text:
    No. 7697.
    State ex rel. W. F. Blackman vs. W. A. Strong, Secretary of State.
    Where an appeal is taken by motion, citation is unnecessary, even though prayed for, and. ordered.
    Where an assignment of errors is filed within ten days from the filing of the record it is in time to prevent the appeal from being dismissed, even though a motion to dismiss was made before the filing of the assignment.
    A motion to dismiss an appeal on the ground of acquiescence in the judgment appealed from will not be considered when there is no evidence of suqIi an acquiescence in the record.
    The fact that the defendant has executed the judgment is no ground to dismiss an appedl from that judgment taken by a third person.
    The duty of a lower judge to determine whether a certain judicial count of votes cast at an election, and the return thereunder was a valid return, is not a purely ministerial duty, and hence it cannot be enforced by a mandamus.
    ^PPEAL from the Fifth District Court, parish of Orleans. Rogers,

      James Lingan for relator and appellee.

      Albert Voorhies and Frank C. Zacharie for defendant and appellant.
    James Lingan, for relator and appellee, contended:
    That the appeal should be dismissed, because,
    First — The judgment having been acquiesced in and executed by the defendant, no third person could appeal from it. 21 A. 429 ; 27 A. 230 ; 21 A. 142; 7 N. S. 345.
    Second — -Appellant claims no interest in the case to any specific amount.
    Third — The transcript affords no data for this court to act upon intelligently. No note of evidence, statement of facts, or assignment of error. 29 A. 71, Cooley vs. Broad et al.; 23 A. 746 ; 21 A. 458 ; 9 R. 478.
    The filing of assignment of errors, after the motion to dismiss on that ground, and after fixing of the case for trial and on the trial of the case, comes too late. The ten' days allowed to file assignment of errors must be construed before case is fixed, else it would deprive appellee of his right to dismiss — since the motion to dismiss enables the appellant to cure his laches.
    Fourth — The assignment of errors cannot be considered ; first, because they come too late; second, because they refer to facts and not to law ; third, because the application of the law involved in said assignment must be guided by the facts of the case, and none appear of record.
    Fifth — Under the election law of this State, as set forth in Act No. 58 of 1877, the compiling of the returns and their promulgation being a purely ministerial function, its exercise by the Secretary of State may be enforced by a mandamus. See McCreary, $ 81, 83, and 84.
    A. Voorhies and P. C. Zácharie, contra, contended :
    First — That the Secretary of State has a right to decide whether a certain paper presented to him and purporting to be an election return is a legal return; and hence, he can not be compelled by mandamus to count and promulgate any particular paper as an election return, merely because on the face of it it purports to be such. 4 Conn. 297, 323 ; 3 Hill, 47 ; McCreary, J 82.
    Second — A court has no power to compel a recount of votes by commissioners of election after they have once performed that duty. McCreary, $ 94 ; Brightly’s Contested Election Cases, pp. 309, 313.
   The opinion of the court was delivered by

White, J.

The relator, a candidate for district judge at the last election, avers that after the polls were closed and the votes counted and the returns and tally-sheets made out at the poll, in ward two, parish of Grant, certain evil-disposed persons created disturbance, during the course of which the tally-sheets and commissioners’ returns at said poll in ward two were destroyed or otherwise taken out of the possession of the returning officers of said poll. That finding, in consequence of this state of things, that no return from said poll had'been transmitted to the Secretary of State, without which return petitioner would not be shown to have been elected, he caused the commissioners at the poll to be summoned before the parish judge, with the ballot-box, obtained from .the judge an order for a judicial c<junt of the ballots, which was made under the supervision of the judge by the commissioners. That after the said judicial count the commissioners, under the orders of the court, compiled the votes and made out full and correct tally-sheets and returns of said vote cast at the poll in ward No. 2, parish of Grant. That, although by said return, petitioner is shown to have been elected, he fears that, because two of the commissioners who signed the return protested against the judicial count, the Secretary of State will not count said return, and “ thus deprive petitioner of his prima facie election, as shown by said returns.” That the Secretary of State was without judicial power to consider the protest made by two of the three ■commissioners, being charged only with the ministerial duty of compiling the returns. The prayer was for a mandamus ordering the compilation by the Secretary of State of the return made in consequence of the judicial count, and its promulgation. The petition was filed December 31, and a rule issued returnable at 2 p. m. of that day. The answer, which is marked filed December 30, declared that no legal return bad been received by the respondent of the vote cast for district judge at the poll in ward two, parish of Grant. But that he had received returns made under protest by two of the three commissioners, under the ordér of the parish judge. That respondent was unwilling to take the responsibility of counting said returns, and declined to do so, unless ordered to do so ; that his duty in the premises was purely ministerial, and respondent submits the same.

On the same day, December 31, the alternative rule was made absolute, and judgment was entered and signed issuing the mandamus as prayed for.

On the 9th of January, Aristide Barbin, of the parish of Avoyelles, charging that he had been a candidate for district judge in ward two, parish of Grant, and was elected by the face of the returns, unless his prima facie case was destroyed by the unlawful compilation of the illegal return made under order of the parish court of Grant, prayed a suspensive appeal from the judgment making the mandamus peremptory, in the reversal of which he averred that as the candidate duly ■elected district judge of the parishes of Grant, Rapides, and Avoyelles, he had an interest exceeding one thousand dollars. The appeal having been granted, the case was before us recently under prayer for writs of prohibition and mandamus to prevent the execution of the judgment, which we allowed.

The case is now before us on a motion to dismiss and on its merits. The motion to dismiss is predicated on the following grounds :

1st. Because the defendant was not cited, although the prayer for the appeal asked for citation and the judge ordered the citation in granting the appeal, which was asked and allowed, not in open court, but in chambers.

2d. Because the appellant does not allege an interest over one thousand dollars.

3d. Because the record contains no note of evidence, statement of fact, or assignment of errors.

4th. Because the defendant had acquiesced in and executed the judgment appealed from before the appeal was taken.

We will consider the grounds separately.

First. The appeal was taken by motion. The document by which it was asked, as found in the record, has as its caption “ motion of appeal.” It commences: “ On motion of Aristide Barbin.” And the decretal part says : “ It is ordered that mover be allowed a suspensive-appeal.” True, the motion asked for citation, but if the appeal was by motion citation was unnecessary, and the prayer as well as the order,, which was responsive to it, under the rule of utile per inutile non vitiatur, was mere surplusage.

Second. The motion for an appeal does, in terms, aver an interest; of “ considerably more than one thousand dollars.”

Third. The record was filed in this court January 13, and the case was set down for hearing on the 22d, on which day an assignment of errors was filed previous to the hearing. The assignment of errors was-filed within ten days after the filing of the record, and was in time under the very terms of C. P. 897. The proposition pressed upon us is, that as the motion to dismiss was filed prior to the assignment of errors, therefore the-assignment was too late. But the law gives the appellant ten days, and the act of the appellee could not deprive the appellant of his legal right. This court held in Barham vs. Livingston, 11 A. 604, that, the act of the court ex proprio motu in fixing a case for trial did not deprive the appellee of the three days in which he was allowed to move-to dismiss. We take it .that the ten days allowed by C. P. 897 means, ten days after the filing of the record, provided the case is not sooner heard, and that as a consequence where the hearing of the case is reached before the expiration of the ten days, an assignment filed before the hearing is in time.

Fourth. There is nothing before us to show that the judgment has been executed, and nothing suggested in such a form as to justify our remanding the cause for the purpose of ascertaining the fact as to the execution. However, as we understand the groundwork of the suggestion to be, not that the appellant, but the defendant has executed, we do not see the force of the position. The text of C. P. 567 forbids an appeal by the party who has either confessed, acquiesced in, or voluntarily executed a judgment. The appeal in this case is not taken by the defendant, but by a third person under C. P. 571. There is then no-semblance of foundation for the proposition that because the defendant has executed the judgment, therefore the party appealing has no-right to appeal. In fact, that the voluntary execution of a judgment by a defendant cannot deprive a third person of his right to appeal, has. long since been determined. As said by Porter, judge, in Lacroix vs. Menard et al., 7 N. S. 346 : “ The provisions of the 571st article are-understood by us to apply to cases where the parties to a suit choose to acquiesce in a judgment by which other persons may be injured, and to protect these persons by enabling them to obtain the revision of such judgment in the appellate tribunal.”

On the MeRits.

We are clear that the court below erred. The duty of the Secretary ■of State to compile the returns under'the provisions of Act No. 58 of 1877, and Act No. — of 1878, is manifestly ministerial, to the extent that he acts within the purview of the law ; but his duty, if any there was, with reference to the return in question, was clearly not ministerial, as it involved the decision by him, under the responsibility of his oath ■of office, whether or not the judicial count and return thereunder was a valid return. The duty not being ministerial, could not be enforced by mandamus.

But were it conceded that the function to be exercised by the Secretary of State, in passing on the returns in question, was ministerial, wé are clear that he properly declined to canvass it; because it was not the return of the returning officer of the parish of Grant or the commissioners of election of the poll of ward two in that parish ; not of the returning officer, because it did not purport so to be; not of the commissioners, because two out of the three who signed it protested that they signed under the compulsory order of the parish court, and that the ballot-box as counted under the order of the court had been tampered with, and that the result did not correspond with the count at the precinct. In fact, the return was in reality the return of the parish judge, who was without authority to that end.

The judgment is reversed, and the writ of mandamus refused, at. the costs of the relator.


source: Caselaw Access Project

author: White, J.

license: Public Domain

text:
    No. 7675.
    State ex rel. E. P. Boyer vs. State Treasurer.
    "Where money is in the Treasurer’s office to, the credit of the general fund, one creditor of that fund cannot obtain a priority over others by the institution of mandamus proceedings.
    Where there is a sum to the credit of the general fund which is inadequate to pay the warrants presented to or on file with the Treasurer for payment, the Treasurer cannot by mandamus be ordered to pay the whole fund to one creditor to the exclusion of the others.
    APEAL from the Fifth District Court, parish of Orleans. Rogers',

      W. S. Benedict for relator and appellee.

      J. C. Egan for defendant and appellant.
    W. S. Benedict, for the relator :
    No discretion is vested in the Treasurer when he has funds sufficient to pay warrants presented. 18 An. 19; 21 An. 352.'
    The court cannot prescribe rules for the Treasurer. 24 An. 16.

      Where proof is shown that funds are on hand the writ must issue. 27 An. 167.
    The writ is directed to public officers “ to compel them to fulfill any of the duties attached to their office, or which may be legally required' of them.” C. P. Art. 134.
   The opinion of the court was delivered by

White, J.

The relator, alleging himself to be the holder and owner of certain warrants drawn against the general fund, amounting to $1823 61,. distributed as follows : 1874, $376 ; 1875, $512 50 ; 1876, $936 11 ; which he avers he presented for payment and met with refusal, although there' was money to the credit of the fund against which they were drawn,, asked a mandamus to compel their payment. Other persons holding warrants intervened and claimed like relief, some praying that they be paid by preference in consideration of a claimed priority of demand. The lower court made the mandamus peremptory as to to the relator and one of the intervenors, and discountenanced the proceedings of the' others. The State intervened and appealed ; the relator asks an amendment of the judgment rejecting the claim of the intervenor. The in-tervenor asked no mandamus; his proceeding was in all respects similar to those upon which we ruled adversely in the case of the State ex rel. Houston vs. the Treasurer, decided last year, and not reported. Opinion Book 51, page 32. The proof shows that at the time the application for payment was made there was to the general fund a credit for the year 1874, of $978 64; for the year 1875, $1701 75; for the year 1876, $2817 34. The proof also is that while these amounts would pay the warrants of relator, they are wholly insufficient to pay the outstanding warrants against the fund, and, in fact, entirely inadequate to pay outstanding' warrants which were on file at the Treasurer’s office awaiting payment for more than two years before this proceeding was commenced.

Under this state of fact we are clear that the judgment below was-erroneous. The elementary doctrine is that mandamus issues only to enforce the performance of a ministerial duty in a case like the one now before us, and we cannot imagine how there can be such a duty claimed' ‘as resting on the Treasurer, by which he can be compelled to pay something with nothing, or what is tantamount to it, pay one hundred dollars of debt with one dollar of money. The only theory upon which the plaintiff can possibly obtain relief is that he is entitled to priority of payment, and such a pretension was presented below, and is pressed upon our attention. It is predicated on the following grounds :

First. That the warrants held by the relator being for the salaries-of. constitutional officers, he was, as it were, preferred.

Second. That being the first to initiate the proceedings by mandamus, he is consequently entitled to priority. The first view prevailed in the court below; but it did so, we think, improperly. Even conceding, for the purpose of the case only, the correctness of the rule, because the proof makes it clear that there were on file in the Treasurer’s office a large amount of warrants issued to constitutional officers, which were filed for the purpose of being paid when funds' came in to meet them— to give the relief asked would violate the rule of priority which is invoked, and enable the relator to take the whole sum for his warrants, when other warrants of equal dignity were on file and awaiting payment. We expressly negatived the theory in the case already referred to that where money was to the credit of the general fund one creditor of the fund could by the institution of mandamus proceedings obtain a preference over others. Of course, if there be money enough to pay one claimant, and two demand payment from the Treasurer, he cannot pay both; the duty does not exist to pay both ; yet the making the mandamus peremptory to pay one would be a recognition of the? existence of the duty, for it could only issue to enforce a pre-existing and ministerial duty. Of course we are not called upon to say what is the Treasurer’s duty under the circumstances. When a case is presented requiring our opinion, it will be time enough to express it.

The judgment is reversed, and the writ of mandamus refused at cost of the relator.

Rehearing refused.


text:
    No. 5818.
    Jason T. Diboll vs. Ætna Life-Insurance Company of Hartford, Connecticut. Mrs. Nancy Lotspeich, Intervenor.
    An agent of a life-insurance company is without authority, hy giving an antedated receipt for-premium, to revive a policy which was forfeited for the non-payment of the premium as stated in the contract:
    Held, that the facts of this case did not justify holding the defendant under an agreement to revive an old, or issue a new policy upon the insured proving to be a good risk after satisfactory examination.
    Where there is a passive violation of a contract default is necessary.
    FFEAL from the Fifth District Court, parish of Orleans. Cullom, J.
    FT. N. Ogden and John H. Ilsley for plaintiff and appellee. Singleton & Browne for defendant and appellant.

      D. C. & L. L. Labatt for intervenor and appellant.
    Singleton & Browne, for defendant and appellant, contended: -
    It is fully established by the evidence in the record, that the policy issued by defendant in 1860, on the life of Lotspeieh, had lapsed and become forfeited ; and that the terms and conditions upon which defendant, in 1869, agreed to issue a non-participating policy to Copes, the assignee of the forfeited policy, were not fulfilled by him. Defendant is, therefore, in no manner bound.
    D. C. Labatt, for intervenor, appellant, contended :
    The main issue is, was there or not at the death of Lotspeieh a valid subsisting contract with the defendant to insure his life ? It is admitted by defendant that there was a life policy in August, 1860. Its forfeiture has not been shown, and in case of doubt, it is not to be decreed, as forfeitures are not favored in law. 4 Bigelow, Life and Accidents, p. 5 ; 29 Barb. 557 ; 25 Barb. 189 ; 35 N. Y. 131; 25 Conn. 542 ; 19 La. 214 ; G Wall. 129. Furthermore, it is shown that an agreement to revive the policy was made with defendant and is binding upon it.
    The judgment appealed from is correct so far as it decides that defendant is liable for the amount of the policy ; but it should have been in favor of intervenor, and not oí plaintiff. 12 Smith, 253; 1 Zy-briski, 347 ; 1 Big. 315 ; 41 Miss. 538 ; 20 Beaver, 389 ; 3 Big. 559, 702 ; 4 Bigelow, 135, 572 ; 3 Kent, 375 ; 17 N. Y. 427 ; 1 Phil. 77.
    H. N. Ogden, for plaintiff, appellee, contended :
    A man having insured his life fot his own benefit and that of his executors, administrators, and assigns, under circumstances entirely free from the suspicion of intending to obtain a wager policy, can make a valid sale of his rights under that contract for a valuable ■consideration. Such a policy of insurance is a species of property salable like any other, and is not necessarily lost to the owner when he becomes unable to keep it in existence any longer himself. 3 Simons, 56 ; 20 N. Y. 32 ; 13 N. Y. 31 ; Bliss on Life Insurance; Bigelow’s Life and Accident Insurance Rep. p. 365.
    If the policy originally issued by defendant on the life of Lotspeieh, and assigned to plaintiff, had lapsed, which is conceded only for argument’s sake, the evidence shows clearly it was revived by defendant.
   The opinion of the court was delivered by

White, J.

The plaintiff, claiming as assignee of a policy of insurance issued by the defendant company on the life of Benjamin F. Lotspeieh, for the sum of five thousand dollars, sues to recover the amount. The averments are in substance as follows : That Lotspeieh was insured on the 10th of August, 1860, through the instrumentality of J. S. Copes, then agent of the defendant here, the policy issued numbering 5398. That the first premium was paid in August, I860, and that when the second payment became due, in 1861.it was made to the agent of the company, J. S. Oopes, communications then being interrupted with the company ; that as soon as they were re-opermd, in June, 1862, the agent of the company notified it of the payment which, under frivolous-pretexts, it declined to recognize ; that the policy having been assigned to petitioner, he continued to pay the premiums regularly as they fell due, to J. S. Copes, agent, who regularly remitted or tendered them to-the'company; that in 1869 Copes visited the home office of the company, and it was agreed that the company would recognize the risk, provided a certain sum was paid for past-due premiums, and provided the insured was still living and in reasonably good health ; that Copes, as petitioner’s agent, traced up the insured, found him living in the State of Kentucky in good health, had him examined by a competent physician; that he transmitted this examination to the company, and tendered the agreed-on sum, which was refused; that petitioner did every thing necessary to carry out his portion of the contract up 'to the time of the death of Lotspeich, in 1872; made the requisite proof of death, and was refused payment. The defendant answered by admitting the issuance of the policy and the payment of the first premium ; averred that when the second premium was paid to the agent, in 1861, he was without any authority to receive, the agency having been revoked by the war, which was then flagrant; that when the agent informed them of the receipt of the premium they notified him of his want of authority, and instructed him to return the premium ; that despite this fact, he, in 1862, after the revocation of his authority, pretended to receive for account of the company another payment; that in 1869, in order that no imputation of bad faith might rest on it, the corporation agreed to reinstate the policy, if upon proper examination the insured was found to be a good risk, on the payment of all premiums due with interest from the date they became due, which was declined ; that then an agreement was formed by which, on the payment of a designated sum and an annual premium, a new non-participating policy was to be used in lieu of the lapsed and participating one, on condition that the insured proved to be a good risk after suitable examination ; that not finding the risk satisfactory, it was not taken.

The intervenor is the widow of Lotspeich, and the tutor of her minor children, the issue of her marriage with him. Her claim is, first, that Lotspeich had no authority to assign the policy; second, that neither the first nor second assignee had any insurable interest on the life of her hushabd. She joins the plaintiff in seeking to enforce fire-policy, and seeks recognition as owner of its proceeds. We will determine first the liability of the defendant, aiid if we find a liability, will pass on the controversy between the plaintiff and intervenor.

It is difficult to analyze the pleadings so as to state precisely the issues presented, whether the claim is under the original policy, or upon that policy revived by the agreement of 1869, or on a new policy agreed to be issued in 1869. The claim is of necessity based upon one of the three. We understand the brief of the plaintiff’s counsel to rest his case on the question of a contract of revival in 1869 ; but we do riot take this as an admission that no right existed in the plaintiff in 1869, prior to the revival. For this reason, and because we think that the burden of proof largely depends on whether any rights existed in 1869, we will examine the case in its threefold aspect.

The original policy was issued in 1860, the premium was payable on the 10th of August, 1861-62, etc. By the terms of the policy the premium was payable at the home office, and the receipt of the company was rendered necessary. The receipt of 1861, as also that of 1862, is signed only by Oopes, agent, and on its face it states that the agent was not in possession of the company’s receipt, .which was the prerequisite evidence of the right of the agent to receive. Even were this not the case, when the payment of 1861 is claimed to have been made the war was flagrant, and the agency had ceased to exist. N. T. L. Insurance Company vs. Stafham, 93 U. S. 21. Were we even to hold that the agent’s authority continued despite the war, the position of plaintiff would not be improved; the receipt of the premium in 1861 was communicated to the company, according to plaintiff’s own pleadings, in June, 1862, and the uncontradicted testimony is that the company at once notified him that they considered the agency revoked, and declined to be bound by his acts. Despite this fact, the receipt was given for the premium, as per the receipt of the agent on the 10th of August, 1862, after the express revocation of the agency. There is another view equally fatal. The first receipt, that of 1861, signed by J. S. Oopes, agent, purports to have received the premium from B. F. Lotspeieh on the 10th of August, 1861. Now, on the policy is an assignment made on the 22d August, 1861, by the assured Lotspeieh to the firm of Oopes & Phelps, composed, as the record establishes, of J. S. Oopes and H. J. Phelps. Oopes testifies that the transfer was made on the 22d August, 1861, and his testimony is in accordance with the date of the written assignment ; he also pointedly says that at the time of the transfer the premium had not 0een paid by Lotspeieh ; in this he contradicts the written receipt signed by himself, which is dated the 10th of August. His testimony as to the premium not having been paid when the policy was transferred is given with great particularity, and was pertinent. Now, if his testimony be correct, the policy had lapsed when the premium was paid or received by him. The premium was due on the 10th of August, the transfer was on the 22d August; if paid after that date, the receipt, which is dated the 10th, must have been antedated,

That an agent of an insurance company cannot become the transferee of a lapsed and forfeited policy against the company he represents himself, accept the assignment as agent, and then recover the policy by ¡an antedated receipt for the premium, is self-evident. The same diffi•culty in, if it were possible, a more pronounced form, exists as to the ■assignment under which the plaintiff holds. It bears date the 4th .'January, 1862, and the receipt for premium the 10th of August, 1862. Now the consideration of the transfer, as testified to by the plaintiff, ■was remuneration for’his services rendered the partnership while the partners were absent during the war, an absence which commenced -after the date of the assignment. Copes himself swears that the assignment to Diboll, his son-in-law, was made in consideration of the attention given by him to the business of Copes & Phelps during the ab■sence of the partners. “ Until after the close of the war and the return ■of those partners.” Now if this be true, both the assignment to the ■plaintiff and the receipt of premium from him must have been ante■dated by several years. The only escape would be to disregard as •erroneous, or given through mistake, the testimony of the plaintiff, as -also that of Copes, and to adhere to the dates found in the writings. But if we did this, the consequence would be the inference that the •transfer was without consideration, in other words, unreal, and therefore that Copes, acting for Copes & Phelps, transferred to plaintiff without consideration, then gave, as agent of the company, although his agency had been revoked, his approval to the transfer, and subsequently ■to the transfer gave a receipt for the premium as agent. Under this ¡state of things, we think. the clause under the original policy was evi•dently forfeited, unless revived by subsequent agreement, and that as •the new agreement was a new contract, the burden was on the plaintiff to prove it. Without reference to the proof that the original contract •once existed, the testimony as to the revival is substantially as follows :

The president of the company testifies that upon representations ■made by Copes that the payments had been made in good faith, without knowing who was the assignee, he offered to revive the policy, conditioned on the payment of the arreared premiums, with interest, then ■amounting to over a thousand dollars, the party to be re-examined and ■accepted as a satisfactory risk ; that the proposition was not accepted. ‘That thereupon, at the solicitations of Copes, they agreed to issue a ■new non-participating policy for $5000, Copes to pay $192 for arrearages, instead of the sum above mentioned, the party to be examined and .shown to be a good risk. The witness is supported by a written memorandum of the terms of the agreement made at the time, and is corroborated by the testimony of an employee of the company who was present at the agreement, and swears that he made the computation for the rate of the new policy thus proposed. True, Copes contradicts this testimony, and insists that the old policy was to be reinstated, but while in some points he is positive, in others he is hesitating and uncertain. When pressed to say whether the contract was one for a new policy or the old contract revived, he says : “ I think my recollection is-that the old policy was to be reinstated ; I don’t think it was particularly settled which was to be done; but the old policy was to be reinstated or its equivalent.” His letter, written at the time, we think,, conclusively shows that the-agreement was to issue a new policy. The letter is as follows :

“U. S. Hotel, 19th June, 1869.
“ T. O. Enders, Esq,
“Secretary, &c., 2Etna Life Ins. Co.:
“Dear Sir- — I omitted to say that, as the assignment of the old policy by Mr. Lotspeich was to a mercantile firm, Copes & Phelps, not. in existence since the war, I shall be obliged to you if you will make out. the new one directly to me. Mr. Phelps has no interest in it.”
“ With great respect,
' “ Yours truly,
“ (Signed) J. S. COPES.”'
“ P. S. — I will return you the old policy, of course, on receipt of the>. new one.
“JOSEPH S. COPES.”

The fact is, the conviction left on our minds by the testimony is. that the company was willing to reinstate the policy upon a re-examination, and payment of arreared premiums; that this was declined, on account of the large sum to be disbursed, and an agreement was entered upon by which the insurance was to be revived and continued upon the non-participating plan. We say revived and continued,, for our understanding of the proof is that the premium in the new policy was not to be charged for as if the policy was newly and for the first time issued, but as if originally issued at the date of the first policy on the nonparticipating plan. This explains the letter of the secretary in which the words revive and continue the insurance are used, reconciles it with, the letter of Copes, and harmonizes with the proof in the record. The-claim of plaintiff cannot be successful on the original policy, nor on the agreement to revive the original policy, for none such was made. If-successful at all, it depends on an agreement to revive and continue the risk by the issuing a new policy. The testimony of Copes is that the-agreement was predicated upon the assured being alive and in reasonably good health ; that of the officers of the company is that it was. upon the condition he was. alive and would be considered a good risk,, after satisfactory examination by a competent medical examiner. Thet-burden of proof was on the plaintiff. For this reason, and because of impressions resulting from an examination of the whole of the testimony, as also because we think the proof is that medical examinations are shown to be required by all companies, before either reviving an old and lapsed or issuing a new policy, we think the agreement, as stated by the officers of the company, was the one entered into. The difference, however, is not very wide between a condition of reasonable good health and a good risk. The plaintiff, or rather his agent, Copes, must-have understood that the reasonable good health was to be shown by a medical examination, because he proceeded at once to have the person examined by a physician, not an examiner of the company, transmitting his certificate as the evidence of compliance with the condition upon which the new policy was to issue. The proof is that shortly after the agreement, the agent of plaintiff, J. S. Copes, forwarded to the company his draft on a firm of which he was a member for the amount-agreed to be paid to obtain the new policy. That he was replied to, that the draft would not be used until the party was shown to be in good health, “ as such was the understanding the letter concluding by saying : “ I will not send on your draft for collection, but, as I have stated, wait further advices, when, if satisfactory, your wishes about the policy shall be complied with.” That Copes then had the person to be insured examined, and transmitted the certificate of examination to the company, who not being satisfied with it declined to issue the policy, and returned the draft. We think the company was authorized to decline the risk upon the showing made by the certificate, 1st, because the certificate was not made on the blank used by the defendant company for the purpose of examining those whom it was to insure ; 2d, because the-answers made by the examiner were not explicit and full; 3d, because one of them declared the "person not to be a first, but a second class risk ; fourth, because, although the examiner was asked by one of the questions to state whether he recommended the risk, he did not answer the question, thereby givingrise to the legitimate inference that as he had classified the risk as second-class he declined to recommend it. There is testimony showing that insurance companies do not risually regard the classification of risks by medical men into first, second, and third class, but that they more particularly regard the recommendation of the physician as to the advisability of the risk. The agent of the defendant says that it is the rule to decline risks classified as second-class, and that this was the invariable rule for the conduct of its business-during the time Copes was the agent. Even if this were disregarded, the very witnesses who swear to the little importance of the classification of risks into classes say that the important consideration is the recommendation of the examiner that the risk be or be not taken. “The examination was certified to on the 30th January, 1870. Now, it must have been transmitted to the company between the day it was made and the 12th oí February, 1870, when it is shown the draft was returned to Copes. Lotspeich died on January 25th, 1872, and although ■nearly two years thus elapsed between the refusal of the company to ■issue the new policy, on account of the unsatisfactory nature of the proof, and the death, no putting in default, no tender of the necessary proof, nay, not even complaint on the part of the plaintiff is shown. So ‘far as the record discloses, the first intimation that the issue of the policy was considered to have been wrongfully refused was conveyed ■after the death of the person upon whose life it was to have evidenced a ’risk. To say now upon parol evidence that the person was in good 'health, and hence a good risk, would be making a contract for the parties, and substituting our will for theirs. For look as we may at ■the contract to issue the new policy upon a condition, it can only be ■considered as an obligation to do. If, in violation of the contract, the "thing agreed on was not done, then a specific performance could be invoked, where the performance was possible, which is clearly not the ■case here, as the party upon whose life the policy was to be issued is ■dead, and the satisfactory examination which was the condition is no longer possible. Then the plaintiff’s remedy is an action in damages for non-compliance; to that default was a prerequisite, the refusal to issue the policy upon the insufficient certificate having been not only not an active but no violation of the agreement. These views dispose likewise of the intervenor’s claim against the defendant, and render unnecessary an examination of the issues between the plaintiff and intervenor.

The judgment below is reversed, and judgment be and the same is hereby rendered in favor of the defendant and against the plaintiff and Intervenor, with costs in both courts.

Rehearing refused.


author: Spencer, J.

text:
    No. 7678.
    Sarah E. Vance et al. vs. Sarah E. Vance, Executrix. G. W. Sentell & Co., Intervenors.
    Wrom the moment of his second marriage, the natural tutor owes to his minor children the reuts and revenues accruing on their share of the community property held and administered by him. If the tutor has mingled the minor’s property with his own and used it in his own interest, he is responsible for the rent, or hire of the property during his possession, and five per cent per annum interest on each year’s amount of such rent or hire.
    "The tutor is liable for tho money of the minors received by him and legal interest from the day of its receipt, but not for compound interest.
    "JXhis court cannot amend a judgment, as between tbe appellees.

      TElie judgment against a succession cannot be amended by this court so as to increase its amount, except contradictorily with the legal representative of the succession.
    Article 123 of the constitution of this State invalidating as to third persons, after January 1st, 1870, all mortgages not recorded, is not in conflict with article 10 of the Constitution of the United States which forbids the passage of any law impairing the obligation of contracts.
    ^PPEAL from the Parish Court of Bossier. Fort, J.

      T. T. & A. X>. Land for plaintiff and appellee.

      J. A. Snider for succession of Yance.

      J. D. Watkins and Looney & Flstner for intervenors, appellants.
    T. T. & A. D. Land, for plaintiffs, contended:
    First — We therefore affirm the true legal doctrine to be, that a tutor has no right, power, or authority to retain the movable effects and to cultivate a plantation, the property of his ward, without the advice of a family meeting and the authorization of the judge. This is the only doctrine that will carry out the spirit and policy of the law for the protection and preservation of the property and the revenues of minors. It was so held in the case of Boisseau & Ford vs. William Marks, Tutor, decided in 1875, but not reported. And if the tutor fails to do this, he will be responsible for whatever he could have rented or hired the minor’s property for. C. C. 327, 328, etc.; 3 A. 611.
    Second — That the legal tacit mortgage in favor of minors which existed prior to the constitution of 1868 was not affected by a failure to record it before January 1st, 1870. That article 123 of that constitution requiring such recordation divested vested rights, impaired the obligation of contracts, and ttu refore was in conflict with article-10 of the Constitution of the United States; 6 N. S. 585; 3 L. 337 ; 4 L. 407 ; do. 94 ; 8 Wheaton, 1.
    Third — Homologated accounts of a tutor are merely provisional. They are not conclusive against the minor. C. C. 356; 13 A. 464; 29 A. 722.
    Fourth — A tutor cannot expend more than or contract debts exceeding the minor’s revenues, without judicial sanction. See 28 A. 898 ; 14 A. 760 ; 12 A. 074 ; 11 A. 667 ; 4 A. 88 ; 3 A. 325 ; Civil Code, art. 350.
    Fifth — The tutor cannot claim commission on the gross revenues of the minor. See 9 A. 505; 12 A. 334; 1 Hennen’s Digest, page 921, No. 9.
    Sixth — The tutor owes legal interest on the revenues of the minor which he fails to invest, when they exceed five hundred dollars. See C. C. art. 347; 3 A. 611; 5A.189; 5 A. 214 ; 4 A. 214; 14 A. 764; 11 A. 523; 10 A. 288 ; 4 R. 290.

      Seventh — The tutor cannot encroach upon the capital to pay expenses, exceeding the minor’s revenues, without judicial sanction. See C. 0. art. 350.
    J. D. Watkins, for intervenors, contended:
    First — That the demand by the former ward of a tutor for the proceeds of the crops produced by the tutor on the plantation of the ward1 estops the latter from urging that the tutor was without authority to buy supplies and hire labor to make the crops.
    Second — That article 123 of the constitution of this State is not in conflict with the Constitution of the United States. 20 A. 533 ; 26 A. 584; 11 Peters, 420, 539 ; 1 Baldwin, 69 ; 8 Howard, 163; 1 Howard, 315 ; 1 MeAll, 513 ; 9 Howard, 407 ; 13 Peters, 312 ; 22 A. 278 ; 24 A. 25.
    Third — Homologated accounts of a tutor have the force of judgments, and can only be attacked by a direct action.
    Fourth — When a constitutional provision has received a settled judicial construction, and is afterward incorporated into a new constitution, courts will feel bound to adhere to that construction. (1874 Exp. Roundtree; 51 Ala. 42; 30 Mich. 201; 48 Ala. 540 ; 14; Fla. 587). Fifth — Upon a question of doubt as to the constitutionality of a statute it is the duty of the courts to sustain the statute. 62 Ill. 268 ; 5 W. Va. 22 and 85 ; 44 la. 529 ; 41 Cal. 147; 66 Pa. 164.
   The opinion of the court was delivered by

Spencer, J.

This is a suit for settlement of a tutorship. Mary E. Gilmer, wife of S. W. Vance, died October 15th, 1859, leaving two children, viz.: James B. G. Vance and plaintiff Sarah E. Vance, issue of her marriage with S. W. Vance, who was duly qualified as their natural tutor. The deceased wife left a large separate estate, which was at her death inventoried at the sum of $>106,776 07. it consisted of plantations, slaves, mules, farming utensils, etc. The community property between her and her husband was inventoried at 553,323 33, so that the estate of said minors amounted to 5133,437 23. S. W. Vance remarried in 1860, and thereby ceased to be usufructuary of the community property. He died in 1877. These minors also inherited considerable property and money from their grandfather, P. R. Gilmer, in the year 1861.

The property thus inherited from P. R. Gilmer, besides a large number of slaves, consisted of about $30,000 in stocks, bonds, and notes given by purchasers of the property of the estate.

They also inherited, about 1863, a considerable estate from their great uncle, George E. Gilmer.

The father and tutor took possession of all these estates, and seems to have administered them at his pleasure and-without advice or authority of court, and in his own interest.

In 1804 James B. G-. Yance died, being still in minority, leaving as his heirs his sister óf the full-blood (plaintiff herein) and his father, S. W. Yance, and a brother and sister of the half-blood. IJis estate, to the extent of one half, devolved, therefore, to the plaintiff. In 1865 the lands, slaves, and movables owned in common by plaintiff and her deceased brother were partitioned between her and the other heirs of her said deceased brother. In this partition, besides a large amount of personal property, she received two plantations, the Buck-Hall and Plaindealing, with their slaves, etc. Being still a minor, plaintiffs property continued in the custody and control of her father up to her emancipation in January, 1877.

It is shown that at the death of plaintiff’s mother there .was on hand a large crop of cotton, which realized over $>17,000, which sufficed to pay all community debt, leaving a balance over of $2757 92. It is shown that the tutor received large sums of money and notes from the estates of P. R. Gilmer and G. B. Gilmer. In addition, he received the entire fruits and revenues of the plantations and slaves of the minors from 1860 up to the liberation of the slaves in 1865. It is shown that from the crops grown during the years of the war S. W. Yance, the tutor, realized large sums of money, and had in gold and lawful currency at its close over $75,000, as the result of sales of said crops.

If we charge him for the rent and hire of this property from 1860 to 1865, the amount could not be fixed at less than six thousand per annum. It is shown that after the war, say from 1865 to 1877, the Buck-Hall plantation would have commanded a rental of from four to five thousand dollars per annum, and other lands of the minor a rental of •six to eight hundred dollars per annum.

S. W. Yance, during his administration as tutor, rendered at times, after the war, what he called annual accounts. He rendered eight of them, resulting in a balance against the minor of some $5000. In other words, he not only absorbed the entire annual revenues of the large estates of the minors, but all of the large sums of money and other -assets which came to his hands during a period of about seventeen years, and claims a debt of about $5000 in excess. These estates were wholly free from debt when he took them. They were large and very productive, and immense sums were realized by him out of their productions. He received from other sources large amounts for account of his wards. These facts utterly discredit his accounts, except so far as they show charges against himself.

The judge a quo, after what seems a patient and careful examination, rendered a judgment for plaintiff for something over $75,000.

We think that the facts in this record bear him out fully in this conclusion. Whether we adopt one or the other of the methods suggested for the calculation, the result will be reached. As the tutor mingled the administration of the minor’s estates with his own, and manifestly cultivated and used them in his own interest, so that no fair statement of the matter can be made, the proper mode of calculation is to charge him with rent and hire of the lands, slaves, and movables, and to charge him at the end of each year with interest at five per cent on the amount of that year’s rents ; also to charge him up with the various sums received from other sources, and ñve per cent interest thereon per annum. This has been substantially the process adopted by the judge a quo. We thinír, however, that he should not have allowed or directed the compounding annually of the interest, as he has done in his judgment. We know no law that justifies such a judgment. The law requires the tutor to invest, under authority of the court, all amounts in his hands when, and as often as, they reach the sum of' $500; but it does not say that in default he shall pay compound interest.

• Plaintiff has filed in this court a prayer for the amendment of the judgment, by increasing its amount. But the position of parties before us precludes such action. The defendant, the executrix of the estate of S. W. Yance, has not appealed; nor did the plaintiff. They are both appellees, and it is well settled that this court cannot amend or reverse judgments .as between appellees.

The intervenors are appellants, as are other creditors of the estate of Yance. We can, on their demand, reduce plaintiff’s judgment against' the estate of her tutor, but we cannot increase it, except contradictorily with the executor.

The only remaining issue is as to the existence and effect of the legal mortgage claimed by plaintiff on the real property of her tutor. The fact is that no registry of plaintiff’s mortgage was ever made, as-required by the 123d article of the constitution of 1868, and the legislation thereunder.

Intervenors, therefore, contend that her mortgage perempted and ceased to have effect as to them from and after the 1st January, 1870.

Plaintiff, to avoid this defense, alleges that article 123, aforesaid, so far as it applies to pre-existent legal mortgages, is in conflict with the 10th article of the Constitution of the United States, in this, that it impairs the obligation of contracts. The language of article 123, so far as pertinent is as follows: “-The tacit mortgages and privileges now existing in this State shall cease to have effect against third persons after the 1st January, 1870, unless duly recorded. The General Assembly shall provide by law for the registration of all mortgages and privileges.”

The Legislature did provide for such registry by act of 1869, p. 114. The argument is that the mortgage forms a part of the obligation of a. contract, and that the State cannot, therefore, impair or abolish it. “ Sabatier et al. vs. Their Creditors,” 6 N. S. 585. Waiving the question (which is certainly a debatable one) whether or not the obligations- and mortgages existing against the natural tutor in favor of his ward arise- or spring from contracts, we think the plaintiff’s argument untenable in that it assumes that the article 123 destroyed or impaired plaintiff’s-mortgage obligation, in the sense of the Constitution of the United States. Had that article simply declared the abolition and extinction eo instanti of all tacit mortgages, there would have been the case presented by plaintiff’s argument. But it did nothing of the sort. It fixed a future day, reasonably distant, and declared that such mortgages-would perempt, prescribe, or cease to exist as to third persons, unless-recorded by that date. It is in its nature a statute of limitations. The right of the State to prescribe the time within which existing-rights shall be prosecuted,- and the means by, and conditions on, which they may be continued in force, is, we think, undoubted. Otherwise,, where no term of prescription exists at the inception of a contract, it would continue in perpetuity, and all laws fixing a limitation upon it-would be abortive. Now, it is elementary that the State may establish, alter, lengthen, or shorten the period of prescription of existing rights, provided that a reasonable time be given in future for complying with the statute. See Cooley’s Con. Lim. p. 376 ; Story on Const. 236, sec. 1385.

The interpretation of article 123 as perempting, quoad third persons, all tacit mortgages not recorded by 1st January, 1870, has become in this State a rule of property, and even if wrong in principle, we would', hesitate long before we would precipitate the property interests of this State into the vortex of litigation and uncertainty which the maintenance of plaintiff’s proposition would engender. See 27 A. 392; 26 A, 584 ; 24 A. 25 ; 20 A. 278.

We hold, therefore, that the judgment appealed from is erroneous-in so far as it recognizes a legal or tacit mortgage in favor of plaintiff. Her claim has no other rank than that of an ordinary creditor of S. W. Yance.

It is therefore ordered, adjudged, and decreed that the judgment-appealed from, in so far as it directs the compounding of interest, and in so far as it recognizes a legal mortgage in favor of plaintiff, is-annulled and avoided; that in all other respects said judgment is affirmed. The costs of appeal to be paid by appellees, and those below by the succession of S. W. Yance. ’


text:
    No. 7720.
    Mary E. Dooley and Husband vs. John Gibson et al.
    Possession nomine proprio is of tlie essence of tlie possessory action.
    APPEAL from the Tenth Judicial District Court, parish of Caddo. Boorman, J.

      J. S. Hargrave for defendants and appellants.

      Looney & Mstner for plaintiffs and appellees.
    . J. S. Hargrave, for defendants and appellants, contended:
    The plaintiffs have themselves shown that they are the tenants of defendants, and therefore are not entitled to the possessory action against them.
    Looney & Elstner, for plaintiffs and appellees, contended :
    The plaintiffs have proved clearly that they are the owners of the property for the possession of which they are suing, and that they have been illegally dispossssed within the present year. No argument is necessary to show that the decree of the lower court is correct.
   The opinion of the court was delivered by

White, J.

This is a possessory action. The record is very imperfect, not only because the case seems to have been not over well made out below, but also because some of the documentary evidence offered is not in the transcript. However, as the omitted documents were apparently offered by the appellants, and our conclusion does not in any way depend upon the proof which could result from them, we will not ex mero mota dismiss the appeal,, which has not been formally asked by the appellees.

We think the judgment below erroneous, because the plaintiff in her own testimony admits that after the possession of defendant she occupied the property by defendant’s consent, as an occupant or tenant at will, thereby cutting herself off from the possessory, whatever may be her rights to a petitory action. Whatever may have been the nature of her possession previous to her moving into the property with the consent of the defendant, the recognition which the asking for the consent and the action under it imported was obviousiy an interruption of her possession. During her possession under the consent of defendant she cannot be considered as holding as owner. G. E. 49 et seg. Possession nomine proprio is of the essence of the possessory action. Benton vs. Roberts, 2 A. 749 ; Anderson vs. Smith, 4 A. 525. Judgment reversed, and plaintiffs’ demand rejected with costs in both courts.


author: DeBlanc, J. DeBlanc, J.

text:
    No. 7534.
    State of Louisiana vs. Thomas Arata.
    Whether or not the panel from which were drawn tlie jurors who tried the defendant was selected by a quorum of the jury commissioners, is a question of fact of which this court has not jurisdiction.
    It is sufficient if the panel of jurors was drawn by two of the three who compose the board of jury commissioners.
    A member of the Board of Health who accepts the office of jury commissioner, and qualifies as such, thereby ceases to be a member of the Board of Health, and may thereafter perform the duties of a jury commissioner.
    APPEAL from the Superior Criminal Court, parish of Orleans. Whitaker, J.

      H. N. Ogden, Attorney-General, for the State.

      H. C. Castellanos and Arthur Gastinel for defendant and appellant.
    No brief filed on the part of the State.
    Henry 0. Castellanos and Arthur Gastinel, fqr the defendant, contended :
    First — That the question of whether the panel was drawn by a quorum of jury commissioners is a pure and exclusive question of law which this court has a right to pass on. 14 A. 461; 13 A. 46 ; 12 A. 679 ; 10 A. 271; 4 A. 505 ; 20 A. 442 ; 29 A. 824.
    Second — The second point, embodied in our challenge to the array, was that one of the jury commissioners, which is an office of profit and trust, was discharging at the time, under appointment of the Governor, another office of trust and of profit, to wit: that of member of the Board of Health, in violation of the 117th article of our State Constitution.
   The opinion of the court was delivered by

DeBlanc, J.

Thomas Arata was indicted and tried for manslaughter, found guilty and sentenced to imprisonment at hard labor for the term of five years, and to pay a fine of five dollars and the costs of the -prosecution.

He appealed; his case was submitted without argument, and his counsel allowed — to file a brief in his behalf — the delay which he asked. That delay has elapsed, and the promised brief has not been filed.

We have carefully examined the record, and ascertained that Arata’s .defence is based on two grounds, the first of which is “ that the panel from which was drawn the jurors called to pass upon his trial, was not selected by a quorum of the commissioners ” — this is a question of fact- and the other “ that one of the three commissioners was a member oí the Board of Health, and could not — at the same time — hold two offices of profit and trust.”

Admitting that the regularity of an officer’s appointment can be collaterally inquired into — upon which, in this instance, it is useless to express any opinion — the second ground, to which alone our jurisdiction extends, cannot — for a self-evident reason — avail defendant. That reason is that two of the three members who compose the board of jury commissioners, did select the panel, and the statute expressly provides that. “ the acts of two of them shall be as valid and binding as if performed by all.”

Act No. 24 of 1878, sect. 2, p. 281.

It is, therefore, ordered, adjudged and decreed that the judgment-appealed from is affirmed.

On Application eoe Beheaking.

DeBlanc, J.

In the brief which accompanies his application for a. rehearing of this cause, defendant’s counsel have elaborately discussed the two questions raised by them in their challenge to the array of the petit jury, the first of which is “ that the panel from which was drawn the juror called to pass upon his trial, was not selected by a quorum of the commissioners.”

That is — the counsel contend — “ a pure and exclusive question of law,” and — on this point — we are referred to several decisions, in which this court held — in substance and correctly — that, as a necessity, it must consider the facts from which arises a question of law. It can do so, however, not for the purpose of reviewing, amending or reversing the ruling of the judge a quo, as' to the existence or non-existence of those facts, but to determine whether — when in that judge’s opinion, those facts have been either established or disproved, he has properly construed the law applicable to this case. 22 A. 9 ; 23 A. 149 ; 25 A. 418 j 26 A. 383.

In this instance, and as to the charge “ that the panel was not selected by a quorum of the commissioners,” what had the judge to ascertain ? A naked fact, and it was whether the panel had been selected by less than two of the three commissioners. If this can, in any way, be considered as a pure and exclusive question of law, it undoubtedly remains to be discovered what can be a question of fact.

If — though the panel had been selected but by one of the commissioners, or — as in “ State vs. Newhouse ” — from a list furnished by one who had no authority to prepare it — the judge had held that such a selection was a compliance with the statute, a question of law based on a question of facts would have been presented, and the latter — of which alone the judge a quo had jurisdiction — being decided by him, his ruling — as to the latter — could have been passed upon by this court.

If — as we are invited to do — we could legally consider the evidence taken to establish the alleged fact that the panel was not selected by a quorum of the commissioners, we would have to conclude that two of the three commissioners were present at the selection — that, occasionally, pne went to the yard for a moment, but that — while he was absent — no name was drawn from the jury wheel. That was testified to and stands uncontradipted.

The second point urged by counsel is that one of the commissioners, when appointed as such, was discharging the duties of another office of profit and trust. This point does present a mixed question of facts and law. The facts are that — in April 1877 — the party referred to was appointed as a member of the Board of Health,’ and — in April 1878 — a jury commissioner. If those offices be incompatible, said party — by accepting that of jury commissioner — ceased tobe a member of the Board of Health, and — consequently—was not holding or exercising, at the same time, in violation of the State constitution, more than one office of trust or profit.

29 A. 826; 2d. Hill, 93.

Besides, two of the three members who compose the board of jury commissioners, did select the panel, and the statute expressly provides that “ the acts of two of them shall be as valid and binding as if performed by all.”

The rehearing is refused.


author: Mask, J. White, J.

text:
    No. 5856.
    Davidson B. Penn vs. Citizens’ Bank of Louisiana.
    A lessee is not in the strict sense of the word a third possessor, nor is his right to claim for improvements that of a third possessor proper.
    "Where property was leased subject to a mortgage the fact that a mortgage creditor exercises his legal right of foreclosure does not render him liable to the tenant in damages.
    A fair price is the measure of the lessor’s liability to the lessee for improvements put on the leased premises by the lessee which the lessor elects to keep.
    APPEAL from the Superior District Court, parish of Orleans. Hawkins, J.

      Henry C. Miller for plaintiff and appellant.

      Armand Pitot & Son for defendants and appellees.
    Henry C. Miller, for plaintiff and appellant, contended:
    The plaintiff is a third person, who expended his money in making valuable improvements to the plantation, on which the bank had a mortgage previously granted by the owner of the property. The plaintiff formed a business connection with the owner and mortgagee, by which he was to furnish the necessary means for the production of the crop, and was to have the use of the plantation for a term of -years, on certain conditions. The bank has kept the improvements, in foreclosing its mortgage, and actually denied the benefit of them; hence its liability to pay their value to plaintiff. O. O. arts. 508, 3453 ; 23 An. 141; 26 An. 587, 366 ; 16 La. 414; 22 An. 387.
    The principles established by the authorities cited are, that no one can enrich himself at the expense of another, and that even a third possessor in bad faith is entitled, upon eviction, to the price of his improvements, when they have added to the value of the property.
    A. Pitot & Son, for defendants and appellees, contended:
    The plaintiff is a commission merchant, who made advances to the owner of the plantation for the purpose of raising crops upon it. .The very words of the contract under which the advances were made show it clearly. The expenses incurred by him were necessary for the cultivation of the plantation, and might be secured and re-imbursed by the crops ; ,but he has no right of action for them against defendant. The improvements made upon the property became immovable by destination, and part of the realty, and defendant’s mortgage attached to them. C. C. art. 468.
   The opinion of the court was delivered by

Mask, J.

Pierre S. Sanchez was indebted to the Citizens’ Bank; and the debt was secured by mortgage, granted in 1858. Finding himself unable to'pay this debt, he made terms with the bank and obtained an extension. He gave his three promissory notes, for equal amounts, payable 31st January, 1869,1870,1871, respectively, aggregating $16,347, the amount due 31st January, 1868; and to secure the payment he granted a mortgage, in favor of the bank, on the 23d March, 1868, on the same property, a sugar plantation, situate then in the parish of St. Martin, now in the parish of Iberia.

In September, 1869, plaintiff entered into a contract of partnership with Sanchez for the cultivation of this plantation for a term beginning first of October, 1869, and. ending first of January, 1874.

By the terms of this contract Sanchez furnished the plantation with the buildings, thirty-one árpente of cane, 56 árpente of corn, then standing on the place, some cattle, and utensils.

Plaintiff paid Sanchez $3000 in cash, and Sanchez obligated himself to maintain plaintiff in the peaceable possessi m and enjoyment of the premises during the whole term of the partnership.

Plaintiff was to have the entire control and management of the plantation, and of all business connected with it; to furnish all mules, teams, wagons, and farming implements necessary for raising the crops; to furnish provisions, and advance for the payment of the wages of the laborers; and to provide all the means necessary for working and carrying on the plantation. For all amounts disbursed by him he was to charge the usual interest and commissions ; and he was to receive and sell all the crops, charging the usual commission on sales.

If he should deem it necessary to erect any new buildings for the use of the plantation, during the continuance of the partnership, the cost was to be carried to the account of Sanchez, and be borne by him; and Sanchez was not to contract any debt for account of the partnership.

After deducting .the expenses of working the plantation the residue of the proceeds of the crop of each year was to be divided equally between plaintiff and Sanchez.

The mules, cattle, and implements purchased during the partnership were to be charged to the account of the crops. - Such as might remain at the termination of the partnership were to be divided in kind, or taken by one or the other of the partners at valuation, or sold at public’auction, as they might agree.

The property was in a very dilapidated condition; and plaintiff spent large sums in repairs and in fitting the plantation for cultivation. He put up four double cabins ; built plantation bridges ; repaired the machinery and kettles; furnished a new boiler; dug ditches and a canal; and opened a pond to supply water for the sugar-mill.

In January, 1871, the Citizens’ Bank, under executory process on the mortgage in its favor, seized, and subsequently sold the plantation, and became the purchaser at $10,000 cash, the appraised value being $13,000.

Before the sale plaintiff obtained permission of the bank to remove the mules, implements, and utensils purchased by him, and used on the plantation ; and there was a separate appraisement of the seed-cane in the field in mats.

Shortly after the sale this suit was brought to recover of the bank. $15,000, of which $3000 were claimed for that amount paid by'plaintiff to Sanchez under the contract of partnership, which was defeated by the seizure and sale by the bank; $300 for repairs to the kettles and machinery ; $1600 for a new boiler ; $1000 for four new cabins ; $1500 for ditching, digging a canal, and opening the pond ; $3500 for 140 acres stubble-cane; $3600 for twenty-four acres of plant-cane; and $500 for new bridges.

These sums are claimed on the grounds that the works, improvements, and additions, made and paid for by plaintiff, and the plant and stubble cane on the plantation added $12,000 to its value; that the bank proceeded with the seizure and sale in spite of plaintiff’s objections and remonstrances, and finally evicted him from the property ; and that the bank had the possession, benefit, and advantages of the works, additions, and improvements, and of the plant and stubble cane, and is therefore liable to plaintiff for the value, $12,000.

The answer of the bank denies liability to plaintiff ; denies that the foreclosure of the mortgage was in spite of plaintiff’s objections and remonstrances ; and avers that it was with plaintiff’s full knowledge, and that the sale was made at his suggestion or advice.

It is also alleged in the answer that the seed-cane put up in mats was greatly injured by the cattle in the neighborhood, in consequence of plaintiff’s failure to keep up his fences ; that it was appraised at $100, the one half of which defendant agreed to pay to plaintiff; and that defendant deposits the amount, $50, in court for the benefit of plaintiff.

Defendant also pleads that all the improvements plaintiff may have made on the place, he made as a partner, for his own benefit, and he reaped the fruit of his labor and expenses by making the crop, which he applied to his own benefit ; and that all the improvements he may have made as a partner -became immovable by destination, and belong to the place.

The judgment of the district court rejected the demand of plaintiff, and he appealed.

We cannot imagine any possible .obligation that existed on the part of the bank not to enforce its mortgage rights ; or to grant longer indulgence to Sanchez. In December, 1858, when the original mortgage was given, the debt was $17,600. In January of 1868, it had been reduced to $16,347. The bank extended the payment; and at the end of the three years’ delay, nothing had been paid on account. The mortgage, with the pact de non alienando, deprived Sanchez of the power to make any disposition of the property, whether by sale or mortgage, or other contract, to the prejudice of the mortgage held by the bank. By the contract between plaintiff and Sanchez, the mortgaged property was the contribution of Sanchez to the partnership ; and the $3000 cash paid by plaintiff must be considered as their estimate of the excess of the contribution by Sanchez over that by plaintiff, which consisted of the obligations and undertaking on his part, as stipulated in the contract. This contract was subordinate to the mortgage rights of the bank; and for any prejudice to his rights under that contract, by reason ■of the exercise of its rights by the bank, plaintiff must look to Sanchez alone.

As to the four cabins, the new buildings put up by plaintiff, the contract specially provided that they were to be paid for by Sanchez. They were to be used by the partnership ; but they were no more the property of the partnership, or of plaintiff, than the plantation was. They were the property of Sanchez, just as the plantation was: they were immovable by destination: they were part of the realty covered by the mortgage; and plaintiff, by the terms of the contract, must look to •Sanchez alone for reimbursement of the cost.

The stubble-cane was certainly part of the realty. It could not have been severed from the soil in which it was growing without destroying it; and it was not susceptible of separate ownership.

The testimony of the witnesses, especially that of the sworn appraisers, shows that the value of the seed-cane in mats was $100. The appraisers fix the number of acres of cane in mats at fifteen ; and they ■say that it was cut from stubble-cane, and was very thin : that if the mats had been in good condition the cane would have been worth $40, we suppose they mean per acre, but the mats being abandoned to the •cattle, “ they have been damaged to most perfect ruin,” the fence having been down even during the grinding season, “ the cattle had full power to*eat up and damage said mats.”

If the cane thus put up for seed had been the property of Sanchez, the owner of the plantation, it would have been immovable by destination. But while it was standing it belonged to the partnership, and when it was severed, cut and put in mats, to be planted for the benefit ■of the partnership, it continued to be the property of the partnership. The seizure by the bank terminated the partnership; and all the property of the partnership vested, in indiviso, in the individuals composing the partnership, subject to the settlement of the partnership debts. If Sanchez and plaintiff had joined in this suit they might have received the entire value of this seed-cane in mats ; and have subjected it to the payment of the partnership debts ; but plaintiff alone cannot stand in judgment for the partnership, nor can he demand any single thing which belonged to the partnership. The testimony satisfies us that the $50, deposited by the bank, the one half of the appraised value of the seed-cane, is all that plaintiff could have received under the proof in the record, if the half had belonged to him separately ; but we think he had no separate right of action to recover the value either of the whole or of one half, because the whole belonged to the partnership.

The new boiler, the ditches, the canal, the pond, the repairs to the kettles and machinery, the bridges, were all necessary expenses, without which crops could not have been made and gathered ; and by the terms of the contract these expenses were to be charged to the account of the crop of the year in which they were incurred. -Plaintiff was to advance all'the money, and to provide “all the means necessary for the working and carrying on the plantation,” for which he was to charge the usual interest and commissions; and before any division of the proceeds of the crop oí each year, “all the expenses which shall be made in each year on the said plantation for working and carrying on the same, and raising and taking off of the crops,” shall first be deducted and re-im-bursed.”

In the nature of things, the ditches, the canal, the pond, the bridges in the fields, the repairs to the kettles and machinery, belonged to the owner of the soil, and of the kettles and machinery ; and they were not susceptible of removal or of separate ownership. The partnership was to pay for them, as necessary expenses of the partnership, and to have the use of them while the partnership continued ; but as the contract made no provision for the payment by Sanchez to the partnership or to plaintiff of the cost of these works, the ownership was in Sanchez, ah initio, absolutely ; and the partnership lost the .precarious right to use them by the seizure and sale of 'the soil from which they were inseparable.

The new boiler was and is susceptible of separate ownership. It might be taken down and removed from the sugarhouse and from t*he plantation. It was to have been paid for by the partnership : it was originally movable: it was put upon the plantation for the use of the partnership ; it was the property of the partnership. The relations of the-partnership to it are not different from those of a lessee with respect to movables which he puts on the leased premises for his own use and benefit, and which he is at liberty to remove at the termination of the lease.

The mules and other movables paid for by plaintiff, and put on the plantation for the use of the partnership, belonged to the partnership; and the contract provided that such of them as remained at the termination of the partnership should be divided equally between the partners. Plaintiff removed these effects before the sale, by the permission of the bank ; but he is accountable to the partnership for them, and the partnership is accountable to him for their cost. But that which one may do with the consent of all the parties in interest, he could not enforce, in every case, as a legal right: and one partner, whether the partnership be dissolved or not, cannot sue alone to recover the debts or the property of the partnership.

The boiler belonged to the partnership ; and Sanchez and plaintiff .might recover it, or its value, as the property of the partnership ; but plaintiff sums; alone in his own right could not recover it, because it is not his individual property.

There must have been great error in estimating the value of the additions, improvements, repairs, and stubble and seed cane. Some of the witnesses say they added $12,000 to the value of the plantation: and yet the sworn appraisers fixed the value of the entire property at .$13,000; and it was adjudicated to the bank, at public sale, for $10,000.

The plaintiff made an unfortunate partnership. Sanchez coul'd not comply with his obligation to maintain plaintiff, the administrator of the partnership, in the possession and enjoyment of the premises during the term of the partnership, because of his pre-existing obligations to the bank. The additions, improvements, and repairs would, probably, have sufficed for the cultivation of the plantation and the taking off of the crops, for the entire term; but the condition of the plantation was such that they were all necessary for the making and taking off of the crop of the first year, which was not sufficient to re-im-burse the outlay. There is no proof, however, of the state of the-accounts of the partnership nor of the proceeds of the crop.

The bank made no agreement, came under no obligation, to grant indulgence to Sanchez beyond that stipulated in the mortgage of 23d March, 1868. One after another the notes for the installments under the mortgage matured, and were not paid; and the bank exercised' simply its legal rights as mortgagee in seizing and selling the mortgaged property. On the property was the new boiler and the seed-cane in-mats, which would have been immovable by destination, and would have been covered by the mortgage if they had been placed there by the mortgagor, the owner of the soil. They belonged to the partnership ; and the right of the partnership to sue for and recover their value-at the date of the seizure by the bank, must be reserved. We would remand the ease for the purpose of having these values established, if the suit had been brought by the partners ; but as the suit was brought by one of the partners alone, we can only modify the judgment so that it may not be held to conclude plaintiff, one of the partners.

It is therefore ordered, adjudged, and decreed that the judgment of the district court be so amended as to reserve to plaintiff and Pierre-Sidney Sanchez the right to sue for and recover the value of the new boiler, and of the seed-cane in mats on the plantation lately cultivated by them in partnership, to be estimated at the date of the seizure of the-plantation under executory process, at the suit of the Citizens’ Bank against Pierre Sidney Sanchez : that with this modification and reservation the judgment appealed from be affirmed; and that the Citizens?' Bank, appellee, pay the costs of this appeal.

On Reheaking.

White, J.

We granted a rehearing of this cause because we entertained a doubt as to the correctness of our ruling that the plaintiff was not entitled to recover that which might be found due. Upon a reexamination we have concluded that our opinion first expressed should under the facts of this case be modified. The terms of the partnership, the testimony of Sanchez, his approval of the plaintiff’s demand, ah, we now think, will justify the plaintiff in recovering any thing that the partnership could recover were it the nominal, as it is the virtual, through the plaintiff by the sanction of Sanchez, actor in this litigation. As we granted a rehearing without any intimation of the reason by which we were impelled, the whole cause has been, both orally and in writing, re-argued, and we have re-examined it, Without modifying our views, except as above indicated. The capital fallacy in the argument is the claim of plaintiff that he, or the partnership, for they are one for the purposes of this suit, is a third possessor, and entitled to be treated as such. The words third possessor have a definite legal signification, and are not a synonym for the word lessee. The partnership was a lessee of the plantation, and entitled only to the rights of a lessee. What the lessee could claim, the plaintiff can, and no more. This court called attention, in Talley vs. Alexander, 10 A. 628, to the fundamental distinction between the nature and extent of a lessee’s right to claim for improvements and that of a third possessor. Considering then the right of the plaintiff as that of a lessee, we think,

1st. That the money paid for the lease cannot be recovered from the defendant, it being in no sense an improvement. True, it was given in contemplation of the duration of the lease, but the exercise by the bank of its right of mortgage was the doing of a legal act which, if it entailed damage on plaintiff, was quoad the bank damnum absque injuria.

2d. As to the cabins, that they, as we have previously said, are controlled by the terms of the lease.

3d. As to the seed-cane, while we adhere to our original view as to the facts, we think the plaintiff, under the tender made and the admission resulting therefrom, entitled to its value; in other words, to the fifty dollars deposited and fifty dollars in addition.

4th. The stubble-cane was in no sense an improvement.

5th. The pond, ditches, repairs, and bridges, while improvements in one sense, were not so in the legal meaning of the word. They were works done by the lessee for the purposes of the lease. The right to recover for them as against the owner is to be measured by the terms of the lease, which clearly, we think, do not give it. Now, it will not meet the difficulty to say that, although if the lease had lasted the lessee could not at its termination have claimed these items, yet as such was not the case, having been made in view of the continuation of the lease, they can be now recovered, or their value, from the bank. The bank stands in the place of the owner, its foreclosure having been the exercise of a legal right paramount to the lease. As regards the bank, the rights of plaintiff are to be tested as if the full period of the lease had expired. This reasoning answers the erroneous view which the case proceeds on, which is, that when one leases a property which is subject to mortgage, the right is thereby acquired, without the privity •of the creditor, of preventing him from enforcing his rights, or claiming damages if he does.

6th. The right which we recognized in the partnership to the boiler, the plaintiff under the opinion we have above expressed can avail himself of. The difficulty lies in the proof on the subject. The rule established by C. C. 2726, where the lessee retains, is the payment of a fair price. The bank, we think, has by its answer and defense elected to keep, but there is nothing in the proof to enable us to fix what was a fair price at the date of the sale. There is proof as to the cost, and estimates as to the enhanced value of the property. We shall therefore be compelled to remand the cause for the ascertainment of the fair price of the boiler on the day of the bank’s purchase.

It is therefore ordered that our former decree be set aside. It is now ordered, adjudged, and decreed that the judgment below be amended so as to condemn the defendant to pay the sum of one hundred dollars, with legal interest from judicial demand; that the right of plaintiff to recover a fair price for the boiler put on the property be and the same is hereby recognized ; that the case be remanded for the sole purpose of fixing the price of the boiler in conformity with the views above expressed; that in all other respects the judgment below be affirmed, costs of both courts to be borne by the defendant.


text:
    No. 7716.
    R. B. Hollingsworth vs. Diana Spanier.
    "Where it is affimatively shown that at the time a married woman was authorized by the judge to contract her husband was absent, then the presumption obtains that the judge knew of the absence, and hence validly authorized.
    With the authority of her husband or the judge a married woman can bind herself for the benefit of a person other than her husband.
    The authority given to a married woman to borrow a sum of money cannot be considered as implying the power to contract for usurious interest.
    APPEAL from the Tenth Judicial District Court, parish of Caddo. Boarman, J.

      T. F. Bell for plaintiff and appellant.

      Looney & Flstner for defendant and appellee.
    T. F. Bell, for plaintiff and appellant, contended :
    The incapacity of married women to contract is not absolute. When authorized by their husbands or by the judge, they are fully as capable as unmarried women or men, and the law makes no difference whatever between them and the latter. The laws which limit their capacity have for their object the maintenance of the marital power on the one hand and the protection of women against the abuse of that ‘ power on the other. 2 An. 1; 10 An. 433; O. 0. articles 122,128.
    The statute of 1855, now articles. 126, 127, and 128 O. 0., has only the effect of changing the rule of evidence and transferring the burden of proof on the married woman. 26 An. 401; 29 An. 123; 30 An. 722, 940.
    The law will presume that the judge, in authorizing the wife to contract in the absence of the husband, had the proof before him that the husband was absent. " Omnia prcesumuntur rite acta.” C. C. art. 132; 28 An. 233. And the j udge need not in his certificate state that the husband was absent.
    Defendant herself shows that the loan made 'to her by plaintiff was not ■ used for the benefit of her husband or the community existing between them, inasmuch as she says that she gave it to her son-in-law, to be used in his business. As she was authorized to contract, and her contract did not inure to her husband’s benefit, she is clearly liable.
    For the same reason, that she was legally authorized to contract and did contract for the benefit of her husband or the community, she could accept any terms of interest that a femme sole could.
    The authorization of the judge did not limit her in that respect.
    Looney & Elstner, for defendant and appellee, contended :
    The loan made to defendant has no validity except such as the order of the judge may have given to it, in authorizing her to borrow.
    The absence of the husband should have been made to appear from the order of the judge.
    The requisites of the statute of 1855 empowering married women to borrow and mortgage their property were not fulfilled.
    Defendant did not borrow and mortgage her property for her own and separate benefit, and that was the only thing which she could be authorized to do under the law of 1855. 29 An. 123.
   The opinion of the court was delivered by

White, J.

The decision of this cause involves three questions, two of law, one of fact; they are ;

' First. Where the wife during the absence of her husband is authorized by the judge to contract an obligation, must the absence of the husband at the time of the authorization appear on the face of the authority, and if not, can it be subsequently proved aliunde ?

Second. Is it competent for a wife not separate in property to bind her separate estate or contract an obligation, with the object not of benefiting her husband or the community, but a third person ? If yes, and she be authorized to borrow a given amount, is a contract.by which she borrows a sum greater than the amount authorized binding, and if not, is it also not binding where the sum in excess of the amount authorized results from having charged a rate higher than the maximum of conventio'nal interest, and adding this amount to the principal?

Third. What amount, if any, is due on the note sued on ?

1. The power of the wife to contract during the absence of the husband depends on the- authority of the judge, and where the judge has authorized, we incline to think, in the absence of all proof, we would be justified, under the rule of omnia rite, in presuming that the judge did not act until the absence of the husband was brought to his knowledge, such knowledge being a legal prerequisite to his action. Whether this be true or not, we think that where the proof is affirmatively made, as in this case, that at the time of the authorization of the wife the husband was absent, then the presumption that the judge knew of -the absence, and hence validly authorized, undoubtedly obtains.

2. That a married woman may, with the authority of her husband, or in default, by the authority of the judge, legally contract, provided she do not bind herself for either debts of the community or those of her husband, is no longer a question. Hillings vs. West, 2 A. 1; 10 A. 433 ; Calhoun vs. Mechanics’ and Traders’ Bank, 30 A. 775. That the borrowing by a married’ woman of a sum of money, and the securing the payment of the amount by the mortgage of her separate property, the amount of the loan being by her used in establishing a son-in-law in business, does not come within the rule inhibiting a wife from binding herself -or her property for debts of her husband or the community, is too obvious to require reasoning. The power of the wife to contract depending for its existence on the authority of the husband or the judge, we think it follows as an inevitable result that acts beyond the scope of the authority are unauthorized acts, and hence not binding. It may be true that the power to contract a loán imports power to stipulate interest, under the maxim omne majus coniinet in se minus, but where the law has put a limit on the rate of conventional interest, we do not think the power to contract for interest can be by implication-extended to authorize a greater rate than the maximum of conventional interest allowed by law. Grant that it be true that the limitation of conventional interest may be avoided by adding the interest to the principal, the rule would not hold good in a case where the adding of the interest would increase the principal obligation of a-married woman above the amount authorized ; at all events to the extent that the increased principal resulted from interest in excess of the highest conventional rate. To hold the converse, would be implying from the powers to borrow, authority, not to contract for an accessory and resulting obligation, but to exceed the authority, which would at once render imperative the deduction that no authority is necessary. The argument that a wife who contracts under authority is sui juris, and that as persons sui juris can increase the principal obligation as they please, therefore the wife can so do, is fallacious. The wife is only sui juris to the extent of the authority.

Applying these principios, we have the principal of the note $4166 66 instead of $4617 20. The note matured August 6th, 1872, and bore eight per cent interest from maturity. Crediting the payments as they were made, we reach the following statement:

Principal. $4,166 66
Paid August Bth, 1872. 642 00-
Balance due.'. $3,623 66
Interest on balance from August 5th, 1872, to January 15th,
1873 . 128 84
Due January 15th, 1873. $3,752 40
Paid January 15th, 1873. 2,500 00
Balance due. $1,252 40
Interest from January 15th, 1873, to Novémber 18th, 1874.... 184 52
Due November 18th, 1874..’. $1,436 92
Paid November 18th, 1874. 1,000 00
Balance due. $436 92
Interest from November 18th, 1874, to December 15th, 1876. 72 52
Due December 15th, 1876. $509 44
Paid December 15th, 1876. 200 00
Balance due December 15th, 1876, with eight per cent until paid.. $309 44

In making this computation we have fixed the date of the payments, in January, 1873, and December, 1876, as having been made on the 15thf the exact date not being shown. We have also eliminated the sum allowed by the plaintiff as interest on the $2500 from date of its payment to the time of the maturity of the note, thinking it the more correct rule to credit the payment at the time it was made.

It is therefore ordered that the judgment below be reversed ; and it is now ordered that there be judgment in favor of the plaintiff, E. B. HollingswOTth, and against the defendant for three hundred and nine 44-100 dollars, with eight per cent interest per annum from December 15th, 1876, until paid ; five per cent attorney’s fees, as stipulated in the act of mortgage ; the whole with recognition of special mortgage on the property described in the act of mortgage referred to in plaintiff’s petition ; costs of both courts to be borne by the defendant.