text:
    No. -
    First Circuit Appeal
    OAKDALE BANK AND TRUST COMPANY v. RAY V. YOUNG AND J. H. LEGGETT
    (May 5, 1925, Opinion and Decree)
    (June 30, 1925, Rehearing Refused)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Mortgages—Par. 4, 13.
    Where the recitals of a trust conveyance make it very clear that the contract was intended as a security or. mortgage for the debt, the conveyance will be interpreted as a -security contract or mortgage.
    2. Louisiana Digest — Mortgages—Par. 37, 40, 75.
    The registry of a mortgage must be made in the- mortgage book of the parish where the property is situated under Article 3348 of the Civil Code. If it is inscribed in the conveyance book and not in the mortgage book it will have no legal effect as to “Third Persons”.
    3. Louisiana Digest — Mortgages—Par. 10.
    Under Article 3343 of the Civil Code, “Third Persons” are all persons who are not parties to the act or to the judgment on which the mortgage is founded.
    4. Louisiana Digest — Mortgages—Par. 37, 40, 75.
    Where a bank was the owner of .a mortgage -note made by A and B, each for his undivided half interest in property, -and records a trust deed from A in the conveyance records, thereafter cancelling the mortgage and securing another mortgage from A and B without informing B of the trust deed which was recorded in the conveyance records, the trust deed being, in effect, a purported mortgage and not recorded in the mortgage records, Will not, thereby, prejudice the rights of B, a third party.
    5. Louisiana Digest — Mortgages—Par. 10, 75.
    A co-mortgagor of an undivided half interest in his property is a “third person” to a trust deed made by the other mortgagor and recorded in the conveyance book instead of the mortgage book.
    Appeal from the Fourteenth Judicial District Court of the Parish of Beauregard. Hon. Jerry Cline, Judge.
    This is a suit by a bank, the holder of a promissory note secured by a mortgage made by the defendant.
    There was judgment for plaintiff and Defendant Leggett alone appealed.
    Judgment reversed as to Defendant Leggett.
    ■ Leon Sugar, of Opelousas, and Williams & Reid, attorneys for plaintiff, appellee.
    Ped. C. Kay, of De Ridder, attorney for defendant, appellant.
   MOUTON, J.

In February, 1917, the defendants herein, R. Y. Young and J. H. Leggett, executed a mortgage on several lots of ground situated in the town of Oakdale to secure the payment of an indebtedness due by them to J. W. May. This mortgage was duly recorded.

On the 5th of February, 1920, Ray V. Young, for the purpose of securing the sum of $4000.00, loaned him by plaintiff bank, executed in its favor a deed in which he declared that he had sold and conveyed to said bank his undivided one-half interest in the lots of ground which he had, with Leggett, the defendant herein, mortgaged to J. W. May to secure their indebtedness to the bank in the act of mortgage executed in February, 1917, as hereinabove stated. This deed, after declaring that R. V. Young had conveyed his undivided interest in these lots, states: “This is a trust conveyance conveying to said vendee and is additional security furnished for a loan of $4000.00, etc.” On the question as to whether this contract between Young and the bank was a sale or a pignorative agreement, counsel for plaintiff refers us to Rice-Stix Dry Goods Company vs. Saunders, 128 La. 82, 82 South. 479, which approves the ruling found in Davis vs. Kendall, 50 La. Ann. 1121, 24 South. 264, where a sale with the right of redemption was involved. In the recent case reported in Washington Bank and Trust Company vs. Cowan-Kerr Lumber Company, 155 La. 1076, 99 South. 881, the court, while commenting on Rice-Stix Dry Goods Company vs. Saunders, 128 La. 82, 82 South. 479, says: “In the cited case there was an absolute conveyance. There was no recital showing that the contract was intended as a mortgage.” Here, the recitals’of the trust conveyance make it very clear that the contract was intended as a security or mortgage for the deht. Besides it is shown that the plaintiff bank proceeded on this trust deed against Young for the sale of his undivided interest in said lots; that the court decreed it was a security contract; that the property was sold under that judgment, from the proceeds of which the bank received, net, the sum of $1996.67. The wording of the contract, the conduct of the bank in this proceeding, the decree of the court characterizing the deed as a security contract, the receiving of the proceeds of sale by the bank effected under that decree, leaves no room for doubt that this trust deed was a security contract, and does not come under the ruling of the court in Davis vs. Kendall, 50 La. Ann. 1121, 24 South. 264, where by unusual subtlety of reasoning the contract was invested with the dual characteristics of a sale and mortgage. We have gone extensively into the discussion of this question 'as we thought it was better to properly determine the nature of this contract before entering into the consideration of the other issues presented for solution.

The recoi’d shows that on the 5th of February, 1921, the plaintiff bank made a loan of $2300.00 to the defendant, Leggett, and to R. Y. Young, as aforesaid. These parties, on said date, February 5, 1921, executed their promissory note in solido in favor of the bank for said amount, and gave a mortgage on the lots of ground which they had mortgaged to J. W. May in February, T917. It is well established that this sum of $2300.00 was borrowed by these parties to pay the mortgage which May held on these lots, and that this money so obtained from plaintiff was used in cancelling this former encumbrance.

The proof shows that the plaintiff bank received, as before stated, the sum of $1996.67 net from the proceeds of sale of the undivided one-half interest in said lots upon which Young had, in 1920/ given this “trust deed” to the bank.

Young has made no appearance in this case, the only defendant being Leggett. This defendant contends, first:

“That the sum of $1996.67 'which was collected by the bank from the proceeds of the sale of the undivided interest on the lots in its proceedings against Young on the trust conveyance, above referred to, should be applied to the note and mortgage herein sued upon; that the rentals derived from these lots collected after the execution of the mortgage for $2300.00 by Leggett and Young should also be applied thereto, and that if so applied, the notes declared upon in this suit would bé fully paid with interest and attorney’s fees.”

Leggett also pleads estoppel based on the averment that plaintiff and Young obtained his signature to the notes sued upon through fraudulent misrepresentations, well knowing at the time that Young was insolvent and had either transferred or mortgaged his undivided interest in the lots upon which he, with plaintiff, executed the mortgage declared upon by plaintiff herein.

The lower court rendered judgment in favor of plaintiff, in solido, against Leggett and Young for the $2300.00 claimed in • this suit with interest and attorney’s fees, subject, however, to credits derived from the rentals of the property amounting to the sum of $1128.36.

Leggett appeals therefrom.

The deed of trust from Young to plaintiff did not possess the dual character of a sale and mortgage as appears to have been the case in Rice-Stix Dry Goods Company vs. Saunders, 128 La. 82, 82 South. 479, and Davis vs. Kendall, 50 La. Ann. 1121, 24 South. 264, hereinabove commented upon. This deed was, at most, a security contract or mortgage. The proof shows it was recorded in the conveyance records of Allen parish where the land is situated, but not in the mortgage records of that parish.

“The inscription of mortgages only binds the property of the debtor when it has been made in the office, of mortgages in the parish where the property lies.” The registry of a mortgage must be made in the mortgage book of the parish where the property is situated. C. C. 3348; an act purporting to be a mortgage, but not inscribed in the proper book, has no legal effect as to third persons. Baldwin vs. Bordelon, 49 La. Ann. 1090, 22 South. 196, or Henry A. Willis vs. George E. Wasey, 41 La. Ann. 694, 6 South. 730.

“When an instrument conveying property as security for performance of obligations under a contract-was recorded in conveyance records but not in mortgage records, though effective as between the parties, it was ineffectual against subsequent mortgages.” Murdock vs. Potter, 155 La. 155, 99 South. 18.

A third person cannot be affected by any notice of a mortgage except the notice conveyed to him by the inscription of the mortgage. John I. Adams & Co. vs. Thomas J. Daunis, 29 La. Ann. 322; Frank Watson vs. Mrs. E. F. Bondurant, 30 La. Ann. 1.

By the words, “third persons”, are to be understood all persons .who are not parties to the act, or to the judgment on which the mortgage is founded. C. C. 3343. It is clear in the instant case that Leggett was not a party to the trust deed or to the judgment which was obtained- thereon. Whether he was, or was not, a third party is the vital question presented in this case. The District Judge said he was not, holding that the third persons mentioned in the article of. the Code are such as are creditors or mortgagees. He grounded his conclusions on Article C. C. 3329, which says that among creditors a mortgage has effect only from the time it is properly recorded.

Our courts have repeatedly held that a mortgage is a quasi alienation of the property subjected to the mortgage. Citizens Bank vs. Armor, 11 La. Ann. 468. Here, Young had by the trust deed, which was a mortgage, made a quasi alienation of his undivided interest -in the lots in question upon which the bank accepted the mortgage on February 5, 1921, from Leggett and Young, and which it seeks to enforce against the other undivided half belonging to Leggett. Leggett, the defendant, was unquestionably vitally interested in being informed that his co-mortgagor under this mortgage had by a prior deed alienated his share in the property. This notice could be communicated to him only by a proper registry of this trust deed. We do not think that the words, “third persons”, used in that article of the Code should be restricted to creditors, mortgagees, or such like. We believe it should receive a broader application and should include a situation as herein presented.

The evidence shows that the bank, through its representative, was perfectly willing, if not eager, to make this loan of $2300.00 to Leggett and Young. The bank knew the purpose of the loan was for the cancellation of the first mortgage which had been granted on the property by Young and Leggett in 1917. Its purpose was to have this encumbrance can-celled so that its trust deed from Young should rank as a first mortgage. . The bank, it appears, acting through its representative, Singletary, sedulously concealed from Leggett that such a deed covered the property, and in this respect this representative was well assisted by Young, Leggett’s co-mortgagor. Leggett was from another parish and, though no false representations were made to him by either Young or Singletary, the truth Was cunningly kept away from him, otherwise it is not to be believed for a moment that he would have joined in a solidary obligation to encumber his share in the lots with a mortgage in favor of the bank. Hence, Leggett never had any notice of the existence of the trust deed through its registry in the proper book as by law required, or otherwise. 'He is entitled to the relief asked. The sum obtained by the bank on the trust deed, amounting to $1996.67, must, with the credits for rentals found by the District Judge, be applied on the notes and mortgage sued upon. These amounts combined exceed' the demand of the plaintiff herein.

It is therefore ordered; adjudged and decreed that these amounts be so applied in extinguishment of the demand of the plaintiff; that the mortgage bearing on the undivided half interest of Leggett in the lots in question described in the decree below be cancelled; that the judgment appealed from be annulled and reversed, and that plaintiff’s demand be rejected at its cost in both courts.


source: Caselaw Access Project

author: ELLIOTT, J.

license: Public Domain

text:
    No. -
    First Circuit Appeal
    ALBIN PROVOSTY v. JAMES G. BROOKS
    (May 5, 1925, Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Executory Process — . Par. 38; Mortgages — Par. 165.
    Where A sold property to B, B giving A promissory notes in payment thereon, and B afterwards sold the property to D who under the contract of sale assumed the payment of the notes made by B in his purchase of the property from A, in view of the fact that each sale contained the stipulation not to alienate or otherwise encumber said property to the prejudice of the mortgagee, an executory process issued at the instance of C, the owner of the promissory notes against D, the owner of the property does not have to make B a party to the suit in order to afterwards hold B personally liable on his notes.
    2. Louisiana Digest — Sales—Par. 310.
    A release and discharge by novation, of the maker of the promissory notes does not result from a stipulation in an act of sale by which the purchaser agrees to assume the payment of these notes as part of the purchase price of the property, in the absence of an express declaration on- the part of the owner and holder of the notes in his petition to the court to that effect.
    (Civil Code, Articles 1890, 1902, and C. P. Art. 35. Editor’s note.)
    Appeal from the Sixteenth Judicial District, Parish of St. Landry, Hon. B. H. Pavy, Judge.
    This is a suit to collect the balance due on three promissory notes. There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Dubuisson, Perrault & Burleigh, of Opelousas, attorneys for plaintiff, appellee.
    Claiborne & Claiborne, of Pointe Coupee, and Gilbert L. Dupre, of Opelousas, attorneys for defendant, appellant.
   ELLIOTT, J.

J. A. Richard sold to James G. Brooks, a certain tract of land containing 63 acres more or less, situated in the Parish of Pointe Coupee, by title dated May 6, 1918, for the price and sum of four hundred dollars; all, on credit, represented by four notes for $100.00 each, payable to the order of and by said Brooks, endorsed one, two, three and four years after date, with interest and attorneys’ fees, etc.

A special mortgage was granted and vendor’s privilege retained on the property in favor of any holder of said notes, in order to secure the purchase price, with the stipulation that the purchaser was not to sell, alienate or in any way encumber said property to the prejudice of the same; and in the event the notes were not paid at maturity, it was agreed in the act that the property might be seized and sold by executory process without appraisement to the highest bidder for cash. Dr. J. A. Richard negotiated the notes by selling and delivering them on the day of the sale to Albin Provosty.

On August 1, 1918, James G. Brooks sold and delivered the property by authentic act to W. C. Nash for $650.00, of which Nash paid $250.00 in cash and for the balance of the price assumed and undertook to pay the 4 notes which Brooks had executed and delivered to Richard as above stated, and in order to secure his undertaking, a special mortgage was granted and vendor’s privilege was retained on the property; and Nash bound himself in the act not to sell, alienate or otherwise encumber the property to the prejudice of the same. Neither Provosty nor Richard were parties to this act.

Nash paid the note which first came due, but failed to pay the other three.

On March 1, 1924, Provosty, owner and holder of the notes, proceeded against Nash by executory process and caused the property to be seized and sold to pay the three unpaid notes, without notice to Brooks. The property was offered without appraisement, and was sold and delivered by the sheriff to Provosty, by title dated May 24, 1924, for the price and sum of $125.00 —Taxes and cost amounting to $72.73 were deducted, leaving $52.27, which Provosty credited on one of the notes.

The copy of the petition for executory process, which we find in the record, is certified to by Clerk of Court as follows; “A correct copy of the original petition and order filed thereon,” but the order was not copied.

We notice that no contention is made that the property was seized and sold without an order authorizing, signed by the judge: We therefore assume for the purpose of our decision, that an order was obtained and that the Clerk of Court thought he had copied it; but by accident and oversight failed to do so, and that there is no question about it.

In the month of June, 1924, Albin Provosty, the plaintiff, instituted the present suit against the defendant, James G. Brooks, in which he prays for judgment against him for the balance due on the three notes which he executed and signed in buying the property from Richard.

The defendant filed an exception of no cause of action, which was overruled. He then plead the prescription of five years, which was referred to the merits. He then answered, resisting plaintiff’s demand on the ground that the plaintiff had, by his proceedings against Nash, released and discharged him from liability on said notes; and alleged in the alternative, that if he was not released by said proceedings against Nash, then the proceedings were null and void and the property should be restored to him. Judgment was rendered in the lower court in favor of Provosty as prayed for, the defendant Brooks appealed.

OPINION.

The exception of no cause of action was properly overruled and the notes are not prescribed. The contention is that Provosty, owner and holder of the three notes executed by Brooks in buying the property from Richard and which represented the purchase price on which that sale was based, having availed himself of the stipulation pour autrui in the sale from Brooks to Nash, for the purpose of having the property seized and sold in order to pay these notes; and having proceeded against W. C. Nash, without notice to Brooks, that he thereby released and discharged Brooks from liability thereon.

We are cited to the Civil Code, Art. 1890, C. P. Art. 35 and Pecquet vs. Pecquet’s Executor, 17 La. Ann. 204, 233; Schlatre vs. Greaud, 19 La. Ann. 125; De L’isle vs. Succession of Moss, 34 La. Ann. 164-7, for law and authority which defendant claims supports the release and discharge for which he contends.

The C. C. Art. 1890 reads: “A ' person may also make in his own name some advantage for a' third person a condition for a commutative contract or onerous donation; and if such third person consents to avail himself óf the advantage stipulated in his favor, the contract cannot be revoked.”

We do not think this Art. of the Civil Code provides for the release by novation contended for by defendant.

Mr. Brooks in selling the property to Nash, did not stipulate anything in favor of Richard, which Richard or any other holder of the notes did not have. He stipulated in his own favor. He stipulated that Nash was to pay the notes which he was bound to pay as the purchase price in his title from Richard. The stipulation imposed on Nash the duty of paying them and he failed to do so. It is true, under the law and authorities cited, Provosty, holder and owner of the notes, could avail himself of the stipulation that Nash was to pay the notes. Provosty acted on said stipulation and caused the property to be seized and sold by executory process contradictorily with Nash and without notice to Brooks; but the law and authorities cited does not, in our opinion, govern the question of release and discharge by novation, so strongly contended for by the defendant.

The Art. 1890 and C. P. Art. 35, to which we add C. C. Art. 1902, authorized Provosty to avail himself of the stipulation in the act from Brooks to Nash and provided when he does so, that same can not be revoked; but a release and discharge of Brooks by novation does not result therefrom in the absence of an express declaration on the part of Provosty in, his petition to the court to that effect.

In Schlatre and Bebheux vs. Greand, 19 La. Ann. 125, cited by defendant, the Supreme Court held that Greand having assumed the debt, could not say thereafter that he was a third person, so as to -prevent plaintiff from proceeding against him as his debtor. But the case does not involve a release and discharge by novation, such as defendant urges in this case.

In De L’isle vs. Succession of Moss, 17 La. Ann. 164, cited, the syllabus reads: “When payment of a sum due by a vendor is assumed by a purchaser as part of the price of sale, the creditor whose debt is so assumed is entitled to claim a vendor’s privilege when seeking payment of his debt”. The opinion commences with the following statement: “The only question presented on appeal in this. case for determination is simply whether the payment of a mortgage debt assumed by a vendee as part- of the price of the sale, is secured by vendor’s privilege on the property sold.” A release and discharge by novation does not appear to have been a question in the case.

The Pecquet vs. Pequet’s Executor, 17 La. Ann. 204; Conte vs. Cain, 33 La. Ann. 965; Tilley vs. Camden Fire Ins. Assn., 139 La. Ann. 985, 72 South. 709; Succession of Ferguson, 17 La. Ann. 255; Pele vs. Meaux, 17 La. Ann. 60, cited by defendant and to which we add, examined by us in connection with the question are to the same effect.

The release and discharge by novation contended for by defendant, is governed by the Civil Code Art. 2193, which reads: “The delegation by which a debtor gives to the creditor, another- debtor, who obliges himself towards such creditor, does not operate a novation, unless the creditor has expressly declared that he intends to discharge his debtor, who has made the delegation.”

Provosty’s petition in his proceeding's against Nash and the prayer in his petition that the property he sold to satisfy the said notes in principal, interest, attorney’s fees and cost, etc., is not the equivalent of an express declaration that he intends to thereby discharge Brooks from his liability on the notes, in case they were no.t paid as a result of the sale.

The law says that the creditor must “expressly declare that he intends to discharge his debtor, who has made the delegation”.

We can not impute to Provosty such intent, when his petition in the executory proceedings against Nash contains no declaration of that kind.

The cases in which consent is implied to a contract are particularly determined by law, C. C. Art. 1781.

Consent is expressed “when evinced by words either written or spoken,” C. C. Art. 1811, etc.

The Latiolais vs. Citizens Bank, 33 La. Ann. 1444, cited by plaintiff, to which we add Muggah vs. Rogers, 11 Rob. 511; Alling vs. Citizens’ Bank, 4 La. Ann. 309; Rusk vs. Crawford, 25 La. Ann. 314; Studebaker Bros. Mfg. Co. vs. Endom, 51 La. Ann. 1263, 26 South. 90; Sucker State Drill Co. vs. Henry Loewer & Co., 114 La. 403, 38 South. 399, are authorities against the discharge contended for by defendant.

The defendant contends that Provosty’s claim against. Brooks is inequitable, on the ground that Provosty has acquired property worth $650.00 and should not be allowed to hold this property and at the same time collect from Brooks the balance due on the notes given by him in purchasing the property from Richard. Brooks knew or would have known if he had made proper inquiry that Nash had not paid the notes which he undertook to pay when they became due. He sold the property to Nash and delegated the duty to him without .consulting Richard or the owner and holder of the notes, and after which he took no further interest in the matter; but now stresses his interest which he himself neglected.

The sale of which Brooks complains was made at public auction in the Parish of Pointe Coupee, to the last and highest bidder. Had he looked after his outstanding notes there would have been no sale.

We have given weight to the theory advanced and authorities invoked by defendant’s learned counsel, and differ with him as to the release and discharge by novation which he contends for. The judgment appealed from is, in our opinion correct and must therefore, be affirmed.

It is therefore ordered, adjudged and decreed that the judgment appealed from be and the same is hereby affirmed. The defendant and appellant to pay the cost in both courts.


author: ODOM, J.

text:
    No. 2270
    Second Circuit Appeal
    C. A. TRAYLOR v. C. M. MURPHY MRS. M. E. GUNN, Third Opponent
    (May 9, 1925, Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Agriculture—Par. 23.
    Under Act 66 of 1874 any farmer may pledge or pawn his growing crop of cotton or other agricultural products for advances in money or goods which he may require for the production of such crop by entering into a written agreement or pledge, and having it recorded.
    2. Louisiana Digest — Agriculture—Par. 23.
    Under Act 51 of 1890, crop liens must be recorded in a special book by the clerk in the mortgage office for the recordation of liens, privileges and pledges on cro'ps.

      3. Louisiana Digest — Agriculture—Par. 23.
    The recordation by the clerk of a crop lien in a Mortgage Book does not, under Act 51 of 1890, affect third' persons. It must be recorded in the Crop Lien Book.
    4 Louisiana Digest — Evidence—Par. 53, 59.
    The burden of proof is on the one making the advances and claiming the privilege under Article 3217 of the Civil Code to show that the money was used for the purchase of necessary supplies in order to preserve the privilege accorded by that article.
    5. Louisiana Digest — Appeal—Par. 729, 736.
    Where one claims a privilege on a crop, under Article 3217 of the Civil Code, and the evidence does not show specifically just what was used for the purchase of necessary supplies, the case will be remanded to adduce further evidence on this point.
    Appeal from the Thirteenth Judicial Court, Parish of Caldwell, Hon. P. E. Jones, Judge.
    In this case the plaintiff had the property of the defendant seized on a writ of fieri facias. The • third opponent claimed a privilege on this .crop which had been seize.d. There, was judgment in favor of the third Opponent for the amount sued for and recognizing her privilege on the cotton seized to the extent of $600.00. Plaintiff appealed.
    Judgment affirmed, but reversed and remanded for further evidence as to the restricted purpose of enabling the parties to adduce further evidence on the issue of the privilege vel non.

    G. L. Alford, of Columbia, attorney for plaintiff, appellant.
    Thornhill & Thornhill, of Columbia, attorneys . for third opponent, appellees.
   ODOM, J.

On July 9, 1921, C. A. Traylor, the plaintiff in this case, obtained judgment in the District Court of the parish of Caldwell against C. M. Murphy, the defendant herein, for the sum of $615.90.

• On September 25, 1924, the plaintiff procured the' issuance of a writ of fieri facias under said judgment, commanding the seizure and sale of the .property of the defendant, or a sufficient amount to pay the debt of the plaintiff.

On the same day, September 25, 1924; the sheriff seized seven bales of cotton belonging to the defendant Murphy and advertised it for sale, the sale to take place on October 25, 1924.

On October 2, 1924, Mrs. M. E. Gunn intervened in the proceeding by way of third opposition, setting up that the defendant Murphy, ■ was indebted unto her in the sum of $750.00 with 8% per annum interest from June 23, 1924, until paid, which indebtedness' is evidenced by one promissory note for said amount, dated June 23, 1924, said note being secured by pledge and crop lien on the crop of cotton, corn and other farm products then being grown by said C. M. Murphy on Bellevue plantation situated in Caldwell parish. She especially alleges that the amount which she claimed was lent. to the defendant to enable him to cultivate and grow and gather a crop during the year 1924 and that all of the said amount was used by said defendant • in planting, cultivating, growing and gathering his said crop.

And she further alleges:

“In addition to the privilege in favor of your petitioner on the said crop, flowing from the said act of pledge and crop lien, your petitioner as the furnisher of money to enable the said C. M. Murphy to plant, cultivate, grow and gather said crop, has a lien and privilege on all of the said crop so planted, cultivated, grown and gathered by the said C. M. Murphy.”

The act of pledge was signed by the defendant Murphy and by Mrs. Gunn, the third opponent, before a Notary Public and two witnesses.

It is alleged that plaintiff has caused to be seized and is about to sell, all the cotton grown by said defendant Murphy on which she has a privilege.

She prays for judgment against defendant for the amount sued for and prays that her lien and privilege on the cotton seized be recognized and that she be paid by preference out of the proceeds of the sale thereof.

The plaintiff in execution filed answer to the demands of third opponent denying, generally, the allegations of the third opposition and especially denied that third opponent had any lien, privilege or pledge upon the crop of cotton produced by the defendant Murphy in the year 1924.

The ease was tried in the District Court and resulted in a judgment in favor of the third opponent for the amount sued for and interest as prayed for and recognizing her privilege on the cotton seized to the extent of $600.00 as furnisher of money and funds for the making, growing and gathering of the' cotton seized and ordering that she be paid that amount by preference over the seizing creditor.

From this judgment the plaintiff, C. A. Traylor, has appealed.

Third opponent answers the appeal and' asks that the judgment be amended so as to recognize her lien and privilege on the crop seized to the extent of $750.00 the amount of her debt.

OPINION

There is no question but that the defendant C. M. Murphy owes third opponent the amount that she claims against him. The case is made out on that point, and the judgment of the lower court granting her judgment against defendant for $750.00 and interest thereon at 8% from June 23, 1924, until paid, is correct.

Rut the controverted and serious point in the case is whether third opponent has a. pledge or a privilege on the crop seized.

Act No. 66 of 1874, page 114, provides that in addition to the privilege now provided by law any planter or farmer may pledge or pawn his growing crop of cotton or other agricultural product for advances in money or goods which he may require for the production of such crop by entering into a written agreement of pledge and having the said agreement of pledge recorded in the office of the recorder of mortgages of the parish where thev crop is grown.

“Which recorded contract shall give and confer on the merchant or other person advancing money, goods and necessary supplies for the growing of said agricultural products a right of pledge upon the said crop the same as if the said crop had been in the possession of the pledger.”

Third opponent complied with this act to the extent that she and her debtor entered into a written agreement of pledge and she had it recorded in the office of the recorder of mortgages on the same day 'the agreement was signed.

The act was recorded on June 23, 1924. in the mortgage records of Caldwell parish, the parish in which the defendant resided and produced the crop.

If there were no other legislation on the subject of the recordation of such acts, third opponent’s pledge on the Crop produced by defendant would be good as against the claims of the seizing creditor in this case, but Act No. 51 of 1890, page 43, provides as follows:

“That it shall be the duty of the clerks of the District Courts and ex-officio recorders throughout the State, the parish .of Orleans excepted, to keep a separate book in the mortgage office for the recordation of liens, privileges and pledges on crops instead of in the mortgage book as heretofore provided by law.”

It appears that the Clerk of. the District Court of Caldwell parish kept a book pursuant to the requirements of this act, referred to as “Crop Lien Record A”, Book, but not on the day it was entered into but on October 1, 1924 — several days subsequent to the seizure of the cotton by the sheriff under plaintiff’s writ.

It is clear that an act of pledge entered into pursuant to provisions of Act No. 66 of 1874 can have no effect, as against third persons, unless and until properly recorded.

The, recording of the agreement of pledge in this case in the mortgage records of Caldwell parish was not in compliance with the law, for Act No. 51 of 1890, quoted above, provides that there must be a separate book kept by the clerk in the mortgage office, “for the recordation of liens, privileges and pledges on crops instead of in the mortgage books”.

The agreement of pledge m this case took effect, therefore, as to third persons, on October 21, 1924, the day on which the act was recorded in the book required by Act No. 51 of 1890. That was after plaintiff had seized the crop.

See Henry Lochte Co., Ltd., vs. Lefebvre, 124 La. 244, 253, 50 South. 26.

We hold therefore, that third opponent had no pledge on the crop seized which was good as against the plaintiff, the same not having been properly recorded.

But third opponent claims that, in addition to the act of pledge, she has a privilege on the crop of the current year produced by defendant because she furnished money to enable him to plant, cultivate and gather the same.

Article 3217 of the Civil Code, under the general heading of “Privileges on Particular Movables” provides that debts for necessary supplies furnished to -any farm or plantation, and debts due for money actually advanced and used for the ■purchase of necessary supplies, and the payment of necessary expenses for any farm or plantation, bear a privilege on the crops of the year and the proceeds thereof.

Therefore, even though it be true, and we have so held, that third opponent had no pledge on the crop of the defendant for the year 1924, which affected the plaintiff, if, as a matter of fact, the money which she lent defendant, as evidenced by the note sued on, was actually advanced and used for the purchase of necessary supplies and the payment of necessary expenses for the production of the crop of 1924, she has a privilege on said crop and should be paid by preference out of the proceeds of the cotton seized and sold in this case.

The privilege under this article is only for advances actually used in the making and gathering of the crop, and the burden is on the one making the advances and claiming the privilege to show that the money was so used.

National Bank of Commerce vs. Sullivan, 117 La. 163, 41 South. 480.

It may be that all the money lent by the third opponent in this case was actually advanced and used for the purchase of necessary supplies and the payment of necessary expenses for the making and gathering of the cotton seized; but the testimony does not convince us that it was. It is true that the defendant, Murphy, says he used all the money to make and gather the crop, but his testimony is not definite. He does not know how much he spent for labor, groceries, dry goods, tools or any other items. He borrowed the money on June 23, 1924, and from his testimony it would appear that he spent all of the money in the making and gathering of the crop after that date; but we cannot accept his bare statement to the effect, especially in view of the fact that he was questioned specifically as to how much he spent for groceries, dry goods, corn and various other articles which he said he had purchased to make the crop. He produced no accounts or statements showing the purchase of any specific articles; nor does he furnish information as to when or where he procured the supplies which enabled him to make the crop. He says he purchased one ploW, but he does not state the price which he paid for it. In fact, he gives the court no information as to how he spent the money, except his bare statement that he purchased groceries, dry goods, etc. We are not warranted in holding that third opponent has a privilege on the crop or the proceeds thereof without specific evidence that the money advanced was actually used to purchase supplies which enabled the defendant to make and gather the crop.

The case will, therefore, have to be remanded for the taking of testimony on this point.

For the reasons assigned, it is therefore ordered, adjudged and decreed that the judgment appealed from be affirmed insofar as it grants third opponent judgment against defendant C. M. Murphy for the sum of $750.00 with 8% per annum interest thereon from June 23, 1924, until paid; and it is further ordered that said judgment be and it is hereby reversed insofar as it recognizes a privilege in favor of third opponent on the cotton seized and the proceeds thereof as furnisher of necessary supplies and ordered paid by preference out of the proceeds of said cotton.

And it is further ordered that this case be remanded for the restricted' purpose of enabling the parties to adduce further evidence on the issue of the privilege vel non claimed by third opponent, and that the proceeds of the sale of the cotton seized remain in the hands of the sheriff until the further orders of the court. Costs to await the final determination of the case.


author: REYNOLDS, J.

text:
    No. 2015
    Second Circuit Appeal
    MRS. J. SPEIGHT, ET AL., v. S. H. PORTER, AS PRESIDENT OF THE SABINE PARISH SCHOOL BOARD, ET AL.
    (May 9, 1925, Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Bail—Par. 28.
    A judgment of forfeiture of a bail bond under Act No. 17 of 1900 becomes absolute if the accused makes no appearance within five days after its rendition.
    2. Louisiana Digest — Bail—Par. 28, 32.
    A judgment in a forfeiture of a bail bond under Act 17 of ' 1900 taken, against Mack Gore and his bondsman will not be affected by the fact that Mack Gore also was known under the name of M. A. Gore.
    Appeal . from Twelfth Judicial District Court of Louisiana, Parish of Sabine. Hon. J. H. Boone, Judge.
    This is an injunction suit sued by the sureties of the appeal bond to restrain the defendants from further proceeding under a writ upon a judgment against the surety of a bail bond.
    There was judgment dissolving the injunction and plaintiffs appealed.
    Judgment affirmed.
    S. D. Ponder, of Many, attorney for plaintiff, appellant.
    J. B. Hill, of Many, attorney for defendant, appellee.
   REYNOLDS, J.

This is an injunction suit instituted by the sureties on the appeal bond of one Mack Gore to restrain the defendants from further proceeding under a writ of fieri facias issued upon a judgment rendered in suit No. 1250 of the State of Louisiana versus Mack Gore and the sureties on a bail bond was given by him, the plaintiffs herein. This bail bond was given in the proceeding of the State of Louisiana vs. M. A. Gore. The grand jury found a bill against Mack Gore and the defendant M. A. Gore or Mack Gore appeared in court and his case was set for trial January 16th. On that day Mack Gore was duly called at the court house door as required by law as were the sureties on his bail bond and he failing to appear and they to produce him judgment was rendered against Mack Gore and the sureties on his bail bond, the plaintiffs in this injunction suit.

Plaintiffs set up as cause of action that they were the bondsmen of M. A. Gore and not of Mack Gore. That M. A. Gore never called on his bond and that they were never called on to deliver M. A. Gore into court for trial.

The evidence shows that Mack Gore and M. A. Gore are one and the same person and that Mack Gore and his sureties were duly called on the day fixed for his trial and that neither M. A. Gore nor Mack Gore appeared for trial, and that on his being called on his bond and his bondsmen being called to produce him no one appeared as either Mack Gore or M. A. Gore and that his bondsmen did not produce in open court either M. A. Gore or Mack Gore.

Judgment was rendered against the defendant Mack Gore and his bo'ndsmen, the plaintiffs hereih.

We do not think that leaving out the “A” in Gore’s name and calling him as “Mack” Gore instead of M. A. Gore was a failure to call the defendant and the sureties on his bond.

Under the evidence it is certain a judgment of forfeiture of Mack Gore’s bail bond was duly made and that judgment was rendered against him and his bondsmen, the plaintiff in this suit.

Mack Gore did not appear within five days after the rendition of said judgment and stand trial. He was neither acquitted or convicted nor was his case continued on application of the District Attorney nor did his bondsmen take any steps to have the judgment rendered against them set aside within five days after its rendition as required by Act No. 17 of 1900.

The Supreme Court, in the case of State vs. Johnson, 132 La. 11, 60 South. 702, held that under Act No. 17 of 1900:

"Providing that judgment for forfeiture of an appearance bond may, at any time within five days after rendition therof, be set aside upon the appearance and trial and conviction or acquittal of, or upon a continuance after such appearance, rendered upon motion of the attorney representing the state, the limitation of five days is binding, and a surety’s surrender of accused 23 days after judgment forfeiting the appearance bonds, and his subsequent trial and conviction, is not ground for setting aside, the judgment of forfeiture.”

Also that:

“A judgment becomes absolute by its signature, and from that moment becomes the property of the party in whose favor it is rendered.”

Also that:

“A judgment for the payment of money can be satisfied only by the payment of money.”

And in the case of State vs. LeGrand 130 La. 1034, 58 South. 869, the Supreme Court held that:

“A judgment of forfeiture of a bail bond becomes absolute if the accused makes no appearance within five days after the rendition thereof.”

Under these authorities, plaintiffs’ prayer, that the judgment against them be decreed null and of no effect must be denied.

Plaintiffs insist in their brief that the judgment should be annulled for the reason that there was no order of court fixing the amount of Mack Gore’s bail bond and that there was no notice of judgment given the sureties on the bond; but there is no evidence in the record to support this contention.

Plaintiffs also insist that there has been an excessive seizure in this case and ask, in the alternative, that the seizure be held to be excessive; but there is no evidence whatever in the record as tó the value of the property seized. The court, therefore, is without authority to grant this relief asked by plaintiffs.

For the above reasons and the authorities quoted, the judgment of the lower court is affirmed at plaintiffs’ costs.


text:
    No. 1482
    First Circuit Appeal
    J. RENE FONTENOT v. FERDINAND LAFLEUR, ET AL.
    (May 15, 1925, Opinion and Decree)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Pleading—Par. 23, 114.
    Under Code of Practice, Articles 161, 172, the petition must state definitely a cause of action on which to base a judgment. Titles and other papers not annexed to the petition and made part thereof cannot be considered.
    2. Louisiana Digest — Pleading—Par. 62.
    An exception of no cause of action aimed at a petition which does not show that it is plaintiff’s object to recover anything from the defendant of which she is wrongfully in possession should be sustained.
    3. Louisiana Digest — Pleading—Par. 112, 113.
    Where the defendant properly objected to all evidence offered by the plaintiff that was not admissible under the allegations of the petition, the objection should be sustained.
    Appeal from Sixteenth Judicial District Court, Parish of Evangeline. Hon. • B. H. Pavy, Judge.
    This is a suit brought against Ferdinand Lafleur and Alice Lafleur for collection of debt evidence by promissory notes and for tax which she paid.
    Ferdinand Lafleur made no appearance.
    Alice Lafleur filed exception of no cause of action which was overruled.
    Judgment for plaintiff on the trial of the case and defendant, Alice Lafleur, appealed.
    Judgment reversed, maintaining the exception of no cause of action.
    J. H. Dore, of Ville Platte, attorney for plaintiff, appellee.
    Dubuisson, Perrault and Burleigh, of Opelousas, attorneys for defendant, appellant.
   ELLIOTT, J.

The plaintiff, J. Rene Fontenot, instituted suit against Ferdinand Lafleur to recover of him $1500.00 which he alleges Lafleur owes him, with interest and ten per cent attorney’s fees on $450.00, and in addition $71.53 for taxes which he alleges he paid on the property described in his petition. That he bought from Ferdinand Lafleur October 28, 1919, lots Nos. 18¡ 19 and 20 of Block —, Latour Addition to the town of Ville' Platte, and being the same property which had been acquired by, said Ferdinand- Lafleur from Louis J. Pitre on February 10, 1917; said act of your petitioners being duly recorded in Conveyance Book A 9%, page 467, et seq., and Mortgage Book 5, page 115, of the files of the clerk’s office of the Parish of Evangeline, and Which act is now specially referred to.

That he purchased said property for the price and sum of $1500.00, of which amount $1050.00 was paid in cash, and for the balance of the purchase price he assumed the payment of two notes, each for $225.00', executed by said Ferdinand Lafleur, drawn up to the order of Louis J. Pitre, dated February 10, 1917.

That at the time of the purchase -of said property the said Ferdinand- Lafleurhad made a dation en paiement of said property to his wife, Alicia Lafleur, as fully appears by a certified copy of said act duly recorded in Conveyance Book A 9, page —, et seq., of the files of the clerk’s office of the Parish of Evangeline.

That he instituted suit against the said Alicia Lafleur to have decreed said property to be his property, but judgment was rendered recognizing her as owner by virtue of said dation en paiement, and she is now in possession of said property by virtue of said dation en paiement. That he has paid the notes due on said property by said Ferdinand Lafleur at the time of the dation en paiement made by him to his wife, Alicia Lafleur, and that your petitioner is entitled to recover from the sale of said property the amount so paid by him and also the taxes and ten per cent attorney’s fees on the amount of the said notes which he assumed and paid.

He prayed for the citation of Ferdinand Lafleur and of his wife, Alicia Lafleur, and for judgment against Ferdinand Lafleur for $1500.00 with interest and attorney’s fees on $450.00 and judgment for $71.53 on account of taxes for the preservation of the property, and that the property described in his petition be ordered sold and the sum ‘of $450.00 with interest and attorney’s fees and $71.53 on account 'of taxes be paid him by preference and priority over all other creditors. There is no prayer for judgment of any kind against Mrs. Alicia Lafleur except that the property of which she was recognized to be the owner and the present possessor by virtue of the -said dation en paiement might be sold and the sums of $450.00 and $71.53 paid the petitioner out of the proceeds.

There is no prayer for general relief.

The titles from Louis J. Pitre to Ferdinand Lafleur and from Ferdinand Lafleur to Alicia Lafleur and from Ferdinand Lafleur to J. Rene Fontenot are not annexed to and made part of the petition.

Ferdinand Lafleur made ‘no appearance.

Alicia Lafleur appeared and excepted to plaintiff’s petition on the ground that it disclosed no cause of action against her.

In the event her exception -was overruled but not otherwise, and without waiving the benefit of same and insisting on the exception, she filed answer.

The exception of no cause of action was overruled.

The trial was then proceeded with and when plaintiff . offered in evidence the act of sale from Louis J. Pitre to Ferdinand Lafleur, she objected to the evidence offered, on the ground that it was not declared on in plaintiff’s petition as the basis of his action, and that plaintiff had no right or cause of action against her personally or against her property, and when plaintiff offered evidence to show that he had paid taxes on the property as alleged, she objected to the evidence offered on the- ground that his petition did not disclose a cause of action against her on that account.

The court rendered judgment against Ferdinand Lafleur as prayed for. There was no judgment rendered against Mrs. Lafleur personally, but the property described in the petition and alleged to belong to her and to be in her possession was ordered sold to pay the judgment rendered against Ferdinand Lafleur to the extent of $450.00, that being the amount of the two notes which he alleged that he had assumed and paid, and $71.53, that being the amount of taxes he alleged that he had paid on the property. Mrs. Lafleur has appealed from the judgment to the extent that it is ordered to be enforced against her property.

The exception of “no cause of action” which she filed is urged on us by her counsel and must be' considered.

The question is, has the plaintiff alleged any ground which could authorize the sale of the property of which she is alleged to be the owner and possessor, for the purpose of paying the judgment rendered against Ferdinand Lafleur?

The Code of Practice,' Article 161, provides that: “It is sufficient in all judicial demands * * * express clearly what is demanded with such conclusions as may serve as a basis to the judgment to be rendered in the cause.”

Article 172 provides: “The petition must contain a clear and concise statement of the object of the demand, * * * or the cause of the action on which it is founded.”

The question must be answered, as expressed in the articles of the Code oi Practice, on the face of plaintiff’s petition and the prayer of the same.

Titles and other papers not annexed to the petition and made part thereof cannot be Considered.

Looking at the petition copied in to this opinion for the purpose, it cannot be said therefrom to be plaintiff’s object to recover anything from her, of which she is wrongfully in possession. . It is not. claimed that the two notes which plaintiff paid were secured by privilege or mortgage on the property of which she was recognized by the court as the owner and possessor. It is not sought in the petition to revise and reinstate any mortgage or privilege on the property or that she owes the plaintiff anything.

In regard to the taxes, it is not claimed in the petition that she failed to pay her taxes on the property and that plaintiff did so and Was subrogated to the rights of the state and parish as provided by Act 170 of 1898, Section 89.

We can not find any good reason advanced in the petition why her property should be sold to pay any part of the judgment rendered against Ferdinand Lafleur.

Looking to see if a cause of action was supplied by evidence offered without objection, we find her on the alert. When plaintiff offered in evidence the title from Louis J. Pitre to Ferdinand Lafleur, she objected on proper grounds; the objection should have been sustained; under the allegations of the petition the evidence was not admissible against her.

When he offered evidence to show that he had paid taxes on her property, she objected on proper grounds, and under the allegations of plaintiff’s petition the objection should have been maintained; the evidence was not admissible against her under the law.

She waived nothing .and the requirements of the law concerning the statement of the “object of the demand” and “the cause of action” against her is not to be found in the petition.

The exception of no cause of action should have been sustained and she should have been dismissed from the suit.

The judgment appealed from to the extent that it is enforceable against the property of Mrs. Lafleur appears to us to be erroneous and must be set aside.

It is therefore ordered, adjudged and decreed that the judgment appealed from to the extent that it orders the sale of the property described as follows. Lots Nos. 18, 19 and 20 of Block Two of the Latour Addition to the town of Ville Platte, situated in the Parish of Evangeline, with the buildings and improvements thereon, is annulled, avoided and set aside. It is further ordered that this judgment do not prejudice or prevent the said J. Rene Fontenot from bringing an action with proper allegations and prayer against proper parties for the purpose to have revived, if he so desires, any mortgage or privilege which ought-to be revived against the above described property at his instance, and to have said property decreed subject thereto.

It is further ordered that the plaintiff and appellee pay the cost of both courts insofar as Mrs. Alicia Lafleur may be concerned.


text:
    No. 1957.
    First Circuit Appeal.
    J. RENE FONTENOT v. MRS. ALICE LaFLEUR, ET AL.
    (May 15, 1925, Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Marriage—Par. 172, 173, 175.
    The notes on which the plaintiff sues, secured by vendor’s privilege, special mortgage and .pact de non alienando were on a community contract. Therefore under Arts. 2402 and 2403 of the Civil Code the wife was bound as much thereby as her husband.
    2. Louisiana Digest — Mortgages—Par. 108.
    The pact de non alienando stipulated in a contract of sale and mortgage of real estate by husband and wife in community cannot be circumvented by a dation en paiement in favor ■ of the wife.
    3. Louisiana Digest — Ownership—Par. 8, 9.
    Where one believes that he is owner of property but is not the owner, his belief does not make him the owner. Therefore, the extinguishment provided for by Articles 2130 .and 3411 of the Civil Code was not accomplished.
    4. Louisiana Digest — Mortgages—Par. 116; Subrogation — Par. 8.
    One who purchases property from another in good faith is equitably and legally the subrogee of the party from whom he buys and entitled to exercise the rights of his vendor. ,
    (Article 2161 of the Civil ¿ode, Clauses 2 and 3,’ Editor’s note.)
    Appeal from the Thirteenth Judicial District, Parish of Evangeline. Hon. B. H. Pavey, Judge.
    This is a suit brought for the collec.tion of two promissory notes for $225.00 against Mrs. Alice LaFleur and her husband.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    J. H. Dore, of Ville Platte, attorney for plaintiff, appellee.
    Duhuisson, Perrault and Burleigh, of Opelousas, attorneys for defendants, appellants.
   ELLIOTT, J.

Ferdinand LaFleur bought from Louis J. Petrie lots 18, 19, 20 of block No. 2 — Latour addition to the town of Ville Platte; with the buildings and improvements thereon by authentic act of sale dated February 10, 1917.

The price of the sale was $1000.00 of which $100.00 was paid in cash. The balance of the price was represented by 4 promissory notes, each for $225.00 payable March 1, 1918, 1919, 1920 and 1921, respectively, to the order of Louis J.. Petrie, with 8 per cent per annum interest from date, with 10 per cent attorney’s fees on "the amount sued for, in case of suit on the same. The vendor’s priyile'ge was retained and special mortgage granted on the property in the act in favor of the vendor and any future holder or' holders of said notes to securé their payment, and the purchaser obligated himself “not to encumber or alienate said property to the predjudice of this act”.

On November 21, 1917, Ferdinand LaFleur, as a dation en paiement, transferred this property to his wife, Mrs. Alice LaFleur. The original act was destroyed but a certified copy was recorded September 26, 1919.

On October 28, 1919, Ferdinand LaFleur sold the same property by authentic act to plaintiff, J. Rene Fontenot, for $1500.00, of which amount $1050.00 was paid in cash and for the balance of the purchase price said purchaser assumed payment of the 2 promissory notes which Ferdinand LaFleur had given to Louis J. Petrie in buying the property from him. Mr. LaFleur had already paid 2 of the notes which he had given to Petrie, leaving 2 unpaid, which Mr. Fontenot assumed as part of the price to be paid by him to LaFleur.

Mr. LaFleur reserved and was granted in his sale to Fontenot the right to live on the property for one year without paying any rent, and was to keep the property in the same condition as if it was still his.

Mr. Fontenot, in buying the property from ( Ferdinand LaFleur, was not' aware of' the title Mr. LaFleur had executed in favor of Alice LaFleur, and which had been recorded as above stated, and paid one of the notes which he had assumed without becoming aware of her title; but he had become aware of her title at the time he paid the last one.

Mr. Fontenot believing his own title good brought a petitory action against Mrs. LaFleur to have his title recognized as superior .to hers and be placed in possession of the property; but judgment was rendered in favor of Mrs. LaFleur, recognizing her as the owner and rejecting Mr. Fontenot’s demand.

Mr. Fontenot then brought suit against' Ferdinand LaFleur alleging the sum paid him in cash, also the payment of the 2 notes on his account, which LaFleur had given to Petrie; and requested that the property be sold to pay these notes. Mrs. LaFleur was made party to this suit, but no judgment was prayed for against her. Mr. LaFleur made no defense, but Mrs. LaFleur appeared and objected to the suit on the ground that plaintiff’s petition disclosed no cause of action against her; which was sustained and the suit against her, as well as plaintiff’s demand for the sale of’ the property was rejected; the judgment reserving to Mr. Fontenot the right to bring another suit with proper allegations for that purpose.

Mr. Fontenot brought the present action against Mrs. LaFleur and her husband, to authorize her, the object and purpose of which is to recover judgment against her for $450 with 8 per cent interest from March 1, 1917, until paid, and 10 per cent attorney’s fees; that being the sum he had paid to the administrator of the succession of Louis J. Petrie on said 2 notes which Fontenot had assumed in buying the property from Mr. LaFleur and which he, LaFleur, had given to Petrie in buying the property from him; and to revive, restore and enforce against Mrs. LaFleur the vendor’s privilege, special mortgage and pact de non alienando stipulated in the act of sale from Louis J. Petrie to Ferdinand LaFleur; and to have said property sold to pay said amount.

The defendant, Mrs. LaFleur, interposed an exception of no cause of action and under reserve thereof urges for answer, in substance and effect, that Mr. Fontenot having paid the notes in question, the same with said privilege, mortgage and pact de non (illenando stipulated in the sale from Petrie to LaFleur had been extinguished and therefore could not be revived, restored and enforced against said property. Judgment was rendered in favor of plaintiff as prayed for. Mrs. LaFleur has appealed.

OPINION.

The exception of no cause of action was properly overruled. The purchase by Ferdinand LaFleur from Louis J. Petrie in which the 2 notes; the basis of the present action, was given, vendor’s privilege retained, spet cial mortgage granted to secure same, and pact de non alienando stipulated, was a community contract, the 2 notes a community debt, the privilege, mortgage and pact ele non alienando community obligations, as -binding on Mrs. LaFleur as on her husband, C. C. Arts. 2402 and 2403.

With Mrs. LaFleur’s contention that she is a third possessor and that plaintiff should be required to bring against her an hypothecary action under the law. C. C. Art. 3402 and C. P. Arts. 68 and 69, we cannot agree.

The partner in community with Mr. LaFleur, claiming title and possession under the community title from Petrie to LaFleur, is not a third person within the meaning of the law: But even if so, the pact de alienando stipulated cannot be circumvented by the dation en paiement in her favor.

Mrs. LaFleur -occupies the position of her husband. He could not avoid the direct seizure and sale of the property by Petrie or other party exercising his rights; neither can Mrs. LaFleur. C. C. Arts. 3397 and 3409. Nathan vs. Lee, 2 Mart. (N. S.) 32; Donaldson vs. Maurin, 1 La. 29; Citizens Bank vs. Miller, 44 La. Ann. 199, 10 South. 779, and further cases cited in Louisiana Digest, Volume 5, pp. 275, 276, 277.

She further contends that plaintiff cannot be recognized as subrogee of Petrie under the law C. C. Art. 2161, clauses 2 and 3; because the dation en paiement from her husband having been executed and recorded prior to plaintiff’s purchase from her husband, he, plaintiff, must be considered to have purchased and paid the notes in bad faith; that only purchasers in good faith have that right: Citing Baudry— Lacantinerie et Barde des Obligations.

The evidence shows that plaintiff, before buying from Mr. LaFleur, had his title examined by a notary public, and. the notary public advised plaintiff that Mr. LaFleur could make him a valid title. Mr. Fontenot bought the property honestly and on this assurance, and was not aware of the dation en paiement from Mr. LaFleur to his wife. Mr. Fontenot paid onq of the 2 notes which Mr. LaFleur had “given to Petrie in buying the property from him, before he became aware of the prior and adverse title of Mrs. LaFleur; but had learned of her title at the time he paid the note last maturing; but. he was of the opinion that he had. the. superior title and brought suit against her to have it so decreed. He was mistaken in that regard, cast in the suit and his claim of title was objected: If he had not paid the 2 notes which LaFleur had given to Petrie then Mrs. LaFleur would have been compelled to do so.

The administrator of the succession of Petrie could and would, no doubt, have enforced against her the same vendor’s privilege, special mortgage and pact de non alienando which is now advanced by the plaintiff.

It is not claimed that Mrs. LaFleur had any interest in paying the notes herself that would .have been furthered if Mr. Fontenot had not paid them; nor that she would have gained anything or been any better off if Mr. Fontenot had not paid them. The payment by Mr. Fontenot benefited her and preserved the property.

Mr. Fontenot’s belief that he was, the owner of the property under his title from Mr. LaFleur did not make him the owner. This court decided that he did not become .the owner and he never was the owner; therefore the extinguishment provided for by the law C. C. Arts. 2130 and 3411 was not accomplished.

We conclude that Mr. Fontenot is equitably and legally the subrogee of Petrie and entitled to exercise the rights of Petrie in his title to Ferdinand LaFleur. C. C. Art. 2161, Clauses 2 and 3, and C. C. Art. 2341, 2443, 3409. Pugh vs. Sample 123 La. 791, 49 South. 526; Booker vs. Lastrapes, 2 La. 55; Balph vs. Haggath, 2 La. Ann. 462; Wilson vs. Curtis, 13 La. Ann. 601; John Chaffe & Bro. vs. Morgan, 30 La. Ann. 1307; New Orleans Insurance Assn. vs. Labranche, 31 La. Ann. 841; McKnight vs. Ragan, 33 La. Ann. 398; Dawson vs. Thorpe, 39 La. Ann. 366, 1 South. 686, therein cited.

Under the facts and circumstances of this case the judgment appealed from is correct and must he affirmed. It is therefore ordered, adjudged and decreed that the judgment appealed from he and the same is hereby affirmed. The defendant and appellant to pay cost of both courts.


text:
    No. 8546
    First Circuit Appeal.
    ALFRED BERGERON (Widow and Heirs Substituted) v. LOUIS J. BABIN, ET AL.
    (May 15, 1925, Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Surveyors and Surveys — Par. 1.
    The fact that a surveyor appointed had previously done some work in the employ of the plaintiff toward re-establishing the line in question does not disqualify him from making another survey of á disputed line in the boundary suit.
    2. Louisiana Digest — Surveyors and Surveys — Par 3, 4.
    Locations, calls, and distances must be followed if they can be found. All proof possible should be brought to beár in re-establishing the line in question.
    3. Louisiana Digest — Surveyors and Surveys — Par. 24; Appeal — Par. 741.
    Where the line in question in a boundary suit has not been sufficiently proved by running lines from approved government corners to tie with the line which the present surveyor ran and prove it in the right place; the qase will be remanded to the lower court for further proceedings to definitely prove the line correct.
    Appeal from the Twentieth Judicial District Court, Parish of Terrebonne, Hon. H. M. Wallis, Jr.,' Judge.
    This is a suit to establish a boundary line between two adjoining states. After the survey had been made but previous to the • trial the plaintiff died, whereupon his widow and children were substituted as plaintiffs.
    There was judgment approving the line fixed by the surveyor appointed by the court. Defendants appealed.
    Judgment reversed and case remanded to the lower court for further proceedings according to law.
    Butler & Wurtzlow, of Houma, attorneys for plaintiff, appellee.
    Harris Gagne, of Houma, attorney for defendants, appellants.
   ELLIOTT, J.

The plaintiff, Alfred Bergeron, owner and possessor of a tract of land in Section 85 T 16 S R 17 E, Southeastern District of Louisiana, West of the Mississippi river, brought suit against deendants Louis J. Babin and Herbert August Babin, owners and possessors of Sections 60 and 61 same township and range; the object and purpose of which is to re-establish and have re-marked the original Government boundary line, which divides Sections 60 and 61 from Section 85.

The plaintiff alleges and defendants admit that the dividing line was fixed by the Government surveyors many years ago, and approved by the proper officers, and that same constitutes the boundary line between their respective adjoining and abutting tracts: That the same can not now be seen and they differ as to the location of the line, and that its true location is the sole question at issue and the only matter in dispute.

The court at the instance of the plaintiff appointed a surveyor to inspect the premises, make a survey for the purpose' and return to the court.

The defendant moved to vacate the appointment, contending that the surveyor appointed had already, while in the employ of the plaintiff, done some work in reestablishing the line in question, and was therefore disqualified. The court overruled the motion.

The surveyor inspected the premises, made a survey and return to the court. The plaintiffs contend that the line, as retraced and delineated by him is correct; and pray that it be approved and made the judgment of the court.

The defendants deny that it is correct and oppose it as being incorrect and pray that it be rejected.

After the survey had been made and opposed, but previous to the trial of the case, Mr. Bergeron departed this life; whereupon his widow in community and his children, his sole heirs at law, were substituted as plaintiffs in his place.

The court, for written reasons, approved the survey and rendered judgment accordingly. The defendants appealed.

OPINION.

The exception of no cause of action was properly overruled.

The fact that the surveyor appointed had previously done some work in the employ of the plaintiff toward re-establishing the line in question, does not disqualify him. We notice that he returns that he ran the-line from the disputed line west of Bayou Terrebonne, and delineates plaintiff’s land on his plat, but we do not think this sufficient to disqualify him.

The surveyor found and shows in his return a Government corner at “the upper back corner of Section 63 T 16 S R. 17 E” indicated on his map by the letter A; which if we understand aright the maps and plats is the southwest corner of Section 63. Starting from thence he ran to the southeast corner of that section; thence to the southwest corner of Section 62; thence to the southeast corner of the same; thence to the southwest corner of Section 61. From this corner he re-traced' the. line in question.

The line in question is a straight line running from the southwest corner of Section 61, to the southeast corner of Section 58: But that part which divides Sections 60 and 61 on one side, from Section 85 on the other, is immediately in dispute in this case.

The surveyor appointed by the court testifies in support of his work that he traced the Government line by the field notes of the Government survey from the . Government corner at the southwest corner of Section 63, to the Government corner which he found at the southwest corner of Section 53.

The Government plats show' traced and marked on them an unnamed water course leading a diagonal and northern and southern direction across the Sections from the 57 to 63 near western limits of the same.

The field notes of the Government survey made by Mark Valentine in 1831 show that this water course is Bayou Coteau (spelled by him Coto).

The surveyor appointed by the court returns and testifies that Bayou Coteau does not run across the western end of Sections, 61 and 60, as indicated on the Government plat; but across the east end of Section 85. That he found and re-traced the Government line between Sections 60 and 61 on one side and 85 on the other, and that the line re-traced returned by him is correct, etc.

To agree with him we must hold that the, Government plat before us is wrong.

The surveyor appointed by the court, also returns- and testifies that the various head-rights 60 and 61, etc., do not have the width which the Government 'field notes show, they have. This- has no bearing on the re-establishment of the line in question — we only mention -it as showing that the work of the surveyor does not harmonize with that of the Government surveyor in two respects.

It would not be well to approve a local survey re-establishing such an important Government line, unless sure and satisfied that it is correct.

The Government plat showing that Bayou Coteau is located on Sections 60 and 61 is prima facie correct and will not be held to be wrong, unless the error and mistake is established beyond question. Its location affects several sections besides 60, 61 and 85.

In addition to the matter stated we find some others which also bear on the accuracy of the re-establishment in question. The surveyor found 2 Government corners above mentioned, which are wide apart, with 10 sections intervening between them: These sections were all originally surveyed by the Government surveyor from Bayou Blue. At the time these sections were located and limited by the Government, the Section 85, in which the plaintiff’s land-is situated, was not surveyed.

Mark Valentine, United States deputy surveyor, who made the surveys of Sections 60 and 61 in'1831, says: “Section No. 85 is not run — deep impassable prairie and swamp. Sections 86, 87, 88 also not run.”

The 'Section 85 is not to be- taken into account in re-establishing the line in question, except that its. location is dependent on the prior location of Sections 60 and 61 from Bayou Blue.

The field of the United States deputy surveyor in his survey of Section 60, calls for Bayou Coteau (spelled by him Coco) a certain distance' from Bayou Blue. The statement in the Government field notes is “cane .on Bayou Coteau.” The call for “cane on Bayou Coteau” is not precise and admits of some latitude: Yet prima facie it does not appear to be satisfied by a survey and plat, which places Bayou Coteau entirely on Section 85, and not on Section 60 at all.

Then again the Government surveyor in locating Sections 60 and 61 started from Bayou Blue; and the western limits of these sections should, we think, be re-traced by lines commencing on Bayou Blue; just as the Government lines were started and run, which was not done in the present case.

Proving lines run from approved- Government corners on Bayou Blue should, we think, tie with the line which the present surveyor ran, starting from the southwest corner of Section 63, if no mistake be made.

A line running from a proved corner on Bayou Blue along the line of Section 60 to -the “cane on Bayou Coteau” and another from a proved Government corner on Bayou Blue along the line of Section 61 to the" line re-traced from the southwest corner of Section 63 in Bayou Coteau, should lead to the line to be re-established and, with the line already run, help in definitely and accurately re-establishing the line in question; if no mistake be made. The line from Bayou Blue should tie with the line already run, and prove it, if in the right place.

In running the line of Section 60 from Bayou Blue search should be made for the call “cane on Bayou Coteau” and the result shown to the court.

Government locations, calls and distances must be followed if they can be found. All proof possible should be brought to bear In re-establishing .the line in question. See Smith vs. Almond, 157 La. 265, 102 South. 330, S R January 31, 1925; Houston Ice & Brewing Company vs. Murry Oil Company, 149 La. 228, 88 South. 802.

As it is, we are not satisfied that the line in question has been correctly reestablished. We do not believe that it is sufficiently proved, and therefore, the Judgment approving it and appealed from is erroneous and must be set aside.

For the above reasons the judgment appealed from is annulled, avoided, and set aside. This case is now remanded to the lower court for further proceedings, as the law provides; and in order that a further survey may be made by the surveyor already appointed, or by another or others, as the lower court may deem best in his judgment, for the purpose of re-establishing the line between Sections 60 and 61 on one side and Section 85 on the other:

That due and proper return be made to the lower court with plat verifying the reestablishment of the line in question in conformity with the views herein expessed. “All corners of Sections 60 and 61 adjoining and next to Section 85 to be verified and proved by measurements thereto from Bayou Blue, in the same way in which they were originally located, as well as from the Government corners at the southwest corner of Sections 53 and 63, all as provided by law. Revised Statutes of 1870 Section 3745: Said survey to be made and returned into the lower court at a time to be fixed by the lower court; and both sides given opportunity to approve or oppose the same:

The appellee to pay costs' of the present appeal. The cost of the lower court to await and abide the final action of the court in the matter of the controversy.


author: OGLESBY, J. CARVER, J.

text:
    No. 2158
    Second Circuit Appeal
    F. A. COCKE LIVE STOCK CO., INC., v. E. J. ADAMS
    (May 28, 1924, Opinion and Decree)
    (May 9, 1925, Opinion and Decree on Rehearing.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Evidence—Par. 221, 226.
    Where defendant in reconvention claimed, under a written contract on which the plaintiff is suing, the contract not being ambiguous, needed no explanation, and parol proof of a subsequent oral agreeement was, therefore, not admissible, the contract being the best evidence.
    ON A REHEARING.
    2. Louisiana Digest — Pleading—Par. -37; Bills and Notes — Par. 197.
    Under Code of Practice, Article 326, the defendant whose signature shall have been proved after his having denied it, shall be barred from asserting any other claim which he may have against the plaintiff, such as payment or prescription, but he is not, thereby, barred from a claim in reconvention.
    3. Louisiana Digest — Evidence—Par. 221, 226.
    Where written contract with ■ a road contractor contains terms such as “Dirt Work” and other clauses which need explanation, parol testimony should be allowed on a reconventional demand of defendant to show just what was meant by the written contract together with evidence which plaintiff may have to offset it.
    Appeal from the Parish of Concordia. Hon. N. M. Calhoun, Judge.
    This is a suit based upon two promissory notes secured by chattel mortgage.
    Defendant denied signing one note and filed a reconventional demand.

      There was judgment for plaintiff on one note, rejected his demand on the other, and rejected defendant’s reconventional demand.
    Plaintiff appealed, and defendant answered, urging that case he remanded for testimony on his reconventional demand.
    Judgment affirmed.
    On rehearing judgment was set aside and case remanded to District Court for further testimony.
    Dale, Young & Dale, of Vidalia, attorneys for plaintiff, appellant.
    G. P. Bullís, of Vidalia, attorney for defendant, appellee.
   STATEMENT OF CASE.

OGLESBY, J.

The plaintiff, F. A. Cocke Live Stock Co., Inc., of Natchez, Miss., brings this suit against F. J. Adams, of 'Concordia parish, La., based upon two promissory notes, one for $343.50, dated October' 17, 1922, and one for $444.36, dated one day later, both of which are paraphed “ne varietur” to identify them with an act of chattel mortgage passed before L. C. Marsh, justice of the peace and ex-officio notary public of Adams county, Miss., October 18, 1922. The plaintiff seeks recognition of the privilege flowing from ■said chattel mortgage on the property described therein, as well as a vendor’s lien and privilege on three certain mules described therein.

Defendant admits signing the note for .$343.50, and admits signing the chattel mortgage in blank, but denies signing the note for $444.36, and alleges that the signature is a forgery. He also files a reconventional demand for $942.00.

There was judgment for plaintiff for only $343.50, and a rejection of his demands for the $444.36 note and his lien and privilege, and a dismissal of the sequestration. From, this judgment plaintiff has appealed, and, defendant has answered the appeal, and urged that the case be remanded for testimony on his reconventional demand.

OPINION.

We gather from the record that about February, 1920, the plaintiff sold the defendant three mules, and in 1922 he owed plaintiff a balance of $400.00. Plaintiff had taken a contract to build a gravel road from Washington to Leesdale, Miss., in Adams county, and on August 23, 1922, sub-contracted one-half a mile to the defendant, for which he agreed to pay 16c per cubic yard-for all dirt work and $1.00 per yard for graveling the same. It was agreed that the work should be done according to the specifications contained in Cocke’s contract, and both agreed to take the estimate of the Adams county engineer as a basis of settlement.

On or about October .17, 1922, the work having been completed, a settlement was made, and it was found that Adams had come out in debt on the work $444.36, and still owed a balance of $343.50 on the old debt, making a total of $787.86. The two notes represent the two amounts.

Cocke says that on October 17, when they had the settlement,- Adams signed the chattel mortgage and the two notes which had been prepared by Mr. T'urnipseed, his bookkeeper, and promised to go to Vidalia and borrow enough money to take up the $444.36 note, with the understanding that if he was successful in getting the money the note would be given back to him. He says that Adams came back that night and reported that he had failed to get the money; that he might get it if he could take the property on which Cocke had a first mortgage over into Louisiana; that the next day he and Adams, accompanied by Turnipseed, drove to Washington to appear before Mr. Marsh, justice and notary, for the purpose of acknowledging the instruments which -.had been signed by them on the preceding day; that Adams was asked by Marsh, in his and Turnipseed’s presence, if he had signed the mortgage and notes, to which he said, “yes.” Mr. Cocke is corroborated by both Marsh and Turnipseed, with slight discrepancies. Turnipseed says it was on the afternoon, and Cocke and Marsh both say it was before the noon hour. Cocke, Turnipseed and Patton, the two latter being the witnesses to the chattel mortgage, all say that the mortgage was completely filled out when it was signed. Adams says he signed the note for $343.50 on October 17, and signed the mortgage in blank because they didn’t have a description of the property at the camp, Mr. Cocke saying that he would get it from the old one which he had in his office at Natchez, and put it in; that he loaded up his camping outfit, his tools, etc., in wagons, on the morning of the 18th, and started over to the Louisiana side, and as he came to Fenwick, Mr. Cocke’s camp, he, Cocke, Duvall Henderson (during the trial he changed the name to Henderson Chase, page 61), and his son, Luther Adams, got in a car and went to Washington; that Cocke got out of the car and went into a store, and after a short stay came out and said everything' was O. K. This evidently had reference to the acknowledgment. Says he didn’t see the notary, much less acknowledge anything before him, Adams is corroborated by his son, Luther Adams, and both say that Turnip-seed was not there. Henderson Chase says he drove the three to Washington on one occasion, but that it was a common thing, and he didn’t remember much about it.

Both notes are in evidence. The one for $343.50, not disputed, is witnessed by John C. Turnipseed and Bryant Patton, the same persons who witnessed the chattel mortgage. The other note is not witnessed at all. It is dated the 18th, but CoCke and his witnesses say it was executed at the same time the other was. There is some difference between the genuine and the disputed signature. In the disputed one, the “E,” and “J” are different" from all the other initials in the record,- and in spelling “Adams” a double “Á” is used, thus: “Aadams.” The signature on the back of the note is different from the one in front, and likewise different from the admitted signature. It is hard to reconcile the difference. We are not favored with a written opinion from the trial judge, and, of course, do not know what oral reasons he gave for disallowing this disputed note, but, under the circumstance's, we are not prepared to say that he erred on a question of fact. He was in a better position to judge the credibility of witnesses than we are, and for that reason we prefer to leave his finding on that issue undisturbed.

The other question of fact relative to the delivery of the mules at Vidalia, the judge found that the delivery was made at Natchez, and not at Vidalia. In that finding there is no manifest error. It is simply giving credence to the testimony of witnesses, and he was in a better position to say which was to be believed than we are.

On the reconventional demand the trial judge would not permit any proof over 'plaintiff’s objection that the contract was the best evidence, and not being ambiguous needed no explanation. We think he was right in his ruling. Defendant, in his reconvention, claimed under the' contract, and of course is bound by the contract. It is true that he alleges in his reconventional demand that there was a subsequent oral agreement by which Adams was to construct 300 feet of road in addition to the half-mile named in the contract, and proof of that character would have been admissible, but the questions asked and ruled on dealt. solely with the contract and an interpretation of the same. The judge held, and very correctly, that the contract needed no explanation; that it explained itself. Besides, the testimony of the engineer shows that Cocke got paid for exactly what Adams got paid for, that is, the estimate of the engineer.

We find no grounds for either reversing or amending the judgment of the District Court, and it is therefore affirmed.

(CROW, J., being absent, takes no part.)

ON REHEARING.

CARVER, J.

The record in this case does not clearly show whether the rehearing granted herein by our predecessors was of the whole case generally or just on the question of the reconventional demand. At the oral argument the entire case was' discussed by counsel on both sides, wherefore we have concluded that the rehearing applied to the whole case. We have, therefore, considered the entire matter.

We are satisfied with the conclusion reached by our predecessors in respect of the note for $444.36, and for the reasons given by the' organ of the court in its original opinion herein.

We are constrained, though, to disagree with them respecting the reconventional demand.

The district judge, on the objection of the plaintiff, excluded testimony offered by the defendant to prove the reconventional demand, and also excluded oral testimony to explain the road contract on which the reconventional demand was based. His reasons for these rulings were:

1. That defendant having denied his signature to the note was restricted to that defense and could not go into any other question.

2. That the road contract was not ambiguous.

These rulings were by our predecessors held correct, they adding, as an additional reason, that Cocke had paid Adams for exactly what he got paid for, that is, the estimate of the engineer.

I.

Article 326 of the Code of Practice provides:

“The defendant, whose signature shall have' been proved after his having denied the same, shall be barred from every other defense, and judgment shall be given against him without further proceedings.”

We understand this to mean that where the judge shall have been convinced that the signature disputed by defendant is genuine, he shall be barred from every other defense against that instrument. As, for instance, that he had paid it or that it Is prescribed. But we do not understand that it bars defendant from asserting any other claim which he may have against the plaintiff, at least by way of re-convention.

Furthermore, the district judge in this case evidently held that the signature was not proven, in which holding our predecessors concurred.

II.

The material portions of the road contract read as follows:

“F. A. Cocke agrees to pay E. J. Adams sixteen (.16) cents per cubic yard for all dirt work and one dollar ($1.00) per yard for all gravel in place on the above half-mile of road. All the above work is to conform with the specifications of the road contract F. A. Cocke has taken with Adams county for the construction of the road from Washington, Miss., to Leesdale, Miss E. J. Adams and F. A. Cocke both agree to take the estimate of the Adams county engineer for the settlement of any part of the work done on the above described half-mile by E. J. Adams.”

As an original proposition, we might not have regarded this contract as ambiguous either, but it would be because we would have supposed' that “dirt work” meant dirt in fills or embankments as well as dirt taken out of cuts. We gather from the argument, though, that the district judge and our predecessors considered that it meant, it must certainly be ambiguous, if, as claimed by defendant, the work he did consisted both of the moving of dirt from cuts and making fills or embankments.' Of course, a piece of road might consist altogether of embankments or altogether of cuts, but if it consisted of both, as is claimed by defendant, it would require evidence to convince us that under this contract Adams was to receive pay only for cuts and not for fills. The testimony of the engineer shows that he only estimated cuts and not fills.

Defendant offered proof to show that the embankment of filling work exceeded the work in cuts. We think he had a right to prove this and also to prove what “dirt work” meant in road-building parlance.

We do not think the contract, in providing' that- the work done by Adams was to conform with the specifications of the road contract Cocke had with Adams county, meant any more than that Adams should build the road as high, as wide, and with the same sort of material and with such other details, if any, as that contract called for. It does not mean, we think, that if Cocke was only to be paid for cuts that Adams, likewise, was only to be paid for cuts. The contract between Cocke and Adams county was not introduced in evidence nor does the proof show how much of the road Cocke contracted for consisted of fills and how much of cuts. For all the record shows to the contrary, it may be that most of the road was through high hills with little or no embankment to build; and, if so, Cocke might well have agreed to perform the filling part of the work without pay considering that the price he was' getting for the cuts was enough to compensate him for all the work.

For all the record shows to the contrary, too, it might be that in Cocke’s contract with defendant he .turned over.'to him all or most all of the filling.

Defendant’s counsel stated that he was ready to prove that the filling .amounted to 300 cubic yards more than the:,cuts.

Neither do we think that the', provision in- the contract between Adams. and -Cocke as to taking the estimate of the Adams county engineer for the settlement óf the work done by Adams meant to. invest-the engineer with authority to determine what the contract meant. In our opinión it merely binds Adams and Cocke to'- take his measurement or estimate of ¡the-’work done by Adams, both cuts and fills, if that is what the contract, means;' or cuts alone, if that is what it means;: or fills alone, if that is what it means.

Although there is no dispute as to the note for $343.50, we think it not proper to. render judgment on this note at present, because if Adams can prove his claim' it will more than offset this note. •• •• .

For these reasons, it is ordered, adjudged and decreed that the judgment of the lower court be set aside and’ 'that the case be remanded to the District' Court with directions to permit defendant to introduce proof of the amount of' dirt work done by him, filling as well aS’-in cuts, as well as the other items of Ms 'reconventional demand, and also parol’'testimony to show the accepted meaning 'Of “dirt work.” Of course, plaintiff' must be allowed also to • introduce proof of his advances of money and supplies to 'defendant on the road contract up to the amoim't of the road work for which - defendant- is fen-titled to pay and as an offset against it.


text:
    No. 2294
    Second Circuit Appeal
    COCO, BROUSSARD & DUPUY v. LONNIE GUY BYRD ET AL.
    (June 6, 1925, Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Pleading—Par. 62.
    An exception no cause of action aimed at the petition of. attorneys for wife whose suit for dissolution' of the community and for divorce was withdrawn will he maintained where the petition does, hot state that the suit for dissolution of the community and for divorce was carried to a successful conclusion.
    2. Louisiana Digest — Marriage—Par. 172, 173.
    The husband as • head and master of the community cannot be forced to pay the fee of counsel employed by the wife in a suit for a dissolution of the’ community and for divorce except in cases where she is successful in her attack.
    3. Louisiana Digest — Marriage—Par. 173.
    The husband is head and master of the community and he alone can bind the community.
    4. Louisiana Digest — Marriage—Par. 185.
    The wife is without authority to contract a debt that will bind the community during its existence.
    Appeal- from City Court of Alexandria, Hon. .J.. B. Nachman, Judge.
    This is a suit .for attorney’s fees brought by attorneys for the wife who had sued for dissolution of the community and divorce. There was judgment for defendants and plaintiffs appealed.
    Judgment affirmed.
    R. C. Bauer, of Alexandria, attorney for plaintiffs, appellants.
    Bruton T. Dawkins, of Alexandria, attorney for defendants, appellees.
   ODOM, J.

Defendants are husband and wife. . The wife Mrs. Christiana Peterson Byrd, employed plaintiffs to bring suit for divorce against her husband, Lonnie Guy Byrd, and, on September 6, 1924, the suit was filed and a Notary appointed to make an inventory of all the community property situated in the parish of Rapides-, where the defendants are domiciled. -The com-, munity also owned property in ■ the state of' Tennessee, and an inventory. and appraisement thereof was made in -Tipton county. An' inventory and appraisement of the property situated in Rapides ■ parish was not made, but the Notary,: having selected appraisers and having gone to the premises to make the inventory, rendered a bill for his services to the plaintiffs as attorneys for Mrs. Byrd.

On September 8, 1924, just two days after the suit was filed, Mrs. Byrd notified plaintiffs that she wished the suit against her husband withdrawn, and, acting under her instructions, plaintiffs dismissed the suit.

It is alleged that Mr. and Mrs. Byrd are now living together as husband and wife and are “maintaining the community of acquets and gains”.

Mrs. Byrd failed to pay plaintiffs, her attorneys, any fee for their services, and failed to pay the expenses which they incurred in connection with the suit.

Her attorneys bring this suit against the husband and the wife for their fee and expenses, and ask for judgment against them individually and in solido.

Defendants tendered an exception of no cause and no right ‘of action, which was sustained, and plaintiffs have appealed.

OPINION.

Counsel for plaintiffs concedes that the exception of no cause of action is good insofar as the wife is concerned, but he insists that the husband should pay the fee and expenses if not as matter of law then as a matter of equity.

The question submitted to us for decision we think has been settled, adversely to plaintiffs’ contention. We think the jurisprudence of this state is settled that the husband, as head and master.-of the community, cannot be forced to pay the fee of counsel employed by the wife in a suit for a dissolution of the community and for divorce, except in cases where she is successful in her attack. The husband is head and master of the community and he alone can bind the community. The wife is without authority to contract a debt that will bind the community during its existence.

The cases of Tucker vs. Carlin, 14 La. Ann. 734; and Trowbridge vs. Carlin, 12 La. Ann. 882, are similar to the instant case, and in those cases it was held that counsel could not recover their fees from the husband and community.

In the case of Benedict vs. Holmes, 104 La. 528, 29 South. 256, all the cases on this subject were reviewed and the court held that counsel who had represented the wife were entitled to recover their fees from the husband as head and master of the community, but in that case the wife was successful in her attack, and the court said:

“In our opinion, the fees of the attorney of the wife who has successfully prosecuted against her husband a suit for separation from bed and board, and a separation of property has a right of action against the latter as head and master of the community for the payment of his fee, as it constitutes a charge against the community, and is payable from its assets.”

This holding is based upon the theory that if the husband’s conduct is such as to justify the dissolution of the community on the petition of the wife, the community should bear the cost’ and attorney’s fees incident to its dissolution. The wife has the right at all times to go into court and demand that the community be dissolved and that she be granted a divorce. If she is unsuccessful in her suit, she must pay the cost. If, however, she is successful and the community is dissolved, the defendant husband is taxed with the cost. In order for the wife' to succeed in her suit to dissolve the community she must show that it is to her interest at least that it should be dissolved, in which event we can see no reason why the community should not pay the cost of the suit. On the contrary, if she fails in her attack, it is because the community should not be dissolved, in which event we can see no reason why the community should hear the cost of her unsuccessful attack.

It is the husband’s privilege to superintend and manage the community assets and it is likewise his duty to protect them. If the husband’s conduct toward his wife and His management of the community affairs are such as to warrant a continuation of marital relation between him and his wife and a continuation of the community, he’ as head and master of the community should not be taxed with the cost and attorney’s fees of the wife who makes an unsuccessful attempt to destroy those marital relations.

In the case at bar, the wife became reconciled and withdrew her suit. ' It was not carried to a successful conclusion. We are not informed as to why the wife withdrew her suit, except that it is stated that she and her husband became reconciled. In such a case the husband should not be required to pay the fees of his wife’s attorneys.

In order to set out a cause of action in a case of this kind it is necessary, in our opinion, for the petition to contain allegation that the suit terminated successfully in favor of the wife. There is no such allegation in the plaintiffs’ petition.

See:

Purser & Magruder vs. Baientolila, 152 La. 766, 94 South. 366.

For the reasons assigned, it is ordered, adjudged and decreed that the judgment of the lower court sustaining the exception of no cause of action and dismissing plaintiffs’ suit is affirmed.