author: Waticins, J. Watkins, J.

text:
    No. 10,878.
    In the Matter of the Succession of Mary Clark Conrad, Deceased Widow of David Weeks, Sr., and Deceased Wife of John Moore, Deceased.
    Oppositions to Executor’s Accounts.
    1. An account filed by an executor, which purports a partial distribution of the proceeds of sales and of rents collected among creditors of the succession he is administering, when duly homologated according to law, after due publication, is final and conclusive as to all the world — heirs as well as creditors — in respect to the amount and validity of the claims opposed; and, as to heirs as well as creditors, such judgment of homologation constitutes res adjudicata in respect to the amount and validity of said claims — though they have not been personally cited.
    2. But, in respect to the payment of such claims — a condition subsequent to judgment — an account approved and homologated, eonstitues only prima facie evidence of payment, subject to attach by heirs or creditors in a direct action.
    APPEAL from the Twenty-first District Court Parish, of St. Martin. Mouton, J.

      Gibson & Hall for the Executor, Appellee:
    An executor’s account that has had due public advertisement of its filing and has been duly homologated, by final judgment, for more than ten years, is binding upon an heir not legally notified of such filing when that heir is a legatee. C C. Such judgment is res adjvdicaia as to him. 29 An. 378; Sue. Bougere, 10 R. 118; Sue. Feytavm, 6 L. 223; C. C. 1064 (1067); 16 An. 678; 18 An. 263.
    When such heir, also a legatee, has managed much of the active business of a succession, by collecting and distributing or retaining the rents collected, has authorized a compromise of a large claim against the succession by the executor, and has mortgaged his interest in the succession several times, and the evidence shows familiarity with the executor’s acts, it is ample ratification of the executor’s account, filed and homologated years before, though he was not legally notified when it was filed. Such conduct;amounts to both ratification and acquiescence by the heir as to the executor’s account. 10 R. 118; 29 An. 378; 6 L. 223; C. O. 1064'(1057); 15 An. 678; 18 An. 263.
    Rents can not be recovered when sued for and no contract of lease is proven or admitted. 23 An. 160; 38 An. 611; 33 An. 297; 39 An. 291.
    An under-tutor can legally put chase the claims against the insolvent estate of his. wards. C. O., Under-tutor.

      .Forrar, Jonas & Kruttsehnitt and T. D. Foster for Opponents and Appellants:
    1. This brief consists almost exclusively of a discussion of questions of fact, and it is, therefore, impossible to give any syllabus which will present any fair idea of the issues involved. We give a syllabus as to law points. A syllabus as to the questions of fact would be as long as the brief itself.
    2. The heirs of Mrs. Mary O. Conrad arc not bound by the account of 1876, referred to by the executor as res judicata, because an heir is not bound by an account of an executor or administrator*, unless he be notified of the filing of the same and cited to oppose it. The notice by publication binds creditors only; not heirs See Succession of Yarborough, 16 An. 258; Truxillo vs. Truxillo, 11 An. 412; Miller vs. Kougieux, 20 An. 579.
    3. A joint owner or executor owes rent of property occupied by him. See 30 An 438; 27 An. 547.
    4. An executor occupies a fiduciary relation to heirs. Hecan, therefore, make no profit out of any transaction with the c reditors of the estate, and to the detriment of the heirs. If he buys up claims against the estate, he will be held to have made the purchase as an agent, and for account of the heirs, his principals, and not for his own individual account. A fortiori is this the case where, at the time of the purchase, his pockets are full of the money of the succession.
    5. Compensation can not be pleaded by even such a fiduciary as a factor against his client.
    Compensation is an equitable defence, and can be set up only where it is consistent with the utmost good faith.
    Can it then be pleaded by an executor buying up claims at ten cents on the dollar with an heir’s money, against that heir, when called on to account?
   The opinion of the court was delivered by

Waticins, J.

This cause comes before us upon an account filed in said succession by William E. Weeks, executor, and several supplemental accounts, and sundry oppositions thereto, od the part of heirs and legatees.

Decedent first married David Weeks, of which marriage there were six children, all of whom were minors, at time of his death in 1834.

She. subsequently, married John Moore, but of that marriage there was no issue. In 1863 she died testate, leaving four children surviving her, namely, William E., Alfred C., Charles C., and Harriet C. Weeks; having appointed her eldest son, William F., and her surviving husband, joint co-executors.

Both executors qualified, but Moore died íd 1867, prior to the filing of any account of administration — he having managed the affairs of the succession, chiefly, during his lifetime.

On the 19th of July, 1876, Weeks, executor, filed an account, and, no opposition thereto having been filed, it was homologated, unqunlifiedly.

Matters remained in statu quo, until 1887 and 1888, when other accounts were filed, and oppositions urged. They embraced very nearly all the items that appear upon all the accounts; but the homologated account of 1876 was assailed, particularly, on the ground that the judgment of homologation was an absolute nullity, because personal notices of its filing had not been given to the heirs. It is by C. C. Weeks, a brother of the executor, and Miss Fannie Weeks, daughter of Alfred O. Weeks, another brother, that this complaint is made — the interest of the former, nominally, being one-fourth as heir, and one-tenth as a legatee; and that of the latter being one-eighth of one-fourth, as heir. In point of fact, the interest of O. C. Weeks is, at present, much less than as stated, as he has disposed of a large part of his share ss heir; especially in the realty of the succession. The judge a quo maintained the validity of the judgment of homologation of 1876, approved all the various accounts since filed, and homologated them — only reducing the claim of West and Villeré by one-half, that is to say by the sum of §4907.12.

It is from that judgment that opponents have appealed.

In this court accountant requests an amendment of the judgment, so as to reinstate the claim of West and Villeré; and opponents opposed the bar of prescription of one, three, five and ten years, against all items of indebtedness on the several accounts.

I.

With regard to the question of res adjudicata and estoppel, which are preliminarily raised, as stated above, the following statement of facts may be made, namely:

On the face of the account (of 1876) it sufficiently appears that it deals with debts of the deceased and his succession exclusively, and did not purport to marshal funds and assets of the estate for distribution among its heirs.

Notice of its filing was not given otherwise than by advertisement; and, no opposition having been filed, it was unqualifiedly homologated on the 11th of August, 1876.

The account, however, contains this reservation, viz.: “The claims of West and Villeré, heirs of Ooneaud, and Abat and Generes, carried on this account, shall, after homologation of said account, be subject to future settlement between the heirs of Mary O. Moore, but exclusively as between those heirs.”

The account is not predicated upon succession inventories, but upon proceeds of sales of real estate and upon rents collected. It is with such items alone that he debits himself. And, on the other hand, he credits himself with amounts he claims to have expended in the settlement of debts, such as costs, taxes, counsel fees and mercantile accounts — those above enumerated amongst the number — showing an expenditure by the executor of $21,814 in excess of amounts received.

The account being regular in form, and the judgment of court having unreservedly homologated it, the question for decision is, whether the heirs and legatees can collaterally assail the validity of that judgment on the ground that they were not notified of the filing personally; or can the executor shield it from attack by interposing the bar of res adjudicata. The code declares that “ after the sale of the effects of the succession * * * the administrator shall render his account to the judge * * * whose duty it is to examine and correct, and approve the same,” etc. R. O. C. 1063, 1180.

“The judge, on demand of the administrator, shall order that the creditors and legatees of the succession be notified to show cause * * * why they should not be paid conformably with the authorization, by the administrator.” (Italics ours.) R. O. C. 1064.

This notice must “ be made by publication in the manner required for judicial advertisements,” etc. R. O. C. 1184. “If, in ten days after this notice, there is no opposition on the part of the creditors or legatees the administrator shall proceed to the payment in accordance with the authorization by him obtained * * * and which the judge shall cause to be homologated.” R. O. 0.1065, 1185. “ If, on the contrary, there is any opposition the judge shall decide thereon in a summary manner; but if his decree be appealed from the administrator can make no payment until final judgment be rendered thereon.” R. O. O. 1066, 1186, 1187; C. P. 988.

Upon casual inspection of the account, and the judgment of homologation under consideration, it is apparent that there is thereupon raised such a legal presumption as “the law attributes to the thing adjudged” (R. C. O. 2285), particularly when construed with reference to the precepts just enumerated — an executor possessing the powers, and having imposed on him the duties, of an administrator. R. O. O. 1670.

The executor, acting on the line of his duty, rendered an account to the judge of the proceeds of sales he had made and of rents he had collected; and thereupon the judge caused the creditors and legatees to be duly notified conformably to the authorization solicited, and, there having been no opposition filed, he homologated the account, and required him to make payments of the claims of creditors accordingly.

As a corollary of the foregoing precepts the code further declares that, “when, after payment has thus been made, new creditors present themselves * * * (and) there be not funds sufficient to pay them in the hands of the administrator,” they have their action (1) against the legatees and (2) against the creditors who have been paid, “to oblige them to makeup to them a sum equal to that which (they) would have received had they presented themselves before; ” but it further declares that such creditors “ have no right to sue the administrator who has made the payment by order of the court and according to the forms herein prescribed.” R. C. C. 1067.

The foregoing articles indicate the course of proceedings to be taken in the judicial ascertainment and settlement of the claims of creditors against the succession; and it is a noteworthy fact that the compilers of the code .thought proper to interpose the shield of that article, as a protection to a succession representative making payment of debts of the deceased on the judge’s authorization.

But the settlement between such representative and the heirs of the estate is a totally different thing; for the code declares that “the duties of the curators cease when the heirs or other persons having a right to the succession administered by them present themselves * * * to claim the succession,” etc. R. O. C. 1192.

“As soon as the heirs * * * have thus been put into possession of the succession or of the effects claimed by him the curator is bound to render a faithful and exact account of his administration to him (them) and pay the balance due,” etc. R. O. C. 1194.

As construed by decisions and interpreted by comparative provisions of the code such claim can not be made until succession debts, as well as those of the deceased, have been liquidated and settled, unless the heirs elect to assume liability therefor. R. C. C. 1012, 1671, 1673, 994, 996, 1002, 1003; C. P. 1000, 1003, 1012, and R. S., Secs. 3678, 1640; 25 An. 56; 30 An. 96; 34 An. 21; 26 An. 30.

When an executor or administrator files such a final account purporting a settlement with the heirs of the .estate and a distribution among them of the net assets of the succession which remains in his hands after debts are paid, personal notice of the filing thereof must be given to the heirs, otherwise a judgment homologating it would be of no avail.

But this final account does not in any manner disturb judgments homologating such account as the one under consideration — partaking, as it does, of the nature of partial distribution among creditors.

In taking possession of a succession as an inheritance the heir “ binds himself to the payment of the succession debts and charges,” at least to the extent of the value of “ the effects which have fallen to him from the succession” (R. O. C. 1013), but such acceptance is an “act of ownership, which the person called to the succession can only do in quality of heir.” R. O. C. 994.

Heirship is not a new title to the property of an estate, but the transmission of an old one by the demise of the ancestor. R. C. C. 940, 871, 874. These provisions of law were evidently intended to safeguard the interests of creditors against impairment by acceptance of the debtor’s succession by the heirs; and they, likewise, clearly evince the intention of the law-maker to subordinate such acceptance to the status quo created by judgments homologating such accounts as that of 1876.

And it seems to follow as a necessary legal sequence, that, by ar heir’s acceptance, he becomes quite as much bound by such judgments as the succession is.

It is quite true that the code requires that an administrator shall file his accounts annually, on pain of dismissal from office, and damages; and that a judgment homologating such an account shall “be prima facie evidence, only, of its correctness.” R. C. C. 1191. But such account essentially differs from the character of account we are dealing with. The former is an account between the administrator and the succession, while the latter is one between the creditors and the succession. The former deals with debtors as well as creditors — receipts as well as expenditures — while the latter deals, alone, with the proceeds in the administrator’s hands, and the rights of creditors thereon.

The evident purpose oí the compilers of the code was to protect the rights of creditors, by giving to a judgment homologating such an account as that we are considering the force and effect of res adjudicada, barring subsequent inquiry into the validity of their claims, while it is equally clear that their purpose was not to preclude an inquiry into the fact of their payment, same being a cowdition subsequent to the judgment ordering their payment — though it was to impose upon an heir the burden of attacking and disproving payment.

If this were not true, the code would be inconsistent with itself, by requiring payment of debts to be made on the faith of such decree, and then sanctioning a subsequent collateral attack of heirs upon the validity of such claims; in declaring that an administrator making such payments on the judgment of court shall be exempt from suit by absent creditors, while holding him amenable to action by heirs; and, in declaring that an heir’s acceptance of a succession binds him to the payment of succession debts, and at the same time permitting him to collaterally attack the validity of claims of creditors thus judicially established.

Surely no such inconsistency was contemplated. This interpretation is strictly conformable to judicial interpretation; and, in our opinion, it was correctly formulated by this court, speaking through Judge Martin, in Millaudon vs. Cojus, 6 La. 224, thus;

“The article of the Louisiana Code (R. O. O. 1184 [1172]) cited by appellee’s counsel authorizes indeed the executor who desires authority of the Court of Probates to pay creditors to call all persons concerned to appear and file their opposition. This may likely prevent an heir who has neglected to oppose payments to creditors to contest their legality; but the article has no application to the case of an executor who seeks to distribute the net proceeds of an estate among the heirs; this must be done vocatis vocandi, and the persons concerned are not to be cited in the mode prescribed by Art. 1172, which must be restricted to cases in which nothing is sought’but the sanction of the court to the payment of creditors.” (Italics are ours.)

That opinion is prefaced by the statement that “ Millaudon, the assignee of the shares of two of the heirs, is appellant from the decree which homologates a tableau of distribution of the property of the two estates by Oojus, who was executor of both. The defendant claims a reversal of the decree, on a suggestion that it was rendered without his having been cited” — thus making it an exact parallel to the instant case.

The question was again presented in Succession of Macarty, 8 An. 888, wherein it was decided that the court below had properly opened the decree in so far as related to the distribution of the net proceeds of the estate among the heirs upon the ground that the appellant had not been cited, following the authority of Millaudon vs. Oojus, 6 La. 225.” (Italics ours.)

And in Succession of Bougere, 29 An. 379, Manning, chief justice, said on the same subject:

The code requires the judge to order, on demand of the administrator, that the creditors and legatees of the succession be notified to show cause within ten days why they should not be paid according to the tableau of distribution presented to him. * * * And in Millaudon’s case it is said, the published notice prevents an heir who has neglected to oppose payments to creditors from contradicting their validity. 6 La. 225.”

This interpretation was recognized and applied in Garter vs. McManus, 15 An. 676, in the following emphatic language, viz.:

It has been held that, as between the heirs and the executor, or administrator of an estate, the homologation of the final account is not binding on the heirs without citation or notice; but it has also been held that, as between the heir and the creditor of the succession the homologation of the final account is binding without personal notice or citation.”

See, to the same effect, Day’s Succession, 2 An. 895. Counsel for opponents cite and rely upon Succession of Yarborough, 16 An. 258; Truxillo vs. Truxillo, 11 An. 412, and Miller vs. Rongeaux, 20 An. 577, as establishing a contrary doctrine; but a casual inspection of those cases, shows that they state exceptional facts which do not militate against the general principles just announced.

We have made careful investigation of the provisions of the codes and jurisprudence on the subject and have reached the conclusion that the judgment homologating an account, purporting to distribute proceeds among creditors, constitutes res judicata, in respect to the validity of their claims, notwithstanding that the fact of their payment is left open to direct attack by heirs, prior to final settlement of the succession.

II.

The discussion necessarily recurs to the reservation in the account of 1876, which prefaces this opinion; and we are called upon to determine the true meaning and import of the statement that “ the claims” of the creditors named, “shall, after homologation of said account, be subject to future settlement between the heirs of Mary O. Moore; but exclusively as between these heirs.”

Inasmuch as the statement guardedly employs the phrase ‘ ‘ after homologation of said account,” it must be assumed to have been a perfect understanding between the executor and the heirs, that “ the future settlement between the heirs ” that was contemplated was to be predicated upon the judgment recognizing the validity of the claims of the creditors mentioned. Therefore, as matter of law, as well as of agreement, the validity of these claims may be accepted, without further question; and, as these various accounts and oppositions,when collectively considered, may be accepted and treated as a final account, we can only investigate the faet of payment having been properly made by the executor, as a condition precedent to final settlement of the succession.

As set out in the account of 1876 the claims that are covered by the reservation are as follows, viz.

West and Villeré, $9814.24; Heirs of Coneaud, $12,093.33; Abat and Generes, $11,194.50; total, $33,102.07.

From a careful scrutiny of the evidence in "the record — which is exceedingly voluminous — there is no room to doubt that the executor and accountant has paid the foregoing claims; that in so doing he acted upon the advice and with the sanction of, at least, a portion of the heirs. That, in one instance, the opponent, O. O. Weeks, gave his written approval of the proposed compromise of one of these claims, and the compromise thereof, as made, resulted in large gain to the succession.

The only proof in the least militating against the claim of either of them is in respect to that of West and Villeré, and the sole objection is that the succession is only responsible for one-half thereof,

z.: $4907.12.

This position is sustained by evidence showing it to have been a partnership liability for only one-half, of which Mrs. Moore was responsible. The judge a quo entertained this view, and so framed his judgment, and we concur in his finding.

But, independently of the evidence referred to, the opponent, O. C. Weeks, insists that even conceding the correctness of the aforesaid items and the fact of their payment by the executor, yet he is-not personally bound as an heir or legatee for their payment by reason of the express terms and conditions of a written contract between himself and the exeeutoi’, William F. Weeks, made in 1871, several years prior to the filing of the account of 1876.

The contract referred to was offered in evidence by the executor himself, on the trial of the oppositions; and it appears to be an act of sale wherein Charles O. Weeks conveys to his brother, William F. Weeks, “ all of his rights, title, ownership and demand as an heir and legal representative of his late mother, Mrs. Mary Conrad, * * * in and to the property heretofore owned by his said mother and brother in common in the proportion of one undivided half to each;”’ and also his interest therein as legatee under his mother’s will of one-tenth as an extra portion — said property being the Grand Cote plantation and adjoining lands.

The price and consideration paid was $10,000; but it is supplemented by this important clause, which contains the stipulations-which opponent’s counsel particularly invoke in support of his alleged discharge from liability, viz.:

It is well and expressly agreed and understood between said parties to this act that this sale and conveyance is a settlement between them of all rights resulting on the part of Charles O. Weeks against said William F. Weeks from his working and carrying on said property, latterly as well as heretofore, disposing of the crops, etc., and of all remaining indebtedness to their mother for his purchase from her of one undivided half of the same, and on the part of said William F. Weeks against said Charles O. Weeks for any collation that he might have to make to the succession of their said mother, the said William F. Weeks hereby giving said Charles C. Weeks acquittance and discharge for any and all collations due to him as one of the heirs of the said succession. That as between them this is a definite settlement of all accounts in reference to the said property. That the said William F. Weeks has paid on said plantation and lands the sum of $28,814, of which the said succession is indebted ene-half and he the other half. That in said half due by said succession, the said Charles O. Weeks owes in proportion to his share in said succession, as -mentioned above, the said William F. Weeks hereby grants full release and acquittance to said Charles C. Weeks: of whatever share of said indebtedness may be due to him. This-act is intended and does operate as a cancellation of all debts due by-said Charles C. Weeks for any of the causes above mentioned. He, the said Charles O. Weeks, so far as his interests in and to said plantation are concerned, hereby subrogates his said brother, William F. Weeks, fully to all of said rights, and the said William F. Weeks on his-part hereby binds himself to hold him harmless from any accountability to the succession of their said mother in collations which may be due to-him in collating.”

The foregoing is a quotation from the brief of opponent’s counsel (pp. 8, 9), and the italicised words are theirs.

When paraphrased this clause covers the following points, viz.:

1. A settlement of all claims of C. C. Weeks against W. F. Weeks-resulting from the latter’s management of said property and his disposition of crops raised thereon.

2. A settlement of all remaining indebtedness of W. F. Weeks to-their mother for his purchase from her of an undivided one-half interest therein.

3. A settlement of all the demands and rights of W. F. Weeks-against C. C. Weeks for collation in the succession of his mother.

4. A settlement of the demands of William F. Weeks against C. C. Weeks as heir and legatee on account of the payment made antecedently by W. F. Weeks of §28,814 on said plantation.

These are, as we interpret the agreement, the only four matters of settlement that were embraced in the act, and figure therein as forming a part of the consideration thereof.

But in order that assurance be made doubly sure, we quote the-following extract from the brief of opponent’s counsel for the purpose of exhibiting the error they have fallen into, viz.:

The document ‘A,’ to which we have above referred, specifically protected Charles C. Weeks against any indebtedness of the Grand Oote plantation, or in other words, the planting partnership of William F. Weeks & Co. It specifically protected Charles O. Weeks against any debts paid prior to the date of the act, and which upon its face were stated to exceed §28,000 in amount; and it also protected him from ever being called upon by the executor to pay anything whatsoever on account of the indebtedness of that plantation”' p. 11.

The italicised words, “ against any debts paid prior to the date of the act,” are controlled and governed by the words of the act, viz.: “that the said William F. Weeks has paid on said plantation and lands the sum of $28,814,” etc.

And to put the matter beyond doubt, and clearly show that the three claims under discussion were not included, the further statement of opponent’s counsel made in brief (pp. 12, 13) will attest; for he says that the West and Yilleré notes “ show upon their face that they were notes of W. F. Weeks & Co., which, as already stated, was a planting partnership, composed of W. F. Weeks and of his mother,” and were, therefore, chargeable jointly — i. e., one-half to the succession.

And of the other two claims he says:

“No detailed evidence is given anywhere to show any further payments on these notes; but the executor, in his testimony, says that the whole amount of $11,194.50 was paid by him; that he presumed that all these notes paid to the heirs of Coneaud and to Abat and Generes were notes given by C. C. Weeks in purchase of the Goodloe property, and which notes were afterward assumed by Mrs. Moore as part of the purchase price of said property purchased by her from C. C. Weeks.”

But it is further contended on the part of opponent’s counsel that “ if this statement be correct as to the notes of Abat and Generes, then William F. Weeks, himself, subsequently assumed payment of half of them,” and refers, in confirmation of that statement, to an act of sale from Mrs. Mary O. Moore to Wm. F. Weeks, of an interest in Grand Cote plantation. Reference to the .-ct in question fails to convince us of its correctness. There is this recital in that act, viz.:

“And for the balance of $6666.66 the purchaser promises and binds himself to pay one-half of two several promissory notes drawn by Paul Goodloe, payable respectively on the 1st of January, 1861 and 1862, to the order of James Looke * * dated January 11, 1859, * * and to secure the payment of which the property is mortgaged in the act of sale from Charles C. Weeks.”

In other words, when O. C. Weeks purchased the Goodloe plantation he executed the notes which were presented to the executor by the heirs of Coneaud and Abat and Generes; and when W. F. Weeks purchased an interest in the Grand Cote plantation from Mrs. Moore, he, in part payment, assumed one-half of two notes drawn by Paul Goodloe and payable to the order of James Loohe, the payment of which is secured in an act of sale from C. C. Weeks.

The act in question fails to confirm the alleged assumption of said indebtedness by W. P. Weeks, and this ground of opponent’s resistance must fail; and the district judge correctly so decided.

III.

With regard to opponent’s objections to the allowance made in the original account of 1888, for the fees of counsel, little need be said, as they principally relate to the fee of $2500 allowed Breaux & Renoudet — amounts paid to others seeming to have been acquiesced in, except with regard to some unimportant particulars needing no mention.

Opponent’s counsel make this statement in their brief, viz.:

“We need not dispute the fact that Messrs. Breaux & Renoudet have had a great deal of work to do in connection with the filing of the various accounts presented by them, but this work had to be done on account of the carelessness and utter want of system displayed by the executor himself, in his gestión. It was necessary to file five or six accounts, simply because the executor did not furnish his counsel with the necessary information as to the payments claimed by him to have been made for account of the estate. With all of these services, the estate proper has nothing to do. William P. Weeks, individually, undoubtedly owes a large bill for counsel fees, and is abundantly able to pay the same, but we submit that as to the succession, the filing of an account showing no collections whatever, and merely making claims upon the estate in behalf of the executor, entitles the counsel for the accountant to naught but a nominal compensation from the estate, and we, therefore, submit that this item should be reduced to a sum not exceeding $500,— in so far as the estate is concerned.”

We are not aware that from the simple fact that an account of administration shows no collections, and only shows disbursements, that the attorneys preparing and filing same should be entitled to nothing save nominal fees for their services. The principal part of an attorney’s duties in the settlement of successions consists in the preparation and statement of the account.

This succession is a large one, the amounts paid creditors are numerous and large, and the record covers over 700 pages. Nearly ■ thirty years have expired since decedent’s succession was opened; : and on account of the numerous dealings on the part of heirs — and ■ conspicuously amongst them the opponent, C. O. Weeks — in making •■ sales of and executing mortgages on succession property, and in ■ otherwise making use of it as owners, an almost indefinite number of ■ complications have arisen, which were tedious and difficult to state as well as to decide.

After a painstaking and careful investigation of the various . accounts, and the labor and time counsel are shown to have bestowed upon them, the district judge approved the accounts as rendered, and the reasons assigned are not sufficient to authorize the amendment we are requested to make in. his decree.

IV.

Inasmuch as the various pleas of prescription are urged as matters of defence in the oppositions as well as in an assignment in this ■ court they may as well be disposed of preliminarily.

As above stated, this succession has been allowed by the heirs to remain under administration for a great many years — for a very much longer time than seems necessary.

All the pressing debts of the deceased have long since been paid; and the heirs have, for many years — for the most part at least — been in the actual enjoyment of the estate as an inheritance. Most all of the • claims that figure on the accounts are charges against the heirs by the executor for the reimbursement of moneys he has expended for taxes paid upon the common property and other expenditures made in the course of his administration and care of the property. The only prescription applicable to such a demand is that of ten years against a personal action; and as these expenditures were principally made since the homologation of the 1876 account, only those of 1877 and part of 1888 could come within its grasp.

While there maybe some items that may be apparently prescribed, there is nothing in the record or in the brief of opponent’s counsel to found an intelligent judgment upon in this regard. And inasmuch as the plea of prescription is an ungracious one, and the party urging it must make his claim to relief certain, we think it our duty to reject it in toto.

V.

It is alleged in the oppositions and in the brief of counsel that several small items have been inadvertently duplicated and charged twice. This objection is particularly urged against the fees of Oonrad & Son that are charged upon the first supplemental account of 1888; but, as we understand the evidence, this is not the case — the two separate and distinct charges being made for separate and different services rendered.

A similar complaint is made in reference to a charge in the second supplemental account for an amount paid Gall & Riggs of $336.20, ■as being a duplicate of an item placed on the account of 1876.

The item objected to in the 1888 account is — namely: “ Amount paid to Gall & Riggs * * * a note bearing date * * * $336.20;” while that occurring on the 1876 account is “to Gall & Riggs on account and note, $163.10.”.

The voucher in the record is a note for $336.20, payable to the order of Gall & Riggs, of date April 29, 1867, on which there was $60 paid, on the 27th of June, 1868, leaving a balance due of $276.20, for which anew note was given.

The brief of opponent does not explain in what manner, or at what time, that note was partially paid and reduced to $163.10, as stated in the account of 1886; nor do they explain why that claim was, at that time, stated as an account and note.

While it must be confessed that there are some indications of the two items being the same, yet there is nothing convincing to that effect; and we are not authorized to rest our judgment upon a simple •conjecture.

VI.

The opponents urge numerous objections to various items of credit claimed by the executor for taxes paid, but it is quite impossible to state or discuss them in detail.

W6 find in the record vouchers for all the payments which are objected to; indeed, they are referred to in brief and opposition by number and without any question as to their being correct in amount. The only confusion there seems to be in the matter is that the taxes were paid by the executor upon various pieces of property for a period of twenty-five or thirty years, and he obtained from the collectors of taxes such receipts as were prescribed by then existing laws. During this period the heirs dealt with the various properties of the estate as their own, by making sales and transfers of parts of some and undivided interests in others, and that some confusion should have resulted therefrom is not surprising, and for which the opponents are quite as much at fault as the executor was. Consequently we think that, as a matter of justice, the loss sustained by the mutual fault of opponents and of the executor should not fall upon the latter alone — even conceding that errors have been shown, which is very doubtful. The executor appears to have acted intelligently and with care; and he has evidently expended the amounts for which he claimed reimbursement; and in approving his accounts, in this respect, the judge a quo has done substantial justice in our opinion.

VII.

With regard to the question cf rentals opponent alleges that “ the executor is singularly unsatisfactory;” but the difference between the executor’s account and opponent’s demand is quite small, indeed. The account admits the collection of $350 in rents since the filing of the account of 1876, and these were collected Of the tenants of a small building in the town of New Iberia, which was occupied a portion of the time at $10 per month; and those of another building called the Smith House, yielding similar revenue, and some collected of the tenants of the property situated opposite New Iberia, at the rate of $50 per annum.

After summing up the evidence on this question counsel for opponents concludes his statement in his brief thus:

“ It will thus be seen that we have actually and specifically proved receipts of rents amounting to $563 since 1876, instead of $350,” from the three properties just mentioned.

When we take into consideration the fact that a period of twelve years intervened between the filing of the account of 1876 and that of 1888, within which this sum accumulated, we must confess our surprise that so much stress is laid upon an alleged difference of only $213 on all these rentals.

His further insistence is, that from September, 1883, to March 1887, C. C. Weeks, opponent, collected rents of the same property, aggregating $880, or $250 per annum, and, consequently, the executor should be charged at that rate per annum from 1876 to 1887. He further states in his brief:

“The executor’s account of 1876, also, shows that he collected $2650 up to the filing of his account in 1876. These collections were made in a period of about ten years, and would show a rent value about the same as the amounts collected by O. O. Weeks. We think we may, therefore, fairly claim that the executor should be compelled to pay a rent value of $250 per annum upon the property from July 16, 1876, when he filed his first account, up to the date of the filing of his second account, August, 1888, say twelve years and one month, at $250 per annum, (which) equals $3020.”

But counsel further states:

“ On the other hand, we must, of course, admit that O. O. Weeks collected rents from September 19, 1883, to March 1, 1887, amounting to $1121.25, whereof he paid, by instructions of the executor, the sum of $466.50 to Mr. A. O. Weightman, one of his co-heirs, and kept $654.75, with which he isto bedebited on his settling his account.” Brief, pp. 28 and 29.

In the first place, there is nothing before us to show on what particular property the executor collected the rents that are placed on his 1876 account, nor any of the particulars, of amount per acre, or price per month, or per annum, on which to base a reasonable argument or make a calculation. This analogy is drawn from inference only.

But if it was a correct foundation for a decree, the fact of one of the opponents having been personally in charge of the collection of these rents for years, and, confessedly, in possession of a considerable sum that is yet unaccounted for, deprives his complaint of all equity.

VIII.

There is one item of credit to which opponents are entitled, and which was inadvertently omitted from the account; and it is the sum of $1033.08, which represents the purchase price of the Gonsoulin and Hebert lot. And to this we will add the amount of $466.50 that O. O. Weeks sent to Mrs. Weightman — the two items aggregating $1499.58. The executor should be charged with these two items and his account of 1888 amended accordingly.

IX.

With regard to the opposition of Miss Fannie Weeks, argument is presented to the effect that she occupies a more favorable position in this litigation than C. C. Weeks does, because of the contract of sale from O. O. Weeks to W. F. Weeks, which has already been referred to and discussed.

This argument lacks foundation in point of fact; and if it had any, it would be of no avail, because, in respect of O. O. Weeks, we have ascertained and decided that it was of no value, and had no practical effect, or bearing on this controversy. Hence, the comparison made by opponents between the respective situations of O. O. Weeks and Miss Fannie Weeks is not apparent.

On this hypothesis it is quite unnecessary for us to follow counsel in his discussion of the settlement of the succession of Alfred O. Weeks, by Wm. F. Weeks. That can only be considered in any col - lateral bearing it may have on the instant case. Suffice it to say that Alfred O. Weeks died apparently insolvent, and that Wm. F. Weeks paid his debts, whether by compromise or otherwise is immaterial to this case. The result was that the interest of A. O. Weeks in'the succession of his mother, Mrs. Moore, except that of Miss Fannie Weeks, was sold at public auction and the proceeds absorbed. These are all accomplished facts, and must remain in statu quo until set aside in due course of law. On the face of the records, there is nothing remaining due to Alfred O. Weeks’ succession, or heirs, save the claim of Miss Fannie Weeks, and it is manifestly so burdened by her deceased father’s indebtedness that her claim is unimportant. But, in any event, she occupies identically the same relation to this succession as her uncle, O. O. Weeks, does.

After a patient examination of the record, we are satisfied that the judgment of the District Court does substantial justice; but it needs one amendment — thatis, by the addition of the two items above mentioned, aggregating $1499.58, as an additional debit against the executor.

It is therefore ordered, adjudged and decreed that the judgment appealed from be so amended as to increase, the accountant’s debit by fourteen hundred and ninety-nine and 58-100 ($1499.58) dollars; and that as thus amended the same be affirmed, and that the cost of appeal be taxed against the executor and appellee.

The Chief Justice takes no part, not being present at the argument, and Mr. Justice Breaux recuses himself, having been of counsel.

On Application for Rehearing.

Watkins, J.

(a) Executor’s counsel complains of our opinion ■only in two respects, viz.:

1. In that we erroneously amended the judgment of homologation of the executor’s account by allowing opponents an additional debit of $1033.08 as the amount collected from Gonsoulin & Hebert as proceeds of their mortgage note. v

2. In that the executor is likewise debited with $466.50 as the •amount O. O. Weeks paid one of the heirs out of rents he had collected.

Our attention is called to the terms of the judgment, whereby it is made apparent that the first sum was debited to the executor therein, and consequently our decree was in error in giving this amount as an increased allowance and in this respect the application should prevail. This is a mere casus omissus, aud was occasioned by an improper construction of a statement found in the brief of the ■executor’s counsel (at page 33) admitting that the account should be thus credited.

But in respect to the further debit that is complained of we are of ■opinion that complaint is not founded, particularly in view of the fact that on the same page of the brief is found an implied admission of the correctness of this charge.

(6) Opponent’s counsel enumerate in their brief quite a variety of objections to our opinion, which is tantamount to a reargument of the whole ease. But there is only one that strikes us as requiring special answer, because his argument is predicated upon the assumption that the propositions of law that are announced are correct. Such being the case, the homologated account of 1876 stands unimpeached and can not be assailed, and all the items and amounts thereon placed are fully and conclusively established. This leaves, practically, little in the controversy for discussion; and upon the remaining issues we are only the more confident of the correctness ■of the conclusions arrived at by reason of a second examination of them.

Counsel, however, insist that notwithstanding the district judge in .his reasons for judgment declared that the accountant was only ■entitled to credit for one-half of the amount of the West & Villeré ■ claim that is carried on the account, yet the judgment he rendered made no mention of this reduction and homologated the account as it stood; and that in this manner the heirs are charged the full amount in error.

On casual inspection this statement appears to be correct; but on careful examination, and a comparison made of the reasons for judgment and the judgment itself, the difficulty is completely overcome. For it appears from the judgment that “ the written reasons of the court were (thereto) annexed and form part of same.” This being the case, other recitals in the decree, seemingly inconsistent therewith, must be constrned with and conformed to the reasons for judgment. On this theory our judgment is correct, and in this respect requires no amendment.

It is therefore ordered and decreed that our opinion and decree be so amended as to disallow the amendment in respect to the additional debit of $1033.08, and that in all other respects it remain undisturbed.

Rehearing refused.


source: Caselaw Access Project

author: Watkins, J.

license: Public Domain

text:
    No. 11,074.
    Mrs. Marie Idealie Collins, Wife, etc., vs. Edward J. Desmaret.
    T. One proposing to purchase at a stated price, property advertised for sale at auction, if made to the real estate agents advertising the sale and upon the date o£ such auction sale, must be viewed in the light of a purchaser at auction and not as the vendee in a conventual contract of sale.
    2. The paying of a certain stipulated cash depost at time of adjudication at ant auction sale is not to be construed as a payment of part of the purchase price as such, but as the giving of an earnest to bind the bargain during the time titles are being prepared.
    Such a proposition, though formally accepted, does not constitute a perfect and completed sale, but a promise of sale, only, that entitles the parties, respectively, to sue for specific performance or the payment of damages.
    A APPEAL from the Oivil District Court for the Parish of Orleans. King, J.

      B. R. Forman for the Plaintiff and Appellee:
    1. A contract of sale of real estate situated in the State of Mississippi is regulated in point of form, substance and validity by laws of that State. Succession of Larendon, 29 An. 952.
    2. The description of the land is amply sufficient under the laws of Mississippi Bingaman vs. Hyatt, 1 Smedes and Marshall’s Ohan. R. 437.

      3. The court will take judicial notice of the fact that the common law forms the basis of jurisprudence in Mississippi, except in so far as modified by statute, Kling vs. Sejourn, 4 An. 129; Copeley vs. Sanford, Exr., 2 An. 335.
    4. The maxim caveat emptor applies to the sale of real estate in Mississippi. Etheridge vs. Vernoy, 70 X. C. 713; Wafsh vs. Hall, 66 N. 0.233.
    «. The sale was for a gross sum, and not by the arpent; hence, there can be no diminution or abatement of the price. Kerr vs. Kuykcndaell, 44 Miss. 145; Crompton vs. Prince, 44 N. W. 648; Appeal McCullough, 18 Am. 1180; Allen vs. Shriver, 81 Va. 174.
    6. The measurements given are merely descriptive, and not a warrant as to quantity. Mess vs. Cheny, 3 So. Rep. 791; Rawle on Covenants for Title (4th ed.) p. 523.
    7. The description by boundaries, i. e., metes and bounds, will control a statement of quantity or length of one of the boundaries. Noble vs. Googins, 99 Mass. 231; Thompson vs. Sheppard, 5 So. Rep. 334; Tarbell vs. Bowman, 103 Mass. 343; Braugbaugh vs. Chapman, 13 N. E, Rep. 584.
    8. It is a saleper aversionem by distinct boundaries, and not by the arpent or acre, and hence, there can be no abatement of the price. Hilliard on Vendors, pp. 271, 272.
    9. The defendant has waived all the objection stated in his answer, by his declarations and acts prior to and at the time the deed was tendered to him by the notary. Moak vs. Bryant, 51 Miss.; Harris vs. Simrall, 560; Bright vs. Rowland, 3 How. (Miss.) 398; Morgan vs. Stearns, 40 Cal. 434; Dressel vs. Jordan, 104 Mass. 407; Gerris vs. Norris, 9 Cush. 167; Salisbury vs. Hatcher, 2 T. and Col. Chan. 54; McMurry vs. Spiers, Law Rep., 5 Eq. 527, 542; Greg'g vs. Von Phul, 1 Wal. 274..
    10. There has been part performance of the contract by the payment of a portion of the purchase price, and it is now too late to rescind or to attempt to rescind the sale. In Lacón vs. Mertins, 3 Atk. 2, Lord Hardwick® said: “Paying of money has been always held in this court as a part performance.” Mallins vs. Brown, 4 Comst. 403.

      Buck, Dinkelspiel & Hart, for Defendant and Appellant, cited: Fry on Specific Performance, Secs. 170, 172, 203, 342, 479, 498.
   The opinion of the court was delivered by

Watkins, J.

Alleging an indebtedness of defendant for the sum of $2250, plaintiff prayed judgment therefor. That demand was met, first, by an exception of no cause of action, and, it having been overruled, by an answer setting up a general denial and other defences. On the hearing there was judgment in plaintiff’s favor for the sum demanded, and after an unsuccessful effort to obtain a new trial the defendant has appealed.

The plea of.no cause of action is directed at the averments of the petition which are declaratory or descriptive of plaintiff’s demand, and the insistence of defendant’s counsel is that they affirmatively show a want of right in her to recover the balance of the purchase price of a completed sale, and relegate her to an action, if any she has, for specific performance or damages for defendant’s non-compliance with a promise of sale.

The substantial averments of the petition are that plaintiff authorized a firm of real estate agents to sell at public auction a certain piece of real estate for her. That said agents advertised said property for sale at auction on the 19th of November, 1892, and said property not being adjudicated on that date the defendant offered to buy same for $2500 cash, which offer was accepted by said agents. That defendant paid as part of the price $250 to said agents, and petitioner executed and tendered to him a good and valid deed-of conveyance and “ demanded payment of the price, and he refused to accept the title and pay the price.”

The petitioner declares that she annexes a “ copy of the offer and of the acceptance, and of the deed tendered, and of the putting in default, and make them a part of the petition.”

Thus annexed and made part of the petition, the deed and other documents disclose the following pertinent facts, to-wit:

1. That defendant’s offer was to purchase the property advertised for sale at auction for $2500 in cash.

2. That the agent’s acceptance was absolute, though accompanied with the request that defendant “make the usual 10 per cent, cash deposit.”

3. That the plaintiff executed and caused to be duly tendered to the defendant, through the medium of a notary public, a deed of sale in apparent conformity to law.

4. That the notarial act of putting the defendant in default declares that said act was duly presented and formally tendered to the defendant coupled with the demand “ that he comply with the terms of said agreement by paying over the purchase price to said Mrs. McOaleb and accept said deed of sale.”

5. That said authentic act of putting in default, then, especially recites that “ said Edward J. Desmaret did then and there declare unto me, notary, that he refused to accept said deed and pay over said purchase price, for the reason that he labored under misapprehension when he agreed to purchase said property;” and, thereupon, said notary made public and solemn protest against said acts of the defendant “in refusing to accept said deed of sale and pay over said purchase price in accordance with said agreement,” etc.

In our estimation the recitals of the plaintiff’s petition and accompanying documents only make out a promise of sale, and not a completely perfected sale, and that plaintiff has mistaken her remedy.

The code declares that “ a promise to sell amounts to a sale, when there exists a reciprocal consent of both parties, as to the thing and the price thereof provided the promise “be vested with same formalities” as are prescribed for sales. R. C. C., 2462.

But while it is true that a promise of sale thus made and evidenced by a written instrument amounts to a sale, repeated adjudications of this court demonstrate that it can not be treated and considered as a sale; and that it does not produce, between the parties, the relations of vendor and vendee — only producing those of promisor and promisee.

In McDonald vs. Aubert, 17 La. 449, the court had under consideration and interpreted a contract quite similar in purport to the one under consideration here. The plaintiff in that case sued out an order of seizure and sale for part of the price of a plantation sold to the defendant, and the proceedings were enjoined on the ground of defects in the title conveyed. On the trial it was developed that plaintiff’s vendor had purchased two out of the eight arpents that were sold. defendant, and which plaintiffs held under a contract of purchase for a stipulated price “to be paid down at the passing of the sale to them; and, as an earnest, they paid $1000.”j

Of this contract the court say:

“It is contended on the part of the appellant that under Articles 2437 and 2438 of our code, the promise to sell amounted to a real sale, to which a resolutory condition was attached by the giving of an earnest, but that the parties not having taken advantage of this condition, the sale became absolute, and that its validity can not be affected by the subsequent death of the vendor’s wife.
. “We can not concur in this view of the agreement entered into by these parties. * * We understand Article 2437 to mean that a promise to sell, when the thing to be sold and the price of it are agreed upon, is so far a sale that it gives to either party a right to claim recta via the delivery of the thing or payment of the price; but such a promise does not place the thing at the risk of the promisee, nor does it transfer to him the ownership or dominion of it. If by consent of both parties a promise to sell is canceled, such an agreement could not be viewed as a retrocession of the property; and third persons having a general mortgage recorded against the promisee would have acquired no right, or lien on the same, because it never belonged to their debtor.”

In Peck vs. Bemiss, 10 An. 160, the court had under consideration and construed an agreement to sell, which was made by an agent, a designated piece of real property, for a stated price, one-third of which was to be paid cash when possession was given, and the balance in one and two years, with stipulation of interest and mortgage. Of this instrument the court say:

“ In the search for the intention of the parties we are to look to the whole language of the instrument and the surrounding circumstances to which the instrument itself points. The plaintiff treated with Sims as an agent. The letters of instruction from Overton to Sims, then in his possession, construed in the most liberal sense possible., did not clothe him with authority to sign deeds of sale. The instrument, on its face, implies an inability then to give possession of the land, etc. * * * * ' Construing the language of the deed with the aid of these surrounding circumstances to which the deed, by implication points, our minds are brought to the conclusion that the instrument is a promise of sale, a reciprocal promise by which Sims, for Overton, engaged himself to sell the land to Peek at a future time, and Peck engaged himself to purchase it when possession should be given, on the terms of cash and credit designated in the instrument.”

Proceeding to consider “what rights passed by the instrument itself, assuming the authority of Sims to sign it,” the court said:

“ This reciprocal promise of sale did not make Peek the owner of the land. It gave him only the right of becoming so at a future time. It created in his favor an obligation binding upon Overton, and by which, if he refused voluntarily to comply, he could be judicially constrained to a specific performance, or subjected, if he had-put it out of his own power to comply, to an action for damages. Until a voluntary or forced execution of the promise, the ownership did not pass to Pec7c.”

The court declined to consider a promise of sale and a sale as one and the same thing, and said:

“ The law would be censurable for a strange violation of the principles of reason and justice, and for a short-sighted view of expediency, if it deprived individuals of the right of making prospective agreements for a sale, or told them that if they make each other a reciprocal promise to buy and sell a thing a year hence, for example,, that they should be absolutely considered as having made a present sale, with all the incidents of a shifting of the risk, revenues, accretion, etc., which pertain to a contract of sale.”

Eor the foregoing reasons plaintiff’s petitory action failed — the-defendant’s “exception to the character of the action” having; been sustained — though plaintiff’s right was reserved to sue for specific performance.

The foregoing decisions are particularly applicable to the facts of the present controversy, in two particulars; (1) in that plaintiff contends that defendant paid a part of the purchase price, and thereby confirmed the contract and made same an absolute sale; (2) in that the contract of acceptance of the defendant’s offer to buy was by an agent, and consequently the sale was not only completed, but conventual.

But we take it to be clear that defendant’s intention was to make-a bid for the property as at an auction sale. His communication was addressed to the real estate agents by whom it was advertised for sale at auction; and the advertisement did not disclose the name of the owner of the property. The communication was made on the very day of the auction, as advertised, employing these words, viz.:

“ I hereby offer to purchase the property at Waveland offered at auction this day." The reply of the real estate agents, of same date-as the communication, acknowledges receipt of defendant’s “ proposition” and accepts same, concluding with the request that he will “please make the usual 10 per cent, deposit.” There is in the record no mandate of any kind tending to show that Baumgarden & Eriedricks were authorized, as agents of the plaintiff, to make sale to the defendants or to any one else. There is nothing in any of the written documents annexed to plaintiff’s petition which evidences any such intention on their part. But, on the contrary, their demands of the defendant that he “ make the usual 10 per cent, cash deposit,” is convincing proof that they considered his proposition as a bid for the property at auction, and being such, they had undoubted authority to accept it as they did. Wheelage vs. Lotz, 44 An. 600.

This theory is further confirmed by the fact that the notary who put defendant in default acted, in so doing, at plaintiff’s request, and not at the request of the auctioneers; and the act of sale that he tendered to the defendant in pursuance of the aforesaid proposition and acceptance was one under private signature, and purports to have been executed by the plaintiff, in her own right, to the defendant, several days subsequent thereto, and for a cash consideration of $2500 paid to her, thus clearly distinguishing it from the defendant’s proposition to the alleged agents, and clearly evincing their want of capacity as agents in the transaction.

The foregoing statement of facts furnishes conclusive proof that the 10 per cent, cash deposit that defendant paid to the real estate agents was not intended as a payment of part of the purchase price, as such, but as the giving of an earnest, such as is customarily made as the necessary accompaniment of a bid at an auction sale, for the purpose of binding the bargain. The bidder is not thereby in any manner concluded from raising any objections he may have to the title when it is tendered to him; but, on the contrary, the very object to be attained by giving such earnest is to gain time to make inquiry and institute examination into the title to the property. To hold that such a payment concluded the proposer, would be to destroy sales at auction altogether.

When such a bid is made at auction, and the property is adjudicated to the bidder, the parties occupy the same relation toward each other as those existing between the promisor and promisee in a promise of sale eonventually made. It produces only such an obligation as may be specifically enforced, but does not. absolutely convey the property, or confer upon the promisor the rights of vendor.

The foregoing authorities have been repeatedly sanctioned and approved in many subsequent cases. Satterfield vs. Killen, 14 An. 606; Garrett vs. Crooks. 15 An. 483; Knox vs. Payne & Harrison, 13 An. 361; Broadwell vs. Raines, 34 An. 677; Thompson vs. Sheriff, 40 An. 712.

On reason and authority, we are of opinion that the plaintiff’s petition and annexed documents disclose a promise of sale, and not a completed sale; and that a title to the property did not pass to the defendant, entitling plaintiff to the vendor’s action for the payment of the price, though it does entitle her to claim specific performance, or damages for non-performance of his contract.

Entertaining this view, we are of opinion that the learned judge of the District Court improperly overruled the defendant’s exception of no cause of action, and that the judgment appealed from should he reversed.

It is therefore ordered and decreed that the judgment appealed from be annulled and reversed; and it is now ordered that there be judgment sustaining defendant’s exception of no cause of action and dismissing plaintiff’s suit at her cost in both courts — reserving her right of action against the defendant for specific performance, or for damages for non-performance of his contract.

Rehearing refused.


text:
    No. 11,096.
    Mrs. E. H. Stoner vs. Texas & Pacific Railway Company.
    In an action tor damages for the destruction of an orchard of fruit trees hy fire, the measure of damages is not the cost of replacing the trees, and the value of the care and labor bestowed on the destroyed trees before the burning, but the value of destroyed trees at date of fire.
    APPEAL from the First District Court, Parish of Caddo. laylor, J.

      Bell <& Randolph for Plaintiff and Appellee.

      Wise & Herndon for Defendant and Appellant.
   The opinion of the court was delivered by

Watkins, J.

This is an action in damages, alleged to have been ■occasioned by the destruction of, and injury done to, fruit trees in plaintiff’s orchard in the immediate vicinity of the track of defendant’s railway.

The section hands of the defendant company were engaged in burning old cross-ties on its right of way, and fire from the heaps of burning ties caught the dry grass and rapidly communicated to plaintiff’s orchard, and the damage complained of was done before the employés and others could arrest it. This fact is not denied by defendant ; but, on the contrary, is admitted, as well as the truth of plaintiff’s averment that it was through the negligence and carelessness of the section hands that the orchard caught fire and burned.

Hence the controversy is narrowed down to a simple question of the quantum of damages. The amount demanded is $9240.

The cause was twice tried by a jury, the plaintiff having been awarded on the first trial the full amount claimed, and on the second, only $3500.

It is from this last verdict, and judgment thereon based, that defendant prosecutes this appeal.

Plaintiff’s averment of the loss and injury sustained is as follows— namely:

670 íull-boaring Caddo-chief plum trees, fully destroyed, at $12 each.....$8,040
20 ditto, damaged, at $10 each................................................................... 200
30 four-year-old Caddo-chief plum trees at....................................... 13
124 Oaddo-ehief trees grafted to other line plum trees of bearing age, at $3...................................................................................................... 620
29 full-bearing apple trees, at $10........................................................ 29>
12 ditto Chinese quince trees, at $5.......................................................... 60
lpeartreeat............................................................................................ 5
S acres of pasture grass.............................................................................. 10
Making a total of...................................................................$9,240

An examination of the record discloses the following facts substantially, as appertaining to the quantum of damages.

That plaintiff had standing in her orchard at the time of the occurrence of the fire about 3000 Oaddo-ehief plum trees that were full bearing at the time; and that that variety of plum trees was of a very superior quality and productiveness, and for the fruit yielded therefrom there was ready sale in Texas, as well as in home markets. That of these trees there were totally consumed 600 approximately —witnesses varying in their estimates of the number — and about fifty trees of a different variety. There were also some other trees that were injured, but not totally destroyed. Butin this respect the testimony is desultory and unsatisfactory.

A great deal of testimony was taken with re'gard to the quantity of fruit that was annually yielded by the trees, and with regard to prices realized in different markets. But this evidence can furnish us with no accurate idea of the value of the trees. Many witnesses were interrogated with regard to the specific value of the trees, and, from varying standpoints of knowledge and experience, they have made various estimates of their worth.

Generally, plaintiff’s witnesses placed upon them the value of $8 to $10 per tree; while those of the defendant put a much lower valuation upon them; that is to say from $1.50 to $2.50 per tree.

There is no possible way of reconciling their disparity of statement, all of the witnesses seeming to be equally honest and intelligent.

If we were to select a mien between the two extremes and adopt as the basis of our judgment, say, $6 per tree, and take 650 trees as the initial point for oar calculation, we would have the sum of 83900 for their total value. But, as this sum is not critically accurate, from a mathematical point of view, but is not materially different from that allowed by the jury, we deem it our duty to let the matter rest where it is, and affirm the judgment appealed from, and it is so ordered.


author: McEnery, J.

text:
    No. 11,051.
    Mrs. Melanie D. Breton, Wife of Eugene Brice Sembre, vs. Her Husband. The H. B. Claplin Company, Intervenors.
    A judgment homologating the final account of the syndic of an insolvent estate, which becomes final, is res judicata to all parties who participated in the cession or concurso.

    In a suit for separation of property, to which the husband’s syndic is made a party, and the creditors intervene, the husband has no interest in the suit, and the wife is a competent witness for her own interest.
    APPEAL from the Civil District Court for the Parish of Orleans. Monroe, J.

      Sambola & Ducros for Plaintiff and Appellee:
    (а) Any disorder of the husband’s affairs, which may endanger the wife’s actual or eventual estate, warrants, always and under all circumstances possible, a judgment of separation of property. II. C. O 2425; 6 R. 3ii; 10 An.273; 5 Marcade, 569.
    (б) The husband’s schedule and cession of property are competent and sufficient proof of this disorder. 16 An. 369.
    (c) The decree of homologation of his syndic’s account is res judicata quoad all creditors, parties to the cession or concurso. 2 An.991; i An. 475; 13 An.98; 18 An. 65; 27 An. 587.
    II.
    In a suit for separation of property, to which the husband’s syndic is party defendant and the husband’s creditor party intervening, the wife, whose husband has no possible interest in the case by reason of his cession, is a competent witness for her separate interest therein. 36 An. 218, 220 ; 9R.Í3; 1 An. 472; R. C. C. 2281; 23 An. 164; il An. 278.

      III.
    (а) A peremptory exception predicated of the vagueness or generality of a plaintiff's pretensions may be interposed only by a co-litigant and in limine litis. C. P. 343,344; Pothicr, Proc. Civ., Part I, Oil. 2, Sec. 2, Art. 1.
    (б) Unimpeachable and uncontradictod testimony showing sufficient probability of its truth to satisfy the mind and conscience of a common man entitles a party plaintiff to judgment. 1 Starldo, 478; 1 Greonleaf, Secs. 1 and 2; 33 An S03; 5 Marcade, 207.
    IV.
    A judgment of separation of property should show its real character on its face, not by implication. It. C. C. 2425, 2420, el seq.

      Henry L. Lazarus, for Intervenors and Appellants, cited: 88 An. 197; 41 An. 278.
   The opinion of the court was delivered by

McEnery, J.

This is a suit for the dissolution of the community and separation of property existing between plaintiff -and her husband.

The petition alleges that plaintiff and defendant were married in Philadelphia, 5th of March, 1884, and that before her marriage she was possessed in her own right of “moneys, values, jewelry, to an amount of about $20,000;” that she handed to her said husband out of said “ values” the sum of $10,000, and that she invested a part of the balance of said amount in a piece of real estate, valued at $3000, which she purchased on the 30th of April, 1889, by act passed before Marcel T. Ducros, notary public, said property being described as a certain lot or portion of ground, together with the buildings and improvements thereon, situated in the First District of the city of New Orleans, in the square designated by the municipal number 265, bounded by Gravier, Common, Baronne and Dryades streets, measuring 20 feet 5 inches front on Gravier street by a depth of 79 feet 9 inches 6 lines on the side nearest to Dryades street, and 79 feet 7 inches 4 lines on the opposite side line; that her husband is in hopeless insolvency, having made a cession of his property to his creditors, and that his estate will not be sufficient to meet her rights and claims, although she expects to realize from the insolvent estate a certain percentage of the $10,000 which she claims. She praysjfor a judgment dissolving the community and decreeing a separation of property, the recognition of her right to enjoy and administer the real estate and jewelry and silverware as her separate and paraphernal property, settling and liquidating her claim for $10,000, with the right of receiving personally whatever dividend she may receive from the insolvent’s estate on account of her $10,000.

The syndic of the estate of the insolvent husband was made a party defendant to the suit and filed an answer.

H. B. Olafflin & Co., creditors of the insolvent, intervened in the suit, alleging they were creditors for $2124.95 for merchandise sold to the insolvent husband, and denied the allegations in plaintiff’s petition that she was in any way a creditor of her husband, and that plaintiff’s suit was instituted for the purpose of withholding property belonging to the insolvent from the just pursuit of his creditors.

There was judgment in favor of plaintiff granting the prayer in her petition, except as to the jewelry and silverware, for which there was judgment of non-suit.

The intervenors appealed.

The plaintiff was placed on the insolvent’s schedule as a creditor for $10,000.

The intervenors were parties to the insolvent proceedings. After the institution of this suit the plaintiff received from the syndic the sum of $695.70 as a dividend upon the $10,000 claimed by her. The syndic filed his account, which was approved by the intervenors. It was homologated and became final, and the intervenors are therefore concluded by the judgment homologating the same. Lee vs. His Creditors, 2 An. 994.

The plaintiff makes no other claim in reference to said amount than the dividend coming to her from the estate of the insolvent.

With respect to the other property claimed, the evidence to support the same rests almost exclusively upon the testimony of the plaintiff. Her testimony intrinsically carries with it a conviction of its truth and sincerity. There is some corroboration of it. It is uncontradicted. No attempt was made to impugn it. It was objected to on the ground that the wife is not a competent witness to establish her claim in a suit for separation of property against her husband, whether it be against her husband or the intervenors.

The property claimed by plaintiff was not placed on the insolvent’s schedule. There was no effort made by any creditor to have it placed thereon. The intervenors in their opposition knew of the existence of this suit, as they had made themselves parties to it. In their opposition they failed to oppose the homologation of the account because the real estate and jewelry and silverware claimed by plaintiff were not placed thereon. It would seem, therefore, that they were without interest after the insolvent estate had been finally settled to oppose the judgment sought by plaintiff in relation to this property. When the suit of plaintiff was instituted and filed, the defendant had already gone into insolvency and the syndic was made a party defendant. The husband therefore had no interest in the suit. The issues were between plaintiff and the creditors represented by the syndic. She was, therefore, a competent witness in behalf of her • own interest. Cosgrove vs. His Creditors, 41 An. 278.

The evidence is uncontradicted that the plaintiff advanced the money as alleged in her petition and that she is the owner in her own right of the real estate described in her petition. There is no description so as to identify the jewelry and the silver, either in the petition or in the evidence. This personal property is in the plaintiff’s possession and no one seems to dispute her title to it. But we can render no decree, in relation thereto, because of an absence of some evidence to identify it.

The plaintiff asks for an amendment of the judgment appealed from. The amendment would only state the effect of the judgment, appealed from and we see no reason why it should be embodied in the decree.

Judgment affirmed.


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    No. 11,115.
    Theodore J. Thompson et al. vs. John Flathers.
    A party, who leases property upon which there is a registered mortgage, does so with full knowledge of the mortgage. Its registry is notice to him. When the lessee gives his notes in advance for the rent, and the proceedings are instituted for the foreclosure of the mortgage, he can, to prevent them from falling into the hands of a bona fide holder, arrest their negotiation in the hands of the lessor and demand security against payment of the rent note.
    The lease is dissolved by the sale of the property, not by the suit to foreclose. Therefore, the lessee owes rent to the lessor until the seizure of the same by the sheriff, and if not seized until the sale of the property by judicial process.
    If before the seizure, or the sale of the property, the lessee refuses to pay the rent, the lessor has the right to provisonally seize the property subject to the lessor’s privilege.
    A case like the instant one will be remanded to await the result of the suit to foreclose the mortgage, or the expiration of the lease.

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

      James Wilkinson for Plaintiffs and Appellees.

      Louque & MeOloin for Defendant and Appellant.
   The opinion of the court was delivered by

McEnery, J.

The defendant leased to the plaintiffs the Orleans plantation for two years and two months from September 18, 1891. The price of the lease was $4500, $1000 cash and two notes of $1250 each, payable respectively October 1, 1892, and Sept. 1, 1893. At the time the property was leased to plaintiffs it was burdened with a mortgage for $11,000, the notes evidencing the mortgage debt being held by the State National Bank.

The notes falling due, the bank, on November 3, 1891, proceeded to enforce the mortgage by executory process. The defendant, Elathers, enjoined further proceedings after demand of payment had ■been made upon him and before seizure, alleging in the petition for the injunction that unless the executory process should be arrested, in due course of law, the property would be seized and sold. The injunction was dissolved, and on appeal to this court the judgment dissolving the same was affirmed. The plaintiffs cultivated the place in the year 1892, for which time they paid the rent.

When the time approached for the maturity of the note for $1250, one-half of the rent for 1893, payable in advance, plaintiffs proposed to defendant that he should defer the payment of said note until after the final decision in the case of the Bank vs. Flathers. Defendant declined and plaintiffs brought the suit. In their petition they recite the fact of the then pending suit of Bank vs. Elathers, the judgment thereon, which on appeal they allege may be affirmed, which will result in their speedy ejectment from the leased premises and a loss of the amount of the rent note given in advance, and the outlays and expenditures for planting, etc. They ask for the annulment of the judgment and the restoration to them of the two notes ■of $1250 each.

The defendant answered, pleading a general denial, and, assuming ■the position of plaintiff in reconvention, prayed for and obtained a writ of provisional seizure. The writ was executed, and the property subject to the lessor’s privilege was released on bond. There was judgment in favor of the plaintiff' ordering defendant to wait before demanding payment of the two notes until the final decision of case of Bank vs. Plathers and dismissing defendant’s reconventional demand.

It appears from the brief of plaintiffs that after the injunction taken out by plaintiffs in suit of Bank vs. Plathers, the notes were impounded” in the hands of Charles Loque.

The plaintiffs allege that at the time the lease was executed they had no knowledge of any mortgage resting on the place and that the defendant never informed them of the existence of any mortgage on it. The mortgage was duly recorded and the plaintiffs therefore had notice of the same. The registry of the mortgage was a notice to the world that it existed — and particularly to those who made any contract with reference to the mortgaged property. O. 0., 3342, 3347.

The plaintiffs having knowledge of the existence of the mortgage, executed the lease subject to the rights of the mortgagee against third parties which were fixed at the time of its registry. The important right vested in him was the right to cause the property to be seized and sold, if the mortgage, as in the instant case, contained the pact de non alienando, free from any incumbrance whatever created by the mortgagee on the hypothecated property. The right so "wsted can not be modified or impaired by any act or contract entered into subsequently between the mortgagor and other parties. Barelli vs. Szymanski, 14 An. 47; Saddler vs. White, 14 An. 173.

üy giving notes payable in advance for the rent the plaintiffs incurred the risk of paying the notes to a bona fide holder, and also the rent to the purchaser of the property.

The judicial sale of the property would have dissolved the lease, and the plaintiffs, in case the notes had fallen into the hands of a bona fide purchaser, would have to pay the same, and also the amount due for rent, after the sale, to the purchaser.

To protect himself from such a contingent liability we are of the opinion that he had the right, when proceedings to foreclose the mortgage were instituted, to arrest the notes in the hands of the lessor, to prevent him from negotiating them, and to demand and compel him to give security against the payment of the notes. But as the lease will not be dissolved until the judicial sale of the property, the plaintiffs can not demand the delivery of the notes to themselves. The mortgagor may have a substantial defence to the debt and mortgage. At any rate he has the delay until the property is sold to pay the debt.

As the lease, unless dissolved by some act- of the parties to it, remains in force until the sale of the mortgaged property, the lessor has the undoubted right, if the facts justify it, to enforce the lessor’s privilege on property subject to it. The defendant, therefore, was fully justified in resorting to the writ of provisional seizure, as the payment of the rent which was due was resisted. C. P., Art. 287.

But it would be manifestly unjust and inequitable to the plaintiffs to permit the lessor to prosecute his suit for the amount due for rent and sell the property, and to retain the notes without giving security to indemnify the plaintiffs against their payment. It would be equally unjust to defendant, if the lease should continue until it expires, to deprive him of the security which the law gives for the rent and the control of the notes.

The lease expires in November of the present year. It may be that the leased property will not be sold under the executory process, or that the judicial sale may be deferred until after the expiration of the lease. As the lease will continue, unless otherwise determined by the act of the parties, until the judicial sale of the property, we think that justice requires that this case be remanded to await final action in the matter of the foreclosure of the mortgage or the expiration of the lease.

The plaintiffs have the right to demand of the defendant security against the two rent notes for §1250 each, and the defendant to maintain his right to sue on the bond given for the release of the property seized under the writ of provisional seizure.-

It is therefore ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and reversed, and it is now ordered that this case be remanded to await final action in case of Bank vs. Flathers, unless the lease expires before a seizure and sale is made of the Orleans plantation, in which event the case may be disposed of.

When tried, to be proceeded with according to the views herein expressed and according to law.

The district judge will, when the demand is made by plaintiffs, issue the necessary order for the defendant to give bond to indemnify them against payment of the notes.

Both parties will equally pay costs of appeal.


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    No. 11,075.
    Joseph D. Taylor vs. Edwin Telle.
    The civil possession to authorize the possessory action must be preceded by an actual, corporal possession. The previous corporal possession oí the author of the title will inure to the benefit of plaintiff.
    The suit for possession musi;be instituted within the year when the alleged disturbance took place.
    APPEAL from the Civil District Court for the Parish of Orleans. Rightor, J.

      J. Q. A. Fellows and J. B. Rosser, Jr., for Plaintiff and Appellant:
    1. In the plea of no cause of action, the allegations of the petition are taken as true, and if they present a right against the defendant, a cause of action is pres exited.
    2 Where a plan of survey, accoxupaxiicd by field notes, shows a delineatioxi of these notes on the plot, though there may be extraneous lines protracted on the plot, derived from other sources, it is a plot of the sui'vey made, and where notice of the making of the survey is brought home to the party objecting, it is admissible in evidexice.
    2. That the employment of the chain-imm, in the survey, by the defendant, and his payment to the surveyor for liis services in making the survey, is constructive and conclusive proof of the notice of the intended survey.
    k. Where defendant sets up no title in himself, but simply denies the allegations of the plaintiff’s petition, he has no right to introduce testimony invalidating the vrima facie title of the plaintiff, nor contradict the title in anyway whatever. Zeringue vs. Williams, 15 An. 76; Jamison vs. Smith, 85 An. 609.
    O. Where defendant pleads a general denial and sets up no title or pretension of title, and makes no claim or reservation of claim for improvements on the land in controversy, he can have no judgnxent reserving to him the x-ight to sue for value of improvements.
    (5. And if he had setup such claim, when it appeared from the record that one pox'tion of the laxid was sold by him to plaintiff, with the improvements claimed on it at the time of sale, there should have been judgment against such claim, and when the other improvements were made oxx. public lands, to which subsequently the plaintiff had acquired title, the defendant could xiot claim the reservation of right to sue for the value of such improvements, but judgment should be rendered agaixist such reservation.
    7. A title prima facie good, in the plaintiff, is sufficient for the foundation of a suit, and where there is ixothing legally in the record to impeach it judgment should be rendered, as on a perfect title, as agaixist one with no pretensions to a title.
    8. Wlxereamoneyed judgment is claimed on a quantum meruit and the witnesses for plaintiff and defendant do not agree on the value, and only one witness on each side is examined, the safe xele is to average the two opinions, but in no case could the claim bo rejected in ioto but at least there should be judgment for the lowest estimated amount.

      Henry Denis for Defendant and Appellee:
    1. It is the prayer of the petition that fixes the character of the action. If plaintiff does not ask to have his title recognized, but only that defendant should surrender possession, the action is the possessory one. 41 An. 704 ; 3S An. 8.16; 37 An. 240.
    2.' One who his never been in possession is not entitled to the possessory action. 24 An. 176; C. P. 46, et seq.; O. C. 35.36.
    3. The manner in which the parties executed the contract shows their understanding of it. C. C. 1956-1939; I-Iennen’s Dig., p. 1012, No. 7.
    4. Article 2474 of the code, which provides that an obscure or ambiguous clause is construed against the vendor, is an extreme remedy, to bo used only when other presumptions have failed. Troplong, De la Vente, Vol. 1, See. 256; Demolombe, Vol. 25, See. 26; Laurent, Vol. 24, Section 156.
   The opinion of the court was delivered by

McEnery, J.

The plaintiff alleges that he is the owner by regular title of Sec. 17 and fractional Secs. 9 and 16 in T. 7. S., R. 15 E., of the Greensburg land district in the parish of St. Tammany; that the defendant residing in New Orleans is in possession of a portion of south-west corner of Sec. 9; a portion of northwest corner of Sec. 16, and a portion of northeast corner of Sec. 17, and that he prevents petitioner from taking possession of and occupying said portions of said sections, and that he is a trespasser upon the lands described in the petition. The plaintiff set out bis several titles to said sections. He claims damages to the amount of $500 for the use and occupation of the land previous to the institution of the suit, and at the rate of §50 per month since judicial demand.

The petition concludes as follows: “Therefore petitioner prays that said Edwin Telle be cited to answer this petition and demand, and that after all due proceedings he be declared to be a trespasser upon the land of petitioner as in this petition described and ordered to vacate and give peaceable possession of the same; that there be judgment against him, said Edwin Telle, for $50 per month from judicial demand until such peaceable possession is given and for $500 damages for previous use of said property.”

The defendant filed an exception of no cause of action, which was overruled. He then answered pleading a general denial. There was judgment for the plaintiff, decreeing him to be entitled to the possession of See. 17 and fractional Sec. 9, a judgment of non-suit as to Sec. 16, rejecting plaintiff's demand for damages and reserving to defendant to sue for the value of the improvements upon Secs. 17 and 9.

The exception is urged in this court on the ground that the action is a possessory and not a petitory action. The exception is not to the form of the action, but to the essential and necessary allegations in the petition. It is a possessory action, and the allegations we think are sufficient to maintain it. They are sufficient from the averments of ownership to support proof of possession.

The plaintiff offered in evidence the title to him of Sec. 16 from the school board of St. Tammany parish. It is admitted that there is a suit pending in the District Court for the parish of St. Tammany, in which defendant and others are plaintiffs against the plaintiff here for title and ownership to said section, which has been tried and is held under advisement. But this is objected to by the plaintiff, as evidence to contradict his title to said section as shown by the deed which he has offered, as the court in ease of Telle vs. Taylor, 42 An. 1165, had decided against the defendant’s petition to ownership to said section. We do not think the interpretation can be placed on the decree in that case so as to confine plaintiff’s title to said section, as it affirmed the judgment appealed from, which was a dismissal of plaintiff’s suit.

We will not, therefore, anticipate the decree which may be rendered in the suit pending in the parish of St. Tammany. The conclusions which we have reached, however, render this statement unnecessary.

Art. 49 of the Code of Practice provides that the plaintiff in a possessory action must show that he has “ had the real and actual possession of the property at the instant when the disturbance occurred; amere civil or legal possession is not sufficient,” and that “he should have brought his suit at the latest within the year in which the disturbance took place.”

The interpretation placed upon the article of the Code of Practice has been uniform since the case of Ellis vs. Provost et ais., 19 La. 251.

Briefly stated, the interpretation of said article is that plaintiff, claiming by possession alone, without showing any title, must show an adverse possession by inclosures and his claim will not extend beyond; that the civil possession is sufficient to authorize the suit, but this must be preceded by an actual corporeal possession, a pos - session in fact. The civil possession, the naked ownership, without this previous corporeal possession is insufficient; that the previous corporeal possession of the author of the title will inure to the benefit of the plaintiff. The legal principles enunciated in this case have been invariably followed. Huyghe vs. Brockman, 38 An. 837; Huyghe vs. Brockman, 37 An. 240; Huyghe vs. Brockman, 34 An. 1179; Deuchattel vs. Robinson, 24 An. 176; Davis vs. Dale, 2 An. 205.

The evidence shows that the defendant had been in possession of the portions of sections 16 and 9 for several years before the plaintiff acquired title to the same. The plaintiff has failed to prove that either he or the author of his title ever had actual corporeal possession of said sections. No act of ownership, except the mere naked titles, are shown in the record.

The suit was not brought within the year of the alleged disturbance, and one of the essential elements of the possessory action is wanting. . Oode of Practice, Art. 49.

For the maintenance of his title and the consequent possession of the portion of these sections upon which he alleges the defendant a trespasser, he must therefore resort to the petitory action.

The plaintiff purchased section 17 from the defendant the 30th day of March, 1886. The survey made by McLaren, offered as evidence, is dated April 16, 1886. This survey was the first intimation that any portion of the land reserved by defendant, in the larger quantity he sold to plaintiff, was a part of that sold by defendant to plaintiff. The land which defendant reserved was inclosed.

The plaintiff had been at his house and probably knew the extent of the property reserved by defendant. It is safe to say that neither plaintiff nor defendant knew how the lines run, or in what manner the several sections were divided. It appears from the record that a part of the land reserved by defendant was embraced in the sale he made to the plaintiff. It is that part of. this section for which defendant sues for possession.

The corporeal possession of the defendant, the author of plaintiff’s title, is sufficient for the basis of plaintiff’s suit, as the corporeal possession was continued in defendant’s vendee and would continue so long as there was evidence of the intention to possess or own the property.

But the plaintiff, when he acquired section 17, evidently did not know that he had purchased a part of defendant’s farm, as he had no intention of selling it as a part of said section; or, it would be more correct to say, he did not know that any part of his farm was embraced in said section. The defendant therefore remained in the actual possession of said portion of section 17 for five years after the sale to plaintiff. This suit was not therefore commenced within the year when the alleged disturbance took place. For this part also of the land described in his petition, the plaintiff must resort to the petitory action — or a suit for the specific performance of the contract of sale.

It is therefore ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and reversed, and it is now ordered that plaintiff’s suit be dismissed as in case of non-suit.