author: Lude ling, C. J. Taliaferro, J., Wyly, J.

text:
    No. 3177.
    Lucien Bland et als. v. Edward Lloyd et als.
    A tutor has the right to purchase at the sale of the minors’ prpperíy which he is administering, if he be the surviving partner in community, or an heir or a legatee of the deceased. .
    In a suit by the heirs to recover the property of their ancestor, which has been sold by the tutor, on the allegation that the sale made by the tutor through the agency of a third person ia a nullity, parol evidence is admissible to show that the estate was in debt, and that the purchase money went to discharge the debts of the estate, and that the balance was divided among the heirs of age.
    Where property of an estate which is largely in debt, represented by a tutor, has been, under the advice of a family meeting, sold at judicial sale, and the proceeds of the sale have been applied to the payment of the debts, and the balance has been divided among the heirs in pursuance to the advice and directions of a family meeting, the sale is valid and binding upon the heirs. In such a case the heirs oí age having taken the residue of the price of the sale and divided it among themselves, before they can institute and prosecute a suitfor the recovery of the property on the ground that the sale was a nullity, must return or offer to return the price they have taken or which inured to their benefit — they not being permitted to hold on to the price and at the same time prosecute a suit for the recovery of the property itself.
    from the Thirteenth Judicial District Court, parish of Tensas. Sough, J.

      Julius Aroni and W. B. Spencer, for plaintiffs and appellees. Thomas P. Farrar and Sparrow & Montgomery, for defendants and appellants.
   Lude ling, C. J.

This is a petitory action. The plaintiffs Lucien Bland and Ella Bland allege that they are children of Emeline Bland, •deceased, and Maxwell W. Bland; that their mother left six children, viz: George and James S. Douglass, issue of her first- marriage, and Lucien, Ella, Archibald and Richard, issue of her marriage with Maxwell W. Bland; that the plantation of their said mother, called “River Plantation,” comprising fourteen hundred and forty-two and eighty©ne-hundredths acres, was divided between the children of her first marriage and those of her second marriage, and that the Bland children •received the “ rear half,” containing seven hundred and twenty-one and forty-one-hundredths acres. They allege further, that on the fourteenth day of October, 1859, while they were yet minors, the said Maxwell W. Bland, their father and tutor, applied to the court for an order of sale; that the order was granted, and that the sheriff proceeded to sell the said property in accordance with the terms fixed by a family meeting, and that at the sale J. J. Person apparently became the purchaser, although, in fact, their said tutor Maxwell W. Bland was the purchaser, contrary to law. They allege that the sale was a nullity, and pray to be declared the owners of twenty-three-fortieths thereof, and that the sale to J. J. Person, and the sale to Lloyd be annulled and set aside. Subsequently they filed an amended petition in which they aver that Richard Bland has died, and that Archibald Bland desires to become a party plaintiff, and they pray that their half sisters and brothers, issue of the marriage of their father with Mary Clark be cited through a curator ad hoc, and they pray that James S. Douglass, through his assignee Rollins, George Douglass and Archibald Bland be made parties, plaintiffs.

There was judgment in favor of Lucien Bland, Ella Bland, George and James S. Douglass, for the use of A. Rollins for an undivided interest of six hundred and thirty-three acres of said rear half of River Plantation.

From this judgment the defendant has appealed. On the trial the defendant offered to prove that Maxwell W. Bland placed large and valuable improvements on the plantation during the marriage to show he was interested in the community, which was objected to on the grounds that it was inadmissible under the pleadings, and that defendant had admitted in his answer that M. W. Bland liad no interest in the land in controversy; second, that the issue in this case was title to real 'estate, and the evidence was irrelevant: and third, that it was an attempt to prove title by parol. We think the objections not tenable. The object of the proof was to dispose of the allegation that the tutor could not buy at the sale, if it should be held that he had bought. If he was interested in the community or in the succession he had a right to purchase at the sale. The law authorizes tutors to purchase at the sale of the effects of the deceased, whose estate he may represent, when lie is the surviving- partner in community or an heir or legatee of the deceased. Revised Statutes, p. 9, section 12.

He administered the estate of his wife- as tutor, as the creditors did not demand the appointment of an administrator. 2 An. 462; 4 An. 561; 10 An. 534;. 14 An. 641,567; 7 R. 24.

Another bill was taken to the reception of the testimony of James S. Douglass, to prove that Maxwell W. Bland had admitted to him in a private conversation many years before, that the estate was not in debt, on the ground that it was hearsay. We think the objection goes-to the effect rather than to the admissibility of the evidence. Bland is made a party to this suit, and his admissions, as a general rule, may be given in evidence ; but it is well settled that the loose declarations-of a party, since dead, made in conversations, is the weakest kind of evidence and is entitled to little or no weight. Pagaud v. Anbesson, 10 La. 355 ; Stancil v. Gilmore, 6 An. 763 ; 2 R. 299 ; 7 R. 111 ; 6 An. 113, 146 ; 8 An. 277 ; 10 An. 279 ; 14 An. 274.

The plaintiff took a bill of exceptions to the reception of the testimony of Person, on the grounds that Lloyd, the defendant, can not dispute the title of his vendor, and he “can not dispute, vary or-contradict his admissions in the authentic act ” evidencing his purchase; that plaintiffs’ title cannot be destroyed nor defendants’ established by parol proof, nor by proof of fraud; and that as the law declares a purchase of property belonging to his ward by a tutor, through the agency of a third person or otherwise a' nullity, proof that the price enured to the benefit of the minors can not be admitted. The judge a quo correctly overruled the objections.

The objections were not applicable to the testimony offered. The testimony was introduced to prove that the estate of Mrs. Bland was in debt; that the price of the property sold went to discharge the debt of the estate and the surplus was divided among the heirs of age and tifié minors through the agency of their natural tulor, and to disprove the allegation that Person was the agent or representative of Bland, the tutor at the succession sale. 10 An. 784 ; 4 An. 555 ; 5 An. 248 ; 14 An. 710. The evidence proves the following facts:

In November, 1858, Maxwell W. Bland, tutor, petitioned for the convocation of a family meeting to advise as to the sale of the rear half of the river plantation.” The meeting was convoked; it advised the sale and fixed the terms thereof. In March, 1859, Lloyd, Sr., visited the said plantation and agreed to buy it at $70 50 per acre. Bland obligated himself in a penal bond to make him a perfect title and to guarantee the same. The “River plantation” had been previously divided between the heirs — the two Douglass children, -who were of age, taking the front and the Bland children taking tile rear half thereof. In October Blan'd obtained an order for the sale of the rear half, and in November, after due advertisement, the property was adjudicated by the sheriff to J. J. Person for the appraised value of the property and on the terms fixed by the family meeting. It appears that at this time the estate was indebted to J. j. Person & Co. in the sum of $90,000. J. J. Person swears that “ Mrs. Bland and her heirs were indebted to me individually, about the first of January, 1860, $67,098 10, and to J. J. Person & Co., New Orleans, in an amount to make about $90,000.” Person paid the cash installment, and gave his two notes to the tutor, as appears from the jwooes verbal of the sheriff. Bland thon procured an order of court on the advice and recommendation of a family meeting to authorize him to permit Person to cash his two notes, which appears to have been done.

In December Bland executed a power of attorney to Person “ to sell the whole or any part of ‘River Place,’ and within a few days thereafter Person sold to Lloyd the whole 1 River Place.’ ”

In the act of sale, it is declared that “Maxwell W. Bland, of Washington county, Mississippi, is the owner of said land, but placed the same in his name for convenience, and he (Person), acting in the capacity of agent and attorney in fact of said Bland by virtue of a power of attorney, etc., hereby promises and binds his said constituent to warrant and forever defend said land,” etc. Person’s wife joins in the act and makes the usual renunciations, and Person signs the act for himself and for Bland. Person, in his testimony, says that “he does not know and does not suppose that Bland had any title to the land; ” but he warranted to give Lloyd, Sr., his (Bland’s) warranty, as I told him that my deed was only a quit claim deed.”

From a careful analysis of the evidence in- this case we have come to the conclusion that Maxwell W. Bland was not the purchaser at the sheriff’s sale, but that J. J. Person was the purchaser; that he bought with the view to secure the payment of his debt and to aid 'M. W. Bland in carrying out his agreement to make a title to Loyd, Sr., and give him a warranty title.

That no fraud was intended and no injury resulted to the succession or heirs from the sale; that Lloyd bought in good faith and paid a very high price for the property, to wit, $97,823 57 in cash ; that $90,000 of this' amount was applied to the payment of the debts of Mrs. Emeline Bland and the heirs, and the remainder was divided, one-half to George and J. S. Douglass, and the other half to the tutor of the minors; but whether all the debts were created for the benefit of the estate, after Mrs. Bland’s death or not, is unimportant. The price received enured to the benefit of the heirs, and they can not enrich themselv.es at the expense oí the bona fid'e purchaser. In equity and under the law the plaintiffs can riot sue for the nullity or rescission of this sale without first offering to restore the price paid by the defendant. C. C. art. 1902; 13 An. 213; 21 An. 383; 24 An. Barelli v. Gauche.

We are further satisfied that Bland, the tutor, was a legatee under the will of Mrs. Bland, and the surviving partner of the community, and that he was interested in the succession and in the community,, and that he might therefore have lawfully purchased at the succession, sale had he done so.

It will be observed that not only the rear half of the plantation was-sold and delivered to Lloyd, but that the front half also was sold by Person, under the power of attorney from Bland. This front half had been up to that time in possession of the Douglass heirs, who'were-majors. How did Lloyd get possession without their consent, and why have they slept so long on their rights while a trespasser was enjoying the fruits of their property 9 Is it not fair to presume that the division of the property had been made only for the convenience of the heirs,, and that when an opportunity was offered to sell the whole plantation for a large price they had consented to permit Bland, their stepfather,, to sell the front half for the same purpose that Person alleged the title (which was in himself) to be in Bland, to wit, that he might make Lloyd a title with his warranty, in conformity to his penal obligation. Be this as it may, the plaintiffs have failed to establish the nullity of' the sale to Lloyd. The sale to Person, which is attacked collaterally in. this suit, is not shown to have been made to Bland, even if the right to attack the sale in this manner and without making Person, thevendee, a party, be conceded.

They must fail for the further reason that they have not offered to return the price which inured to their benefit.

It is therefore ordered that the judgment of the lower court be annulled and that there be judgment rejecting the plaintiffs’ demands,, with costs of both courts.

Taliaferro, J.,

dissenting. I do not concur in the opinion of the majority of the court for the reason that, as I understand the evidence, the sale of a large and valuable estate belonging to minors of tender years, and derived to them by inheritance from their mother, whose estate at her decease is not shown to have owed a dollar, was sold by their tutor in pursuance of a private agreement made by him with Lloyd. It is clear to me that the tutor has in this instance by using-the machinery of the law, which is intended to guard and protect the interests of minors, endeavored to divest his wards of their rights to-the property in question. He first enters into an unconstitutional act of sale of the property to Lloyd, obligating himself to make a title free from all encumbrances, has it sold, buys it himself through a party, interposed then according to and in fulfillment of his agreement with the purchaser, makes him a title with full warranty. This act he did in contravention of a prohibitory law. Article 337 of the Civil Code is express, that “ the tutor can not either personally or by means of a third person purchase, lease or hire the property of the minor or accept the assignment of any right or claim against his ward.” Lloyd dealt with a party not having the right to sell, and therefore dealt with him at his peril. Bland, the tutor, had no right or interest in the property of the minors which could possibly give him any right to bid for or purchase their property. In. order to bring more prominently into view the facts of this case, I will advert to some proceedings which had been taken previous to this contract between Bland and Lloyd.

After the death of Mrs. Bland, which occurred in 1849, an order of the district court was rendered for a division in kind of the tract of land, containing fourteen hundred and sixty acres, in order to effect a partition between the present plaintiffs and children of Mrs. Bland by a previous marriage The land thus falling to the plaintiffs was theirs-by inheritance from their mother, and it was so decreed. In November, 1858, Bland, as natural tutor of his children, provoked the assembling of a family meeting for the purpose, it seems, to advise the sale of' their land. The meeting advised the sale and recommended the investment of the proceeds in other lands. Their action was approved and homologated by the court, but no order was then rendered. In October, 1859, however, in order to carry out his contract with Lloyd, entered into, as we have seen in March of that year, Bland applied for and obtained an order for the sale which was rendered according to the terms prescribed by the family meeting, to wit: One-third in cash, and the remainder in one and two years. The property was sold on the nineteenth of November, 1859, and Person, by attorney in fact, became the purchaser. In the deed of the sheriff Bland acknowledged to have received the money and the notes. Two days afterward, on the twenty-first of November, a petition, at the instance of Bland, was presented to the court, representing that Person wished to pay the two notes in cash, and praying that a family meeting be convoked to authorize the tutor to accept the proposition. The meeting was held on the twenty-fourth, and the authorization prayed for was granted, and the order rendered accordingly. On the twenty-seventh of December, 1859, before a notary in New Orleans, Bland executed a power of attorney authorizing Person as his agent 'to convey title to Lloyd of ■the land in question, and on the second of January, 1860, Person in the capacity of Bland’s agent and attorney in fact by a notarial act made the deed to Lloyd. In this act of sale Person, who figured as the purchaser of the land on the nineteenth of November preceding made the following declaration:

“ And the said James J. Person declares that Maxwell W. Bland of Washington county, Mississippi,* is the owner of said land, but placed, the same in his name for convenience, and he acting in the capacity of agent and attorney in fact of said Blank, by virtue of a power of attorney passed before the undersigned notary on the twenty-seventh of December, 1859, hereby promises and binds his said constituent to ■warrant and forever defend said lands against all legal claims and demands whatever, and guarantees this title to the same in every respect.”

This act of sale was accepted and signed by Lloyd. Lloyd sets up in his answer that if there were fraud aud collusion between Bland and Person that he was no party to it, and ought not to suffer on that account. He further charges in his answer that at and prior to the date of said conveyance to Person the said succession and heirs of Emeliue W. Bland, plaintiff’s mother, were for and on account of said property very largely indebted to said Person, who had been for a series of years the factor and commission merchant for said succession j that the said Person applied the proceeds of the property to the payment of that indebtedness of the plaintiffs, a small portion being used by Bland to carry on the Buck Ridge plantation, the property of the plaintiffs. Lloyd accepted a deed of conveyance from Bland which made known to him that Bland and not Person was the purchaser of the property, and therefore that he purchased at his peril. The allegation that Mrs. Bland’s succession was burdened with debt, is not made out by the evidence. Neither is it shown that the indebtedness alleged was contracted on account of the minors. Mrs. Bland died in 1849; the dealings with Person as factor and merchant did not commence until 1851 or 1852, and probably later. Person testified as a witness that the plantation was sold in 1860 to pay the debts of Mrs. Bland and heirs and to enable Bland and the children of the first marriage to divide the property. In the petition of Bland for the family meeting that was convened on the thirtieth November, 1858, .and which authorized the sale, there is not a word about the indebtedness either of Mrs. Bland’s succession or of the minors. No necessity was declared to exist for a sale of a valuable and productive plantation. The act was put on the ground of expediency. The question presented for the consideration of the family meeting was whether under the circumstances it would not be to the interest of the minors that the land should be sold and the proceeds reinvested in other lands. There is no exhibition of the revenues of the plantation and the expenses of the minors showing that the expenses necessarily incurred by the tutorship exceeded the revenues of the miuors.

The heavy indebtedness pretended to exist against the succession of Mrs. Bland and held up as a justification of the sale of the minors’ estate is certainly not shown. On the- contrary, all the facts in the record tend to satisfy me that this indebtedness was created by the tutor himself upon the credit of his children’s estate, to subserve his own purpose, and that little or none of it inured to the benefit of the minors. It surpasses belief that an estate of the productive capacities of that tailing to these minors could not support them, but in the course Of less than ten years should fall in debt ninety thousand dollars. Even had these been debts against Mrs. Bland’s succession {and none whatever are shown), they should have been extinguished and large net revenues preserved by their tutor, if he had discharged his duties. As to the pretensions of the defendant that he was an innocent purchaser and should be protected, I rather think the authority of justice more properly invoked by the plaintiffs to shield them from acts against which they were defenseless and which were concocted and carried out by the one to whom mainly the law confided their rights. I think the judgment of the lower court should be affirmed.

Wyly, J.

I concur in this dissenting opinion.

Rehearing refused.


source: Caselaw Access Project

author: Ludeling, C. J.

license: Public Domain

text:
    No. 4092.
    State ex rel. Durapan v. Judge of the Fourth Judicial District Court.
    The clerk of the district court who has been suspended, irom exorcising the functions of hie* office by the judge of the court has the right to have the legality of such order reviewed on appeal, and a mandamus will issue on application of the clerk, commanding the judge to grant an «appeal.
    for a Writ of Mandamus.

      J. X>. Augustin, for relator. JR. Beauvais, lor respondent.
   Ludeling, C. J.

The relator, according to the sworn allegations of his petition, was suspended irom exercising the functions of the office-of Clerk of the Fourth District Court of the parish of St. Charles by the judge thereof, under section 1955 of the Revised Statutes.

The ouly question presented for decision now is, whether the relator has a right to appeal from that judgment of suspension1? The relator alleged in his answer that the law under which the judge was proceeding was unconstitutional. We think it is clear that he has a right to have an appeal to decide that question. The defendant has failed! to file an answer to the rule nisi.

It is therefore ordered that the mandamus be made peremptory.


author: Taliaferro, J.

text:
    No. 4358.
    E. B. Marmillon v. E. R. Archinard.
    Tbo builder’s lion and privilege allowed by law on the building erected by the contractor only dates and takes rank from tho day it is recorded in the office of the Recorder of Mortgages. The recording of a detailed statement of the amount due, attested under the oath of the builder, only gives him a privilege on the building from and after it is recorded. It does not date back to the time of the contract for the erection of-the building. Other mortgages or privileges of prior date of rocord will therefore take precedence over such a privilege in the distribution among tho creditors of the proceeds of tho sale of the property.
    from the Fourth District Court, parish of Orleaus. Théwrd, J.

      A. L. Tissot, for plaintiff and appellee. A. Bobert and Albert Yborhies, for intervenor appellee. Semmes & Mott and M. M. Oohen, for intervenor and appellant.
   Taliaferro, J.

A contest is here presented between several creditors claiming to be paid by priority and preference out of the proceeds -of sale of adot of ground and the buildings upon it in Bienville street, New Orleans. The claims of the several parties seem to stand as follows :

Marmillon, the plaintiff, and one Goldtbwaite are holders each of a note for $3,333 33, which were given by Archinard, the defendant, for the balance due of the price he stipulated to pay for the lot of ground in question with the buildings upon it when he purchased the property on the twenty-seventh of September, 1866. These notes are secured by mortgage and vendor’s privilege of the same date. On fifteenth of August, 1870, Archinard executed three promissory notes of $3,773 71 each in favor of Jamison, a builder, who had, during the years 1868 and 1869, erected for him on the lot referred to .a new and costly edifice. One of these notes passed into the hands of Nicholson, one of the contestants, and the other two are brought into the controversy by the Crescent Mutual Insurance Company. These parties have concurrent claims, for which they set up the privilege accorded to architects and others by the article 2772 [2743] of the Civil Code. These notes are also secured by mortgage upon the property. The Merchants’ Mutual Insurance Company as holder of two notes of the defendant, one for $1000 the other lor $2000, claims a right to participate in the proceeds, asserting a mortgage on the property, executed on the twentieth of November, 1868.

Upon the pleadings and evidence presented the court a qua decreed a distribution of the proceeds of the property on the following basis: After discharging the costs of the proceedings the concurrent claims of the plaintiff and Goldth waite to be first paid. Next that the Merchants’ Mutual Insurance Company be paid its claim, and that the remainder of the proceeds, if there be any, be paid over concurrently and pro rata to Nicholson and the Crescent Mutual Insurance Company. The last named parties appealed.

We find from the record that the act of mortgage from Archinard to Jamison on the fifteenth of August, 1870, to secure the payment of the three notes of $3,77.3 71, on which was based the architect’s privilege, contains the following clause : “And here the said Archinard declared and acknowledged that the three notes issued and furnished by him in virtue of this act are given in lieu of five other notes drawn and endorsed by him, dated on the first day of September, 1869, four of which being for two thousand dollars each, made payable in twelve, twenty-four, thirty, and thirty-six months after date, and the other for three thousand and twenty-one dollars and thirty-one cents, made payable forty-two months after date, which notes represent the balance due by him the said Archinard to the same Jamison for erecting certain buildings on the said described property, and are secured by the privilege hereinbefore referred to, and the said three notes now issued and furnished by the said Archinard in virtue of this act being for the same identical indebtedness represented by the said five notes above described, and which are hereunto annexed, it is hereby agreed by and between the said parties that the said mentioned privilege shall remain in full force and effect, and shall guarantee the payment of the said last mentioned three notes; the whole without any novation of the said original indebtedness.”

The original five notes here specified, and which áre declared to be “hereunto annexed,” it seems, have not been produced and shown. They make in the aggregate, the amount of a detailed statement of the labor furnished and the building material supplied by Jamison in the construction of the new building upon the lot in Bienville street, purchased by Arohinard from Eliza Evans. This detailed statement, sworn to by Jamison, was recorded in the mortgage office on the twenty-eighth of September, 1869. He testifies that he began the work in July or August, 1868, and furnished it in about one year; that the house was finished when he made the affidavit to the detailed statement of labor and materials furnished; and tho affidavit is dated September 27, 1869.

Article 2772 of the Civil Code declares that “ the undertaker has a privilege for the payment of his labor, on the building or other work which he may have constructed,” and article 6272 provides that “architects, undertakers, etc., preserve their privileges only in so far as they have recorded with the recorder of mortgages in the parish where the property is situated the act containing the bargains they have made, or a detailed statement of the amount due attested under the oath of the party doing or having the work done, or acknowledgment of what is due to them by the debtor.”

The article 3273 declares that “ privileges are valid against third persons from the date of the recording of the act or evidence of in-i debtedness as provided by law.” And the succeeding article provides that “no privilege shall have effect against third persons, unless recorded in the manner required by law in the parish where the property to bo affected is situated. It shall confer no preference on the creditor who holds it over creditors who have acquired a mortgage, unless the' act or other evidence of the debt is recorded on the day that the contract was entered into.”

No written agreement, it seems, was entered into by Arohinard and Jamison as to the cost of the building before it was commenced, and no contract in writing entered into in regard to the work. The purport of the several articles referred to applied to the facts of this case appears to authorize the conclusion that the recording of the detailed statement on the twenty-eighth of September, 1869, can have no bearing upon the property anterior to the twentieth of November, 1868, the date of the recording of the mortgage of the Merchants’ Insurance Company. The recording of the detailed statement did not carry back the privilege to the time Jamison began the work. Neither did the declaration and recital in the act of mortgage from Arohinard to Jami-son on the fifteenth of August, 1870, which we have adverted to, have that effect. Privileges are stride juris. The failure on the part of Jamison to have his agreement and contract with Arohinard relative to the building he was to construct reduced to writing and recorded as required by law was fatal to his claim to a privilege adverse to the vendor’s lien and mortgage, and the mortgage of the Merchants’ Insurance Company. His own mortgage can only take rank according to the time of its recordation, and it is the junior mortgage on the property.

It is contended by the opponent’s setting up the prior mortgage and vendor’s lien, that by taking notes in payment of the price of the work and materials as set out in the detailed statement, and again exchanging them for the notes executed by Archinard in August, 1870, a novation of the debt took place which destroy! d the privilege of Jami-son if he ever had one. We think .it clear that novation took place and that it had the effect contended for, of de troying the privilege asserted, if there ever existed one. With the views expressed we think the decree of the lower court correct.

Judgment affirmed.


text:
    No. 2564.
    L. Surgi v. Jeannette Matthews et al.
    The acts of the General Assembly of 1867 and 1868 providing for the construction and the maintaining of the levees on the Mississippi river in the State of Louisiana superseded the former laws imposing upon the riparian proprietors the burden of constructing such levees at their own cost, and the parishes wore thereafter without the right or authority by ordinance of the police jury or otherwise, to bind the lands of any front proprietor for the construction of any levee on the bank of the river.
    from the Seventh Judicial District Court, parish of Pointe Coupée. Miller, J.

      Farrar & Montgomery, for plaintiff and appellant. Wieldiffe <& Fisher and Charles H. Eewes, for defendant and appellee.
   Taliaferro, J.

The plaintiff sets forth, that by an adjudication of a levee contract made under the authority of the parish of Pointe Coupée on the sixteenth of October, 1867, he became the undertaker of the work let out, which was the building of a levee in front of the tract of land belonging to the defendant on the Bayou G-rosse Tete; that he performed the work in accordance with the terms proposed for the sum of $11,238, his being the lowest bid made at public sale ; that by law he has a privilege upon the land on which the levee was built to secure the payment for the work ; and .that both the proprietor of the land and the police jury of the parish of Pointe Coupée refusing to pay him the sum aforesaid or any part thereof, as they are bound by law to to do under special contract with him, he brings this suit and prays judgment in the alternative against either of the defendants with privilege on the land; that the police jury be condemned in solido with the other defendant to pay the said sum of $11,238 and be' ordered to levy a tax on the parish aforesaid to pay the debt and costs.

The defendant (Mrs. Matthews) excepted to the form of action adopted by the plaintiff, beeanse he alleged separate and distinct causes of action against distinct defendants who are illegally joined in the action, for the reason that there is no priority of contract between them, and that the allegations are vague and indefinite, and which, if true, go to show that plaintiff has no claim against her. The court sustained the exception and ordered a non suit entered as to the police jury. We think this ruling correct.

The remaining defendant answered, denying all the allegations of the petition and averring all the acts and proceedings of every kind alleged to have been done and taken by the police jury and its officers in the premises are null and void for the reasons that said police jury was without power or authority to pass the pretended ordinance under which the plaintiff claims to exercise the right to render the defendant’s land liable for the payment of the work he alleges he has performed.

Judgment was rendered in favor of the defendant, reserving to the plaintiff the right of presenting his claim against the Board of Public Works, or against any corporation or any person other than the defendant. From this judgment the plaintiff has appealed.

In September. 1867, the police jury of the parish of Pointe Coupée assembled in pursuance of an order rendered by General Sheridan, under date of thirtieth of August, 1867. A committee was appointed, who reported that the levees in that parish could not be built or repaired by taxation or by imposing the burden upon riparian proprietors, owing to the impoverished condition of the people, overwhelmed as they were with debt. That the front proprietors, if required at their own cost to build the levees, would be compelled to abandon their lands to the parish. The report was introduced in evidence by the defendant to show that the true intent and meaning of the ordinance of September, 1867, is in consonance with the spirit of the report; that it is only by a perversion of the spirit and letter that it is construed, so as to impose upon the defendant the ruinous obligation of performing a work, the cost of which would exceed the value of her plantation. At the next succeeding term of the police jury, in January, 1868, this ordinance was repealed. It was only a few days after the plaintiff commenced his work that the ordinance under which the contract was let was repealed. He continued, however, to prosecute the work, and it was received by the inspector appointed to superintend the building of the levee.

In a case recently decided by this court (the case of the Police Jury parish of Jefferson v. J. J. Tardos), we had occasion to examine at some length the question whether the acts of the Legislature of 1867 and 1868 suspended the previous laws imposing upon rip'arian proprietors the burden of constructing levees at their own cost along the margin of the Mississippi in front of their lands. The conclusion reached was that they did, and that the order No. 130 of General Sheridan, dated August 30, 1867, was in harmony with these acts. The case now before us is one which presents a much stronger claim for relief under the laws now in force on the subject of levee building than the one of Police Jury of Jefferson v. J. J. Tardos. And for the reasons stated in that decision we sustain the decision of the lower court "in the present case.

It is therefore ordered, adjudged and decreed that the judgment of .the District Court be affirmed, with costs in both courts.


author: Howell, J.

text:
    No. 3016.
    A. Weber v. C. A. Gorsuch et als.
    'The third section of the act of 1869 which authorizes tho sale of property seized under execution to be sold without appraisement when it appears that, in tho event any party-refuses to qualify as appraiser under tho provisions of this act, then tho property shall be sold -without any appraisement whatever, *s constitutional.
    There is no lesion in judicial sales.
    A second mortgage creditor who seeks to annul a judicial sale made at the suit of first mortgage creditors, on tho allegation of collusion between the judgment debtor, the sheriff and tho purchase}*, can not bo permitted to prove that the debtor was at the time deficient in mental capacity, and was therefore incapable of making a contract.
    lrom the Second Judicial District Court, parish of Jefferson. Pardee, J.

      B. G. Elliott, for plaintiff and appellant. Brickell & Marr, Breaux & Fenner and F. Oommandeur and W. T. Scott, for .appellees.
   Howell, J.

Plaintiff, as second mortgage creditor of one Thomas Clark, sues to restrain the completion of a sheriff’s sale of property sold by the sheriff of Jefferson parish under three executions issued from the court of the sixth justice of the peace of Orleans, and to .annul the said sale with damages on the grounds :

First — Of collusion and fraudulent combination between Gorsuch, ■Clark, the sheriff and Hugh Murphy, the adjudicator', to the prejudice of plaintiff and with a knowledge ot the nullities of the proceedings .under which the sale was made by the sheriff.

.Second — Want of appraisement of the property.

Third — -Nullity of the judgments and proceedings under which the sale was made.

Fourth — The sale was made for less than one-sixth of the real value ■ of the property.

Gorsuch, Murphy and the sheriff plead the general issue, and Clark having died after default was entered, his administrator admits the allegations of the petition, except the charge of fraud and collusion, .and sets up the mental imbecility of Clark at the time of the seizure and sale by the sheriff and for a year previous thereto to the knowledge of his co-defendants, the nullity of the proceedings in the several suits of Gorsuch v. Clark and the excessiveness of the seizure,

From a judgment dissolving the injunction with damages, the plaintiff prosecutes this appeal. The administrator, by answer, joins in the appeal, but has furnished us no brief.

First — There is no evidence of fraud and collusion.

Second — The sale without appraisement was authorized by the third section of the act of 1869 (p. 18), which provides that “in the event any party should neglect or refuse to qualify .(as appraiser) under the provisions of this act, then the property to be sold shall be sold without any appraisement whatever.”

The constitutionality of this act is assailed on the grounds that its title is insufficient and its provisoes impair the obligation of plaintiffs contract of mortgage.

The title, in our opinion, sufficiently indicates the object of the act: “ To regulate the appraisements of property under seizure or of succession in the parishes of Orleans and Jefferson.” The legal regulation of the appraisement of property to be sold under execution may appropriately involve the dispensing with an appraisement under certain circumslanees, as is done by this act.

We can not assent to the proposition of plaintiff’s counsel that the enactment of this regulation subsequent to the date of plaintiff’s mortgage is a violation of the constitution, which prohibits the passage of a law impairing the obligations of con tracts. It applies only to the remedy for the enforcement of obligations; and the appraisement is established in the interest of the debtor and may be waived by him without consulting other creditors than the seizing creditor. The second mortgage creditor can protect himself by making the property bring its real value.

Third — We can discover no such defects as to render null the judgments of the justice ot the peace and the proceedings under them. The apparent discrepancy in the number of the court is explained by the statute passed between the date of instituting the suits and that of issuing the executions, changing the sixth to the seventh justice of the-peace.

Fourth — There is no l'esion in judicial sales, and there is no allegation nor proof that the sale was so conducted as to deprive plaintiff of the right to attend and bid on the property.

We will remark that the plaintiff can not complain that he was not permitted to prove the mental imbecility of tffark, as he not only did not make the necessary allegation, but such allegation is inconsistent with his charge of collusion on the part of Clark to injure him. The-administrator is not urging any such complaint before us, and besides we think the ruling ot the lower judge on this point was correct.

Judgment affirmed.


author: Howe, J.

text:
    No. 3968.
    James B. Lewis v. Mildred D. Smith.
    A citation sorved upon a person other than the defendant, who is only transiently at the donrcile of the defendant and does not reside there, ia fatal, and a judgment rendered thereon is absolutely void.
    from the Sixth District Court, parish of Orleans. Oooley,J.

      O. T. Bemiss, for plaintiff and appellee. Labatt & Aroni, for defendant and appellant.
   Howe, J.

This is a suit to annul a judgment upon the ground, among others, that no citation or notice of suit or. claim has ever been served upon the plaintiff. The return of the sheriff in the suit of Smith v. Lewis et al, in which the judgment complained of was rendered, recites that the copy of citation and petition was served on Lewis, by leaving the same at his domicile on Camp street in the hands of Mr. R. Fischer, a person apparently over the age of fourteen years, living and residing at said domicile, and whose name and_other facts connected with the service were learned by interrogating said Fischer, etc.

On the other hand it was admitted on the trial of this cause that the witness R. Fischer, if present, would testify that at the time of this service he was not residing in the house where it was made but was only transiently there, “believes a desk where his brother was bookkeeper.”

The evidence thus taken by way of admission was objected to on the ground that the petition in this action of nullity contains no allegation authorizing the rejection of such evidence. The objection seems to be made in error. The quotation made above from the petition is an averment that citation was never served on the plaintiff Lewis, either personally or in the constructive manner attempted in this case and authorized by article 189 of the Code of Practice.

It was also objected that the plaintiff had appeared in court in another suit by another party on a similar citation which seems to have been served in the same way, and that he was estopped by this fact from any attempt to invalidate the return in this case. We have not been favored with any precedents in support of' this novel application of the doctrine of estoppel, and see no foundation for it in principle.

It seems clear that R. Fischer was not “living in the house” which was the domicile of Lewis at the time of service, C. P. 189; and that, therefore, Lewis was not constructively cited. It is not pretended that he was served in person. We do not see any error in the judgment in favor of plaintiff Lewis.

Judgment affirmed.

Reharing refused.


author: Ltjdeling, C. J.

text:
    No. 2802.
    H. C. Browne v. Silvester Bennett.
    Notes which have heen stamped with the required internal revenue stamps, are admissible in evidence without the stamps being canceled as required by law.
    from the Second Judicial District Court, parish of Jefferson. Pardee, J.

      M. C. Dunn, for plaintiff and appellee. Breaux <& Benner and If. Commandeur for defendant and appellee.
   Ltjdeling, C. J.

This is a suit for rent upon a contract of lease and rent notes executed at the same time. There was judgment in favor of the plaintiff and the defendant has appealed.

On the trial a bill of exceptions was taken to the reception of the notes and contract of lease in evidence on the ground that the stamps on the documents were affixed and canceled after their execution and without complying with the provisions of the revenue acts. We think the judge a quo properly received the evidence.

It does not appear from the record when the stamps were affixed, and the presumption of law is in favor of the regularity of acts done. The fact that the stamps appear to have been canceled at a subsequent period does not prove that the stamps were not affixed when the documents were executed. It was incumbent on the defendant to prove his allegation. Whether the stamps were canceled after the execution or not at all, is unimportant, as the act of Congress does not expressly forbid the reception in evidence of instruments which are stamped, unless the stamps be canceled. 22 An. 131; Parson’s Contracts, vol. 3, p. 290.

We think the credit of one hundred dollars claimed for the receipt filed was properly not allowed. It was probably for a credit on one of the rent notes which were taken up. At any rate, it is not proved to be a credit on the indebtedness sued upon in this suit.

It is therefore ordered and adjudged that the judgment of the lower court be affirmed with costs of appeal.


text:
    No. 2554.
    Gustave Soniat Dufossat and Theo. Soniat Dufossat v. Francois J. Laizer.
    Tlie ploa of prescription can not “bo filed or hoard in the Supreme Court in a case where an appeal has heen taken from an order of seizure and sale. The remedy in such a cáse is hy injunction.
    from the Second Judicial District Court, parish of Jefferson. Pardee, J.

      Charles B. Claiborne, for plaintiff and appellee. W. B. Hyman, for defendant and appellant.
   Ludeling, C. J.

This is an appeal from an order of seizure and sale. The only ground urged in argument by the appellant in this court is, that he has filed the plea of prescription in this court, and he urges that the notes are prescribed on their face.- It has been often decided by this court that the only question which can be examined in a case on appeal from an order of seizure and sale, is, whether or not the evidence before the judge a quo authorized the fiat. The law •authorized the executory proceedings — the defendant could not in that proceeding have made the plea before the judge a quo, for the proceeding via executiva is intended' to be exparte on the confession of the defendant. If he could file the plea in this court, it would necessarily defeat the executory proceeding, for the plaintiff has the right in all cases where the plea of prescription is filed in this court, to have the cause remanded to enable him to show an interruption, and that would necessarily change the character of the proceedings to the via ordinaria. We adhere to the opinion expressed in Gill & Grinault, tutrix, v. Hosmer, administrator, that the questions of prescription and the interruption of prescription can not be considered on an application for an order of seizure and sale. The remedy, in a case where an order of seizure and sale has been granted on a note, which is prescribed, is by injunction, under article 739 of tne Code of Practice.

It is therefore ordered and adjudged that the judgment of the lower court be affirmed with costs of appeal, and ten per centum on the .amount of the judgment as damages for a frivolous appeal.

Rehearing refused.


text:
    No. 4448.
    The State of Louisiana ex rel. George E. Bovee v. Franklin J. Herron.
    Article 620 of the Code of Practice makes it obligatory upon the clerks of the district courts in cases where mandates and decrees front the Supremo Court have been presented for execution to at once, and without any order or decree from the judge a quo, issue the necessary process to execute the judgment of the Supreme Court. A refusal or failure on the part of the clerk to comply with this article of the Code of Practice in any case where ho has been required to do so, will subject him to punishment for contempt by the Supreme Court, lor disobedience to the mandates of the law.
    Under this article of the Code of Practice the judge of the district court has nothing to do with the execution of the orders and decrees of the Supreme Court. Phe’ efore, if a Judge of a district court interferes with or obstructs, or hinders in any way, as judge, the execution of a judgment of the Supreme Court, he will be held guilty of a contempt of the authority of that court, and the plea of ignorance of the provisions of this article will not shield him from the penalties denounced against those who obstruct the execution of the mandatos of this tribunal.
    for a Writ of Mandamus.

      John Bay, for relator. William A. Elmore, Acting Judge, and Edward T. Manning, Acting Clerk, respondents. W. W. Kmg and John E. New, for W. A. Elmore.
   Ludeling, C. J.

A rule for contempt has been asked for against Wm. A. Elmore, acting judge of the Eighth District Court of the parish of Orleans, and Edward T. Manning, acting clerk of said court, based on the following averments, which are sworn to by the relator, George E. Bovee, to wit: That a judgment was rendered by this court in the case entitled The State of Louisiana, ex rel. George E. Bovee v. Franklin J. Herron, No. 3969, which became final by agreement of the parties, filed on the third of December, 1872; that, on motion of the relator, it was ordered by this court that the clerk do issue the mandate of this court, in said cause forthwith; that the mandate of this court was issued, and was presented to said Edward T. Manning, acting clerk in the court in which the said ease was originally tried and from which the appeal was taken, and that he was requested and required to file and record the mandate, and to issue the process necessary to cause said judgment to be enforced. That said Manning filed the judgment, with a copy of the agreement of the parties and the order of the Supreme Court thereon, but refused to issue the necessary writ to cause the judgment to be executed, in contempt of the authority of this court and in disregard of the law, alleging that he was prohibited by the said William A. Elmore from doing so. The answer of William A. Elmore is as follows :

“ That on the fourth day of December instant, on the opening of the Eighth District Court, over which he was then presiding, John Ray, Esq.,’ presented to the court a motion requesting that the judgment of the Supreme Court, rendered in the case of the State of Louisiana ex rel. George E. Bovee v. F. J. Herron, “befiled, recorded and rendered executory, and that a writ issue to the civil sheriff of the parish of Orleans to cause said judgment to be executed,” etc. “That upon examining said judgment of the Supreme Court, the respondent discovered that the judgment had been rendered by the Supreme Court on the second instant. As by law that judgment could not be fiual or executory until after the lapse of six judicial days, when but one had passed, he refused to grant the said motion.
Before the said motion was made the clerk of the court asked the respondent what he should do in the premises, the judgment of the Supreme Court having been previously handed to him by counsel for Bovee. Respondent instructed him not to issue any writ of possession without consulting the court.
“ On the fifth instant, at about twelve o’clock, the clerk of the court came to respondent and informed him Mr. Ray, counsel for Bovee, relator, wanted him to issue a writ of possession in favor of said Bovee v. F. J,. Herron, in said case of State ex rel. Bovee v. Herron. The clerk also presented at the same time the judgment of the Supreme Court in the case and the order of the Supreme court made on the fifth instant. Both hereto annexed, marked A B. Upon examining said papers respondent discovered that a certificate of the clerk of the Supreme Court had been added to the judgdment of the Supreme Court, to the effect that the parties to the suit of the State ex rel,. Bovee v. Herron had waived the legal delays necessary to make the said judgment final. This certificate had been added to the judgment subsequent to the time when the judgment was presented to respondent’s court. Respondent also observed that an order of the Supreme Court had been obtained, upon consent of parties waiving the six days’ delay allowed by law to render the decision' final. The clerk desired advice of respondent as to the issuing of a writ of possession to said Bovee, under the judgment of the Supreme Court.
“ Respondent instructed him not to issue the said writ, as the judgment of the Supreme Court had not been recorded according to law.
At the time the judge thus consulted respondent, he exhibited to respondent the order of the Supreme Court, dated December 5, 1872, hereto annexed, marked B. This order required the clerk of the Supreme Court to issue to plaintiff a copy of the mandate of the court. Your respondent considers that the mandate could only be properly issued by that clerk after said order of the Supreme Court had been given. No such copy accompanied the said order or was exhibited. The only one exhibited was dated December second, and was issued as your respondent believes illegally, and did not authorize the recording and executing the judgment. Respondent further states that when the clerk of the district court consulted him as above stated, on the fifth of December, it was after the court had adjourned, on motion of J. B. Howard, Esq., an attorney at law, as an evidence of respect to the late Horace Greeley. That no order of court could then be given in the premises on account of said adjournment. No application other than the one already mentioned on the third of December, was made to respondent’s suit. Respondent here states that if an application had been made to his court, in conformity with the order rendered by the Supreme. Court, at any time, he would have promptly complied with the same.
“ And further answering, respondent disclaims all idea of any intended disrespect of the Supreme Court or any member or officer thereof, but says he acted under his convictions of his duty in the premises. If he erred in his instructions and advice to the clerk of this court, he will cheerfully abide the opinion of this honorable court, and endeavor to I>erform his duty in obedience thereto. All of which is respectfully submitted, with the prayer that he be discharged.”

The answer of Edward T. Manning is, “ that he was instructed by his Honor Judge Elmore, to whom he applied for information, when John Ray, Esq., demanded a writ of possession on a mandate of this honorable court, that it was not proper or legal to give the same until the mandate of the Supreme Court was spread upon the minutes of the District Court, by motion in open court, and as this had not been done in the case in question, respondent declined to accede to the request of the said attorney. Respondent respectfully disclaims any intention of disobeying any decree or order of this honorable court, which at all times he is ready and prompt*to obey.”

The affidavit of Mr. Ray, filed in this case, discloses the following facts: Tiiat on the third of December, 1872, he obtained a copy of the opinion of th© Supreme Court in the above entitled case and presented it to the Minute Cleric of the Eighth District Court of the parish of Orleans, and requested him to file and record it, and to issue the-necessary writ to the sheriff to have the same executed. The clerk filed the copy of the judgment, but declined to issue the writ, saying he wished me to get the order of the court to issue such writ. I told him that it was not necessary, but he persisted. The next morning,, upon the opening of the Eighth District Court, I presented a motjon to the court with the copy of the judgment of the Supreme Court, and asked that the same be filed and recorded, and that the necessary writ be issued to have the same executed, when the judge refused to make-the order, saying there was no evidence that the delay for an application for a rehearing had expired.

I then obtained a copy of the agreement of the parties to the suit waiving the time for applying for a rehearing, and also a copy of the order of the Supreme Court directing the clerk of the Supreme Court to issue the mandate in this case. I then took the said mandate, copy of agreement between the parties, and order of the Supreme Court and presented them to - Manning, clerk of the Eighth District Court, on the fifth instant, and requested, and directed him to file and record the same and to issue the requisite writ to cause said judgment to be executed. He said he would have to see the judge first. I referred him to the articles 618, 619 and 620 of the Revised Code of' Practice, and read them to him. I requested him to show this law to the judge and gave him the book to do so. He went into an adjoining room, and after an absence ,of about five minutes returned, saying to me the judge said he might file the papers, but had forbid him from issuing any writ to execute the judgment until ordered by him to do so. He filed the above documents, but refused to do more, saying I must get an order of the court before he could do anything further. I then told him I would resort to the legal remedies for redress of my client, and he said very well.”

Prom the foregoing statements a disposition to obstruct the execution-of the mandate of this court in that case is clearly manifest. It is unusual for the judge a quo to require other evidence of the finality of a judgment of this court than the copy of the mandate properly certified by the clerk to be a true and correct copy. There is no other-evidence than that required by law. If it could be presumed that the clerk had violated the law and his duty by issuing a mandate before the judgment had become final, the party against whom the judgment was rendered would not be without his remedies to-enforce his rights; and it was officious on the-part of the judge a quo to assume to act in his interests. From the statements in argument of. respondent’s-counsel it seems to be still the practice in this city to obtain an order from the court a qua to file, record, and render executory the mandates of this court — although the law does not require this — and -the judge a quo should have made the order on the motion presented on the fourth of December. But, to satisfy the acting judge and clerk, the relator, through his attorney, obtained from this court an order which-practically declared that the judgment in the case of Bovee v. Herron had become final, in consequence of the written agreement of the parties to that suit to waive the legal delays, by ordering the clerk to issue the mandate in said cause. He then presented to the said clerk copies of the mandate of this court of the agreement between the parties to the suit of Bovee v. Herron, waiving the legal delays and of the order of this court thereon, and directed the said clerk to record the mandate, and to issue the necessary process to place the relator in possession of his office. At the same time he directed the attention of the said clerk to the law, and read to him articles 618, 619 and 620 of' the Revised Code of Practice. Article 620 declares that “this recording shall be directed to be made by the party wishing to make use of this judgment, but without any obligation on his part to give previous notice to the opposite party ; and the clerks of the district courts shall have the power to receive, hie and record all mandates and decrees-rendered by the Supreme Court, and to issue all legal process thereon.’’’

It further appears that the clerk then took the documents above-mentioned and the Code of Practice to the said judge, who instructed him not to issue any writ until the further order of the Eighth District Court. It was stated in argument that the judge had not had his-attention called to article 620 of the Revised Code of Practice. Be that as it may, ignorance of the law is no excuse; but we can not presume that the learned judge was ignorant of a textual provision of the Code of Practice. It was also insisted in argument, and the same fact is relied on in the answer of the judge as a justification of his conduct, that no mandate of the Supreme Court was issued after the order of the fifth of December, and that the only copy of the mandate presented to the jndge was the one issued on the third of December-No other copy was necessary. The mandate was properly issued, and the pains to which the relator unnecessarily put himself to satisfy the respondents did not necessitate any other copy of the mandate. It was a true copy; and even if it had been made prematurely (which however was not the case), still theré could have been no good reason for requiring another copy. “ Lex neminem eogit ad vana seu inutilm

Both respondents have disclaimed any intentional disrespect to the Supreme Court or to any of the members thereof. We readily accord credence to this statement. But the facts disclosed in this case force upon our minds the conviction that the respondents have willfully obstructed the execution of the mandate of this court, in defiance of the law and in contempt of the authority of this court; and although we regret the necessity which constrains us to exercise the power conferred by law to vindicate our authority, yet we can not fail to exercise it in this case without a dereliction of duty. C. P. art. 131.

It is therefore ordered and adjudged that William A. Elmore, acting judge of the Eighth District Court of the parish of Orleans, be fined fifty dollars and be imprisoned in the parish jail ten days for a contempt of the authority of this court; and that Edward T. Manning be fined fifty dollars and be imprisoned five days in the parish jail for a contempt of the authority of this court; and that the respondents pay costs of these proceedings.

Kennard, J., dissenting.


author: Wyly, J.

text:
    No. 2528.
    Rufus Waples v. Thomas Layton and the Southern Bank.
    In this case the Southern Bank had Judge Eustis employed by the year at a fixed salary to attend to its legal business. During the absence of Judge Eustis the bank employed the firm of Waples & Eustis to attend to its business in litigations to which the bank was a party, lor which they bring this suit for their fees. The bank oifered as a defense conversations between the officers of the bank and Judge Eustis, before his departure, showing that during his absence the firm of .Waples & Eustis would attend to the legal business of the bank free of charge.
    Held — That such conversation was in no manner binding on the firm of Waples & Eustis, and that they were entitled to recover their fees from the bank.
    from the Seventh District Court, parish of Orleans. Oollens, J.

      B. Waples, in person, and Lacey & Butler, for plaintiff and apellant. Roselius & Phillips, for defendants.
   Wyly, J.

The plaintiff sues the defendants for $6900 for professional services rendered by the firm of Waples & Eustis to the Southern Bank in the cases stated in the petition, the interest of Eustis in said claims being transferred to Waples.

The court dimissed as of non-suit the case, and the plaintiff appeals.

The exception of res judicata can not be maintained for the reasons stated in the written opinion of the judge a quo.

That tlie firm of Waples & Eustis rendered the services and were employed to represent the Bank, there is no doubt. The fact is fully established by the evidence. That they were employed in these cases to represent Judge Eustis, the regular attorney of the Bank, and acted for him without expecting remuneration for their services from the Bank, is not satisfactorily establised. On the contrary, it is not shown that they ever consented to take the cases on such terms. No conversation between the officers of the Bank and Judge Eutis that the firm of Waples & Eustis would, for him, attend to the business of the Bank during his absence from the city and charge the Bank nothing therefor, could bind the plaintiff or the firm of Waples & Eustis unless it be shown that they consented to the arrangement and took the business on such terms. This has not been shown.

The account is satisfactorily estalished by the evidence against the Southern Bank. No claim is established against the defendant Layton individually.

It is therefore ordered that the judgment appealed from be annulled, and that the plaintiff recover judgment against the Southern Bank for six thousand nine hundred dollars, with legal interest thereon from judicial demand, and all costs.

Rehearing refused.


author: Taliaferro, J. Howell, J.,

text:
    No. 2631.
    Gilbert Lyman v. Kate Townsend.

      A person owning a house in the city of 2Sew Orleans situated within the limits of the district where the keeping of houses of prostitution are allowed by the city, may lease his feouae for that purpose and recover the rent from the lessee. In such a case the lessee can not be permitted to plead the immorality of her own calling as a shield against the payment ot the rent of the property which she has used.
    The decision, in the case of Kathman •». Walters, 22 An., page 54, is overruled by this decision.
    from the Fifth District Court, parish of Orleans. Beaumont, J.

      Whitaker & Bice, for plaintiff and appellant. L. Madison Bay, for defendant and appellee.
   Taliaferro, J.

This is a suit on a contract of lease. The plaintiff alleges that he leased to the defendant a housé in New Orleans, on Customhouse street, for a term of five years from the first of December, 1866, at the rate of $200 per month, payable in advance; that the defendant has failed to pay the rent in accordance with the contract, and specifies certain sums due and to become due, for which he prays judgment. He seized provisonally the furniture in the house in virtue of his lien as lessor.

The deiendant avers that in conformity with her engagement she paid the rent at. the rate of $200 per mouth up to the first of February, 1868, and since that time up to the first of December, 1868, she paid by agreement with and consent of the plaintiff $150 per month as compensation in full for the rent per month. She farther alleges that the bnilding she leased from the plaintiff was used as a house of prostitution and intended so to be used at the time the lease was made, and that with the knowle.dge and consent of the plaintiff. That the contract is void, as being one reprobated by law and against morals.

There was judgment in the court below as of non-suit, and the plaintiff has appealed.

It will, in the first place, be proper to inquire whether ,the keeping of brothels or houses of prostitution are prohibited by law. By the statute of 1855 relative to crimes aud offenses, p. 144, section 92, under the head of “ Offenses against Public Order, Health and Police,” it is enacted, “ that whoever shall be guilty of keeping.any disorderly inn, tavern, ale house, tippling house or brothel, shall suffer fine or imprisonment, or both at the discretion of the court, and the offender may likewise be adjudged to forfeit his license to keep a house of public resort or entertaiment.” The prohibition here expressed is not against the keeping of houses of the kind mentioned, but against keeping disorderly houses of the character specified. In the case of the city of New Orleans v. Eliza Costello, 14 An., p. 37, this coxrt said, in reference to this ninety-second section of the act of 1855, that it “does not prevent the city from levying a tax upon boardinghouses kept for these people (meaning lewd women), provided they do not license disorderly houses of this class.” The city heretofore levied “an annual license tax of two hundred and fifty dollars upon each and every person keeping any house, room or dwelling for the purpose of renting rooms to or boarding lewd and abandoned women.” Whether sucl't license tax is now imposed we are not apprised. The city clearly has the right to impose a license tax of that kind.

It appears that, by ordinances of the city, certain districts or localities are defined within which alone the keeping oi' houses of the class mentioned in the ninety-second section of the act of 1855 is permitted,, and it is shown that the house leased by the plaintiff to the defendant is situated within one of these districts. It seems then that no law of this State prohibits the disreputable calling or occupation which the defendant in this case is not slow in admitting she is engaged in It permits such trade or occupation on the condition that it be prosecuted in an orderly manner and within certain specified limits. Houses are indispensable for the shelter and lodgment of the persons so employed. Is it unlawful for the owner lo lease a house for such a purpose ? If his fate he so cast that his buildings fall within localities in some sense degraded by the law-maker, subjecting them to the annoyance of publie brothels, should he be debarred from deriving revenue from the lease of liis huildiDgs to be used for' such establishments 1 He is required to pay a pro rata tax upon his property which, it might be from its unfortunate location, could not be leased for any other purpose. These questions may be answered by recurring to the right we find that persons of the class of the plaintiff possess under the law to keep houses of ill fame. With that right they are impliedly vested with the right to buy or lease buildings for their business. The right to lease a house to be used for the purposes of a brothel implies a corresponding right in the owner to let a house for such a purpose. Contracts for such purposes are repulsive to the moral sense, but when allowed by law what warrant is there for declaring them null as being contrary to good morals ? Courts have not to deal with the question whether laws sanctioning contracts of the kind are wise or unwise. Upon the legislator is imposed that difficult and ungrateful task. It is for him to encounter the danger of passing between Scylla and Oharybdis. It is for him, in pondering the vexed problem, to view society just as it is, and not as we desire it should be. His trouble in this direction is, that he can raise man’s moral standard no higher than his physical condition will permit. It is for him to divine, in regard to these thingq whether from necessity, great evils must not be tolerated in order that greater ones mny be avoided — -whether he should mitigate, even if it be at the expeuse of enactments offensive to the moral sentiment of many, deep rooted evils which he is unable successfully to combat. Upon such a basis many of the strong thinkers of the present day are inclined to legislate.

In the case now under consideration if we should decide the issue adversely to the plaintiff there would be presented the awkward anomaly of the defendant being able legally to lease the plaintiff’s house for disreputable pur.-oses, and after having used it for many months avoid payment according to contract by openly avowing her own turpitude in pleading in defense her violation of morals in. the use to which she put the premises leased. To annul the contract in the interest of the defendant would seem to outrage morals at least as much as it would to enforce it in behalf of the plaintiff.

As opposed to the views here intimated we are referred to the decision of this court in the case of Kathman v. Walters, 22 An., p. 54. The opinion in that case, after a more thorough and deliberate consideration of the subject, we are not inclined to sustain. In the ease at bar we think the plaintiff should prevail.

It is therefore ordered that the judgment appealed from be annulled; that the plaintiff have judgment in his favor against the defendant, as follows: That he recover from the defendant the sum of eight hundred dollars, with legal interest on two hundred dollars thereof from first December, 1868 ; with like interest on the like sum of two hundred dollars from first January, 1869; like interest on the like sum from first of February, 1869 ; and like interest on the like sum from first of March, 1869; that he recover from the defendant the further sum of forty-six hundred dollars with legal interest upon the several installments composing that sum as thej severally became due, according to the terms of the written contract of the parties — legal interest to be so computed, commencing on tbe first of April, 1869, for two hundred dollars, and so successively on each subsequent installment of like amount becoming due respectively on the first day of each month until the first of February, 1871. It is further ordered that the lessor’s privilege be recognized in favor of the plaintiff upon the furniture provisionally seized by him in this case, and that the same be sold and the proceeds applied towards the payment of this judgment. And it is further ordered that defendant and appellee pay all costs of these proceedings.

Howell, J.,

dissenting. For the reasons given in my dissenting opinion in the case of Hubbard v. Moore, just decided, and on the authority of Kathman v. Walters, 22 An. 54, I dissent in this case. I am not aware that such houses are licensed by law.

Rehearing refused.


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    No. 3620.
    Mrs. M. Brand v. N. A. Baumgarden, Testamentary Executor, et als.
    In the last will and testament of Mrs A. M. Schneider, the following clause appears: “ Thus done and passed in the house and room above described, on the above day and date, and signed by the said testatrix, the witnesses and the undersigned notary, the said testatrix having declare^ she could not write, made her usual mark.”
    Held — That the doclartion that she could not write, followed by making her usual mark, was equivalent to the declaration that she knows not how to sign as required by article 1572 of the Civil Code.
    from the Second District Court, parish ol Orleans. Duvigneaud, J.

      J. L. Tissot and A. JB. Phillips, for appellants. D. O. Labatt and B. L. Preston, for appellees.
   Howell, J.

The only question to be decided in this case is, whether the last will and testament of Mrs A. M. Schneider is in due form, as a nuncupative testament by public act.

The clause in the will, on which the objection to its validity is founded, is as follows: “Thus done and passed in the house and room' above described, on the above day and date, and signed by the s id testatrix, the witnesses and.the undersigned notary, the said testatrix having declared she could not write, made her usual mark.”

It is urged that this is not a compliance with the requirements of article 1572 Revised Civil Code, because it does not si ate that the testatrix declared that she did not know how to sign, and no mention is made of the cause that hindered her from signing her name. The declaration that “she could not write” not being equivalent to tbe declaration that 1 ‘ she knows not how to sign,” as required by the Code.

Plaintiff’s counsel quotes several French authors and the opinions of several French lawyers to support this position, but they have failed to convince our judgments.

Had the words “not know how to write” instead of the words “ could not write” been used, there would be no room for doubt as to their sufficiency; but still thfe expression “ she could not write” followed by the one “she made her usual mark,” indicates sufficiently the “hindering cause,” if mention of the hindering cause be required by article-1572 in the case where the testator does not know how to sign his name. We prefer to say that the words used in this instance, tdken all together, are equivalent to the declaration by the testatrix that she did not know how to sign her name, and therefore made her mark, as a verification of her name as written by the notary, and explaining why she did not herself write her name or signature, and that there has been, in this respect, a sufficient compliance with the requirement of the law.

It is therefore ordered that the judgment appealed from be reversed, and that there be judgment in favor of defendants, recognizing the validity of the will in question with costs in both courts.

Rehearing refused.


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    No. 2735.
    Louis Haselmeyer v. William H. McLellan.
    In a damage suit, if tlie verdict of the jury is not supported by tlio evidence it will he set aside on appeal, and judgment will he given for such amount as the evidence sustains.
    from the Sixth District Court, parish of Orleans. Cooley, J.

      Breaux & Benner and Hornor & Benedict, for plaintiff and appellant. B. Shaelcelford, for defendant and appellee.
   This ease was tried by a jury in the court below.

Ludeling, C. J.

The plaintiff, who styles himself an escamateur and legerdemain performer, sued the defendant for damages resulting from the breaking, by the minor son of defendant, of a glass bell used by him in his performances. He claimed twenty-five hundred dollars. A jury rendered a verdict in his favor for one thousand dollars. The judge a quo, in refusing a new trial expressed himself as not satisfied with the verdict, but still refused a new trial and rendered judgment for the sum found by the jury. Erom this judgment the defendant has appealed. The testimony satisfies us that only the glass bell was broken and that the value thereof did not exceed one hundred dollars. Civil Code articles 2318, 2319, 2324.

It is therefore ordered and adjudged, that the verdict of the jury and the judgment of the court a qua be set aside, and that there be judgment in favor of the plaintiff against the defendant for one hundred dollars, with five per centum per annum interest from judicial demand and cost of the lower court. It is further ordered that the plaintiff and appellee pay costs of appeal.


text:
    T. T. Tyree & Co. v. Sands & Co.—Thomas P. Miller & Co., Intervenors.
    APPEAL from the Fourth District Court, parish of Orleans. Théard, J.

      Campbell, Spofford & Campbell and Clarice, Bayne & Benshcm, •for plaintiffs and appellees. Bandell Hunt and William H. Himt, and JDirrhammer & Kennard, for intervenors and appellants. Walicer Bearn, for defendants.
   24 An. Rep., p. 363.


text:
    No. 2527.
    Cincinnati Insurance Company v. William C. Harrison et als.
    The provisions of the Code of Practice relating to oyer do not apply to a document filed in a cause in court.
    The loss of an appeal bond being established, .secondary evidence, either written or oral, • may be introduced to prove the alleged signature of the defendant to the bond as surety.
    APPEAL from the Sixth District Court, Parish of Orleans. Oooley, J.

      L. Madison Bay and Bentineh Egan, for defendant and appellant. JETornor é Benedict, for plaintiff and appellee.
    Justices concurring: Ludeling, Taliaferro, Howell, Wyly.
   Taliaferro, J.

The plaintiffs having obtained judgment against the defendant, Harrison, for $590 60 with interest, the latter appealed. About eighteen months afterwards, and after an execution had issued on the judgment and been returned not satisfied, the plaintiff sued J. S. Symonds as surety on the appeal bond. This defendant excepted to the proceeding and prayed oyer of the bond sued upon. His exception was overruled, and lie answered by general denial. Judgment was-rendered against Symonds, as surety on the appeal bond, for the same sum that judgment had been given against the defendant Harrison.

The surety has appealed.

Two bills of exception are presented in the record. The first is as to the refusal of the judge to grant his prayer for oyer of the bond, which it appears was missing and could not be found at the time of trial. The reason assigned by the judge for this refusal is that the provisions of the Code of Practice relating to oyer do not apply to a document which had been filed in a cause in' court. We think the ruling correct, and for the reasons assigned by the judge a quo. The second bill of exceptions is to the admission in evidence in the court below of the record in this case from the Supreme Court, to show the liability of Symonds as surety on the appeal bond, the original bond being lost. The objection was, that the proceeding by rule taken by plaintiff to render Symonds, defendant, liable as surety was not a suit on a lost instrument j the record was not competent evidence to prove that Symonds signed the appeal bond as surety. We think the ruling correct. The loss of the bond being established, secondary evidence, either written or oral, might be resorted to to establish the alleged signature of the defendant to the bond as surety. We think the whole evidence together, a part of which consists of the testimony of the defendant’s attorney, abundantly establishes the signature of Symonds to the appeal bond as surety, and we are satisfied that the judgment of the lower court is correct.

Judgment affirmed.