author: Poci-ní, J. Fenner, J.

text:
    No. 10,147.
    Gomila & Co. vs. Hibernia Insurance Company.
    .In a suit- on a marine insurance contract, predicated on an open marine policy, proved and admitted to have existed between the insured and the company, the burden is on the company to prove its contention that the open marine policy had been cancelled and rescinded before the elite of the contract of insurance sufed on.
    Parol testimony is incompetent and inadmissible to vary, alter or modify the stipulations of a wiitten contract of insurance, aud, hence, it will not be admitted to support the contention of the insurer, that the insurance was for total loss only, if the instrument ev'dences a different agreement.
    A sale at public auetio 1, in accordance with the law of a seaport, at which a disabled vessel puts in after a storm or other distress, is the best mode of disposing of a cargo shown lo be too seriously d imaged for reshipment.
    An insured cannot v> cover for a total loss in the absence of proof of abandonment and of notice of the same on the insurer.
    APPEAL from the Civil District Court for the Parish of Orleans. VoorMes, J.

      •T. Ward Gurley imi Braur/lm, Buck, Binkelspiel & Hart for Plaintiffs and Appellees:
    Quoted the following authorities, viz: Jamos K. Bell vs. Western Ins. Co., 5 R. 423; Com may vs. Company, 12 La. 240; Lemmes vs. Company, 13 Ann. 504; Woodruff vs. Company, 5 Aon. 697, p 699; Philips vs. St. Louis Ins. Co., 11 Ann. 459; 3 Kent’s Com p. 331; 11 Rob. 255; John Riley vs. Ocean Ins. Co., 1 Taunt., 325; Sterling vs. Vaughn, IlEast, 619; Ronth vs. Thompson, 13 Id., 274; Wolf vs. Ilorncasfcle, 1 B. and P,, 316; Hagedom vs. diverso», 2 H. and S., 485; Jefferson Ins. Co. vs. Cotheal, 7 • Wend., 72 ; Fleming vs. Marine Ins. Co., 4 Wharton, 59, and DoBolle vs. Pennsylvania Ins. Co., 4 Wharton, 68.

      T. Gilmore <& Sons and O. B. Scmsnm for Defendant and Appellant:
    •Quoted the following authorities, viz. In Arnold on Insurance, Vol. 1, p.237, (231), it is 8aidthat: “The expectation of profit of benefit to arise fiom some subject in which the party insuring is not actually interested at the time of loss, hut only expects to be interested is the mere expectation of an expectation, and is not an insurable interest.’ ’
    "The minds of the contracting pieties must be ad idem. Bates vs. Hewitt, L. R. §22 B., 595; Ionides vs. Pender, L. R. 92, 15., 531: Stribley vs. Imp. M. Ins. Co., 12 B. D., 507; Rivaz vs- G-erussi, 62; B. D. 222; Arnold, Vol. l,pp. 240, 241, 252.
    As to duties of master to repair and reship or forward cargo by another vessel and constructive total loss of cargo ami necessity of notice of abandonment to constitute same and right of master to sell. See Arnold on Marino Iusurance, pp. 102.9, 1030; Vol. 2, pp. 1052. 1055, 1031, 1129, 1144, where the authorities are fully reviewed and conclusions stated.
    Phillips on Insurance, Vol. 2, Sec. vi, pp. 317, 337, (§1598-1630): 3 Abbott’s Digest Abandonment, p. 73? Sansom’s Digest of Insurance, p.-; Mitchell vs. Edie, 1 T. R. 608; Cambridge .vs. Anderton, 2 B. O. 691; Merchants’Ins. Co. vs. N. O. Mut. Ins. Co., 24 Ann. 305; 5 Ann. 200.
    A master cannot justify asaleof the cargo on the ground that it was the best thing for all concerned; that a prudent owner, if present, would have sold it under the same circumstances. Nolhiug but a legal necessity will justify the sale. Peck vs. Nashville Ins. Co., 6 La. Ann. 148; Bryant vs. Commonwealth. Ins. Co., 13 Pick., 543; Hanau vs. La. Mut; Ins. Co., 15 Ann. 201.
   The opinion of the Court was delivered by

Poci-ní, J.

This litigation grows out of a contract of insurance of a cargo of coffee and cigars, shipped from Vera Cruz to Matamoras, Mexico, the amount covered by insurance being $9300, and the same is herein claimed by plaintiffs on an alleged total loss of the cargo.

As no regular policy of insurance was issued, plaintiffs declare on two separate applications made by them and accepted by the defendant, one for $4500 and the other for $4800, on an open marine policy which they then carried on with the defendant, both applications having been made and accepted on October 30, 1880.

They aver that the schooner “ Veloz Maria,” on which the goods were shipped, sailed from Vera Cruz in a staunch and seaworthy condition, on the 6th of November, 1880, but the vessel, having met up with a storm, was so damaged that she was compelled to put in on the 22d of the month, at Alvarado, a small seaport on the Mexican coast, where she was forced, by her disabled condition, to land her cargo, itself in a very damaged condition, and there the voyage was abandoned.

They further aver that after due proceedings by the proper authorities, showing that the goods were too seriously damaged for reshipment, the same were sold at public auction, realizing the sum of $2510, with net proceeds, after deduction of necessary costs, in the sum of $2322.26, which sum was deposited in Vera Cruz to the credit of whom it may concern. Hence, they claim as in case of total loss and abandonment.

It appears that after the institution of the suit, the names of Francisco Armendaiz and Marcelino Rougier, of Mexico, the alleged co-owners and consignees of the cargo, were substituted as plaintiffs-in the cause.

The defense is, substantially :

1. That the open marine insurance policy at one time existing between Gomila & Co. and the defendant had been cancelled and rescinded previous to the date of the contract of insurance sued on.

2. The said contract was against total loss only, and the denial that a total loss was sustained in the venture.

3. That Gordon & Co., or Gordon & Gomila, had no insurable interest in the goods in question.

4. A denial that the damage occasioned to the goods was caused by the perils of the sea, and a denial of the existence of any condition of things to justify the abandonment of the voyage or the sale of the goods.

The judgment below’was in favor of plaintiffs for a partial loss, in the sum of $6600, whereof $3400 in favor of Francisco Armendaiz and $3200 in favor of Marcelino Rougier.

Defendant appeals and plaintiffs seek, by answer to the appeal, to recover the full amount of their claim, $9300.

On appeal defendant makes the point that F. Armendaiz and M. Rougier are not the insured in the contract sued on, and have, therefore, no standing in court as plaintiffs. But the record contains a summary answer to that contention in the shape of a “ Petition for Removal ” of the cause from the State to the Federal Courts, filed by the defendant company some time previous to the motion suggesting Rougier and Armendaiz as the proper plaintiffs in the cause, in which petition it was alleged that said “ F. Armendaiz and M. Rougier were the real plaintiffs m said suit.” That judicial declaration is manifestly a complete estoppel to a contrary assertion on the part of the defendant.

1. Our examination of the record and of the conflicting testimony which it contains, has satisfied us that' all the material facts alleged and relied on by plaintiffs aie sustained by the preponderance of the evidence.

Hence, we find and we hold that the open marine policy between Gomila & Co. and the defendant had not yet been cancelled or rescinded at the date on which the insurance contract sued on was entered into.

It is true, that the book which contained the agreement was not produced on the trial, but its existence and its loss were satisfactoiily accounted for. The burden was on the defendant, which acknowledged the previous existence of the contract, to prove its alleged cancellation. But in this the company entirely failed, its witnesses being unable to give the precise date of such cancellation, which is stated to have been between the first and the thirty-first of October, 1880, or to give the date of the notice to Gomila & Co. of the alleged cancellation, if, in fact, such notice had ever been given. The effect of that testimony, in itself weak and unsatisfactory, is effectively counteracted by the fact that the two applications af October 30, 1880, made by Gordon & Gomila and adopted by the insurance company, both refer to the open marine policy existing at the time, and by the additional fact that both were entered in the “ Open Marine Risks Book ” of the company.

2. The conclusion thus reached by us disposes of the contention touching the absence of interest in Gomila & Co. to bring the suit, the open marine policy contained the stipulation that the insurance was made “for account of whom it may concern,” and it throws the burden on the company to prove that the contract was for total loss only.

3. In support of that contention the company relied on parol testimony, but that kind of evidence was clearly inadmissible under the contract, as proved by plainfiffs, and, like the district judge, we must decline to give it any consideration or effect. C. C. Arts. 2276, 2235, 2238; Bell vs. Western Marine Ins. Company, 5 Rob. 428; Courtnay vs. Mississippi Marine Co. 12 La. 233; Packet Company vs. Brown, 36 Ann. 138.

4. Defendant’s denial that the damage resulted from the perils of the sea is not supported by the record.

The preponderance of the evidence is overwhelming in the proof of the contrary.

It shows that, owing to the violence of the storm, the vessel was blown entirely out of her course, and that she put into a port, situated southeast of the point of departure, her course being northwest of that point; that she arrived at Alvarado quite disabled aud taking water very rapidly and dangerously, and that, in consequence of her condition, the voyage was abandoned, the vessel remaining four months at that place, whence she was towed to Vera Cruz, where sho was subsequently converted into and is now used as a port lighter. We also find that her cargo was too badly damaged for rediipment, and that the best disposition was made of it which the nature of the ■surrounding circumstances would admit of. On that poiut the testimony is simply destructive of all of the defendant’s contentions aud theories on the subject.

Hence, we must hold the company liable under the contract, but not for a total loss. The record contains no evidence of an abandonment of the venture by the insured, and a fortiori no proof of a nofciee of •the same on the insurer. In the absence of such proof it is elementary that the insured cannot successfully claim, as in case of a total loss. The amount deposited in Vera Cruz, to the credit of whom it may concern, added to the amount allowed in the judgment, will very nearly cover the full amount of the insurance on the cargo.

Our review of the case has convinced us that the district judge ha3 done full justice to all parties in. the cause.

Judgment affirmed.

Ox Application for Rehearing.

Fenner, J.

Appellees call our attention to the omission in the judgment of any allowance of interest, and to their prayer for an amendment in this respect. As they failed to refer to this'matter in their briefs, it escaped our notice. They are, however, só clearly entitled to interest, at least from judicial demand in this suit, that the matter cannot admit of controversy, and we may amend our judgment-to that extent without a rehearing. 33 Ann. 190.

It is, therefore, ordered that our former decree herein be amended by amending the judgment appealed from in so far as to grant legal interest on the amounts allowed therein from judicial demand, viz.,. July 16th, 1883; and that otherwise it remains undisturbed, and that-the rehearing applied for by appellant be refused.


source: Caselaw Access Project

author: Todd, J.

license: Public Domain

text:
    No. 10,071.
    Henry Cambon vs. Jules Lapene. Mme. V. Callier, Third Opponent.
    Where property lias been s: Id for taxes, and the taxpayer redeems it -within the term allowed therefor, the one who lends him the money to enable him b > redeem it does not • thereby become invested with title to the property, although the act acknowledging the loan coutainsan express subrogation of the lender to his (the taxpayer’s) rights, The title is in the purchaser at the tax sale, and he alone could pass it to another j and when it was redeemed the title reverted to the original owner, and could be made liable for his debts.
    APPEAL from the Civil District Court, Parish of Orleans. llightor, J.

      Charles Lovque and Henry Z. Zamrus for Plaintiff and Appellant.

      Gibson <& Hall for Defendant and Appellee.
   The opinion of the Court was delivered by

Todd, J.

The plaintiff under a judgment in his favor ágainst the defendant seized a plantation situated iu the parish of Terrebonne- and described iu Ibe pleadings as bis property to satisfy the debt.

Mrs. Virginia Callier (widow) claimed, by third opposition, to be owner of the property, seized and enjoined its sale under the writ of execution.

The plaintiff in answer to the petition "of third opponent pleaded' the general issue.

The case was tried, the opposition dismissed and the injunction dis-solved, with seventy-five dollars damages for attorney’s fees, and Mrs. Callier has appealed.

On the 14th of April, 1885, this plantation was sold at tax sale as the property of the defendant Lapene. and was bought by one John Buger.

On the 13th of April, 1886, the property was redeemed by Lapene, as evidenced by a notarial act of that date passed before a notary public in the parish of Terrebonne.

On the same day, Mrs. Callier and Jules Lapene appeared before the same notary and entered into an act substantially as follows :

After reciting the sale of the property for taxes, and its purchase at such sale by Buger, and that Lapene, the taxpayer and owner, had the right to redeem the property within a year after the tax sale, it was declared that Lapene was unable to make said redemption, or was without the means to do so, and that in order to raise the money to redeem the land he had borrowed of Mrs. Callier $513.80, and the receipt of Lapene for this sum was made part of the act; and it was further declared that Lapene intended, quoting, “to subrogate the lender in the rights of the creditors,” and further, again quoting : “ It is understood and agreed that said Jules Lapene or any of his creditors * * * * shall have the right within one year from this date (13th April, 1886) to redeem said property on paying one thousand dollars.’

John Buger, the purchaser at the tax sale, was no party to this instrument.

It is exclusively on this act that the asserted title of Mrs. Callier to the property rests.

Beyond the fact that it evidenced the loan of the money by Mrs. Callier to Lapene, and fixed the liability of the latter for the sum loaned, it seems to us that the act was without any legal effect or significance whatever.

It certainly did not convey to Mrs. Callier any title to the land either from Buger or from Lapene, and we cannot discover that it subrogated her to any right to or against the property in question.

Thus concluding, the judgment of the lower court is affirmed with costs.


author: Fenner, J.

text:
    No. 10,160.
    Thomas Sully vs. Jos. H. Spearing.
    In tills action for slander of title, defendant, by setting np title in himself, converts it into a petitory in which he must be treated as plaintiff carrying the burden of clearly establishing bis claim.
    Plaintiff showing a title derived from the undisputed owner in 1851, cannot be ousted by defendant, who claims under a judicial sale made in a proceeding in rem in 1852, without clearly proving that the sale and proceeding were of a character to operate a valid divestiture of the property, particularly when the judicial sale was not followed by possession, and when the property had never been assessed or taxed in his name or those of his authors, but had, for a long period, been assessed in the name of plaintiff’s authors, and had been possessed and valuably improved by plaintiff without notice of defendant’s claim.
    APPEAL from the Civil District Court for the Parish of Orleans. VoorMes. J.

      Henry P. Hart for Plaintiff and Appellee.
    J. Zaeli. Spearing for Defendant and Appellant.
   The opinion of the Court was delivered by

Fenner, J.

This is a jactitation suit brought by plaintiff in possession of the immovable in controversy against the defendant who slanders his title.

Defendant answers setting up title in himself and thereby converts the action into a petitory one in which he must be treated as plaintiff. Dalton vs. Wickliffe, 35 Ann. 356.

Both parties present recorded chains of title running back to the same author, Charles Pitts.

Sully’s title is derived from a sale by Charles Pitts to M. A. Fortier, passed June 21, 1851.

Spearing’s title flows from a sheriff’s sale of the same property made in a certain proceeding in a justice’s court of the city of Jefferson, entitled “Mayor, Aldermen and Inhabitants of the City of Jefferson vs. Two Lots, Nos. 10 and 11, in Square No. 61 in Faubourg, East Bouligny, assessed in the name of Charles Pitts,” which sale was made on October 4, 1852, more than a year after Pitts had sold to Fortier.

In order to avail against the prior conveyance to Fortier, it was of course absolutely essential for defendant to show that the sheriff’s sale and the procéeding in which it was made were of a character to operate a valid translation of the property irrespective óf the prior transfer.

This he has failed to do. The record of the suit in which the sale was made is lost, and we have no knowledge of its nature or validity, except such as is derived from its mere title as given in the sheriff’s deed.

This is clearly insufficient, under the circumstances of this case, where defendant does not show that he or his authors have ever exercised ownership over the property, have ever accepted it, or reduced it to possession, or had it assessed in their names or paid any taxes on it, and where it further appears that both he and his immediate author acquired under an express exclusion of warranty.

On the other hand plaintiff was in actual possession and had made valuable improvements on the lots, before defendant or his immediate-author acquired their unwarranted titles. When ph.intiff bought lie had no notice of defendant’s pretension, and an examination of the-records carried his chain of title hack to 1851, beyond the longest-term of prescription. He further showed that the property had been assessed in the names of his authors at least since 1870 and the taxes paid presumably by them.

We consider that defendant has failed to establish a title causa idónea ad transfer endumi dominium, which he was bound to do clearly and beyond question in order to recover against plaintiff, who is not a mere-trespasser, but a possessor in good faith under deeds on their face translative of property. Peck vs. Bemiss, 10 Ann. 160; Concy vs. Cummings, 12 Ann. 748; Bedford vs. Urquhart, 8 La. 239.

We consider, however, that the case presents no ground for the damages claimed by plaintiff.

Judgment affirmed.


author: Watkins, J.

text:
    No. 10,161.
    C. C. Antoine vs. D. D. Smith, et als.
    Where tlie cause of the contract sought to he enforced is unlawful «and opposed to good' morals and public policy there is no right of action in the courts, for either party suing-through it, to inforce it.
    But, after the reprobated transaction has become an accomplished fact, neither party can-legally interpose such illegality or turfeitude as a defense.
    An instrument cannot be rejected and disregarded as not evidencing «a compromise because it does not contain the foimal -words “ for preventing or putting an end to a law suit.” Under our pystem of practice nothing is sacramental, as a matter of form, unless made-so by statute.
    The disproportion of the amount received as compared with that of the amonnt demanded, is no cause for the rescission of the transaction otherwise valid, and same cannot be explained or disclosed by parol evidence.
    Error, fraud or the like must be formally averred against it and proved, to avoid it.
    APPEAL from the Civil District Court for the Parish of Oileans. Voorhies, J.

      House & (jfrctnt and T. J. Semines for Plaintiff and Appellant:
    A compromise may be set aside under the civil law, unless founded on a doubtful light. 28 Laurent, Nos. 324-5 ; í) NTarcadé, Nos. 471, 568-9; 18 Duranton, Nos. 395-8 ; 3 Aubry & Baa, p. 476 (E.); 3 Mourlon, N. 1170; Bomat, vol. 3, p. 10. No. 1.

      The rule is the same as common law. Stapleton vs. Stapleton, 1 Atkyns 10; Broderick vs. Broderick, 1P. ¥m. 241; Lucy’s Case, Be Gr. McH, & Gr. 364; Ex-parte Banner, 17Ch. Biv. 488; Wheeler vs, Smith, 9 H. 82.
    An agent is not permitted to deal with the principal unless there be the utmost good faith on his part, a full disclosure of all the facts, and the absence of all undue influence and advantage. 1 Story’sEq. Jur., Sects. 217, 246, 315,316, 323; Brook vs. Martin, 2 Wallace, 70.
    An agent is a fiduciary and subjectto the same rules as a .trustee in dealing with his prin- * cipal. 1 Perry on Trusts, Sec. 206.

      Uberrima fidcs. The utmost good faith is exacted from him in all his transactions touching the interests of his principal. Meeker vs. York, 13 Ann., 18; "Nolan vs. Shaw, 6 Ann. 40.
    A contract by which a person exacts an advantage from another for doing what he is already bound to do, by the law or by a subsisting agreement, is immoral, against justice and void. 1 Pothier, 3 Am. Ed,, p. 123.
    At the common law, such a contract is void for want of consideration. Pollock on Contracts, p. 162.
    A sale for a price out of all proportion to the value of the thing sold is void. C. C. 2464.
    Where the inadequacy of price is so marked as to shook the conscience of a man of common sense, it amounts to fraud, in which case the inadequacy itself, exevidentia rerum, proves fraud. Osgood vs. Franklin, 2 Johns., Ch. 1; Eyros vs. Potter, 15 H. 42.
    A lelease of the owner’s tille to property for consideration, is’subject to the same rule as the contract of sale, it being in effect a sale.
    Third persons can claim the benefit of stipulations in contracts only where such stipulations are clear, plain and unequivocal. Mitchell vs. Cooley, 5 R. 240.

      Leonard, Maries db JBruen for Defendant and Appellee:
    1. An act under private signature, when signature is admitted, has against the parties the force and effect of an authentic act. C. C. 2242. It is full proof of the agreement contained in it. C. C. 2236.
    2. The instrument of date of Sept. 4th, 1884, annexed to answer, is an agreement — a commutative contract. C. C. 1761-5-8.
    3. It is conclusive against plaintiff’s demand, unless [fraud, error or violence he shown,, and the burden of proof is on plaintiff. C. C. 1819, 2232.
    4. A transaction or compromise is an agreement between two or more persons who, for preventing or putting an end to a law suit, adjust their differences by mutual consent in the manner in which they agree on and which every one of them prefers to the hope of gaining balanced by the danger of losing. C. C. 3071. It must be reduced to writing, hut is not otherwise subject to anyform. C. C. 3071. Whenever it appears from the agreement itself, or from evidence dehors the written instrument, that it was an adjustment of differences by mutual consent for the purpose of preventing or putting an end to a lawsuit which each party prefers to the hope of gaining balanced by the danger of losing, such agreement is a compromise. Sirey, Art. 2044, No. 5; Stewart & Co. vs. Haas et al., 23 Ann. 783.
    5. Transactions have between the parties a force equal to the authority of the thing adjudg^ They cannot be attacked on account of any error in law or any lesion. C. C. 3078.
    Obligations are extinguished by remission. C. C. 2130. The release of a debt liberates the debtor pleno jure. Pothier, 570. The pactum remissorium — pactum de nonpetendo is binding; all that is required to gire it validity is a simple convention or agreement-It always avails the debtor as an exception to the action instituted by the creditor. Mouton vs. Noble, 1 Ann. 194. It cannot be revoked by the creditor. C. O. 2201.
    7« It appears from plaintiff’s testimony that the cause, the motive which induced him to transfor certain lottery stock, was false, unlawful, contrary to moral conduct and to public order. The contract by which he transferred the stock was therefore unlawful. Ex twyi causa non oritur actio, C. C. 1779,1893,1395-11. The Court will not lend its aid to settle disputes relative to such contracts, will notice their illegality ex-officio, and allow it to bo suggested without any plea and at any stage of the proceedings. 12 Ann. 319; 13 Ann. 209; 3 N. S 46; 17 La. 132; 2 B. 271; lAnn. 176 ; 12 Ann. 166; 5B. 106; 19 La. 409; 9 B. 486, 491; 2 Ann. 60, 66; 6 Ann. 317, 320.

      8. The evidence and pleadings considered as a whole disclose no cause of action.
    Stale demands are entitled to no favor, must be supported by peculiarly strong and convincing evidence and established with more than reasonable certainty. 7 Ann. 555, 562; 14 Ann. 317; 10 Ann. 279; 35Ann.l006 ; 9 Ann. 234;2La.481; 6La.31,674; Etting vs. Marx, Ex’r., 4 Federal Beporter, 681.
    10. Admissions by one deceased proved by witnesses who cannot be contradicted, much ' less convicted of peijury, is the weakest kind of evidence, scarcely entitled to any belief. 7 B. 112; 9 La. 562; 11 La. 139; 8 Ann. 307, 278; 14 Ann. 274; 37 Ann. 873.
    11. The testimony of witnesses will have no weight if intrinsically improbable. 29 Ann. 764 ; 37 Ann. 95 ; 35 Ann. 1006 ; 9 Grancb, 71; 18 Wall. 91; 12 Peters, 262.
   The opinion of the Court was delivered by

Watkins, J.

This suit is for the recovery of two hundred shares of the capital stock of the Louisiana State Lottery Company from the defendants.

The claim of the plaintiff is that, on the 26th of October, 1874, he transferred, on the books of the company, said shares of stock to D. D. Smith, without consideration; and that said transfer was made upon the friendly advice of one George L. Smith, who suggested to him that, being engaged in politics, and necessarily absent from the city a large portion of the time, he would be unable to manage the stock to an advantage, and that it would be better that it should be placed under his control. He further advised him that, for his own convenience, it should be placed in the name of D. D. Smith, a trustworthy and responsible person; and that it was so done.

He represents that George L. Smith executed and delivered to him a receipt for the stock, at the time, in which he obliged himself to return it on call; all of which was to the knowledge of D. D. Smith, who undertook to administer same accordingly.

That George'L. Smith died on the 9th of July, 1884, without having caused said stock to be returned. That he demanded the stock and its dividends of D. D. Smith, whereupon he paid $2500 on account of the dividends, but refused to surrender the stoeh.

The answer is that G. L. Smith assigned to D. D. Smith 425 shares of the stock of said company, which he then owned, and informed him of the fact; that thereupon D. D. Smith went to the office of the company and procured the certificates therefor; and that he was not informed, and did not know how, when or from whom George L. ■Smith procured the same.

He avers that he was not advised and did not know that Antoine had any interest in the stock ; and that he did not undertake to administer it for him.

That soon after the death of George L. Smith, Antoine called to see him, and claimed of him (D. D. Smith) some of the shares of stock, alleging himself the owner thereof, and threatened suit for the same; and though he did not helieve he had any interest in the stock — in ■order to avoid a lawsuit and to buy his peace — he gave him $2600, in •consideration whereof Antoine relinquished all claim to any interest in the stock- standing in his (D. D. Smith’s) name; and also relinquished all claims of any kind against the estate of George L. Smith

The defendants are D. L>. Smith and the heirs-of G. L. Smith, who have accepted his succession unconditionally, and have been placed in possession thereof.

On the trial the defendants plead the agreement referred to in their respective answers, “ as a transaction, and compromise, which had and has, as against said Antoine, and the claims and demands by him asserted herein, the force and effect of res judicata and they plead it as a peremptory exception,- and as a bar to plaintiff’s action.

This plea having been overruled they plead same agreement as a release, executed by the plaintiff, which he could not revoke at will, and urged it as a bar to the demands of Antoine.

On these issues the parties went to trial, and from, a judgment in favor of the defendants, the plaintiff appealed.

I.

It is well that the testimony of the plaintiff and that of some of his witnesses should be examined and analyzed, in order that a fair understanding may be had of the incipiency of this singular transaction, and that we may be the better enabled to judge of the rightfulness of plaintiff’s claim. This is deemed necessary for the especial reason that one of the principal actors died several years before suit was brought, and the filing of it occurred nearly fifteen years after the alleged transfer of the stock.

Indeed, defendant’s first exception was that plaintiffs’ demand was stale and prescribed by five and ten years.

The following is a synopsis of the statement of Antoine, as a witness-in his own behalf, in so far as it bears on that part of Ins case, viz:

That he and George L. Smith were close, confidential friends from the time they entered politics in 1868 to the time of the latter’s death-in 1884. i

That there were many and large money transactions between them. Por instance, Smith being tax collector, speculated in plaintiff salary warrants, and realized sometimes as much as $3000 or $4000 in profits-for his (plaintiff’s) account.

That he purchased the 200 shares of lottery stock in controversy, on. the 31st of March, 1873, from Charles T. Howard, at 60 cents on the dollar — i. e., $12,000. That about eighteen months afterwards Smith came to him and said that they — Antoine and himself — had better transfer this stock.

Using his own words, he says:

“ He said that both of us was engaged in politics — he was then running for Congressman, or member of the Legislature. We were in politics, both of us. I don’t recollect exactly, but his remarks were,. ‘We are both engaged in politics, and that it would not do to have-the stock in our name. He said that more especially myself, as I was Lieutenant Governor, and President of the Senate; that questions in regard to the charter of the Lottery Company might come up, and-that, in case of a tie vote, I would naturally have to have to vote on it; and, probably, my vote might be challenged.’ And he suggested that we should transfer our stock in the name of his cousin, Dexter. * * * “He said Dexter — meaning David Dexter Smith — is as honest as the days are long. He says, ‘Iwill manage the stock for you, and invest (the dividends) in stocks, bonds and other securities;, and -when we are out of polities, we will start a savings bank; you shall be president, and I a member of the board of directors.’ ”

He says that the transfer was made at the lottery office, when no one was present, other than George L. Smith. That the purchase of this stock was suggested to him by Mr. Kelso. Smith transferred, at the same time, his 225 shares to D. D. Smith. But the latter was not present. He says Smith gave him a receipt for his stock, but he kept no account with Smith.

To use his’own words, he says:

“ Well, there werehisually no accounts kept between us of our business. Mr. Smith he always put all our business on the high ground of mutual confidence. -Thatis the way he, more or less, dealt with me.”

He says that, from time to time, he obtained from him what money he ■wanted.

Quoting:

Q. “ Do you know how much you got 7”
A. “Well, I don’t know exactly. lean approximate. I suppose I must have got altogether from him, after the stock was transferred — I must have got about $5300, or $5400,” etc.

This gentleman, Mr. Antoine, was a delegate from Caddo parish to the Constitutional Convention of 1868, and afterwards he represented that parish in the State Senate until 1872, when he was elected Lieutenant Governor. He held that office until .1876, a period of time •embracing all of these transactions.

As further illustrated of the history of that epoch, and particularly ■of the part the plaintiff took therein — and which has a significant bearing on this controversy — it is well to invite attention to the various financial adventures on which he entered in the interim.

When he first “ went into politics ” he was the proprietor of a barber shop in the city of Shreveport.

A few years afterwards he engaged in the cotton factorage business in this city, in partnership with P. B. S. Pinchback; acquired an interest in a newspaper establishment; had a grocery store, and purchased and operated a small plantation in .Caddo parish. He also purchased some city lots in Shreveport, and a $13,000 residence in •this city. This in addition to the $12,000 he paid for the lottery stock.

We cannot refrain from expressing some surprise at the auspicious good fortune that seemed to attend his efforts, whereby his hitherto slender income and limited means had yielded such a comfortable little fortune within so few years !

Money matters appeared to have been so easy with him that he ■could loan a friend a thousand dollars, payable on call.

He says:

“ I loaned him (Dr. Pemberton) $1000, just on his word, and he returned it.”

Mr. George Z. Kelso, one of plaintiff’s witnesses, gives his version ■of the transaction in reference to this stock. He says :

“ In January, 1873,1 had 200 shares of lottery stock put aside for me, and when the time expired for me to take it up, I wasn’t able to take it up, and I advised Mr. Antoine to take it.- * * I went with Mr. Antoine to the party and told the party Mr. Antoine would take the shares in my place.
“ Question. Who was the party ?
Answer. Mr. Charley Howard.
Q. Did you see the money paid ?
A. I saw Mr. Antoine give him a roll of bills; he counted it and said it was correco, and gave him the certificate.”

On cross-examination the following was elicited, viz :

Q. You say that you had 200 shares of Louisiana Lottery stock put aside for you ¥
A. Yes, sir.
Q. Who put it aside for you ¥
A. Mr. Howard.
“ Q. The president of the Louisiana Lottery Company ¥
A. Yes, sir. I had bought some stock previous to that. A party came to me in 1869 and told me that he could get me 300 shares at 15 cents. He went out and only returned with 50 shares; but I paid him 20 cents. I lost my stock with a broker — a friend of mine — and Mr. Howard, as a friend of mine, told me he would put aside 200 shares for me, at a certain figure.
Q. That is the stock you referred to ¥
A. Yes, sir.
********
“ Q. Mr. Howard then suggested that he would put aside 200' shares for you¥
“ A. He asked me if I was tired of the stock — that it was good stock. Mr. Charley wasn’t friendly to the party who had my stock,, and I went and seen the party. I saw Mr. Upward afterwards, and I told him Jivas friendly to his institution, and 1 told him I would take-200 shares at a certain figure, provided he would wait on me. He said he would keep it for me for 60 days. At that time I failed to take it-up, and I seen Mr. Antoine and gave him the benefit of it.”

This is the history of this stock, as detailed in the evidence of the-plaintiff, Antoine, and his principal witness, Kelso — -the former Lieutenant Governor at the time, and the latter State Senator.

On the faith of these declarations as to the source and origin of the plaintiff’s title and the character and avowed object of his dealings-with George L. Smith, and through which he traces his title, defendant’s counsel insist that it is manifestly a contract that is tainted, and reprobated in law as in good morals, and for the enforcement of which he has no right or cause of action against the defendant.

He further insists that it is the duty of courts of justice to vindicate and maintain the sanctity of their proceedings before they proceed to-the consideration of the merits of a case, and that, in the instant case, the cause of the contract and the motive of its transfer are in themselves intrinsically illegal, false and unlawful, and opposed to good morals and public policy.

That such contracts cannot he enforced has been held in very many opinions of this Court and its predecessors is evidenced by tho following cases: 5 Ann. 18, Denton vs. Erwin; 3 N. S. 46, Mulholland vs. Voorhies; 17 La. 132, Gerooby vs. Caneby; 2 R. 271, Davis vs. Caldwell; 1 Ann. 176, Davis vs. Holbrook; 12 Ann. 166, State vs. Lazarre; 5 R. 106, Slidell vs. Pritchard; 9 R. 486, M. Ins. Co. vs. New Orleans; 2 Ann. 60, Denton vs. Wilcox; 6 Ann. 317, Denton vs. Erwin; 38 Ann, 634, Gloin vs. Taylor.

But, however much we may reprobate such scandalous transactions ;: however much we may feel constrained, for decency’s sake, to summarily eject the plaintiff from the portals of the temple of justice, it is our deliberate opinion that it cannot be done in the present attitude of this affair.

Fortunately, the regime in which such abuses were possible, has long since terminated and passed into history, and the people who were instrumental in bringing it about have, passed from the stage of action. George L. Smith is dead, and the plaintiff has ceased to be Lieutenant Governor; D. D. Smith is no longer the representative of George L. Smith, but he is representing his heirs. There stands on the books of the Lottery Company 290 shares of its capital stock, to which one of the parties is entitled, irrespective of the fraud and peculation that may have characterized the transactions, through which its issuance and transfer were procured.

We understand this to be the jurisprudence established on that subject by the Supreme Court. In Brooks vs. Martin, 2 Wallace, 80, that great Court employs this striking language, viz :

“There was then, in the hands of the defendant, lands, money,, notes and mortgages, the results of the partnership business, the original capital for which plaintiff had advanced.
“ It is to have an account of these funds and a division of these proceeds that this bill is filed. Does it lie in the mouth of the partner who has, by fraudulent means, obtained possession and control of all these funds, to refuse to do equity to his other partners, because of the wrong originally done, or intended, to the soldier ? * * *
“ The title to the land is not rendered void by the statute. It interposes no obstacle to the collection of the notes and mortgages. The transactions which were illegal have become accomplished facts> and cannot be affected by any action of the Court in this case.”

This opinion was most carefully and deliberately expressed after a thorough review of the best American and English cases on the subject, and the doctrine meets our unqualified approval. Onr decree must rest on different grounds.

II.

The plea of res judicata urged by the defendant’s counsel rests on the following instrument:

New Orleans, September 4th, 1884.
In consideration for a note from David Dexter Smith, dated September 4th, 1884, for twenty-four hundred dollars ($2400), the surrender of a note which the said Smith holds against me for one hundred dollars, dated September 13th, 1876, and one hundred dollars in cash, I hereby surrender all claims I have to any Louisiana State Lottery stock on the books of said company in the name of David Dexter Smith. I further agree to relinquish all claims and considerations in every form against the estate of the late George L. Smith, deceased, also to pay any balance, if called for, that the estate of said Smith might be liable for by said George L. Smith’s signature to my bond as treasurer of the School Board for the city of Shreveport, parish of Caddo, State of Louisiana. This being a receipt in full for all'demands in any form against the estate of the late George L. Smith, deceased, also any and all claims in any form against David Dexter Smith. C. C. Antoine.”

The signature is admitted to be that of the plaintiff. It is not disavowed in the plaintiff’s pleadings, notwithstanding his counsel filed one supplemental petition subsequent to the filing of defendants’ answer, to which said agreement was annexed, and of which it was made a part.

The provisions of the code are that a transaction, or compromise, is an agreement between two or more persons who, for preventing or putting an end to a law suit, adjust their differences by mutual consent, in the manner which they agree on, and which every one of them prefers to the hope of gaining, balanced by the danger of losing. This contract must be reduced to writing.” R. C. C. 3071.

Our learned brother of the district court declined to give effect as a compromise to the agreement in question, because it did not contain the phrase, for preventing or putting an end to a law suit.”

In Calhoun, vs. Lane, 39 Ann. 596, we gave effect to an itstrument as a compromise, which did not contain these formal words. We can see no good reason wliy their nse should be deemed essential. Under our liberal system of practice, nothing is sacramental as a matter of form, unless expressly so declared by statute. The instrument does not contain the phrase, “and which every one prefers to the hope of gaining, balanced by the danger of losing,” which would seem to be equally important.

In our view, the only essential, as a matter of form, which the article duoted requires is that “the contract must be reduced to writing.”

Without recapitulating the terms, provisions and conditions of the instrument, we hold it to be a transaction, or compromise, in the sense of the code, and was evidently intended for the purpose of preventing law suit.

A transaction has “a force equal to the authority of things adjudged.” R. C. C. 3078.

“A thing adjudged is said of that which has been decided by a final judgment, from which there can be no appeal, either because the appeal did not lie, or because the time fixed for appealing is elapsed, or because it has been affirmed on appeal.” R. C. C. 3556, No. 31.

Under this view of the case we are dispensed from the consideration •of a mass of testimony that is, in the main, conflicting and quite unsatisfactory, and the recital of which could only serve to fortify and strengthen the conclusion at which we have arrived.

III.

While the only plea plaintiff, as a witness in his own behalf, could set up was that he did not read the instrument when it was presented for his signature, and that he signed it thinking it a receipt, his learned counsel argue against the effect of it as a compromise, because—

1. Of the disproportion of the amount Antoined received and the value of the stock.

2. Because advantage was taken of his necessitous circumstances.

The law provides that a compromise cannot “ be attacked on account of error in law. or any lesion.” R. C. C. 3078.

In Davis vs. Lee, 20 Ann. 248, the Court said that “ in transactions, .as they are defined in the code, and in the Eoman law, there is, from the nature of such contracts, something aleatory.”

Pothier, in treating on this subject, says :

“ There are certain agreements, in which persons of full age are not entitled to restitution, be the injury ever so considerable. Such are compromises according to the edict of Francis II. These are agreements respecting pretensions upon which there are impending, or expect'd, litigations. * * * * By the very nature of such agreements, the intention of the parties is the avoidance of litigation, even at the expense of what belongs to them.” 1 Pothier Ob., p. 121 (36).

In Long vs. Robinson, 5 Ann. 627, the Court said:

The plaintiff seems to rely to establish both (of his demands) by the large amount of his claim compared ivith the small sum of $3000, for which they were compromised. But the code expressly provides, that a compromise cannot be annulled on account of any lesion — Art. 3045; because it is an agreement to put an end to a law suit, and which the parties prefer to the hope of gaining, balanced by the danger of losing. Code 3038.
The plaintiff is, therefore, not only unfounded in the opinion, that the sacrifice he made in the compromise is cause for its rescission, but the district court properly refused to admit testimony of the value of the property and claims compromised by him.”

There is no proof in the record that any advantage was sought or obtained of Antoine’s embarrassed financial situation.

He it was who sought an interview with D. D. Smith, at once he ascertained that George L. Smith was dead; and, without ceremony, threatened him with a law suit because he declined to yield to his demands. Immediately afterwards he sent a lawyer to him. During the ten days’ delay allowed for a conference with the heirs, who resided in a distant State, lie voluntarily accepted $2600 in settlement of his claims, whatever they were. His financial situation was not discussed. It did not constitute a factor in the settlement. No proof shows that D. D. Smith, or the heirs, knew anything of his embarrassment financially.

The fact that Antoine did forbear, during all these years, to prefer any claim, judicially, against his alleged confidential friend, while living; his immediate action after his death; the fact that when the $2600 was procured he remained in contented silence for near, three years before this suit was filed, and then filed it without any admonition whatever to D. D. Smith, or the heirs; and the fact that he does mainly rely upon his oion testimony to evade the effect- of his written relinquishment, place him in a doubtful and unenviable light before this Court.

IY.

The further argument is made that, as a compromise," the instrument so-called cannot be given effect, because the transaction alleged to have been compromised possessed no element of doubt.

To this a sufficient reply is made by the judgment pronounced by our learned and conscientious brother of the lower court, who saiv the witnesses and heard them testify. 'And, notwithstanding the lips of George L. Smith were sealed in deathj and the plaintiff produced a number of witnesses by whose evidence, to bolster up his cause, he manifestly disbelieved their story, and rejected his demands.

While we do not rest our decree upon the same grounds as did the judge a quo, it is quite likely that if we should, it would be the same’'

Judgment affirmed.


author: Bermudez, C. J. Fenner, J.

text:
    No. 10,095.
    Succession of Mrs. B. E. Dumestre.
    Although a purchaser may be protected by the order of a court directing a sale in a matter over which it has jurisdiction, yet he has the right to inquire into the validity of the proceedings and conducive to the order of sale, to ascertain whether, under the showing made, the court had the power to make the order.
    His refusal to comply with the adjudication may be justified whenever the order of sale and the proceedings instituted to procure it are on the face of the papers unwarranted by law.
    An order of sale of the entire property of a succession, inherited by minor and major heirs, to pay the debts and to settle the claims and interest of the latter, can be assimilated neither to a sale asked by an administrator, nor to one to effect a partition, nor to one of minor’s property.
    No more can a tutor administering a succession than an administrator ask and obtain the sale of more property than is necessary to pay the debts.
    A tutor can undertake the settlement of a succession only when it accrues exclusively his wards,
    A judgment to operate a partition by sale can be validly rendered only on proof chat the property cannot be conveniently divided in kind.
    Property belonging exclusively to minors can bo ordered to be sold only on compliance with the requirements of the law on the subject.
    A .court having probate jurisdiction has no power to order the sale of all the property of a succession, inherited by minor and major heirs, at the instance of the tutor, with the consent of the latter, to pay debts which hardly amount to two-fifths of the estimated value of the property and to settle the interest of the major heirs.
    Enough property must first be sold to pay the debts, and the residue accruing to such heirs may then form the object oí a partition, in kind, or by sale, on proper proceedings and proof.
    In such case a court cannot decree the partition by sale, unless, on proof, that the property cannot be conveniently divided in kind.
    An order of court for the sale of succession property, which is not justified by the face of the papers, is illegal and can he successfully resisted by an adjudioatee refusing compliance with his bid on property offered for sale.
    An adjudicatee cannot be compelled to accept a title tendered under such circumstances, and has a right to demand reimbursement of the cash paid by him to the auctioneer at the moment of adjudication.

      APPEAL from the Civil District Court, Parish of Orleans. VoorMes, J.

      JB. G. JBllioit for Plaintiff and Appellee:
    I.
    A purchaser at a probate sale, which is a judicial sale, is not bound to look beyond the decree and tlie jurisdiction of the court. Hennen's Digest, p. 1494.
    II.
    A valid and indefeasible title is given by a sale ordered by a competent court on the petition of a tutor administering a succession, acting under the advice and direction of a family meeting, the object of the sale being to pay the debts of the succession. The major heirs, who are also creditors of the deceased, joining in the petition for a sale. Nesom vs, Weiss, 34 Ann. 1004.

      Jemes Timony’ for Defendant and Appellant:
    1. A purchaser at a public sale is not bound to comply with the adjudication when the title is clouded with doubts and dangerous complications.
    ■2. The tutor’s acts, even when sanctioned with advice and counsel of a family meeting, are only valid when in conformity with the law.
   The opinion of the Court was delivered by

Bermudez, C. J.

The question presented is: Whether the adjudicatee of certain property belonging to this succession shall be ■compelled to comply with his bid.

The ground of resistance is, that the proceeding by which the order of sale was obtained and the order itself are unwarranted, and, as such, null, and that, therefore, no title has passed to the adjudicatee.

Mrs. Dumestre died leaving minor and major heirs and owning property inventoried at $24,000. She was indebted to third parties in about $6000, and, it is alleged, to her major heirs some $4000.

A dative tutor was appointed to the minor children and he was relieved from furnishing security.

He undertook the settlement of the succession and, to that end, doing that which an administrator could have done and even more, he presented a petition alleging the debts and that, for the purpose of paying them and settling with the major heirs, the whole or part of the property ought to be sold.

-A family meeting was called and fixed the terms of the sale, and the heirs of age assented.

JBy the same order, the deliberations were homologated and the entire property was ordered to be sold.

It was offered and realized $21,746, part being withdrawn.

It is apparent, from this condition of things, that the sale was asked either exclusively to pay debts, or also to effect a partition.

If it was to pay debts aggregating at most $10,000, there was no necessity, no propriety, no authority, to order the sale of $24,000 worth of property, and the order must be deemed ultra vires of the court.

If the sale was ordered to effect a partition, besides, the forms of' law have not been observed and the'order is likewise a nullity.

So that, in either case, the order of sale was- unwarranted and the execution of it has not stripped the minors of their undivided share therein, Forcing the adjudicatee to comply with her bid is to compel her to give her money for property to which a voidable or doubtful title is tendered.

The safest test for the validity of the sale is to ascertain the precise nature or character of the proceedings which provoked it.

They were designed either to obtain the sale of the succession property to pay the debts, or to effect a partition, or the sale of minor’s-property as an act of tutorship.

If intended to pay debts, they must be controlled by the law and the jurisprudence on that subject, and could ignore the heirs.

If intended to operate a- partition, they should be conducted under the provisions of the code in that respect.

If intended to accomplish a sale of minor’s property, and only in that case, the should comply with’provisions Arts. 339 et seg., R. C. C..

(a) Tested by the fundamental allegation of the petition, which is-that the sale was necessary to pay the debts of the succession, the conclusion is warranted that the object in view was to pay debts, by the tutor administering the succession. In such case, the sale could not be sustained, as they were two heirs of age, and the tutor could not control the succession as an entity ,• for it is well established, that a tutor can ex-ofieio administer a succession only where it accrues exclusively to his wards.

(b) If the proceedings are to be treated as .contemplating a partition, it is apparent that the minors, for whom the law accepts a-succession under benefit of inventory, had then no standing, for the plain reason, that the succession was not liquidated, was burdened with debts,- and the property could.be the object of a partition only after such liquidation had been effected.

(c) If the tutor proposed to make a sale under Arts. 339 et seg.,-R.. C. C., he is denied that right, as the minors were not then the sole or exclusive owners of the property, to which they had only an undivided share, the value of which could not be ascertained before a complete administration and liquidation of the succession. Richard vs. Denee, 11 R. 518.

It will not do to say that a purchaser has no right to look beyond the decree ordering the sale, when it is rendered by a competent court, for it is settled that he must look not only to the jurisdiction of the court, but also inquire into the power of the court to make the order of sale.

When he discovers, on the face of the proceedings, at least those conducive to the sale and which serve as a foundation for the order of sale, illegalities calculated to throw a cloud on the title tendered, he may successfully refuse compliance with the adjudication.

If he were to be held protected by the mere order, then he could be forced to take title to the property of minors, ordered to be sold without the consent of a family meeting, or without any previous appraisement, or without any reason being assigned to justify the sale. R. C. C. 340.

Surely such is not the law.

There is no precedent to show that a purchaser ever was compelled to take a title under such circumstances.

In the case of the Succession of Gassen vs. Palfrey, 9 Ann. 560, in which a purchaser had refused to comply and was relieved, the Court substantially said:

There is yet for him a locus pcenitentia and the presumption omne rite aeta, etc., created for his protection, cannot estop him, though it be available to throw on him the burden of proof. He can always successfully resist, when the title tendered is, if not void, at least voidable.

In the case of McCulloch vs. Holmes, N. R., No. 4672, decided in 1857, O. B. 27, fol. 240, and alluded to in McCulloch vs. Weaver, 14 Ann. 33, in which the Court had ordered the sale of property belonging to minor and major heirs on an ex parte proceeding and without a formal judgment of partition, a purchaser was relieved from compliance with his bid on property at the sale.

It is true that there were exceptions in the case which had not been disposed of before the order of sale had been rendered.

In the case in 14 Ann. 33, just mentioned, an adjudicatee, at the same sale, under the same order, was quieted in a suit brought by the administrator to annul the sale, and this because he had gone into possession and his title could be subsequently ratified.

In the present case, the adjudicatee is not attacking the order of sale collaterally. He charges its nullity on its face, because the petition and the deliberations of the family meeting, which form part of it expressly, do not justify the order. His objections are founded on the proceedings on their face.

The court, no doubt, had jurisdiction over the succession and over the minors. It had authority to order the sale of part of the property to pay the debts, but it had none to order the sale of the entire property, as it did.

Property sufficient to pay the debts, even what is said to be due the major heirs, ought to have been first ordered to be sold, and this once done, the rest of the property would have remained unincumbered, the common property of the heirs, who, if unwilling to hold in indivisión, might then have asked a partition, either in kind or by lieitatión.

Before ordering a sale of property held in common by minors with majors, the Court must be satisfied, either by the reports of experts, or by satisfactory evidence, that the property cannot be divided in kind, for it is the policy of the law, in its jealousy for the protection of minors, that they should rather own real estate than that they should have money or securities, which would be by their nature more imperilled than if invested in such property.

There is nothing to show, in these proceedings, not even an obligation, either in the petition or in the proces verbal of the deliberations of the family meeting, that the property cannot be divided in kind, conveniently, among the heirs.

It is well observed by the judicious counsel for the resisting purchaser: “ If the method pursued^ in this case be legal, all the safeguards thrown around the interest of minors by the forms prescribed are utterly useless.”

The proceedings leading to the order of sale have none of the features of a partition, although it was one in disguise, intended to operate as such; but even if it was regular in its form, the absence of proof of the impossibility of convenient division in kind would not have justified the judgment of sale.

Under the circumstances, the purchaser cannot be compelled to take the title offered.

The adjudicatee has prayed that the amount deposited by her with auctioneer be returned to her. She is clearly entitled to have it back.

It is therefore ordered and decreed that the judgment appealed from be reversed, and it is now ordered and decreed that the rule herein taken to compel compliance with the adjudication be discharged and that the defendant therein recover the amount deposited by her with the auctioneer, namely: Six hundred and twenty-two dollars, and fifty cents ($622.50) and costs in both courts.

Rehearing refused.

Dissenting: Opinion.

Fenner, J.

The decedent, Mrs. Dumestre, left, as her sole heirs, ten children, two of whom were majors and the other eight minors.

Arthur Grastinel having been recommended by a family meeting as dative tutor of the. minors, presented a petition praying for an inventory of all the property of said minors, which was ordered accordingly.

Their property consisted exclusively of their interest in the estate of their deceased mother, and the inventory embraced all the property of said deceased.

After filing and homologation of the inventory, GUstinel was duly appointed and qualified as dative tutor.

He thereupon presented a petition to the court, solely in his capacity as tutor, representing “ that the inventory shows that the property of the minors consists in the main of real estate, in which their co-heirs (the two major children) have an undivided interest; that besides the minors’ mortgage of $15,204.32, there are other debts due by deceased amounting to upwards of $6000 that it is necessary to sell the whole or a part of said estate in order to pay the debts of deceased and settle the claims and interest of the major heirs; that as to the terms of sale and other matters, he desires the advice of a family meeting,” etc. A family meeting was accordingly ordered and held, which, with the approval of the under-tutor, recommended the sale of all the property at public auction on the terms therein fixed.

The proceedings of the family meeting were presented to and duly homologated by the judge, and the tutor prayed foi an order of sale in conformity therewith, which prayer was, in writing, concurred in by the two major heirs. Thereupon the judge made his order as follows : In accordance with the advice of the family meeting and the concurrence of the major heirs herein, let the entire property of the succession of Mrs. B. E. Dumestre be sold,” etc.

The sale was accordingly made and Mrs. Delia Joyce became the adjudicatee of part of the property. She declined to accept the title and to comply with the terms of the adjudication, and her present appeal is taken from a judgment ordering her to comply.

Her objection is based on the allegation contained in the petition for sale that it is necessary “in order to pay the debts of the deceased to settle the claims and interest of the major heirs.” They contend that the latter clause converts.the proceeding into a partition sale, and that, as' such, it is null and void for want of complianpe with the requirements of the law in the conduct of partition proceedings.

Her apprehensions as to the defectiveness of the title tendered are in my opinion groundless.

This is not an administrator’s sale as to which it is settled that an administrator has no right to provoke a sale for the mere purpose of effecting a partition between heirs, when there is no necessity therefor for the payment of debts. Hebert vs. Hebert, 22 Ann. 309; Hotchkiss vs. Dodd, 13 La. 86; Pipkin vs. Thompson, 14 La. 272; Bank vs. Delery, 2 Ann. 648; Succession Morgan, 12 Ann. 153; Monition of Dickson, 6 Ann.

Even if it were an administrator’s sale, however, it might find protection under the doctrine of a recent case in which we held that where the petition alleged a necessity for the sale in order to pay debts it would not be invalidated because accompanied by a further suggestion as to its necessity also for settlement between the heirs. Nesom vs. Weis, 34 Ann. 1004; see also succession of Weber, 16 Ann. 420.

But, as said before, this is not an administrator’s sale. The tutor has not acted as administrator, either actual or constructive. As his wards were notthe sole heirs, he could not have authority to assume administration of the whole succession. He has scrupulously confined his official action within the limits of his authority as tutor, extending it only to the interest of the minors. While the sale of the remaining interest is expressly based, both by' ljinlself and the judge, upon the concurrence of the major heirs.

Who, then, can assail the title tendered to appellant? Not the creditors for whose payment the sale is expressly made. Certainly not the major heirs, who are sui juris and have joined in provoking the sale.

We have, then, only to consider whether the sale is binding as divesting the interest of the minors.

Of this there can be no doubt. The proceedings comply strictly with every requirement imposed by the law for a valid sale of minors) property. These requirements are prescribed by Articles 339, 340, 341 and 342 of the Civil Code, and are, substantially, as follows :

1. That a family meeting shall advise the sale as advantageous to the minors. This has been done

2. That the judge should, on consideration, approve the advice of the family meeting, and fix the terms and other conditions of the sale. This he has done.

3. That the sale should be made at public auction after due advertisement. This was fully complied with.

4. That the property should not be sold for less than the appraised value as shown in the inventory. The price here was considerably larger than the appraisement. There are no other requirements prescribed bylaw, and, these being complied with, the minors are fully concluded.

Under such proceedings the minors’ undivided interest in the property might have been validly sold separately. The- advantage derived by the minors from a sale of the whole property, under the consent of the major heirs, is evident.

Neither appellant nor we, under her appeal, are concerned with the reasons of the family meeting for advising the sale, or of the judge for approving them and ordering it. It is sufficient that the family meeting, the tutor, the.under-tutor and the judge have, in the exercise of the discretion vested in them by law, concurred in the sale, and that it has been made in compliance with all legal requirements.

Even considering this as a proceeding for partition, a close study of the codal provisions on that subject reveals no valid objection to the sale here made. The sale is not a partition, but only a step preliminary thereto, and the actual partition and the proceedings in reference thereto take place upon the proceeds, and are subsequent matters with which appellant has no concern. Dees vs. Tilden, 2 Ann. 412; Kohn vs. March, 3 Rob. 48.

The Code gives to every heir the right to demand a partition. R. C. C. 1289, 1307.

Tutors of minors have the right to sue for a partition, provided they are thereunto authorized by the judge on the advice of a family meeting. R. C. C. 1235; Rachal vs. Rachal, 10 La. 458; Segur vs. Sorel, 11 La. 446.

Minors who do not demand a partition inter se of the share they are to receive, may be properly represented by their common tutor. Succ. of Aiguillard, 13 Ann. 97.

The first thing to be determined in a judicial partition is how it shall be made, whether in kind or by licitation or sale.

The Code gives to each heir the privilege of claiming his share in kind, Art. 1337, but it does not require an heir to make such claim.

If a tutor, with the concurrence of a family meeting and the approval of the judge, concludes that it is for the advantage of the minors that the partition should be made by sale, he would have the right to urge that it he so made, and if the major oo-heirs concurred in the same view, then there would be no controversy, and the judge, •also concurring, would surely he authorized to. order the sale.

The Code invests the judge with full authority and discretion to determine this question. Art. 1339. Kohn vs. March, 3 Rob. 48.

In his order of sale, he would be required, on the advice of a family meeting, to fix the terms of credit and security. Art. 1341.

Now, in the instant case, we find the tutor of the minors, the under-tutor, the judge and the major co-heirs all concurring that the property should be sold. It has been sold under judicial order, at public auction, on terms of credit fixed on the advice of a family meeting, and has brought a price exceeding the appraisement. What requirement of a valid sale, even for partition, is lacking, is not apparent.

In a former case we said: “We think the law exhibits sufficient watchfulness over the interest of minors in the granting of such orders, in requiring, first, an application by the tutor usually supposed to be concerned for the interest of his wards; second, a reference to a meeting of their relatives and friends to consider, advise and report for or against it; third, the action of their under-tutor, specially appointed to protect their interests against any improper action of their tutor; fourth, the final approval of the judge with all the prior proceedings before him.” Tutorship of McCormick’s heirs, 32 Ann. 958.

These requisites concur in the'instant case. It is obvious that upon new proceedings presenting the same coaditions, a re-sale may be had, and I can see no reason for subjecting the minors to this unnecessary expense and to the additional detriment of losing the advantage of a bargain which would not be litigated by the purchaser if it were not to his interest to be let out of it.

I, therefore, dissent from the opinion and decree herein.


text:
    No. 10,167.
    Maria Maguire vs. Patrick J. Maguire.
    A husband who signs an act of sale of property to his wife containing the declaration that she purchases with her own separate paraphernal funds and for herself, is estopped from contesting this admission.
    A wife is entitled to recover from her husband, in a suit for a settlement of the community, the proceeds of property belonging to her, used for purposes of the community.

      APPEAL from the Civil District Court for the Parish of Orleans^ Houston, J.

      J. Timony for Plaintiff and Appellee :
    A husband, who has been a party to an act of purchase in which it is deolared that the-price belonged to the wife in her parphernal right, and that the property is to he such cannot afterwards contradict it.

      Charles Louque and Henry L. Lazarus for Defendant and Appellant..
   The opinion of the Court was delivered by

Bermudez, C. J.

This is a suit for a separation from bed and board for a settlement of the community andfor reeovery of a sum of $14,000 claimed by the plaintiff to be due her. The answer is a general' denial.

There was judgment for the separation, with which both parties declare themselves satisfied, and which neither proposes to disturb.

The judgment further recognizes title in the plaintiff to certain real' estate and her right to one thousand dollars.

From this judgment the defendant appeals.

The act of sale of the real estate was made by one Davey, in the name of the plaintiff, assisted by the defendant, her husband.

It contains the formal declaration that the Mrs. Maguire was purchasing with her own private and separate funds and as her paraphernal property for herself, her heirs and assigns.

The sale purports to have been made for $3000- $500 cash and the rest in two notes of $1230 each.

On the trial the plaintiff exhibited the two notes, and the defendant undertook to introduce evidence having a tendency to show title to the property in the community.

On objection by plaintiff’s counsel, the Court received the testimony-to show collection of certain rents by the plaintiff, with a view, no-doubt, to hold her accountable for the same, in some way.

We find in the record an admission that the sale of Davey to Mrs. Maguire declares that she paid five hundred dollars of her separate and paraphernal property, that the admission is made under the advice of counsel, because the defendant signed the act and is estopped from questioning it as between himself and his wife.

Still, in the argument and in the brief, on behalf of the defendant,, it is contended that the property belongs to the community.

It therefore becomes necessary to pass upon the question of title asserted by both parties.

In the case of Kirwin vs. Hibernia Insurance Company, 35 Ann. 33, the question of estoppel was fully examined and the ruling was that', under the circumstances, which are similar to those in the present, Ahe husband could not go behind his formal attestation.

In the matter of the succession of Dejean and of Gaudet vs. Gauthreaux, recently decided, this construction of the law was sanctioned and acted upon.

It therefore follows that the'defendant cannot be permitted to assert title in the community to the property claimed by the plaintiff as her own.

The testimony adduced to show collection of rents or moneys by the plaintiff has failed to satisfy the district judge, as it does us, that she has received any, for which she can be held liable. In fact, the defendant specifies no amount and asks no particular relief under that feature of the case.

The only matter remaining for consideration is that portion of the judgment which allows the plaintiff to recover one thousand dollars from the defendant.

It appears that this sum is the price at which certain property standing in the name of one Coyle, but owned by plaintiff, was sold to one Fletcher.

The lower judge who heard the testimony which we have reviewed, was satisfied that the amount had been used for purposes of the community which was to that extent benefitted by it. There exists no reasonable doubt that it was not so, and we do not feel authorized to disturb his finding.

Judgment affirmed.

Concurring Opinion.

Fenner, J.

Considering that there is no suggestion of any interest of community creditors or of forced heirs involved in this controversy, and that the judgment herein would not be binding on such heirs or creditors, who are not parties ; considering further that the five hundred dollars paid in cash, admitted to be the pataphernal funds of the wife, was the whole price actually paid for the property, and that there is no question of any payment made or liability incurred by the husband or the community on account of any credit portion of the price ; and considering, therefore, that the property bought by Mrs. Maguire from Davey was actually bought and paid for in full with paraphernal funds, I can see no reason why the defendant should be permitted to contradict his positive admissions in the authentic act that the property was the separate paraphernal property of his wife. Under repeated adjudications his simple heirs would be estopped from contradicting such authentic admissions made by him, and, a fortiori, does the same estoppel apply to him. 35 Ann. 33; 34 Ann. 374; 33 Ann. 688; 31 Ann. 124; 30 Ann. 1036; 9 Ann. 242.

For these reasons, I concur.

Poché, J. I concur in the additional reasons given by Mr. JusticeFenner.


text:
    No. 10,148.
    State ex rel. Mrs. Seraphine Maspereau vs. Joseph Batt, Register, et al.
    A mandamus will not lie to compel the Register of Conveyances of the parish of Orleans to erase from the record of his office a tax deed, in the absence of a final judgment of a competent court declaring the nullity of the tax sale, not even if the purchaser at such tax sale is made party to the proceeding.
    A previous judgment declaring the assessment under which such tax sale was made absolutely void, is not binding on the purchaser at such sale if not a party to the suit in which the j udgment was rendered.
    APPEAL from the Civil District Court, Parish of Orleans VoorMes, J.

      Farrar & KruttseJmitt for Plaintiff and Appellee:

      I.

    (a) The tax sale of property under an assessments the name of one not the owner, is an absolute nullity. Maspero vs. New Orleans, 38 Ann. 401; Lagne vs. Boagni, 32 Ann-912-913 ; Denegre vs. Gérac <fc Frances, 35 Ann. 952.

      (b) The constitutional provision that tax deeds shall he “received by courts as prima facievalid svles,” merely establishes a new rule o£ evidence, and not new rights. Cooley on Taxation, 2d Ed. pp. 517, et seq.

    . EC.
    A writ of mandamus will lie to compel the erasure of such a conveyance from the records of the conveyance office.
    That such a writ will iie in the case of a mortgage is held in : Savage vs. Holmes. 15 Ann. 334; State ex rel. Deblieux vs. Recorder, 25 Ann. 61; Lanaux vs. Recorder, 36 Ann. 975-
    "Why not, then, in case of a conveyance?

      Jos. II. & J. Zaeh. Shearing for Defendants and-Appellants :
    1. It is elementary that persons are not bound by judgments in cases to which, they were not parties, and the judgment in Maspero vs. FT. O. (38 Ann 401) is not res adjudicata as against respondents,
    2. All deeds of sale for taxes under Article 210 of the Constitution and laws passed in pursuance thereof, are prima facie valid, and no sale whatever of property for such taxes can be decreed void for any cause of alleged nullity, except in a direct action. A mandamus does not lie to cause the inscription in the conveyance office of a deed of sale for the State tax of 1883, to be cancelled. Article 210 of the Constitution of 1879 ; Lannes vs. Bank, 29 Ann. 112 to 115; Jorey & G-illis vs. Allison, 30 Ann. 1225; Fix vs. Herron, 29 Ann. 850; High on Extraordinary Remedies, Section 10.
    8. A sale under Article 210 of the Constitution cannot he attacked on any ground, except upon a tender of the “price paid” by the purchaser to the tax collector. Miller vs. Montague, 32 Ann. 1292.
    4. An assessment or sale of property in the name of a person not the owner, even when made under a law requiring the same to be in the name of the owner, is not an “absolute nullity.” A mistake of assessing property in the name of one not the owner, thongh the law requires the same to be in rhe name of the owner, is a matter relating to the manner of assessment and not to the fact of assessment. The name in which property should he assessed and sold is a non-essential in tax proceedings $ that is a matter within legislative control, and, therefore, a mistake in the name does not render the sale an absolute nullity. Shannon vs. Lane, 33 Ann. 489 to 492; Geren vs. Gruber, 26 Anu. 694; Morris vs. Lalaurie, S9 Ann. 53 ; Hent vs. Brown, 38 Ann. 806; 22 How. 433; Woodside vs. Wilson, 32 Penn. Stat. 54 j Strauch vs. Shoemaker, 1 Watts & Sergt 175; 18 Penn. Stat. 154; i.’Grady vs. Barneshel, 23 Cal. 287; Witherspoon vs. Duncan, 4 Wall. 217; Easton vs. Perry, 37 Iowa, 683.
   The opinion of the Court was delivered by

Todd, J.

This is a mandamus proceeding directed against the Register of Conveyances for the parish of Orleans to compel him to cancel from the records of his office a tax deed to certain immovable property claimed by the relatrix to have been illegally sold to one Hakengso, who is also cited as a party to the proceeding.

From a judgment making the mandamus peremptory, the defendants have appealed.

The defendants excepted to the proceeding in the lower court on many grounds, which summarized, were substantially in effect tiiat a mandamus would not lie in such a case and for the purpose declared in the petition. The exception was overruled and a long answer to the merits filed, asserting the validity of the tax sale and a legal title acquired thereby by the purchaser at such sale.

A bare statement of the object of the suit and of the nature of the pleadings is, in itself, almost, if not quite sufficient, to show that the remedy lesorted to in this instance was not the proper one.

The tax sale in question was made in 1884.

Article 210 of the State Constitution declares : “ All deeds of sale made, or that may be made, by collectors of taxes shall be received by the courts in evidence as prima facie valid sales.”

The same article further provides that No sale of property for taxes shall be annulled for any informality in the pleading, until the price paid, with ten per cent interest, be tendered to the purchaser.”

With these mandatory provisions in the Constitution, it cannot readily be conceded that this officer — the Register of Conveyances— can, in the discharge of a mere ministerial duty, erase fiom the records of his office a deed which is declared by the Constitution jprima facie valid,- or, if not valid, one that cannot be annulled for any informality until the price, with interest, is tendered to the purchaser !

Had the relatrix presented to this officer a final judgment of a competent court, contradictorily rendered against the purchaser at the tax sale, declaring the sale void, ihen he might have been compelled by mandamus to perform the ministerial duty by cancelling the deed, in case he had refused to do so.

Nor could such judgment be rendered in a mandamus proceeding. The issues that are presented by the pleadings in the instant case, are a complete demonstration of this fact. The defendant, or the party holding the tax title assailed, is entitled to have these issues tiied and determined in a regular suit, by ordinary proceeding, and with the right, if he desires, to claim it, to submit these issues to atrial by jury. This is a constitutional right which this extraordinary proceeding is calculated to deprive him of.

It is, however, urged by the counsel of the relatiix that in the case of Maspereau vs. New Orleans et al. (38 Ann. 401), it was decided by this Court, on appeal, that the assessment of the property under which this sale was made was absolutely void. In answer to that, it is sufficient to say that neither the Register of Conveyances nor Hakengos, the present defendants before us, were parties to that suit, and, therefore, as to them, it was as if it never existed.

The law has expressly provided for relief by mandamus, but this proceeding does not come within the scope of any of the provisions pertaining to this remedy. C. P. Art. 829, et seq; Fix vs. Heriou, 29 Ann. 850.

It is, therefore, ordered, adjudged and decreed that the judgment of the lower court be annulled, avoided and reversed, and that the mandamus be refused, at the cost of the relatrix.


text:
    No. 10,166.
    B. Saloy vs. James Woods.
    The provision in the present State Constitution directing the collection of taxes otherwise than by suit, was not self-operative; hence, a suit for a city tax iDstituted and prosecuted before the legislative act was passed to carry into effect the said provision, operated to interrupt prescription against the tax. City vs. Wood & Bro., re-affirmed, 34 Ann. 732.
    An assessment on merchandise or money at interest does not, though duly recorded, operate as a privilege on the immovables of the tax payers under Act 77 of 1880. See Section 24 of said act.
    Act 95 of 1882, fixing the term of prescription against tax mortgages and privileges at five years, does not contravene Art.'176 of the Constitution; nor does the provision in that article, as to the time .within which privileges shall be recorded, apply to tax privileges.
    APPEAL from the Civil District Court for the Parish of Orleans. High tor, J.

      Charles Louque for Plaintiff and Appellant.

      J. Ward Qmdey for City of New Orleans, Third Opponent and Appellee. 1
   The opinion of the Court was delivered by

Todd, J.

Plaintiff caused certain immovable property, situated in the city of New Orleans, to be sold under executory process to enforce the payment of a mortgage thereon.

The city, by third opposition, claimed to be paid by preference out of the proceeds of sale of the city taxes for the years 1882, 1883, 1884, 1885, 1586 and 1887, assessed against the defendant.

Prom a judgment in favor of the city, maintaining the opposition for the full amount claimed, the plaintiff has appealed.

L

Against the tax and tax privilege of 1882, the prescription of three and five years is pleaded.

This question must be governed by the revenue act (771 of 1880). The'24th section of that act provides: ‘‘That taxes, tax mortgages and tax privileges shall be prescribed by three years from the date of filing the tax roll in the office of the recorder of mortgages.” The tax roll was so filed on the 14th of July, 1883, and the city’s opposition, claiming the tax, was instituted on the 20th of September, 1887.

There was, however, a suit instituted for the recovery of the tax in 1882, which interrupted prescription.

The counsel for plaintiff, however, contends that this suit did not interrupt prescription, because of the constitutional inhibition (Art. 401) against this method of collecting taxes. It was held by this Court in City vs. Wood & Bro., 34 Ann. 732, and Mayer vs. Hyman, 35 Ann. 301, that this inhibition did not become operative until rendered so by subsequent legislation. Therefore, fihe suit was effective to interrupt prescription, and the claim was not barred.

. II.

As relates to the taxes of 1883 and 1884, prescription must be determined by Act 95 of 1882. Section 34 of that act changes the prescriptive term, with respect to taxes, tax mortgages, etc., from three to five years.

The taxes were recorded in the mortgage office respectively July 31, 1884, and February 24, 1885. Prescription, therefore, had not run when the opposition was filed.

The plaintiff, however, claims that the question of prescription relating to these taxes must oe governed by Act 176 of the Constitution, under which it is contended the prescription term is fixed at three years, and without reference to the date of record. In the case of Davidson vs. Lindop, 36 Ann. 765, this Court held otherwise, and to that decision we still adhere.

Nor does the requirement contained in that article, as to the time within which privileges must be recorded, apply to privileges for taxes.

It is, however, shown that part of the tax of 1884 resulted from an-assessment of money, at interest, and merchandise amounting to $5000.

Of course, this assessment did not operate as a privilege on the real estate of the tax-payer. Therefore, the amount of the tax on this item must be rejected as a charge upon said proceeds. Two per cent on $5000 is just $100, which must be deducted from amount allowed in the judgment below. Sec. 24, Act 77 of 1880.

For the same reason a deduction of $50 must be made from the city tax of 1886. The tax of this year (1886)) save in this respect, is not objected to, and the tax of 1885 is admitted to be correct.

III.

We find in the record no tax bill of 1887. It is mentioned in the note of evidence, but neither the bill was filed nor any evidence relating to it was introduced. The amount of the tax for this year must, therefore, be rejected.

This completes the review of all matters embraced in the appeal, and from the conclusions announced, the judgment will have to be amended.

It is, therefore, ordered, adjudged and decreed that the judgment of the lower court be amended as follows :

That $100 be deducted from the amount allowed for tax of 1884, and the further sum of $50 be deducted _ from the tax allowed for 1886.

That the tax of 1887 on the claim of privilege therefor be dismissed ■ as of non-suit.

That the judgment, as thus amended, be affirmed, the appellee to pay the costs of appeal.


author: Bermudez, C. J.

text:
    No. 21,536.
    City of New Orleans vs. New Orleans City and Lake Railroad Company.
    Operating a street railroad by liorse and steam is a bushiest within the meaning of the law which can be subjected to the payment of a license, under Act 101 of 1886 and city Ordinance 2085.
    A contract conferring the right to lay Tails to operate a street railway, without dispensing from the payment of a license, is not impaired by the enaction of such license.
    APPEAL from the Civil District Court, Parish of Orleans. Mghtor, J.

      Francis B. Lee, Assistant City Attorney, for Plaintiff and Appellee.

      Branghn, Bucle, Dinkelspiel & Mart for Defendant and Appellant.
   The opinion of the Court was delivered by

Bermudez, C. J.

The plaintiff sues to recover $2500 and interest from the defendant, as a license for the year 1887 for carrying on, within the city limits, the business of operating and lunning a horse and steam railway, for the transportation of passengers.

The defenses are :

1. That Act No. 101 of 1886, which authorizes the city to levy the license tax, is unconstitutional, because the license is unequal and not graduated, as is required by Art. 206 of the Constitution, as it provides a different grade for cities, according to their population.

2. That, if this defense is not well founded, then that the license tax cannot be recovered, because the business is not a trade, profession, avocation or calling in the sense of the law, but is simply the exercise of a privilege accorded, for consideration, to use the streets and highways of the city for street railroad purposes; that the enforcement of the ordinance, under which the license is claimed, will impair the obligations of the contract entered into in 1879 between the city and the company, and that this impairment violates both the Federal and State Constitutions.

I.

The first defense is formally abandoned by the company, on consideration of the ruling in State vs. O’Hara, 36 Ann. 94, as settling the question.

II.

In relation to the second defense, it may suffice to observe :

1. That the act of 1886 expressly recognizes and declares that, carrying on, operating or running any horse or steam railroad, or both, for the transportation of passengers, within the limits of any city, is a business, and that, after so saying, the act proceeds to graduate the license.

2. That the privilege conceded by the city, by the contract of 1879, to the company, was intended merely to confer the right to lay rails and do all necessary work, on the streets designated, to enable the grantee to exercise the right of way to operate a street railway.

From the language of the act, it is clear and it follows, that the operating of a street railroad is a business, and, as such, chargeable with a license.

The privilege of the right of way, is what is termed a franchise, which, when granted, becomes property, susceptible of incumbrance and conveyance. Board vs. New Orleans, 32 Ann. 915; N. O. vs. R. R. Co., 34 Ann. 1228, and same, 114 U. S. 505.

It is, therefore, well distinguishable from the privilege of enjoying that right, which is vivified only on the payment of the proper license to the city, under the terms of Act 101 of 1886, p. 175 (9th and following class), on which Ordinance 2035, C. S., sued under, is made to rest.

It is further clear, that, as the contract of 1879 does not grant the privilege of using or exercising the right of way,free from any license, the exaction of one, does not impair the obligation of the contract.

The district judge ruled correctly.

Judgment affirmed.