author: Fenner, J. Watkins, J.

text:
    No. 10,216.
    Wm. R. Ker, Administrator, et al. vs. Thomas E. Evershed et al.
    1. When parties reduce their contracts to writing‘and when the terms of the writing exhibit no uncertainty or ambiguity as to the nature, the objeet and the extent of the agreement, it is presumed that the writing expresses the true aud complete undertaking of the parties.
    2. Ambiguous contracts may be explained or controlled by proof of unambiguous circumstances ; but unambiguous contracts cannot be destroyed by ambiguous circumstances.
    3. Equity may reform, and eonect even contracts unambiguous on their face on clear proof that, through fraud or error, the written instrument has been made to express a different purpose from that which the parties had agreed on and had intended to embody therein; hut to support relief there must be clear proof of the antecedent contract and of the error in committing* it to writing.
    4. When a mortgage creditor proceeds vid ordinarid and obtains a personal judgment for money as well as a recognition of his mortgage, when he issues thereupon an ordinary Ji. fa. under which the property of his debtor is seized and sold, the title of the purchaser at such sale rests, not upon the mortgage, but on the sale, and the personal judgment being valid, the title would be good notwithstanding any defect in the mortgage, or even if no mortgage had ever existed.
    5. The purchaser at a judicial sale acquires what is sold — no more and no less. His title cannot he enlarged or diminished by any error as to the extent of the thing sold, not resulting from any defect in the proceedings or induced by auy fraud or misrepresentation. Therefore, the taking possession of more or less than was sold, through error, cannot extend or restrict his title, if such possession or abandonment lias not given rise to prescription.
    APPEAL from the Civil District Court for the Parish of Orleans. Monroe, J.

      E. J. Moral, F. Michlnaril, A. J. Ker and Chas. F. Claiborne for Ifiaintiffs and Appellees:
    ft is a plain and elementary legal proposition that errors of names, description and numbers in private or public acts will be corrected upon proper evidence so as to conform to facts and to the intention of the parties. 36 Ann. 549, 870 ; 35 Ann. 560; 33 Ann. 1033; 26 Ann. 545; 20 Ann. 211; 1 Greenl. Ev. § 296 Ann.; 1 H. I)., p. 541, Ho. 6.
    The manner in which parties have executed a contract furnishes a guide for its interpretation. O. C. 1956 (1951) 9 Ann. 29 (31) ; 35 Ann. 102; 34 Ann. 1184.

      Henry Ohiapella and L. Be Póorter for Defendants and Appellants:
    1. The titles of the jiartios, and not the manner of putting in possession, or the acquiescence of one in the possession of the other for a time, will control, when the pretensions set up under this possession, are wholly inconsistent with the written titles. ACillikin vs. Alinnis, 12 La. 539.

      '2. In tlie questions of title, silence in no case shows consent, unless continued during the time for prescription, when applicable. McIntosh vs. Smith, 2 Aim. 757.
    3. Bona fide purchasers, without notice, who have paid the price, are not affected by secret equities existing between those under whom they hold and third persons, nor by their misrepresentations. Pike vs. Mouget, 4 Ann. 83, 227.
    4. Courts are bound to give legal effect to contracts according to the true intent of the parties. That intent is to be determined by the words of the contract, when these are clear and explicit, and lead to no absurd consequence. G. C. 1945, §§ 2 and 8 ; C. C. 1958.
    5. ‘‘Actual possession of a part of the land, with title to the whole, is possession of the whole.” Donegan vs. Marfcineau, 9 M. 43; Provost vs. Johnson, 9 AT. 174; Gillard vs. Glenn, 111.159.
    C. A stale demand long withheld from prosecution until he, against whom it is preferred, has died, is regarded with disfavor; when no hindrance was in the way, it must be established with more than reasonable certainty. The evidence must be peculiarly strong and conclusive to remove the unfavorable presumption created by the delay. 39 Ann. 684; 35 Ann. 1006..
   The opinion of the Court was delivered by

Fenner, J.

On June 8, 1868, Robert J. Ker mortgaged to A. Cliiapella four certain lots of ground to secure the sum of twelve thousand dollars represented by four promissory notes, payable one year after date.

In 1878, Mrs. Emelie Everslied, as holder of two of said notes, and F. B. Henriquez, as holder of one, brought separate suits, via ordinaria, against Robert' J. Ker, who was duly cited, but suffered judgment by default to go against him.

The petitions hied in said suits set forth the debts claimed and’the mortgage by which they were secured, the act of mortgage being annexed to and made part of the petition, and prayed for a judgment for the amount due with recognition of their mortgage on the property described in the act.

Judgments were rendered in both cases decreeing that the plaintiff do have and recover of said Robert J. Ker, the sum of ($6500 in one case and $600 in the other), with interest, costs and attorneys’ fees, and recognizing plaintiff’s special mortgage and hypothecation on the property described in plaintiff’s petition, without prejudice to tlie right and concurrent mortgage of the holder of the outstanding notes described and mentioned in plaintiff’s petition.”

Upon both of these judgments, after they had become final, and after due notice to the defendant, writs of fieri facias were issued in ordinary form, commanding the sheriff that by seizure and sale of the property, real and i>ersonal, rights and credits of defendant, Robert J. Ker, you cause to he made the sum of, etc.”

Under these writs the sheriff seized the property described in the act of mortgage, and, after due notice and advertisements and the observanee of all due regularity of proceeding, tlie same was sold at public outcry and was adjudicated to Mrs. Evershed, as the List and highest bidder, for the price of $5400 cash, which sum, after deducting costs' taxes and attorneys’ tees, was rateably distributed between the two plaintiffs.

In 1887, Wm. R. Ker, administrator of Robt. J. Ker, joined by certain mortgage. creditors of Robert J. Ker, filed this suit, In which they allege that, being the owner of tlie property described in the mortgage to Chiapella, with other contiguous lots, lie had, prior to said mortgage, changed the lines and dimensions of said lots, which are designated as A, B and C, and had made improvements upon them, making his home of lot A and part of lot B, and dividing the balance of lot B and lot C into several properties fronting on Claiborne street; that although it appears by the act of June 8,1868, that he granted a mortgage in favor of Chiapella on the whole of lots A and C; yet, in reality, it was his intention to grant, and the intention of Chiapella to accept, a mortgage only on the lot A and part of lot B such as it stood, inclosed within dividing fences, forming a distinct and separate property from the rest; but that through a clerical error and inadvertence, contrary to the intention of the contracting parties, the notary, in drawing up said act of mortgage, erroneously extended it over the whole of lots A and C.

We need not state the allegations as to the rights of the co-plaintiffs, because they have none except such as are derived from Ker subsequently to the Chiapella mortgage, and must stand or fall with him.

They proceed to aver the facts relative to the judicial sale above set ’ forth, but allege that the purchaser, Mrs. Evershed, under her title took possession only of the lot A and part of lot B, and never set up pretensions to any more; and that said Ker always retained possession of the lot C and the rest of lot B.

They allege that these errors were only recently discovered; that tlie defendants refuse to acknowledge or correct them ; and they pray for a judgment amending and correcting the description in the act of mortgage and in the sheriff’s deed of sale, so as to conform to tlie intentions of the parties, and recognizing defendants as owners only of lot A and part of lot B, and the succession of Ker as owner of lot C and the rest of lot B.

When parties reduce their contracts to writing, and when the terms of the writing exhibit no uncertainty or ambiguity as to the nature, the object and the extent of the engagement-,.it is presumed that the writing-expresses the true, full and complete undertaking of the parties.

When the instrument is free from any patent or latent ambiguity, parol evidence cannot be received to vary or contradict it.

. Courts of equity, however, have established a special branch of jurisdiction under wliicli, when it is made clearly to appear that, through fraud or error, the written instrument has been made to express a different purpose from that which the parties had agreed on and intended to embody therein, such mistake may be corrected, and the writing may he reformed to express the real intention of the parties.

But in this last case both reason and authority require that, before such relief can be afforded, there must be very clear proof of the different antecedent agreement, and of the error in committing it to writing.

Now, in the instant case there is not the slightest ambiguity in the description of tire property mortgaged. The description is not only accurately given by metes and bounds, but it refers to the acts under which Ker himself acquired the properties and under which they were conveyed to him by the same identical description.

This reference indicated conclusively to Ker that he was mortgaging his property according to the lines and divisions which it had when he acquired Ms titles, and not according to the new lines and subdivisions wliicli lie himself had subsequently established.

If he read the act there was no excuse for error, and if lie did not read it. such gross negligence would leave Mm with still less excuse. Allen vs. Whetstone, 25 Ann. 850; Watson vs. Bank, 22 Ann. 14; Keough vs. Foreman, 33 Ann. 1439.

It may well be assumed that, he directed the mortgage by this description, because it made it easier for liim to exhibit and trace his title, and obviated the necessity of identifying Ms new subdivisions with the titles by which lie acquired; especially as lie was only granting a mortgage wliicli he, no doubt, expected to pay and' cancel.

These considerations greatly weaken the presumptions which plaintiffs rest upon the improbability of Ker’s intending to mortgage his property in lots, breaking up and destroying liis own subdivisions.

But what proof is there that the written agreement does not- express the true intentions of the parties, or that they ever entered into any different agreement whatever

Everybody connected with the transaction had passed away before this suit was brought. Ker was dead, Oliiapella was dead, the notary was dead; Mrs. Everslied was dead.

No witness-appears who had the slightest cognizance of the transactions between the parties. The. clear and unambiguous written instrument stands as the sole repository of the agreement- and intentions of t-lie parties, with not a. wmrd of evidence to show that they ever made Or intended to make any other.

Mrs. Everslied -was not even a party to the act. While it does appear that Chiapella acted as her general agent, it is not proved that he acted as her agent in accepting the mortgage.

Though she acquired the notes through him and he held them for her, it does not appear when Or how she acquired them.

Plaintiffs’ whole case rests upon" the presumptions above referred, resting upon tiie improbability of Ker’s mortgaging his property in such shape, the weakness of which has already been suggested; and upon the additional fact that after her purchase at the judicial sale she took possession only of lot A and part of lot B, and never disturbed Ker’s possession’’ of the rest of the property. We know not how this’ error on her part may have been induced. Suffice it to say that Ker’s possession and her acquiescence therein not having 1‘Jsted long enough to form the basis of prescription, and being wholly inconsistent with the written title; it cannot have effect to overthrow' the latter. Milliken vs. Minnis, 12 La. 546; Babineau vs. Cormier, 1 Mart. U. S. 456; Broussard vs. Duhamel, 3 Id. 11.

Cases may be found and are. quoted by plaintiffs’ counsel, in which circumstances such as those here relied on, have been given weight in interpreting ambiguous contracts and in determining the true meaning of ambiguous descriptions of property. Others exist in which even contracts unambiguous on their face have been corrected on clear proof that the parties had actually entered into' a different contract which they had intended to embody in the writing drawn, but which, through error or fraud, the writing did not correctly set forth.

But no case can be produced in which an unambiguous written contract has been set aside’ Or substantially reformed on circumstantial evidence so slight as that here presented, urged only after the lapse of nineteen years, and after the death of every party to the transaction.

Ambiguous contracts may be explained and controlled by unambiguous circumstances; but unambiguous contracts cannot be destroyed by ambiguous circumstances.

It might, moreover, W'ell be doubted whether the plea of error, liowever clearly proved, could have been listened to after the judicial proceedings,'in which the. existence and verity of the mortgage, as executed, w'ere distinctly put at issue, and which resulted in a formal contradictory judgment recognizing the same.

But, even passing-over this obstacle, another presents itself in the form of those judicial proceedings. The plaintiffs therein, as we have seen, proceeded riá ordinaria and obtained a personal money judgment against Ker, which they executed by writs of fi. fa., under which they seized and sold this property. Suppose the mortgage were reformed or even annulled, or suppose they had never had any mortgage at all, they had an unquestionably valid judgment for money which they had the right to execute upon this or on any other property of Ker. Defendants’ title rests, not upon the mortgage, but upon the judicial sale, and we fail to discover any ground on which that sale can be attached.

It is vain to say that, Mrs. Evershed supposed she was buying a different, property from that which was sold. Titles under judicial sales are not to be regulated by the mistakes or errors of purchasers unless such errors were induced by some defect in the proceedings themselves, or by some fraud or misrepresentation. The purchaser takes what"is sold and what he buys, no more and no less. Suppose the error had been on the other side, and the sheriff had seized and sold a less estate, could Mrs. Evershed, on alleging that she supposed it, was a larger one, claim title to more than was sold i

Finally, the judicial sale was made, not only under the judgment, of Mrs. Evershed, but also under that of Henriquez, and he is not even made a party to the suit.

His mortgage rights, his judgment, and the judicial sale thereunder must, stand unaffected by this proceeding, and they alone are sufficient to sustain the title of defendants.

If anything could add force to the foregoing, it -would be the fact that the whole property which was mortgaged as security for $12,000, brought at the judicial sale only $5400, a sum considerably less than the amount then remaining due under the mortgage, so that Mrs. Evershed, after her purchase, still stood a considerable loser by the transaction. Whether that, loss has been otherwise made good the record fails to advise us. If not, we are now asked to increase it by taking from her part of the property brought in, which was already insufficient to satisfy her claim.

It is, therefore, adjudged and decreed that the judgment, appealed from be annulled and reversed, and that there now be judgment, in favor of defendants, and rejecting the demand of plaintiffs at. their cost in both courts.

Dissenting Opinion.

Watkins, J.

Robert J. Ker, deceased, acquired the ownership of •several lots of ground in the. city of New Orleans, which are situated in the. square bounded by Esplanade, Claiborne, Bayou Road and Robertson streets, a, portion of which forms the subject of this controversy.

Of these, three lots have their front on Espl amule street, with side line on one side, on Claiborne street, constituting this property the corner of Esplanade and Claiborne streets.

Four others have their front on Claiborne street, with one side line passing immediately in the rear of those last described.

The remainder consists of a narrow strip of ground of very nearly the shape of a parallelogram, which is situated in the rear of both of the two pieces of ground above described.

For convenience of reference, those tliree pieces of property may be designated by the letters A, B and C — -A representing the property sit* uated at the corner of Esplanade and Claiborne, B the property which fronts on Claiborne street, and C the property which is situated in the rear. See plan annexed.

All of these properties were purchased by Ker in the years 1843, 1844 and 1845.

On the 8th of June, 1863, he consented a mortgage for $12,000, represented by a series of promissory notes, payable to his own order and indorsed, though Chiapella is mentioned in the act as the mortgagee, upon the property mentioned in letters A and C; and on the 20th of June, 1872, he executed another mortgage, likewise represented by several notes, Charles Lafitte being named as the mortgagee upon the property mentioned in letter B.

In 1878 Mrs. Emelie Everslied, the mother of the defendants, purchased at execution sale, under a judgment which she had obtained against Ker, on several of the notes which were secured by the Cliiapella mortgage, and she received a sheriff’s title thereto.

No proceedings have been taken to purchase the Lafitte mortgage.

In the course of the administration of the succession of R. J. Ker, in 1886, the property mentioned in letters B and C were adjudicated a probate, sale, and, upon inspection of the titles, it was ascertained to be a fact that the property mentioned in letter C was included in and covered by the Chiapella mortgage and'the Everslied title j and the purchaser declined to accept the title tendered him by the Ker succession. An investigation led the administrator to believe that the Chiapella mortgage and the Everslied .title had been erroneously extended to the property mentioned in C, contrary to the intentions of the contracting parties; and, therefore, this suit was brought to have this error judicially declared, and the titles to be so corrected as to conform to the true intentions of Ker and Mrs. Everslied.

The principal averment of the administrator’s petition is “ that, although such appears to be. a fact, yet, in reality, it was the intention of Ker to grant and of A. Chiapella to accept by the said act * a mortgage only upon Hie corner of Esplanade and Claiborne streets, as it stood, and enclosed within well-established dividing fences, forming a distinct and separate property from the rest * * * hut through a clerical error and inadvertence, and contrary to the intentions of the contracting parties, the notary, in drawing up the said act of mortgage, erroneously extended it over the whole” of the property mentioned in A and C, when it should have been restricted and confined to that mentioned in letter A. '

I-le likewise represents that whatever may appear uj>on the face of the Lafitte mortgage act, “it was, in reality, the .intention of said Ker to grant the letters and of Lafitte. to accept a mortgage upon the whole” of the property mentioned in the letters B and C : and that it should not have, been restricted and confined to that mentioned in letter B.

He further represents that when, on the 7th of September, 1878, Mrs. Eversbed became the adjudicates at sheriff’s sale of the property as erroneously described and as consisting of the whole of A and C, she' really and actually took possession of “that property which, iri the intendment of the parties,- had been really mortgaged and sold, i. c., the property at the corner of Esplanade and Claiborne streets, comprised in letter A, and never set up any pretension to any more; and that Ker remained in the undisputed possession as owner of all the other properties mentioned and comprised in the letters B and 0, and of which the administrator is now in possession.

Substantially, the defendant’s answer is a general denial, coupled with aii averment of the truth and correct,ness of the recitals contained in the title of the sheriff to their mother, and in the Chiapella mortgage. They further aver that the descriptions which are contained in said acts are identical with those contained in the conveyances of Ker’s vendors, and of their authors. They insist that plaintiff’s demands are stale, because the acts in which error is assigned are twenty years old.

On these issues the facts developed on the trial are as follows, viz:

In the intertm between the date of Ker’s several purchases and 3850, he divided the several properties above enumerated into five distinct and separate lots, placed commodious and valuable residences upon each, ami separated one, from another by substantial fences.

On that part of the property situated at the corner of Claiborne and Esplanade streets, and within the limits mentioned in letter A, he established large and commodious improvements in which he resided until the date of the sheriff’s sale to Mrs. Eversbed, on the 7th of September, 1878. The remainder of the property mentioned in letters B and C were divided into/ow distinct premises, fronting on Claiborne street. In this manner the property in letter C was subdivided at right angles with that on letter A.. Upon each one of these four premises tenements were erected, suited to the wants of occupants, and same have been occupied continuously since as separate residences.

When Mrs. Evershed purchased, such was the situation of these several properties; and, under her sheriff’s title she went into possession only of the Ker homestead, as at present enclosed, and as above described, and no wore. Ker became her tenant, and continued to occupy the property, paying her. rent. After her death he paid rent to her executor, and afterward to the defendants, as her simple heirs. Subsequently he removed to one of the four premises fronting on, Claiborne street, and mentioned in letter B, where he continued to reside until his death; and his family have continued to reside there since.

Neither Mrs. Evershed nor the defendants have at any time had possession, under the sheriff’s title, of any portion of the property outside of the Ker residence and inclosure; nor did any one of them, at any time prior to the institution of this suit, set up any claim or pretension to. more.

They never made any demand or claim to any portion of the rents of the four i>roperties on Claiborne street, and paid no portion of the taxes thereon.

There is no positive proof as to what were the real and actual intentions of the parties antecedent to, or at the time, of the confection of the Cliiapella mortgage, or of the sheriff’s sale.

All of the contracting parties and the officers who execiited them are long since dead, and nearly twenty years have elapsed since the former was passed. The determination ' of this case depends solely upon this evidence. There was no objection xxrged by the defendants to the admissibility of parol evidence. The right of the plaintiff to introduce it was conceded.

The opinion of the majority die court holds adversely' to the claim of the plaintiff, and, as I under ocaud it, maintains two propositions, the result of which is an adverse judgment.

They are: 1st. That the recitals of the acts of mortgage and sale are perfectly formal and unambiguous in terms, and no contemporaneous error, or mistake is shown to have existed at the date of their execution; and 2d. That one was execxxted by a notary who seems to have pursued the recitals contained in former titles, and the other by a sheriff, in the execution of a judgment which is not assailed as erroneous.

To put it tersely, the opinion holds that the evidence of the alleged error is insufficient, and cannot prevail against the formal acts of the public officers named.

I respectfully submit that, both propositions are untenable.

1. While it is perfectly true that there is no ambiguity in either act, it seems clear to my mind that, from the manner in which these acts have been treated for so many years by all the parties to them, the fixed and definite boundaries of the respective possessions thereunder, should control and govern their recitals.

The Code provides that in the interpretation of an agreement “ when the intent of the parties is doubtful, the construction put upon it by the manner in which it has been executed by both, or by one, with the express, or implied, assent of the other, furnishes a rule for its interpretation.” R. C. 1956.

Now, it is contended, this in’ovision does not apply to plain and unambiguous instruments, ffiit this is clearly incorrect, because we find, in a preceding article in the same section, that all the articles in this section contain rules established by law for discovering the in ten f, when either the words are ambiguous or circumstances under it doubtful.” R. C. C. 1945.

The phrase circumstances under it doubtful ” does not occur in the corresponding article of the French Code, and yet the Court of Cassation lias frequently applied the principle contended for here, to parallel cases, for the purpose of ascertaining the intent of the parties. Toullier, fr. Ill, 2 p. 212, No. 320, and note 1; Laurent, Droit Civil, vol. 16, No. 504, p. 583.

In Marcotte vs. Coco, 12 R. 167, it was applied to a state of facts quite similar to the one presented here. In that case the Court said:

“ The testimony of McConley was objected to on the ground that parol testimony cannot be received for the purpose of controlhxj the express condition of the deed * * But the testimony was admitted, and we think properly.
Courts of justice are bound, in the investigation of contracts, to seek the, common- intent of the parties rather than to adhere to the literal sense of the terms.
When the intent of the parties is doubtful, says the Code, the construction i>ut- upon it by the manner in which it has been executed by both, or by one, with the express or implied assent of the other, furnishes a rule for its interpretation.’ Art. 1951. Parol evidence is clearly admissible to prove, in what manner a contract has been executed by the parties, and how far, in a contraed for the sale of land, the possession has been conformable to the deed.
In the case now before us the tradition was made by a survey and by planting posts on the line. * * All parties have acquiesced in this state of things. The tradition was effected by acceptance of the thing sold, as understood by the parties at the time, and, in our opinion, this practical interpretation by the parties themselves ought not to be disturbed.” (Italics are mine.)

In Palanquo vs. Guesnon, 15 La. 311 — a leading case, and one that is cited in many recent opinions — the .Court- said :

The jdaintiff now seeks to recover a lot of ground, such as is called for by his deed of sale. Defendant resists this claim on the ground that there was evidently a mistake and misdescription in the instrument; that the piece of ground intended to be sold by her, and purchased by the plaintiff, was that of which he had taken possession in 1830 j wlvieh he had improved, and in which he had been living since. * * Upon the whole, the evidence establishes beyond a doubt, the error alleged by the defendant, and the shameful bad faith of the plaintiff in attempting to take advantage of it.” (Italics are mine.)

The facts detailed are almost identical with those of the instant case, the terms being reversed.

I resxmctfully submit that, notwithstanding the terms of the acts in question are perfectly formal and free from ambiguity, the proof administered discloses the manner in which they were executed by all the parties to them, and that their- possession was not conformable thereto; that this proof controls the express conditions of the deeds,” and that “ this practical interpretation (of these acts), by the parties themselves, ought not- to be disturbed.”

2. The suit, of Mrs. Everslied was not simply for the recovery of the debt she held against Ker, but for the enforcement of the Chiapella mortgage also, because she specially petitioned for the recognition, and, under the judgment and ji. fa., the identical property therein described was'taken, and no more. If such was not the purpose, in the execution of her judgment, why did she limit- the seizure to that part of the property described in letters A and C, and did not seize and sell that described in letter B ? Can it be supposed that she desired to purchase these fragmentary portions of property, or that any one else w.ould! Certainly not.

This course of dealing with Iter’s property is conclusively against the theory that it was an ordinary execution sale. It was a proceeding vid ordinaria for the foreclosure of the Chiapella mortgage, and nothing else.

3. There is no force, in my opinion, in the second proposition maintained in the opinion of the court.

The Code provides that “judicial sales are subject to the rules laid down for public sales in general.” R. C. C. 2617.

“The adjudication is the completion of'the sale; the purchaser becomes the owner of the article adjudged, and the contract is from that time subjected to the same rules which govern ordinary contracts of sale.” R. C. C. 2608.

These rules are that “in all cases where no specific provision is made under the present title, the contract of sale is subject to the general rules established under the title of Conventional Obligations.” R. C. C. 2438.

Thus we have it proved that judicial sales are subjected to the rules governing obligations in general. This court has applied these rules to judicial sales in many cases, and particularly in the following, viz: Hall vs. Nevill, 3 Ann. 327; Davenport’s Heirs, 3 N. S. 679; Stewart vs. Boyd, 15 Ann. 171; Jones vs. Crocker, 1 Ann. 440; Heirs of Cartle vs. Floyd, 38 Ann. 583.

In quite as many cases error has been assigned in judicial sales; and maintained by the court, and notably in the following, viz: Buard’s Heirs vs. Buard, 2 La. 3; Chaion vs. Pepin, 13 La. 534; Williams vs. Hunter, 13 Ann. 476; Robert vs. Boulet, 9 Ann. 29.

If then judicial sales are subject to the rules governing conventional sales and conventional obligations — and they are — what becomes of the argument that, forsooth, Mrs. Evershed holds under a perfectly formal adjudication by the sheriff, and that the Chiapella mortgage was passed by a notary who employed the identical descriptions contained in the titles of his authors, hence they are not open to acharge of error such as assigned in this case Í

To state the question is to answer it.

It is argued that because. Henriquez also obtained a judgment and seized this property, and is not made a party, therefore, this case must fail.

Henriquez did not buy any part of the property.

His judgment was satisfied by Mrs. Evershed, who was the adjudicatee. Besides, this question is not raised by the defendant’s answer.

It is said plaintiffs did not ask the annulment of Mrs. Evershed’s judgment under which the sale took place, and that is a bar to plaintiffs’ recovery. It was extinguished in greater part by her purchase of the property, and has ceased to exist pro tanto.

But it simply pursued the tenor of the petition and mortgage, and perpetuated rather than cured the error. Besides, the defendants tendered no plea of res adjudieata or estoppel, and this court caunot supply them.

It is my deliberate judgment that the case is with the plaintiffs, and that the judgment ought to he affirmed.

The Chief Justice concurs in this dissent.


source: Caselaw Access Project

author: Watkins, J.

license: Public Domain

text:
    No. 10,237.
    State of Louisiana vs. John Schmidt.
    1. Notwithstanding a city ordinance makes a certain map, or plan a part of it, the former may he introduced in evidence, separately, if. the latter is specified as on file in the office of the chief of some department of the city government. An objection to the separate bffer of the ordinance goes to the effect and not the admissibility of the evidence.
    2. The testimony disclosing the loss of the original plan or map, made part of Ordinance No. 4799 A. S., parol proof was admissible of its contents and purport.
    3. Satisfactory evidence being furnished to the effect that said ordinance was prepared by the city attorney; that the map annexed to and made a part thereof was prepared by the city surveyor, under his superintendence and direction; and that the radius of six squares from a public market was ascertained by taking the further side of the street from a public market, and walking six squares, the nearest way, any theory heretofore entertained adversely thereto must yield thereto.
    The testimony in this case confirms the conclusions announced in State vs. Banter, 40 Ann. And it is affirmed.
    APPEAL from the First Recorder’s Court. Murphy, J.

      Gartleton Hunt, City Attorney; Thos. MeO. Hyman, Assistant City Attorney, and Frank H. Butler for Plaintiffs and Appellees: .
    1. The act No. 100 of 1878, being a special law, has not heen repealed by the present city charter, acts of 1882.
    2. The act of 1878 and ordinance 4798, A. S., adopted thereunder, are not obnoxious to article 46 of the Constitution, which prohibits the granting to any corporation, association or individual any special or exclusive right, privilege or immunity; nor to the Constitution of the United States.
    3. The legality and constitutionality of the private market ordinance of the City of New Orleans,-No. 4798, A. S., have been fully affirmed by this court.
    4. To render the declarations and admissions of a municipal officer evidence they nfust accompany acts, which acts must he of a nature to hind the corporation. Dillon Mun. Corp § 237 (note). -
    5. No city officer can hind the corporation unless thereto authorized, by law.
    6. The municipality cannot relinquish their police powers.
    7. The city council were fully authorized by section 3 of act No. 100, of 1878, to prescribe by ordinance the portions of the city in which private markets shall he-located, and the distance they shall he removed from the public markets.
    8. No restrictions whatsoever are imposed by law on the city council, except, first, to restrain that body from prohibiting the existence jof private markets altogether within the municipal limits; and, second, to prevent them from allowing the establishment of private markets within a radius of six squares of a public market.

      9. Full power and authority was giren tlie city council by said statute to extend and enlarge the area in which private markets should not he permitted to exist. There is nothing in the law to prevent the council, if it deems it proper, to pass an ordinance declaring that no private market shall exist within a radius of seven, eight or nine squares of a private market.
    10. The city council have, by Ordinauce 4798. A. ft., as amended by Ordinance 3081, C. S., fixed and defined tlie boundaries of those portions of the city within which it is not lawful for private markets to exist; and, as defendant’s private market is within that prohibited area, it is unlawfully established, and he is justly liable to tlie fines imposed.
    11. The word “radius,” used in the law, means “ the shortest distance from the centre to the circumference.” In order to have a radius there must be a circle, and by the insertion of that word in the law tlie general assembly clearly intended to establish a space around each public market, which, from its centre, would extend, in every direction a uniform distance, thus treating all private market men alike.

      W. F. <& TJ. O. Mellen, for Defendant and Appellant:
    1. That the words “ within a radius of six squares,” as used in act 103 of 1878, and Ordinance 4708 A. S., mean six squares as one would walk by the shortest route in any direction from tlie public markets,
    2. That the point has never been decided by this court. In State vs. Berard the defendant admitted that the word “radius” in the act was used in its strict technical sense. The point was therefore not at issue, and the decision is not binding on other private market • keepers.
    3. That even if the above decision should be construed as a final interpretation by this court of the meaning of the words in the ac.t, it is not binding as to the meaning of the same words in the ordinance, for that was not befoi’e the court.
    4* The city has interpreted for itself the meaning of the term “six squares” as used in the ordinance by annexing to it a certain map designating the prohibited limits. According to this map the term meant six squares in a walk from the public market.
    5. The defendant being charged with violating tlie ordinance must be discharged if his market) is not within the prohibited limits of the ordinance, though he may be within the limits prohibited by tlie act. Tlie act prescribes no penalty for its violation. It is only the violation of the ordinance that is punishable.
    {>. The act and the ordinance are attempts to raise revenue under the guise of the police power, and one illegal and unconstitutional. State vs. Palania, 34 Ami. 750; State vs. Blaser, 36 Ann. 363.
    7. The act and the ordinance create a monopoly and are illegal and unconstitutional.
    8. A municipal corporation cannot inflict the penalty of imprisonment as an alternative of a fine, unless the power be granted by express statutory authority. Dillon, § 336-333; State vs. Bright, 38 Ann. J.
    9. The representative of the city having told the defendant that the comer he now occupies was without the limits, and he having moved there upon that information, and having invested his money in that property in good faith, for tlie sole purpose of conducting his market business, believing it was outside of the limits, and having carried on his business there for eight years without being once molested, the city is estopped from claiming that he is within the limits.
   The opinion of the. Court, was delivered by

Watkins, J.

The defendant is appellant from several judgmepts rendered against him for certain alleged violations of city Ordinance No. 4798, A. S., which provides “ that no private market shall he permitted within a radius of six blocks of any public market.”

The view we have taken of the merits renders it unnecessary for us to pass upon the various objections urged to the constitutionality and legality of the ordinance and the law. '

I.

Defendant’s counsel urged objection to the introduction of said ordinance in evidence, because the plan, which was made a part of it, was not offered at the same time.

This objection goes to the effect and .not to the admissibility of the evidence. True, it was made a part of the ordinance by the City Council, but it is referred to as a plan on file in the office of the Administrator of Commerce. This was certifying to its legal effect only, and not that it was, physically, incorporated into it. It was properly admitted separately from the plan.

II.

He also urged objections to the introduction of a certain purported sketch, or tracing of. the original map, on thé ground that the loss of the original had not been established, and that it was not correct as a tracing. From what appears in' the record, it seems that' both parties introduced secondary evidence of its contents and purport, and we see no objection to all of it being considered.

III.

The only question open for discussion is whether the corner of Magazine and Erato streets, at which place the defendant has his private market established, is within prohibited limits.

While the testimony of one of the witnesses for the prosecution is to the effect that defendant’s private market is within 2100 feet of St. Mary’s Market, or within the prohibited distance, Ms statements are predicated, exclusively,. upon an examination of the tracing to which he refers, and information obtained from others.

Defendant’s evidence discloses that, in 1880, he established 1ns market at the corner of Magazine and Gainnie streets, and being prosecuted therefor, he removed it One square further from. St. Mary’s Market, and re-established it at the corner of Magazine and Erato street, where it still remains. That no further proceedings were taken against him until the affidavits under consideration were filed.

Defendant states, ns a witness, that, for two. or three years he rented his present stand, and then purchased it.

Two witnesses testify that the corner of Erato and Magazine streets is seven squares from St. Mary’s Market.

Mr. E. H. Farrar was introduced as a witness for the defendant, and stated that he was City Attorney in 1880, and during the time his private market was at the corner of Magazine and Gainnie streets, lie prosecuted him, and sent him to jail. At this juncture counsel for the prosecution objected to any further testimony on this subject on the ground that it cannot, in any way, affect the issues in this case.

We think the testimony was properly admitted. That it was competent, and exercised a material bearing on the question at issue.

Having been the City Attorney at that time, he was a competent witness to speak of the transactions and proceedings of the city authorities in the enforcement of this ordinance against the defendant, as circumstances indicating what was the prescribed limit thereunder, in the absence of the plan referred to as lost.

He says that he is perfectly familiar with ordinance No. 4798 ; that he wrote it; that he is perfectly acquainted with the plan which formed a part of it. He states that it was drawn by the City Surveyor under his instructions, as representative of the city.

Q. How was the distance ascertained under which the private markets were prohibted ?
A. The distance was ascertained by the map, which is declared in this ordinance to be a part of it, under section four. * *
The question then presented itself as to what was meant by radius of six squares, and, in order to prevent trouble about ' what a radius of six squares meant, I advised a plan to be made to officially designate what places were within the prescribed limits.
Q. You say the prohibitory limits were ascertained how ? Was it by measuring so many feet, or by so many walking squares, on that map ?
A. It was ascertained by taking the far side of the street around the market, and walking six squares the nearest way. * * The limits were distinctly fixed on the map.
u Q. By what measurement ?
“ A. By taking the far side and walking six squares the nearest way.
“ Q. Then it was by walking squares?
“ A. Yes, sir.”

Giving full weight to the evidence of the prosecution, predicated upon what is alleged to be a tracing from the original map, the testimony of Mr. Farrar appears to be conclusive against the State.

Whatever theory may have been entertained with regard to the meaning of the phrase “ within a radius of six squares,” as contained in the law and ordinance, the latter is made plain and xxmambigxxoxxs by the quoted testimony. It serves to confirm the conclxxsions annoxxnced by us in the recent case of State vs. Barthe, 40 Ann., which were couched in the following- words, viz:

“ Manifestly the lawmaker knew that in a city no one can move from one point to another on an air line, hence the language a radius of six squares ’ must have been intended to mean a route, or distance of six squares, in all directions, from a public market, sxxch as a human being coxxld xxse.”

Applying this test to the various charges against the defendant and the prosecution mxxst fail, because his market is more than six walking-squares from St. Mary’s Market, coxxnted the nearest way, and hence, not within the limit prohibited by the ordinance in question, and consequently, the several judgments appealed from mxxst be reversed.

It is, therefore, ordered and decreed, that the several judgments appealed from be annulled and reversed, and the defendant discharged, with cost in his favor.

The Chief Justice and Judge Fenner, concxxr in decree.


author: McEnery, J.

text:
    No. 10,207.
    Jacob Weinberger et al. vs. The Merchants’ Insurance Company.
    JTeither a judgment of non-suit, nor one dismissing a suit for want of proper parties, will sustain the plea of res adjudicata.

    The courts of this State administer both legal and equitable relief.
    Prayers in the alternative asking for either are not inconsistent.
    * A person doing business with an insurance company ought to inform himself of its general course of business and as to the terms and conditions of the policy issued on his application.
    Ignorance of the conditions and exceptions in the policy will not, on that account, avail as an excuse for violating the terms and conditions of the policy.
    It isa maxim of the law that “words referred to are considered as incorporated,” and the same rule applies where a particular clause refers to another clause in the same instru ment, or to one disconnected with the instrument to which reference is made. An application for an insurance policy containing a reference to a clause making exceptions, the latter clause forms a part of the application. The application and the policy must be construed as one instrument.
    Where there is no ambiguity requiring explanation in the language of a written contract, and the intent is plain and complete, no evidence will be admitted to give another construction to it than that -which is so plainly expressed.
    APPEAL from the Civil District Coxxrt for the Parisii of Orleans. Monroe, J.

      Leovy <& Blair and Tt. BeGray for Plaintiffs and Appellees:
    First. The defendant acknowledged the vessel was covered by the policy insured on, at the time she was damaged, on the voyage from Galveston to Vera Cruz:

      X. By notifying tlie assured after the condemnation of the vessel at Yera Cruz, that the company would hold tlie assured to all tlie obligations imposed on them by said policy.
    2.By sending its inspector, Captain Baker, to Yera Cruz, Mexico, to look after said vessel after said company was informed of the vessel’s damage and condemnation.
    Second. The evidence shows that the president and the general agent of the defendant company knew that the vessel was intended to be used in Texas and Mexican ports. To issue a policy, under the circumstances disclosed in the record, containing a printed warranty against the use of such ports, was an act of bad faith. Defendant is, therefore, estopped from availing itself of this warranty even if it intended it to be an operative part of the contract of insurance. Wheeler vs. Traders’ Insurance. 2 East. Rep. 136; "Kruger et al. vs. Insurance Company, 13 Pacific Reporter, 156; Wood on Insurance, p. 149, note.
    Third. The policy is to be liberally construed in favor of the insured. Exceptions to the risk and forfeitures are to be taken most strongly against the insurer. 1 Arnould on Marine Insurance (ed. 1850). p. 65, note; May on Insurance, § 175, pp. 205, 206-; Wood on Insurance, § 59, pp. 140, 141; Id., § 67, pp. 157, 158; 1 Phillips on Insurance (ed. 1853), p. 85. § 131.
    Tlie written portion of the policy prevails over the printed part. 1 Arnould oil Marine Insurance, § 46, Rulev; May on Insurance, § 176, p, 184.
    Fourth. Full and complete effect must always be given to the written description of tlie risk. It must not be destroyed even in paré, in order to give effect to a conflicting printed clause. To do so would make tlie printed override tlie written. Wood on Insurance, p. 129 ; Id. § 63. i>. 149; Id., p. 150; Plinsky vs. Insurance Company, 32 Fed. Rep. 47.
    Fifth. As tlie printed words are general, intended for any like occasion, and the written were specially selected for the particular instance, the latter, in a case of conflict, will prevail. Still, interpretation will reconcile all where it reasonably can; and, as a means to this end, will give greater weight to the written parts than to the printed. Robertson vs‘ French. 4th East. 130, 136; Bishop on Contracts, 415; Hernandez vs. Sun Mutual, 6th Blatcli. 317; American Express Company vs. Prnckney, 29th 111. 392; Howard Fire Ins. Go, vs. Brunneer, lltli Harris Pa., 50 ; Chadsky vs. Guinn, 97 H. Y. 333. See also Clark vs. Woodruff; 83 H. Y. 518.

      Thomas J. Semmes for Defendant and Appellant:
    1. The bringing of an action at law on a policy of insurance and prosecuting it to judgment, is a conclusive election to consider it as expressing the true contract between the parties, and an abandonment of any attempt to have it reformed in equity. Washburn vs. Insurance Company, 114 Mass. 175; May, Insurance, section 566 ; Wood, Insurance, section 808; 1 Duer, Insurance, p. 74; 90 New York. 428; Taney’s Rep. 277.
    2. Heither a policy ol* insurance or other writteu agreement can be reformed unless a mistake be made by both parties, so that tlie intention of neither is expressed; or, if the mistake be on one side, there must be fraud on the other in talcing advantage of the mistake and obtaining a contract with the knowledge that the one is dealing with him in error. Bryce vs, Lorillard & Co., 55 H. Y. 243 : Insurance Company vs. Davis, 131 Mass. 318; 78 H. Y. 618 64 H. Y. 456; 59 H. Y. 244; 2 Crunch, 441; 7 Ann. 228; 50 Md. 524.
    3. A mistake as to the legal effect of the instrument is no ground for its reformation. 40 Ark. 167 (55 Am. R. 571); Prescott vs. Cooper, 37 Alin. 553.
    4. The mistake must bo proved beyond a reasonable doubt. 64 H. Y. 456; 63 Ala. 488; 67 Cal, 317; 30 Fed. R. 862.
    5. Tlie mistake must arise from ignorance, surprise, or misplaced confidence. 65 Ga. 103 ; 90 Pa. 228.
    (i. And no evidence is allowed to prove the mistake unless the policy was written differently from what was agreed on. Insurance Company vs, Huntzinger, 98 Pa. 47.
    7. Ordinary diligence must boused to discover the mistake. 70 Ga. 794.
    8. It is no excuse that plaintiff did not read the policy till after the loss. 21 tt. C. 24 (57 Am. It. 669); 114 Pa. 398.

      .9. Failure to bring suit for reformation until the loss has occurred is an unfavorable circumstance. Steinback vs. Insurance Company, 77 U. Y. 498.
    10. Unless there be a contradiction between the written and printed clauses of a contract, both must be enforced, because, in such case, the written do not control the printed words. Grierson vs. Insurance Company, 6 N. S. 55; Hunter vs. Insurance Company. 11 Ann. 139; Joyce vs. Insurance-Company, L. It. 7, Q. B. 583.
   Tlie opinion of the Court was delivered by

McEnery, J.

Jacob Weinberger and John Julia, commercial partners, engaged in the fruit trade in the city of Galveston, bought the steamer James H. Geary, of Woodward & Wight, of the city of New Orleans, and had lief repaired in said city, and insured in the Merchants’ Mutual Insurance Company. The repairs were made under the supervision of W. M. Baker, marine inspector for the company.

In November,. 1882, on a voyage from Galveston to Vera Cruz, the Geary encountered severe-gales and was so damaged that she was condemned and sold,

Plaintiff bring this suit to recover on said insurance policy of the defendant company the sum of five thousand four hundred dollars and eighty-seven cents, with five per cent interest from March 1, 1883.

In the United States Circuit Court, suit No. 10,308, plaintiff sued the defendant company in a suit at law to recover on said policy, and after-wards in suit No. 10,957 in equity in the same court for the same purpose, praying that the policy be reformed by striking out the printed clause prohibiting the use of Texas and Mexican ports, and that on the policy as amended judgment be rendered against the company.

Defendant excepts peremptorily to the petition in this suit, alleging as a reason therefor the proceedings in the above suits in the U. S. Circuit Court. In suit No. 10,308 plaintiffs declared on the policy in a suit at law, and are estopped from suing to reform the policy; and in the equity suit 10,957, the matters in dispute were finally determined and are res adjudicata.

In the first suit, No. 10,308, there was a judgment of non-suit only. After the dismissal of the suit plaintiffs were at liberty to bring another suit. • The judgment decided nothing.

In suit No. 10,957 in equity, after several pleas, amended bills, etc., there was on a demurrer of defendant, a dismissal of the suit for want of proper parties. In neither suit was there a final judgment and in neither case a plea of res adjudicata or estoppel is sustained. There is no inconsistency in the demands made in said suits and the pending suit. The judgment of the lower court overruling the exception was correct.

Defendant moved to compel plaintiffs to elect whether they would proceed on the demand to reform the policy, or on the policy itself. The evidence was correctly overruled. There is no inconsistency in the alternative prayers of plaintiffs, and if the allegations in a petition will warrant equitable relief, this court, under the well-recognized jurisprudence of the State will grant it. Such is the prayer of plaintiffs in their petition. Art. 21; 1964 et seq.

Defendant answered, denying any liability on the part of the company, that the vessel was damaged and the loss occasioned by a violation of a prohibitory clause in the contract of insurance made between plaintiffs and defendant.

The application for the policy 'of insurance was made on the 2d day of May, 1882, on the blank form furnished by the company as follows: “To navigate the Gulf of Mexico, the Carribean Sea and the Antiantic Coast as far up as Boston.”

Tn the body of the application preceding the signature, in plain type, the following forms a part of the application : “ This application is made and accepted, subject to all other clauses and conditions in the policies of the company.”

The clause and condition in the policy referred to, and which is the matter of contention in this case, is as follows : “ Warranted by the assured not to use port or ports iu Eastern Mexico, Texas nor Yucatan, n'or anchorage thereof during the continuance of this insurance.” Plaintiffs’ right to recover depend upon a construction of the last clause, whether or not it forms a part of the contract. They contend that it was well understood that the intent was for plaintiffs to navigate the Gulf of Mexico and Carribbean Sea, to use the ports of Mexico and Texas, without exception, and that said clause of warranty prohibiting the use of said ports should be stricken out. In order to obtain relief it is incumbent upon plaintiffs to show that there is some conflict or inconsistencybetween the written and printed parts of the contract, and that the latter controls and conveys the intent of the parties to the contract, or that there was an error añade by both in the contract, so that the inteaitioai of neither is expressed, or if there was error on one side it was the result of some artifice or fraud oai the part of the other, or that the contract was executed oai the part of plaintiffs on his coaistrnction of the intent and meaning with the express or implied consent of defendant.

The writteai part of the application forms a part of the policy, and is copied and incorporated in the policy, and thus the application aaid the policy form but one contract.

The policy was delivered soane fifteen days after the application was aiiade. The assured cannot plead ignorance of the clauses in the policy. It was tlieir duty to read the policy, so as to determine whether or not it was made in accordance Witli. the application. The defendant company insures vessels navigating the seas, but has clauses in its policies excepting certain ports and localities from its risks. A person dealing with an insurance company ought at least to know the general course of its business, and in the application, if he desires exceptions in policies to be avoided, he ought to state the fact in his application and be willing to pay the additional premiums for the risk.

It is a maxim of the law that words referred to are considered as incorporated.

Verba Mata in esse videntur.

And the same rule applies where a particular clause refers to another clause in the same instrument, or to one disconnected from the instrument to which reference is made. The clause in the application for a policy of insurance on the Geary referred to a clause containing exceptions in the policy with reference to certain ports. This clause formed a part of the' application though it had been written or qninted in it ; To cover hull, apparel, etc., of steamer James A. Geary to navigate the Gulf of Mexico, Carribbeau Sea and along the Atlantic Coast, as high up as Boston, the assured not to use port or ports in Eastern Mexico, Texas or Yutatan, nor anchorage thereof during the continuance of this insurance.”

When there is no ambiguity requiring explanation in the language of a written contract, and the intent is plain and complete, no evidence will be admitted to give any other construction to it than that which is so plainly expressed. C. C. 1945-1956.

Neither equity nor usage can be resorted to in order to enlarge or restrict that intent. C. C. 1963.

Authorities are cited by plaintiff to show that the contract of insurance should be construed in the manner in which the assured understood. This is undoubtedly true when the intent is doubtful, and is so expressed in Articles 1956 and 1957 C. C.

The evidence in the record does not convince us that the insurance company had any knowledge of the intention of the owner of thé Geary to' put her in the trade between Galveston and Vera Cruz.

There is some conflict in the the testimony of Fourchy, the President of the Company, and W. M. Baker, the inspector, on the one side, and Wight, for plaintiffs, on the other.

Fourchy and Baker deny all, knowledge of any intent on part of plaintiffs to employ said vessel in commerce with any of the prohibited ports.

They say, on the contrary, after her employment between Mobile and Hilvana, she was to l>e used in the fruit trade with the Bahama Islands. Pearl Wight says his firm was negotiating with the owners of the vessel to take a cargo of lumber for the M. C. R. E. to Tauipico, and that he tolcl, Mr. Fourchy, when negotiating for tlie policy, that Sshe might want to g'o to Tampico. There was no agreement and no contract for this proposed voyage.

That nothing was said to Fourchy, tlie president of the company, about excepting Texas or Mexican ports from the prohibitions in the policy, is evident from Mr. Wight’s answer to an interrogatory : I think that the only thing that was talked about that I have any' recollection of was about allowing her to run North, and this man stated that he might want to send her East for repairs, and that’s why the Boston clause was'pnt in there.” The fact that Galveston was tlie hailing port of tlie vessel is of very little consequence. A vessel may hail from a port and be employed during her life in distant seas, and never again visit her home port.

. Plaintiffs contend that the defendant company issued policies and paid losses on the Silver Wing and Daybreak in each of which may be found printed clauses warning against the use of Mexican and Texas ports, similar to the clause in the policy sued on. But the written applications and tlie written parts of tlie policy allowed the use of these ports. In the instant case there is no such permission asked in the application or granted in the policy. Evidence showing that tlie insurer and insured meant to make a certain contract, but that misconception of the effect of the language and terms in the policy defeated their intention, makes a proper case for its reformation.

The evidence in such case, however, must be clear. If there be a substantial doubt as to what was the statement of the applicant, or as.to the fairness of his claim to have been mistaken, or tlie agreement ot the parties, or a material conflict of testimony, the court will not aid the plaintiff. The affirmation is upon the plaintiff, and he must show what statement. lie made and what the. agreement Was. May on Ins. § 566, p. 871.

Tlie plaintiff's have failed to show that there is any ambiguity or doubt in the policy widening the contract, or that the intention of the parties was other than that expressed in the. insurance contract, or that there is any contradiction between the printed and written clauses of the contract.

The judgnient appealed from is therefore avoided, reversed and annulled, and it is now ordered that the demand of plaintiff J>e rejected with costs.


author: Bermudez, C. J.

text:
    No. 10,192.
    Mrs. Malvina C. Collier, Tutrix, Etc., vs. Morgan’s Louisiana and Texas Railroad and Steamship Company.
    A motion for security for costs, under section 4 of Act -130 of 1830, is not án appearance which goes to the merits of the suit. It is not a contestation of any point or matter raised by the action as set forth in the petition. It is au ex parte proceeding, a matter of right, which is to relieve the defendant from making any appearance for a contest of any kind imtil his demand has boon satisfied.
    ¿service of a petition and citation addressed to a corporation, is fatally defective and bad, when made on one who is not a legal representative of such corporation, authorized to receive legal process.
    A citation and service thereof are the foundation of the suit. The same cannot be considered as waived unless by a renunciation, or by au appearance putting at issue some matter represented by the petition, the object of which is intended to be detrimental to the proceeding or the action.
    APPEAL from tlie Civil District Court for the Parish of Orleans. liujhtor, J.

      Charles Carroll and IFornor di Lee for Plaintiff and Appellant.
    1, The filing, by defendant, of a motion for security for costs, under section 4, of Act No. 13G, of 1880, precludes him from subsequently questioning the validity of the service of citation upon him. Succession of Baumgarden, 35 Ann. 130; Foote vs. New Orleans, 20 Aim. 22; Lee vs. Goodrich, 21 Ann. 278; Collins vs. Briggs, 5 La. 258 ; City vs. Hall, 21 Ann. 438'; City vs. Walker, 23 Ann. 803; Tutorship of Heirs of Byland, 38 Ann. 759; Bartlett vs. Wheeler. 31 Ann. 543.
    2. Personal service of citation upon the president, or in his absence from the City of New Orleans, upon the secretary of defendant, under section 12 of its charter (Act No. 37, of 1887), is not the only mode of briuging it info court. The first clause of the section, did not have the effect of repealing the fourth paragraph of Article 198 of the Code of Practice: hence, the clause and the *paragraj>h must, if possible, be so constructed that both may stand. To hold that the clause, instead of conferring a privilege or exemption, placed defendant in duriori casa, than the other corporations in the State, by adding the secretary to the -list of officers upon whom citation may be served iiersonally, at any place in the • city, still leaving it subject to the opei'ation of the paragraph of the article that x>ro vides for a service upon an agent, or employee, of a corporation, at its office, reconciles the clause and the paragraph, and such is the proper interpretation to be placed thereon. St. Julienvs. R. R. Co., 39 Ann., 10G4.
    :L When a defendant attacks a citation, aud introduces oral evidence to show that the return thereon is not true, the doors are then thrown open to plaintiff for the introduction of evidence. to show the facts of the service, and if they make it olear that it was properly made, the validity of the citation will be maintained, and. if need be, the return amended iti accordance therewith. Mohr. Kanneman & Co. vs. Marks, 39 Aim. 578; Adams vs. Basile, 35 Ann. 101.
    4. A service of citation, upon a civil corporation, by leaving it at its office in the hands of one of its agents or employees, is good, although the president or other officers, ívpon whom personal service is permitted, be not absent therefrom, at the time of such service (C. P. 198). The rules governing the service of citation upon individuals at their domiciles {(’. P. 189), are not applicable to corporations.

      Leovy & Blair for Defendant and Appellee:

      1. The defendant is a corporation created by a special act of the Legislature, which confers It certain privileges and advantages not enjoyed by corporations organized under the general law. Act 37 of 1877.
    2. When the special provisions of defendant’s charter differ from the general provisions of Hie Code of Practice on the same subject matter, it will be presumed that the Legislature intended to relieve the defendant from the operation of the general law and to confer on it the advantage of being governed by the special provisions of its charter. Heirs of Gossin vs. Morgan’s Co., 36 Ann. 186.
    3. Section 12 of defendant’s legislative charter provides that it must be cited into court by service made on its president, or, in his absence, on its secretary. Hence, a service of citation on any other officer or agent is fatal to the citation, especially in Hie absence of proof that service on the president or secretary was impossible by reason of tlieir absence from the city. A fortiori is the citation null and void when it is shown that both the president. and the secretary were present in the city, and that the person upon whom service was made was not even an agent or an employee of the defendant.
    4. The court will presume nothing in aid of a citation. Nothing will cure a dafectivo or null citation except the appearance of defendant and contesting the suit on some other ground than the want of citation. Mo-Mi citen vs. Smith, 5 jN. S. 428; LeBlanc vs. Perroux, 21 Ann. 27.
    5. When the absence of a party is essential to the validity of a citation, the court will presume nothing in respect to his absence. It must be proved by the plaintiff. McMicken vs. Smith, 5 !N. S. 428.
    6. Tho statement in the sheriff's return that the party upon whom service was made was an agent or bore some other relation to tho defendant is no proof of the agency oi* the relation stated. Jacobs et al. vs. Sartorius et al., 3 Aim. 9; Johnson’s Executor vs. Brown, 18 Ann. p. 334.
    7. The filing of a motion for a bond for costs in this case was not a waiver of the defects in the citation.

      a. The law gives the right to a boud for costs to any defendant “ in any cause or proceeding” in which costs may bo incurred. Acts of 1880, p. 190.

      I). When, by tlie institution of this suit, and the attempted citation of defendant, it became necessary or proper for defendant to come into court to have the validity of the citation settled, there arose a “cause or proceeding” in which costs had to be incurred. To deny defendant the right to security for costs would he to create an exception to the law entirely unauthorized by its terms.
    c. The reservation in the motion that defendant appeared “solely for the purpose of moving for a bond for costs,” shows that the defendant had no intention of waiving anything. The costs expected to he incurred and intended to be secured were the costs of the impending litigation over the validity of tho citation.
    rZ. The appearance of defendant which amounts to a waiver of defects in the citation is his coming into court to contest the suit on some other grounds than want of citation. 5 2ST. S.429; 4 L. 91; 5 L. 258; 9M.497; 10 R. 140; 1 Ann. 323: 3 Ann. 9; 21 Ann. 27.

      a. A motion for a bond for costs is not. a contesting of the suit. It is ex parte. It contests nothing which plaintiff asserts. Its object is to avoid the necessity of contesting* anything until the desired security is furnished.
    8. Tho courts require strict compliance with the law in serving citations under penalty oí’ dismissal of the suit. Jacobs et al. vs. Sartorius, 3 Ann. 9; Louis vs. Smith, 24 Ann. 617; 18 Ann. 336; 5 N. S. 428. *
   The opinion of the Court was delivered by

Bermudez, C. J.

The xdaintiff appeals from n judgment dismissing her suit on an exception to tlie mode of service of the citation issued in the case.

It appears that the petition was filed December 29, 1888; that citation was served on the same day, on one Pay, stated in the sheriff’s return, to he the secretary of the defendant company; that on the 7th day of January following the defendant made a motion solely for the purpose of obtaining security for costs, under section 4 of Act 136 of 1880; that on the 12th of January next an exception was filed attacking the correctness and charging the nullity of the sheriffs return, on the ground that the person named therein, as that on whom the service of the citation had been made, was not and never has been the secretary of the company, the consecprence being that the sheriff had no authority to make any service on him.

On the trial, the defendant, as plaintiff in exception, offered to introduce evidence to show the falsity of the return; to the admission of which the plaintiff objected, on the ground that by appearing in the case to ask a bond for costs, the defendant had estopped itself from assailing the validity of the citation and of the service thereof; but the court having overruled the objection, the proof was received, and the plaintiff excepted.

I.

It is merely elementary that a citation and service thereof are the foundation of a suit, and that the same cannot be considered as waived, unless by formal renunciation, or by an appearance putting at issue some matter presented by the petition, the object of which is detrimental to the proceeding, or to the -action. The Code of Practice, Article 206, distinctly provides: Citation being the essential ground of all' civil actions in ordinary proceedings, the neglect of that formality annuls “ radically all proceedings liad, unless the defendant has voluntarily ap- “ peared and answered the demand.” 5 N. S. 429; 4 L. 91; 5 L. 258; 10 E. 140; 1 A. 323; 17 A. 91; 21 A. 27, 438; 230 A. 803; 31 A. 540; 35 A. 130; 38 A. 759.

This is so much so that it has been held that an appearance tor the purpose of setting aside a Writ of arrest, is not such as can he treated as waiving a defective citation. Jacobs vs. Sartorius, 3 A. 9.

In the. present instance, it does not appear that any such appearance was.made l>y the company.

The motion for security for costs is, out of caution, carefully guarded. It distinctly states that the .company appears for the sole purpose of demanding the bond for costs. It is a proceeding necessarily ex parte, a subject, which required no bearing of the plaintiff, as the right of a defendant of requiring' such is-peremptory, and the order of eourt following the motion, is one which, as a matter of course, must he granted, and is one about which the Judge exercises no leg'al discretion, save incidentally as to the amount for which the bond is to he furnished.

It is an appearance which puts at issue none of the matters set forth in the petition, either as to jurisdiction, sufficiency of the cause of action averred, res judicata, prescription, or any other defense, the purpose of which would he to have the cause disposed of, on account of any averment in the petition. Its object is simply to dispense the defendant from making any appearance, or setting up any such defenses, or joining issue on any point, until the requirement for a bond for costs, under the Act of 1880, is complied with.

It is therefore apparent that the mere appearance for the sole purpose of asking the bond for costs, cannot he treated as one, the effect of which was to prevent the defendant in the ease from urging any defense, after the motion for security had heen made and the security asked, furnished and accepted.

The district judge, therefore, decided correctly in overruling the objection to tiie reception of the testimony proposed to impeach the intrinsic correctness of the return.

II.

The evidence adduced, written or oral, conclusively shows, that Mr. Bay, oh whom the service of the petition and citation was made, was not and never had been the secretary of the defendant company.

He says that ho informed the deputy sheriff who made the service, that he was the plionographer and private secretary of Mr. Hutchinson, the president of the defendant company, who was not then in ; that he and the deputy went to the office of the attorneys of the company ; that he handed to one, of them the papers, stating the absence of the president and asking whether he should accept it; that, on being answered no, that lie had no right to take them, lie handed them to the deputy sheriff, telling him t.o serve them on Mr. Hutchinson ; but that the latter would not take them hack ; that he subsequently gave his name to the officer ; that he is positive, he never told the deputy that he was the secretary of the defendant company ; that he never was such secretary ; ape.

The minutes of the hoard of directors of the company of April 5, 1887, offered in evidence, show that, on that day, A. C. Hutchinson was elected president, and John B. Richardson secretary. The latter heard, says that there had heen no change in the officers then elected, between that day and January, 1888.

Tlie deputy sheriff who nítido, the service, testified that Mr. Eay had •stated himself to he. the secretary.' 'fids officer must necessarily have misunderstood Mr. E;iy, who cannot be presumed to hove 'perjured himself.

it is an important feature in tills ease, which militates victoriously in favor of flic correctness of Mr. Eay’s testimony that lie and the deputy went together to the office of the attorneys of the. company, and that there, he was told that lie liad no right to receive the. pajic-rs, nnd that he returned them to tlie sheriff, who declined receiving them.

'Pile information was then and thus brought home clearly to the. officer of the court, in unmistakable language, that Eay was not the proper person oil whom a legal service could be made.

The fact being clearly established that the. service was made on one who had no capacity whatever to represent tlie defendant company, it would serve no useful purpose to follow counsel in the dissertation in which-they have indulged touching the interpretation to be put upon Article 198 (!. J’., and section 12 of the Act of Incorporation of the company, which bears No. 37 of 1877. Tt is enough that the service was made neither under the. provisions of the one nor of those, of the latter, to say that the legal requirement was not observed.

Considering, therefore, that the service of the petition and citation was fatally defective and bad, the exception was properly sustained.

Judgment affirmed.


text:
    No. 10,263.
    The State ex rel., Daniel Cohen vs. T. C. W. Ellis, Judge of Civil District Court for the Parish of Orleans.
    1. A mandamus will issue to direct the trial of a case in which the judge lias refused to go into the merits of the action on an eironeons construction of some question of practice •preliminary to the whole case.

      2. Although, by the statute and by the order of court, accepting a surrender, all proceedings against- tlie insolvent and his property, are stayed, still they do not abate.. The statute distinctly provides that they shall be continued after the failure against tlie syndic.

      A. A suit brought by a creditor against parties who subsequently fail, can he tried contradictorily with the syndic, alone, when the projierty out of which the claim is expected to bo satisfied is not in the hands of the syndic. It cannot he required that such a case becumulated with the insolvency proceedings and primarily dete/nnined contradictorily en concurso, with all the other creditors, although the suing creditor claims a preference or privilege.
    I. Tlie judgment, films rende.red would uofi be conclusive on tin; creditors if sought to be. e.nforoed against ilie assets of filie insolvency; but must remain subject to filieir objections and eould noi be executed, unless contradictorily with them en concnno.

      yyPPLICATiON for Mandamus.

      Bayne, Deneyre dr Bayne for the Relator:
    Relator, having sold sugar which was not paid for, sequestered the «amo under tho privilege granted by Arfado 3227 of’ the Civil Code, which has been always maintained by this court. ‘ 38 Ann. 12: 37 Aun. 53.
    The intervenor, claiming to hold tho sugar under a bill of lading', applied to the court for permission, which was obtained, to bond the sugar and have it restored to its possession, conditioned to produce it, etc. After the sugar had been released to intervenor, the defendants made a cession of thoir propovty: the case was transferred to the court in which the insolvency proceedings were pending, syndics were appointed who filed their answer, and in due eourso the case was called for trial.
    The plaintiff and defendants being ready for trial, the intervenor objects on tho ground that the case can only he tried in the matter of Haynes & Rogers vs. Tlieir Creditors, and upon tableau of distribution, and to this the answer was given: First, that the intorvenor has no right to interfere in tho trial; and, second, that there is nothing to distribute; that the syndics have nothing in thoir possession or control, and cau have nothing until the rights of relator and intervenor are first settled, and these must he settled in the original suit as a condition precedent to going- into comuna. C. P. 391. 394: Romum's Digest. Pleadings, viii (d) 1), p. 1177, Mo. 1, p. 1178. Mbs. 5 and II; (ivainer vs. Devlin, 1 La. 171; Marigny vs. «Johnson, Syndic, 3 M. S. 551.
    The J migo sustains the exception of the intervenor, and thus there is u block interposed to all further proceedings, and the intervenor having obtained possession of the property sei'/cd. denies the right of any party to enforce, his bond or to proceed to trial to determine the rights of the parties.
    Where there is a legal right, there should bo a legal remedy, and all relator asks is that he may have such remedy through the courts.
    We respectfully ask the Court to afford ns the relief to which we are entitled.

      Crtrlclon BunI for the Defendant.
   The. opinion of flic Court was delivered 1),)'

Bermudez, C. J.

This is an application for a mandamus. The complaint is that the district judge, refuses to try a suit brought against certain parties and in which an intervention had been tiled, the. defendants subsequently surrendering to their creditors.

The refusal is based on the ground that the suit cannot be tried separately from, but must be cumulated with, the insolvency proceedings and determined contradictorily with the. creditors en- eonenrxo.

The district judge returns in that sense, adding that the question had been previously determined by bis predecessor, he drinks, correctly.

it appears that Oohen, the relator, brought suit against Haynes & Rogers for the price of certain sugar sold them, sequestered within live days after the sale, and that the Union National Rank intervened, claiming the possession of the property seized, which if obtained, after some litigation, on bonding it. Haynes & Rogers vs. Creditors, 40 A. p. —

A few days after the. bringing of the, suit, the defendants made a cession to their creditors.

The suit which had been allotted to one division of. the court, was transferred to another to which the insolvency had been allotted.

Issue having been joined, the case was iixed for trial and was about to be proceeded with, when the intervenor objected to a separate trial, on the ground, that the suit cunmmlates with the insolvency proceedings and is to be tried contradictorily with whom it may concern.

The objection was sustained by the trial judge, who was since succeeded by the defendant judge, to whom an application was made to proceed with tlie trial of the case, separately, which was declined for the reasons already stated.

The present proceeding is brought against both the judge and the syndic.

The latter answers that neither the property nor the bond representing it has come to his possession; that he has nothing upon which a contest can bo based and which can be placed upon any tableau of distribution, and that the rights of plaintiff and intervenor, seem to be .necessarily precedent to the exercise of any power by him.

Though not made a party defendant — the proceeding being strictly addressed to the judge, (C. P. 829) — the bank has filed a brief adverse to relator, claiming that the case is not one in which a man.damns can issue, as the ruling complained of can be reviewed on appeal and that, even then, the ruling is correct.

Relatively to the question of our jurisdiction to allow the relief now sought, it suffices to say, that it is a settled rule, expounded by this Court, that a distinction is recognized between cases in which it is sought by mandamus to control the decision of the inferior court on the merits of a cause and cases in which it has refused to go into the merits of the action, upon some erroneous construction of some question of law or practice, preliminary to the whole case. High on Ex. Rem., $ 151 ; State ex rel., Chism and Boyd vs. Judge, 34 Ann., 1178.

The precedents to which reference is made to establish that mandamus cannot be. allowed where an appeal lies from the order or decree complained of, are of cases originating under the previous Constitutions, which did not vest, as the present does, the Supreme Courts with supervisory jurisdiction and control over inferior courts. Article 90.

The question now, therefore, arises : Whether the refusal of the juged to try the case as an independent controversy is or is not well founded f

It is evident that, under the general provision of the law, relative to the disposition made of suits brought against parties who subsequently sum']Kiev to their creditors, the transfer of the, suit from the, division before which it was pending, to that which had acquired jurisdiction over the cession, was legal and proper.

The, Code, of Practice, Article 165, § 3, distinctly provides that all such suits must be, carried before the court- in which the failure was declared; but it does not say what is to become of it there.

In 1855, (Act, No. 322), §33, p. 437) the Legislature, reviewed the 33d section of an Act of 1817, p. 308, which is to the effect, that all suits thus brought, anterior to the failure, shall he transferred to the court in which the insolvent debtor shall have presented his schedule and shall he continued against Itis syndic. R. S.1816.

The contention here is that such suit cannot be heard and determined contradictorily with the syndic only, as an independent and distinct suit, but must be cumulated with the insolvency proceedings and determined contradictorily with the creditor's en concurso. The distinction is conceded'that although a suit, for the recovery of a sum of money could be thus tried contradictorily with the syndic alone, and not en concurso, this cannot he. permitted when to the claim is coupled a prayer for preference and privilege.

Reference is made to authorities to maintain that, position; but they do not apply, for the obvious reason, recognize,d in Tenny vs. Provosty, 14 Ann. 221, that the property teas in the hands o f the syndic, which is not. the ease here, and that the objections were, raised by syndics or creditors and not by parties not involved in the cession.

In those eases in which the Act of 1817 was ignored, it was surely well said that the Court could not, render a judgment allowing dually a preference, or privilege, which would hind the. creditors, as the, property out of which the claim was expected to be satisfied was in the hands of the syndic.

The rule is, therefore, the other way; when the property, or wliat represents it, is not in the hands of the syndic, although, even then, the judgment would not conclude the creditors. When sought to he enforced against the property in the hands of the syndic,— the other proving insufficient,— it should be established contradictorily with them at concurso. See cases of Nicolopulo, 37 Ann. 472, and of Jaquet, 38 Ann. 864.

The text of the Act of 1817, which is to be found as section 1816 of the Revised Statutes, goes further than the (lode of Practice. It not only declares that the suits brought anterior to the failure should he transferred, but continued against the syndic.

Surely when a debtor surrenders, and liis,cession is accepted by the Court for tlie creditors, all proceedings against him and his property arc, by the lav and the order of the judge, stayed; but those proceedings do not abate; — the statute directs that when pending before a different court they shall be transferred to that in which the schedule has been presented, and shall be there continued against the syndic.

It does not say that the suit shall he cumulated with the insolvency proceedings and tried contradictorily with the creditors en concurso..

In the settlement, as well of successions as of insolvencies, creditors have several remedies..

They may present their claims for recognition to the succession or insolvency representative, and, if not recognized, they may sue directly either official, or oppose an account, or tableau of distribution.

As a rule, a direct suit may be of great benefit, as it may possibly intercept prescription and may secure property against an illegal or nnjust disposal of it, or serve some other useful purpose.

When the claim is judicially recognized, the judgment authorizes the plaintiff to enter appearauces in the mortuoria, or in the. insolvency, which may l>e to his advantage, and thus' dispenses with proof of his interest, when he first asserts it; but this judicial recognition gives no more authencity or validity to the claim than would an ordinary acknowledgment by the succession or bankruptcy representative could have done, as- such recognition would itself be barren of effect until admitted by tlie account, or established by judgment on an opposition to it, which, as a condition precedent to .satisfaction of the claim, must have been homologated.

No doubt,-it might he preferable, in the interest of the plaintiff in the suit in question, now that his claim is in court and issue has been joined on it by the. syndic and an intervention has been filed, to have it treated as an opposition to the account to he filed by the syndic; but he may have reasons satisfactory to himself to act as he does, and he, cannot. he controlled in the exercise, of his rights as to the discretionary form in which he chooses to present them.

The judgment in the ease in question, although it should not conclude, the syndic or the creditors, will have this good result that it will set at rest all differences between the plaintiff and the, intervenor. From that standpoint, at least, the proceeding should he continued, tried and determined as it stands.

Had the syndic made, the objection, pressed by the intervenor, to the trial, it might have lmd some weight, as the insolvency 1ms a contingent interest at stake, should the plaintiff and the intervenor fail; but, coming from the latter, to whom it must he a matter of utter insignificance should plaintiff recover, and how the case is tried, whether separately or contradictorily, en concurso, it can hardly be considered. It does not lie in the mouth oí the hank to set it up, particularly its the syndic asserts that he has possession neither of the property, noi'of the deli very-bond, and that the rights of the plaintiff and of the intervener are necessarily precedent to those of the insolvency.

The rights of the latter are, to some extent, recognized by the relator, for, be admits that, when the controversy between him and the bank shall have' been determined, if relator is successful, the syndic will be entitled to receive the proceeds of the bond and distribute them by the tableau contradictorily with all the creditors ea concurso;

The conclusion reached is, therefore, that as the plaintiff in the suit Insists that the trial of his case he continued against the syndic alone, the suit, cannot be treated as necessarily cumulated with the insolvency proceedings, and as to he determined only contradictorily with all the creditors m concurso.

ft is therefore ordered and decreed that the mandamus sought be made peremptory, and accordingly, that the respondent do proceed to try the merits of the suit in question without prejudice to any of the rights of •the creditors of the insolvent to resist the judgment to be rendered, however it may go, whether in favor of plaintiff or of inte,wen or, and that, relator recover his costs.

Mr. .Justice Fenner recused himself.