text:
    No. 10,469.
    Mrs. Widow Olivia McCall vs. A. B. Irion et als. W. H. Chaffe et al., Warrantors.
    1. A party suing in virtue of lier right as simple heir, for property that has descended to her as an inheritance, occupies the exact attitude before the court as would the ancestor liim•self, as plaintiff.
    2. An unrecorded deed transfers property to a purchaser just as effectually as a recorded deed, as against all the world, except creditors of the vendor, and bona fide purchasers from him , without notice.
    3. The return of a sheriff executing a writ of fieri facias forms an essential and integral part of the record in the sale proceedings, and under ordinary circumstances, is admissiblo in evidence, as such, wlion the remainder has been offered by an adverse party.
    4. Once admitted in evidence in a purely petitory action, such return is not to be viewed in the light of an attack upon a judicial title, but as an ingredient of it.
    5. At a judicial sale, the adjudication is the completion of the title, the purchaser becomes tlu* owner of the article adjudged, and, from that time, the contract is subjected to the rules governing the ordinary contract of sale.
    6. Before the sheriff is authorized to expose to sale anew the thing sold, and adjudge the property to another, a demand must be made unon the purchaser to comply with the terms of the adjudication and pay th,o purchase price, and the purchaser must be shown to have refused compliance therewith.
    7. In questions appertaining to the title to real property, the sheriff’s deed furnishes proof • of the adjudication, and its recitals control those of his return.
    8. Under the law a purchaser is not entitled to possession of a sheriff’s deed to immovable property, it must be delivered to the clerk issuing the execution.
    9. ¡Neither the judicial, nor extra j udicial declarations, of a purchaser at a public sale, can be admitted in evidence on the trial of a petitory action lor the purpose of impeaching a judicial title.
    APPEAL from tlie Twelfth. District Court for the Parish of Avoyelles. Oooo, J.

      Oullom Oapjpel, for Plaintiff and Appellant.

      Irion i& Lnrfargus for Defendants and Appellees :
    Where defendants are sued for a tract of land as trespassers, and they exhibit a judgment regularly obtained, an execution issued thereon, and a sheriff’s deed to their vendors followed by more than ten years uninterrupted possession as owners, the plea of prescription will be sustained, and their title cannot be assailed by the former owner or liis heirs. 2 B. 466; 3 Ann. 8.
    Where defendants show a divestiture of plaintiff’s title by a judgment regularly obtained, an execution issued thereon, and a sheriff’s deed to purchasers, plaintiff cannot offer evidence to show nullity of either judgment, execution or deed without alleging the cause of nullity in her petition. 2 Ann. 509; 6 Ann. 688; 24 Ann. 445; 29 Ann. 698.
    Where the plaintiff fails to allege any nullity in the judicial proceedings under which defendants acquired title to prox>erty, those xiroceeclings must be considered valid in all respects by the court, and defendants will be protected and quieted in their title.

      After a sheriffs sale, if the defendant in execution joins with another in renting the property from purchaser, and cultivates the same as lessee, he ratifies the sale and his heir cannot be heard to deny that such a sale was made.

      Bona, fide purchasers who have advanced their money on the faith of a judgment, execution and sheriff's deed, and who have possessed peaceably for many years, will not be turned out of possession for mere informalities at the instance of one who shows no injury and exhibits no equity. 8 Ann. 503.

      Henry G. Miller, for Estate of T. D. Miller, Defendant and Appellee :
    The defendant whose property lias been seized and sold under judgment and execution, and possession delivered to the purchaser, cannot bring the ordinary petitory action for the property, the same as if no adjudication had taken place, but lie must bring the direct action to annul the adjudication and sheriff’s deed, and the defects in the judicial proceedings must be set forth in the petition to set aside and annul the judicial title under which the purchaser holds the property. Code of Practice, Articles 690, 695; 6 Rob. 102; 2 Ann. 509; 6 Ann. 688; 24 Aun. 445; 29 Ann. 698.
    The sheriff’s return on an execution' should recite his own action, to that extent is evidence, and no further. But tho law recognizing any adjustment of the price of adjudication effected between the seizing* creditor and the adjudicatees, without the concurrence or even knowledge of the sheriff, his return containing the statement that an adjudication was not complied with, goes beyond liis knowledge and the limits assigned by law for the return and in respect to that statement, the return is not evidence. Code of Practice, Article 702; 3 Ann. 584; 6 Aim. 481; G-wynne on Sheriff, 476; 2 Rob. 319; 23 Ann. 458.
    When the adjuoatees with the full consent of the seizing creditor, is put or goes into and ever after tho adjudication, remains in possession of the property adjudicated, the necessary conclusion is that the adjustment of the pneo of adjudication was entirely understood and arranged between the seizing creditor and the adjudícateos. 8R)b. 4p0; 2 Rob. 319.
    On any issue of the completion of an adjudication sought to be raised by an heir of the execution debtor to disturb and open undisturbed possession of twenty-five years, of the adjudicatees under the adjudication and sheriff’s deed, the acts and conduct of the seizing creditor, his attorney and of the adjudicatees all denoting plainly that the adjudication was complied with, to the satisfaction of all concerned, carry persuasive force.
    It is the adjudication which fixes the condition of the purchaser at the sheriff’s sale, and no subsequent irregularity or statement in the sheriff’s return can affect the rights of the purchaser. C. P. Articles 690, 691; Civil Code, Article 2620; 3 IT.. S. 494; 6 Rob. 100, 108 ; 10 Rob. 30 ; 11 Ann. 545.
    The sheriff’s deed is the highest evidence of the completion of the adjudication, and controls the sheriff's return in case of variance. The effect of the sheriff's deed, as an instrument of evidence, is not at all affected by the fact it was not recorded, nor is registry of any consequence in an issue not with subsequent purchasers or mortgages, but with the judgment debtor who seeks to question the title of the adjudicatees at the sheriff’s sale. Code of Practice, Articles 694, 695; 34 Aim. 4*23, and authorities there cited.
    When the purchasers at sheriff’s sale have been in possession for years under the adjudication, and the sheriff’s deed to them has been duly executed, and is found in the clerk’s office to which it was manifestly transmitted by the sheriff to he recorded as the law directs, in a suit brought by the lieir of the judgment debtor against defendants, holding under that adjudication, the fact that tho deed was not delivered by the sheriff to the adjudícateos will not affect their title, hut it suffices that the defendant, holding under the adjudication and sheriff’s deed, produce the deed to repel the attack of the heir of the judgment debtor. Code of Practice, Articles 690, 691, 692, 693. 694, 695. 697, 698; Succession of Goodrich, 6 Rob. 110; Wright vs. Higgenbofeliam, 10 Rob. 32; 1 H. D. 040, Kb. 2 ; Davis vs. Wilcoxen, 5 Ann. 583; Gusman vs. The Sheiiíf efe ais., 27 Ann. 280.
    The possession of ten years as owner under judgment execution and sheriff’s deed supports the prescription of ten years. Civil Code, Articles 3478, 3479, 3483, 3484, 3485, 3486, 3493. 3494; Code of Practice, Articles 690, 695, 698; 2Rob.468;3 Ann. 8 ; 13 Ann.198.
   The opinion of the court was delivered by

Watkins, J.

This case was before us at Opelousas in July, 1888. Vide 40th Annual at page 690 et sequentes. Therein a full and explicit statement of the pleadings was given and it need not he repeated here. It will suffice, for all present purposes, to restate a few leading facts as pertinent to a trial on the merits.

This is a petitory action in the ordinary form, in which Mrs. McCall, as plaintiff, sets up a title in herself, to an undivided one-half interest in the Beverly or Sans Souei plantation, in the Parish of Avoyelles, by inheritance, she claiming as the only sister, and sole heir-at-law of John G. Wilson, deceased, who acquired same by purchase of Sarah Ogden, wife of James A. Kinhead — the other undivided one-half belonging to Euplirosine Ogden, wife of M. P. Vernon — the entire tract containing about 1900 acres.

The defendant, Miller, claims ownership of one-lialf of the Wilson one-lialf interest — i. e. in one-fourtli of the whole — by purchase from the Cliaffes, whom he calls as Ms warrantors; and they claim under an execution sale against Mrs. Elizabeth McMatli, in foreclosure of a conventional mortgage executed by her; she having acquired title under execution sale in satisfaction of a judgment in a suit entitled George B. King, executor, vs. J. G. Wilson, for $18,600, same being the balance due by the defendant on execution, on the original purchase infice of the property in question.

The defendant, Irion, claims ownership of the other one-lialf of the Wilson one-half interest, by purchase from Henry M. Payne, whom he calls in warranty ; and Payne claims to have derived title thereto from the succession of Walter A. Kinhead, by appropriate judicial proceedings had in his mortuaria.

The main question for determination then, is the validity and sufficiency of the sheriff’s deed of sale to the property in dispute, hearing date January 5th, 1867, and under which defendants claim ownership aiid possession.

' The substance of plaintiff’s averments is that her deceased brother, John G. Wilson, was the owner of said property until the date of his death, February 14th, 1879; that he had never been divested of his ownership by any legal process or conventional transfer; that on or about the 5th day of January, 1867, Elizabeth McMath and Walter A. Kinhead, during his absence from the parish, took possession thereof; and having no right or title to said property, they could convey none to the defendants’ authors, and, therefore, they are in possession without any legal right, and are possessors in bad faith, aud liable for rents and profits.

Defendants and warrantors make, substantially, the same answers; and their exceptions are outlined in our former opinion. When the cause went down to the court below, their answers were elaborated, their defences enlarged, their exceptions referred to the merits and, on the trial, there was a judgment in favor of the defendants, rejecting plaintiff’s demands as in case of non-suit, and, therefrom, she has appealed.

I.

(a.) The following appear to be the conceded facts, viz.:

That John G. Wilson was the brother of the plaintiff, and she is his sole legal heir.

That Wilson purchased the undivided one-lialf of the Sans &ouaplantation, in 1857, from Sarah Ogden, wife of James A. Kinhead, on terms of credit; and, of the purchase price of $60,000, there remained due in 1860, $18,000, secured by mortgage.

That Sarah Ogden died in 1858, leaving a will in which her husband was instituted universal legatee, and George R. King was appointed executor. That, subsequently, James A. Kinhead died, leaving a will, in which he made a special bequest of $10,000 in favor of his brother, Walter; one of $10,000 in favor of his sister, Mrs. Elizabeth McMath; and one of $5,000 in favor of his brother, Thomas. That George R. King was qualified and confirmed executor, and the respective wills of Sarah Ogden and James A. Kinhead were duly probated and admitted to record. That, in 1860, King, executor, proceeded via exeeutiva to foreclose Sarah Ogden’s vendor’s mortgage against the land in Wilson’s possession. That no further proceedings were taken thereunder until 1866, when the executory proceedings were converted into proceedings via ordinaria, and, upon the defendant’s confession of date October 6th, a final judgment was rendered and signed on the twelfth, recognizing and making executory said mortgage, as securing said debt for the residue of the purchase of said land. That under said definitive judgment an execution was issued, the mortgaged property seized, advertised and sent to sale, on the 5th of January, 1867, and the sheriff adjudicated same, in indivisión, to Walter A. Kinhead and Mrs. Elizabeth McMath, as tlie purchasers thereof, at the stated price of $4,500. That upon the same day and date, the sheriff prepared an act of sale in due form of law, in strict conformity with said adjudication, signed the same in the presence of two subscribing witnesses, affixed and cancelled the necessary amount of internal revenue stamps that were required at that time, and delivered same into the custody and possession of the clerk of court, as required by law. That said deed was never registered in the book of conveyances until after the institution of this suit, though the adjudicatees entered into possession of the property immediately after the sale, and they and their vendees have continued to possess the same ever since. That John G-. Wilson remained in the vicinity for a short time after the sale, though, apparently, exercising no rights of ownership over the property, which was, in the month following, leased to one Love-joy, and then went to New Orleans, where he remained until his death in 1879. That, although the judgment of King, executor, against Wilson was not credited with the proceeds of sale, or any other sum, it has been satisfied in no Other way than as indicated by the said proceedings and sale. That, during his lifetime, Wilson never asserted, judicially or otherwise, any claim or pretension of ownership to this property. That all the judicial proceedings and notarial conveyances, through which the successors-in title of Walter A. Kinliead and Elizabeth McMath claim the property, are regular in form, and sufficient in terms to convey the property; and same are duly recorded.

(6.) The following appear to be the disputed facts, viz.:

That Walter A. Kinliead and Elizabeth McMath never possessed as owners; the averment of plaintiff’s petition being that they took arbitrary and unauthorized possession without the color of legal right, and are, therefore, mere naked trespassers. That said Kinliead and McMath never paid any part of the sum of $4,500 stated in the sheriff’s deed as the purchase price. That John G. Wilson never recognized or ratified said sale or adjudication, either expressly or by way of implication. That the successors of said Kinliead and McMath in title, were in legal bad faith, also, and all were bound for the payment and restitution of revenues.

(c.) This resume of conceded and disputed facts narrows the controversy to one principal issue, and points to the sheriff’s sale of January 5th, 1867, as the pivot on which our decision must turn ; for one of two propositions is true: 1st, That the sheriff’s sale was a valid one, and conferred title on the adjudicatees; 2d, that the sheriff’s deed was a title translative of property, and a foundation of defendants and warrantors’ claim of ownership by prescription, otherwise defendants title must be rejected, and that of plaintiff recognized.

II.

Tlie first question to wlucli we will 'devote our attention is the validity rel non of the sheriff’s sale, and his adjudication of Wils.on’s property to Walter A. Kinliead and Elizabeth McMath, of date January 5th, 1867.

(a.) It is apparent, and should be at once observed that Mrs. McCall, suing in virtue of her right as sole heir-at-law of John G. Wilson, for property that has descended to her as an inheritance, occupies the exact attitude before the court, in respect to the sheriff’s sale, as Wilson would himself occupy as plaintiff. An heir can have no higher right than his ancestor in title.

The heirs of a deceased person are seized of his succession at the very instant oí his death, and the right of possession that the deceased had, continues in them, with all of its defects and advantages; the change in the proprietor producing no change in the nature of his possession.” Heirs of Castle vs. Floyd, 38 Ann. 583.

From this tie >rem comes the proposition that there was no necessity for the registry oí the sheriff’s deed of sale to A. Kinliead and McMath, in order to affect the heir of John G. Wilson, the seized debtor, with notice; for it has been decided “that an unrecorded deed transfers the property to the purchaser just as effectually as a recorded deed, as against all the world, except creditors of the vendor, and bom jicle purchasers from him without notice.” Logan vs. Hebert, 30 Ann. 732; White vs. Sheriff, 32 Ann. 130.

(b.) As preliminary to the discussion of the validity of the deed of the sheriff comes the question of the admissibility in evidence of the return of the sheriff, which appears to have been endorsed by that officer on the returned writ of fieri facias in the clerk’s office, a few days subsequently to the date of sale and deed.

The counsel of the warrantors and defendants offered and caused to be filed in evidence, the judgment, execution and sheriff’s deed of sale, unaccompanied by said official return; and when the latter was offered by plaintiff’s counsel in rebuttal, the former counsel objected to so much of the return as recites that the purchasers failed to comply with the conditions of the sale,” on the grounds: 1st, That this statement constitutes no part of a return, and refers to a matter of which a return is no evidence; 2d, that a return is incompetent to contradict a sheriffs’ deed, which cites compliance with the conditions of sale; 3d, that in a purely petitory action, such evidence is incompetent to contradict a sheriff’s deed, upon which defendants’ case depends; 4th, thatiuasmuch as plaintiff’s petition does not assail the sheriff’s deed as incomplete or illegal, the proof is inadmissible under the pleadings.

These objections were sustained, and to the judge’s ruling, plaintiff’s counsel reserved a bill.

The one drawn in question is a judicial title, and the whole of the judicial proceedings which culminated in the sale, including the petition, citation, judgment, execution notice to appoint appraisers, advertisement, appraisement and sheriff’s deed, are in evidence. This return forms an essential and integral part of the record, and, under ordinary circumstances,-is admissible in evidence, as such, when the remainder has been already offered and filed in evidence. We do not think this case presents an exception to this rule. While it is, also, true that, in a purely petitory action a trial of titles should be had, upon the face of those presented, and as a general rule their validity cannot be assailed or attacked collaterally; yet in this case defendants’ counsel offered and introduced in evidence, as collateral and corroborative circumstances, proofs of Wilson’s voluntary abandonment of the property, and silence as a claimant of it, through a long series of years; his alleged declaration that he no longer owned the property; his recognition of the ownership of A. Kinhead and McMath ; proof of the fact that said purchasers were beneficiaries of Sarah Ogden and James A. Kinhead, and as such, entitled to the proceeds of sale, to whom, as legatees of the latter, same were destined primarily; the subsequent acts and conduct of King, executor, as the agent, attorney and affiant of Walter A. Kin-head in certain judicial proceedings looking to the collection of rent from Lovejoy as tenant under him, of the property in dispute; and we do not see how we could in a spirit of fairness and perfect justice to the plaintiff, preclude similar proof in rebuttal by her. We think it abetter rule, in doubtful cases, to admit evidence than to reject it.

Especially is this true when the trial occurs before a judge. The objection urged, seems rather to go to the effect than to the admissibility of the evidence. Under all the circumstances we deem it best to give it consideration. But in admitting this return as evidence, we do not wish to be understood as holding that it is to be viewed in the light of an attack upon a judicial title, but merely as an ingredient of it, for certainly the doctrine upon which the judge a quo rested his decision, is too well founded to admit of question. 2 Ann. 509; 6 Ann. 688; 8 Ann. 503; 23 Ann. 175; 24 Ann. 224, 445 ; 29 Ann. 698.

But the effect of this return is to show, as a circumstance, the imperfection or incompleteness of the title in itself, — it being a part of the judicial proceedings through which it emanated. Its value we will next consider.

(c.) The law imposes upon a sheriff the duty of passing an act to the purchaser of the property within three days after the adjudication.” C. P. 691.

It declares that “ the adjudication * * has of itself alone, the effect of transferring to the purchaser all the rights and claims which the party in whose hands it was 'seized might have had to the thing adjudged.” C. P. 690.

■ The act of sale “masfmake mention,” among other things, “of the manner in which the purchaser has paid the price,” as well as “ of the price and conditions on which (the property) has been adjudged.” C. P. 693.

It shall conclude by selling and transferring to the purchaser all the right which the former owner had to the thing sold. C. P. 694.

“This act of sale adds nothing to the force and effect of the adjudication, but it is only intended to afford tjhe proof of it.” C. P. 695.

“ The sheriff shall, within ten days at farthest from the adjudication, deliver or direct to the clerk of court which issued the writ of fieri facias the original of the act of sale which he has passed to the purchaser for the object sold to him,” &c. C. P. 647.

“ The sheriff * * shall deliver or direct to the clerk of the court the original of the writ on which he shall endorse a return signed by himself, of the manner in which he has executed it,” and within seventy days after its issuance. C. P. 700.

“ In his return the sheriff shall specify the object seized and sold, and shall declare whether the sale was made for ready money, or on credit, who was the purchaser, at what price, and on wdiat conditions.” C. P. 703.

Prom these consecutive provisions of the Code of Practice, which are directory in their character, it appears that, while it is expected that the recitals of the act of sale and the return of the sheriff will be consistent, the latter do not control the former, for the plain reason that the supposition is that the return will follow the act of sale in terms, as it must in date, therefore, the deed must control the return. As a matter of fact the deed of sale was executed by the sheriff on the 5th of January, 1867, and his return was not filed in the clerk’s office until the 25th of that month. The averment of plaintiff’s petition — and it is in keeping with other evidence on the subject — is, that the purchasers' took possession of the property on the 5th of January, 1867, and, therefore, twenty daysj)rior to the filing of the return. If the recitals of the return to which the purchasers were not parties, or privies, are held to control the recitals of the deed of sale, we would have the anomalous condition of affairs presented, of a party holding, as owner, immovable property, under a judicial title, perfect in form, reciting full compliance with all the terms and conditions of an advertised sale, unceremoniously turned out by the sheriffs own fiat, and of his own free will.

Surely this is not the law !

But we are not left in doubt on this subject, for the terms of the Civil Code in treating “ of sales by auction,” are, that the adjudication is the completion of the sale; the purchaser becomes the owner of the article adjudged, and the contract is, from that time, subjected to the same rules which govern the ordinary contract of sale.” R. C. C. 2608.

This article, and the corresponding article of the Code of Practice, have been the subjects of frequent judicial discussion, and quite a contrarity of opinion has been expressed as to tire particular time at which a judicial, indefeasible title passes to a purchaser; and plaintiff’s counsel cites the abjected expression in the return, as proof of the non-payment of the price, and of the incompleteness of the adjudication, under C. P. 689.

But this argument was met and answered in Commissioners of the Bank of Orleans vs. Hodge, 8 Rob. 450, in unmistakable terms of which the following are pertinent:'

“The evidence establishes, that the property on which the appellees’ execution was levied, had been adjudicated to Andrew Hodge, Jr. * * for the sum of $7000 cash, which, if paid to the amount due, was to be received by the Union Bank in satisfaction of the execution issued at their suit against Commagere.
“ Such adjudication, under article 690 of the Code of Practice, thus .made has of itself alone, the effect of transferring to the purchaser all the rights and claims which the party in whose hands the property was seized, might have had to the thing adjudged; and, under Art. 2586 of the Civil Code, — (2608 of Revised Code) — is the completion of the sale; and the purchaser becomes the owner of the thing adjudicated. Here, Andrew Hodge put himself in possession of the property purchased, immediately after the adjudication; had the property assessed in his name; and has paid the taxes thereon ever since. The writ was returned by the coroner, who, it is true, stated in his return that the purchaser had not complied with the conditions of the sale; but it appears that no other proceeding was had; and that, although the coroner might have exposed to sale anew the property seized, and have adjudged it to another person, as he was authorized to do by Art. 689 of the Code of Practice, . the property was delivered to the purchaser, who, by the effect of the adjudication, and although indebted to the bank in the amount of the purchase, became vested with the rights of ownership formerly belonging to the defendants in the execution. Thus the sale was complete.”

It would be' difficult to find a case more completely like the one at bar, than this.

It is true that Article 689 of the Code of Practice declares that “ if the person to whom the property has been adjudged, shall refuse to pay to the sheriff the price of the adjudication * * the sheriff shall expose to sale anew the thing sold, and adjudge it to another;” and it has been held to render the adjudication.incomplete.

In Washburn vs. Green, 13 Ann. 332, this article was construed with R. C. C. 2608 (2586), thus:

“ The purchaser at a judicial sale acquires such a vested right to the property by the adjudication, that it cannot be divested and taken from him, unless he refuses to comply with the terms of sale. It is in his power, by a compliance with the terms of sale, to become the owner bj indefeasable title. It cannot be taken from him. In this sense, the adjudication is the completion of the sale.”

There are many decisions to this effect: 14 La. 588; 5 La. 472; 15 La. 398; 2 Ann. 361; 14 Ann. 449. But from a careful perusal of them all, the underlying principle will be found to bo, that the purchaser must be first called upon to comply with the terms of the sale and pay the price, and must be shown to have refused so to do. In such case, his refusal, or declination, is treated as a mere passive violation of a contract, the enforcement of which must be preceded by a default, as a condition' precedent.

Upon a consideration of the authorities, our predecessors said, in Doll vs. Kathman, 23 Ann. 486:

“ The defendant, it is charged, has never paid any part of the price of the property, and it is not shown that he has. It is argued on the part of the plaintiffs, that never having paid for the property, he is not the owner of it. It is not shown, however, that the heirs, or any person authorized, have ever made any demand of payment, or that defendant has been put in deíaiilt, a condition precedent to the right of the plaintiff to recover.” The court then cited Washburn vs. Green, supra, as consistent with that theory.

But the question of the purchaser’s compliance is not one enpais. The sheriff promptly executed an act of sale, in precise conformity with the adjudication. This act affords proof of the adjudication, and it recites the payment of its price. This act must prevail against the return.

In Carroll vs. Schun, 34 Ann. 423, we had under consideration, and passed upon the comparative weight and value, of recitals contained in a sheriff’s deed and return, and held that those of the deed controlled the destination of-the title. That decision is consistent with those of our predecessors, and with the provisions of the Civil Code and Code of Practice.

Having reached the conclusion that the sheriff’s deed is unaffected by the recitals in his return, we must conclude that it has no manifest imperfections, and conveyed the title.

III.

Plaintiffs urge, as an objection to the completeness and sufficiency of the defendants’ title, the absence of all proof of the payment of the price of sale, or of any satisfactory adjustment of the price, with King, executor, or of a delivery of the sheriff’s deed to Walter A. Kinhead and Elizabeth McMath as purchasers.

They offered in evidence certain other judicial proceedings and records, for the purpose of showing certain judicial, and extra judicial declarations of said purchasers, antagonistic to their alleged acquisition of title. These were objected to' by defendants’ counsel, and their objections were sustained, but the documents were brought up with a bill of exceptions. The main objections to their being received in evidence were that they are res inter alios aeta and impertinent to the issue.

All of these questions falling under one general head, may be treated together.

(a.) As we have already ascertained, the simple failure of the purchaser to pay the price does not have the effect of divesting his rights under the adjudication, and hence the absence of proof of the payment of the price, could have no greater effect.

(l>.) Under the law the purchaser is not entitled to the possession and control of the sheriff’s deed. The law says “ the sheriff shall, within ten days at farthest from the adjudication, deliver to the clerk of the court * * the act of sale, etc.” C. P. 697

(e.) Neither judicial, nor extra-judicial declarations made by Walter A. Kinhead, or Mrs. Elizabeth McMath, could be received, in a petitory action, for the purpose of impeaching a judicial title. It does not matter to the plaintiff, as Wilson’s simple heir, that such title was not of record when she filed her suit. It has been disclosed and recorded since. Her only recourse is to a direct action.

Under the view of the case which we entertain, all of this evidence was properly rejected. On the whole we conclude that the defendants’ titles are good and valid, and that they are entitled to a final judgment in their favor, and the decree appealed from should be so amended.

It is, therefore, ordered and decreed that the judgment of the court a qua he so amended as to decree the defendants to he the owners of the property in dispute and that they be quieted in possession, and that plaintiffs be taxed with all costs.

Mr. Justice Fenner recuses himself on the ground of relationship to Warrantor Payne, and the Chief Justice being absent at the argument on the hearing of the merits, takes no part in the opinion.


source: Caselaw Access Project

author: McEnery, J.

license: Public Domain

text:
    No. 10,403.
    Planters’ Crescent Oil Company vs. Assessor, Parish of Jefferson, et als.
    In suits to reduce or annul assessments of shares of capital stock to the shareholder! in a corporation, it is unnecessary to join the shareholders in the suit. Sec. 28 of Act 98, of 1866, constitutes the corporation the agent of the shareholders for the purposes of assessment and the payment of the tax assessed.
    Evidence of the value of the shares when the shares have been withdrawn from market, may be ascertained from other sources; and when they have been exchanged for other securities, the value fixed upon them in the exchange is a proper basis for the assessment.
    APPEAL from tbe Twenty-sixth District Court, Parish'of Jefferson. Most, J.

      Bayne, Denegre & Bayne, for Plaintiffs and Appellants :
    When the cash value of the property belonging to a corporation exceeds the value of its shares, the shares cannot be assessed.
    In the absence of any fixed market value of shares of stock, the value of the shares must be fixed and determined by the cash value of its assets,«less debts due.
    Defendants’ brief has just been handed to us. They insist upon the exception of no cause of action.
    •It appears to us that the provisions of the revenue Act furnish a complete answer, and so thought the judge of the lower court.
    Section 26 of Act 85, of 1888, page 122, together with article 203 of the Constitution, gives to the tax-payer the right of action to test the correctness of the assessment, and section 27 of the same act makes the corporation and not the shareholder, the tax-payer.
    In every suit which has been before the courts, the corporation has been the plaintiff.

      Oumvingham & Lyons, for Defendants and Appellees:
    Suits to reduce or annul assessments of shares of capital stock to the stockholders in a corporation must be brought by such stockholders, and not by the corporation, which has no real and actual interest therein. Sec. 28, Act 98 of 1886, p. 144 ;-C. P. 15; 39 Ann. 105; 87 Ann. 803 ; 5 B. 253; 2 33T. S. 249-254; 4 S. 487.
    Such á suit by the corporation discloses no cause of action in its favor, and cannot be maintained by it, because a judgment therein could not be successfully set up as res judicata against a suit for the same object brought by an individual stockholder. C. C. 2286; 9M. 519; 5 Ann. 103; 30 Ann. 861; 1 H. 764, Eos. 13 and 14; 31. 483 ; 4 M. 464 ; 8 M. 155; 1 E.S.271; 6E.S.292; 5L.474; 17L.273; 7 K. 15 ; 1 Ann. 42; 4 Ann. 87 ; 7 E. S. 32 ; 3 Ann. 529; 10 Ann. 679.
    Evidence of value of the property assessed is not admissible on the trial, unless the declared object of the suit is for reduction of assessment.
    Assessments of property made by sworn officers in execution of their legal duties are not to be disturbed, unless it be clearly shown that they are excessive. The assessment and the methods used in fixing its value are presumed to be correct. 35 Ann. 627; 31 Ann. 826 ; 38 Ann. 760.
    The shares of capital stock, after deducting the pro rata value of property assessed to the corporation, are properly assessed to its stockholders. Sec. 28, Act 98 of 1886, p. 144.
    The value of the shares of the capital stock of a corporation can be ascertained from their market value, or in any other manner. 31 Ann. 475.
    "When the shares of stock of a corporation have been acquired and are held and withdrawn from the market by a combination or trust controlling a number of such corporations, their value is properly ascertained from the market value of the certificates for which they wore exchanged.
   The opinion of the Court was delivered by

McEnery, J.

The plaintiff instituted this suit to reduce the assessment upon the capital stock of the Planters Oil Company, domiciled in the Parish of Jefferson.

The plaintiff contends that the capital stock of tire company is $200,-000, represented by 2000 shares of $100 each, and the property of the company in the parishes of Orleans and Jefferson exceeds this amount, so that there is nothing left to pro rate among the shares of stock, unless they are worth considerably more than $100 per. share, Which the company contends is the correct valuation.

The defendant filed an exception to plaintiff’s petition of no cause of action, and bases the exception on the ground that the shareholders and not the corporation are the only parties in interest, and consequently are alone competent to maintain an action regarding the assessment. The exception was properly overruled. Sec. 28, of Act 98 of 1886, constitutes the corporation the agent of the shareholders for the purposes „of assessment and the payment of the tax. The president or other officer of the corporation is required by said act to furnish the assessor a complete list of those who are borne upon the books as shareholders, and all assessed taxes against them are paid by the corporation, which is entitled to collect the amount paid from the shareholders or their transferees. The corporation as the agent of the shareholders was directly interested in seeing that the distinct and independent interest of the shareholders was properly assessed. It was therefore necessary for them to bo made parties to the suit.

There was evidence offered and received over the objection of plaintiff to tlie transfer of the stock of the plaintiff company to the Ameri can Cottton Oil Trust. Tliis evidence was introduced to show the manner in which the assessor made the assessment of stock and its valuation. For this purpose it was not irrelevent and was properly admitted.

There was judgment for the defendent; from which the plaintiff has appealed.

At the time of the transfer to the Cotton Oil Trust the capital stock of the Planters-Crescent Oil Company was divided into 5000 shares of $100 each. This was transferred at the rate of four trust certificates for ~ne share of the stock of the plaintiff corporation. At the least valuation these certificates were worth at the time 22J, or $450,000.

The assessor says in'making the amount he took this as the basis of the value fixed by Mm. There were no shares of the plaintiff corporation in the market. They had been taken up and withdrawn from sale by the Oil Trust. The last quotation lie saw of said shares was 120.

The only mode of arriving at the value of the stock left to the assess- or was by ascertaining what the stock Sold for at private sale. The company can not complain of the valuation which it fixed for its stock in exchange for the Trust certificates.

After this transfer of stock the Planters-Crescent OR Company reduced its caiiital stock to $200,000, represented by 2000 shares at $100 each.

These shares the assessor valued at $225. Although the company reduced its stock and shares it does not appear that there was any curtailment of its business, or that there was less capital employed than before the reduction. There has been no decrease in the value of the shares. It is evident that the 2000 shares are equal in value to the 5000 shares transferred to the Cotton Oil Trust. By deducting the value of the property assessed to the corporation from the value of the shares assessed to the shareholders, he ascertained the value of the shares assessed to them, in accordance with section 28 of Act 98 of 1886.

There is no material variation in the amount of the assessment of the capital stock of the plaintiff company in the years 1887, 1888. There was no complaint made during those years. The present assessment for the year 1889 does not vary materially in amount from former assessments.

This assessment was before the Police Jury as a Board of Revenues. The evidence read on the trial of this case was placed before that body. The assessment was approved. The assessment of the value of the shares of the plaintiff corporation does not appear to be excessive and there is no satisfactory proof of error in tlie assessment. It ought not to be disturbed, except for cogent reasons. 35 Ann. 627; 31 Ann. 826; 38 Ann. 760.

Judgment affirmed.


text:
    No. 10,424.
    The State ex rel. Lydia Duhé vs. the Judge of the Twenty-sixth Judicial District, Rost, J.
    An application for a peremptory writ of mandamus will be denied when its object is to compel a district judge to fix tlie amount of an appeal bond for a suspensive appeal, when no bond was offered within the delays for a suspensive appeal.
    y^PPLIC A.TION for Mandamus.

      Charles Louque, for the Relator.
   The opinion of the Court was delivered by

McEnery, J.

The relator, administrator of the succession of G-uillaunre Duhé, represents that in the matter of said succession the district judge rendered a judgment sustaining the opposition to the account filed by her and dismissed the account because it was not restated as directed by this court in the case of this succession reported in 41 Ann. 209. That she applied for a suspensive appeal from said judgment which was granted, and the bond fixed at $1500 which is excessive, a bond covering costs being sufficient. The respondent judge while giving no reasons for fixing the bond in said amount, assigns as one of the reasons why a mandamus cannot issue directing him to reduce the amount of the bond, that the application for the mandamus proceeding was not made within tho delay allowed for taking a suspensive appeal.

The order for the appeal was granted on the 21st June the last day of the term, and this application for a mandamus was filed on the 17th July. No appeal bond in any amount has been tendered within the delay.

If the mandamus should issue as prayed for, the execution of the bond could not be made within the delay for taking the appeal, and, therefore, could not operate as a suspensive appeal.

It would, therefore, he doing a vain thing to order the district judge to fix the appeal bond in the amount prayed for by relator.

Wo make no reference to the right of relator to a devolutive appeal.

It is, therefore, ordered that the writ of mandamus prayed for by re-. lator he denied and the rule granted he discharged at relator’s cost.


author: Fenner, J.

text:
    No. 10,255.
    City of New Orleans vs. S. Scalzo.
    1. A motion to dismiss an appeal for want of jurisdiction may bo filed at any time. The Court will notice such defect whenever and however it is brought to its notice, and even ex propHo motu.

    2. "When the claim of jurisdiction is based on a demand for damages manifestly fictitious and made merely to entrap the jurisdiction of this Court, 1ho appeal -will be dismissed.
    APPEAL from the Civil District Court for the Parish of Orleans. BujMor, J.

      Oar letón Hunt, City Attorney; Thos. MeO. Hyman, and Franh H. Butler, for Plaintiff and Appellant.

      W. 8. Benecliet for Defendant and Appellee.
   On Motion to Dismiss.

The opinion of the Court was delivered by

Fenner, J.

The objection that the motion to dismiss was filed after the lapse of the three days allowed by law and is, therefore, too late, lias no force. The motion is based on our want of jurisdiction and we take cognizance of such defect whenever it is called to our attention and even exproprio motu.

The city, alleging that defendant is violating the provisions of Act 100 of the General Assembly of 1878 and of its own ordinances passed in pursuance thereof, by keeping a private market within the prohibited distance of a public market, prays for a writ of injunction and a judgment against him for $2500 damages.

The grounds of this claim for damages are that defendant’s conduct endangers the authority of the city, tends to excite opposition to the laws, impedes the exercise of its police and sanitary powers and renders the public markets less productive.”

The laws referred to provide a specific and sufficient remedy for their violation by arrest, fine and imprisonment of offenders. We will abstain from expressing our opinion on the pretension of the city, that she may substitute for these summary remedies, or add to them, the civil remedy of injunction, because that would be trenching on the merits.

But the claim for damages is manifestly fictitious. If the defendant lias persistently violated the ordinances, it is because tbe city lias not cliosen to prevent and arrest such violation by the exercise of the powers vested in her by the laws and made effective by her ordinances. Vo 'enti non fit injuria.

Satisfied that the claim for damages is fictitious and set up only to entrap the jurisdiction of this Court, we follow a long line of precedents in dismissing the appeal. Hall vs. Curtis, 39 Ann. 504; Bright vs. Thompson, 38 Ann. 801; March vs. McNeely, 36 Ann. 287; Columbia vs. Firemen, 37 Ann. 541; Wilkins vs. Gault, 32 Ann. 929; Pritchard vs. Parker, 21 Ann. 745; Hazenberger vs. Wild, 9 Ann. 3; Copley vs. Ross, 1 Ann. 310.

It is, therefore, ordered that the appeal herein be dismissed.'


author: Watkins, J.

text:
    No. 10,261.
    City of New Orleans vs. Firemen’s Insurance Company.
    1. Tlie power conferred by tlie Legislature on the City of New Orleans in one act to impose a license tax, united to the power conferred in another, to enforce the collection of “ any and all taxes ” due to any political corporation, carry with them, necessarily, the power to impose just such a penalty as may be imposed by State laws. And it further authorizes the City Council to adopt the State license law as its own.
    2. The intention of the framers of tlie constitutional Article 218, conferring.on municipalities the same power, in connection with matters of taxation, as is conferred upon the State was to bring about harmonious and uniform action therein.
    3. The grant oí full power to tax, carries with it authority to use all means to accomplish tlie object; and the imposition of penalties, after due notification of the non-payment of taxes, is a legitimate means of collecting revenue.
    4. Article 46 of the Constitution prohibiting the General Assembly from passing any local or special law fixing the rate of interest, exclusively applies to contracts between individuals . Taxes are not debts.
    5. Different provisions of the Constitution must be construed together and harmonized. The limitations contained in Article 46, cannot be considered as, in any way, intorferring with the Legislatures’ unlimited control over the chartered rights and powers of the City of New Orleans.
    APPEAL from the Civil District Court for the Parish of Orleans. JRightor, J.

      W. B. Sommerville, Assistant City Attorney, for Plaintiff and Appellee.

      Brauglm, Bucle, Hmlcélsjpiél & Hart, for Defendant and Appellant.
   The opinion of the Court was delivered by

Watkins, J.

This is a proceeding by rule against the defendant for the recovery of the amount of its city licenses of $550, for the year 1887, with two per cent, per month interest, from the first of March, 1887 ,• and a like sum for the year 1888, with like interest from the first of March, 1888.

The answer of the defendant is substantially embodied in one phrase, viz. :

That the imposition of any greater interest by way of penalty, or otherwise, by the City of New Orleans (than five per cent.) is illegal and in violation of Article 46 of the Constitution.” It does not contest the capital.

There was a judgment in favor of the plaintiff for the sum of “ $1100 for licenses, for the years 1887 and 1888, with two per cent, per month interest, from the first of March, 1888.”

In her answer to the appeal the city asks an increase of the judgment so as to give interest on the amount of the license of 1887 from the first of March, 1887, as claimed.

It is admitted that the license ordinances of the city for 1887 and 1888, were copies of the State license law of 1886, it being Act 101 of that year.

Section 20 of that act is relied upon by the city treasurer for the collection of two per cent, per month interest. It is in these words, viz.:

That all unpaid licenses shall bear interest at the rate of two per cent, per month, from the first day of March, etc.” But the contention of defendant’s counsel is, that a municipal corporation can impose no penalties unless by positive legislative permission or grant;” and, they insist, that such permission has not been given the plaintiff in this instance, and, hence, the municipal ordinance in question is null. On the other hand, the contention of plaintiff’s counsel is, that the corporation was given the power by the legislative Act No. 119 of 1882, and if that is not true, ample power was conferred by the terms of the city charter, viz.: Section 63 of Act 20 of 1882.

We regard Act 119 of 1882 as an enabling act, for the political corporations of the State,” and that its sole object was to empower such corporations to “ enforce the collections of any and all taxes due to them, within such time, and in the manner provided by existing State laws.’ It is, purely and simply, a remedial law, pertaining to the collection of taxes, and does not purport to confer upon said corporations any legislative authority whatever.

Section 63 of Act 20 of 1882, confers upon the City Council the power to impose an annual license tax on trades, professions and callings,” but it makes no mention of either penalty or interest.

But whilst it is perfectly true that there is no special mention made ofcither penalty or interest, we incline to the opinion that the power conferred in one act to impose a license tax, united to the power conferred in the other to enforce the collection of “ any and all taxes ” duo to any political corporation, carry with them, necessarily, the power to impose just such a penalty as may be imposed by State laws. And it further authorizes the City Council to adopt the State license law as its own.

We entertain no doubt of the fact that such was the intention of the framers of the constitutional Article 218, which confers upon municipalities the same power — under the sanction of the Legislature, of course— in connection with matters of taxation, as is conferred upon the State. Such was, doubtless, the object had in view by the Legislature in passing Act 119 of 1882, cited supra.

This view is well borne out in the opinion of the court in Slack, administrator, vs. Roy, 26 Ann. 674, in which this language is employed, viz.:

“ The grant of full power to tax carries with it authority to use all means to accomplish the object; and the imposition of penalties, 'after due notification of the non-payment of taxes, is a legitimate means of collecting revenue.”

The contention of defendant’s counsel, that Article 46 of the Constitution prohibiting the General Assembly from passing “any local or special law * * fixing the rate of interest,” is tantamount to a prohibition against such a rate of interest as is contained in the license law and ordinance under consideration, when aj>plied, or sought to be applied to the corporation of New Orleans, is untenable. We regard it as clearly and exclusively applicable to contracts between individuals, and especially those appertaining to matters of indebtedness; and it has been frequently decided that taxes are not debts. Reed vs. His Creditors, 39 Ann. 121.

But different provisions of the Constitution must be construed together and harmonized; and, in so doing, we find, in the same article above cited, a provision excepting the City of New Orleans from the operation and effect of the limitations thereby imposed, and explicitly conferring upon the General Assembly full authority to deal with her chartered rights and powers at will.

The judgment is correct in all respects, except with regard to the interest on the amount of the 1887 license. This should be changed so changed that it should be computed from the first of March, 1888, the date of defendant’s default.

It is,-therefore, ordered that the judgment appealed from be so amended that the two per cent xmr month interest on the sum of five hundred and fifty dollars due by the defendant, for license of 1887, shall he computed from the first of March, 1887; and as thus amended the same be affirmed.


author: Poché, J.

text:
    No. 10,259.
    John Bennett or Benit vs. Louis Cignoni.
    In a controversy involving tlio legitimacy of a party, tlie presumption arising in favor of such legitimacy out of the general repute of the party as the son of one whose estate he claims as his legitimate issue, may be rehutted hy testimony negativing tlio fact of his legitimacy. In such a case the judgment should be one of non-suit, and not a final judgment rejecting the demand.
    APPEAL from the Civil District. Court for the Parish of Orleans. Hightor, J.

      JJraneh 1Í. Miller for Plaintiff and Apxiellee:
    1. Until it be shown that there is written evidence of a party’s parentage, it may he proved hy parol. 18 L. 594; 13 L. 109; 8 It. sec. 279; 20 Ann. 97.
    2. Legitimacy is presumed. Proof that a party has always been called hy the surname of one from whom he claims to he horn, who has provided for maintainanco and settlement of the party so claiming, who lias been acknowledged hy the -world, and tlio family of the person he claims as parent, makes full proof of legitimate filiation in the presence of a recital in six wills of the father, made at intervals, same very long, impugning the legitimacy of his offspring. 2 Wharton on Evidence, see. 1298.
    3. Declarations attacking the legitimacy of a member of a family should be scrutinized closely as to their credibility, 1 Wharton on Evidence, sec, 213.
    4. 27o declaration of a parent can affect a child bom in marriage. 7 17. S. 553 ; 4 Ann. 347; 7 Ann. 242.

      W. B. j\Lu.r])hy and Frank I). Chretien for Defendant and Appellant:

      Prima facie proof of legitimate filiation, under Art. 195 of the Civil Code of 1870, is established hy showing uniform and general repute. Bishop, Marriage and Divorce, Vol. 1, sec. 438.
    The presumption arising from facts which tend to establish tlio status of marriage is not conclusive, but subject to he rebutted hy testimony negativing the fact of marriage. 15 Ann. 46.
    The declarations of the deceased in his last wills and testaments that lie had never been married to the mother of plaintiff and that plaintiff was his natural son, destroy all presumption that may arise from testimony of his verbal declarations, such as calling tlie plaintiff “my hoy,” “my son.” 35 Ann. 630; 15 Ann. 46, 410; 20 Ann. 97; 15 Ann. 410;' 32 Ann. 1264; 3 Ann. 1388 ; 6 L. 470.
    This Court takes judicial cognizance of the universal custom in all the catholic churches in tlie world, that a register of Baptism is kept with great care, and that extracts from such register, duty attested, are legal evidence in the courts of Louisiana. A failure, in plaintiff, to procure a copy of such register, will he taken as proof against him. 40 Ann. 81.
   The opinion of the Court was delivered by

Poché, J.

Plaintiff, who claims to be the sole, legitimate surviving issue of Charles Bennitt or Benit, brings this suit to reduce to the disposable portion, the last will of the deceased who therein made the defendant his universal legatee.

The defense is substantially a denial that plaintiff is the legitimate son of the deceased, and this appeal is taken from a judgment which rejected plaintiff’s demand.

I-lis case is, in the main, made up of testimony showing that he was for many years recognized as his son by the deceased.

His own testimony is to the effect that he was born in Mexico of the lawful marriage between Charles Bennett or Benit, and his mother, whose family name was Morales, but whose given name is unknown to him; that he lost his mother when he was yet an infant, and that, at the age of three years he came to this country and to this city, in company with, and under the charge and custody of Charles Bennitt, who took care of him, raised him and generally and continuously treated him as his legitimate son.

That testimony is, in the main, corroborated by that of several other witnesses, from all of which it appears that for many years plaintiff had the general reputation of being the son and legitimate issue of Charles Bennett.

But, apart of the declarations which he testifies to have been made to him by Charles Bennett, to the effect that the latter had been lawfully married to plaintiff’s mother in Mexico, the record is absolutely barren of any evidence in support of the existence of such a marriage, or of any extract from the register of births or baptisms kept agreeably to law or to the usages of Mexico, in which the churches keep a register of baptisms, of which fact the court must take judicial cognizance. While the testimony of all the witnesses in the case does show that, at all times, the deceased had always treated plaintiff as his son, no one besides plaintiff himself has testified that he had ever recognized the latter as his legitimate son.

And, on the other hand, it is in proof, that Charles Bennett had frequently stated, at times not suspicious, that plaintiff was only his natural son, and that he frequently, when angry, called him a bastard.

It also appears that the deceased had made six successive wills, in every one of which, he made the solemn declaration that he had no legitimate descendants. In one of these wills, by which he made a legacy in favor of plaintiff, he described him as his natural son; and in another will in which he likewise provided for him, he described him simply as John Bennett of this city.”

That array of facts and circumstances are, and must be held, as amply sufficient to effectively rebut the presumption of plaintiff’s legitimacy arising from the facts proved in the record touching his general reputation as the son of Charles Bennett; and this leaves his case stripped of all evidence in support of the alleged lawful marriage between his mother and Charles Bennett.

An unbroken line of decisions of this court, predicated on the textual provisions of our Code, and on the spirit of our laws on the sacred character of marriage, can be invoked as authority for the legal doctrine involved in that proposition. Homes vs. Homes, 6 La. 470; Phibrick vs. Spangler, 15 Ann. 46; McConnell vs. New Orleans, 15 Ann. 410; Succession of Heebee, 20 Ann. 97; Blasini vs. Blasini, 30 Ann. 1388; Benairs vs. Barba, 32 Ann. 1264; Powers vs. Charmbury’s executor, 35 Ann. 630.

We, therefore, conclude that plaintiff has failed to make out his case.

But the negative testimony contained in the record on the question of his legitimacy is not conclusive against the possible existence of the lawful marriage which he alleges to have been contracted by his mother with Charles Bennett; hence his demand should not be absolutely or finally rejected; and in that feature, the judgment rendered below is,in our opinion, erroneous. His present failure to have introduced evidence, which was and is yet within his reach, in support of the marriage which underlies his right of recovery, if it ever existed, cannot debar him of future efforts in that direction.

That right must be secured to him by the judgment to be rendered in this case. Succession of Hubee, 20 Ann. 97; Succession of Kate Townsend, 40 Ann. 81.

It is, therefore, ordered that the judgment appealed from be amended so as to make it a judgment of non-suit, and that as thus amended said judgment be affirmed, costs of appeal to be taxed to the defendant and appellee.


text:
      No. 10,170.
    F. R. Loeber et al. vs. The New Orleans and Carrollton Railroad Company.
    In proper cases and under appropriate averments, citizens and taxpayers may sue in tlie enforcement, or restraint of municipal action, but they cannot sue in affirmance of its contracts which containno stipulation pour aut/nd,

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

      Henry L. Lamms and Charles Louqne for Plaintiffs and Appellants.

      John M. Bonner for Defendant and Appellee.

      Tliis case was decided in the month of May, 1888.

   The opinion of the court was delivered by

Watkins, J.

The petitioners, Frederick E. Loeber, Henry Beer and Henry Abraham, residents and taxpayers of the city of New Orleans, represent that the defendant company consented a contract with the city, on the 7th of August, 1882, wherein “the following- stipulation, agreement and contract was entered into, for and in consideration of the franchise granted in said act by said city,” etc., viz:

“ It is to be well understood that the purchasers of this franchise bind themselves to pave Jackson street between their rails and tracks, from St. Charles Avenue to Water street; and Baronne street between their rails and tracks, from Canal street to Delord street, with any improved pavement which shall hereafter be agreed upon' by the property holders and the City Council.”

That they are large owners of property fronting on Baronne and Jackson streets within the limits designated therein.

That, upon proper application, and after due observance of all legal requirements and formalities, on the part of the property holders, and the city, it was determined, agreed and contracted to pave said Baronne and Jackson streets with improved Barber asphalt pavement.”

That the defendant refuses to comply with its contract, and the city neglects and refuses to enforce it.

That, if it were not for the quoted clause in the contract, they, and other front proprietors, might be called upon to pay large sums of money for the paving of the said streets; and therefore, they as citizens, and taxpayers, beneficiaries thereunder, “ are obliged to bring tills suit” to compel performance.

The defendant filed several exceptions, and amongst them was that of no cause of action. These were sustained, and the suit dismissed, and the plaintiffs have appealed.

The question is whether the petition discloses a right, or a cause of action.

Upon the declination, or refusal of the city to institute suit against the defendant on their contract, have the citizens and taxpayers, on such averments as plaintiffs petition contain, the right to sue in their own name, and upon their own account, and that of the inhabitants of the city?

We are of opinion that they have not.

This is a contract with reference to the paving of certain streets of the city; and it is elementary that this is a matter exclusively within municipal control, and administration. 1 Dillon’s Munic. Corp. Sec. 66, (Second edition.)

In State ex rel City vs. New Orleans and Carrollton Railroad Company, 37 Ann. 589, we held this to be “ a formal contract of sale,” and in case the company should neglect or refuse to comply with any of its specifications, the city could have the violation rectified. But if the city fails to do so, the citizen is without right to compel performance by suit, as plaintiffs have attempted to do in this instance.

•Undoubtedly the stipulation of the contract sought to be enforced was consented in the interest, and for the benefit of the inhabitants of the city, but it does not follow that, if the corporation fails to enforce it, the taxpayer may.

There is no averment in the petition that this contract contains any . stipulation pour autrm in favor of the plaintiffs. 1 Hen. Dig. p. 1030, passim.

This question does not come within the principle of the case of Handy vs. New Orleans, 39 Ann. 107, in which we held “ that taxpayers have a standing in court, upon proper charges, to contest the validity ot a municipal ordinance, and contract under it, whenever its enforcement may increase the burden of taxation.”

Further, that they have a cause of action to assert that a municipal corporation has, in excess of its powers, * passed an ordinance,” etc.

In proper eases, and under ai>proi:>riate averments, the citizen and taxpayer may sue to enforce, or restrain municipal action, but he cannot sue in affirmance of its contracts, which contain no stiimlations pour autrui.

Judgment affirmed.


text:
      No 10,080.
    Weick et al. vs. Henne et al.—Weick, Intervenor.
    X. One of tlie formalities required, by tlie Civil Code in the confection of a testament nuncupative in form, and received by public act, is that the act must be received by a notary in the presence of three witnesses residing in the place when the will is executed; that, is to say, in the parish where the instrument is made.
    2. This formality must be observed ; otherwise the testament is null and void.
    3. Such testaments are full proof of themselves. They must bear upon their faces the evidence that all the formalities required by law have been complied with. An omission of any formality cannot be supplied by evidence dehors the testament. Succession of Volmer, 40 Ann. —; 4 South. Hep. 254.

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

      A. J. Murphy, for Appellant.

      J¡. J. Miller and Ji. J. Wend, for Appellees.

      Tilia case was decided in tlie month ol‘ December, 1888.

   Tlie opinion of tlie Court was delivered by

Watkins, J.

Certain of the collateral heirs of Francis P. Burger, deceased, seek the annulment of Ms last will, in which the defendants are named as legatees. The plaintiffs are two nephews, Jacob F. and William F. Weick, and the defendants are Mrs-. Henne, Mrs. Lemon and Magdalena Bisterer, widow of the deceased. The intervenor, Widow Delia Weick, is tlie natural tutrix for her five minor children, issue of her marriage with Francis Weick, deceased, another nephew of the testator. Since this appeal was taken, and appellate jurisdiction has attached, one of the plaintiffs and appellees, Jacob F. Weick, has departed this life, and his widow, Theresa Kranz, has been appointed and confirmed natural tutrix of her five minor children, issue of her marriage with the last-named deceased, and byan order of this court she has been substituted in his place and stead. ’ Magdalena Bisterer, in her answer, admits the will’s nullity, but the other two aver its validity. There was judgment in favor of Jacob P. Weick, William P. Weick and Magdalena Bisterer, annulling the will, and declaring the plaintiffs to be the legal heirs of Frank P. Burger, deceased, and as such entitled to be placed in possession of said succession, — one-third to each. There was no deposition whatever made of the demands of the intervenor. This resulted in a dual appeal, — one brought up by tlie defendants Mrs. Ileune and Mrs. Lemon, and. another by the intervenor.

The will is nuncupative in form, and was received by a public act. There are several grounds of nullity assigned, of only one of which we deem it necessary to take notice; and that one is that there is no express mention made in the act of the residence of the witnesses being “in the place ” where it was executed, it being therein stated only that the witnesses were “ competent,” and “ residing in the neighborhood of said Burger,” the testator. One of the formalities required by the Code in the confection of a testament in the nuncupative form by authentic act is that it “must be received by a notary public in the presence of three witnessess residing in the place when the will is executed.” Rev. Civil Code, Art. 1578. It declares that “ by the residence of the witnesses in the place where the testament is executed is understood their residence in the parish where that testament is made; that residence is necessary only when it is expressly required by law.” Id. Art. 1594. It further declares that “ the formalities to which testaments are subject by the provisions of the present section must be observed; otherwise the testaments are null and void.” Id. Art. 1595. Hence such a recital as the one contained in the testament under consideration is wholly insufficient. It should have contained a statement that the witnesses resided “ in the place where the will was executed.” Such a recital in a nuncupative testament in authentic form is essential and sacramental.

In Succession of Volmer, 40 Ann. —, 4 South Rep. 254, we held a will wanting this essential requisite to be a nullity, using the following language, viz.: the charge against it [the will] is that it was not set forth that the three witnesses arc residents of the parish of Orleans, but that they are competent witnesses. The omission is fatal. The notary is required by law, under pain of nullity of the act, to express specifically every material fact constituting the competency of himself, and of the officiating witnesses, under the law, in that respect, and also every formality observed in the execution of the will.” The objection urged against the will of Burger is even more serioxis. It recites that the witnesses reside “in the neighborhood ” of the testator, and not-“in the place where the act was executed.” It matters not at what place the testator may reside, but the witnesses must reside in the same parish or “place” as the notary executing the testament. The omission of the notary to make this statement is fatal to the validity of the will of Burger.

Our attention has been attracted to certain bills of exceptions that were retained by defendants’ counsel to the ruling of the judge a quo in rejecting proffered evidence of the residence of the witnesses in the parish of Orleans when the will was executed. We are of the opinion that the ruling was correct, and is sustained by ample authority. The Code declares that “nuncupative testaments received by public act * * are full proof of themselves.” Rev. Civil Code, Art. 1647. To be solid, they must bear upon their faces the evidence that all the formalities required by law for their validity have been complied with. When all the legal requirements do not appear from the will itself, it must be declared null, for the reason that the omission cannot be supplied by evidence dehors the testament. Swift vs. Swift, 9 Ann. 117; Falkner vs. Friend, 1 Rob. 48. In Succession of Volmer, above cited, we said on this subject: The act must make full proof on its face of every element necessary to its validity, as no evidence is admissible to supply any deficiency.” The evidence was properly rejected.

On the whole, our conclusion is that the judgment appealed from correctly annulled the will of Burger, for the reason that the notary who executed it failed to state that the attesting witnesses were residents of the parish of Orleans, the place where same was executed. But we are of the opinion that it is erroneous in two particulars, viz.: (1) In failing to disclose, in any manner, of the demands of the intervenor. (2) In declaring the two plaintiffs to be exclusive heirs of'tlie testator, Burger. The plaintiffs’ petition admits that the minor children of their deceased brother Francis Weick ” are legal heirs, with themselves, of the testator, and entitled to one-tliird of Ms estate. Such is the claim set up by their mother as tutrix. Indeed, the judgment itself, while declaring the plaintiffs (of whom there are but two) to be the heirs of Burger, and as such entitled to be put in possession of his succession, yet states their proportion thereof to bo one-third only. This is clearly a non seqiiiter, and obviously incorrect, unless the conclusion drawn therefrom by the intervenor’s counsel, that the judgment was also in favor of the defendant Magdalena Bisterer, be correct. This deduction is drawn from the language of the judgment, it being in favor of Jacob Weick, William Weick and Magdalena Bisterer. The only legitimate inference to bo drawn from the decree, as written, is that, because Magdalena Bisterer has prayed in her answer for the annullment of the will, its nullity was inadvertently decreed in her favor, but it cannot be fairly construed as entitling her to a portion of the estate of her husband.

Under the circumstances, the judgment should bo revised and amended so as to recognize the rights of the minors of Francis Weick, represented by their tutrix as intervenor, as heirs of Francis V. Burger, and entitled to one-tliird of his succession. It is therefore ordered and decreed that tlie judgment appealed from be amended by decreeing that William F. Weick, the minor heirs of Jacob F. Weick, deceased, and the minor heirs of Francis Weick, deceased, are the sole, exclusive, and equal heirs of Francis P. Burger, deceased; ?. c., one-third to William F. Weick, and one-third to the minors of each of his deceased brothers, Jacob and Francis Weick, and placed in possession of his succession ; and, as thus amended, same be affirmed at appellees’ cost,

Rehearing refused.


text:
      No. 10,037.
    Morgan’s Louisiana and Texas Railroad and Steamship Company vs. Board of Reviewers, Parish of Iberia.
    1. The actual casli value of property is the constitutional basis of its taxation.
    2. The actual cash value of real or personal property is the price it would sell for cash; in the ordinary course of business, free from all incumbrances, otherwise than at forced sale.
    3. Neither the price of investment in, nor the net revenue, nor profit earned by a railroad is a fixed criterion of value in assessment matters.
    4. The market value of the stocks or bonds, is one of the truest criteria of the value of a road ; yet it does not hold when the corporation becomes insolvent.
    5. There exists no rigid rule for the valuation of property, which is affected by a multitude of circumstances which no rule can forsee, or provide for. The 'assessor must consider all the-io circumstances, and elements of value, and must exercise a prudent discretion in reaching a conclusion.
    This maxim applies with equal force to the board of reviewers.
    APPEAL from tlie Twenty-firs-1 District Court, Parish, of Tberia. Moutov, J.

      I). Gaffery and Leovy c6 .Blair for Plaintiff and Appellee.

      T. J). Foster and 8. Ferry for Defendant and Appellant.

      This case was decided In the month of May. 1887.

   Tiie opinion of the Court was delivered by

Watkins, J.

The plaintiff company contests the correctness of the valuation of $10,000 per mile, placed by the defendant board on its property — embracing road-bed, rails, cross-ties and switches' — -and consisting of sixteen miles of main track, and nine miles of branch track, extending from the main track to the Avery salt works. It likewise contests, as a double and excessive valuation, that made on the portion of tlie main track and siding which traverses the corporate limits of the cities of New Iberia and Jeanerette — contending that these segments are embraced in the valuation of the main track.

The total valuation fixed by the defendant board is $253,400, while that fixed in the decree of the judge a quo is $152,720.

Counsel for the board says in his brief: “ the judgment constitutes this amount the basis of assessment, subject to the two-thirds rule adopted by the board. The application of that rule makes the judgment valuation $101,813 33-&. From this the board has appealed.”

The contention of the appellant is that its valuation is correct; while that of the appellee is that the valuation should be reduced to the sum of $957,293 75, as prayed for in its answer to the defendant’s appeal.

The appellant further contends that it was necessary that a separate valuation and assessment should be made of that part of xfiaintiff’s property that 'is situated within the corporate limits of New Iberia and Jeanerette, in order that there might be fixed a basis for city taxation, therein; and this one mile of main track and siding, and other property therein, were not included in the valuation of the main track of sixteen miles in length.'

In this view the judge a quo seems to have concurred, excex>t with regard to the road-bed.

The following is the valuation made by the board, viz :

PROPERTY IN PARISH OUTSIDE THE INCORPORATED TOWNS.

16 miles main track at $10,000............................$160,000 00

9 miles Salt Mine track at $6,000......................... 54,000 00

1 station house at Olivier................................. 50 00

1 section house in seventh ward........................... 500 00

1 section house and depot in fifth ward.................... 750 00

Total............................... $215,300 00

PROPERTY WITHIN INCORPORATED TOWNS.

NEW IBERIA.

1 mile main track........................................$ 10,000 00

1 mile side track and switches............................ 6,000 00

1 lot and depot........................................... 2,500 00

1 lot bounded N. by Saintes, S. by railroad, E. by railroad, W. by Main street..’................................. 500 00

I lot bounded N. by railroad, S. by Weeks, E. by Fulton street, W. by Main street........■..................... 300 00

1 boiler and pump on bayou.............................. 300 00

Total............................................. $19,600 00

JEANERRTTE.

1 mile mail) track........................................$ 10,000 00

1 mile side track and switches............................ 6,000 00

1 lot and depot.......................................... 2,000 00

1 section house.......................................... 500 00

Total......................................i......$ 18,500 00

Milking the aggregate...................................$253,400 00

To which the judgment of the court reduced it as follows, viz:

16 miles main line at $6170...............................$ 98,720 00

9 miles branch line at $4500 .............................. 40,500 00

2-} miles switches at $2500 ................................ 5,000 00

Lot and buildings at Now Iberia.......................... 2,200 00

Other appurtenances......................................1,000 00

Lot and buildings at Jeanerette........................... 2,200 00

Other appurtenances..................................... 1,000 00

Three section houses at $200.............................. 600 00

Balance other improvements and paraphernalia............ 1,500 00

Total valuation...................................$152,720 00

The assessment under consideration was made under and in pursuance of the provisions of Act 107 of 1884, and for the year 1886. The plaintiff company is an incorporated institution, established under the laws of this State, and has its domicile here; and the law under which the complained of assessment was ¡nade, makes special provision for the assessment of railroad property and the supervision thereof by a board of reviewers.

Tlie amount of the tax demanded is $3,444 80 for the State and parish, exclusive of that due the cities of New Iberia, and Jeanorette.

I.

The principal controversy in this case is with regard to the mode in which the value of this class of property, for the purposes of assessment, is to be ascertained. The contention of the plaintiff’s counsel is that railroad property, like that of the Cotton Exchange in this city, is exceptional in character, and that an assessment of it should be predicated on the jprice of investment, less its depreciation in value since its construction, and not upon the rental value of the property, or its capacity for producing revenue, or income ; or of mailing returns upon the investment.

The defendant’s counsel, on the’other hand, argues that a variety of elements enter into the “ actual cash value ” of such property — such as prime cost of construction; capacity for earning dividends; terminal facilities; market value of shares of stock or bonds; capacity for transportation of freight and passengers; the length and number of its sidings; the character of the country that it traverses; indeed, everything that is calculated to make it profitable to those operating it, or valuable in the event of sale.

The “actual cash value” of property is the constitutional basis of its taxation. State ex rel. Johnson vs. Tax Collector, 39 Ann. 536.

Constitution Article 203, provides that all “property shall be taxed in proportion to its value, to be ascertained as directed by law; provided the assessment of all property shall never exceed the actual cash value thereof.”

Section 20 of Act 98 of 1886, provides that “ all real estate and personal property * shall be estimated by the assessors * * at its actual cash value, etc.”

Paragraph 6 of Section 93 of that act declares that the term “ actual cash value, or actual cash valuation shall be held to mean ajprice that any piece of real estate, or personal or movable property would sell for cash, in the ordinary course of business, free of all encumbrances, otherwise than by forced sale.

The assessor has the right to require any property holder to produce his books for his examination, in order that he may estimate the value of the property to be assessed.

He may also interrogate on oath the property owner, his agents and employees, in order “to elicit from them the actual cash value of the property.” 1 bid. Sec. 21.

In making an assessment of lands and lots, it is made the duty of the assessor to “take into consideration the enhanced valve of the same, arising from the buildings and improvements, such as barns, cribs, sugar mills, rice mills, gin houses, cabins and machinery.” Ibid. Sec. 10.

In Railroad Company vs. Sheriff, 38 Ann. 760, we had under consideration quite a similar controversy. The assessment of the Vicksburg, Shreveport and Pacific Railroad, then in contestation, included twenty miles of track, lands, depots and other property in the city of Shreveport; and the railroad bridge, that spanned Red river, which was included in the road-bed. The total assessment of the main track was $170,000, or $8,500 per mile — including the bridge, the construction of which cost $300,000.

The contention of the company there was that this valuation was far in excess of the true value of their property, which it fixed at $4,000 per mile.

In that case we expressed the opinion that this bridge liad increased the value of the whole length of .the road within that parish, and that the board of assessors properly considered it a factor in fixing the general value of the track.

We said: “It sometimes happens that a railroad is more valuable in one parish than another, or more valuable in one than another part of the same parish. A great many circumstances go to produce this irregularity of value. It may be better constructed, or more recently repaired, or traverse a more populous and productive country, or terminate in a thriving town, or have better stations, or terminal facilities at one point than at another. In fact, a great number of circumstances might be cited as giving a local value to a road greater at one point along its line than at others in the same parish. The taxing authorities in every parish must take these things into consideration, in fixing values, for the obvious reason that they are elements of value, and their duty under the law, is to assess this value in the parish.”

We are cited to our opinion in New Orleans Cotton Exchange vs. Board of Assessors, 37 Ann. 423, as confirmatory of plaintiff’s theory that the price of investment is the true criterion of value in assessment proceedings.

In that case the standard of value sought to be established was the rental, or income of the property assessed, multiplied by ten.

The court held that whatever might be said of this standard of value, in respect “ to the general class of ordinary property * * which is susceptible of bringing revenue, it cannot be applied to exceptional property, beyond its purport, which is not designed to yield a rental, or income * * In such cases, the correct rule would seem to be, to assess at the price invested, where the purchase, or improvement is of recent date, and it is not shown that the property has deterioated in value, etc.”

The plaintiff’s counsel presses the argument that a railroad is also exceptional property, and not built for barter and sale; that it is simply an investment, and the cost of construction is a fair standard of its value.

In our opinion, a railroad is not exceptional property. It is not localized, or used for the gratification and enjoyment of its projectors, like the Cotton Exchange. Railroads are constructed for the express purpose of being operated for a profit. They are frequently disposed of at public and'private sales. They are frequently mortgaged to secure bonds that are flooded in the money centres of the country. They are usually operated and controled by corporations and syndicates; and shares of their stock are daily bought and sold in market overt. These sales of stocks and bonds are recognized standards of value for such properties.

The evidence in this record shows that Mr. Huntingdon purchased 50,000 shares of Morgan stock at $150 00-per share — par value being $100 00 per share — a total expenditure of $7,500,000 for the whole.

It shows further that the net earnings of the plaintiff’s company, for the year in which the assessment was made, are admitted to have been $61,360; afid that there is plausibility in the contention of defendant’s counsel, that they were $361,360.

The character of the property, its uses and profits, as well as the vast sum invested, clearly demonstrates that it is not exceptional, in the sense that the Cotton Exchange is.

It is true that Judge Burroughs announces the rule to be “that the assessment being the value of the land, looking to all the circumstances of its surroundings, or what may be recognized as the cash marlcet value, the income -is not the proper criterion in aseertaininp its value.” Burroughs on Taxation, pp. 227, 228.

And another learned author says : “ A common method of raising revenue has been to levy annual taxes on the value of all real and personal property of the inhabitants, with limited exceptions, and irrespective of the income which * may be realized. This seems, at first view, to be just, and in the belief that it is just, it has been steadily adhered to, notwithstanding the many and serious difficulties attending it.” Cooley on Taxation, p. 26.

Yet the revenues or income of a railroad may be considered as a factor in ascertaining its value, though it cannot be accepted as a criterion.

It has been held that the value of the bonds and stocks of a railroad corporation are among the truest criteria of the value of the road itself.

In treating- of “the fair cash value” of the tangible property of a railroad corporation that was assessed under a statute of Illinois, quite similar to our own, the Supreme Court says: “ It may be assessed for all practical purposes — and it is, perhaps, absolutely true — that every railroad company in Illinois has a bonded indebtedness secured by one or more mortgages. The parties who deal in such bonds are generally keen, far-sighted men, and most careful in their investments. Hence the value which these securities hold in the market is one of the truest criteria, as far as it goes, of the value of the road, as a security for the payment of those bonds. * * , * * *

“ It is, therefore, obvious, that, when you have ascertained the current cash value of tlie whole of the funded debt; and the current cash value of the.entire number of shares, you have, by the action of those who, above all others, can best estimate it, ascertained the true value of the road, all its property, all its capital stock and its franchises.” 92 U. S. 604, State Railroad Tax Cases.

In that case the State Board of Equalization assessed the tangible property of an insolvent railroad corporation at $2,500,000, notwithstanding it was, at the lime, paying but little beyond its running expenses. The court say: “Concede for the present that the capital stock is sunk, and of no value; concede that the funded debt of the company has, at present, no value, or is unsaleable — there yet remains wh.at is valued as worth over $2,000,000 of real and personal property, which, like all other property of individuals, or corporations, ought to pay its proportion of the public burdens.” P. 606.

It thus appears that although the value of railroad securities in market is reckoned among the truest criteria of the value of the railroad, it does not hold good when the corporation becomes insolvent and its shares of stock are below par, and unsaleable. This illustration shows the variability of the standard of value of this class of property. Neither the cost of construction, nor its capacity for yielding returns upon the amount of investment, is a fixed criterion of valuation.

After having carefully re-examined the whole field of enquiry in this important matter, we can but reiterate with approval the language employed in the concurring opinion, in Cotton Exchange vs. Board of Assessors, viz.:

“ There exists in fact no rigid rule for the valuation of property, which is affected by a multitude of circumstances which no rule can foresee, or provide for. The assessor must consider all these circumstances and elements of value, and must exercise, a prudent discretion in reaching a conclusion.” 37 Ann. 428.

II.

We are, therefore, of the opinion that the district judge erred in fixing the valuation of plaintiff’s property on the basis of “ the cost of construction, including labor and material;” and in giving no material weight, or consideration to the evidence adduced in regard to the net revenues and earnings of the road.

We áre likewise of the opinion that he was in error in treating the railroad, extending from Lafayette to New Orleans, as one piece of property, every portion of which is, for the purpose of assessment, merged into one whole. No isolated, or particular portion of which can he accurately valued.

In Railroad Company vs. Sheriff we said: “ The assessors * has nothing to do with the valuation put upon railroads in other parishes, nor can he regulate his valuation by an average of the several valuations of the different parishes, or hy an approximation based upon the general value the road, as an entirety. 38 Ann. 761.

This can he done only hy a State hoard of canalization, which the Legislature has not seen proper to create. 39 Ann. 536, State ex rel. Johnson vs. Tax Collector.

Under our peculiar system, that portion or segment of a railroad situated within a particular parish is, quoad its assessment, segregated from the trunk, and valued as a whole. I’he exact provision of our revenue law on the subject is “that the real estate, road-beds, roads, iron, tracks, superstructures, excavations and channels of railroads, canals, etc., * shall be assessed and taxed in the parish where located} and all other properly * * belonging to said railroads shall he assessed and taxed at the domicile, or principal office, of said railroads.” See. 30, Act 98 of 1886; Act of 1884. Hence the incorrectness of the rule adopted hy the judge a quo.

III.

A vast amount of testimony was adduced in the court, below, in favor of the respective contentions of the parties. The plaintiff's counsel seems to have taken especial pains to show the want of evidence before the defendant hoard, to justify the conclusion they came to, and to overthrow the presumption of correctness that the law raises in behalf of their decision, and with partial success. While it may be trae, that they did not look into the •minutia■ as critically as a court of justice would; and did not possess themselves of all the information that was furnished the district judge — their• decision is entitled to full weight and due consideration.

■ The. plaintiffs’ calculation, based on the cost of construction, gives as the value of the main track, per mile, $6150, less 25 per centum for deterioration — net-$4862 50 per mile; and $4125 per mile for short line, less 25 per cent. — net $3095 75 per mile. The defendant’s calculation predicated upon net revenues, tested hy the cost of construction is placed at $7337 75 per mile. This, his counsel arrives at by taking into consideration the value of some sidings, and sawmill branches, he claims to have been omitted from Mr. Kruttschnitt’s calculations.

On tile theory that the purchase of Morgan stock evidenced an appreciation of fifty per cent, he places the value of the road per mile at $11,006 62. Putting it upon tlie basis of Mr. Kruttschnitt’s estimation, and adding fifty per centum thereto, it is worth $8264 per mile. He argues that the evidence shows that the road has been kept in full and complete repair, is in good running order, and is fully equipped, and making money. Of this there can be no reasonable doubt. The statement is made by Mr. Hutchinson in his evidence, that there were expended in 1886 the sum of $46,693 in betterments ; and that the sum of $258,418 was withdrawn from the earnings of the road, and applied to the discharge of interest on a debt due by the Houston and Texas Central Railroad.

Discarding these different theories, and adopting one consonant with the evidence and the legal principles herein announced, we are of the opinion that $6500 per mile, for sixteen miles of main track, outside of the cities of New Iberia and Jeanerette, is a just estimate of the actual cash -value of the road; and that $5000 per mile for the nine miles of branch line to the Avery salt works is, likewise a just estimate of its cash value. There is perhaps not this difference in the cost of construction of the two, yet, taking into consideration, as we have, all the elements of value, there is this difference between them.

The one mile of main track, within the city of New Iberia, and the one mile within the city of Jeanerette are likewise fixed at $6500 each per mile.

While, possibly, there may be some inaccuracies in the assessment, in other respects, and some others in' the judgment appealed from, we prefer to maintain that of the board of reviewers as herein modified, for the reason that it is not shown by the evidence to have been otherwise erroneous, and this burthen was on the plaintiff.

It is therefore ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and reversed; and it is now ordered, adjudged and decreed, that the assessment of the sixteen miles of main track outside of the cities of New Iberia and Jeanerette, be and is hereby fixed at $6500 per mile ; that, that of the nine miles of branch track be fixed at $5000 per mile; and that, that of the one mile of main track within each of the cities of New Iberia and Jeanerette be fixed at $6500 per mile.

It is further ordered, adjudged and decreed that, in all other respects, . the assessment, as revised by the defendant board be, and is hereby maintained; and that the cost of appeal be taxed against the plaintiff and appellee.