author: Fenner, J. Watkins, J.

text:
    No. 10,292.
    Jean Tessier vs. Octave Roussel.
    1. Donations inter vivos are subject to an implied resolutory condition to the effect that if. at the death of the donor, the donation shall prove to be in excess of the disposable portion as then ascertained, the donation will then bo resolved to tho extent of such excess.
    2. The effect of the accomplishment of this resolutory condition retroacts to the date of the donation, and the forced heir revendientes the property regardless of subsequent alienations by the donee and free from all mortgages or incumbrances placed on it by the donee or his assigns.
    3. The right to enforce this condition belongs to the forced heirs alone; and is personal to them, derived, not from the deceased, but directly from the law.
    4. Tn exercising this faculty of revendication tho forced heir acts in his own right, and if he has accepted the succession of tho deceased with benefit of inventory, ho cannot be opposed by an exception founded on a right against the succession of the deceased. Hence he is not bound or estopped by obligations of warranty, which the deceased may have incurred, subsequently to the donation, towards purchasers of the proi>erty unduly donated.
    5. A person who has agreed to purchase from a third x>ossessor pi operty which has been thus donated, while the donor is yet living and having legitimate descendants and presumptive forced heirs, would be liable to eviction by the latter at the death of tho donor under tlie conditions stated, and cannot be compelled to accept so perilous a title.
    6. Other special contentions of plaintiff considered and overruled, j
    7. Distinction between the warranty of convention sales and that arising under judicial sales referred to.
    APPEAL from tlie Twenty-second District Court, Parish of St. James. Duffel, J.

      Sims & PocM for Plaintiff and Appellant:
    1. Guedry, Jr., donated atract of land to Guedry, Sr., in 1873 ; in 1881 Guedry, Sr., mortgaged the property to secure payment of a debt of $12,000 acknowledged to he due by him to the donor and another; in 1883 the donor sued out executory process against the mortgageor (donee) and tlie property brought at judicial sale $18,000, one-half of which, or $9000, enured, to the donor and was received by him. I11 1883 the original donor x>urcliased the same property, jointly with others, from the adjudicatee at the sheriff’s sale provoked by him, gave his solidary obligation for entire credit portion of the price — about $16,000 — aud joined in granting special mortgage and vendor’s privilege on the whole property. Guedry, Jr., with co-owners, remained in x>ossession, as owner, until 1887, when, under foreclosure against him and co-purchasers, plaintiff, Jean Tessier, became acljudicatee for $6000, leaving $10,000 due by Guidry, Jr.,'on purchase price, exclusive of interest. Defendant, Roussel, agreed to buy from Tessier, but refused to accept sal© on the ground that the donation from Guidry, Jr., to Guidry, Sr., in 1873, vitiated the title. Tessier’s contention is that the subsequent aots of donor and donee, mutually concurring, have avoided the original donation and entirely destroyed its effect, so as to place it "beyond the reach of any eventual demand or claim of .the "beneficiary heirs of Guidry, Jr., for a reduction to satisfy their legitime. And he seeks to enforce a specific performance.
    2. Guidry, Jr., is clearly bound to warrant and forever defend Tessier’s title. His heirs, whether beneficiary or pure and simple, are in like manner hound. The maxim: “ Quern de evictione tenet actio, cundan agentem repellit exceptio ” is applicative to both equally. Pothier, Contrat» de Vente, Vol. 3, Ho. 166, p. 104, Ho. 176, p. Ill; Troplong, Vol. 1 (do la Vente), Ho. 446, p, 565; Marcadé, Vol. 6, p. 272 and 275; ibid p. 265; 9‘Rob. 3; 9 Ann. 242; 13 Ann. 213; C. C. Arts. 2008, 871, 2114, 1054, 1058, S85, 945.
    3. The obligations incurred by Guidry, Jr., in accepting the mortgage in 1881, in procuring its sale in 1883, in purchasing in 1883 and consenting to the judicial sale in 1887, are solidary and indivisible— they embrace the whole property. Duranton, p. 297, Ho. 278; 9 Rob. 3 ; 9 Ann. 242; 13 Ann. 213.
    4. The donor and donee had an undoubted right to engraft on the donation any onerous conditions which might have been inserted in the original act. The donor might have imposed the onorous conditions that the donee should pay him and Valmont Guidry $12,000 in 1882; the mortgage for that amount was tantamount to and in effect the imposition of that onerous condition in the act of donation. It was a perfectly legal act. C. O. 1527,1526,1528. .
    5. The situation is precisely as if no donation had ever been made. A mortgage by Guidry, Sr., on the property of Guidry, Jr., with the concurrence of the latter, to secure a debt ‘duo Valmont Guidry would have been indisputably legal, and the sale of the property under the mortgage to satisfy Valmout’s claim would have been sufficient to alienate it beyond the possibility or hope of recall. This is the legal effect of what was done.
    G. There is no law or authority, so far as we have been able to discover after diligent investigation, to warrant the assumption that property donated gratuitously becomes absolutely “ hors de commerce” or inalienable by and through the donor himself. The right to stipulate the conventional return and to impose all conditions not contrary to good morals, utterly explodes so flagrant a heresy.
    Tessier holds through Guodry, Hr., by legal transfers subsequent to the act of donation; his title is good and ought to he so declared by this court.

      T. J. Semines c0 Legendre- aiul St. Maurice JBércmlt for Defendant and Ai>pellee:
    1. Effect, of the benefit of inventory. R. C. O. 1054, 1032, 1058, 2008, 1020,1011, 1013, 3526, 2161, Ho. 4,1423 ; Mourlon, Repetititions, vol. 2d, pp. 147-8-9, Hos. 289 to 294, Paris Edition of 1881; Gamier Eréres; Marcadé, vol. 3d, pp. 178-9. Hos. 255-6-7. Paris ed., 1859.
    2. Beneficiary heir does not represent the person of the deceased. Article 945 applies only to the unconditional heir. 2d Mourlon, p. 147, Ho. 289, et sequentes; 3d Marcadé, pp. 178-9-180, Hos. 255-6-7; Cox vs. Martin, 12 M. 364.
    3. Beneficiary heir, quoad claims, in his own right, is not estopped by the warranty of the deceased. R. C. C. 1054; Marcadé, ibid.; Mourlon,,ibid.; Pothior, Vente, Ho. 174; Cushing’s Translation, p. 108, Ho. 175.
    The maxim, quem de eviction, etc., does not apply to beneficiary heirs. The case of» Smith vs. Elliott, 9 R. j>. 3, and others cited by plaintiff, apply only to unconditional heirs.

      4. No warranty in forced sales on execution, simply reimbursement of price, none in donations. C. P. 090-4, 711, 712, 714, 715; R. C. O. 2020, 2021, 2537, 2019.
    5. Reduction of donations. R. O. O. 3502 to 1518.
    O. Only forced heirs can suo for reduction. R. C. C. 3504; 7 R. 429 ; 20 Aim. 430; 12 Aim. 465; 12R. 552; 3dMarcado, pp. 474-5, IV, Nos. 586-7-8.
    7. Xbe right to reduce attaches to and follows tho immovable (donated), into whatever bands it may pass. R. O C. 1516, 1517, 1518, 3264-5, 3270, 1281; 3d Marcado, pp. 504 to 500, Nos. 620 to 024, bis.

    8. The property reduced is brought back to the succession of the donor, for tlie sole beneti! of the children of the donor, as a tiling due exclusively to them, and not as an asset of the donor's succession, for the, benefit of its creditors. R. O. 0.1504,1453, 1993,1235 ; 7 R. 429; 12 Ann. 465; 26 Ann. 416; 12 R. 552; 3d Marcado, pp. 474-5, TV, Nos. 580-7; p. 476, Nos. 588-9.
    9. The reduction and return are likened to collation between forced heirs, and subject to the same rules. R. C 1235,3500,3516.
    To determine the reduction, tlic debts are deducted only from the assets of the succession. To this balance of assets is fictitiously added the donations. 3d Marcado, pp, 477-8, No. 590 ; p. 474, IV, No. 580.
    10. Excessive donations arc in violation of a prohibitory and mandatory law. R. C. C. 1943-4-5-8; 3(1 Marcado, pp. 504-5, Nos. 020-1.
    11. Puroly gratuitous donations arc taken subject io an implied resolutory condition : i. e , tho eventual claims of the forced heirs for their legitime by yuit lor reduction. R. C. C. 2045, 2020, 2022, 1502-3, 2026, 1517, 1518.
   The ox-iiiiion of the Court was delivered by

Fenner, J.

The facts, which are uudisxmted, present. the following case:

In 1873, Philoinon Guidry, Jr., made a gratuitous donation inter vivos of a tract of land to his father, Philoinon Gnidry, Sr.

In 188.1, Guidry, Sr., being indebted to his two sons, Philoinon, Jr., (the donor ) and Vahnont Guidry, gave them a (special mortgage on tho same laud.

In 1883, Guidry, Jr., and others, holding the notes secured by this mortgage, judicially foreclosed the same and caused the sale of the property.

At said sale the xu'ox>erty was adjudicated to J. E. Pocho. for $18,000.

Subsequently Poclié re-sold tho x>roi>crty to P. Guidry, Jr., Valmont Guidry and Joseph Guidry, jointly; the first two acquiring five-twelfths each, and the last, two-twelfths. The price was $20,000, of which $3925 was in cash, and the remainder in notes secured by sx>ecial mortgage and vendor’s xirivilege.

In 1887, Jean Tessier, as holder of the last mentioned notes, foreclosed his mortgage, and at the judicial sale, the property was adjudicated to him, and lie is the present owner thereof.

Pliilomou Guidry, Sr., (the original donee), is now dead and left no estate.

Pliilomou Guidry, Jr., (the donor), has married and has five minor children.. It is admitted that he is, at this time, insolvent.

In February, 1888, Jean Tessier and Octave Roussel entered into an agreement by which the former agrees to sell, and the latter to buy, the property in question at an agreed price.

On examining the title, Roussel refused to execute the agreement, on the ground that he. would be in danger of eviction by reason of the eventual claims of the presumptive forced heirs, the minor children of P. Guidry, Jr., for their reserve or forced portion, which would be entitled to satisfaction out of said property at the death of their father, if he left no other estate adequate to settle their claim.

The present action is brought by Tessier to compel Roussel to accept the title and to perform his agreement to buy.

The question presented is whether the. title tendered to Roussel is such as he has the right to require and is bound to accept.

If it be true that, at the death of Pliilomou Guidry, Jr., his surviving legitimate descendants and forced heirs would have the right to subject this property in the hands of Roussel to the satisfaction of their legitimate or forced portion, and, to the extent necessary for that purpose, to revendiente the property, it is obvious that the title tendered is not one which a- purchaser would be obliged to accept.

The law of Louisiana, while recognizing the. right of every man to deal with Ms proi>orty as he chooses so tar as onerous dispositions are concerned, places certain restrictions on the power of gratuitous disposition, which cannot be disregarded. So far as gratuitous dispositions are concerned, the law divides the estate of every person into two parts, of which one is called the. disposable portion, of which he may dispose gratuitously according to his pleasure.; the other is culled the reserve or forced -portion, of which he is not permitted to dispose gratuitously to the prejudice of his legitimate descendants or ascendants, to whom the law reserves it and forces the person to leave it, and who are, therefore, called forced heirs.

The amount of the reserve or forced portion is determined only at the death of the de e.ujns, at which time it is calculated upon as a mass composed of the extant property found in the succession after deducting-debts, and of the property which has been gratuitously disposed of during his life. If the extant property does not suffice to satisfy the reserve thus ascertained, the forced heirs are accorded the remedy of reduction, by which they may reven dicate the property donated, in whose-soever hands it may be found, and subject it, to the extent necessary, to the satisfaction of their claims.

Every donation, however and whenever made, is, therefore, subject to an implied resolutory condition, binding on the parties thereto and their privies, to the effect that if, at the death of the donor, he shall leave forced heirs and the donation shall prove to be in excess of the disposable portion as then ascertained, the donation will then be resolved to the extent of such excess.

The effect of the accomplishment of this condition retro-acts to the date of the donation, and operates its revocation or dissolution ab initio to the extent of the excess.

Under the general rule that no one can convey a greater title than he possesses and the maxim: resalido jure dantis, rcsolvitur jus aoeipientis, the forced heirs are entitled to exercise their rights upon the property, regardless of subsequent alienations by the donee and free from all mortgages or encumbrances which he or his privies or assigns may have placed upon it. R. O. O. 1493 to 1501; 1502 to 1518 ; 2041, 2045, 3301.

The only shield which the law gives to the alienees of the donee against the attack of the forced heirs of the donor is found in the provision of Article 1517, which provides that if the donee be solvent, they shall first discuss his effects before, resorting to his alienees.

But the admission in this case that the donee, Philomon Guidry, Sr., has already died, leaving no estate, makes this protection totally ineffectual.

The foregoing resume of elementary principles makes it very clear that at the death of Philomon Guidry, Jr., in his present state of admitted insolvency, his children and forced heirs, if then living, would have the right of revendicating this property in the hands of Roussel, if he should complete his purchase, to the extent necessary to satisfy their claims, unless the application of these principles is barred or overcome by others arising out of the peculiar facts of this case.

We have given very serious consideration to all the grounds on which the learned and ingenious counsel for i>laintiff bases his contention that the forced heirs will be forever barred from asserting their rights against this property.

1. He suggests that, by reason of the subsequent dealings between the donor and the donee, there has been, in effect, a “ conventional return,” which is prescribed by Article 1559 as one of the causes by which donations are revoked or dissolved. It is evident that the “ conventional return ” referred to in this article is that which had been prescribed and defined by the prior Articles 1534 and 1535 of tlie Code, and refers to a stipulation embodied in- the donation itself. Hence this cause of revocation has no application whatever.

2. lie claims that the effect of those dealings was to operate a conventional rescission of the donation by mutual consent of the donor and donee. We need not discuss what would be the effect of such a conventional rescission of a completely executed donation; because it is clear that none such has taken place in the instant case. After this qjroperty was donated, the donor was not disabled from lending money to the donee and from securing it by taking a mortgage upon this, or upon any other property of the donee. The taking of such a mortgage was not a dissolution, but an affirmance, of the donation, under a distinct acknowledgment of the donee’s ownership which was the essential prerequisite to his right to mortgage the property. Nor could his pursuit of the specifie remedy provided by law for the enforcement of his mortgage impress upon the latter any quality which it did not possess at its inception.

3. He claims that the subsequent reacquisition by the donor of the property, even by onerous title and for a full consideration, freed it from any claims of the forced heirs arising from the donation. Without holding that such reacquisition could have such effect, it is sufficient, for the purposes of this case, to say that the donor never reacquired but five-twelfths of the property, and the liability of the remaining seven-twelfths to the pursuit of the heirs would suffice to justify the defendant in refusing the title.

4. We confess ourselves unable to comprehend the process of reasoning by which counsel assimilates the acceptance of a mortgage by the donor upon the property given, to an onerous condition inserted in the donation itself, the non-performance of which, under Article 1567 C. C., would give rise to an action to rescind the donation. An action to rescind this donation on the ground that the donee had failed to pay a debt which he had subsequently created and secured by mortgage on the in'operty, would surely have no foundation to rest on; and it sufficiently suggests the utter untenability of counsel’s contention.

5. Finally, it is claimed the obligations of warranty imposed on Pliilomon Guidry, Jr., as the effect of the judicial sales made in the suits to which he was a party, will forever estop even his forced heirs from assailing the title of the purchasers at said sales. ' In other words, the claim is that if the forced heirs of Guidry, Jr., should bring their action of reduction against Roussel, the latter could repel it by opposing to them their obligation as heirs of their warrantor to protect him against eviction, under the maxim : “ Quern de evietione tenet aetio, eumdem agenteni repellit exeeptio.”

This contention might be sound if the forced heirs should accept the succession of Guidry, Jr., purely and simply, but, by operation of law, minor heirs accept only with benefit of inventory, and major heirs have the privilege of so accepting, which they would undoubtedly exercise in the case anticipated.

The Code expressly declares: “ Tire effect of benefit of inventory is that it gives the heir the advantage: 1. Of being discharged from the debts of the succession by abandoning all the effects to the creditors and legatees; 2. Of not confounding his own effcts with those of the succession.” Art. 1054, 1032, 1058.

The effect of such acceptance is to prevent all confusion between the rights and obligations of the succession and those appertaining to the heir.

In the language of Baudry La-Cantiniere: The action which the beneficiary heir brings against a third person in his own right cannot be paralyzed by an exception founded on a right against the deceased. Thus the beneficiary heir who revendientes his own property which had been unduly sold by the deceased cannot be repulsed by the maxim, Quern de evietione, etc.” 2 Baudry La-Cantiniere, No. 204 ; 4 Toullier, No. 357 ; Pothier, Vente, No. 175; 2 Monrlon, No. 289; 3 Marcado, Nos. 255-6-7.

The same principle undoubtedly apxfiies to the action of reduction brought by the forced heir to revendiente x>roperty donated by the deceased in excess of the forced portion.

This right of action is not derived from the deceased. The deceased had no such right. His donation was x>orf'©ctly binding as to him. Neither he, nor his creditors, nor his simple heirs, nor any person succeeding only to his rights, could attack it.

The right of reduction is conferred directly on the forced heirs by the law, as one personal to them, which can be exercised by them alone and solely for their own benefit, so much so that even when the prox>erty is revendicated, the creditors of the succession have no claims upon it, but it x>asses to the forced heirs free from all succession debts and charges. On the other hand, the obligation of warranty is one personal to the deceased, binding on him and on his succession, and like all other obligations, must look for satisfaction to that source alone.

The beneficiary heir is not bound by it beyond the value of the extant succession effects and may discharge himself entirely by simply abandoning the latter to the creditors.

Tims it has been held that where the donee has afterwards sold the thing given to a third person, and the donor has expressly intervened in the act of sale, ratifying it, and expressly promising for himself and his heirs to warrant the purchaser against eviction, such purchaser could not oppose even this express warranty to the forced heirs in their suit, for reduction. Cass, Journal dn Palais, 1868, p. 934.

We, therefore, conclude that the forced heirs accepting under benefit of inventory, bringing their action of reduction in their own right, would not be estopped or hindered by any warranty of their ancestor which would be an exception founded on an obligation of the latter alone. .

This obviates the necessity of examining the marked distinctions between the warranty of conventional sales and that arising under judicial sales. The latter, as regulated by the codes, can hardly be considered as a warranty proper, obligating' the vendor to maintain the title of his vendee but simply imparts an obligation to restore so much of the price as has enured to the benefit of the parties to the sale on the equitable doctrine which prohibits them from enriching themselves at the cost of their neighbor. It seems well settled they are not bound beyond the benefit received. Lambeth vs. Mayor, 6 La. 731; Cleary vs. Muny, 5 Rob. 248.

Hence the claim of the evicted purchaser against Guidry, Jr., would resolve itself into a moneyed claim against his succession to he satisfied like other similar debts.

Of course, what we have said above is not intended, nor will it operate, as decisive of rights between the plaintiff and the forced heirs in any case which may hereafter arise between them. Such case may never arise, and, if it should, will stand upon its own bottom and may be varied by any new facts or considerations which may be then presented. The issue here being whether the title tendered is such good and clear title as the defendant is hound to accept, the parties having agreed upon the facts, and the plaintiff having propounded certain pleas of law on the facts agreed, as sustaining the sufficiency of the title, we have been obliged to determine the validity of those pleas for the purpose of this issue merely, following therein the precedents of this court down to a very recent decision. Beer vs. Leonard, 40 Ann.; Valentine vs. Hawley, 37 Ann. 303; Succ. of Dupuy, 33 Ann. 277; Pontchartrain vs. Durel, 6 La. 481; Rousseau vs. Tate, 6 Rob. 471; Freret vs. Meux, 9 Rob. 414.

Tlie defendant is fully justified in refusing a title subject to such danger of eviction.

Judgment affirmed.

[Mr. Justice Poche recuses himself.]

On Application ror Rehearing.

Watkins, J.

The controversy here presented, and, in our opinion, decided, is whether the title to a certain valuable sugar pl.autation tendered by the plaintiff, was and is such an one as the defendant was bound to accésit and can be compelled to take.

The determination of this question involves the consideration of the effect of a gratuitous donation, of an interest in the land, from one Guidry, Junior, to Guidry, Senior, the effect of which plaintiff contends was extinguished by confusion resulting from the donor’s re-acquisition of the title, and through whom it passed to him free of its effect.

This application assigns error in our opinion in favor of the defendant, in two particulars.

One is, that we practically held that property was inalienable by donation, (quoad the issue, present and future, of the donor; and that, conceding, arguendo, the correctness of such a rule, there are exceptions thereto, as when, by subsequent conveyances of the property, the donor becomes the assignee, or proprietor thereof by a new title, such re-acquisition of the property having the effect of extinguishing by confusion the right of resolution.

Counsel then suggests a case where the donor at his death is the owner, by.purohase, of the property which had been theretofore donated by him, and propounds this query: Would his heirs have a right of action against the succession for the resolution of the donation 9

We cannot perceive any difference between the situation of the title in the hands of the original donor and that it would occupy in the hands of any other vendee of the donee. Eor being a purchaser from the donee, or his assign, he necessarily paid a consideration for the property and received a new title to it. lie then further suggests a case where the donee has first reacquired the property and sold it again, and propounds this query: Would the heirs of the donee be entitled to take the proceeds of the sale, and, also, have the right of resolution 9

That they would have the right of resolution, we think, is clear, but, whether they could have the right to take the proceeds of the sale, at the same time — i. e. if they were on hand, in kind, and could be identified — is very much doubted.

But, we take it, that the succession of the donor would occupy the precise attitude that the donor did in life, and the heirs in this case, as in all others, would have the right of determining' for themselves whether it was to their interest to accept or reject it. It might be insolvent, burdened with onerous charges, subjected to heavy costs and expenses of administration, and the heirs might find it to their interest to assert their right to the legitime in preference to accepting the succession, and, being forced heirs, they can choose which course they will pursue.

If the donor cannot divest himself of Ms property by gratuitous title, to the prejudice of the legitime of his heirs, we fail to perceive how he could eliminate the defect from his title by purchasing it from Ms donee. And should he have purchased from the donee arid died, how could his succession possess any better title than he had while living? 'It could not.

The Code declares that immovable, property that is brought into the succession through the effect of reduction, is brought into it without any charge of debts or mortgage created by the donee.” R. C. C. 1515. (The italics are our own.)

This article furnishes a complete answer to the counsel’s interrogatories. Its provisions were under consideration, and enforced in the case of Carroll vs. Cockerham, 38th Annual; see pages 821 and 1822; and the case of Hadden vs. Shepperd, 1 La. 506, therein cited.

The French authorities on this subject are equally clear. They say the right to demand the reduction is personal to the forced heirs, who cannot bo, from that standpoint, considered as the representatives of the deceased. In other words, the forced heir is invested, in what concerns his reserve, with a right which is proper to him. Hence he cannot be bound by the acts of his author, which are calculated to affect his legitime. Demolombe, t. 19, No. 208; Laurent, t. 12, No. 137.

The approval, or confirmation, during the life of the donor, by his children, of the acts which work prejudice to them, is no estoppeL to a suit in reduction, brought by them after the death of the father. Toullier, Vol. 5, No. 163; Troplong, Vol. 2, No. 938; Domalombe, t. 19, No. 229; Laurent, t. 12, No. 163; Aubry & Rau, V. 7, No. 229, Sec. 586.

The right of the heir to have the donated- property, brought back into the succession of the donor, free from debts and mortgages created by the donee, being personal to the heir, and not an incident of his being a representative of the deceased, it is altogether unaffected by either the acts of the author, or those of the heir during the life of the donor, prejudicial to his legitime.

Learned counsel of the applicant submits this proposition, viz :

Suppose Guidry, Sr., had survived Guidry, Jr., and that at the time of the latter’s death, the mortgage debt on the donated property due Mm, had amounted to $12,000. Now, according to the theory of our learned opponents, the. representatives of the beneficiary heirs would proceed first to foreclose the mortgage, cause the property mortgaged to be sold, reduce to possession the amount of the debt, add the same to the mass, in order to ascertain the disposable portion, and that being determined, institute the resolutory action against the adjudicates of the same property to recover the amount in excess of the disposable quantum. Such proceedings would not be tolerated for a moment in a court of justice.

Certainly not, as our argument has just explained. But counsel is in error in his conclusion that “ there could be no possible difference, nor can any reasonable distinction be made between the foreclosure of the mortgage by the donor and his heirs,” as we have just cited authority to show.

The other particular in which error is assigned, in our opinion, is that the articles of the Code upmn which it is founded do not have any application “to married persons having no children at the time of the donation.”

The portion of our opinion referred to, is the following, viz:

“ The effect of the accomplishment of this condition retroaots to the date of the donation, and operates its revocation, or dissolution ab initio, to the extent of the excess.”

On this subject wo have the following from the counsel’s brief, viz :

“ The following are the principal provisions in the Civil Code relating to the disposable portion :
“'Donations inter vimos or mortis causa cannot exceed two-tliirds of the property, if the disposer, having no children, leave a father, mother, or both.’ R. C. C. Art. 1494.
“ ' Whore there are no legitimate descendants, and in case of the pre- ■ vious decease of the father and mother, donations inter vivos and mortis ccmsa may be made to the whole amount, of the property of the disposer, saving the reservation made hereafter.’ R. C. C. Art. 1496.
“' The donation inter vivos shall, in no case, divest the donor of all his property; he must reserve to himself enough for subsistence; if he does not do it, the donation is null for the whole.’ Ibid. Art. 1497.
‘"Any disposal of property, whether inter vivos or mortis omisa, exceeding the quantumb of which a person may legally dispose to theprejudice of the forced heirs, is not null, but only reducible to that qgiantumi.’ Ibid. Art. 1502.
“ ‘A donation inter vivos exceeding the disposable quantum, retains all its effects during the life of the donor.’ Ibid., Art. 1503.
“ ' The donee restores the fruits of what exceeds the disposable portion only from the day of the donor’s decease, if the demand of the reduction was made within the year; otherwise from the day of the demand.’ Ibid. Art. 1515.
'“All of the above written Articles were contained in the Code of 1825, and are reproduced verbatim in the Revised Civil Code.’”

The contention of counsel is that under the Code of 1825, the distinct provision 'was made for donations by persons without children, and that they are embraced in Articles 1556 to 1561, of that Code, inclusive.

Article 1556 provides that "all donations inter vivos made by persons having neither children, nor descendants, actually living at the time of the donation * * shall be considered as revoked up to the disposable portion by the birth of children of the donor * * if the child be born since the donation.” (The italics are ours.)

Counsel’s contention is that there was an openconflict ” between these codal provisions, and hence, when, in 1870, the Code was revised, the articles cited were omitted, and that the argument to be deduced therefrom is that a donor, who, at the time, has no children, is unrestricted in donations he may make during the period of time he may have no children.-

This proposition is readily answered by the terms and provisions of the following Articles of the Revised Civil Code, viz:

Donations inter vivos or mortis causa cannot exceed two thirds of the property of the disposer, if he leaves at his decease, a legitimate ehild, etc.” Art. 1493.
'' Donations inter vivos or mortis causa cannot exceed two-tliirds of the property, if the disposer, having no children, leave a father, mother, etc.” Art. 1494.
“ In the cases prescribed by the last two preceding Articles, the heirs are called forced heirs, because the donor caimot deprive them of the portion of his estate reserved for them by law, etc.” Art. 1495.

All of these Articles, in terms, refer to the time of the donor’s decease, and to the heirs he shall leave at his death, as controling the amount of the donation, and as fixing the legitime of the heirs. These provisions are identical with those of Articles 1480, 1481 and 1482 of the Code of 1825. Such being the case, it appears to us, perfectly clear, that Articles 1556 et seq. of tlie latter, were properly dispenser! with by the Legislature, and eliminated from the Revised Code. Those we have just recited, therefore, contain, in effect, a similar, if not the same restriction, and fully substantiate and support our opinions.

We have given this question most careful and serious consideration, audit has only served to strengthen and fortify the conclusions reached in our original opinion. In any view that can be taken of it, and whatever might be the conclusion we should reach on the trial of the righis of the heirs, we are thoroughly satisfied that it raises such doubt of tlie validity of the plaintiff’s title, that we do not feel authorized to pronounce it perfect and unquestionable, and compel the defendant to accept it.

Rehearing refused.

Mr. Justice Poché recuses himself.


source: Caselaw Access Project

author: Watkins, J.

license: Public Domain

text:
    No. 10,236.
    Marie C. Chapron et al. vs. Henry Chapron et als.
    1.Until fell© affairs oí’ a succession have been liquidated and ascertained by a final account duly homologated, showing the not balance in the administrator.s hands, there' is no proof, such as a surety oil the administrator’s bond lias a right to require, of a breach in the condition of the bond, and t-liis is a condition precedent to judicial enforcement of liability against a surety. ,
    APPEAL from the Twenty-sixth District Court, Parish of Jefferson. Bescmgon, J.

      Gurley <£■ Mellen for Plaintiffs and Appellants:
    1. 'l'ho rule that an administrator cannot he sued personally before lie renders his final account is not invariable. Where the administrator has been removed for maladministration and all the debts of the succession have been paid, those enütled to the residue may sue him personnally on Ins bond. Tlioy should not be remitted to a suit for an account. JPord vs. Kittridge, admx., 28 Aim., p. 333.
    2. Where an administrator files an account, which he swears is correct, and the account shows all debts of the succession and expenses of administration to have been paid, and he asks that the accomjt be homologated and he be given authority to distribute the funds in accordance therewith, and the account is homologate,d, so far as not opposed, and lie is removed at once from office for maladministration, and therefore performs no act of administration thereafter, the account is final.
    3. Where a fact necessary to be alleged is not set out in flic petition, but on the trial of the cause is proved without objection by defendants, it is too late to file an exception of no cause of action. Evidence admitted without objection is binding on all tlie parties to the suit. 15 Ann. 304; id. 389 ; 17 Ann. 37; 20 Ann. 241.
    4. And so the plea of res judicata comes too late if filed after the proof without objection of facts it was pleaded to suppress. (Same authorities.)

      5. Heirs at law and widows in community are not bound by the judgment of homologation of an administrator’s account, unless cited. The only parties bound by notice published in a newspaper are creditors and legatees. 6 L. 225; 3 Ann. 3S8 ; 11 Ann. 412 ; 16 Ann. 258 ; 12 Ann. 337; 13 Ann. 97; 32 Ann. 968.

      Bice (& Armstrong and A. TS. Billings for Defendants and Appellees:
    1. A demand for a moneyed judgment against an administrator for funds allogod to have been received by him and not accounted for, will be successfully met by an exception of no cause of action. The suit .should bo for an account, not for a moneyed judgment. Hodge’s Heirs vs. Durnford, 1 Mart., H. S., 126; Flint vs. Wells, 4 La., 537; Succession of Glover, 2 Ann., *809; Tessier vs. Littell, 26 Ann. 603; Granger vs. JEteid, 36 Ann. 886, and cases there cited.
    2. Suit cannot be instituted against the surety on an administrator’s bond, until tlio necessary steps have been taken to enforce payment from the principal. C. C. Art. 3066; Pickett vs. Gilman, 32 Ann. 391; Galliard vs. Bordelon, 35 Ann. 391: Bov. Stat. Secs. 19, 1476, 2354, 3715, 3724, 3857.
    3. On the facts; The record shows that the interest ol‘ the minors, in the items sued on, has been paid to the plaintiff, their natural tutrix, in cash.
    4. The plaintiffs evidence, at a time when she had no interest to testify incorrectly, that the account was correct, and her possession of the note mentioned in tlio account, preclude her denial of its correctness, without allegations of fraud or orror.
   Tlie opinion of tlio Court was delivered by

Watkins, J.

This is a direct action instituted by the surviving widow in community, and natural tutrix of the minor heirs of J. P. Oliapron, deceased, possessing powers of administration, against a former administrator and the sureties on his bond, for moneys alleged to have been collected for tlie account of said succession, and never paid to its representatives.

Said administrator is alleged to have been discharged from his trust, at the suit of oue of his sureties, for acts of maladministration.

The defendants filed, in the first instance, an exception to the prematurity of the suit, based on the ground that no fined account of the administrator’s gestión had been filed, an dthis having been overruled, they filed an answer, pleading the general issue.

After the trial had commenced, and the greater part of the evidence had been introduced, they filed an exception of no cause of action, which seems to have been grounded, also, upon the absence of a final account. At the conclusion of the administration of proof, they filed a plea of res judie'ata, predicated upon a judgment homologating the account of the administrator.

In effect, defendants pleaded no cause of action, because no final account was ever filed; and, in the alternative they plead res judicata as to the plaintiffs’ demands, if the account filed was a final one.

Tlie judgment substantially overrules tlie plea of res judicata, sustains tlie exception of no cause of action, and dismisses plaintiffs’ suit; and tlicy have appealed.

The simple question for consideration is, whether the administrator had filed a final account of his dealings with the succession he represented.

The following averment is found in plaintiffs’ petition, viz :

That the inventory of the property of said succession, duly approved and homologated by this court, shows, besides immovables, the following property to belong to said succession, viz: $5273 15 in the hands of J. J. Fernandez in New Orleans; a note of Agolie Chapron for $1375, and a claim against her for $200. That all of said property was community property, and petitioner was and is entitled to one-half thereof in full ownership, and to the possession and usufruct of the other half inherited by the said children, as heirs aforesaid. That said Floury Chapron, as administrator, collected said sums * * * aggregating $0848 15. That said Chapron has never paid said moneys, nor any part thereof, to said succession, or to petitioner, but, on the contrary, in gross violation of his duties as such administrator, has wrongfully and illegally retained said moneys, and appropriated the same to 1ns own individual use.”

The substance of these averments is, that the administrator received, and converted said moneys while in office, and failed to pay over, or account for the same, on his destitution.

The record shows that the administrator, in response to a rule taken by one of his sureties, filed an account of his administration, during the years 1881, 1882, 1883 and 1884. This was accompanied by a memorandum, showing the total amount of succession funds administered upon, but the accounts themselves merely make a resumé of collections and disbursements during the pendency of tlie administration. They do not appear, or purport to show the balance of funds in the hands of the administrator, or to account for all of the effects of the succession he administered.

Hence neither the averments of the petition, nor the proof adduced on the trial, disclose a state of facts on which a final settlement can be made, or a final judgment rendered.

We are of opinion that plaintiffs have mistaken their remedy. Their piroper action was one for an account.

In Lay vs. Succession of O’Neal, 27 Ann. 643, it was said: '‘We think the exception should have been sustained. Instead of following the plain provisions of Article 998, of the Code of Practice, and calling upon tlic executrix of tlie deceased to file an account of tlie tutorship'of O’Neal, and by opposition to the account raised issues involving its correctness, and then having the various matters in contestation, in their regular order, duly and regularly proceeded with and determined, and the tutor’s liability, if any, definitely fixed by final judgment of the probate court, tlie plaintiffs bring this suit against the succession of O’Neal for au arbitrary amount which they fix themselves as the indebtedness of tlie tutor, and pray judgment for that sum. * * We regard tlie proceeding in this case as irregular, and not in conformity with law, and conclude that it cannot be maintained.”

In Granger vs. Reed, 36 Ann. 845, suit was for tlie recovery from a defunct administrator of certain funds be bad collected aud retained, and this court said:

This consideration fairly illustrates tlie wisdom of the rule of jurisprudence which prescribes that in such cases tlie action should not be for a moneyed judgment against an unfaithful administrator, but it should be for an account.” Galliard vs. Bordelon, 35 Ann. 390; Pickett vs. Gilmer, 32 Ann. 997.

These opinions are in keeping with tlie provisions of the Civil Code Revised Statutes and previous opinions.

Until the affairs of the succession have been liquidated and ascertained by a final account, duly homologated, showing the net balance in tlie bands of the administrator, there is no proof, sucli as the surety on the administrator’s bond lias a right to require, of a breach liaviug been made in the conditions thereof, which is a condition precedent to tlie judicial enforcement of the surety’s liability. R. C. O. 3966; Wilson vs. Murrett, 6 R. 68; Hodges Heirs vs. Durnford, 1 N. S. 126; McMicken vs. Millaudon, 2 La. 184; Flint vs. Willis, 4 La. 537; Philps vs. Sawyer, 7 Ann. 551; Tessier vs. Little, 26 Ann. 603.

Judgment affirmed.


author: McEnery, J.

text:
    No. 10,305.
    Andrew Downey, Syndic, vs. Succession of John Henderson.
    Demands against a succession which arc of long standing, and which could have boon paid in tlio lifetime of the deceased are not regarded with favor. A party presenting them must to overcome the presumption against them, support them with strong and positive testimony. Where a party presenting such a claim went into insolvency and was appointed syndic during the lifetime of the debtor and omitted to place the claim in his schedule of assets, and several years after his death sued on tlie .claim, and gave no satisfactory account of the omission to place the same on his schedule, it will require “peculiarly strong and excoptionaliyjconclusive testimony” to rebut the unfavorable presumption ensuing from the doubt and uncertainty which shrouds it.

      APPEAL from tlie Citil District Court for the Parish of Orleans. King, J.

      Geo. L. Briyht for Plaintiff and Appellant.

      Ham it el L. Gilmore for Defendant and Appellee:
    1. A builder’s account for labor performed and material furnished on job work is an open account and proscribed by three years. Article 3538, O. C.
    2. Parol evidence is inadmissible to prove any acknowledgment of a debt by a deceased person in order to take the same out of proscription. Article 2278, O. O. Parol evidence ivS inadmissible to prove an acknowledgment of an open account in order to take the same out of prescrifrtiou. Act No. 78 of 1888.
    3. A partnership, formed exclusively for manufacturing imrposes, and wherein one partner is to buy for his own account all the products and to make all imrcliases, is not a commercial partnership, and tlie admission of a debt by one partner will not take it out of proscription as to the other. Articles 2825 and 2872, O. C.
    f. No acknowledgment of the debt herein sued on, either oral or written, and no interruption of 2>rescription, is shown in this case.
    5. A stale demand long withheld from prescription or prosecution until bo against whom it is preferred has died, is regarded with disfavor. It must be established, when no hindrance was in tlie way, with more than reasonable certainty. The unfavorable presumi>lion created by tlie delay can be removed only by peculiarly strong and exceptionally conclusive testimony. Wood vs. Egan, 39 Ann. G8á; Cutíes vs. Collins, 37 Ann. 95; Borionheimer vs. Bodenlicimer, 35 Ann. 1005; Wilder vs. Eranklin’f? Executor, 10 Ann. 279; BonaíFó vs. Bonaftb, Manning’s Unreported Cases, 339.
    6. A man’s own declarations on the face of a judicial record are the highest evidence against him. Delacroix vs. Provost’s Executors, 6 M. 280.
   The opinion of the Court was delivered by

McEnery, J.

In the year 1879, during his lifetime, John Henderson employed Andrew Downey, a carpenter and builder, to construct a building and repair another on property owned in the City of New Orleans hy Henderson. Itemized accounts showing the amount of work done were recorded. In 1883, while Henderson was alive, Downey went into insolvency, and omitted to place on his schedule the amount now claimed from the succession of Henderson. Henderson died in 1885. Tlie widow John Henderson, natural tutrix of the several heirs of Henderson, filed a rule on Downey to have the inscription- of the lien for iahor and materials which he had recorded erased and canceled. In 1887, Downey filed a petition in his insolvency proceedings, in which he had been appointed syndic, alleging that he had inadvertently omitted to place the claim sued on in his schedule of assets. He brought suit against the succession of Henderson for the amount.

The demand is stale and was long held from presentation. Henderson was solvent, and no doubt could have easily paid the amount. Presenting the claim so long after his death casts snsx>icion upon it, and an unfavorable presumption is created by the delay. Wood vs. Eagan, 39 Ann. p. 684.

No satisfactory explanation is made for omitting the claim from the schedule of the insolvent Downey. The plaintiff’s claim is shrouded in doubt and uncertainty, and the evidence in the record is not of that strong and.positive character to overcome the unfavorable presumption created by the long delay in its presentation and its omission from the schedule of the insolvent Downey, who was the syndic in his insolvent proceedings.

It is unnecessary, therefore, to consider the question of prescription.

Judgment affirmed.


author: Bermudez, C. J.

text:
    No. 10,336.
    Succession of Anna Maria Bellande.
    The Civil District Court for tlio Parish of Oilcans exercises a Mended probate anil general ordinary jurisdiction and has authority to pass upon questions of ownership of real estate, when raised by an opposition to an account involving the character of the, title of such property.
    An opposition filed after an account has been homologated, as far as not opposed, and boforo final judgment, and which simply joins in an opposition filed before such homologation, does not come too late.
    Evidence is admissible from a surviving husband to show error in an act reciting that certain real estate was acquired by his wife with her paraphernal funds and for her separate benefit and-advantage, although he was a party to the act.
    Evidence is likewise admissible from him to show that the paraphernal property of the wife was Improved by the community and that the value of the improvement is common property.
    The rulings in 33 Ann. and in 10 Ann. 379 have no bearing, as the charge of error ivas not made then as it is in this case.
    APPEAL from tlie Civil District Court for tlio Parish of Orleans. Houston, J.
    H. J. Lewis for the Administrator, Appellant.

      H. H. JSryan for the Opponents, Appellees.
   The opinion of the Court was delivered by

Bermudez, C. J.

The iinal account and tableau presented by the administrator of this succession and who is the surviving husband in community of tlie deceased, is opposed by one of lier heirs, on the ground, that the rents and revenues yielded since the death by a piece of real estate which was the paraphernal property of the wife, have been accounted for, as though the property formed part of the community.

To this pretension, the husband has filed defences which go to the jurisdiction, of the court to try the issue of the ownership and to establish that, although the title was taken in the wife’s name with the recital that the purchase was made for herself, her heirs and assigns, with her own separate and paraphernal funds, the statement was made in error, and that the value of the property is an acquet of the partnership affairs.

After the amount had been homologated, as far as not opposed, certain parties intervened and joined in the opposition already filed, to a certain extent.

The opposition, is levelled at other items of tlie account and was passed upon in that respect, by the lower court, in a manner which does not appear to be an object of complaint in this court.

On the trial, the husband administrator offered to introduce i>roof to show the alleged error in the recital of the act of purchase; but the court refused to admit any, considering that the husband, under whose authority the purchase and investment had been made, was estopped from contesting its contents.

An offer was also made to show that, although true it may be that the naked lot was acquired by the wife, as her separate property, the same; had been improved, during the community, by the putting up of buildings upon it, which, at the dissolution of the community, became the property, share alike, both of the surviving husband and the succession or heirs of the deceased wife; but the court declined to hear the evidence on the same ground.

Bills were reserved to the rulings thus made.

I.

There can be no doubt that the court had jurisdiction vwtione materice of the matters in controversy, whether it acted exclusively as a probate court, or as a court exorcising an ordinary and general jurisdiction, probate included.

The distinction which existed formerly between the jurisdiction of probate courts and civil courts of ordinary general jurisdiction, has been obliterated by Art. 130 of the Constitution, and the Civil District Court for the parish of Orleans, blending both jurisdictions, had the right to bear and determine tlie issues presented, regardless of tlic fact that, even if it sat as a probate court only, it would nevertheless have such jurisdiction e.r necessitate in the instant case.

ir.

The heirs who filed an opposition, after the account had been homologated, as far as not opposed, had a right to do so, for the plain reason, that their sole object was to join in the opposition already filed, which, from a legal standpoint, impliedly protected them as effectually as if they had been named in it. This supplemental opposition did not therefore come too late.

ITT.

However true it may be that a husband, under whose authority a wife acquires property with the recital in the act that the purchase, is made by her with her separate and paraphernal funds and for her exclusive, benefit and advantage and that of her heirs and assigns, — may be, as a rule, estopped from contesting the verity of the statement and the, character of the investment, it does not follow that he must necessarily be shut out from all right to attack the act, on grounds which he might have urged against others than his "wife, such as error, violence or fraud.

The recital, in the absence of a denial by forced heirs or creditors, operates as prima facie proof in favor of the wife and her heirs and the burden is upon the husband opposing on proper ground to throw the door open. Burns vs. Thompson, 39 Ann. 377.

The rulings in 35 Ann. 33 and in 40 Ann. 579, relied on, have no bearing, as no charge of error was made there as it is here. ■

This right to attack on proper charge, the husband possesses as well against the wife and her heirs, but he must be held to substantiate it by strong legal and convincing evidence.

Granting that the naked lot was purchased by the wife, as her property, it cannot bo irresistibly- claimed that the buildings said to have been subsequently put upon it, have not been erected by the community and that their value does not form part of its assets. See 39 Ann. 413.

If such be the case, the surviving husband has the right to offer valid proof to establish the fact and the court must be guided accordingly.

We think the court erred in refusing the evidence offered and that the bill taken to its ruling is well founded.

It is, therefore, ordered and decreed that the judgment appealed from, as far as it effects the real estate and improvements in question (No. 94 Fourth street, in this city), be, reversed ; that the exceptions of the administrator to the jurisdiction of the court and to the opposition filed after the partial homologation of the account, be overruled, and that the case be remanded to the lower court for further proceedings, according to the views herein expressed and according to law; and that, in other respects, said judgment remain undisturbed ; the costs of appeal to be paid by appellees and the other costs to abide the final determination of the opposition.


author: Poché, J. Poché, J.

text:
    No. 10,311.
    Heirs of Dohan vs. Robert Murdock.
    An evicted vendee of property under n defective title, tlie nullity of which is apparent from-an inspection of the title itself, will not bo considered as a possessor in good faith, so as to be released from accounting for rents and revenues during his possession.
    Under tlie laws of Louisiana the essential conditions of good faith in a possessor under a defective title are that lie was ignorant of the defects which vitiated his title, and that he had just reason to believe that he was acquiring a good title.
    Hence those defects must have reference to some hidden or concealed facts, and not to ignor anee of the law under which the title was a nullity. •
    Ho one can plead ignorance of the law in questions of ownership.
    APPEAL from the Ninth District, Court, Parish of Tensas. Yovng, J.

      Montgomery efi Randell for Plaintiffs and Appellants.

      Rerey Roberts, Steele <& Dagg and Reeves efi Snyder for Defendant and Appellee.
   The opinion of the Court was delivered by

Poché, J.

This is a petitory action, by which xdaintiffs claim the ownership of one undivided half of a plantation, by right of inheritance from their mother, and also rents and revenues for the same from tlie year 1878, inclusively.

Tlie case was before us last year, and it was remanded for the purpose of talcing evidence, as to the alleged residence, in the State of Mississippi, of Daniel J. Dolían and wife, the father and mother of some of the plaintiffs, in the year 3850, at the time of their purchase of the plantation of which the property in suit foraied a part. 40 Ann. 37(1.

Plaintiffs rest their title on the fact that the plantation was purchased by D. J. Dolían and wife, jointly, while they were residents of Mississippi, before the passage of the Act of 1852, now Article 2400 of our Code, under the provisions of which, all property acquired in this State. by non-resident married persons, shall be subject to the same provisions of law which regulate the community of acquets and gains between citizens of this State. Hence they contend that Dohan having previously alienated the other half of said property, the remaining half was owned by his wife, as the entire plantation did not fall in the community, for the reason that there was no community between the spouses at the date of their purchase.

Defendant held the property in dispute under a title to him from D. J. Dohan, executed in July, 1878.

But in amended pleadings filed since the cause was remanded, he formally conceded the defects of his title, and recognized that of plaintiffs ; and pleading the good faith of his possession, he claimed the reimbursement of all moneys expended for taxes and for improvements made by him on the property during his posssssion, and to he entitled to rents and revenues.

Under those issues the case was tried before a jury who found in favor of plaintiffs on the question of title, and on the question of rents, since the institution of the suit, in 1885, for which they allowed $600 { and they allowed credit'to the defendant for taxes and improvements to the amount of $2379 58, striking a balance in Ms favor of $1779 58. Plaintiffs appeal and defendant prays for an increase of the moneyed judgment in his favor to $5000.

On appeal the issue is restricted to the defendant’s alleged good faith in his purchase and subsequent possession.

Iiis contention is that he had just reasons to believe that, in his purchase from Dohan, he was acquiring a good title, by virtue of an act translative of property, from one whom he then believed to have been the true owner; and that lie lias only discovered the defects of his title since the institution of this suit, and, in fact, only since the previous trial of the cause.

He further contends, and the record shows, that previous to his purchase, he had his vendor’s title examined by able and eminent counsel who had reported that the title was perfect. C. C. Articles 503, 3451.

But the record shows that the defect of Dohan’s title to the property in suit was apparent, and could be ascertained by an inspection of the act under which lie claimed ownership.

On its face, and in clear and unambiguous terms, the act purported to be a sale, to “Daniel J. Dohan and Rebecca Dohan, his wife, of the County of Claiborne and State of Mississippi. Hence it was clear from tlie act that its legal effect was to make the husband and his wife joint owners of the property, which even under own laws then existing, did not become the property of a conjugal partnership or community.

It is only by operation of Act No. 292 of 1852 that property acquired in this State, by non-residont married persons, whether the title thereto ■be in the name of either the husband or wife, or in their joint names, became subject to the same provisions of law which regulate the community of acquets and gains between citizens of this State.

Previous to that legislation, the only law on the subject was contained in Article 2369 (now 2399), which provides that: Every marriage contracted in this State, superinduces of right partnership or community of acquets and gains, if there be no stipulation to tlie contrary;” and in Article 2370 (now 2401), which reads : “A marriage contracted out of this State, between qiersons who afterwards come here to live, is also subjected to community of acquets, with respect to such property as is acquired after their arrival.'' (Italics are ours.)

The conjugal partnership thus provided for is exclusively a creature of the civil law, and can result only from express legislative will; hence it could exist only under circumstances especially provided for. Now it is quite clear that the circumstances surrounding the purchase by Dolían and wife were not covered by, or included in, either of the, two articles just quoted. At the date of the purchase they, were not residents or citizens of this State, and therefore the status of their ownership could not be subjected to our laws which then regulated the community of acquets and gains between citizens of this State. Hence it follows that they became joint owners, for one undivided half each, of the property now in suit; and that the portion which had accrued to Dolían, having been previously alienated by him, the remaining undivided half was the separate property of his wife, at the time that he executed a sale thereof to the Defendant Murdock.

In judicially admitting the ownership of plaintiffs, by right of inheritance from, Rebecca Dolían, their mother, defendant practically but unequivocally admits tlie correctness of the foregoing considerations. And as they flow from a simple application of the law to the condition of things apparent on the face of the titles held by Dolían and wife, it follows that the error which defendant sets up as the foundation of his good faith was not an error of fact, but manifestly and exclusively an error of law. It was doubtless an honest error, and one in which his counsel very naturally fell, under the law as it existed at the time (in November, 1877) that he made the examination of Dohan’s title; and lie very naturally omitted to investigate the status of. our legislation in 1850, as it stood at the time that the Dohans purchased, but it was nevertheless a palpable error.

Now, under our jurisprudence, the principle is well settled that such an error is incompatible with good faith as characterizing the possession of an evicted vendee of immovable property.

The essential conditions of good faith which our law contemplates in the purchaser of property under a defective title are that he had just reason to believe that he would possess the propertyvas master, and that he was ignorant of the defects of the title which lie was acquiring.

In applying the plain and unambiguous terms of our law to the state of facts which were disclosed by the act of sale to Dohan and wife, and which were of record, the defendant was warned of the fact that Dohan was not, and has never been, the owner of the entire tract of land purchased by him and his wife jointly while they were not residents of this State; and acts, likewise of record, also informed him of the fact that Dohan had previously alienated his undivided half of the property in question.

The defects of the title were therefore, not hidden. defects, depending upon the acts, or within the exclusive knowledge, of Ms vendor or of other persons over whom he had no control; but the defects were within the grasp of his own mind, and the nondiscovery of which, at the time, simply involved him in an error of the law which governed in the premises.

Article 503 of the Code, on which lie relies, says: The vendee “ceases'to be a bona fide possessor from the moment that these defeats are made hnown to him (italics are ours) or are declared to him by a suit instituted for the recovery of the thing by the owner.”

Manifestly the defects contemplated by the law are not defects flowing from a misapprehension of the law, either by the vendor as to the title which he tenders, or by the vendee in accepting the same. No one is supposed to be ignorant of the law. They must, in the very nature of things, bo defects winch involve a misrepresented, or a misunderstood, state of facts, which are erroneously believed to exist, or not to exist, as the case may be.

In Françoise vs. Delaronde, 8 Martin, 619, this court said:

“ However much the commentators of the Roman law have differed the one from the other, and the same person from himself at different periods, on the subject of mistakes of law, they seem to agree in this, that juris error is never a good foundation for acquiring property.” See also Donaldson vs. Hull, 7 New Series 112; Lowry vs. Erwin, 6 Rob. 192; Brashear vs. Dwight, 10 Ann. 646; Bennett vs. Bennett, 12 Ann. 253; Walworth vs. Stevenson, 24 Ann. 251.

In the case of Brashear vs. Dwight, the court treated the question of error of law in the following language: “ The only question to be determined is, whether the defendant was such a possessor in good faith, as released him from the obligation to account for the fruits and revenues received by him. We have given this point a careful consideration, and are of the opinion that where the nullity which vitiates the title to the purchaser is apparent from the inspection of the title itself, he must be considered a purchaser with notice, and cannot, therefore, shield himself under the provisions of Article 495 (now 503) of the Civil Code.”

We .therefore conclude that, although fully impressed with the conviction that the defendant was morally in good faith, we must hold that he does not come up to the requirements of good faith according to law. Hence he must be held accountable for rents and revenues during the ten years of his possession.' The jury have fixed the rents at $200 per annum, and our examination of the record on that point does not justify us to disturb their finding.

In brief, plaintiffs’ counsel concedes the right of the defendant to be reimbursed the amounts which he has expended for taxes, and tor the improvement and for the preservation of the property during his possession.

In that branch of the case, the jury fixed the amount due to defendant at $2379 58, and we find that their conclusion is supported by the preponderance of the evidence.

In accordance with the foregoing views the account between the parties will therefore stand thus :

Amount allowed to defendant for taxes and improvements on the property...-........................................$2,379 58

Amounts due by him for rents and revenues................. 2,000 00

Balance in his favor.................................... $379 58

It is therefore ordered that the judgment appealed from be amended in the following particulars: 1. By decreeing, and it is now adjudged, that the defendant was not a possessor in good faith, and that he be held liable for rents and revenues during the whole time of Ms possession, for which he is held in the sum of $2000 00.

2. By reducing the balance in favor of said defendant, as the excess of his claim for taxes and improvement due by him for rents and revenues from $1779 58 to $379 58;

And it is ordered that, as thus amended, said judgment be affirmed, at the cost of defendant and appellee, in this court.

On Application por Rehearing.

Poché, J.

Now, and for the first time, counsel for the defendant make the point, that, as the deed which he obtained from Dohan was translative of title, and showed no defects on the face, the purchaser was not compelled in law, under the rules of good faith, to look further, and to examine the deed which Dohan had acquired from Ms vendor, in winch alone the defects which have vitiated his title were apparent.

And they quote numerous authorities which go to support the doctrine which they contend for in an elaborate and very able brief.

But the principle has no application to the facts in the record which have no direct bearing on the question of defendant’s alleged good faith in his purchase.

As stated in our previous opinion, the Code provides that the vendee “ ceases to be a bona ficle possessor from the moment that the defects are made known to him.” * * * Conceding, therefore, that in this case defendant’s good faith cannot be affected by defects not apparent on the face of the deed wMck his vendor tendered him, and that he was not held to a further examination, the question recurs as to whether he did not acquire actual knowledge of the facts which vitiate the title which he thus acquired, either by an actual examination of his vendor’s title-deed or in some other mode.

And in this record it is clearly proven that such an examination was actually made, and that the error under which defendant and the attorney who examined the titles labored was one of law and not of fact, and hence we correctly held that it was no shield to him in support of Ms alleged good faith.

The written opinion of the attorney, which is in the record, recites the very title-deed which showed the defects.

And in his answer to plaintiffs’ first petition in tins suit, defendant specially refers to the sale of Harris to Dohan and wife, of date February 21st, 1850, as one of the munuments of his title, with detailed reference to the deed book in wMch it can be found.

And yet in his amended answer, filed nearly three years later, and subsequent to the first appeal which came up to this court, he claims to have but recently discovered the admitted defects of his title.

But in that answer he says :

“ Defendant admits that, at the time D. J. Dohan and wife acquired the property now in controversy, they were residents of the State of Mississippi, and that said purchase was made a short time prior to the Act of 1852, making property acquired by non-resident married persons subject to the same provisions, as to the community of acquets and gains as existed between citizens of this State. * * * Defendant renews the allegations of his original answer herein and still avers that he is a possessor in good faith, that at the time of his purchase from said Dohan, and long prior thereto, the said Dohan had been and was a resident of this parish of Tensas, and this defendant believed, and was advised, that the property in controversy was the community property, and he was not aware of any exception to the general rule which would deprive said Dohan as head and master of the community, of the authority to sell this property and convey perfect title thereto.”

This quotation describes better than we could, the nature of the error under which defendant labored until the last trial of this suit.

It actually breathes the honest confession that it was simply an error of law, and of itself it fully warrants our previous conclusions on this point.

It therefore follows that we had committed no error, and that our decree must remain undisturbed.

Rehearing refused.


author: Fenner, J.

text:
    No. 10,211.
    Mrs. William Carey, Widow and Tutrix, vs. T. J. Sellers & Co.
    1. To maintain an action by a servant against a master for an injury resulting from defective buildings, premises or appliances, two elements must concur, viz: Fault, or knowledge on the part of the master; innocence of fault or ignorance of the danger on the part of the servant.
    2. However gross the fault of the master in subjecting the servant to risk from such causes, yet when the servant knows the defects and danger, and still knowingly and without protest, consents to incur the risk to which he is exposed thereby, be is deemed to assume, such risk and to waive any claim for damages against the master for injury resulting therefrom.
    3. Held that the evidence establishes knowledge by the servant of the dangerous defects which occasioned the injury and presumed assumption of the risk thereof.
    4. Distinctions between this case and that of Faren vs. Sellers, 39 Ann. 1031.
    APPEAL from the Civil District Court for the Parish of Orleans. Monroe, J.

      Harry II. Hall for Plaintiff and Appellant:
    3. Master and Servant. The risk assumed by the servant is the ordinary hazard incident to the employment, and this is synonymous with unavoidable accident. Wood, Master and Servant, p. 738. Unless t-lie act is necessarily and inevitably dangerous, no negligence. Do. 739, 681. It is not contributory negligence, per se, to engage in a dangerous occupation. Beach, Contrib. Keg. 370; Wood, p. 763; 39 Ann. 1013.
    2. The servant has a right to roly upon the care and superior knowledge, information and judgment of the employer. Wood, pp. 719, 751; Thompson, Keg. p. 975.
    An employee is not hound to impure as to the latent defects. He has a right to presume that this inquiry has "been made by tho employer, upon whom, the duty devolves, and although the servant may know of the defects, this will not defeat his claim, unless he knows that the defects are dangerous. Wharton, Keg., sec. 215; 39 Ann. 1011.
    3. A proprietor who retains control may direct what shall be done without liability for injury to tho contractor’s servants, provided he does not retain control of the means and method of its accomplishment. Wood, 599; Y. 591; Y. 7 Ann. 321; 15 Ills. 155; 15 Wall. 619.
    1. The master is liable for subjecting the servant, through negligence, to greater risks than those which fairly belong to the employment. Kogligence, for which the master is liable, is:

      a. Kogligence in subjecting the servant to the risk of injury from defectivo buildings or premises ;

      b. Kegligoueo, wliero the master, or his vice-principal, personally interferes, and either does, or commands tho doing of. the act which caused tho injury. Thompson, Keg. II, 969; Beach Contrib. Keg. 311, 350; Wood, Mast, and Serv. 676, 837, 699, 813; Wharton, Kog. sec. 205.
    The employor may he guilty of personal neglect, connecting itself with the negligence of the contractor, so as to render hoth liahle. Cooley, Torts, p. 518.
    5. Whenever the negligence of the master, united to the negligence of a follow servant, contributes to the injury, the servant injured thereby may recover from the common employer. Beaob, Con. Keg. 313; Wharton, Keg. secs. 231, 913; Xhomp. Keg. II, 913; 39 Ann. 1011.
    6. The owner is hound by the same legal obligation to the servants of the contractor, that exist as between him and his own servant, to keep tlio premises in sale condition, and is liable to any of the servants of such contractor for injuries resulting to them from defects therein, not under a contract obligation, but by force of the maxim: tiic utere tuo ut non aUenum Icedas. Wood, 699; Wharton, secs. 232, 231, 399 note; Cooley on Torts, p. 519.
    7. The servant need only raise reasonable presumption of negligence or fault on defendant’s part. The jury may fairly infer from the fact that he had performed similar acts in safety that he was not guilty of negligence in attempting to perform the act which caused tho injury. Wood, Master and Servant, p. 777.

      like ct Ammtroiiff for Defendants and Appellees.
   The opinion of the Court was delivered by

Fenner, J.

This case is identical in many respects with that of Faren, tutrix, vs. Sellers, recently decided by us and reported in 39th Ann. p. 1011. It is an action sounding in damages for fatal injury received in the prosecution of the same work of demolishing the main building of Hie Exposition, by a servant employed in the same manner, the accident ^happening only two days after that in the case mentioned.

The only points in which this case differs from the former are, first, in the nature of the accident; second, in the character of the evidence.

In Faren’s case the injury resulted from the disengagement of a purline, occasioned by the fault of the master, which we held to be a latent defect, entirely unknown to Faren, the existence of which he had no reason to anticipate, of which he received no warning and could not be held to have assumed the risk.

In the present case, the injury was occassioned by the falling of.a row of trusses near which Carey was working, which fell, not in consequence of anything done to or ux>on them at the time, but solely in consequence of the stripping of tlie building, by defendants, of the rafters or purlines which held the trusses in position. As we held in Faren’s case, there is no doubt that this stripping of the building was a gross fault on the part of defendants, and rendered them liable for any injury occasioned thereby to others, unless such other persons had disabled themselves, from asserting that liability by their own acts or conduct.

But however gross be the fault of the master in subjecting the servant to the risk of injury from defective buildings, premises or appliances, yet when the servant knows the defects and danger, and still knowingly and without protest consents to incur the risk to which he is exposed thereby, he is deemed to assume such risk and to waive any claim for damages against his master in case of injury. Thompson on Negligence, p. 995; Beach on Cont. Negligence, pp. 350, 368-9-70; Wharton on Negligence, Sec. 214; Cooley on Torts, p. 155; Wood, Master and Servant, pp. 809, 698 ; Rouer on Railroad, p. 1198; Pierce on Railroad, 379, 80.

This concurrence of the text-writers is supported by a substantial consensus of judicial authority, as well as by the plainest principles of reason and justice.

There is not the slightest conflict between the numerous authorities quoted respectively by counsel for plaintiff and defendant. They simply apply to different subject-matters. The first line of authorities addresses itself to the circumstances and causes which constitute fault on the part of the master, and subject him generally to liability for injury resulting therefrom. The second line deals with particular facts and circumstances which establish such contributory negligence or voluntary assumption of known risk on the part of the servant as makes him responsible for injury to himself and disable'him from recourse upon the master. Two elements must concur to maintain the action, viz: fault in the master; innocence and excusable ignorance of the servant.

Now, in the instant case, the evidence conclusively establishes that the weakening of the supports of the trusses and the danger of their falling at any moment were apparent ancl known to everyone engaged in tlie work, and the laborers continued their services with full knowledge of the risk they ran from this particular danger and with consequent voluntary assumption thereof. Numerous trusses had actually fallen in various parts of the building during the progress of the work. Ray, an architect, testifies that, in the condition to which it was reduced, it was a miracle if the building did not fall, and that anyone undertaking to take it down did so at the risk of his life. Lynch, the immediate employer of Carey, says the danger was apparent; that you could feel the building shake with every breeze; that the building was not fit for a mule to go in; that he told Sellers if he didn’t strengthen it, he would kill every man in it; that the danger anticipated was the falling of the trusses; that he warned the men to be careful and to go around and not to come under the trusses. Sellers was equally sensible of the danger and warned Lynch of the necessitj of bracing the trusses, the controversy between him and Lynch being as to whose duty it was to take this precaution. Hagan, who had been employed in the work, quit because he didn’t want to get hurt. Butterfield and Nadal, fellow employees of Carey, state that Lynch repeatedly warned the men of the danger of the work; that the particular danger referred to was the falling of the trusses ; that all understood this and knew that trusses had repeatedly failed. One testifies that, a few minutes before this particular falling occurred, he had gone into that part of the building to get some lumber, but the insecurity and danger were so apparent that he did not fill his order but hastened to get out. A majority of the foregoing witnesses were introduced by plaintiff. There is no countervailing evidence worth considering.

On such testimony, there is no escape from the conclusion of the district judge, that Carey knew, or ought to have known, the danger of the trusses falling, and that by continuing in the employment, with such knowledge, he must be deemed to have assumed the risk of this danger, and to be excluded from claiming damages from the master for injury resulting therefrom. Hulegh vs. R. R., 6 Ann. 497; Satterlee vs. Morgan, 35 Ann. 1166; Wallis vs. R. R., 38 Ann. 159.

We note the contention of the plaintiff that, admitting assumption of the risk of falling trusses, that danger was exaggerated by the fault of the master in not keeping the passages clear of lumber, as he had obligated himself to do in Ms contract with Lynch, and that Carey would have escaped injury if he had not been intercepted in his flight by a pile of such lumber. But it was evident that the presence of the lumber and the failure to remove it were apparent and patent to every one, and Carey could not plead ignorance of any addition to Ms risk occasioned thereby.

In Faren’s case the particular danger which occasioned the injury was not anticipated by anyone, the danger which had been anticipated of the falling of the trass, had been obviated by lashing it to the derrick, and'did not occur; it did not appear that the loosening of the purlines from the standing trasses'had happened in any other instance; and the confidence with' which Paren threw his weight upon the purline, as he had been in the habit of doing without harm through the whole progress of the work, established and excused his ignorance of any such danger.

In these respects, the case differed foto calo from this, and the master was held responsible for the injury caused by his proven fault.

Judgment affirmed.


text:
    No. 10,313.
    Succession of Amelia Sanchez.
    A creditor holding an unliquidated claim for properly not included in tlie inventory, against a succession under administration, must bring a direct action for tlie possession, or value thereof, m due course of such administration. Such a proceeding cannot be engrafted upon, or liquidated, by way of an opposition to a dual account.
    APPEAL from the Seventeenth District Court. Burgess, J.

      Thos. B. Dupree,for the Administrator, Appellee.

      G. A. Moore and House,& Grant contra.

   Tlie opinion of the Court was delivered by

Watkins, J. * E. C. Gillingham resided at Ms death in Madison paiisli, and Henry Soliorten was duly appointed administrator of Ms succession in November, 1885.

1-Iis surviving spouse, Amelia., uce Baron, removed to East Baton Rouge, and carried with her the children of the marriage, all of whom were minors, and established her domicile there. She subsequently married William Sanchez and thereafter died, leaving a small estate, consisting in part of - separate property and in part of her share in the new community. Jacob Baron was duly appointed and qualified as the dative tutor for the Gillingham minors, and in that capacity administered the Sanchez succession, and filed a final account, which is the subject of the opposition of Schorten, administrator of Gillin giman’s succession.

His claim is, substantially, that one-half of the $990, which is carried on the final account, is an asset of the Gillingham community, and should be surrendered to him. That Mrs.' Gillingham (Sanchez) took possession of, and converted to her own use, property and cash belonging to her husband’s succession, to the amount of $3000, for which Baron, administrator, should account. That the original and supplemental inventories show the total appraisement of property which came into his hands to have, been $2906 70, of which said administrator has only accounted for $1659 14, and that he should be compelled to render an account of the surplus.

Further, that he should be required to account for the property and money he recovered in the suit of Jacob Baron, tutor, vs. Sanchez.

It will be observed that no complaint is made of any item of credit carried on the account.

In an amended and supplemental opposition, claim is made for the whole of the different items, one-half only of which was demanded in liis original opposition, alleging that the recovery thereof into the succession was necessary for the payment of its debts, and that of the first community, and that the Sanchez succession was only entitled to the residue after the payment of debts.

To this opposition the administrator filed a peremptory exception to the effect that opponent has mistaken his remedy and that his petition discloses no cause of action. Other grounds were assigned, which need no mention. Those exceptions were properly referred to the merits, because an oxjposition to an administrator’s account is in the nature of an answer, and to which exceptions are inadmissible. All objections, of either law or fact, are raised on the face of the papers, in favor of the accountant. 11 Ann. 380, 071.

After hearing the evidence, the judge a quo dismissed (he oxjposition homologated the account, holding that, as there was no oxaposition to the. payment of any debt named in the account, and the opx>onent having failed to make out his case “in the form of action of ox>position to the account,” the opposition is disallowed. But the judgment charged the tutor with the amount of $2618 70, iu lieu of $1659 14, with which he had debited himself in his account, and apx>roved all the items of credit he claimed. It axqiears that, after xmying all debts, there still remains a cash surplus of $207 09, and real estate valued at $875, unsold.

Wo think the judgment api>ealed from is correct, under this statement of facts. This opposition is but a suit for tlie revendioation of property against the Sanchez succession, ana opponent’s only complaint against the administrator’s account is that his demand has not been recognized by the account. It was the duty of opponent to have instituted suit, seasonably, against the Sanchez succession, for the property he demands, if same had been demanded and refused, and to have requested a stay of further proceedings on the aecoumt, pendente lite, until judgment was pronounced thereon. C. P. 984, 985, 986; Dubuch vs. Wildermuth, Adm., 3 Ann. 408; Succession of William Porter, 5 R. 98; Succession of McCarty, 5 Ann. 434; Hen. Dig. p. 1513, B. 1 and authorities.

Judgment affirmed.

On Application por a Rehearing.

Bermudez, C. J.

Construing tlie opx>osition as a suit in revendication, we think under the authority of Cathey vs. Kerr, administrator, 15 Ann. 228, that the proceeding ought to have been not by opposition, but by a direct suit, the more so, as tlie succession of Sanchez is not under a regular administration, hut under the administration of a tutor, who, after his administration as such shall have terminated, will remain in possession of the property.

Rehearing refused.