text:
    No. 1260.
    Gilkeson Sloss Commission Company vs. Bond & Williams—Yale & Bowling, in Liquidation, and A. Baldwin & Co., Limited, Intervenors.
    Any person not designated in Art. 2247 C. C. may purchase a litigious right.
    The penalty ot nullity resulting from t.-.e purchase of a litigious right does not destroy the original obligation. Therefore only those whose rights are violated can demand the nullity of the purchase.
    Intervenors will not be permitted to urge defences personal to the defendant The formality and regularity of the attachment proceedings, the rightful issuing of the attachment', in the absence of fraud and collusion between plaintiff and defendant, are matters pertaining exclusively to the defendant. The intervenor is limited to the assertion of his own right, to show that the property attached is his; that he has a superior privilege on it, or that the plaintiff and defendant perpetrated fraud in combining to have the attachment issued to defeat intervenor’s pursuit of the property.
    On questions of fact found by the district judge, the judgment will not be disturbed, except for urgent reasons.
    APPEAL from the Sixth District Oourt, Morehouse Parish. Baird, J.

      Newton <& Gasón for Plaintiffs and Appellees:
    Supreme Court without jurisdiction vatione materice when amount in dispute is b ss than $2000 exclusive of interest. Art. 81 Const., Act 125,1882.
    Any person may purchase litigious right not designated in Art. 2147 O. C.
    The nullity resulting from Art. 2447 O. C. (as to purchase of litigious rights) is relative, and can he invoked only by one whose right is vioiated. 7 An. 168.
    Intervenor can not question irregularities in the suit to which he has made himself a party. 3 An. 222; 14 An. 427; 21 An. 118.

      The qualifications o! a surety are that he shall be domiciled in parish where suit is instituted and possessed of sufficient property. C. C. 3042; O. P. 246; 19 h. 88; 14 An. 140.
    Attachment will lie against debtor who has assigned and disposed of and is about to assign and. dispose of his property with intent to place it beyond reach of creditors, and to defraud. Code of Practice.

      R. B. Todd, Jr., and Boatner & LamJcin, contra.

   Motion to Dismiss.

The opinion of the court was delivered by

McEnery, J.

A motion has been filed to dismiss the appeal of A. Baldwin & Co.'on the ground that we have no jurisdiction ratione materise.

The judgment appealed from orders the distribution of more than 88000 among several attaching creditors.

The motion is therefore denied.

On the Merits..

Plaintiffs instituted attachment proceedings against defendants on the ground that they had mortgaged, assigned and disposed of their property, also that they had converted and were about to convert their property into money or evidences of debt, with the intent to place it beyond the reach of their creditors. For the same reasons alleged by plaintiffs there were seven other attachments issued against the defendants, among them the three banking institutions of Monroe and the intervenors.

That ther'e was just cause for all the attachments there is no room for doubt.- The evidence is overwhelming.

After the issuance of the attachments, Yale & Bowling and A. Baldwin & Co. intervened in the suit of plaintiff and resisted their .attachment on the following grounds:

1. Informalities in the bond, alleging the insufficiency of the securities.

2. That plaintiffs’ demand is fictitious.

8. That the attachment issued without legal cause, having been invited and solicited by defendants, and that the plaintiff and defendants fraudulently agreed and colluded between themselves that it should issue against defendants in order to place their property beyond the reach of other creditors.

4. That the purchase by plaintiff of the claims of the Monroe banks against defendant was the purchase of litigious rights and therefore null and void.

There was judgment for plaintiffs, and the interventions were dismissed, from which judgment they appeal.

1. On the first point urged by the intervenors it is elementary that in an attachment suit the intervenor will not be permitted to urge defences personal to the defendant.

The formality and regularity of the proceedings, the rightful issuing of the attachment, in the absence of fraud and collusion between plaintiff and defendant, are matters pertaining exclusively to the defendant. The intervenor is limited to the assertion of his own rights, to show that the property attached is his, that he has a superior privilege on it, or, as is alleged in this case, that the plaintiff and defendant perpetrated a fraud in the issuing of the attachment, in order to defeat his pursuit of the property.

He has notbiug to do with the irregularity of the affidavit, the insufficiency of the attachment bond, and other irregularities in the proceedings. Flemming and Baldwin vs. Shields, 21 An. 118; Lee et als. vs. Bradlee, 8 M. 55; 8 R. 123; Carroll & Co. vs. Bridewell, 27 An. 239; 13 An. 222; 19 An. 462.

2. Plaintiffs proved the reality and existence of their debt. There was no serious attempt made to resist it.

3. From a careful examination of the record we are of the opinion that the intervenors have failed to prove that the plaintiffs and defendants were guilty of fraud and collusion in the issuing of the attachment by plaintiffs against the defendant. The defendants were in failing circumstances. They failed in their negotiations to raise money to pay their obligations, or to get an extension of time from the Monroe banks. Angered and mortified, disappointed and hopeless, they told plaintiffs’ attorney that they would take care of themselves. They told plaintiffs’ agent the same thing. No action was taken by plaintiffs’ attorney on these impulsive declarations. It was only several days after, when he learned that the defendants were really in earnest in their statements and were disposing of their property, that he caused the attachment to issue. Before the issuing of the attachment, cotton was shipped by defendant to plaintiffs. They were obligated to do this, as plaintiffs were furnishing them with supplies, the agreement being to ship one bale of cotton for every $20 furnished. After the seizure the plaintiffs received cotton from defendants, which had not been seized under the attachment.

This was in pursuance of an arrangement between the plaintiffs and the defendants, which is urged as one of the strongest proofs of the collusion. The arrangement was legitimate. It was an effort on the part of plaintiffs to save what they could, and on the part of defendant, to get eventual control of his property. In this no injury could be done to intervenors. On the contrary, it would inure to their benefit ifjsuccessful.

The plaintiffs purchased the property under seizure, and agreed to cultivate the plantations and conduct the commercial business in their own name, engaging the services of defendants at $75 per month cash.'

When plaintiffs, from the profits of the business, realized their debt, they agreed to restore the property and business to defendants. The necessities of the creditor and the debtor would naturally point to this arrangement.

The $1500 paid to plaintiffs was a part of the proceeds of cotton converted by defendants, and was one of the inducements offered by defendants ro effect the arrangement. It was to aid in procuring transfer of the banks’ claims.

These are isolated facts, which taken by themselves lead to suspicion, but they are not sufficient proof, and are explained away when taken in connection with other facts. They were logical sequences of the financial condition of defendants. The efforts of the creditor to save his debt out of the wreck, and of the debtor to provide for the future, were legitimate, provided no creditor was injured.

On this branch of the case we give great weight to the opinion of the District Judge. He saw and heard the witnesses, and when the judgment appealed from rests upon facts we will not without urgent reasons disturb it.

The learned District Judge says, in his elaborate and carefully considered reasons for the judgment, that “after hearing the witnesses, and upon a careful perusal of the testimony and the documents filed in evidence, I am convinced that the intervenors have failed to. establish their allegations and that their intervention should be dismissed at their costs.”

4. The claims of the Monroe banks were transferred to the plaintiffs after the issuing of their attachment against defendants. This purchase the intervenors attack as the purchase of litigious rights, and therefore null and void. The penalty of nullity of the purchase does not destroy the obligation, and prevent the original owner from asserting his rights. The intervenor is only concerned with enforcing his own rights, and it can not be perceived what interest or right to preserve or enforce he can accomplish by attacking this sale of the banks’ obligations to plaintiff. He is without interest to do so. Sue. Hoover vs. York & Hoover, 30 An. 752.

The parties who purchased the claim were not officers or employees of the court, and the prohibition contained in Art. 2447 O. C. does not apply to them.

The nullity, if it existed, is relative, and a civil action is necessary to have it so declared. All parties in interest must be cited, and it can not therefore be attacked collaterally. New Orleans Gas Light Co. vs. Webb, 7 An. 168.

There is nothing in the record which would justify a disturbance of the judgment.

Judgment affirmed.


source: Caselaw Access Project

author: Breaux, J.

license: Public Domain

text:
    No. 1255.
    Charles O’Donnell vs. Henry, Forrest & Co.
    The defendants do not set forth in their answer any right to a call in warranty. It is not a case of personal warranty within the meaning of Art. 379 of the Code of Practice.
    There were measurements and estimates to be made. The court did not exceed its discretion by appointing experts to obtain further information.
    The plaintiff and the defendants having agreed, in case of disputes or differences as to the construction of their contract, or the sufficiency of the performance of any of the work to be done under it, or the price to be paid, to submit them to the civil engineer in charge, who was to consider and finally decide them, are bound by the measurements made, and by the decision of the selected arbiter.
    The hasty utterances of the arbitrator, without knowledge of all the facts, can not be construed as modifying or changing the terms and conditions of a contract, one of the clauses of which reads:
    No extension of time or alteration of this contract is in any way to be considered or allowed, unless the same be in writing, properly signed by the parties and attached to this agreement.

      APPEAL from the Fourth District Court, Parish of Caldwell. Wear, J.

      Boatner & Lamkin for Plaintiff.

      8. H. Gilbert for Defendant.
   The opinion of the court .was delivered by

Breaux, J.

Jay Gould entered into a contract with I. A. Henry to construct the extension of the Houston Central, Arkansas & Northern Railroad Company from Riverton station, on said road, in the parish of Caldwell, to Alexandria, La.

For the work, when completed and accepted by the engineer of the road, the contractor was to receive, under the terms of the contract, as follows:

In earth, per cubic yard of work, 16 cents; in loose rock, per cubic yard of work, 45 cents; in solid rock, per cubic yard of work, 85 cents; for clearing and grubbing, per acre, $60.

The firm of which Henry was a member undertook to carry out this contract.

Plaintiff became a sub-contractor on grade work, under the firm of Henry, Forrest & Go., to grade section 6 of the railway, for the price just mentioned, per cubic yard for earth work, and 85 cents for loose rock work, and 75 cents for solid rock, per cubic yard.

The contract provided for estimates, under the direction of the railway engineer, at the close of each month, of the amount and value, as near as practicable, of work done, and within thirty days the defendant was to pay the amount of said estimates, less 10 per cent.; the commission was withheld to enforce compliance with the contract.

Upon completion of all the work in the time and manner agreed upon, it was agreed that the engineer should make a final statement of all the work done.

It was also stipulated in the contract that in case any dispute or difference arose as to the construction to be placed upon the agreement as to the sufficiency of the work to be performed, or the price to be paid, it was to be referred to the engineer of the H. 0., A. & N. R. R. Co., who was selected by both parties to consider and decide all such disputes and differences.

It was agreed that his decision should be final and binding.

A difference arose during the progress of the work, as to whether the work was to be classed as earth work or as work in solid or in loose rock.

Pleadings.

The plaintiff alleges as clue him on earth work, 67,884 yards at 16 cents ...$10,861 44
Loose rock, 25,000 yards at 85 cents......................................................... 8,750 00
Solid rock, 17,400 yards at 75 cents................................................... 18,050 00
Total....................................................................................$82,661 44
On which he admits to have received...............................................$22,186 051-8
Balance.......................................................... $10,524 98

The plaintiff further alleges that the difference was referred to the engineer of the company, who decided that the work should be classed as “solid rock,” under the specifications forming part of the contract.

The defendant called the H. O., A. & N. R. R. Oo. in warranty.

The railway company excepted to the call in warranty on the ground that the answer of the defendant showed no cause of action; that neither the petition in the suit nor the answer alleges any parity of contract between the plaintiff and said company, nor other reason justifying a call in warranty.

The District Court maintained the exception and dismissed the call in warranty.

The ruling maintaining the exception is correct, for the records do not disclose that the H. C., A. & N. R. R. Co. was'a party to the contract between the plaintiff and the defendant, or that it ever received its approval.

It is not shown that the consent to transfer, or sub-contract, required by one of the articles of the agreement, was ever obtained.

Plaintiff does not allege any indebtedness on the part of the warrantor, nor does it appear that there was any privity between them.

The defendants do not] resist, in argument, the dismissal of the call in warranty.

They do not set forth in their answer any right under the contract.

They do not pretend, that the railway company is liable to them for the amount claimed in case judgment be rendered against them. C. P. 378, 379 and 384; Hackett vs. Schiele & York, 19 An. 67; DeGreck vs. Murphy & Gains et al., 22 An. 297.

Bill of Exception.

The defendants applied to the court for the appointment of experts, alleging that the accounts between plaintiff and defendants were numerous, extensive and intricate; that intelligent classification and estimate of plaintiff’s work was a matter peculiarly within the knowledge of civil engineers.

The application was granted, and experts were appointed over the opposition of plaintiff.

The bill of exception retained to the ruling of the court sets forth that “there is no issue in the case, nor disputed facts which can “ legally be referred to experts for a report, and that the classifiea- “ tion of the work must, under the contract, have been settled by “ the railroad company’s engineers at the time the dispute arose.”

The court a qua did not exceed the discretion with which it is vested in.making the appointment.

Experts may be appointed when necessary to obtain information. C. P. 442.

The attention of the court is invited by the plaintiff to his opposition to the report of the experts.

The opposition reiterates the grounds incorporated in the bill of exception reserved to the appointment of experts, and further sets forth:

“That the engineer of the railroad company under the contract “ was the proper and only person who could classify the work done, “ or material removed, and that this must have been made and de- termined at the time the dispute arose.”

These and other-grounds of opposition alleged would not have justified the excluding of the report. They present questions to be considered on the merits, in determining the weight to be given to the report.

Statement of Facts.

Plaintiff’s witnesses testify that he suspended work on section 6 on account of the before mentioned difference and dispute about the classification given, and that he only resumed when the engineer pronounced the material “solid rock” and promised plaintiff compensation on that basis for its removal.

It is not disputed that in setting slopes the constructor is guided by the material to be removed in a cut, also that in an embankment •ordinarily, ordinary earth will hold a slope one foot vertical to one foot horizontal, while slopes for rocks or hard material are one quarter of a foot to one foot.

Plaintiff’s witnesses testify that the slopes were drawn from one foot horizontal to one foot vertical, to one fourth horizontal, to one foot vertical, and that after the slope had been changed the material, less a small proportion, should have been classified as rock under the terms of the contract.

Two civil engineers employed by the railroad company are plaintiff’s witnesses; also plaintiff’s foreman, and the plaintiff himself.

On part of defendant the chief engineer testifies that he gave proper classification and estimate to the plaintiff; that he allowed him all yardage of solid rock to which he had a right. He states that there was solid rock, a regular ledge. As the work progressed there was softer material, of loose rock and earth, which could have been ploughed.

The assistant chief engineer testifies that he has examined the excavations on section 6, and found that the upper stratum was a hard chocolate-colored substance; “although not rock it will not disintegrate when exposed to the weather.” It was of such a nature that blasting was necessary to remove it. This material was classed as solid rock; under it there was a layer of sand, and under the sand there was a bluish material of the nature of clay and soap stone. This material, the witness testified, is softer than the upper stratum, and was classified as loose rock. This testimony is corroborated by a third civil engineer, also by one of the defendants.

The Committee of Experts.

L. N. Polk, W. M. Wasburn, and Linton W. Stubbs, civil engineers, report that they classified and examined the work done by the plaintiff on section 6 of the H. O., A. & N. R. R., and found “no other material than earth upon any portion of said section 6.”

“ They further state that at the remote date, from the time of the removal of the material upon said section 6, it is a difficult matter to determine accurately the class of material removed from the above mentioned section 6, though we are thoroughly satisfied that there never was any solid rock removed by said O’Donnell from said section 6, and further that we are of the opinion that the final estimate given said O’Donnell upon said section 6 was fair and liberal.”

Witnesses for the defendant testify with reference to the slopes drawn from one foot horizontal to one foot vertical to one-fonrth to one, and state that change may be made from the former to the latter without it being necessary to classify the material as solid rock.

We extract from the contract:

“With slopes for rock excavations of one-fourth horizontal to one vertical, and earth excavations with slopes of one foot horizontal to one foot vertical. But the width and slopes of the road, whether an embankment or cutting, or whether the material used be earth or rock, may be changed by the engineer.”

There are several measurements of record.

In one the total yardage of the material classed as in the nature of sandstone is 4955 cubic yards; material classified as loose rock, 12,660 cubic yards; material classified as ordinary soil, 89,065 cubic yards; total, 106,680.

There are other measurements on the part of the defendant .which differ slightly from the above.

The report of the committee of experts contains a statement of the yardage due.

The largest amount, supported by the committee’s report, was taken by the District Judge as the basis of his judgment.

On the Merits.

Plaintiff, through counsel, contends that he received a promise from the chief engineer that he would classify his work as in solid rock at the point where the slopes were drawn in.

The classification was not made at once, but was necessarily postponed in accordance with the contract.

When it was made it was ascertained that there were three strata in the cuts. The proportion of each was established and the amount due on each classification fixed.

Without attempting to reconcile differences of statements of witnesses, we conclude on this point that if the engineer made the promise claimed at the time the ledge of solid rock was removed, it referred to the stratum which was afterward classified as rock, and not to ordinary soil and loose rock.

The evidence to establish the promise is not conclusive and does not come to us without serious contradiction.

The engineer states under oath: “I gave O’Donnell solid rock for all material that would stand that classification.” “The classification given him on the balance of the material was loose rock and earth. I gave this classification because that is what it was according to specifications after the slope stakes were drawn.” “The hard material that I classified as solid rock did not continue down to the bottom of the cut or grade line.”

The promise as made and the change in the slopes did not have the effect of modifying or amending the contract, which provides for the classification of material in cuts or embankments.

The contract between the plaintiff and defendant also stipulates that: “No extension of time or alteration of this contract is in any way to be considered or allowed, unless the same be in writing, signed by the parties and attached to the agreement.”

The hasty utterances of the arbitrator during the progress of the work, without knowledge of the facts which shortly after became manifest, can not be construed as altering the conditions of such a contract.

His measurements and estimates were to be mside after the completion of the work and were accordingly made.

Measurement: Witnesses for the plaiutiff testify that there were strata in the cuts after the slope stakes were taken down; one a hard material, the other sand.

One of these witnesses states that the “stratum of sand did not amount to more than 10 or 15 per cent.”

The sample of the material brought up with the transcript are of three distinct strata. The estimate of 10 or 15 per cent, of earth to the remainder rock or loose rock made by one of plaintiff’s witnesses is not sustained in opposition to the positive testimony of a number of witnesses.

The field notes of one of plaintiff’s witnesses served as the basis of the calculation.

The experts appointed by the court report that the estimates made were fair and liberal.

All the witnesses of the defendant sustain the correctness of the aggregate allowed.

One of the number, an engineer, states: “I plotted the cross sections. I have these plotted cross sections with me.” This survey “was made with a level rod and tape line, and the greatest care was taken to make it perfectly accurate. Plots marked from 1 to 9 are the plots referred to by me. With the instrument referred to above I obtained the height and distance from the centre of points on the sides of the cut at top and bottom of each different stratum of material. The survey was accurate.”

After weighing the evidence we are unable to conclude that the judgment is erroneous.

The defendants, in their motion in answer to the appeal, pray that the judgment be amended by reducing the amount decreed due.

We have before stated that defendants’ witnesses have not entirely agreed in their estimate. We accept the highest, as did the District Judge, and affirm the judgment, at appellant’s costs.


author: Nicholls, C. J.

text:
    No. 1252.
    The State of Louisiana vs. David Underwood.
    An accused in a criminal cause who avails himself, under Act No. 29 of 1886, of the privilege of testifying therein is subjected to cross-examination by the State, but this examination extends only to matters concerning which the witness has given his testimony.
    Eor the purpose of the decision of a bill of exception the recitals thereof are to be taken as true when the trial judge signs the bill without controverting or modifying the same.
    A bill of exceptions in a criminal cause is well taken which shows that the accused whilst testifying thereon was forced, over the objections of his counsel, to give evidence against himself through a cross-examination by the State as to matters concerning which the witness had not given his testimony.
    Objections urged by counsel of an accused to such a cross-examination of an accused by the State, and to questions which led up to such a result, are not covered nor met by a simple statement from the trial judge that the question put to the accused bearing upon the res gestas, the objection to the same was overruled — the question might well bear upon the res gestas and' yet not be a proper one to propound to that particular witness.
    APPEAL from the Twenty-sixth District Oourt, Parish of St. Charles. Rost, J.

      G. Leche and J. P. Madison, District Attorneys, for the State, Appellee.

      J. Reine for Defendant and Appellant.
   The opinion of the court was delivered by

Nicholls, C. J.

The defendant in this case having been indicted for murder, convicted of the charge and sentenced to death, appeals to this court, relying for reversal upon the grounds embodied in two bills of exceptions found in the record.

The first bill is directed against the action of the judge a quo in permitting the district attorney over the objections of the counsel of the accused to cross-examine the accused then on the stand, as to certain facts — the second against the overruling of a motion for a new trial, the application for which it was contended was well founded and should have been granted.

It is unnecessary to consider and pass upon the second bill in view of the conclusions of the court reached upon the first.

The district attorney in his brief states that the only objection raised by the accused during his trial was as to the right claimed by •the State under Section 2 of Act No. 29 of 1886, of cross-examining him when on the stand as a witness.

Had the accused claimed the right to withdraw as a witness immediately upon the termination of his direct examination, free from liability to any cross-examination whatsoever, the’ judge could not have done otherwise than to reject such a pretension, inasmuch as it would have been an attempt by the defendant to have availed himself of a statute permissive in its character, conferring a special privilege and favor, without subjecting himself to the conditions upon which the exercise of the privilege was made to depend. The recitals of the bill do not sustain the statement of the district attorney that the accused claimed an absolute exemption from cross-examina - tion, but show that he insisted that this cross-examination should only extend to matters concerning which he had given his testimony. In this position he was clearly right.

The second section of the act referred to provides that the circumstance of a witness being a party accused shall in no wise disqualify him from testifying provided that no person shall be compelled to give evidence against himself, and provided that, if the person accused avails himself of this privilege, he shall be subject to all the rules that apply to other witnesses and may be cross-examined as to all matters concerning -which he gives his testimony.

It is evident from a perusal of this section that, whilst an accused who voluntarily makes himself a witness, can not legally decline cross-examination, yet he can to a certain extent control it by a selection of the matters and things concerning which he gives his testimony.

The same statute which withdraws from him disqualification as a witness, and subjects him to cross-examination, expressly places a limit to this examination, which limitation the State is in no wise permitted to transcend, and the complaint made in this case by the defendant is that it is precisely this which has been allowed by the judge to be done in spite of his opposition and objections.

The counsel of the accused makes the positive assertion in the bill that the defendant was only on the stand as a witness for a few minutes; that as a witness he gave no testimony applicable in fact to the case; that finding much vagueness in his testimony and no facts elicited by the same, he, the counsel, moved that he be withdrawn from the stand, but that the district attorney attempting to question him as to who killed the accused (deceased), a matter which he avers was not broached in his direct examination in chief, he, the counsel, objected to the cross-examination, except on matters elicited in the direct examination, whereupon (so says the bill) said objection was overruled, said accused made to give evidence against himself on matters not elicited in his direct examination; wherefore a bill of exceptions was reserved.

If these averments be true the accused has good ground of complaint, and it only remains for the court to determine whether, so far as the record discloses, they are to be taken for true. The bill appears in the record signed by the judge without a word from him questioning the truthfulness of the recitals — and the court is bound to assume, in the absence of any denial of their verity, that they correctly state the facts.

It has been held that where there is a difference between the judge and counsel as to the circumstances connected with a bill of exception, the statements of the former are to be taken as true. When a judge having this power of control and correction, has failed to exercise it in any given cases, it is to be presumed that there existed no ground upon which he was called upon to have done so. In the case before the court, the only statement made in the bill by the district judge was, that the question put to the accused bearing upon the res gestae, the objection was overruled.

This ruling did uot cover nor meet the objections urged — the question asked might well bear upon the res gestae and yet not one to be properly asked of this particular witness. Under the state of facts disclosed by the bill of exceptions the objections urged by the accused should have been sustained and the question should not have been permitted to be asked.

For the reasons given in this opinion it is ordered, adjudged and decreed that the verdict of the jury and the sentence of the District Court rendered thereon against the aforesaid David Underwood be avoided and annulled and set aside, and that the case be remanded to the District Court for further proceedings according to law.


author: Fenner, J.

text:
    No. 1253.
    The State of Louisiana vs. William Thorn.
    ÍTo error of any kind being suggested or appearing on the record, the judgment is affirmed.
    APPEAL from the Criminal District Court for the Parish of Orleans. Baker, J.

      J. P. Madison, District Attorney, for the State, Appellee.

      A. D. Hewriques and J. H. Ferguson for Defendant and Appellant.
   The opinion of the court was delivered by

Fenner, J.

No brief is filed on behalf of appellant, and a careful scrutiny of the record reveals no irregularity in the proceedings and suggests no error of any kind of which this court can take cognizance.

Judgment affirmed.


author: Watkins, J.

text:
    No. 1256.
    Thomas E. Green et al. vs. J. E. Moore.
    1. A possessor in bad faith is one who possesses as master, but who assumes that quality when he well knows that he has no title to the thing or that his title is vicious and defective.
    3. He is a bona fide possessor who possesses as owner, by virtue of an act sufficient in terms to transfer the property the defects of which he is ignorant.
    The bad faith possessor is entitled, upon being dispossessed, to the reimbursement of necessary expenses for the preservation of the property and to an adjustment of his claims for constructions and improvements.

      A PPEAL from the Twenty-seventh District Court, Parish of West Carroll. Williams, J.

      C. T. Dunn and 8. T. Baird for Plaintiffs and Appellees:
    A sale of land conducted under Act 107 of 1880 is an absolute nullity if the land had not been previously forfeited to the State for non-payment of taxes. 80 An. 1109, 952; Act of 1880, p, 135.
    A title acquired in bad faith can not be made the basis of pi*escription. O. O. 3478,. et seq.
    A purchaser knowing the defects in the title of the property purchased, can not be considered a purchaser in good faith. 33 An. 1174.
    A possessor in bad faith owes rents from the date of his occupancy, and he is entitled to reimbursements for only the value of the material and costs of construction of improvements made upon the property. O. O. 508.

      Wells & Gray for Defendant and Appellant.
   The opinion of the court was delivered by

Watkins, J.

This suit is brought by the heirs at law of John and Mary E. Green, deceased, for the recovery of a tract of 240 acres of improved land, producing revenue; and, upon averment that the annual revenues of same amount to $250, and that “the defendant has had illegal and fraudulent possession thereof since 1884,” they claim the sum of $1750; and their prayer is, that they be decreed to. be the owners in indivisión of the property and placed in possession thereof, and that they have and recover of and from the defendant said amount of revenues, with legal interest from judicial demand.

The defendant claims to have acquired the ownership of said property in 1881, as adjudicatee at a public sale, made under and in pursuance of the provisions of Act 107 of 1880, as property which had been, theretofore, forfeited to the State.

Alleging his purchase to have been made in good faith, he pleads his occupancy and possession thereunder, in support of his plea of ten years’ prescription, aequirendi eausa.

In the alternative, he sets up in reconvention a claim of $2350 for betterments, for which he demands judgment.

On the trial, there was judgment in favor of the plaintiffs for the land and its improvements, decreeing them entitled to, and to be placed in possession thereof, and to have and recover of and from the defendant, the rents and revenues of the same for two years at $250 per annum, decreeing it to be equitable and just to allow him “ the use of the land for five years, for clearing, fencing and putting the same im> a state of cultivationand it gave the defendant credit for the value of—

One dwelling house...........................................................$300 00
Four cabins at $75 ............................................................... 300 00
One crib............................................................................... 15 00
Taxes paid.......................................................................... 143 89
Sundry small improvements............................................ 41 11
$800 00

making 4'■ the sum of three hundred dollars ($300) for the value of improvements and taxes, over and above the amount due the plaintiffs for rent.”

From that judgment the defendant has appealed; and the plaintiffs and appellees have filed in this court an answer to the appeal, in which they pray for an. amendment and ask a reversal of the judgment, in so far as it awards the sum of $300 against them, and request an increased allowance in their favor by decreeing them 44 entitled to a moneyed judgment in the sum of $200 in excess of the value of improvements and taxes, on account of rents and revenues.”

From the foregoing statement of the case, as it is presented for our consideration, there is, practically, but little left for decision.

As to the plaintiffs’ demand of ownership of the property, there is no room for argument and apparently no dispute — the record disclosing no forfeiture to the State.

There was a sale made in 1881, according to the evidence, of State lands, under the provisions of Act 107 of 1880,- but the lands of J. W. Green, and not those of John Green, were advertised and sold; and it having been the intention of the defendant, Moore, to buy those of the latter, and not of the former, he failed to acquire even an apparent title thereto under the adjudication. It seems that this mistake was subsequently brought to his notice, and by some means, not definitely shown in the record, the tax collector executed a deed in his favor, describing the lands of John Green instead of those of J. W. Green.

We think it evident that defendant was not a purchaser in good faith, but that he occupies the position in this litigation of one 44 who possesses as master, but who assumes this quality, when he well knows that he has no title to the thing, or that his title is vicious and. defective.” R. O. O. 3452. >

For the Code provides that “he is a bona fide possessor who possesses as owner by virtue of an act sufficient in terms to transfer the property, the.defeats of which he is ignorant. He ceases to be a bona fide possessor from the moment these defects are made known to him,” etc. R. O. C. 503.

From what has already been said, it is clear that the defendant was fully advised of the mistake that had been made in the adjudication of the property, and must have known — even if it be conceded that he was not privy to the alteration that was subsequently made — that the deed incorrectly called for the lands of plaintiffs’ ancestor.

This must have been the theory adopted by the district judge, who, evidently, examined the case with care, and decided it impartially and conscientiously.

Accepting this theory as correct — and it is unquestionably correct —the defendant’s plea of prescription is untenable, because of his want of that good faith which is an essential element of prescription acquirendi causa. R. C. O. 3478, 3479, 3451.

The further consequence of his lack of good faith is, that he is not entitled to gather “ the fruits of the thing until it is claimed by the owner ” (R. 0.0. 3453) ; but is restricted to his claim for reimbursement of the value of materials used in the re-establishment of plaintiffs’ plantation, and in making constructions and works thereon, together with the price of workmanship (R. C. O. 508) ; because the Code declares that “he to whom property is restored must refund to the person who possessed it, even in bad faith, all he had necessarily expended for the preservation of the property.” R. O. O. 2314.

These articles were examined and applied to the case of a bad faith possessor, by this court in the well considered case of Heirs of Wood vs. Nicholls, 33 An. 744.

The district judge charged defendant rent from the commencement of his possession, but allowed him to compensate five years of same with the value of fencing, clearing and putting the place in cultivable condition.

It is of this item that plaintiffs’ counsel chiefly complains, his contention being that an allowance of $600 would afford ample compenisation and by this means there would remain a charge of $250 against the defendant, instead of a balance of $300,in his favor. In so far as other items are concerned, there is no discoverable difference between the calculation of the judge and that of plaintiffs’ counsel, and we prefer to adopt that of the latter. The proof shows that in 1881, when the tax sale occurred, and at the time of the defendant’s possession, the property was largely in arrears for taxes, and in a dilapidated and uninhabitable condition, and that the defendant rehabilitated it by building houses, barns, cabins and fences, and by digging wells, clearing land and putting it in a cultivable condition. This required years of time, as well as the expenditure of a great deal of labor and money. Of course, the rental value of the property was comparatively small during this period, and for that reason we think the judge’s estimate a fair and reasonable one.

Judgment affirmed.


author: McEnery, J.

text:
    No. 1258.
    Mrs. Parthena Boggs et al. vs. David Hays et al.
    Where a party holds a mortgage note on certain property, and lives with the mortgagor for a number of years, she can not make a remunerative donation of the mortgaged property, to the prejudice of her heirs, to said mortgagor. If anything is due for maintenance it should be credited on the mortgage note.
    If the mortgage note is prescribed there is still a moral obligation to pay, and the amount due for board should be compensated by the mortgagor. When a person makes a donation of ah his property, without reserving enough in the act of donation for his support, the act is null and void.
    In a suit to cancel a donation the test of jurisdiction is the value of the property in controversy.
    APPEAL from tbe Seventh District Court, Parish of Franklin. Ellis, J.

      J. W. Willis for Plaintiffs and Appellees:
    On Motion to Dismiss.
    The averment of interest by a third party who appeals from a judgment rendered between other parties is insufficient to authorize an appeal where such third person failed to allege and provein the court below his right todo so; and that there is error therein to his prejudice. Fazende vs. Flood, 24 An. 426 and cases; Succession of Allen, 10 An. So. 304; 43 An. 1071.
    A third party can not appeal when his interest is denied, and he does not allege specially in what his interest consists and that his claim amounts to over $2000 as shown by the record, no matter what the allegations of plaintiff may be. Art.81 Const. 1879; Williams vs. Gantt,32 An. 929; Wade R. Young vs. Stephen Duncan et al., 39 An. 86;State National Bank vs. Allen, 39 An. 808; Lake & Bloom vs. Julia Arent et al., 33 An, 1085; Art. 1977, C. C.; L. W. R. R. Co. vs. Hopkins, Kennedy et al., 33 An. 806; 39 An. 853.

      When the defendants do not appeal, a third party, by adopting the pleadings and making the defences of the defendants, can not substitute himself in the place and stead of defendants without the consent of plaintiffs, and make defences personal to the defendants, especially when he did not intervene and join them in the court below, and has not their consent to use their pleadings on appeal. 0 Mrs. M. Mayer vs. Louis Stahr, H. Pohlman, intervenor, 35 An. 59, 60; Clapp & Co. vs. Phelps & Co., 19 An. 462; C. P. 389, 390, 391, 392, 393, 894.
    Plaintiffs and appellees with a reservation of their right of dismissal; in case their motion to dismiss is overruled, refer to the following authorities on the merits: By the Act 5, 1884, the right of forced heirs to establish by parol the simulation of acts or conveyances executed by those from whom they claim to inherit extends to the entire estato and the restriction of such right to the legitime is removed. Cole vs Cole, 39 An. 878.
    When the donor does not reserve enough for subsistence, action by forced heirs to annul does not prescribe even in five years; it is absolutely null. A condition inserted in an act of donation inter vivos of all the donor’s property that the donee shall without charge supply the donor during his life with clothes and food, and in case of sickness with medical attention, and shall bestow on donor all the care which children would bestow on a parent, can not be considered a reservation of enough of the donor’s property for his subsistence, within the meaning ,of Art. 1479, R. C. C. Such a donation is null for the whole. Per Curiam: The donor must keep in his own possession and ownership enough of his property for his subsistence. The mere promise of the donee to support the donor is insufficient.
    Actions to AnnüIt — Excessive or inofficious donations are prescribed by five years from the death of the donor. R. C. O. 3542; 11 R. 302-313; 32 An. 635; Tessier vs. Roussel, 41 An. 474; 1 An. 238; Succession of Ball, 43 An. 342.

      Stephen Faulk for Defendants and Appellants:
    1. When a contract is attacked upon the ground that there is no consideration shown, the party may show a consideration other than that stated in the act, provided it be the true consideration of the contract. 30 An. 966; 40 An. 229.
    2. Onerous and remunerative donations must be governed by the general rules relative to other contracts. 33 An. 792.
    3. If heirs can be likened unto creditors and resort to the revocatory action their action is barred by prescription of one year from the death of the donor. 39 An. 1067.
    4. The burden of proof is upon the plaintiff to show that no consideration was given or that the donor had disposed of all her property without retaining a sufficient amount for her support. 40 An. 848.
   Motion to Dismiss.

The opinion of the court was delivered by

McEnery, J.

The plaintiffs sued the defendants to annul a donation of certain immovable property made by Mrs. Mary Rees to David Hays. There was judgment for the plaintiffs. The defendants. have not appealed.

Ohaffe & Powell applied for and obtained an order for a devolutive appeal from said judgment.

On their petition they aver “that the judgment rendered in said suit decreed the nullity of the sale of said property described in the-petition, and alleged therein to be worth the sum of $3000. They aver that they hold the notes secured by vendor’s privilege upon said property, and that by said judgment their vendor’s privilege is lost, and that they have an appealable interest in said judgment, they being aggrieved thereby.”

David Hays sold a portion of the property in controversy to his sons, D. S. and O. A. Hays, for the price of $1356.51, payable in instalments.

In the deed it is recited that the first named note of $334.41, due November 2, 1887, is to be transferred by the vendor to Ohaffe & Powell in payment of the balance due on two mortgage notes held by said firm.

As the holder of the mortgage note thus transferred, Ohaffe & Powell show that they have an appealable interest in the judgment, which, if not reversed, will destroy the value of their mortgage note. Malone vs. Husband, 10 An. 84; Compton vs. Husband, 6 R. 155; 30 An. 801; Oode Practice, Art. 571.

The plaintiffs have, in their petition, made the requisite jurisdictional allegations as to the value of the property, and they can not now deny the jurisdiction of this court by showing a less valuation of the property in order to dismiss the appeal of the appellants.

The amount of the note held by Ohaffe & Powell is not the test of jurisdiction, as this is not a revocatory action, but an action to set aside a donation or simulated sale of property, which, if sustained, is an absolute nullity, restoring the property to its former ownership, and thus inuring to the benefit of all creditors who have claims against it. There is some conflicting testimony as to the value of the property, but we are of the .opinion that its average value per acre is $5, thus fixing it at an amount over $2000.

The motion to dismiss is denied.

On the Merits.

Mary Rees, the mother and grandmother of plaintiffs, sold to her son-in-law, David Hays, certain immovable property for cash and on terms of credit, retaining a special mortgage and vendor’s priv-ilege on the property for the credit portion of the price. She obtained judgment against Hays for the amount of the note and interest, and issued execution of the judgment and seized real estate and movable property, which was sold and purchased by her. After crediting the judgment with the amount realized from the sale in October, 1867, there was a balance due her of 11884.21, bearing interest from April 7, 1860.

Mrs. Rees went to live with her son-in-law, and remained with him until 1881, when she went to reside with her son. She gave or donated to Hays the personal property which was seized under her judgment. On the 14th day of April, 1881, she made what is described in the petition a donation of the above described property to David Hays. In the act of donation she recites, as a reason for making the same, that since the purchase at sheriff’s sale by her, she had received from David Hays far more than what she had paid for the property at said sale.

To show what this consideration was, defendants offered testimony to prove that it was for taking care of Mrs. Rees when she resided with Hays. On this point the evidence is conflicting and unsatisfactory.

It appears from the testimony that Mrs. Rees was not helpless, and that she rendered services of value in the house, equal, as stated by one of the witnesses, to the amount which was necessary to provide for her. When sick at one time, her son paid the doctor’s bill, thus showing that it was not the intention of David Hays nor was it expected by Mrs. Rees and her son that her residence at her son-in-law’s house was to be a charge against her. This is also contradicted by the fact that at the time Mrs. Rees was residing with David Hays he was indebted to her, and if anything was due by her to him for maintenance it ought to have been credited on the judgment. It is true that at the time of the pretended donation it was prescribed, but if anything was due to Hays for board and lodging, it should have been compensated by the amount due by him and the judgment thus kept alive. However, there was a moral obligation on his part to pay this judgment, and as long as it existed it destroyed the ability of Mrs. Rees to make a remunerative donation of the property for services'rendered to her.

By the act, as a simple donation, Mrs. Rees divested herself of all her property. That she was left helpless and penniless is shown by the fact that she was compelled to go and reside with her son, and that she depended upon him for support until her death. The act of donation is invalid on its face, as it does not state that she reserved property sufficient for her support. The donation was not real, as the services rendered by Mrs. Rees at the residence of David Hays équaled in value the cost of her maintenance.

The transfer of the property was, we think, a pure simulation, an evident intention of Mrs. Rees to place it beyond the reach of her forced heirs, and she used the form of a donation to carry out this intention. The prescription pleaded by defendants can not therefore avail them.

Judgment affirmed.


text:
    No. 1261.
    Reynolds & Henry Construction Company vs. Police Jury of Ouachita Parish.
    A tax of five mills, voted a number of years since, to aid in the construction of a railroad, which afterward allowed the time to lapse within which to commence the work, and has never taken any steps toward complying with the condition of the contemplated contract, will not be considered in determining whether defendants exceeded their power in having a special five-mill tax levied and collected.
    It is manifest that the taxes voted in favor of the first company can not be collected and never will be collected.
    An agreement relieving a corporation from the payment of the five-mill special tax for a consideration, is not in contravention of Art. 203 of the Constitution so long as no injury arises therefrom. The police jury is without authority to question the validity of the special tax on the ground that a corporation has been by it released from its payment,
    Thecontesting of votes is a judicial function only in so far as made such by special statutes.
    A party having complied with the conditions of his contract, the other parties to the obligation must be held to a compliance with their obligation.
    A corporation is not bound by the unauthorized acts of its officers.
    APPEAL from the Fifth District Oourt, Parish of Ouachita. Richardson, J.

      Boatner & Lamkin for Plaintiff and Appellee.

      F. G. Hudson for Defendant and Appellant.
   The opinion of the court was delivered by

Breaux, J.

The Reynolds & Henry Construction Company, a ■corporation domiciled in Illinois, sues (as assignee of the Houston Central, Arkansas & Northern Railroad Company) the police jury of the parish of Ouachita.

In order to aid the said railroad in building a line of railway for traffic communication the police jury, at a session held March 13, 1888, ordered an election to be held to determine whether or not a five-mill tax for ten years should be levied, and the amount realized paid over to the said railroad company.

The returns of the election held, show that a large majority voted in favor of the levy of the tax proposed in the ordinance submitted to the property tax payers.

The result of the election was promulgated as required by law.

Plaintiff alleges that the H. 0., A. & N. R. R..Oo., within the time stipulated in the said ordinance, begun and prosecuted in good faith the building of said railroad in the parish of Ouachita, and continued the said work until January 14, 1889, when it entered into contract with plaintiff to continue the said work to completion. That the road was completed in the parish of Ouachita north and south from Monroe, La., by it, under said contract and within the time stipulated in the said ordinance, entitling it to claim from defendant the first of the ten years’ five-mill per annum tax.

It prays that it be decreed to have earned, and to be entitled to the one. year’s taxes, and that the police jury and the individual members thereof be commanded to assess, cause to be collected and paid over to it said five-mill tax on all taxable property in the parish for one year except the property of the Vicksburg, Shreveport & Pacific Railroad Company.

The defendants resist plaintiff’s demand on a number of grounds:

1. The said ordinance numbered 634, they contend, is null and void; the property tax payers of the parish of Ouachita having already previously voted a five-mill tax upon all property in the parish in aid of the construction of the New Orleans, Natchez & Fort Scott Railway Company, which was still in force, defendants are without legal power or authority to levy and collect a tax in excess of five mills for ten years in aid of railway enterprises.

2. That said ordinance is null and void because it excepts the property of the Vicksburg, Shreveport & Pacific Railway Oompany from said tax, thereby contravening Art. 208 of the Constitu-tion and Sec. 2744 of the Revised Statutes.

8. The defendant assails the correctness of the ruling of the district court excluding evidence that minors, tutors, administrators, agents, married women, widows, ladies femme sole, non-residents,, absentees and corporations property tax payers of the parish ofOuachita were permitted to vote, and they contend that, but for the vote of these persons, a large majority of the property tax payers of. the parish, in numbers and in value, did not vote in favor of said tax.

4. That the H. C., A. & N. R. R. Co. did not begin and continue-work in good faith wiGhin the time stipulated in the said ordinance. 684.

5. That the president of the said H. C., A. & N. R. R. Co. renounced said ñve-mill tax.

Statement of the Facts.

On the 14th day of January, 1889, it was agreed, between plaintiff and the said railroad company, that, on the completion of fifty miles of railroad, twenty-five above and twenty-five below the town of Monroe, said railroad company would transfer said tax to plaintiff as part consideration for the work.

In an act dated 16th November, 1889, the president, authorized by a resolution of the board of directors of the railroad company, declared that plaintiff had complied with the contract and therefore assigned to the company all rights and interest of the said railroad company to the said tax.

It is not disputed that the plaintiff company has carried out its-contract of January 14, 1889, with the H. C., A. & N. R. R. Co.

The police jury, conforming with the petition of more than one-third of the property tax payers, adopted an ordinance as alleged, ordering a special election for the purpose of submitting a proposition to the qualified tax paying electors whether4a five-mill tax should be voted.

The election was held as alleged.

By ordinance of January 6, 1890, the police jury declares that the provisions of Ordinance 684, adopted March 18, 1888, have not been complied with by the H. C., A. & N. R. R. Co., and they repeal the. said ordinance. When the ordinance repealing the tax was offered in evidence plaintiff objected to its admissibility on the ground that it was .an attempt to impair or destroy the contract previously entered into between the police jury and the said railroad company.

Section 8 of the ordinance sets forth that the said railroad company shall not receive any part of the said tax unless the actual work of building shall be entered upon and prosecuted in good faith in the parish of Ouachita within ninety days after the promulgation of the vote authorizing the levy of the tax.

The witnesses for the defendant testify substantially that after the promulgation of the Ordinance 634 and the tax had been voted, the railroad company commenced work with a small force, graded three or four miles and stopped, having no more money, and practically abandoned the building of the road.

Those for the plaintiff testify that the railroad company begun work in good faith within the ninety days; that the work was never abandoned, and that the contract has been complied with.

The property tax payers on the 31st December, 1886, voted a tax of five mills for ten years in aid of the construction of the New Orleans, Natchez & Port Scott Railway Company.

This tax was not paid; the road was not constructed.

The parish of Ouachita and the Vicksburg, Shreveport & Pacific Railroad Company entered into a contract wherein the police jury agreed to remit to the Vicksburg, Shreveport & Pacific Railroad Company certain taxes, and it was therefore stipulated that no part of Ordinance 645 should be construed to compel the police jury to pay the H. C., A. & N. R. R. Co. any taxes remitted to the V., S. & P. Co. from 1887 to 1894, inclusive.

This ordinance was adopted by the following vote:

Por special tax, 1419; against, 84; majority in votes cast on the amount of property represented, $1,024,851.80.

The Ouachita Valley Railroad Company, a local company, was oi’ganized and had for its object the building of a railroad on or near the line of the B?. C., A. & N. R. R. Co.

After about $50,000 had been subscribed to the stock of this company and wox’k was about to commence, it is alleged the H. O., A. & N. R. R. Co. became the transferees of the subscription list of the Ouachita Valley Railroad Company, and applied the collections to the building of its road.

The latter company collected about $25,000 of the subscriptions. Stock was issued to the subscribers who had paid up in full.

The defendants contend that the president of the H. O., A. & N. Oo., in consideration of this transfer, consented to renounce any right to the five-mill tax.

This is denied by the president, as a witness.

On the Merits.

The contention that the parish of Ouachita had already previously voted a five-mill tax is not entirely sustained by the facts. It is true that the tax was voted and promulgation was made as alleged in 1886, but no tax has ever been assessed or collected.

The New Orleans, Natchez & Port Scott Railroad Oo. never complied with the condition of the contract upon which the tax was offered, by building any part of the road in the parish of Ouachita, and the. time for compliance has long since lapsed.

The project, favored at one time, of building this road has never materialized, and the record does not disclose the most remote probability that it ever will be.

The article of the Constitution 208 has not been violated for the special tax claimed does not exceed five mills per annum; it not being proven that any other special tax is exigible or ever will be.

The parish taxes due by the V., S. & P. R. R. Oo. had already been disposed of by the ordinance of the police jury.

In view of the disposition made of this tax that body chose to pro - tect itself from.any demand for taxes on the property of this company; at the same time they sought to equalize the burden of parish taxation by not requiring any other tax from the V., S. & P. R. R. Oo. than that in regard to which they had entered into an agreement with this company.

The objection is not made by the taxpayers direct, a large majority of whom voted for the ordinance containing a statement of the conditions of the contract, but by the police jury who is a party to the contract.

Presumably fairness and equity prevailed in the adoption of the contract and ordinance.

There is no evidence of record to the contrary.

The police jury can not defend and defeat the obligation on the ground that it made a discrimination operating unequally against the taxpayers.

The disposition of the tax of the V., S. & P. R. R. Co. does not operate injuriously; the rate of taxation remains the same.

The record does not disclose that this company was exempt from the payment of a tax, bnt that an equivalent to its taxes was realized by the police jury, which prompted them to exempt the company from the payment of certain taxes.

The inequality of taxation caused by exempting property which should not be exempted is really not an issue of the case.

The defendants assail the correctness of the ruling of the District Oourt excluding evidence that minors, tutors, administrators, agents and others were permitted to vote and contend that a large majority of the property taxpayers did not vote in favor of the tax.

The evidence to prove that allegation was objected to on the grounds that the statutes being silent relating to elections, the courts are without jurisdiction to determine the contest of the special election under which the tax was voted, and that the defendants could not question the election returns to ascertain who voted and who did not vote.

The authority which ordered the election, on the petition of the taxpayers, which promulgated the returns and declared them adopted and legal, assails the returns as null and asks that a recount be made and the nullity decreed. The defendants are estopped.

It proclaimed the regularity of this election, which resulted in the acceptance of a contract and the performance of work. It can not question the binding effect of its own acts.

Further there being no statutory authorization, the courts are without jurisdiction.

In the case of the State ex rel. Woodruff et al. vs. E. S. Dortch, President of the Police Jury of Bossier Parish et al., 41 An. 846, the court affirmed the principle announced in 13 An. 89, that “ the contesting of votes is not a judicial function, only so far as made such by special statutes.”

The decision was reaffirmed in State ex rel. Davis, Mayor of Houghton, vs. The Police Jury of Bossier, 43 An. 1009.

With reference to the date, the work and the good faith of the parties.

The railroad company undertook the work within the time and the limits stipulated.

It was at times not active and doubtless did not satisfy the expectations of those who were anxious for railway communication.

The work was interrupted a short time.

The president states, as a witness, that it was occasioned by the apprehension of a contagious disease which threatened the community along the line. The statement is not questioned nor contradicted.

A considerable sum had been expended previous to the contract made with plaintiff, work had been done and surveys made.

It is admitted that plaintiff’s work did not in any respect give cause for complaint, under contract of January 14, 1889, which had been fully complied with September of that year.

One of the plaintiffs testifies that his company took charge of the work under the said contract begun by the H. C., A. & N. R. R. Co. and pushed it rapidly to completion.

The cause of forfeiture, because of abandonment of the work, is not made out, nor does it appear that plaintiffs or their transferrors were ever, at any time, in bad faith.

Invoking the admission that “the Houston Central, Arkansas & Northern Railroad Co. was not completed to a northern connection, or to a connection with the northern States, within the time stipulated and provided in the ordinance No. 634, under which the tax sued in this case was voted,” it is contended by defendant’s counsel that there was failure of compliance with the contract and that the claim for amounts previously voted was forfeited thereby.

~We are considering claims urged to the tax of one year, levied as a bonus to this road.

Plaintiff admits that a northern connection was not made within eighteen months, as required by the ordinance, and that only the first year’s tax was earned. The northern connection was made about thirty days after the time expressed in the ordinance.

Section 5 stipulates that the revenues of the tax for the first year were to be due to said company and exigible on the completion of the road and the running of its trains through Ouachita parish.

The Houston Central, Arkansas & Northern Railroad Company worked in good faith and built its road through said parish, and earned the first year’s tax within the eighteen months’ limitation.

It is next contended that the president of the Houston Central, Arkansas & Northern Railroad Company renounced the said five-mill tax.

It is not pretended that he was authorized by the board of directors.

In the absence of such authority he could not make a gratuitous renunciation of an amount due the company.

A corporation is not bound by the unauthorized acts of its officers. Art. 489, O. O.

No contract was entered into or relinquishment made between this president and the police jury.

His utterances at public meetings can not be construed into a renunciation on the part of the company.

It is not proven, as contended, that the subscription to the Ouachita Valley Railway Company was accepted in lieu of the five-mill tax.

The list was transferred to the Houston Central, Arkansas & Northern Railroad Company, and stock was issued by it for the paid up subscription.

It is not proven that, in addition to the stock issued to the Ouachita Valley Railway for their subscription transferred as before stated, they stipulated immunity from this special tax for the benefit of all taxpayers.

The repeal of the ordinance 684, adopted for the levy of a special tax, is without effect.

The rights acquired can not be affected thereby.

Judgment affirmed at appellants’ costs.


text:
    No. 1423.
    Succession of Ida Meyer.
    There was no property in slaves in 1870, and had Articles 1861 and 1362 of the Code of 1825 been inserted in that of 1870 there would have been nothing upon which in the future their provisions could operate. Their oiuission from the last Code is duo to that fact and not to any intention to control or affect obligations resulting from transactions in the past based upon them
    Liability to collate in a succession by taking loss, resulting from a donation of slaves made in 1852 by a mother to her son, remained unaffected by the subsequent abolition of slavery.
    This obligation to collate in tlie succession of his mother by taking less is binding-upon the children of the son, who come into the succession of their grandmother concurrently with their uncles and aunts, although their father died before his mother.
    There is a distinction between “gifts” and “debts” in the law of collation, and in the present case the grandchildren are not sought to be made [liable for a “debt” of their father by way of collation.

      The entire commissions of an administrator are not properly exigible before the administration is terminated. Prior to this, his commissions on sums received and distributed should be paid, and his rights to the residue reserved for his lhial account. The decision in the Succession of Sparrow, 40 An. 484, affirmed, and its principles applied.
    PPEAL from the Twenty-first District Court, Parish of Iberia. Mouton, J.

      L. O. Hacker for Appellant.

      Foster <& Broussard for Appellees.
   The opinion of the court was delivered by

Nicholls, C. J.

On the 11th of April, 1852, Francois Mestayer and his wife, Ida Mestayer, by public act before Alcibiad6 DeBlanc, notary public, made donations to several of their children, then of age. Among those donations was one to their son, Frederic Mestayer, of two slaves, each valued in the act at the sum of $750. The act declares that the donee shall not be held to collate in kind the said slaves in the successions of his father- and mother, they expressly dispensing him from so doing, but that he shall collate the value of the same by taking less in those successions, the said collation to be by halves in each of the successions at the opening and partition thereof.

The father died intestate in 1872; the mother also died intestate in 1882, leaving as her legal heirs her children and descendants of her children. The son Frederic died before his mother, in 1867, leaving a number of children, among whom are Felix, Carlos, Albert and Henry Mestayer.

On the 24th of May, 1889, Zenon Decuir, administrator of the succession of the mother, Ida Meyer, filed an account and tableau of administration wherein the heirs of Frederic are charged with the sum of $750 as being the one-half of the value of the slaves donated as above stated, as due by them by way of collation in the estate of their grandmother.

In the account mentioned the administrator claims $404.50 as being his commissions at 2% per cent, on the amount of the inventory, which is stated to amount to $16,180.

To this account the four children of Frederic Mestayer, whose names are given above, viz., Felix, Oarlos, Albert and Henry Mestayer, filed an opposition, in which they declare they are the heirs and representatives of Mestayer, their deceased father, who was a son of Ida Mestayer; that their father, an heir of Ida Mestayer, departed this life during opponent’s minority, and that they are the heirs and representatives in all matters wherein he was interested. That as their deceased father’s representatives in the above entitled succession they oppose the account and homologation thereof presented and filed by Zenon Deeuir, administrator, and aver said account is incorrect and erroneous in each and every item charged and carried in both active and passive masses, as well as in the distribution and shares;” they aver that said account is specially incorrect and erroneous in that it has them, as the representatives and heirs of their deceased father, charged with an alleged indebtedness pretended to be due by their said deceased father, when in fact neither opponents nor their father, either before or at the time of the death of Ida Mestayer, nor since, owed anything either to the estate of Ida Mestayer or to her; ” they aver “that they owe the estate nothing, and that the item charged therein as an indebtedness and collation due by them as the heirs of their deeeased? father is an erroneous and incorrect charge, and should be stricken from the account; that the amount of $750 charged as due by them is incorrect and not due; that if the same represents the purchase price of anything, which is denied, it is of certain slaves, which is not legal and uncollectable and therefore erroneous and incorrect; that even if it was a valid and legal debt, which is denied, the same has long since prescribed, and opponents plead specially the prescription of three, five, ten and twenty years.”

They further oppose the account filed, averring that “it is incorrect and erroneous in that it allows the administrator commissions on the full amount of the inventory, bad debts included, when in law and in fact he is entitled only on what amounts he has under his control and has collected, or the amount of the effects of the succession committed to his charge, bad debts excepted.

The trial of this opposition resulted in a judgment that “ the said opposition be maintained in part only, and that the account be so amended and corrected as to strike therefrom one-half of the item and charge of $750 erroneously carried therein as an indebtedness due by opponents to said estate as collation for the value of two slaves, and that in all other respects the opposition be dismissed and rejected.”

From this judgment the administrator has appealed, and the opponents have filed in this court a motion praying for an amendment of the judgment “so as to strike from the administrator’s account the entire amount of $750, and so as to reduce the administrator’s commissions to the amount allowed by law on the sums actually collected and disbursed by him, and not on the entire inventory ; and they pray that in all other respects the judgment of the lower court be affirmed.”

We have copied extensively from the pleadings as being the simplest and best method of showing the issues between the parties.

No mention is made in the brief of opponents’ counsel of the exception of prescription filed in the lower court. It is well to state, before proceeding to examine the questions arising in this case, that the effect of charging up the branch of the heirs of Ida Mestayer of which the opponents are some of the representatives, with the sum of $750 by way of collation, is not to bring it into debt, but that in spite of the collation of that amount that branch figures in the tableau as being entitled to^receive over $300. There is no claim or pretension that the heirs of Frederic Mestayer, or any of them, will, as the result of the collation charged, remain under any personal liability either to the estate or to the co-heirs. The question, therefore, in this ease, is not as to an “indebtedness” either to co-heirs or to creditors, but as to the amount which the children of Frederic Mestayer are entitled to receive from the estate of their grandmother (9 An. 97; 23 An. 299). But whilst there is in this case no question of any personal liability over and above the share of any of the heirs of Frederic Mestayer, it will not escape notice that, had such a question been presented, the opponents have placed themselves before the court as the heirs of their father.

An examination of the pleadings of the opposition will show that it was based upon the idea that the heirs of Frederic Mestayer were charged with the sum of $750, as being debtors to that amount for the price of two slaves purchased of their father, and that their contention was for non-liability on the ground that the slaves sold had been emancipated, and that by reason of that fact they had been released from all obligation.

The claim for non-liability from collation on the ground that the slaves had been emancipated, and that the loss resulting therefrom should be borne by the succession of the donor, and on the further ground that by reason of the death of their father prior to their grandmother, there was an absence of any liability on their part to collate at all, seems to have been an after-thought.

There is no evidence in the record to show that the particular slaves donated to Frederic Mestayer were ever emancipated, andnone to show where they were or what had become of them when emancipation took place. By the very terms of the donation to Frederic Mestayer from his parents, the precise course to be followed by him as to the matter of collation was fixed and agreed upon. He could not be called upon to collate in kind, and it was expressly stipulated that he was to collate by simply taking less to the extent of §1500, the estimated value of the two slaves. This would have been his position under Arts. 1361 and 1362 of the Civil Code of 1825, independently of any stipulations on the subject. The position was simply strengthened by the expressed will of his parents, consented to be by him followed.

Art. 1361 of the Code of 1825 (which was the code at the time of the donation) declares that when slaves have been given the donee is not permitted to collate them in kind — he is bound to collate for them by taking less, according to the value of the slaves at the time of the donation, and therefore (says Art.- 1362) “the donation of slaves contains an absolute transfer of the rights of the donor to the donee in the slaves thus given. They are at the risk of the donee, who is bound to support their loss or deterioration at the same time that he profits by the children born of them, and if the donee disposed in good faith of any or all of the slaves the action of revendication for recovering the slaves on the part of his co-heirs for the collation due to them, will not lie against those who are the purchasers or holders of the slaves.”

Had it been proven, therefore (which it was not), that the slaves had been lost whilst in the ownership of their father or themselves through their emancipation, that fact would have had no legal effect in this case. See 34 An. 457; 40 An. 335.

But the plaintiffs say that the Code of 1870 and not that of 1825 must govern this case, as it was that in existence at the date of the death of Ida Mestayer, and coupling with Art. 1250 of the present code, which declares that immovable property given by a father, mother, or other ascendant to one of their children or descendants, and which has been destroyed by accident while in the possession of the donee and without his fault, previous to the opening of the succession, is not subject to collation, the fact that Arts. 1361 and 1362 of the former code are not in that of 1870, they deduce the consequence that Frederic Mestayer and his children are not bound for any collation in the matter of the slaves. This result they reach by declaring that slaves are immovable property, by.assuming as true and proved (which has not been done) that the slaves were emancipated and hence destroyed under the terms of Art. 1250, R. C. O., and by arguing that by the effect of the non-appearance of Arts. 1361 and 1362 in the Oode of 1870 these articles were repealed, and the liability to collate as resulting from transactions anterior to the Code of 1870 was extinguished. The only reason why Arts. 1361 and 1362 of 1825 were not reproduced or continued in the Code of 1870 was that at that time there .was no property in slaves and there would be nothing in the future upon which such articles could be made to operate. There was no repeal nor intention nor attempt to repeal those articles, so as to evade or affect the rights or obligations of parties who had acted on the strength of them in the past. The rules of collation as respects slaves contained in Arts. 1361 and 1362 were special rules on that particular subject, totally independent of any classification of them as to being movables or immovables. Slaves have for some purposes been dealt with by the law as movables, and for others as immovables.

The Code of 1870 did not place them in either .one .class or the other or deal with them at all from the standpoint of property; it simply ignored them for the future. The rights and obligations of parties as arising from past transactions were unaffected by that fact.

Butthe opponents say that, granting that their father, holding as the donee of slaves under an act in which it was stipulated that he should collate for their value by taking less in the succession of the donor, should, both by the terms of the act of donation and under tñe law (Arts. 1361 and 1362), be held to acompliance with the obligation of collating by taking less, yet they, as her children, are not committed to nor held by that obligation, for the reason that their father having died before their grandmother they came into the succession of the latter as “heirs in their own right,” freed from any obligation of collation for -which their father would have been bound, whether in kind or by taking less, and whether resulting from donations to him or debts due by him to the succession, and they claim they are justified in so asserting by the decisions of this court in the cases of Destrehan vs. Destrehan, 4 N. S. 557, the succession of Morgan, 23 An. 299, and Calhoun vs. Cosgrove, 33 An. 1004.

It is not true that these opponents came into, or could come into, the succession of Ida Mestayer “ in their own right,” for in point of fact, and ignoring the fiction of representation, they stand in the second degree of relationship to their grandmother, whilst the latter has now living a number of children, who stand toward her in the first degree. The effect of placing the children of Frederic Mestayer into their actual degree of relationship would be to exclude them altogether from the succession. Independently of representation the nearest relation in the descending line is called to the legal succession. O. O. 877-878. These children come into the succession of their grandmother not in their own right, but by representation of their father, for all the heirs of Ida Mestayer are in the direct descending line, and Art. 895 of the Oivil Oode, speaking of representation, says: “ It takes place ad infinitum in the direct descending line. It is admitted in all cases, whether the children of the deceased concur with the descendants of a predeceased child, or whether all the children having died before him, the descendants of the children be in equal or unequal degrees of relationship to the deceased.” Now, if this be true, how do these opponents stand relatively to the question of collation? Art. 1240 of the Oode, referring to grandchildren, says: “ In like manner the grandchild, when inheriting in his own right from the grandfather or grandmother, is not obliged to refund the gifts made to his father, even though he should have accepted the succession, but if the grandchild comes in only by right of representation he must collate what has been given to his father, even though he should have renounced his inheritance.”

But, say the opponents, if this be so, collation by grandchildren, situated as they are, does not extend to “ debts ” due by the father, and the obligation of their father in this case is a debt of his. An obligation to collate in a succession by- taking less resulting from a donation to a presumptive heir of slaves, and which obligation to collate by taking less is affixed by law and by the terms of the donation, is not, in a legal sense of the term, a “debt” of the father..

In 9 An. 97, the court said that to hold that an obligation to collate was discharged by bankruptcy proceedings would be subversive of the principle consecrated in our Oode that the obligation of collating is founded on the equality which must be naturally observed between the children and other lawful descendants who divide among themselves the succession of their father, mother and other ascendants. It further said that such an obligation could not be viewed as a “ debt” reached by the bankrupt law — that it was nothing more than the receipt of the share of an heir in advance. In speaking on this subject it said that, were the heirs in that particular case seeking (which they were not) to receive the overplus which the opponent had received beyond his share, a different question would be presented.

Were this obligation to be considered in this case in the light of a “ debt ” of the father, the rights and obligations of these opponents, independently of collation as resulting from their acceptance of the quality of his heirs and representatives, would have to be discussed, but the obligation which we are considering in the matter before us has no such character.

The decision in Destrehan vs. Destrehan, 4 N. S. 557, cited by opponents, is directly against their pretensions when applied to the facts of the present case.

In the matter of the Succession of Morgan, 23 An .299, there was no question of “collation” involved, the heirs being not in the descending, but all in the collateral line, the issue besides being simply under the circumstances therein shown as to the distributive share to be taken in the succession of an aunt by a nephew, in a case where the father of the latter had died before the aunt, heavily indebted to her, and where the son having renounced his father’s succession, claimed as an heir in the succession of the aunt by “ representation ” of the father.

The syllabus in the matter of Calhoun vs. Cosgrove et al., 33 An. 1004, is broader than is justified by the decision itself. The court in that case said that, conceding that both Mrs. Calhoun and Mrs. Cos-grove (whose children were sought to be made liable in the succession of the grandmother for moneys received by them from their own mother) — conceding that both Mrs. Calhoun and Mrs. Cos-grove had received from their mother the amounts charged agains t them, it did not find that they were given them en avanoement d’hoirie —that the utmost it could find was that those ladies received those amounts, and that they died “indebted” for the same to their mother —that it was important to bear in mind not only that Mrs. Cosgrove and Mrs. Oalhoun died before their mother, whose heirs they never were, but also that their successions were accepted by mere operation of law in behalf of the minor children.

The court went onto say that, such being the case, those children, coming in their own right to the succession of their grandmother, were not bound to collate debts due her by their respective mothers. The question there was whether in a succession situated as was that of Mrs. Garrett her grandchildren could be made to collate, not donations nor advances made to their parents, but “debts” due by them to the succession of the grandmother. It is true that the court, in speaking of the manner in which the grandchildren had succeeded in that succession, said they had done so in their own right, but those words were not intended to be used as going to declare that they had not succeeded in that successionby “representation.” They were simply used for the purpose of showing that heirs might go into a a succession under such peculiar circumstances that although “representing” a person, none the less “representation” did not extend in that particular case so far as to carry with it, as a consequence, a liability by way of “collation” for the debts of the person represented.

The term “ inheriting in one’s own right” is a technical one used to contradistinguish that method of inheriting from “inheriting by representation” O. 0., 902-1028. Marcade under Art. 769,0. N. section 2.

We are of the opinion that the children of Frederic Mestayer are bound and should be held to collate by taking less in the succession of their grandmother, Ida Meyer, for the sum of $750, as resulting from the donation of Francois Mestayer and wife to their son, Frederic, of two slaves, in the public act before Alcibiade DeBlanc, notary public, on the 11th day of April, 1852. It is evident that the judge of the lower court was of this same opinion, but that he made an error as to the amount to be collated, doubtless from not noticing that there were two slaves, and not one, donated in that act, for had the judge thought otherwise he would have ordered the striking out of the account the whole sum of $750, instead of reducing, as he did, the item to one-half of its amount. This error will have to be corrected.

In regard to the amendment asked by the opponents respecting the commissions of the administrator, we were inclined to believe, from the situation and condition of affairs as shown by the account filed, that the succession of Ida Mestayer was in a position such as to be practically and substantially closed, but the administrator himself, in the account filed, designates it as a “provisional” one. What his motives for this may have been we do not know, but there must have been, in his opinion, some good reason for it. In view of that fact, and in view of the incompleteness of the record before us, we do not think that the administrator should be accorded, for the present, more than commissions at 2X per cent, on the sum of $4911, that being the amount received and accounted for by him in the account filed by him, and that the question of his right to other and greater commissions should be reserved to him to be advanced and passed upon in further future proceedings.

For the reasons assigned in this opinion it is hereby ordered, adjudged and decreed that the judgment of the court below be so amended as to replace in the account and tableau of Zenon Decuir, administrator of the succession of Ida Meyer, to the full amount of $750, the item ordered to be reduced by the judgment below by striking therefrom one-half of the same, and that the opposition of Felix, Carlos, Albert and Felix Mestayer to that item be and the same is hereby rejected in its entirety, and the said item being so replaced on the said account for its original amount, the account as to said item be and the same is hereby approved and homologated. It is further ordered, adjudged and decreed that the judgment of the court below as to the item of administrator’s commissions be so amended as to limit for the present the commissions of Zenon Decuir, administrator, to 2 % per cent, on the sum of $4911, with the right reserved to him to recover the residue to which he may be entitled on the final settlement of the succession. It is further ordered that opponents pay the costs of this appeal.

Breaux, J. Having been of counsel is recused.


text:
    No. 1424.
    Marguerite Broussard vs. Alphonse L. LeBlanc, Sheriff, et als.
    1. In case a creditor causes property, standing in tlie name oí his debtor, to be seized under ft. fa. and he is met by an injunction, he can not defeat the claim of the enjoining plaintiff by setting up the bar of an alleged judicial mortgage.

      2. The proof disclosing that an apparent sale by a married woman to one who is a creditor of her husband has no other consideration than the indebtedness of the latter to the vendee, and that, after the transaction, it remains intact and unsatisfied, the act will be esteemed a mere security for the debt, and, as such, absolutely void.

      B. If the vendor in such a transaction remain in possession of the property subsequently, the creditor of the alleged vendee can not successfully interpose the act as a complete bar against secret equities and latent ambiguities therein.
    A PPEAL from the Twenty-fifth District Court, Parish óf Vermillion. Mouton, J.

      L. L. Bourges for Plaintiff and A.ppellee.

      W. A. White, Lastie Broussard and W. W. Edwards for Defendants and Appellants.
   The opinion of the court was delivered by

Watkins, J.

When this case was last before us the plaintiff’s petition and the defendants’ exception were analyzed, the judgment dismissing the suit overruled and annulled, and the cause remanded and reinstated for a trial on the merits. 43. An. 937.

The cause of action is sufficiently stated in our former opinion, and it needs no recapitulation. .

It is sufficient to premise that the plaintiff, a married woman, claims the ownership of the property, in her own paraphernal right, and, by injunction, seeks to restrain its sale as that of the seized debtor, the defendant, Joseph S. Nunez. Her averment is that her husband, Demosthenes Nunez, unduly influenced her to sign a pretended act of sale purporting to convey said property to Joseph S. Nunez; whereas it was, in fact, only intended to be a security for the debt of her husband to the said ostensible vendee, she,never having received any part of the consideration named therefor in the deed of sale.

She further avers that said pretended sale is simulated, fraudulent and void, and conferred no title upon the vendee, and that, as a security for the payment of the indebtedness of her husband, same was made in direct violation of a prohibitory law, and consequently the act was, and is, an absolute nullity, either as a sale, pledge or mortgage.

In our opinion we held that the theory of the plaintiff is that the document in question was one of an hypothecary or pignorative character, or if it was intended to be a sale, it was a fraudulent simulation. And that the defendants’ theory is that.it was a sale, and the plaintiff without a cause of action to assail it.

The several defendants and seizing creditors unite in making answer, and admitting plaintiff’s acquisition of the property, as she has averred, andits seizure under execution as alleged, they represent that the judgment debtor, Joseph S. Nunez, acquired same from the plaintiff under a bona fide sale in 1879, and without any fraud or simulation. In the alternative they aver that if said sale should not be held binding and valid between their debtor, Joseph S. Nunez, and the plaintiff, yet they, as third persons, without knowledge of any defect in said sale, have acquired a judicial mortgage upon the property which attaches thereto by virtue of the duly recorded title of the former, and are entitled to enforce same by seizure and sale, without regard to any secret equities that may exist between the parties thereto.

Their prayer is that the plaintiff’s demands be rejected at her cost, that they be allowed to proceed with the seizure and sale, and that the plaintiff be taxed with the sum of $150 as counsel fees for dissolving the injunction.

On this statement of the case this is a third opposition coupled with an injunction, to which the opponent sets up title to the property under seizure, averring the illegality of the apparent outstanding title of the seized debtor; and the seizing creditors, first affirming the verity and bona fides of the title of their debtor, in the alternative allege their legal mortgage upon it, merely as a reason why they ought not, as third persons, to be affected by secret equities and latent ambiguities in the title.

Had defendants been in the pursuit of the property in the hands of a third party, by the way of the hypothecary action in the attempted foreclosure of their alleged judicial mortgage, and plaintiff had intervened and resisted its enforcement, the question of its enforceability would have been an issue properly presented for trial and decision; but they proceeded by direct seizure against the property in the alleged possession of their judgment debtor, and by execution, via ordinaria, and this seizure was enjoined by the plaintiff, alleging possession in herself.

On such pleadings the mortgage rights of the defendants can not be determined; and, indeed, if such mortgage be assiimed to have an existence, it conld be given the effect of restraining conveyance of the property, as it might well pass cum onere.

Stripped of the question of judicial mortgage vel non, and the case presents no serious difficulty for solution.

The evidence clearly establishes' plaintiff’s demand. She acquired title to the property under an execution sale against her husband, and thereunder went into actual possession thereof as her paraphernal property.

In 1879 she executed an act which is, in terms, a sale of said property to J. S. Nunez, for the expressed consideration of $2000 in cash, less a note for $833.97, with interest accumulations aggregating altogether $1123.23; but the proof shows that, in point of fact, no consideration was paid to the plaintiff, as vendor, in cash or note; and that the real purpose and object that was intended to be accomplished by the transaction was the security of the note of Demosthenes Nunez, plaintiff’s husband, for the amount stated in favor of the vendee. The proof .shows further that, notwithstanding the recital of the act to the contrary, no note was executed by Joseph S. Nunez in favor of the plaintiff; and in fact he continued to retain possession of the note he held against Demosthenes Nunez. The proof discloses further that subsequent to the execution and registry of said pretended act of sale the plaintiff retained the actual occupancy and possession of the property for many years; and that Joseph S. Nunez “never took possession” of it under his deed.

Under this state of facts the plaintiff is clearly entitled to have the judgment in her favor affirmed.

It is quite true, as a matter of equity — and this court has repeatedly maintained the principle — that, in case a party in possession under a recorded title executes a special mortgage thereon in favor of a third and innocent mortgagee, who advances money upon it, he nor his vendor can successfully attack and defeat it, on making proof of secret equities and latent ambiguities in the title; but we are not aware of this principle of equity having been extended so as to embrace a judicial mortgagee whose rights arise by simple operation of law; much less to an ordinary seizing creditor.

But, in any event, this principle is without application when the ^mortgagor is out of possession of the property mortgaged, as in this case. Hunter vs. Buckner, 29 An. 604.

This is the view entertained on this question by our learned brother of the lower court, with whom we quite agree; and we likewise agree with him with reference to the question of plaintiff’s being estopped by her deed.

As he very justly observes, there is in the record neither allegation or proof of the defendants or their subrogor, the State, having been thereby influenced to change their situation in reference to Joseph S. Nunez on its account.

To our thinking, the case was properly disposed of.

Judgment affirmed.