie & Beattie for Defendant, Appellant.
    Submitted on briefs, May 11, 1895.
    Opinion handed down, May 20, 1895.
   The opinion of the court was delivered by

McBnery, J.

The accused was indicted for murder, convicted of manslaughter and sentenced to hard labor for twenty years.

Two grounds were presented for quashing the indictment; (1) that the jury commissioners who drew the venire were appointed out of term time; and, (2) that their appointment was not spread upon the minutes during the session of the court.

It is urged that the appointment of commissioners is a judicial act which could only be performed by the judge in open court. It may be, as contended, a judicial act, but it is not one required to be done contradictorily with any party.

It is one of those acts which can be done in chambers, as well as in open session, and there are circumstances which may make it imperative to appoint the commissioners during vacation, between terms of court. Act 89 of 1894 does not require the appointment of the jury commissioners to be made during the term of court, and while in session.

Act 44 of 1877 contained the same provisions as the above mentioned act. In several cases we recognized the legality of the appointment of Commissioners during vacation, or when the court was not in session. State vs. Taylor, 44 An. 783; State vs. Hall, 44 An. 976.

The appointment was of record in the clerk’s office, subject to the inspection of any one interested. The defendant had ample opportunity to examine the record and ascertain the qualification of the commissioners to hold their offices. Whether their appointment was regular or not, made in or out of term time, does not concern him. He is not a contestant for the office; and is not concerned as to its title. He is only interested to the extent that the commissioners are qualified to hold the office.

With reference to the appointment of the commissioners, and the spreadiug upon the minutes the fact of the appointment, and the evidence of the same, the same provisions in Act 89 of 1894 were in Act 44 of 1877. In the case of State vs. Taylor, 44 An. 783, we said than where the clerk failed to record in the minutes the evidence of the appointment of the commissioners, this omission could not have •the effect of destroying the fact of the appointment and render null and void the act of the judge in making the selection of jury commissioners, and that the Sec. 3 of the Act 44 of 1-877 (which corresponds with See. 3 of Act 89 of 1894) was only directory. But in this case tbe evidence of the appointment of the commissioners was placed on the minute book, although it was done out of term time. The recordation of the evidence out of term could no more destroy the fact of appointment than the omission to record it at any time.

There were thirty jurors drawn to serve during the week of the trial of the accused. In serving the copy of the venire on him, only twenty-nine jurors’ names appeared on the list. During the trial a juror’s name was called, and it appeared that he was the one whose name had been omitted from the venire list.

The accused at once moved to quash the venire for that week. It was no ground for quashing the venire because a correct copy of the venire had not been served on the accused. There were probably other parties to be tried, upon whom a list of the venire had been properly served. The only interest of the accused was to have had a correct copy of the venire served on him, and if this had not been done, he was entitled to delay until it could be served. State vs. Stewart, 47 An. 425.

The accused made no request for delay. The juror did not serve •on the trial of accused. We can not conceive wherein was the injury done him, and the just cause of his complaint. In all cases where a correct copy of the indictment and venire are not served on the accused, objection must be made before going to trial. The originals are on record, and the only way of ascertaining if correct copies have been served is by making an examination and comparison. If the accused goes to trial without making this examination and without timely objection, he will be considered as having waived all objections to the service of the copies of indictment and venire.

Judgment affirmed.


author: Miller, J. Watkins, J.

text:
    No. 11,628.
    Frank C. Remick vs. John H. Lang.
    The defendant in the jactitation suit, who sets up title, assumes the burden of proof of the plaintiff in the petitory action. 9 Martin, 715; 4 An. 90; 35 An. 356.
    The plaintiff in the petitory action, met by defendant’s assertion of a tax title, may without pleading controvert its effect. 11 An. 546; 3 La. 392; 2 Hennen’s Digest, 1155.
    Neither the purchaser of property adjudicated to him under the act of the Legislature, No 82 of 1884, nor those who hold under him can assert titles, unless the taxes levied subsequent to 1879 have been paid. Act No. 82 of 1884, 42 An. 677.
    Hence, without such payment, such purchaser, or those holding under him, have no right to question the redemption of the property from the State by the owner, who, paying all taxes due, holds the rede nption certificates, releasing all claims of the State.
    Least of all can suchpurchaser, orthose holding under him without title, because of non-payment of the taxes on which the title depended, invoke the prescriptions support! eg tax titles.
    Watkins, </., concurring — The purchaser at the tax sale had assumed to pay the taxes due since 1880, as part of the purchase price; having failed to do this, he did not acquire title.
    The owner paying the taxes, on the default of the purchaser, acts for his own account: he was under noobligation to pay and keep down taxes for the benefit of the purchaser at the tax sale.
    A PPEAL from the Civil District Court for the Parish of Orleans, t l Monroe, J.

      Frank L. Richardson, W. S. Parkerson, Dart <Ss Kernan for Plaintiff and Appellant.
    The record shows that defendant bought from. Perkins, who held without warranty from Orloff Lake, the original tax adjudicatee. That he was represented by the same agent and attorney that represented Perkins. That the answer of defendant Lang sets up as an excuse for not complying with the adjudication, that he could not pay the tax-s without paying the costs and charges demanded by the tax collector. Defendant, in his pleading, takes the position of Orloff Lake. He acquired nothing more nor less than the rights of adjudicatee who has never complied with his bid under Act 82 of 1884.
    Under Act 82 of 1884, “ the tax collector is not authorized to issue a deed to the adjudicatee until the taxes subsequent to the year 1880, assumed by him, are paid. Until then the title to the property remained in the State.”
    Martinez vs. State Tax Collector, 42 An. 677, where a purchaser under Act 82 of 1884 expressly assumes the payment of all taxes, costs and charges upon the property adjudicated, and on failure to do so, and the property is reoffered for sale, and the former owner has acquired the possession of the property and paid the taxes, the purchaser at the tax sale will be estopped from denying the validity of these charges which he has assumed, and which the law required him to assume and pay. Ibid.

    To recover against a defendant in a petitory action, who is not a mere trespasser, but holds under deeds on their face translative of property, plaintiff must make out a better title. Peek vs. Bemiss, 10 An. 190; Dinkgrave vs. Sloan, 13 An. 383.
    In a petitory action defendant in possession may set up any outstanding title, whether vested in him or not. 11 R. 233; Bedford vs. Urquhart, 8 An. 247.
    Where defendant does not show that he or his authors have ever exercised ownership, or taken possession, or paid taxes, the title produced by him, consisting of a sheriff’s deed, was clearly insufficient. Sully vs. Spearing, 40 An. 559; Lambert vs. Craig, 45 An. 1100; Landry vs. Landry, 45 An. 1113.
    An owner of property may buy an outstanding title without recognizing its validity. Watkins vs. Gibbins, 10 An. 142.
    There may be a permissive redemption after the period fixed by. law, and whether a certain transaction is intended for a redemption or sale is a question for the jury. Blackwell on Tax Titles, p. 431; Philadelphia vs. Miller, 49 Pa. 440.
    Where one in an action for a jactitation of title has assumed the position of plaintiff in a petitory action, he must recover on the strength of his own title and not the weakness of that of defendant in possession, and Le has no right to question the right of the State in accepting payment of its taxes and giving a release of its claim. Peek vs. Bemiss, 10 An. 160; Dinkgrave vs. Sloan 13 An. 393; Choppin vs. Mitchell, 11 R. 233.
    When defendant in a suit for slander of title fails to have the question of possession vel non determined in limine, and on the merits sets up title and possession in himself, the question of possession is Waived, and defendant assumes the burden of proving that he is the owner of the property in dispute — i. e:, he occupies the position of plaintiff in a petitory action. 9 M. 714; 11 An. 174; 35 An. 356.
    If the owner of a tax title is plaintiff in a petitory action, the burden of proof is on him to show that his titie is not only prima facie valid, but that it is absolutely so. C. P., Art. 44; Saunders on Taxation, p. 313; Delaroderie vs. Hillen, 28 An. 537; Rapp vs. Lowry, 30 An. 1272; Waddill vs. Walton, 42 An. 766; Lambert vs. Craig, 45 An. 1112.
    Where plaintiff in a petitory action fails to make out title in himself to the property claimed, it does not concern him to have the defendants’ title tested. 28 An. 538; Reinach vs. Duplantier, 46 An. 151.
    Where property was adjudicated to the State under Act 96 of 1882, and afterward sold under Act 82 of 1884, the purchaser acquired title only when he paid the taxes which he assumed. Until these conditions are complied with, the title remains in the State. State ex rel Martinez vs. Tax Collectors and City, 42 An. 677.
    The remedy of the State for the collection of the taxes due her on property sold to her for taxes subsequent to 1880, which was afterward adjudicated under Act 82 of 1884, in cases where the adjudicatee failed to comply with the terms and conditions of his bid, is by sale of the property under Act 80 of 1888. Ibid.

    .In such instances, the adjudicatee, under Act 82 of 1884, was without right to prevent the advertisement and offer under Act 80 of 1888; a fortiori, is he not competent to claim the ownership of the property after the offer is made and the property returned to the State as unsold property, for sale by the auditor under Sec. 3 of the Act of 1888 and the same disposed of by the auditor. Ibidem; Multa fieri prohibentur, quae, si faeta fu&rint obtinent firmitatem.
    In cases where property has been adjudicated to the State for unpaid taxes and no third person has acquired rights therein, and the auditor has allowed the former owner to redeem upon the payment of all taxes, interest, damages and costs, after the time allowed by the Statute for redemption has expired, the auditor’s right to allow redemptions in such cases will be sustained. Black on Tax Titles, last edition, Sec. 354; 4 Pa. 13; 61 Pa. 410; 115 Pa. 461.

      E. Howard McCaleb and J. Zach. Spearing for Defendant and Ap-pellee :
    An action to invalidate a tax sale made by virtue of any law of this State is barred by the prescription of three years. Act 1874, No. 105, See. 5; Barrow vs. Wilson, 39 An. 404; McDougall vs. Monlezun, Ibid, 1009; Surget vs. Newman, 43 An. 873; Smith vs. City, Ibid, 726; Robinson vs. Williams, 45 An. 485.
    Informalities in tax sales are cured by the prescription of five years. R. C. C., Art. 3543; Kent vs. Brown & Learned, 38 An. 809; Munholland vs. Scott, 33 An. 1045; Robert vs. Zansler, 34 An. 209; Stille vs. Shull, 41 An. 816; Robinson vs. Williams, 45 An. 492.
    A petition to annul a tax sale made under Act 82 of 1884, which fails to allege the absence of, or non-compliance with the essential prerequisites to a tax sale under said act, discloses no cause of action. In re Orloff Lake, 40 An. 142; In re Douglas, 41 An. 765; Martin vs. Langenstein, 43 An. 789.
    The former owner of property sold under Act 82 of 1884 for unpaid taxes can not set up, as cause for annulling the sale, that the tax purchaser has failed .to pay to the State the taxes for the year 1880 and subsequent years; as to such former owner the sale is absolute. Martinez vs. Tax Collector, 42 An. 685.
    The year during which the former owner of property could have redeemed property sold to the State for unpaid taxes of 1880 and subsequent years having expired, the tax collector and auditor had no authority to issue a redemption certificate and the former owner took and acquired no new rights thereby.

      The redemption of property sold for taxes does not create a new title. It simply places the title, property and parties in the same position they occupied previous to the tax sale. Burroughs on Taxation, Sec. 125, p. 357; Blackwell Tax Titles, p. 424; Cooley on Taxation, p. 368, No. 8; Black on Tax Titles, Sec. 197, p. 252.
    A party who pays taxes under a given assessment ratifies the same and estops himself from questioning like assessments of the same property, or the proceedings under them. Carter vs. City, 33 An. 817; Reed vs. Creditors, 39 An. 125; Insurance Co. vs. Levi, 42 An. 434; Palmer vs. Board, 42 An. 1126.
    A tax debtor can not take advantage of his own delinquency in failing to pay taxes, and, by subsequently paying the same, or purchasing the property at tax sale, acquire any new title or right in or to the property. Austin vs. Citizens Bank, 30 An. 689; Magner vs. Hibernia Ins. Co., Ibid. 1358; Montgomery vs. Whitefield, 41 An. 652.
    The former owner of property which has been adjudicated and sold to the State has no interest in, or right to complain of the manner in which the State disposes of the said property, nor can such former owner complain of the alleged failure of the subsequent tax purchaser to comply with the terms of his bid. Reinach vs. Duplantier, 46 An. 151; Breaux vs. Negrotto, 43 An. 432; Morrison vs. Larkin, 26 An. 699; Surget vs. Newman, 43 An. 873.
    A tax purchaser under Act 82 of 1884 is not required to pay the taxes due subsequent to 1879 before the delivery to him of the deed of the tax collector, but only to assume them in-the deed. Act 82 of 1884, Sec. 5.
    In no event is the vendee liable for the costs and charges when he does not expressly assume them in the deed of sale to him. State ex rel. Powers vs. Recorder, 45 An. 566.
    The vendee of the tax purchaser is not bound by the assumption of taxes made by the said tax purchaser in the deed to him, unless the said vendee specifically makes the same assumption. State ex rel. Powers vs. Recorder, supra.

      A fortiori the vendee of the tax purchaser’s vendee can not be made to pay or suffer the penalty, if any there be, for the alleged failure, on.the part of the tax purchaser, to pay the taxes assumed by him, but which were not assumed by the subsequent vendees.
    A purchaser at a tax sale, who has made constant and repeated efforts to pay the taxes which he assumed, but who is unable to pay them because the tax collectors demand unlawful and illegal costs and charges which the tax purchaser did not assume, and is not liable for, can not be held to have refused to comply with the adjudication to him.
    The tax collector has no right to require a purchaser of property under Act 82 of 1884 to obtain a redemption certificate for the antecedent adjudications to the State. A purchaser who refuses to procure such a redemption certificate and to pay for same, can not be held to have refused to comply with the adjudication to him.
    The decision in the cases in re. Lake, 40 An. 142, and in re. Douglas, 41 An. 765, are in strict accordance with the settled jurisprudence as established by the Supreme Court of the United States and by every Supreme Court which has had occasion to pass upon tax sales executed under provisions of acts similar in their provisions to Act 82 of 1884.
    Act 82 of 1884 is constitutional, and deeds of sale under said act are conclusive evidence .that such property was assessed and sold according to law. Sales under said act do not divest an owner of his property “ without due process of law.” Callahan vs. Hurley, 93 U. S. 387 et seq.; DeTreville vs. Smalls, 98 U. S. 517 to 528; Keeley vs. Sanders, 99 U. S. 441 to 448; Sherry vs. McKinley, 99 U. S. 497; Witherspoon vs. Duncan, 4 Wall, 217; Thompson vs. Lessee of Carroll, 22 How. U. S. 433; Bulkley vs. Callahan, 32 Iowa, 462 to 466; Clark vs. Thompson, 37 Iowa, 539; Easton vs. Perry, 37 Iowa, 682 to 683; Phelps vs. Meade, 41 Iowa, 470 to 474; Stewart vs. Schoenfelt, 13 Sergeant & Rawle, 360 to 381; Hubley vs. Keeper, 2 Penn. (Penrose & Watts) 501, 502; Peters vs. Heasley, 10 Watts, 209; Cowgill vs. Long, 15 Ill. 203 to 205; Gwynne vs. Neiswanger, 18 Ohio R. (O. S.) 405; People vs. Holladay, 25 California, 305; People vs. McCreery, 34 California, 437; Strauch vs. Schoemaker, 1 Watts & Sergeant, 175; Stiltz vs. City of Indianapolis, 81 Indiana, 582 to 588; O’Grady vs. Barnisbel, 23 California, 287; Geren vs. Gruber, 26 An. 694.

      Same counsel for defendant on application for a rehearing:
    A purchaser under Act 82 of 1884 acquires a right, title and interest in and to the property, as against the former owner, -though he does not pay the taxes before he receives the deed evidencing such sale. Act 82 of 1884, Secs. 2, 3, 4 and 5; Martinez vs. Tax Collector, 42 An. 685.
    There is no redemption from a sale made under Act 82 of 1884; Ibid., Sec. 4.
    A sale for taxes due subsequent to 1879 can not be redeemed after the lapse of one year from the sale. Const., Art. 210; Act; 77 of' 1880, Sec. 44; Act 96 of 1882, See. 52; Act 85 of 1888, Sec. 62.
    If the tax collector issues a redempted certificate after that time the same does not give the former owner, pretending to redeem, any new right to the property. Same authorities.
    A redemption does not create a new title in the person effecting the redemption. It simply relieves the property of the tax sale encumbrance. Cooley on Taxation, p. 398, par. 8; Black on Tax Titles, Sec. 197, p. 252; Burroughs on Taxation, Sec. 125, p. 357; Blackwell on Tax Titles, p. 424.
    Bedemption from a subsequent tax sale will not remove the lien or-former sale for delinquent taxes, and the rights of the purchaser at the former sale are not affected by the redemption from the subsequent one. Black on Tax Titles, Sec. 197, p. 252; Gray vs. Coan, 40 Iowa, 330; same case, 30 Iowa, 536; Cooper vs. Bushley, 72 Penn. St. 252.
    A purchaser under Act 82 of 1884 who has failed to payjthejtaxes. assumed by him can not be divested of his title by the issuance-of a redemption certificate to the former owner of the property,, upon his paying the taxes which were assumed. Same authorities.
    The remedy of the State in such a contingency, to enfore the collection of the taxes assumed is by a sale under Act 80 of 1888.. Martinez vs. Tax Collector, 42 An. 673.
    An adjudication completes the sale, and the former owner’s interest, in the property is gone and divested from the moment of the adjudication. Act 82 of 1884; R. C. C., Art. 2608; C. P., Art. 690, 695; Winn vs. Elzel, 6 R. 100.

      When the law points out a remedy which is full, ample and complete, the attempt to divest a person of a right, interest or property by any other mode, which is contrary to and prohibited by law, is “without due process of law,” null and void.
    Where a law is clearly expressed in words of common use, they must be construed and taken in their natural, plain and ordinary signification and given effect as such. Hotard vs. Hotard, 12 An. 145; Johnson vs. Bloodworth, Ibid, 702; First Municipality, vs. Millaudon, Ibid, 769, 770.

      Farrar, Jonas & Kruttsehnitt, as amici curies, submit on brief for a rehearing:
    It may be true that a part of the obligations assumed by the defendant by his act of purchase have not been fulfilled, but this does not prevent the fact that he acquired a perfect title.
    The remedy of the State is, either to collect her taxes under the Act of 1888, or, else under general principles of law, to rescind the sale for non-payment of price.
    This is not a suit either by the State or the plaintiff to recover the balance -of the price, or to rescind the sale; and whatever the rights of anyone whomsoever may be in either of the above respects, it is clear that the defendant’s deed is a good, valid, legal and subsisting title, and certainly one ample to sustain a petitory action against a mere trespasser without any title whatsoever.
    From the above, and from the able brief for a rehearing filed by the-counsel retained in this case, we submit that the following propositions are fully established:
    1. On the 6th day of August, 1886, the State had a perfect title, free-from any right of redemption whatsoever, to the property described in plaintiff’s petition, and Remick, had no more right, to the property than any other stranger. He and Lake were in exactly the same situation.
    2. On that day the State sold the property to Lake, who acquired a full and perfect title to it in fee simple for a fixed price, payable in cash, upon payment of which cash he was entitled to a deed, and to delivery of the property, subject, however, to and with the promise, on his part, to pay all taxes for the year 1880, and subsequent years.

      3. Upon the failure of Lake, or those holding under him, to pay the portion of the price payable in futuro, the State had ample remedies, to-wit:
    (а) To collect her taxes, as she was doing in the Martinez case when she was enjoined, and as this court said she had the right to do; or
    (б) To rescind the sale for non-payment of price.
    4. Neither of these rights has in any manner whatever passed to Remick, nor is Remick trying to assert either of these rights.
    5. Remick is a stranger to the title, and is a trespasser.

      R. H. Lea, as amicus curise, submitted a brief on the same side. '
    Argued and submitted, January 31, 1895.
    Opinion handed down, February 11, 1895.
    Opinion refusing rehearing, May 20, 1895.
   The opinion of the court was delivered by

Miller, J.

The plaintiff alleges ownership of lots and squares of ground in the sixth district, and seeks to enjoin the defendant from asserting title based on the tax deed he holds, and to have the deed annulled. The defendant pleaded by exception (l),th6 prescription of one, three and five years, and (2) no cause of action. The exceptions were referred by the court to the merits. In his answer the defendant maintains the validity of the tax deed made under Act No. 82 of 1884; avers there has been no refusal to comply with the terms of that act; and, referring to an allegation in the petition, that plaintiff has paid the taxes on the property, and received redemption certificates from the State, denies that the property could be redeemed by the owner after the sale by the State, under the act of 1884, to the author of defendant’s title, and further pleads that plaintiff being the owner before the tax sale, is estopped, from claiming the property from defendant holding under that tax sale. From the judgment of the lower court against plaintiff this appeal is taken.

. The plaintiff acquired the property by authentic act in 1867. It is conceded the property was adjudicated to the State for taxes prior to 1880, and thereafter in 1885 sold, under Act No. 82 of 1884, to Lake, by him sold to Perkins, and by Perkins to defendant in 1893. The adjudication to Lake was on the condition he should assume and take the property subject to the taxes of 1880 and subsequent years. These taxes were never paid by Lake, or the vendees under him. In 1893 the plaintiff, as owner, paid the taxes from 1880 to 1893, and the State issued to him certificates of redemption.

The plaintiff urges his suit is for slander of title. He avers ownership ; that defendant claims the property under a tax title charged to be void, because of non-compliance with its condition; that the asserted tax title is a cloud, and the relief sought is an injunction to restrain defendaut from claiming ownership under the tax title, and that it be annulled. In the jaeitation suit the plaintiff avers ownership ; charges the slander, prays damages, and that the defendant exhibit his pretended title or be enjoined from asserting it. While the petition in this case does not technically charge the slander, we think, taking all the allegations together with the prayer, the suit is substantially for slander of title, and besides an attack on the tax title. The prayer for the injunction, and no prayer for a decree of ownership, the conclusion of the petition in the petitory action, in our view, more especially gives it the character of the jaeitation suit. The action is derived from the Spanish law. It does not try the issue of title, unless the defendant, in his answer, chooses to tender that issue. In this case the defendant averred title, and pleaded prescription in support of if. Making this issue, the defendant becomes practically the plaintiff in the petitory action. Livingston vs. Heerman, 9 Martin, 715; Packwood vs. Dorsey, 4 An. 90; Dalton vs. Wickliffe, 35 An. 355. While this is our view of the character of this action the rights of the parties would not be sensibly altered if the suit is viewed differently.

The plaintiff claiming the property under the conveyance of 1867, is met by the assertion of the tax title. Whatever the effect to be attributed to the tax title, when it is opposed to the plaintiff claiming ownership, he is entitled to controvert its effect by any means of defence in his power. McMaster vs. Stewart, 11 An. 546; Daquin vs. Coiron, 3 La. 392; 2 Hennen’s Digest, 1155. The plaintiff in this case maintains the tax title has no effect, and relies on the decision of this court. Martinez vs. Tax Collectors, 42 An. 677.

Under the Act No. 82 of 1884, the purchaser of property adjudicated already to the State for taxes, is required, besides the price paid, to assume, and promise to pay the taxes levied subsequent to December 31, 1879. The price paid goes to satisfy the taxes prior to that date. The manifest purpose of the act was to enable the State, by selling property it held for unpaid taxes, to realize these taxes. It is not enough for the purchaser to pay the price bid, generally, and as in this case a mere pittance, and for which the State, city and parish were to release all taxes prior to 1879, but he is to pay besides the taxes accrued after 1879. True, the language of the act is: He shall assume and promise to pay, but this can not be deemed to mean that the State is to have some kind of remedy, or mere claim or lien for the taxes. Under the Constitution, the general rule is, the State can bring no suit for taxes, and it is not easy to appreciate how the State could ever realize the taxes subsequent to 1879 on property adjudicated under the act of 1884, if it be accepted that the mere assumption by the purchaser was sufficient. If this mere assumption be accepted as the meaning of this act of 1884, the act perishes under the construction, so far as respects the manifest objects of the legislation — that is, to realize taxes due. Under the construction contended for, the act doubtless is a boon to tax-sale purchasers, but there its benefit ceases. This is well illustrated in this case. The adjudication for these taxes subsequent to-1879 was made in 1885. Five years’ taxes were then due, and should have been paid by this purchaser. Taxes for eight years more were due in 1893. Not one dollar had been paid. The pretension now of this-defendant holding under the tax purchaser, is that the State in 1893 was precluded from receiving libs taxes from the owner, who then came forward and paid the arrearages. With nothing paid by the tax purchaser, or those who acquired from him with full notice-of the character of his title, it is now insisted that the other method of getting its taxes, i. e., from the owner, was denied to the State. It was in view of the object of this act of 1884, to enable the State to realize its unpaid taxes, and in full view of the result so well illustrated in this case, of a construction which in effect gives up the taxes of the State, that led to the interpretation of the act of 1884 announced in our previous opinion. To that conclusion we adhere. It means that when the State sells property under the act of 1884, it is to get the taxes to realize which the act was passed, and unless that payment is made, no title passes. This interpretation gives to the act potency to realize for the State cash for its unpaid taxes, instead of mere assumptions of tax sale purchasers. This interpretation also denies that the purchaser at the tax sale can defeat the payment of the taxes required to be paid UDder the act of 1884, by the simple expedient of transferring the property. The act is notice to all of the requisite to pass title under it. In our opinion the tax title is of no validity.

We have not overlooked the defendant’s contention, that he endeavored to settle the taxes he was to pay. There is some variance in the testimony on this point. The tax collector testifies the purchaser at the sale was endeavoring to procure a new title by purchase, and not the completion of the tax title relied on in this case. It is urged on us, too, that the settlement was prevented because the tax collector insisted the purchaser should, besides the taxes, pay costs and charges not demandable. We see no reason why the taxes should not have been tendered, nor if refused, why in the eight years since the adjudication in 1886, un ier the act of 1884, the tax collector was not sued to compel him to accept the -taxes. In that suit the liability of the tax purchaser for the disputed costs and charges would have been determined, and the result attained would have been the completion of the tax title or the cancelling of the adjudication. As it is, eight years have elapsed since the adjudication under the act of 1884, with no payment required by that act. If the pretension of title under that act is sustained, in effect the purchaser will get the property and the State will have nothing to represent the taxes it should long since have received for that property, except an assumption on which not a dollar has been paid for years, the value of the assumption being well illustrated by that fact.

The exception of no cause of action is on the theory that the owner whose title has been divested by a tax salé can not redeem after the delay given him by law. The theory is correct, but its application in this case fails. Oar decision is, the tax sale passed no title to the author of defendant’s title or to him. The pliintiff is without interest to question the redemptions.

The counsel for defendants has filed an elaborate brief to sustain tax titles. The brief discusses the subject in the general aspect, and particularly the effect of such titles as proof of the legal requisites to pass title. The prescriptions supporting tax titles are presented to us, and the statutes and authorities on the subject examined at length. We do not think this case calls for an expression from us on the topics to which the briefs are devoted. In our view the inquiry is limited by the interpretation we place on the act of 1884, under which no title passed. That view disposes of the case, and precludes further comment on the points in defendant’s brief.

It is therefore adjudged and decreed that the judgment of the lower court be avoided and reversed, and it is now ordered,- adjudged and decreed that the plaintiff be, and he is hereby decreed to be the owner of the property sued for, but this decree is not to take effect until the plaintiff reimburse to defendant the price paid by Lake at the tax sale, with the ten per cent, interest from date of payment, and it is further ordered that defendant pay costs.

Concurring Opinion.

Watkins, J.

I place my concurrence in the decree in this case on the ground that the purchaser, under Act 82 of 1884, failed to pay the taxes that were assessed on the property since 1880, and anterior to the adjudication to him in the forced collection of taxes antecedent to 1880, and which taxes he had assumed as a part of the purchase price.

This is the exact import of our opinion in State ex rel. Martinez vs. Tax Collector, 42 An. 677.

It was affirmed in State ex rel. Powers vs. Recorder, 45 An. 56.

The case stands thus:

Plaintiff, as original owner, defaulted in the payment of taxes of the years 1874, 1875, 1876, 1877 and 1878.

In 1884 and 1885 the property was adjudicated to the State under Act 77 of 1880 and Act 96 of 1882 (Revenue Laws), for unpaid taxes of 1880, 1881, 1882 and 1888.

Subsequently, in 1889, it was adjudicated to Orloff Lake for the taxes prior to 1880, under Act 82 of 1884, the purchaser assuming, as pai’t of the purchase price, “ all taxes, with interest and cost, subsequent to 1880.”

Neither Lake, adjudicatee, nor Lang, his vendee, ever paid these taxes.

In 1898 the-plaintiff, exercising the grace of our statutes of 1888 and 1890, paid the taxes since 1880, and procured from the auditor of public accounts a certificate of redemption and subrogation to all rights of the State', growing out of the adjudication to the State.

Thereupon the plaintiff instituted this action to have the tax sale to Lake, and his subsequent transfer to Lang, cancelled and erased 'as being a cloud upon his title, defendant insisting that title is good, perfect and complete.

He also insists that plaintiff’s redemption enures to his benefit, because he was in duty and law bound to discharge and keep down the taxes, and cannot be allowed to thus come in competition with him .

The difficulty of the defendant’s 'situation, in my opinion, is that he was a mere stranger to the plaintiff at the time he bought. Between them there were neither relations of trust or confidence, as those between debtor and creditor, mortgagor and mortgagee. Hence plaintiff was under no obligation to keep down the taxes for the benefit of the tax purchaser and his vendee; particularly in view of the fact that the purchaser had assumed those very taxes as a part of the price he was to pay.

For these reasons I concur.

Mr. Justice Breaux dissents.

Application nor Rehearing.

The court has had under careful consideration the application for the rehearing in this case. There is but one issue, at least in this sense, i. e., that determined against the purchaser on the character of his title acquired at the tax sale, renders wholly unnecessary any notice of other issues. The court is not to be, therefore, understood as dealing with the provisions of law, so largely discussed, of the right of the owner to redeem. The controlling question is, the character of the title passed to the purchaser at the tax sale under the Act No. 82 of 1884. If the tax purchaser obtained no title under that act he is without interest to contest the relinquishment of the right of the State by permitting the owner to redeem. The construction of this act of 1884, as to the title of the tax-sale purchaser, received the fullest consideration in the Martinez case, not presenting, it is true, the phase of controversy in this case. The decision in this ease was not reached without the fullest consideration of the bearing of that decision, with all the qualifications suggested by the v ried form of this litigation, and not without the appreciation of the argument advanced in the original brief, and those filed on ihe rehearing. It was the conclusion of the court that the reasoning of the court in the Martinez case controlled the decision here. We adhere to the decision in this case, and refuse the rehearing.


author: Nicholls, O. J.

text:
    No. 11,746.
    R. Danneel vs. John Klein; R. Danneel vs. F. W. Shotwell; R. Danneel vs. John Klein et al. (Consolidated).
    The adjudicatee at a judicial sale made in execution o£ three orders of seizure and sale directed to the sheriff can not refuse to comply with his bid when a valid and legal title is conveyed through the execution of one of the writs, because the sheriff in the execution of the other two writs may have departed from their terms.
    A sheriff holding two separate writs of seizure and sale, directing him, in the first, to seize and sell the undivided half interest of one of the joint owners of a piece of property, and in the second, to seize and sell “ all the right, title and interest” of the other joint owner (who held also an undivided half interest; is without authority to advertise and sell the property as an entirety, ignoring the terms of the writs he was enforcing and disregarding the different ownerships of the undivided halves. The writ in the sheriff’s hands is the warrant for his action. He can not seize and sell under different writs the property of different individuals between whom there is no privity.
    APPEAL from the Civil District Court for the Parish of Orleans. EUis, J.

    The plaintiff held three mortgage notes. The first was the joint and several note of John Klein and George H. Shotwell as joint purchasers of twenty-four lots of ground in square No. 26, by special mortgage and vendor’s privilege on the property in its entirety.
    2. A note of John Klein, secured by mortgage on his undivided half of the twenty-four lots above mentioned and his undivided half of certain lots in square No. 30, owned in equal joint ownership between Shotwell and himself.
    3. A note of the widow and heirs of George EL Shotwell, secured by mortgage upon “ all their right, title and interest ” in the twenty-four lots above-mentioned, and “all their right, title and interest” in the lots in square No. 30, in which John Klein owned an undivided half.
    He instituted these proceedings, via executive upon each one of these notes, and obtained three separate orders of seizure and sale, directing in each ease that the property covered by the mortgage in that particular case should be seized and sold to pay plaintiff’s claim there.
    The sheriff, under the first two writs, followed, in making his seizures, the directions thereof, but under the third he seized in their entirety the properties in both squares.
    In his advertisements he mentioned that his seizures had been made under the three writs, and that he would sell under them:
    1. The twenty-four lots in square No. 26 in their entirely.
    2. The lots in square No. 30, as a single body of land, and asa whole two separate adjudications were made, though the same person was the adjudicatee at both. The purchaser refusing to comply with his bid, he was ruled to show cause why he should not be compelled to do so.
    He showed for cause that, in making the seizures and sales, the sheriff had departed from his orders in the writs, and because the powers of attorney given to Klein to accept service in behalf of same, the Shotwell heirs, in the matter of these proceedings was not by “ authentic act.”
    The rule was made absolute and the purchaser was ordered to accept title. He appealed.

      John F. C. Waldo and H. M. Danneel for Plaintiff, Appellee.

      Carroll & Carroll for Defendant, Appellant.
    Argued and submitted, April 24, 1895.
    Opinion handed down, May 6, 1895.
   The opinion of the court was delivered by

Nicholls, O. J.

The writs which issued in the three cases were not writs of fieri faeias, vesting in the sheriff to whom they were directed a certain discretion as to the object which he was to seize, advertise and-sell, but writs of seizure and sale, in which the precise object to be seized and sold was designated by the court, and from the terms of which writs the sheriff was in no wise permitted to depart.

Had the title tendered to the defendant to the first property adjudicated rested upon the proceedings taken in the first suit No. 43003, it is very clear that it would not have been such a title as the defendant was entitled to receive, for the writ which issued to the sheriff in that case ordered him to seize and sell, not the property in its entirety, but the undivided half interest of John Klein therein; it was, therefore, the duty of the sheriff to have seized, advertised and sold that interest, and nothing more. It is out of his power, under that writ, to seize, advertise and sell the entire property. Had he done so he would have deviated from the terms of the writ, which constituted for him his sole and only guide. 46 An. 338. In Landreaux vs. Foley, 13 An. 114, where the sheriff, who had been ordered to seize and sell the undivided half of a tract of land, seized and sold a specific portion of the land equal to the half of the tract, the court held the adjudication to be a radical nullity, declaring that the sheriff had not sold that which he was commanded to sell; that the question was not a question of compliance with legal formalities for divesting title by forced sale, but of a sale of one thing under color of an order to sell another thing totally different.

The title tendered would have been radically defective had it rested upon the proceedings taken under the writ which issued in the second suit No. 43,004, for by that writ the sheriff was ordered to seize and sell, not the whole property in square No. 26, but the “ right, title and interest ” of the defendant in that property. It was the sheriff’s duty to have made the seizure accordingly, and to have followed it in his advertisement and in his sale. He was without authority to seize, advertise and sell the whole property.

But we think the title tendered was not dependent for its validity upon the proceedings either in suit No. 43,003 or suit No. 43,004. The proceedings taken in those cases could, so far as the question of title was concerned, be ignored if under those taken in the third suit No. 43,C 05 the title legally shifted to the purchaser. In our opinion the adjudication made to the defendant in the last mentioned suit conveyed to him a legal title. The sheriff seized, advertised and sold precisely what he was ordered by the writ and by the law to seize, advertise and sell. The validity of this adjudication was in no manner affected by an improper or imperfect seizure, advertisement or attempted sale made under the other two writs. The entire interest of both Klein and of George H. Shotwell passed by the sale. The writs in the sheriff’s hands in the other cases conld only bear upon the question of the payment and application of a portion of the price. Had these writs not been in existence and in the hands of the sheriff at the time, the latter would have been charged with the duty of only collecting so much of the prices as would go to the seizing creditor. The balance of the price would have been retained by the purchaser, subject to hypothecary actions on the part of subsequent mortgage creditors, for, under such circumstances, the sheriff would not have been authorized to exact payment of the surplus. (See Braimer et als. vs. Hardy, Sheriff et als., 18 An. 542.) As it was, the sheriff with these writs in his hands, might be authorized to demand payment of the surplus of price to the extent it was demandable, under the writs in cases 43,003 and 43,004, out of the proceeds of the sale of this property, though the seizures under those writs were imperfect, improper and totally ineffectual to convey the title to the property itself.

We do not understand the defendant to raise any objection to the payment to the sheriff of the balance of the price of the first piece of property if the title itself should be held legal.

We do not think the objection raised to that title, on the ground that the power of attorney granted by some of the Shotwell heirs to John Klein to accept service for them in the case was not in authentic.form, tenable. The requirements of the law as to the character of the evidence necessary to be produced in matters of executory process refer to the evidence which has to be submitted to the court as the basis upon which he is to act in granting an order of seizure and sale.

If, in point of fact, the power of attorney was that of the parties, the sheriff’s acts based upon it would be legal. It is not suggested even that the power is not a genuine instrument. It might have been placed in a more satisfactory form, but we are now dealing exclusively with the legality of the proceedings. We think the purchaser should accept the title to the property first adjudicated to him and pay the price to the sheriff.

Matters in respect to the second property stand upon an entirely different basis.

The sheriff, instead of seizing, advertising and selling the undivided half interest of John Klein in the lots in square No. 30, and of seizing, advertising and selling separately “all the right, title and interest” of the widow and heirs of Shotwell in that property, seized the undivided half of John Klein under the writ in suit No. 43,003, but seized the whole of that property under the writ in suit No. 43,004 against Shotwell, et al., and then advertised under the two writs that the property was to be sold as a single body of land, and did so sell it.

It is very clear that neither the seizure in the Shotwell case nor the advertisement nor the sale under the writs in suits Nos. 43,003 and 43,004 conformed.to the writs. It is said that in point of fact Klein owned an undivided interest in the lots in Square No. 30 and the Shotwells owned the other undivided half, and that the plaintiff’s two mortgages covered together the whole property, and therefore there was no injury done, as the plaintiff would take out of the sale nothing more or less than he was entitled to, but it is not a question here of injury, but of following out of certain fixed, well-defined legal principles. It may be true that in this particular case matters could and would so shape themselves a s that no harm would result from maintaining this special adjudication, but defendant has invoked the law applicable to the case, and we can not decline to enforce it. The trouble is that the sheriff has misunderstood the effect of his action and exercised a discretion utterly denied him. It is true that the two writs were held by the same plaintiff, and that they referred to undivided halves of the same property, but the rights of parties were as separate and distinct for the purpose of the execution of the writs as if the claims were held by different parties and the properties affected by the mortgages were entirely separate properties. It was out of the power of the sheriff in his advertisement, and through his adjudication, to consolidate or fuse together into a single whole the rights and obligations under the two distinct contracts. Such a 'course would give rise to interminable difficulties, and to questions not easy of solution. It would besides, in many instances, work positive hardship and wrong.

In Mayor vs. Armant, 14 An. 181, we held that the cumulation of a demand for the partition of succession property with a demand for the partition of property held in common, where there is no privilege of estate between all the parties, plaintiffs and defendants, is not authorized by the rules of pleadings, and we assigned reasons for the existence of such a rule.

In Savage vs. Williams, 15 An. 252, we applied the same doctrine, and held that an administrator of a succession could not encumber a sale by requiring the purchaser to buy other property than that of the intestate, and in Howcott vs. Board of Levee District, 46 An. 322, that the property of one person could not be sold confusedly with those of others where there is no privity of estate between the parties.

This was merely a repetition of the doctrine announced in McWilliams vs. Michel, 43 An. 988, and in Person vs. O’Neil, 32 An. 232.

In accepting a mortgage the creditor deals exclusively with the mortgagor. He has in view his property, his financial ability and his creditors. In the enforcement of his mortgage he can not, through any act of the sheriff, be brought into entanglement with the creditors of another person, or into possible complicated responsibilities resulting from bringing his debtor’s property into relations with that of another person which has no legal connection with it. The title to one of the undivided halves might be perfectly good and the other bad.

Each seizing creditor is entitied to have his responsibility as such limited to the title conveyed in execution of his own mortgage, and he can not be made to have it broadened through the sheriff’s selling and adjudicating at one and the same time, as a single object, the property seized for him with other property in respect to which the seizing creditor is legally a stranger. Again, if under writs of seizure and sale, issuing from two divisions of the District Court, directing the seizure and sale of distinct, undivided halves of the same property belonging to different owners, the sheriff should sell the property as a whole, it should turn out that each half should be affected by mortgages or privileges of its own under the different ownerships — the course pursued would give rise to contentions between the creditors and the parties exceedingly difficult of adjustment and apportionment — contentions not legitimately arising from the legal situation of affairs, but purely through the action of the executive officer of the court.

It may be said that parties, by standing by and seeing the sheriff’s acts brought to completion without protest or objection, would show a willingness to accept the responsibilities and legal results of the situation, and that the court is setting up as it were in this case for the seizing creditor claims which not only he does not advance, but which are in direct opposition to those which he urges. We are not, in what we have said, been referring to the present plaintiff. We have simply assigned reasons why the course pursued in this case should not be sanctioned. In Levick vs. Walker, 15 An. 246, this court said that “ parties could regulate their own conduct by their stipulations, but they can not prescribe rules of proceeding for public officers, nor demand that courts of justice should depart from the usual mode of enforcing their decrees.”

If before judgment, the creditor may stipulate the manner in which the same shall be executed, the principle will sanction an endless variety of modes of execution of judgments, and indeed, the parties may waive all formalities and all delay, and may even consent that some other person than the sheriff shall sell the property of the debtor and execute the decree of the court. And if a decree giving effect to such contract be legal, then also the sale under it would be legal, and other creditors might find themselves deprived of their common pledge without notice. In view of our complicated system of mortgages and privileges and the restriction upon sales where parties are in insolvent circumstances, as well as the responsibility imposed by our law upon the sheriff and his sureties, we are of the opinion that such stipulations cao not be enforced. If they be not immoral, they may be considered as affecting the rights of others and void.”

In Solomon vs. Deifental, 46 An. 904, referring to an agreement between the parties in regard to the issuing of an injunction, we said: The agreement of the parties in this matter is of no importance. Parties are much more free to make contracts than they are to regulate and stipulate as to the legal remedies” (citing 15 An. 246). The same idea finds expression in Wheelwright vs. Transportation Co., 47 An. 540.

In the case at bar, in addition to what we have just said, there are mortgage creditors upon the second property, which was adjudicated, whose conduct in the future is unknown. We do not think the ad-judicatee can be called on to take risks in the matter. If this sale has any validity, it is by consent of parties and not by force of the law and the effect of the writs in the sheriff’s hands.

For the reasons herein assigned, it is hereby ordered, adjudged and decreed that the judgment appealed from, making absolute the rule filed in the cases Nos. 43,003, 43,004 and 43,005 on September 10, 1894, be and the same is hereby annulled, avoided and reversed in so far as it condemns Thomas H. Watson, adjudicates at sheriff’s sale on August 14, 1894, of' eight certain lots of ground in the Sixth District of New Orleans, in square No. 30, Burtheville, bounded by Magazine, Calhoun and Camp streets and Henry Clay avenue, Nos. 11 to 18 inclusive, and part of lot 21 in said square, and fully described in the rule taken by plaintiff for the sum of thirty-three hundred and fifty dollars to accept title to said property and to pay the price thereof to the sheriff in accordance with the terms of the adjudication to him, and it is now ordered, adjudged and decreed that defendant be and he is hereby relieved and released from the adjudication made to him of said property, and the adjudication to him of said property is decreed null, void and of no effect. It is further ordered, adjudged and decreed that the judgment appealed from, except in so far as it is just herein above annulled, avoided and reversed, be and the same is hereby affirmed. Appellee to pay the costs of appeal. Defendant and appellant to pay the costs of the District Court.


author: McEnery, J.

text:
    No. 11,635.
    In the Matter of the Pelican Insurance Company of New Orleans, in Liquidation.
    An insurance company can not i*esist tlie payment of a policy obtained in good faith, and without misrepresentation, issued to a firm, when there is only one person, in said firm; particularly when the agent issuing the policy knows that only one person composes said firm.
    It is no defence to the payment of the loss, that the policy was signed by officers who had ceased to be such when the policy issued.
    A party who obtains a policy from a former agent of the company with whom he had done business, and who has in hispossession blank applications and policies, will be protected in the absence or actual knowledge on hispart that the party acting as agent, was, in fact, not the agent of the company.
    Section 2GGS R. S. was intended to prevent the use of the name of a person not evidently interested in the firm, thus inducing a false credit which the law designed to prohibit. It does not forbid the giving of credit. 45 An. 1100.
    APPEAL from the Civil District Oourt for the Parish of Orleans. Monroe, J.

      Frank McOloin for Liquidators, Appellants.

      Dmlcelspiel & Hart for Civil Sheriff, Opponent, Appellee.

      . Carroll & Carroll for W. F. Grubbs, Opponent, Appellee.

      Harry H. Hall for Mrs. M. W. Smith, Opponent and Appellee.
    Argued and submitted, April 11, 1896.
    Opinion handed down, April 22, 1895.
    Opinion refusing rehearing, May 20, 1895.
   •The opinion of the court was delivered by

McEnery, J.

To the account of the liquidators of the Pelican In - suranee Company, several oppositions were filed, as follows:

W. F. Grubbs, for one thousand dollars.

Mrs. M. W. Smith, for one thousand, nine hundred and thirty dollars.

The State of Louisiana, for taxes.

The city of New Orleans, for taxes.

The civil sheriff of New Orleans, for costs.

There was judgment maintaining the oppositions.

The liquidators appealed.

W. F. Grubbs & Co., doing business in North Carolina, insured a stock of Goods in the Pelican Insurance Company.

There was a total loss by fire. W. F. Grubbs was the only member of W. F. Grubbs & Co., and he claims as beneficiary. For the reason that he was the sole member of said firm the liquidators oppose his demand, and invoke the provisions of Sec. 2668, Revised Statutes, which says: “No person shall transact business in che name of a partner not interested in his firm, and when the designation ‘ and Company, or & Co.’ is used, it shall represent an actual partner or partners.” An interpretation has been placed upon this section in the cases of Kent & Co. vs. Mojonier, 36 An. 259; Miller & Co. vs. Creditors, 37 An. 604, and Wolfe vs. Joubert, 45 An. 1100; in all of which it was held that Sec. 2668 was intended to prevent the use of the name of a person not evidently interested in the firm, thus inducing a false credit to which it was not entitled, and which the section was intended to prohibit the obtaining. It does not forbid the giving of credit. The section of the Revised Statute does not pronounce the contract entered into with a firm composed solely of one member null and void. The debtor of such a partnership or firm can not plead the nullity of his engagement on account of the creditor’s violation of the statute where the only penalty affixed to its violation is making it a misdemeanor and subjecting the offender to a fine. Wolfe vs. Joubert, 45 An. 1100.

But the contract of insurance was made in North Oarolina, and there was no violation of the statute in Louisiana. We are not informed that a similar statute exists in North Oarolina. Id.

The liquidators affirm that there was a false representation to the insurance company when W. F. Grubbs & Co. took out the policy, as that firm was supposed to have entered into the contract with the insurance company, and not with W. F. Grubbs individually. We do not think that the withholding of this knowledge from the insurance company, that W. F. Grubbs was the only member of the firm, was the omission of a fact material to the risk. It had no reference to the valuation, situation or occupancy of the property insured, and the title to the same was really in the party effecting the insurance. The agent, however, who issued the policy was aware of the fact that W. F. Grubbs was the sole member of the firm. It does not appear from the testimony that W. F. Grubbs used the name of W. F. Grubbs & Co. for the purpose of obtaining any advantage over the company. W. F. Grubbs acted in good faith in obtaining the policy, and no fact was withheld by him which it was essential for the insurance company to know.

In the case of Pelican Insurance Company vs. Smith, 92 Ala. 428, to which we have been referred, the issue in the case was not the same as in this. Smith & Co., which was composed only of M. A. Smith, took a policy on a storehouse and goods. Before the application for the insurance, M. A. Smith sold the storehouse and all goods to his wife. No disclosure was made to the company that Mrs. Smith was owner- of the property insured.

In the opinion, the Supreme Oourt cf Alabama said: “Under the evidence as it now appears in the record, it is clear that defendant’s agent had no information or notice that plaintiff was the owner of the property, and it is equally clear that M. A. Smith, by his statements and answers, induced the defendant’s agent to believe he (M. A. Smith) was insuring his own property and goods, and that he owned the same in fee simple.”

In another part of the opinion the court; said: “If M. A. Smith was plaintiff in this action, and the defence set up was that defendant issued the policy upon the belief that some other person asso - ciated with M. A. Smith constituted the firm of Smith & Co., the failure to make the inquiry might be fatal to the defence.”

The agent in North Carolina failed to make any inquiry as to the composition of the firm of W. F. Grubbs & Co. But it is a fact that the agent knew that W. F. Grubbs was the sole member of the firm.

The Pelican Insurance Company had a general agent at Raleigh, in North Carolina, who appointed the sub-agent, with whom the opponent, Grubbs, did business.

The company withdrew from the State, and so informed its general agent, who was instructed to return to the home office all blank policies, etc. No public notice was given of this withdrawal, nor was any informatio a conveyed directly or constructively to W. F. Grubbs that the company had ceased business in North Carolina. The agent who issued the policy to W. F. Grubbs & Co., and with whom said firm, or W. F. Grubbs, had been doing business, swears that he had never received any notice of the withdrawal of the company from North Carolina. He still had in his possession the blank applications and p.licies. The possession of these blanks by the agent would lead one, not informed otherwise, who had been in the habit of insuring with the agent, that he was still in the service of the company.

It is urged by the liquidators that the names of the officers attached to the policy were not in fact officers of the company, and had ceased to be such long before the policy issued. But it was used by the company, and when issued by the agent, became properly an authenticated policy of the company.

One of the liquidators and ex-president of the company says that when new officers were elected, it was not usual to call in blank policies signed by their predecessors. They were still used.

Through error, a credit of eighteen dollars and eighty cents, paid after the sheriff’s cost bill was filed, was not allowed in the judgment, although it was presented to the court below. The civil sheriff prays for an amendment of the judgment allowing the credit, and for a release from the tax for costs of appeal.

The error should have been corrected below, or a release before .appeal was taken given to the liquidators.

In order to correct the error, an appeal became necessary.

It is therefore ordered, adjudged and decreed, that the judgment appealed from be amended so as to reduce the sheriff’s costs to twelve dollars and fifty cents, and in all other respects it is affirmed, the sheriff and the liquidators to pay equally the costs of this appeal.

On Rehearing.

We will amend the judgment in this case as to costs, and a rehearing is not necessary for this purpose.

The attorney of the sheriff directed our attention to the case of Succession of Mansion, 34 An. 1246, and the costs were assessed in accordance with the decree in that case. But we think the circumstances of the case will fully justify an amendment of the decree, fixing the costs to be paid by the sheriff at one-fifth of the amount of costs of appeal.

It is therefore ordered that the decree heretofore rendered be amended so as to read: The sheriff to pay one-fifth of the costs of appeal and the liquidators to pay the other four-fifths. In other respects the decree to remain undisturbed.”

Rehearing refused.