text:
    No. 13,307.
    William Rabb vs. Louis Pillot, Sr.
    Syllabus.
    1. One who remains silent, while bis property is sold in another State, will not be estopped from disputing a title so acquired, if -the adjudicatee is not an innocent third person, but is one who is seeking an undue advantage, in disregard of an instrument in writing signed by him acknowledging the property as belonging to the one against whom he claims an estoppel. Plaintiff’s silence, under the eircumstdnces, did not have the effect of’eon- ■ cealing any act or of abandoning his title of which defendant was fully aware, as he, defendant, had, in effect, acknowledged this title by deed.
    2. The testimony of plaintiff’s witnesses is contradicted by that of defendant’s witnesses, and, as a result, defendant’s title is not sustained. This defendant having withdrawn a prior suit and having entered inro an agreement to share the winnings of the races of the horse claimed, the court holds that he could not acquire title by having the horse sold as belonging to another than plaintiff, with whom defendant had entered into an agreement regarding the winnings, and, in effect, had admitted him, plaintiff, to be the owner.

      3. An amount is allowed as rental for tlie use of the horse while in defendant’s possession.
    4. The fee of plaintiff’s attorney is not allowed.
    APPEAL from the Civil District Court, Parish of Orleans. — • Bilis, J.

      Armond B. Blackmar and Theo. G. Spitefaden for Plaintiff, Appellee:

      G. A. Schreiber and B. B. Forman, Jr., for Defendant, Appellant.
   The opinion of the court was delivered by

Breaux, J.

Plaintiff brought this action to recover a running horse from the defendant; also, for damages growing out of defendant’s illegal seizure and possession and for the fee of his attorney in the ease.

Plaintiff sets forth in his petition that he bought this horse, in 1898, from E. J. Ransom. lie charges, that the defendant, Pillot, pretended that Ransom, his (plaintiff’s) vendor, was indebted to him, had the horse seized and sold while it was in Chicago in 1898, and that he, Pillot, became the adjudicatee of the horse at the sale, although he, Pillot, was well aware at the time that he, plaintiff, was its owner; that the defendant took advantage of the fact that plaintiff was not in Chicago at that time to have the horse sold.

Plaintiff avers that the adjudication was absolutely null; that the defendant was not a creditor of Ransom, plaintiff’s vendor, and that the means resorted to to divest plaintiff were fraudulent and collusive.

The testimony of the witnesses was conflicting. The witnesses for the defendant testified that the sale under which plaintiff holds or claims is not real, but a simulation resorted to in order to protect Ransom, the vendor; while the witnesses for plaintiff contradicted those of the defendant on material points.

As there is written evidence, we pass from an examination of the oral testimony, contradictory as it is, to an examination of the documents signed by the parties interested.

The sale from Ransom to Rabb is in due form and was acknowledged before a notary public. One hundred dollars was the price of the horse. This sale is dated March 14th, 1898. On the same day, defendant, Pillot, sued for a writ of attachment against Ransom, which same was issued, and, under which writ, the horse sold to plaintiff was seized and attached. Three days after this attachment and seizure, plaintiff entered into a written agreement in which it was declared that, whereas Pillot had caused the horse to ba '.seized under a writ of attachment referred to in this instrument, as a horse claimed by plaintiff (quoting from the private act), “now in order to avoid litigation, and to make an amicable compromise of their respective claims,” the parties agreed, the latter, Pillot, to dismiss his attachment and release the horse from seizure upon the condition that plaintiff, Rabb, paid a certain feed bill and a training fee, and Rabb bound himself further to pay over to Pillot one-half of the winnings of this horse. The agreement was limited to the racing season of 1897 and 1898. We have noted that in the June following, Pillot, the defendant, had the horse sold. It appears that plaintiff, who was in Baton Rouge at the time, was informed by an attorney that his horse was under seizure in Chicago. Plaintiff testified that, at the time he could not prevent the sale, and that he made no attempt to stop it.

On March 30th, 1899, the horse then being in New Orleans, plaintiff brought this suit and was granted a writ of sequestration in accordance with his petition. Defendant bonded the sequestration and retained possession of the horse. The judge of the District Court rendered judgment for plaintiff, and from this judgment defendant appeals.

The principal question presented by the defendant is whether plaintiff is estopped from claiming this horse.

In support of this plea of estoppel, defendant invokes the well known principle, that one who stands by in silence while his own property is sold, and suffers another to become a purchaser, will be estopped from disputing the title so acquired. The case, in our judgment, does not fall within the rule of estoppel just referred to, for the reason that the defendant was not an innocent third person. He is charged with having connived with plaintiff’s vendor, and, without first refuting that charge, we do not think that he can invoke the rule with any degree of plausibility. It may give rise to a circumstance to be considered in determining the issues. But we do not think that affords ground upon which to base an absolute estoppel. One who is not a third person, is not entitled to the benefit of the plea. He, the defendant, was not misled in any way by the silence of the owner, as he was aware of all of the facts, especially if plaintiff’s charges are true, that he, defendant, was seeking by the sale, which he brought about in Chicago, to gain an undue advantage. The plea of estoppel does not .dispose of the case.

This brings us to the question whether, on the merits, it appears that the property was not- owned by plaintiff. Defendant is confronted by an instrument in writing to which effect must be given, until it is conclusively made to appear that he acted in error. The record does not disclose with anyj degree of certaijnty, that he, defendant, was induced into error. It is true that plaintiff’s title is not the result of a simple direct sale. The conditions are unusual, but they do not disclose that defendant is entitled to this horse. Eor reasons not made entirely plain, he chose to enter into a compromise, to which we have just referred, as evidenced by the deed by which he was confronted, in matter of his first suit, in which he had caused the horse to be attached and seized. This written act of compromise rendered it impossible for him to become the owner by purchasing in the manner followed, to which we have before referred. “No one can come against his own deed.” Nemo contra factum suum venire potest.

Furthermore, the evidence does not sustain defendant’s claim of simulation. His witnesses are contradicted by the notary public before whom the sale by Ransom to plaintiff was acknowledged. Defendant argues that the fact that plaintiff did not produce another witness to this instrument to testify is significant. The notary, who testified, said, that this witness was present in this city at the time of his giving his testimony, and that he had his address.

The following is the testimony on this point:

By defendant’s counsel:

“Q. — Who is this witness, James O. Harrell?
“A. — He was in my office at the time, and can be found at any time.
“Q. — James O. Harrell is in your office?
“A.- — No, not now.
“Q. — Where is he now?
“A. — I can find him any time you want him. James O. Harrell, for your information, used to have a desk in the office.
“Q. — Is he living in this city now ?
“A. — Yes, sir; I can find him any time you want him.”

The fact that this witness was not examined, at the instance of plaintiff, does not give rise to a presumption against him. Nothing disclosed that he sought, by not calling him as a witness, to withhold testimony from the court. We take it that the decisions cited by the counsel for the defendant to sustain his position on this £>oint are all grounded on the inference that the one failing- to cite a witness, or to produce evidence having a direct bearing upon the issues, is actuated by a desire to conceal facts over which he has some control. Nothing of the sort appears here:

From the evidence quoted above, it is manifest that defendant could have procured the testimony of this witness, and his failure to summon him can give rise to no presumption against plaintiff.

It is true that when one party to an action has in his exclusive possession a knowledge of facts which would throw light upon the transaction in the controversy, the failure to offer them in evidence may afford presumption against him. This is not that case; plaintiffs did not have “exclusive possession of knowledge.”

It appears from the testimony that these running horses have some sort of rental value. The witnesses fixed it at a considerable sum per month. The judge of the District Court fixed it-at ten dollars per month. We think that that amount, ten dollars per month, is sustained by the uncontradicted testimony of witnesses.

Plaintiff claims one hundred dollars as the fee of his attorney. This case does not sustain any such claim. Plaintiff in sequestration can find no support in the decisions of the Supreme Court for such a claim by a plaintiff claiming, property sequestered, and for damages.

It is therefore adjudged, ordered and decreed that the judgment appealed from be and the same is hereby affirmed.

Rehearing refused.


source: Caselaw Access Project

author: Nicholls, C. J.

license: Public Domain

text:
    No. 13,504.
    Succession of J. D. Stille, Deceased. Application of J. D. Stille, Administrator, to Homologate Provisional Account and Tableau of Distribution. Opposition of Mrs. Emma Johnson.
    Syllabus.
    1. A widow in community who is perfectly able to insist upon a prompt liquidation and partition of a succession which is under administration, who does not do so, but permits repeated annual aeconnts of administration to be homologated without opposition, can not hold the administrator personally responsible on the ground that the prolonged administration had resulted in injury instead of benefit to the succession. She can not speculate on the results.
    2. An administrator making a number of partial payments on interest bearing debts due by the succession should apply the rule of partial payments to the debts, and not allow interest to run to the date of final payment, and then deduct the total amount of partial payments.
    APPEAL from the Ninth Judicial District, Parish of Sabine.— Hall, J.

      Scarborough & Carver for J. D. Stille, Individually and as Administrator, Appellee.

      Charles W. Elam for Opponent, Appellant.
    Statement of ti-ie Case.
   The opinion of the court was delivered by

Nicholls, C. J.

The following statement of facts appears in the reasons assigned by the district judge for his judgment in the case:

“J. D. Stille died in the year 1893, and his son, J. D. Stille, was appointed administrator. He left a large amount of wild land, a stock of goods, and debts to the amount of about eleven thousand dollars, including his mercantile debts, clerk hire, due to his sons by a former marriage, and four thousand dollars due by the last community to the separate estate of the deceased.

On the 9th of April, 1893, the administrator filed a partial list of debts and obtained from the clerk of the court an order to sell the stock of goods to pay debts.

On the 5th of February, 1894, the administrator filed a provisional account and tableau of distribution, which was, after due advertisement, homologated.

Like accounts and tableaux were filed, advertised and homologated, without opposition in the years 1895, 1896 and 1897. In none of these four accounts and judgments was there any interest mentioned on the debts allowed. • The only mention of interest, anywhere, was on the list of debts filed on the 8th of April with the clerk, in order to get the order to sell the stock of goods, and this mention was only with reference to the debts due the administrator and his brothers, and consisted of the words “besides interest” written opposite each of their claims.

On the 8th of May, 1899, the administrator filed his fifth provisional account, now before us, upon which he proposes to pay the balance due the commercial creditors and the Stille boys for clerk hire, including interest on their claims.

The surviving widow, now Mrs. Johnson, partner in community, opposes the account on six grounds:

The six special grounds of opposition assigned by the widow’s opposition are as follows:

First — That the Kansas City, Shreveport and Gulf Railway Company constructed its road through the Parish of Sabine in the year 1896; that said company, without right of way granted, or expropriation proceedings taken, caused its road to be built over and across the lands of said succession and community; that the said company was liable to said succession for the value of the lands so used and the damage caused by the building of said road across said lands; that the value of the lands so used, and the damage so caused, amounted to one thousand dollars, and more; that it was the duty of said administrator to sue said company for said amount, but that he failed to do so and permitted the cause of action to prescribe, and that by his faults, neglects and laches, in permitting said right-of action to prescribe, the administrator has damaged said succession in the sum of one thousand dollars, and has made himself liable therefor, and that his account should be amended so as to charge him with said sum of one thousand dollars.

Second — That said deceased owed less than six thousand dollars at the time of his death, and tlijat his succession could have been speedily wound up at little cost, but that said administrator, without reason, and to the detriment of the manifest interests of said succession, and inspired by the desire to deprive this opponent of her rights, has protracted said administration over the period of seven years (about), and has charged said succession with unnecessary costs and taxes on non-revenue producing property till an amply solvent succession now bids fair to be wholly consumed; that the costs of administration, as shown by the various accounts of said administrator (exclusive of administrator’s commissions and attorney’s fees), aggregate one thousand, six hundred and thirty-eight and 69-100 dollars, and the taxes paid aggregate one thousand, five hundred and eighteen and J2-100 dollars; that at least one-half of said costs and taxes could have been saved to said succession by a reasonably prompt and diligent administration, and that by the fault of said administrator said succession has lost said sum, say one thousand, five hundred and seventy-eight and JO-lOO dollars, and has been damaged to that extent, and that said administrator is liable therefor, and his account should be amended so as to charge him with said amount.

Third — Opponent further represents that said administrator has failed to charge himself in said account with rent of the Stille residence while occupied by him, which rental, during said occupancy, is well worth one hundred dollars; and that said account should be corrercted and amended by charging said administrator with said amount.

Fourth — Opponent further represents that the amount allowed to Dan Vandegaer for platting and preparing description of the lands of said succession and community is excessive, and should be reduced from fifty dollars to twenty-five dollars.

Fifth — Opponent further represents that said administrator has lately provoked a judicial sale of certain lands of said succession and community for the alleged purpose of paying debts; but that there were at the time no debts due by said succession (and if any, not of such a nature as to permit a sale by administrator to pay them); that minors were interested in said lands, and that the same could not be sold (if at all) for less than their full appraisement; that the appraised value of said lands was three thousand, one hundred and twenty-five dollars, but said lands were sold for two thousand and eighty dollars; and that said account should be corrected and amended so as to charge said administrator with the difference between the appraisement and .the price, that is to say, with the additional sum of one thousand and forty dollars.

Sixth — That administrator’s last account allows to the creditors of said succession .interest on their claims and aggregating two thousand and eighty-seven 25-100 dollars, but that in none of the five previous accounts, filed, had interest been allowed to be claimed by any of said creditors, and that in the account of 1899 a balance was struck in favor of said creditors, said aggregate balance being seven hundred and ninety-nine and 26-100 dollars, with no interest allowed on same; that said accounts had never been opposed by said creditors, or any of them, and had been homologated by judgment of court; that said judgments homologating said accounts are final and res adjudicata as to them and said administrator, and that said creditors can not now be allowed interest, and opponent specially pleads res adjudicata against said interest on their claims; and that said account should be amended so as to strike therefrom said interest, two thousand and eighty-seven 25-100 dollars. But respondent alleges in the alternative, if the court should be of the contrary opinion, that the accumulation of said interest is the result of the fault, negligence and neglect of said aidministrator in failing to promptly administer and close said succession, and that said succession has been damaged by such neglect and faults in the amount of said interest, and that the amount should be corrected and amended so as to charge said administrator with the amount of said interest, namely, two thousand and eighty-seven and 25-100 dollars, together with such further interest as may have accumulated, if any, since the filing of said account or may hereafter accumulate.

Opponent again alleges, in the alternative, in any event, if both above demands are denied by the court, that the notes of J. D. Stille, E. O. Stille and W. D. Stille, if they represent any valid indebtedness, were given for clerk hire, and bore a privilege against said succession, and bore eight per cent, interest and should have been immediately paid out, and that failing to so pay them the administrator can not charge the succession with interest on same, said administrator should be charged with an equivalent amount to reimburse the succession for the interest so paid out through his fault, and that said account should be amended accordingly.”

The prayer of opponent was that the administrator be put upon strict proof of the correctness of his account, and that said account be amended as set forth herein, in items one to six inclusive, for all necessary orders, costs, and general relief.

The district judge adjudged and decreed that the account and tableau of distribution, filed on the 8th day of May, 1899, be amended by charging the administrator with twenty dollars for the price of the land taken by the K. C. Ry. Co. and fifty dollars for rent of the Stille residence, and that, to this extent, the opposition of Mrs. Johnson be sustained; and that in all other respects it be overruled, and said account, as amended, be homologated and made the judgment of the court, and the administrator authorized to pay the funds as proposed on said tableau, the costs to be paid by the succession.

Opponent appealed.

Appellee prayed in the Supreme Court that the judgment be amended by totally disallowing and rejecting the demand of opponent for damages on account of railroad right of way, on which demand the lower court allowed twenty dollars as a debt against mover.

He prayed that in other respects the judgment of the lower court be affirmed.

Opinion.

This matter is before us on appeal, taken by the widow in community of J. D. Stille, from the judgment of the District Oourt, upon her opposition to the provisional account last filed by J. D. Stille, Jr., as administrator of the succession of his father.

Appellant’s .counsel, in his brief, abandons the fourth and fifth grounds of opposition.

The issues, therefore, are those raised by the first, second and sixth special grounds of opposition andl the general opposition. The account is not a final but a provisional account of administration; the last of five of the kind filed, of his own motion, by the administrator. Its only object is to acknowledge the receipt by him of certain specified sums of money; to obtain the approval of the expenditure by him ex parte and without the court’s order of a number of claims declared to be privileged claims due by the succession, and the distribution of the balance now in his hands, among certain named parties as being creditors of the succession for stated amounts.

The widow in community has dealt with the account as a final one, and has sought to litigate the whole past administration of the succession. It is not an account calling- presently for the raising- and decision of such broad issues; the appropriate time for so doing is upon the final account. 9 Robinson, 61; 12 Robinson, 217; Succession of Day, 2 Ann., 268; 12 Ann., 268.

There are, however, certain issues which may as well be disposed of between the parties now, as later. We think the first special ground of opposition, through which the appellant seeks to charge the administrator with one thousand dollars for not having sued the Kansas City, Shreveport and Gulf Railway Company for the value of the right of way taken by it over a portion of the lands of the succession, and for damages sustained therefrom, was properly decided.

The administrator testifies that all parties in interest had come to an understanding that no charge was to made for the same; no expropriation proceedings were brought for the land, which is of little value, and so far from being damaged by the building of the road, we think it has been shown that the property has enhanced in value by its construction. • Appellants’ counsel, in their brief, claim now only fifty dollars upon this particular score. There is nothing to show that a claim brought now against the company would be met by a plea of prescription, and there is every reason to believe, from the amount which would be involved, and the probable outcome of such a suit, with attorney’s fees and other incidental expenses taken into consideration, that litigation on the subject would be neither profitable nor desirable.

The second ground of opposition set up by the widow, as to the injuries resulting from the prolonged administration of the succession, is not one to be properly urged by the opponent.

She was on the spot, with the right to demand, at any time, a speedy settlement or partition of the succession. She evidently did not think, at the time, that it was her interest that this should be done, but acquiesced in the course adopted by the administrator as one calculated to lead up to the best final results. She can not speculate upon the ultimate result, and we are by no means prepared to say that it was in fact injudicious.

That matter remains yet to be seen and tested. In so far as the costs and charges incurred in the presentation of the various accounts, and in the progress of -the settlement of the succession were concerned, she stood by and saw the various accounts, in which they were exhibited, homologated without opposition, and payment thereof made: prima facie they must be taken as well grounded.

The adminstrator of the succession testifies, without contradiction, that the attorneys of the opponent urged him not to hastily close the administration, but to leave matters open. We do not think this ground of opposition well taken.

The sixth ground of opposition is the most important one in the case. J. D. Stiile died in 1893, and his son, J. D. Stiile, Jr., was appointed administrator. On the 5th of March, 1894, he filed his first provisional account of administration, in which he charges himself with having received the sum of three thousand, two hundred and twenty-eight dollars and thirteen cents ($3,228.13-100), and credits himself as having paid out therefrom, prior to the filing of the account, to different persons, seven hundred and seventeen dollars and twenty-five cents ($717.25), leaving a cash balance in his hands of two thousand, five hundred and ten dollars and sixty-eight cents ($2,510.68-100).

This balance the administrator proposed to distribute, first, to the amount of five hundred and ninety-five dollars and fifty-nine cents ($595.59-100) to certain named privileged creditors, and the remainder or nineteen hundred and fifteen dollars and twenty-nine cents ($1,915.29-100) pro rata among the creditors of the succession named in the account itself, assigning to each creditor a dividend of thirty per cent, upon the amount stated in the account as that due to each. As the same course was followed by the administrator in the subsequent accounts filed by him, matters will be explained by selecting several of these creditors as they therein appear on the first account and following them in the later accounts.

In the account of 1894, for instance, we find the following:

Stauffer, Eshleman & Co., 30 per cent, dividend on $203.84. .$ 61 15

Bucldew & Pleasants, 30 per cent dividend on $5.78........ 1 73

Lewis Baillie & Co., 30 per cent, dividend on $108.99........ 32 69

W. D. Stille (a son), 30 per cent, dividend on $508.06........153 40

E. O. Stille (a son), 30 per cent, dividend on $1,027.78......308 33

J. B. Stille (a son), 30 per cent, dividend on $2,138.68........641.55

Account of 1895.

To Stauffer, Eshleman & Co., 10 per cent, dividend on $142.69.$14 26

To Bucldew & Pleasants, 10 per cent, dividend on $4.05........ 40

To Lewis Baillie & Co. Ltd., 10 per cent, dividend on $76.30. .. 7 63

To W. D. Stille, 10 per cent, dividend on $355.66............ 35 56

E. O. Stille, 10 per cent, dividend on $719.45................. 71 94

J. D. Stille, 10 per cent, dividend on $1,496.98..............149 69

Account of 1896 — 20 Per Cent. Dividend.

(Upon amount declared to be in his hands).

To Stauffer, Eshleman & Co., on $128.43....................$25 68

To Bucldew & Pleasants, on $3.65........................ 73

To Lewis Baillie & do., Ltd., on $68.67.................... 13 73

To W.' D. Stille, on $320.10..............................' 64 02

To E. O. Stille, on $647.51................................129 50

To J. D. Stille, on $1,347.29..............................269 44

Account of 1897 — 73 Per Cent. Dividend.

(Upon amount declared to be in liis hands).

To Stauffer, Eshleman & Co., on $102.75..................$75 00

To Bucklew & Pleasants, on $2.92........................ 2 13

To Lewis Baillie & Co., Ltd., on $54.94.................... 40 10

To W. D. Stille, on $256.08..............................186 93

To E. O. Stille, on $518.01.................................378 14

To J. D. Stille, on $1,077.85.............'................786 83

At the foot of the account the total amount of claims on which this dividend of seventy-three per cent, is to be paid out is added and foots up at $2,959.47, and the total amounts of dividends to be paid at $2,160.11, and just below are the words:

“Leaving now, due said creditors, $779.36.”

But while this amount of $779.36 is stated to be the balance due to creditors, we find in the provisional account of 1899 (that now before the court) the following:

Account of 1899 — Propiosed Distribution.

To Stauffer, Eshleman & Co., balance principal and interest on their debt .............................................$63 50

To Bucldew & Pleasants, balance principal and interest on their debt ............................................. 1 85

To Lewis Baillie & Go., Ltd., balance principal and interest on their debt ................................i.......... 34 88

To W. D. Stille, balance principal and interest on debt......266 12

To E. O. Stille, balance principal and interest on debt........475 96

To J. D. Stille, balance principal and interest on debt......1,284 36

A scrutiny of these different accounts (the first four of which were homologated after presentation) will show that the dividends, each successive year, were based upon the amounts which had figured the year before as those upon which dividends had been paid, less the amounts paid out that year for dividends, and the the original amounts which figured in the account of the year 1894 as those upon which the dividends of that year were to be drawn, were apparently the whole amounts then due to each creditor on his claim; so that the different accounts would indicate a constant decreasing of the capital of the debts, no mention being made or notice taken of interest as accruing upon the same. It is only upon the account of 1899 that interest is made to appear, and the different debts which, by the account of 1897, were shown to be greatly reduced, were suddenly increased; that of J. D. Stille, for instance, on which he is stated to have drawn a dividend of seventy-three per cent, on one thousand and seventy-seven dollars and eighty-five cents ($1,077.85-100), appears, in 1899, as a debt of twelve hundred and eighty-four dollars and thirty-eight cents ($1,284.38-100).

This result was evidently reached by allowing interest to the different creditors from 1894 on the capital of their respective debts as they stood in that year down to 1899, and then deducting from the original capital plus the whole accrued interest thereon, the total amount received by each creditor- — by way of dividends — in other words, the succession was not given the benefit of the partial payments made from time to time upon their claims, thus reducing capital and interest.

We think this exhibit of the debts as presently due by the succession and upon which the administrator proposes to make payments is clearly wrong, and that the District Court, in authorizing payments to be made on that basis, erred. We.need not now consider whether the creditors are cut off by the accounts heretofore homologated from claiming interest at all upon their respective claims; it is enough for us to say, at this timle, that if they be entitled to interest, it is upon the amounts due them respectively by the application to their respective claims of the rule of partial payments. With respect to the general opposition filed by appellant to the administrator’s account, we think the administrator, in view of the opposition made, should have established the validity and the amounts of the claims alleged to have been paid out by him, by evidence stronger than a general statement by him on the stand, as a witness, that his account was correct. That was a mere conclusion of the witness.

For the reasons herein assigned, lit is ordered, adjudged and decreed that the judgment of the District Court, appealed from heir in so far as it approves and homologates the provisional account filed by the administrator, touching the amounts claimed to have been paid out by him to creditors of the succession, since his last account, be and the same is hereby annulled, avoided and reversed, and the administrator •held to proof of the correctness and amount of the claims so alleged to have been paid, and to proof of payment, and that the judgment be also annulled, avoided and reversed in so far as it approves and homologates the provisional account of the administrator touching the proposed distribution of the succession funds shown by the account to be in his hands, to the parties therein declared to be creditors of the succession for the amounts therein stated, and that the rights and obligations of the parties in interest touching the existence and amounts of their respective claims, and all issues raised by the sixth special ground of the opxJosition filed by the widow in community, appellant herein, be left open for future examination and decision.

It is further ordered, adjudged and decreed, that the judgment of the District Court, to the extent that it is not hereby annulled and amended, be and the same is affirmed, costs of appeal to be borne by the the succession of J. D. Stille.


author: Breaux, J.

text:
    No. 13,562.
    State ex rel. D. M., Thomas S. and Allan Sholars vs. Fred. D. King, Judge Civil District Court, Parish of Orleans—Division “B.”

    Syllabus.
    The record shows, as relates to the amount involved, that the relators have a right to appeal, and for that reason the application for writs, under our supervisory jurisdiction, is denied.
    APPLICATION for Writs of Certiorari, Mandamus and Prohibition.

      I). M. and Allen Sholars for Relators.
    Respondent Judge pro se.

      Hughes and Favrot for Mr. and Mrs. Frank Bryant, also Respondents.
   The opinion of the court was delivered by

Breaux, J.

Relators in this application seek to have a suit pending before the District Court dismissed for want of jurisdiction rabione muteriae, and in the alternative, to have the plea of prescription; tendered by them, heard and decided.

Relators concede, as we take it, that, to obtain relief in this proceeding, they must show that they have no remedy by appeal. It devolves upon us to ascertain whether or not, as relates to the amount involved, the relators have a right of appeal.

The defendant, in the case of Bryant vs. Sholars, No. 60,850, in her petition in the District Court for an injunction, alleges that her damages, inconvenience, and resulting injury by the continued exercise of the right of view by relators, will be more than two thousand dollars.

The value of the property, the subject of this dispute, is alleged to be more than five thousand dollars. She has sworn to her allegations regarding the value of this property, and also to her allegations regarding the damages which she avers she will suffer.

On the trial in the District Court, one of the witnesses for the defendant testified that the servitude of view claimed by relators through openings in a wooden wall at or near the dividing line between the two properties, that of the relators and her own, would be the cause of great inconvenience to her.

The judge of the District Court, in answer to the- rule nisi, sets out that he is not aware of any duty he can be required to perform at the present stage of the case; that having signed the judgment, the case and the judgment aire beyond his jurisdiction; that, if there are any errors in the trial of the case, in the ruling, or if the evidence does not sustain the judgment rendered, all can be corrected on appeal.

It is true that forty dollars is the value which plaintiff sets upon one-half the wall in which relators seek to have windows opened, but this is not the exclusive criterion of the jurisdictional amount involved. A servitude of view, in a wall of even less value, may cause damage and injury to an amount much greater than that here alleged. The issues are not reduced to the value of the wall in question. As we take it, if plaintiff were to lose her case, as she avers, the damages by inoonvenience and deterioration in the value of the property would be the amount alleged, and this is a fair test of the jurisdiction.

In view of the issues presented, there is nothing shown on the part of any one in this case indicating the inflation of the amounts alleged for the purpose of securing' jurisdiction. On the other hand, relators themselves, have alleged damages sufficient to give jurisdiction on appeal.

After the order nisi had been issued, an examination of the different papers resulted in convincing us that the ease can not properly be brought up under our supervisory jurisdiction.

The order nisi is discharged and relators’ application is dismissed at their costs.


author: Monroe, J.

text:
    No. 13,325.
    Mrs. J. A. Ball et al. vs. City of New Orleans et al.
    Syllabus.
    1. Where a person acquires real estate, free of incumbrance, at a sale made in satisfaction of the ranking mortgage and vendor’s privilege, the mere assumption that such person thereafter elected to take the place of the former owner with respect to a contract whereby it was agreed that said property should be used for a number of years for a certain purpose and should then revert, or be turned over, to another, without proof of any specific agreement on the part of the adjudieatee, is an insufficient basis for a judgment; and, where the evidence fails to show, with certainty, that the property was used by him for the purposes and under the conditions contemplated by such contract, it will be held that the title remains in such adjudieatee, or his heirs or assigns.
    2. Where a person, believing himself to be entitled thereto, demands and holds possession of property by virtue of a construction placed by him upon a contract, concerning the same, and upon the acts of those claiming adversely, who acquiesce in such demand and yield such possession, it can not be said that the possession thus acquired and held is in bad faith.
    3. Where, in such a case, the adverse claimant asserts his right in court and obtains judgment decreeing him to be the owner, and restoring him to possession, the rents and revenues to which he is entitled, from the date of the filing of the suit, are to be measured by the value of the property for ordinary purposes, and can not be augmented by adding thereto the additional revenue resulting from the use of the property, by a municipal corporation, as a public market.
    APPEAL from the Civil District Court, Parish of Orleans.— Sí. Paul J.

      Rouse & Grant for Plaintiffs, Appellees.

      James J. McLoughlin, Assistant Oity Attorney, and Samuel L. Gilmore, City Attorney, for Defendant, Appellant.
   The opinion of the court was delivered by

Monroe, J.

This is a petitory action, brought by the heirs of Joseph Bilgery, fon the recovery of twelve lots of ground in New Orleans, with the buildings thereon, known as the Second Street Market, together with certain rents and revenues. The defendants were the City of New Orleans, and its lessee, the New Orleans Contracting Company, Limited, but the contractor, having disclosed its lefesor, was dismissed from the case, and the only defendant now before the court is the City of New Orleans, who pleads the prescription of one, two, three, five and ten years, and alleges that Joseph Bilgery acquired the rights and assumed the obligations of Joseph Raymond! under ordinance No. 2041, A. S., and by that title operated the market in question for twenty years, and thereafter, to-wit, upon March 18, 1894, in accordance with the terms of the said ordinance and with the obligations of said Raymond, turned the same over to respondent, and that plaintiffs are, therefore, estopped to make the claim here set up, and should be condemned to make a clear title of said property to respondent, and she prays judgment accordingly.

The facts, as disclosed in the record, are as follows:

Upon March 18, 1873, the Council of New Orleans passed an ordinance, No. 2041, A. S., granting to Joseph Raymond permission to erect, at his own expense, a market-house, on the lots in question, and there conduct a market under municipal supervision, subject to the conditions ; that, at the end of ten years, the city should assume the administration of said market, and should, for a period of ten years, retain all revenues in excess of $500.00 per month (or $6,000.00 per year); and that, at the end of twenty years, the property should revert to the city. It was further provided that the city should impose no taxes on said property, and that Raymond should not alienate, divert, or incumber it, to the prejudice of the city’s rights; and the provisions of this ordinance were embodied in a contract, entered into between Raymond and the city, April 10, 1873, and duly registered in the conveyance office on 'the 17th of the same month.

It appears, however, that the lots upon which the market-house was to be erected had been purchased by Raymond from the Union National Bank, on February 27, 1873, for something over $14,000.00, of which a comparatively small part was paid in cash, and for the balance, of over $11,000.00, Raymond gave notes, secured by mortgage and vendor’s privilege, which were outstanding and unpaid when the contract with the city was entered into. It further appears that, in April, 1876, some of the notes mentioned being past due, the bank caused executory process to issue thereon, under which the property was seized, and, upon March 3, 1877, adjudicated to Joseph Bilgery, as the subrogee of the seizing creditor, holding the ranking mortgage and privilege. Bilgery having gone into possession of the property, died in September, 1877, leaving a widow, and four children, viz: a son by a previous marriage, and three daughters by the wife who survived him. In 1878, the widow acquired the interest of the son, Joseph M. Bilgery, and, thereafter, in 1879, she, also, died, and her three daughters, issue of the marriage with Joseph Bilgery, became owners of the entire property, and were put in possession, and so remained until March 30th, 1894, when the City of New Orleans, acting through the Commissioner of Police and Public Buildings, took possession; the circumstances connected therewith being thus stated, in a letter from the Commissioner to the Mayor, of date April 2, 1894, to-wit:

“Dear Sir — Acknowledging receipt of-yours of the 29th ult. enclosing “ copy of letter from City Attorney O’Sullivan, of same date, relative “ to the expiration of the lease of tho Second Street Market, wherein he “advises that I notify Joseph Raymond, or his agent to immediately “ turn over the market to the City of New Orleans, I beg to report as “ follows: On the morning of the 30th ult., I sent my chief clerk, Mr. “Joseph E. Manning, to take charge, and collect the revenues, of the “ Second Street Market. lie immediately proceeded to notify the “ several people occupying stalls therein that he was acting as the rep- “ resentative of the city, and that the city would collect the revenues “from that date, the 30th of March, 1894. While Mr. Manning was “ in the act of notifying the different persons occupying stalls therein, “ the party who has been collecting the revenues (presumably one of the “ Bilgerys) ordered the occupants of the stalls to pay no one for the “ present, but as Mr. Manning was about completing his list of people occupying stalls in the market he called out to Mr. Manning that he “ had been mistaken, and that everything was all right now, and that “ he (Hanning-) could collect, as he bad informed the people occupying “ stalls to pay him. Mr. Manning, thereupon, collected said revenues for “that day (March 30, 1894,) reported the amount to my office, and I “ had the same deposited with the City Treasurer. * * * There was “ no opposition made by any one to the collection of revenues on the “ 31st ult. Commencing the 1st day of April, 1894, I ordered Mr. John “ T. Carlin, commissary of the Magazine Market, to collect the rev- “ enues of the Second Street Market, and report the same to this office, “ when I will deposit the amount daily with the Treasurer,” etc.

There is, also, in the record a communication, produced by, and offered in evidence on behalf of, the plaintiffs, which reads as follows, to-wit:

“New Orleans, March 30, 1894.
“Messrs Raymond & Bilgery, City.
“Gentlemen. — This is to notify you, that the lease, under the “contract, of the Second Street Market, has expired, and that, repre- “ senting the City of New Orleans, I have this day taken possession of “ the same, and in the presence, and with the assistance, of the party “ who has been collecting- the revenues of said market, I have collected “ the revenues of this day, for the benefit of the city of New Orleans, “ reserving-, of course, to the City of New Orleans, the right to sue for “ the balance due her, by you, under the terms of the contract.
“Yours respectfully,
“(Signed) O. Taylor Gauche,
“Gomr. Police and Pub. Bldgs.
“J. E. M.”

And from that date, the city remained in undisturbed possession, and heard nothing, so far as this record discloses, of the Bilgea-ys, until the institution of this suit, in October, 1897. The property has been, in the meanwhile, operated as a public market, and it is admitted that the city and her lessees have collected from the occupants, during the period from April 1, 1894, to March 28, 1899, a total of $17,430.10, for which amount, with interest, the plaintiffs have obtained judgment.

Opinion.

It is plain that Raymond could have made no contract affecting the property in question to the prejudice of the rights of his vendor, the Union National Bank, and lienee that the-adjudicatee, who purchased the property at the sale made for the enforcement of those rights, acquired it free of any incumbrance resulting- from Raymond’s contract with the city. It was so held in N. O. National Bank vs. Raymond, 29 Ann., 355. It is true that, the city consenting, the adjudicatee might have taken Raymond’s xilace, and, accepting the consideration, have become bound for all the obligations of his contract. On the other hand, he was at liberty to ignore Raymond’s contract and make a totally different one for his own account, or make such use of the property as he thought advisable. The evidence fails to show that any agreement, whatever, was entered into with the city, and makes it reasonably certain that there was none. It also makes it probable, however, that Bilgery and his widow and heirs have used the xn’operty, since the former acquired possession of it, for the same purposes that Raymond was to have used it, under his contract, and that they have enjoyed the Xirivileges and immunities conteinqolated by that contract, that is to say; that they have enjoyed the franchise of operating a public market, upon proxierty which has been exempt from taxation, and with the advantages resulting from municipal ordinances and regulations imposing restrictions upon the keeping of xn-ivate markets. But this probability is an insufficient basis for a judgment, and if that which is thus made x>rob-able were established as a fact it would still fall short of making out a case which would justify this court in holding that the title to the real estate in question, legally vested in Bilgery and his heirs, had been divested and transferred to the city.

If it is true that the Bilgerys have exercised a public franchise in the use which they have made of the said property, and have enjoyed exemption from taxation, upon the assumption that they would transfer the property to the city at the expiration of Raymond’s contract, they should be held to account for the advantages which they have received, but such an assumption does not authorize a judgment in favor of the city for the property.

Upon the other hand, the acquiescence of the plaintiffs in the demand made by the city for possession and in the possession thus yielded, from May 30, 1894, until the filing of this suit, October 23, 1897, acqui, the city of having been a possessor in bad faith during- that period. “The “ possessor in bad faith is he who possesses as master, but who assumes “ the quality, when he well knows that he has no title to the thing or “ that his title is vicious or defective.” O. O. 3452. Raymond’s contract provided that, at the expiration of the term fixed, the city should be put in possession of the property as owner, the language reading as follows, to-wit: “At the expiration of which time, the market-house “ and grounds on which it is built and so much of the surrounding' “ ground as has been left open for the passage around the market, shall “ be turned over to the City of New Orleans, and said city shall be put “ in full possession of ownership of said market.” The city, assuming that the contract was still controlled by Raymond, or that the Bilgerys had elected to stand in Raymond’s shoes, made its demand for possession, agreeably to this stipulation, and, the possession being yielded without objection, was justified in the belief that it h«.d acquired, and thereafter held, lawfully, so that it can not be said that it assumed the quality of master knowing that it had no title. The judgment appealed from is, therefore, erroneous in condemning the city for rents and revenues from May 30, 1894, to October 23, 1897. It is also erroneous in taking as a basis for the amount allowed from and after the latter date the revenues of the property resulting- from its use as a public market, since the plaintiffs are entitled to recover no more than they could have derived from the property itself, apart from the enjoyment of the market franchise.

It is therefore ordered, adjudged and decreed, that, in so far as the judgment appealed from condemns the defendant for rents and revenues of the property in question, the same be annulled, avoided and reversed, and that, as to such rents and revenues for the period between May 30, 1894, and October 23, 1897, the demand of the plaintiffs be rejected, and that as to such revenues, since October 23, 1897, said demand be rejected as in case of non-suit. It is further ordered and adjudged that, in so far as said judgment decrees the plaintiffs to be the lawful owners of the property herein claimed, and entitled to possession thereof, the same is hereby affirmed. It is further ordered, adjudged and decreed that all legal rights of the city with respect to taxes upon the said property since May 18, 1873, and with respect to any claim which it may have arising out of the use made of said property, and of any franchise or privilege in connection therewith, be reserved. It is further ordered that the defendant pay the costs of the lower court and that the plaintiffs pay the costs of the appeal.


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    No. 13,491.
    George B. Kimbro vs. Sarah Planting and Refining Company, Limited, et als.
    Syllabus.
    The lessee chose to cancel and annul, for a consideration, a lease under which he was to hold a plantation for three years. This cancellation was brought about by one who refused to make advances to run the plantation unless same was made.
    Although the consideration to be paid for the annullment and cancellation was not paid at maturity, innocent third persons, not aw'are of the particulars of the transaction, can not be prejudiced in their interests by the fact that the consideration was not paid.
    The property, after the lease had been cancelled, was sold at public auction. The plaintiff stood by and permitted the property to be sold without making any claim. The defendant in possession acquired a title free from any claim of the plaintiff under his cancelled lease; and, as to the defendant not in possession, no action lies to compel it to surrender the possession of property the possession of which it has not.
    APPEAL from the Nineteenth Judicial District, Parish.of Iberia— Yoorhies, J.

      Andrew Thorpe and Thomas II. Thorpe for Plaintiff, Appellant.

      Walker J .Burlce & Bro. for Defendant, Appellee.
   The opinion of the court was delivered by

Breaux, J.

This is an action to rescind a contract surrendering a lease; to be reinstated in possession of the leased property; and for the payment of the value of possession from the fifth of February, 1899. The defendant, in substance, avers abandonment of the lease by the plaintiff and estoppel.

On the second day of January, 1897, Armand Levy, owner of El Dorado, or Sarah Plantation, leased it to Kimbro, plaintiff, for a rental of fifty cents per ton of cane raised on the plantation each year for three years. The contract of lease was duly recorded. In the spring following, the owners of this plantation sold it to Joseph Weil for the sum of forty-seven thousand five hundred dollars cash. On the same day, Weil sold it to Pearce and Oanty for a similar amount on credit. The year following, Weil foreclosed against the vendees, Pearce and Canty, and at the sheriff’s sale he again became the owner of the property. In June of the same year, Joseph Weil sold the place to the Sarah Planting and Refining Co., represented by George B. Kimbro, its president.

On the 18th day of February, 1899, Joseph Weil bound himself to advance an amount to Kimbro, president of the Sarah Planting and Refining Co. for running the plantation. Weil, as a condition prece-. dent to the said loan by him, required that the Sarah Planting and Refining Company would obtain a surrender of the lease in question. In order to carry out this requirement of Weil, Kimbro consented to set aside the lease, the term of which was to expire on the first of January, 1900, The Sarah Planting and Refining Company, by resolution of February 6th, 1899, of record, accepted Kimbro’s proposal to sell the unexpired term of the lease of the plantation bearing the same name as that of the company. The assumption by the Sarah Planting and Refining Company of an indebtedness of Kimbro to Weil, constituted the consideration for which the lease was surrendered. The indebtedness thus assumed amounted to three thousand two hundred and forty dollars. As it has an important bearing upon the issues, we extract the following from the written agreement of surrender:

“New Iberia, La., Feb. 16th, 1899.
“ Be it known by these presents that the undersigned, Kimbro, having leased from the estate of Marx Levy in the year 1897, for a period of three years, that plantation known as Sarah Plantation, situated at Fausse point in Iberia parish, which at the time belonged to the heirs of Marx Levy, and now belongs to the Sarah Planting and Refining Company, Limited, desiring to facilitate the said corporation now owning said plantation in its! operations; and for and in consideration of the said Sarah Planting and Refining Co., Limited, assuming the indebtedness of G. B. Kimbro to Jos. Weil & Co. of New Orleans, La., in the sum of three thousand two hundred and forty 22-100 dollars, the said G. B. Kimbro hereby consents to and does cancel and annul the lease of said plantation for the balance of the term of said lease, delivering said property held by him as lessee to said corporation without any right or privilege reserved to him as lessee, but with reservation of all other rights in the premises.” This was signed by plaintiff, and the Sarah Planting and Manufacturing Company.

Plaintiff, through counsel, avers that Weil demanded acquisition of the lease by the Planting Company as a condition precedent to his contract, to make advances, but that he had nothing to do with the negotiations between the company and Kimbro, or the terms on which the surrender was made; that the purpose of the company was to obtain credit on'Weil’s books that would enable it to cultivate its plantation and to pay Kimbro the amount it obligated itself to pay him for the surrender of the lease. This is sustained by the evidence. It is also shown that Weil’s advances amounted to three hundred dollars. The company executed a check for five hundred dollars in part payment of the amount due for the surrender of the lease which Weil accepted but did not pay. lie, Weil, failed in March, 1899.

The proof also shows that from the date of the cancellation of the lease up to the sale under the executory proceedings in matter of the Hibernia Rank vs. Sarah Planting and Refining Co., the planting operations were-conducted at the expense and for the benefit of that company. . One. of the witnesses testified as follows: “The planting operations of 1899, were-started by Kimbro, and carried out and on by him till the cancellation of the lease”. The following is an admission of record. It admits that, George B. Kimbro is and was the president of the Sarah Planting and Refining Company at the date of the sale in matter of the Hibernia Bank vs. Sarah Planting and Refining Company. At the time of the sale there was n'o opposition filed, nor was there any-notice given to the bystanders relative to the lease now declared upon by George B. Kimbro, and that when Hechinger purchased, as well as his vendee Gajan, their knowledge of the facts relative to said lease were only such as-the public record disclosed.

After Weil had entered into the contract to advance the Sarah Planting • Company, the Hibernia Bank, transferee and holder of the notes which Weil held, foreclosed, and, at the sale Hechinger bought the property, and, subsequently sold it to Gajan who is one of the defendants in this suit. The judgment of the District Court rejected plaintiff’s demand as related to Gajan, and as to the Sarah Planting and Refining Company, co-defendant, it-dismissed the suit as in case oi non-suit. From the judgment, plaintiff prosecutes this appe'al.

The actio” against the owner of the property, Gajan, is an action against him as third possessor. The record does not disclose that he was in any manner a party to the different acts, sales and agreement entered into prior to his becoming a purchaser of the place, or that he knew anything about this lease of the place, or had. anything to do with its cancellation. There appearing nothing of record to the contrary, we must infer that he is a third possessor in good faith and his rights will be considered from that point of view.

After plaintiff, Kimbro, had surrendered the lease and consented to its cancellation, there was an end of all rights to the resolutory conditions. They were brought to a close by the agreement and could not be revived to the prejudice of the rights of this defendant. This lease was voluntarily cancelled, and, although Weil may have had nothing to do with the cancellation, it was cancelled at his instance. Kimbro sought his own interest from a business point of view. lie had an interest in the company known as the Sarah Planting and Refining Company, of which he was the President. He had an interest in obtaining advances to cultivate the plantation. From the foregoing it appears that the purpose in surrendering the lease was to free the property from all claims arising' under the lease in order that third persons might be free to contract with the owners. This being the object, it was not possible for the lessee to revive this right against third persons who had entered into a contract after its cancellation. Plaintiff being an interested party, is without right to the resolutory condition. The renunciation may be either expressed or tacit, says Laurent, Vol. 17, p. 138.

The following case is referred to by him: A father intervenes in a contract entered into between his son and the creditors of this son. He binds himself as security for the latter on the condition that it will have no effect unless his son gets the consent of all his creditors. It was stipulated, in addition, that the father would take possession of the assets of the son and sell them as he saw fit. The son neglected to obtain the signatures of all of his creditors; the father on being sued on this contract prayed for the resolution of the contract of suretyship. The court docided that having executed the concordat, in those particulars, that it was favorable to himself in intervening in the affairs of his son, he was, in consequence, without right to a resolution or a rescission of the contract. Ib.

In the case before us for decision, not only was the plaintiff interested in obtaining the advances which were made, to a limited extent, it is true, but afterwards lie remained silent when lie should have spoken if it was liis intention to claim anything under the lease. A public sale was made of the property and not the least objection was urged. ,Tt is well settled that when the owner of an immovable is present when it is offered for sale and sold and consents to its being sold as the property of another, he is thereby estopped, if the purchaser is an innocent third person. He, as president of the company, must have been legally notified of the intended sale of the plantation. Having placed oil the public records the cancellation on the faith of which the purchaser acquired the property at public auction in his presence, he must bear the consequences of his own acts.

This action is, in its nature, one for specific performance. Plaintiff asks to be restored to the possession of the property. The term of the lease being at an end, performance by Gajan by delivering the property to be cultivated under the lease is an imxiossibility. He, Kimbro, on the other hand, cannot carry out his contract, for he cannot go into Xiossession and make a crop for the remaining term of the lease already expired. Moreover, there can be no resolutory condition understood as forming part of such a cancellation as that ta which plaintiff consented. The resolutory condition is understood for the recovery of the property in a contract translative of, and not in a contract .abandoning- all claims to property in order that the owners of the proxierty may obtain necessary advances for its cultivation. The creditor who has a mortgage, or the owner who has a title to property, and who, in his interest, abandons it, is not entitled to the resolutory condition against an innocent third person in case of the non-payment of the promised consideration for the abandonment.

It should be borne in mind in considering the issues that plaintiff did not surrender the lease because he could not obtain its execution, but only for the reason that he desired to further the interest of the company of which ho was a member. If he met with a disappointment, both as relates to the advances and as to the consideration, it cannot be charged to the innocent purchaser, Gajan.

We have read with attention each of the decisions to which counsel for the xfiaintiff have directed our attention. In each case there was a price due on the purchase of an immovable xfiece of property which gave rise to vendor’s right to recover the property even in the possession of a third person, vendee.

In the case before us there was no sale or lease, and no price. There was an abandonment of the lease for a consideration which, under the circumstances, did not carry with it the right to the exercise of the resolutory condition.

As against the Sarah Planting and Refining Company, Limited, the other 'defendant, there can be no exercise of the right for it is not in possession and cannot, in view of that fact, be decreed to surrender possession.

We think the judgment does justice between-the parties, and for that reason, it is ordered, adjudged and decreed that it be affirmed.

Rehearing refused.


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    No. 13,414.
    Succession of Anthony Fatjo.
    Syllabus.
    1. Where the mother claims the willow’s homestead and proves the necessitous circumstances of her children and her self, she is entitled to the usufruct and the children to the amount.
    2. The delays in the opening of a succession to which a creditor has given his sanction, afford him no ground of complaint.
    3. The widow’s acts, as relate to the community between her and her late husband, are not construed into a tacit acceptance of the community. If they were, the children would not be thereby prejudiced in their rights to recover the property.
    4. The fees and charges as fixed by the court below are not excessive.
    APPEAL from the Civil District Court, Parish of Orleans.— Theard, J.

      Richardson & 8oule for Administratrix, Appellee,

      Vincent Foulon and Charles II. Osterberger for Gustave Seidel, Opponent, Appellant.
   The opinion of the court was delivered by

Breaux, J.

The issues to be decided in this suit grow out of an opposition of a creditor whose claim is secured by mortgage to an account of administration filed by an administratrix who administered the affairs of her late husband.

• The first and principal ground of opposition is to the widow’s homestead. The account credits the widow in necessitous circumstances with one thousand dollars. The judge of the District Court allowed this claim, and at the same time reduced the amount to seven hundred aind fifty-eight 09-100 dollars by charging the widow with amounts she had collected for the succession. The debits consisted of rent with which she was charged and the amount received from the Young Men’s Benevolent Association, an association of which her late husband was a member at the time of his death, the sums aggregating one thousand and seventeeai dollars. This judgment allowed her credit for taxes paid by her, insurance, repairs, interest on opponent’s mortgage note, funeral, and other expenses, aggregating the sum of seven hundred and seventy-four 19-100 dollars, leaving a balance of two hundred and forty-two 81-100 dollars to be deducted from the one thousand dollars to which the widow is entitled under the judgment from which the appellant appeals.

The pleadings are not as full as they usually are when the widow, sets up a claim for the widow’s homestead of one thousand dollars. No demand is directly made in behalf of the minors. The widow asked for the amount exclusively in her own name. The pleadings set out that the minors and the widow had no property at the ddath of the father and husband save tiheir interest in the property which is burdened with the mortgage of the opponent. The contention cm appeal at bar was that the claim is not sufficiently laid before the court, as relates to plcladings, to enable the court to pass upon the issues and affirm the judgment. A similar question was decided in Corner vs. Bourg, 26th Ann., 615, in which the court held that it was not necessary for the claim to he presented directly in the name of the minor; that it sufficed if the claim were made by the surviving widow in necessitous circumstances; that “the destination of the money, after the expiration of the usufruct, is fixed by law, regardless of the question whether the tutor of the minor has made a formal application for the homestead or not.”

The decision is to the point and is sufficient answer' to opponent’s position, particularly in view of the fact that no objection was urged in the District Court to the admissibility of evidence; and the administratrix, in order to meet the grounds of opposition, introduced testimony completely supplying the insufficiency of her allegations for a homestead, in so far as relates to a special demand in the interest o'f her minor children, as well as herself, left in necessitous- circumstances. ■

Opponent complains of the acts of this administratrix in having' collected rearts and in having delayed the settlement of the succession.

Opponent’s next contention is that the widow has accepted the community and that she has lost her right to her -Komestéad by her failure to cause an inventory to be made.. Both’as'related to the asserted acceptance and the failure to have an inventory made, the. opponent was not inactive, and, as we take it, not indifferent. The widow having remained in possession of the property after the death-of her husband called upon the opponent a short time after said death and advised with him as to what should be done in the interest'of all concerned. Opponent properly desired to safe-guard his interests as a mortgage creditor and collect the amount of his claim. ' ILe was, at tire same time, it appears, not unwilling to see the widow recover from the proceeds of the sale of the property the amount allowed the widow and minors in necessitous circumstances. There arose no difference between the widow and the creditor before the sale of the property and it became known that the proceeds were not sufficient to pay both, and then the affairs of the succession remained in statu, quo without objection.

The widow testified that she was advised by this creditor not to incur costs and fees as they -would lessen the chances of realizing enough to pay her claims and his own. This is, to some extent, denied by the creditor. ITis testimony, however, and that of the attorney for the administratrix, shows that ho was only too willing to let the succession remain unopened. He accepted part of the amount collected by the widow in part payment of interest on his claim and urged no objection, but, on the contrary, lie appears in the light of one approving of what was being done, or rather not being done, in matter of the settlement of the succession. Opponent’s contention is that the Widow accepted the community, and that, in consequence, she is without right to -a homestead. This asserted acceptance of the community on the part of the widow is claimed on the ground that in the first place she did not render a faithful account of the amounts collected by her. We do not think that this charge is sustained by the facts. Her acts were those of administration. She collected rents. In her account she did not charge herself with all the rent the district judge found she owed, nor did she credit herself with small amounts which she had paid. After the balance between these debits and credits is established, it is made evident, we think, that it was not the intention to conceal with the view of gaining an advantage.

Opponent now complains, in addition to the foregoing, that no inventory was taken until more than two and one-half years after the death of the husband. He is scarcely in a position to complain of a delay to which he himself contributed, as before stated. One who only performs acts of administration in carrying out the wishes of creditors can hardly be held thereby to have accepted the succession, as between himself and these creditors. But, granted that she can be held to have thereby accepted, this would not be ground to deny to the minors the right to the homestead. They have a right entirely independent of the right of the widow and that can not be prejudiced by the fact that she has accepted the succession, or that she has become indebted to it. This point was directly decided in Succession Schexnaydre, 16th Ann., 196. These minor children were unquestionably in necessitous circumstances at the death of the father. Their right to the homestead is manifest and made sure by clear provisions of the statute. With the evidence before us, we do not feel that we should adjudge them not entitled to the amount claimed. Only tire property mortgaged was left. The mother earned her support and that of her children by repairing umbrellas, an occupation honorable enough, it is true, but which suggests necessitous circumstances. In the presence of the legal right of the minors in necessitous: circumstances, the charges that there was delay in making the inventory, an attempt to conceal, and acts of illegal interference, with the affairs of the succession must fall. They are .not sustained by the evidence, to the extent charged, at any rate.

The opposition was also directed against the fees of attorney and notary. They were reduced in the District Court. We do not think chat they should again be reduced and we, therefore, leave them without further change.

Lastly, the widow having accounted for the rent, she was properly credited with insurance, repairs, and other similar expenses.

For the reasons cited above, we have reached the conclusion that the judgment should be affirmed.

It is, therefore, ordered, adjudged a.nd decreed, for reasons assigned, that the judgment appealed from is affirmed.


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    No. 13,084.
    Edward Hansen vs. Victor Mauberret, Civil Sheriff, et al.
    Syllabus.
    1. The testimony of a disinterested official, corroborating a public record which he participated in making, overcomes the denial of a party in interest, as to the notice required by Article 210 of the Constitution of 1870.
    2. It is a sufficient compliance with a statute, requiring advertisements to be made once a week for thirty days, that such advertisements appear once in each week, during that time, though more than seven days may intervene between two publications.
    3. Unless saved by the language of a particular statute, a sale of property for more taxes than are legally assessed is invalid, but where the legal taxes can be separated from the illegal, the payment of the former will be required as a condition to relief asked. One who seeks equity must do equity.
    4. Where property is adjudicated to the City of New Orleans for unpaid taxes, the prescription of three years, under Act 105 of 1874, does not begin to run so long as the tax debtor is allowed to remain undisturbed in actual possession.
    5. A sale of property for taxes not legally assessed is something more than an informality, and is not prescribed, under C. C. 3543, in five years.
    APPEAL from the Civil District Court, Parish of Orleans — Theard,

      Benjamin Bice Forman for Plaintiff, Appellee.

      James J. McLoughlin, Assistant City Attorney, and Samuel L. Gilmorei, City Attorney, for Defendant, Appellant.
   The opinion of the court was delivered by

Monroe, J.

Plaintiff, claiming to be the owner, and in; possession, of certain real estate in New Orleans, filed a petition in the District Court, in August, 1895, in which he alleges that the civil sheriff, without any judgment, writ, demand, or notice, but pretending to proceed under the authority of Act No. 155 of 1894, has advertised said property to be sold at public auction; but that said act is unconstitutional, .and that the sheriff is incompetent to proceed thereunder, for reasons which are set forth. He also alleges that the city of New Orleans pretends to have acquired the property in question at a tax sale, January 18, 1890, consummated by an act before Taylor, notary, of date March 23, 1890, and that the said sale is void for want of notice and for want of advertisement, as required by law. And he further alleges that he obtained judgments, reducing the assessments for the years 1886 and 1887 on said property, but that “notwithstanding said judgments, said property is advertised by the civil sheriff, as aforesaid, for sale for the taxes for the years 1886 and 1887, based on the original assessments, and taking no account of the reductions.” He prays for an injunction, and for judgment quieting him in possession.

The city of New Orleans, as defendant in injunction, admits the adjudication to it of the property, at tax sale; denies that said sale is obnoxious to the objections urged against it, and further denies that the plaintiff is the owner of the property.

The property in controversy consists of certain lots in Squares Nos. 393, 274 and 308. In so far as concerns the lots in square No. 308, the matters at issúe were considered in a case recently decided by this court, in which the transcript in the instant case was, by agreement of both parties, made part of the record, and there was judgment in favor of the city of New Orleans, and against the present plaintiff, to the effect that the adjudication complained of was valid, and that the city thereby became the owner of the property in dispute', and was entitled to be put in possession thereof. In re City of New Orleans, Praying, Etc., 52 Ann., 1073.

For the purposes of the present suit, we have, therefore, to consider the claim of the plaintiff to the lots in squares 393 and 274, which claim is to be determined with reference to its relation to the adjudication to the city in January, 1890, since the Act of 1894 is an act providing for the sale of adjudicated property and, if the property in question has been legally, adjudicated to the city, and the title of the plaintiff has been thereby divested, it is a matter of no concern to him, how the city sells the property. Reinach vs. Duplantier, 46th Ann., 151.

Plaintiff’s attack upon the adjudication in question is based upon the grounds:

1. That he received no notice, such as is required by law, of the proposed sale.

2. That the property was not advertised, as required by law.

3. That the adjudication was based on assessments, for the years 1886 and 1887, which had previously been reduced by judgments of court, and that no notice was taken of such reductions.

The questions of notice and advertisement have already been fully considered in the case entitled In re City of New Orleans, Praying, Etc., and the reasons given for the judgment in that case leave little to be said now.

Counsel for the plaintiff insists, with much earnestness, that, in determining the question of notice, the court should refuse to consider certain documents, purporting to be the original notices served on him, which have been brought up, since the filing of the transcript and presented in connection with a motion filed by the counsel for the appellant, in which it is stated that said originals are incorrectly copied in said transcript. Conceding to be good the objection that this court is precluded from considering the documents, brought up in the manner described, and not included in the transcript, there would seem to be no alternative but to fall back upon the copies filed in the transcript, which the clerk certifies to be correct, since the error in the transcription, to which the appellant’s motion refers, is not claimed to operate to the prejudice of the plaintiff and appellee, who makes no complaint upon that ground. Even upon this basis, we are of opinion that the evidence brings home to the plaintiff the notice required by law, since the copies, imperfect though they be, but not to the prejudice of the plaintiff, are supported'by testimony to the effect that the originals form part of the records of the Back Tax Bureau Department of the Treasury of the city, and were brought to one of the witnesses (Michel) by the plaintiff, himself, with a view to having the threatened sale postponed, and that it was postponed, at his request.

Upon the subject of the advertisement, we held in the case already decided that the law requiring an advertisement once a week for thirty days was sufficiently complied with, the advertisement having appeared once in each calendar week, though the last two publications were more than seven days apart; and the case of Ronkendorf vs. Taylor’s Lessee, 4th. Peters, 360, in which the Supreme Court of the United States so held, was cited as a precedent. We adhere to that ruling.

The remaining ground, upon which the plaintiff attacks the adjudication to the city, rests upon the fact that the lots in question were sold upon the basis of assessments, some of which had been reduced, without taking notice of the reductions.

It appears from the evidence, that the lots described as lots 1 to 8, in square 393, and 20, 21 and 22 in square 274, were assessed for the taxes of 1882, 1886, and 1887; that no application was made for the reduction of the assessment for 1882 on any of the property; that judgment was obtained, reducing the assessments for 1886, on lots 1 to 8, in square 393, and lot 22 in square 274, from $3,000 to $2,400, and from $3,000 to $2,300, respectively, but that there was no reduction for that year on lots 20 and 21, in square 274; and that judgment was obtained, reducing the assessment for 1887 on lots 1 to 8, in.square 393, and on lots 21 and 22 in square 274, from $2,400 to $1,600, from $3,000 to $2,500, and from $3,000 to $2,000, respectively, but that there was no reduction for 1887, on lot 20 in square 274. So that there was no reduction for 1882 on any of the property, no reduction on lot 20, for either 1882, 1886, or 1887, and no reduction for 1886 on lot 21.

The fact remains, therefore, that while the sale was properly made as to lot 20, for all three years, the other lots, sold for taxes of 1882, 1886 and 1887, were sold under assessments, some of which had been reduced, and hence, were sold for taxes, part of which were, and part of which were not, legally due.

The weight of authority sustains the proposition that such sales are invalid. Cooley on Taxation, 345; Desty on Taxation, Vol. 11, 792; Blackwell on Tax Titles, § 280; Borroughs on Taxation, 301. Nor is this authority affected by the decisions in Clifford vs. Michiner, 49th Ann., 1511, and Russell vs. Lang, 50th Ann., 43, since those cases arose under Act 82 of 1884, the language of which is peculiar and justifies a construction leading to the conclusions announced. See Dibble vs. Lippert, 47th Ann., 792.

The plea of prescription of three years set up by the city cannot prevail under the jurisprudence as established, inasmuch as plaintiff has always retained actual possession of the property, the possession of the city being only the constructive possession resulting from the registry of her title. Breaux vs. Negrotto, 43 A. 426.

The prescription of five years is inapplicable, as the vice complained of is something' more than a mere informality.

It is not pretended, however, that the plaintiff has paid any of the taxes, whatever, or has offered to pay any, even upon the reduced assessments, or for the years as to which there was no reduction, unless such offer has been made since the appeal was filed in this case; and it is neither just, nor equitable, that he should escape the payment of that which he owes.

In referring' to cases of this kind, Mr. 'Burroughs says, that whilst sales for taxes, partly legal and partly illegal, are invalid, “yet, when a party comes into a court of equity for relief against the sale of land for taxes, and the illegal part can be separated from the legal, the court will require, as a condition of relief against the illegal tax, that the legal tax shall be paid.” Myrick vs. Lacrosse, 17 Wis., 442; Bond vs. Kenosha, Id., 228; Palmer vs. Napoelon, 16 Mich., 176; Conway vs. Waverly, 15 Mich., 257; Frazer et al. vs. Seibeon et al., 16 Ohio, 614. “The last case cited (says the author) was one in which it was claimed that all national banks were taxed at a higher rato than State banks, or rather that the stockholders were so taxed, contrary to the act of Congress on that subject. The court refused to give the relief except upon the payment of a tax equivalent to that paid by the stockholders of the State banks, on the principle that he who seeks equity must do equity.”

Burroughs on Taxation, 301.

In the ease before the court, the plaintiff knew perfectly well what taxes were due, and applied for, and obtained a postponement of the sale of his property ten years ago, since which time he appears to have made no payment, and no atterirpt at payment, even with respect to the taxes as to which there was no question. Under these circumstances, we are of opinion that he is entitled to relief, only on condition of his paying the taxes upon the basis of the legal assessments, reduced or not, as the case may be, together with interest, costs, and charges, as provided by law.

It is therefore ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and reversed. And, proceeding to render srch judgment as should be rendered in the case, it is now ordered, adjudged and decreed that, as to the property designated in the petition as lot No. 20 in square No. 274, the injunction restraining the sale of the same be dissolved, and the plaintiff’s claim to be recognized as the owner of said lot be rejected, and his suit dismissed. It is further ordered, adjudged and decreed that, as to the property designated in said petition as lots 1 to 8, in square 393, and lots 21 and 22 in square 274, the injunction restraining the sale thereof be maintained, subject to the condition that, within sixty days from the date upon which this judgment becomes final, the plaintiff shall pay into the Treasury of the city of New Orleans,

1. The taxes upon lots 1 to 8, in square 393, for the year 1886, upon the basis of an assessment of $2400, and for the year 1887, upon the basis of an assessment of $1600, together with interest, costs and penalties, upon the same bases.

2. The taxes for the year 1882 upon all of said lots, with interest, costs, and penalties, as claimed.

3. The taxes upon lot 22, in square 274, for the year 1886, upon the basis of an assessment of $2300, and for the year 1887, upon the basis of an assessment of $2000, with interest, costs, and penalties, upon the same bases.

4. The taxes on lot No. 21, in square 274, for the year 1887, upon the basis of an assessment of $2500, with interest, costs, and penalties, upon the same basis.

It is further ordered, adjudged and decreed that, in the event of the payment of said taxes, interest, costs, and penalties, as herein provided, the pending injunction be, and it is hereby, made perpetual, and the costs shall be paid by the city of New Orleans. And in the event of the non-payment of said taxes, interest, feosts, and penalties, as herein provided, said injunction be, and the same is hereby dissolved, and the demand of the' plaintiff rejected, and his suit dismissed, at his cost in the lower court.

It is further ordered, adjudged and decreed that the -costs of this appeal be paid by the city of New Orleans.

Rehearing refused.