author: Watkins, J.

text:
    No. 11,669.
    Henrietta Guglielmi vs. Louis Geismar.
    Notwithstanding a sale is per aversionem, and not, on that account, entitling the purchaser to any repetition o£ price on account of diminution in quantity of land received, yet a different question arises when, on trial, the fact is disclosed that there is a break in one of the boundaries. In such case the purchaser is entitled to go to the boundary, and if he can not, he has a legal claim for the deficiency in quantity.
    APPEAL from the Twentieth Judicial District Court, Parish of Ascension. Guión, J.

      B. N. Sims, H. Heidenhain and Dinkelspiel & Hart for Plaintiff and Appellee.

      E. N. Pugh and J. L. Bradford for Defendant and Appellant,
   The opinion of the court was delivered by

Watkins, J.

When this ease was last before us the facts were carefully stated, and we need only make reference to our opinion. 46 An. 280.

The defendant resisted the executory proceedings of his vendor, seeking the foreclosure of a mortgage, on the ground that there was a deficiency in the quantity of land sold — the alleged deficiency being four hundred and sixty-three and seventy one-hundredths acres, and under his prayer for general relief he makes claim for a proportionate diminution of the purchase price.

The plaintiff tendered the exception that the defendant’s opposition disclosed no right of action, on the ground that the sale was one per aversionem, and the land conveyed was embraced between well-defined boundaries; and that exception having been sustained and the suit dismissed, defendant appealed.

The governing principle of our decision is contained in the following extracts, viz.:

“ If the sale was a sale per aversionem, and the title, as the issues are made, is valid as to all lands within the boundaries, and there was no error regarding the boundaries themselves, the exception was properly maintained by the court a qua. The decisions uniformly are that calls in a deed fixing the boundaries of the land conveyed by lands of adjacent owners will control, when those boundaries are well defined; and that where the metes and bounds are given by the deed, and the quantity of the tract of land, the former, if they are well established, will prevail, although there is a deficiency in the number of acres. (Our italics.)

“ In other words, if there be error as to quantity, but none as to boundary, the purchaser can not claim on account of diminution in the number of acres in the absence of all attempts at concealment and fraud.”

Again: “ We have not found a case in which it was held that the established and well-known boundary line of the four sides of a tract of land shall not control the location in a bona fide sale of land thus bounded.

“Courses, distances, admeasurements and ideal lines upon the ground yield to the known and fixed measurements, whether natural or artificial.

“ These being the g..verning principles, they must control the issues in the ease at bar.

“ The allegations being admitted as true, the plaintiff is, at this time, in the attitude of having admitted for the purpose of the exception that a small portion of the land in question is public land, and, that some of the land is in the possession of the owner of the Riverside plantation.” (Our italics.)

Entertaining these views we reversed the judgment cf the court a qua and remanded the cause for trial on its merits, and in order that the fact be ascertained as to “ how much, if any, of the land in question is public land ” and to what extent the Riverside plantation bounded in the rear the property in dispute.

When the cause went back to the lower court,'that question was tried and decided, and a second appeal on behalf of the defendant brings it here.

In his reasons for judgment the judge a quo says:

“ I am satisfied from the evidence in this case that the boundaries of the Waterloo plantation as set forth in the act of sale were well established at the time of the sale ” — describing them minutely as. ascertained by the evidence adduced on the trial.

That the surveyor who made a plan of the property testified that the lands in the rear of the rear boundary of the plantation “ were, in 1871, considered and known as part of the Riverside plantation.”' (Our italics.)

That “ the record shows that a short time prior to the purchase by the defendant, Geismar, of the Waterloo plantation, the owners of' Riverside plantation were actually placed in possession of the lands lying immediately in the rear of said Waterloo plantation and of the (rear) boundary line,'1'’ etc. • (Óur italics.)

' “It is true,” says he, “that the testimony shows that since the sale to Geismar, defendant, two small tracts of land forming part of Wafe?-loo plantation, viz.: eighteen and thirty-three one-hundredths (18 33-ICO) acres, at the northwest rear corner, and ten and seventy-eight one-hundredths (10 78-100) acres at the northeast rear corner of said plantation, making altogether twenty-nine and eleven one-hundredths (29 11-100) acres, have been declared subject to entry by the United States Land Department; but this quantity of land of which the defendant has been evicted does not form one-fiftieth of the total superficial area of land conveyed to him,” etc.

On this course of reasoning, predicated upon the facts detailed, the judge a quo dissolved the defendant’s injunction in toto, directed the executory proceedings to be consummated by sale of the mortgaged property, with the exception of the small parcels of land described, taxing him with costs.

We understand from the argument in this court that appellant’s counsel do not deny the correctness of the judge’s statement of facts, but concede that it conforms to the evidence. They do not deny that the evidence establishes a sale per aversionem, but their contention is that the judge has drawn improper conclusions of law from the facts stated in his reasons for judgment.

To put the defendant’s contention fairly, we make from their brief the subjoined extract, to-wit:

“ But it is certainly not open to question that we did show, to the entire satisfaction of the court below, an eviction from a part of the land within those bounds. In other words, defendant Geismar sustained his injunction in part, and was clearly entitled to a judgment under Revised Civil Code 2506 (2482), for all costs, under No. 8 of that article, and under No. 4 for a credit on the note sued on for the pro rata price of the thirty acres lost by the eviction, with eight per cent, per annum interest from date of sale, and damages, if any were' suffered. But the judge, confounding the sale with sales for quantity, under Civil Code 2494, and abandoning for the nonce the theory he was then acting on, that the sale was per aversionem, refused any relief for the eviction, because it was of a quantity far less than a twentieth of that called for in the title. Consistency required him, under Art. 2495, to hold that it was not a case of loss or diminution in measurement, but, under Arts. 2511 and 2514, a case for proportional restitution or remission of price because of eviction. Arts. 2494 and 2495 do not contemplate loss by eviction, but a loss suffered by vendee who buys under a deed calling for a certain amount of land and finds that the true measurement is more than a twentieth short. And Arts. 2506, 2511 and 2514 do not contemplate loss to the vendee by difference in the amount expressed in the deed and that actually found in the tract, but the loss he suffers when it is shown that his vendor had no title to a part of what he undertook to convey. These last three articles are parts of one harmonious whole or plan, and might be expressed in one. If the eviction be partial, under Art. 2511 the vendee enjoys the option to keep the residue of the land and demand pro rata restitution under Art. 2514, with the other relief contemplated in Art. 2506; or he may, under Art. 2511, show that the eviction has deprived him of his principal inducement to the purchase, and demand, for that reason, cancellation of the sale. In the present case, the court having found the fact of eviction from thirty acres, we are in a position to demand, under the prayer for general relief * * * that the cause be remanded, to let in proof on this point. ”

On this theory they submit the following propositions, viz.:

“If the court be of the opinion, after examining the proof, that the sale was by metes and bounds, and affirm the judgment on that point, in that event we ask that it reverse it as to the residue, and give us judgment for—

“1. The sum of three hundred and seventy-seven dollars and ninety-nine cents, being the pro rata value of twenty-nine and 11-100 acres, from which we suffered eviction.

“ 2. Interest on that sum at eight per cent, per annum, from February 18, 1891, till paid.

“8. Costs of executory proceedings and the injunction suit in the . District Court.

“4. Release from the obligation of paying five per cent, for attorney’s fees to plaintiff in executory proceedings.

“ 5. Costs of appeal.”

Indeed, counsel for defendant subsequently state in their brief (p. 7) that “the plaintiff in injunction accepts the finding of the District Judge to the effect that the sale was one by metes and bounds,” etc., but with full reservation of his rights above referred to, as resulting from the alleged error of the judge in respect to his conclusions of law.

At the outstart we have confronting us the following established facts as stated by the judge a quo and not denied by defendant’s counsel, viz.:

1. That the boundaries of Waterloo plantation, as set forth in the act of sale to the defendant, were well established at the time of .sale.

2. That the lands in the rear of the rear boundary of the plantation were, therefore, considered as part of the Riverside plantation.

3. That a short time prior to defendant’s purchase of Waterloo the-owners of Riverside plantation were actually placed in possession of the lands lying immediately in the rear, or the rear boundary line of' Waterloo.

4. That the two small tracts composing these lands were situated,, one at the northwest rear corner and the other at the northeast rear corner of the Waterloo plantation.

From this we understand that, notwithstanding the boundaries of Waterloo were, at date of sale to the defendant, fixed and well established natural objects, one of which was the Riverside plantation in the rear, certain tracts of land situated in the rear, and at two. different points on the rear line which had been theretofore considered portions of the Waterloo, were actually placed in the possession, of the owners of the Riverside, a short time prior to defendant’s purchase. That it subsequently transpired that the two small oracts at the northeast and northwest rear corners of Waterloo, respectively,, were public lands, and were taken up under the provisions of the-United States Homestead laws since defendant’s purchase.

With the exception of the deflection in the rear boundary of Waterloo plantation, t|iat is occasioned by these two small tracts, consisting of twenty-nine and 11-100 arpents, the entire boundary is complete.

Taking this deflection in consideration, it appears to create a slight departure from the rules governing sales per aversionem; the case being one of a purchaser who had bought under a title per aversionem, but who had not actually obtained all the land up to the-boundaries given in the deed.

It being a sale per aversionem, the purchaser was entitled, in case-of a survey, to go to the extent of the four boundaries mentioned in-the deed. And this is what we understand by the guarded admission of the defendant’s counsel. The question is sui generis, and’ comes within the purview of cur decree remanding the case.

Hence we think the defendant is equitably entitled to relief — that is, to the extent of the cost of the opposition and the actual value of' the twenty-nine and 11-100 acres of land described.

While there is nothing in the record positively fixing the value of' the twenty-nine and 11-100 acres above specified, yet it does appear-that since this litigation arose it has been taken np by homestead settlers, and, presumably, for a small price; and, as we are convinced that it is to the interest of all parties that the litigation should terminate, we will fix the value of said lands at two dollars and fifty cents per acre, the rate of double minimum government lands, and allow the defendant that sum as a proportionate diminution of the purchase price.

We are also of opinion that he should be awarded the cost of the litigation — without, however, disturbing any of the principles of law announced in this or the former opinion in this case; predicating our-opinion in this case on the theory that it is sui generis.

It is therefore ordered and decreed that the judgment appealed' from be annulled and reversed; and it is further ordered and decreed that the defendant in injunction be awarded the sum of seventy-two-dollars and seventy-seven cents, as a credit upon the demand of the plaintiff in the writ of seizure and sale, and that all costs be taxedj against the said plaintiff in execution and appellee.

On Application for Rehearing.

We are satisfied as to all the principles and issues decided in our opinion, and no additional statement is now considered necessary as to them; but we find that our decree is not.altogether as full and complete as it should have been. We will therefore reform and revise it so as to more fully express the judgment of this court.

It is therefore ordered, adjudged and decreed that the judgment appealed from, dissolving the defendant’s injunction in toto, be annulled and reversed; and it is further ordereI and decreed that the defendant’s injunction be sustained and perpetuated to the extent of awarding to him a credit of seventy-two dollars and seventy-seven cents ($72.77) on the mortgage indebtedness sought to be collected of him by the executory proceedings, and all costs of both courts, appertaining to the injunction alone, but in all other respects that the injunction be dissolved at the defendant’s cost, and the seizure and sale proceeded with.

Rehearing refused.


source: Caselaw Access Project

author: McEnery, J.

license: Public Domain

text:
    No. 11,701.
    State ex rel. Pleasant Gibson vs. Judge Eleventh Judicial District.
    Article 66 of the Constitution has reference to the present incumbent of the court, and he has authority by said article to sit with the Board of Pardons to hear and determine applications for executive clemency. It does not refer to the judge who presided at the trial, as he is no longer presiding judge of the court before which conviction was had.
    y^PPLICATION for a Mandamus.

    Farrar, Jonas & Kruttsohnitt for Relator.
    Respondent in propria persona.

   The opinion of the court was delivered by

McEnery, J.

This is a mandamus proceeding to compel the respondent judge to sit with the Attorney General and Lieutenant Governor “to hear and determine the application of the relator for pardon or commutation of sentence.” The relator was indicted for murder, pleaded guilty to manslaughter, and was sentenced, and is now serving his term of imprisonment. He has an application pending for pardon.

The respondent judge’s answer is, that he was not the presiding judge before whom the conviction of relator was had, and that Art. 66 of the Constitution has reference to the presiding trial judge.

Article 66 of the Constitution provides that the Governor shall, upon the recommendation in writing of the Lieutenant Governor, Attorney General and presiding judge of the court before which conviction was had, or any two of them, have power to grant pardons, commute sentences and remit fines and forfeitures after conviction.

The language of the article is plain and unambiguous. It provides for a board composed of certain designated officers to consider applications for pardons, commutation of sentences and the remission of fines and forfeitures for the purpose, in meritorious cases, of recommending executive clemency. The article says, the presiding judge of the court before which convictions were had. It can not refer to the judge who presided at the trial and who has since ceased to be judge. He is no longer the presiding judge, and the fact that be was judge at the time conviction was bad can not continue bis authority as presiding judge for the particular purpose of passing upon applications for executive clemency in cases which were on trial before him.

The article speaks to the presiding judge of the court.before which conviction was had. The predecessor of the pending judge is not judge of that court, and the article of the Constitution can have no possible application to him. The relief prayed for is granted, and the alternative writ is made peremptory.


text:
    No. 11,675.
    Hugh Monroe et als. vs. Liebman, Administrator, et als.
    Section 2504,R. S., requires notaries to file their bonds with the Auditor of Public Accounts; but said section does not provide for the vacancy of the office on the failure to file the bond with the Auditor.
    The failure to record the bond in the Auditor’s office may be a just cause for the suspension of the notary under Sec. 2505, R. S.
    Notaries continue to act so long* as they renew their bonds every five years, unless suspended by the Supreme Court. R S. 2506.
    The Notary’s Declaration in the body oe the Will. — “ The above and foregoing was written by me, said notary, as dictated by the testator, the said Donald Monroe, in the presence and hearing of the said George W. Kendall, F. Dodd and Jfl. Martin, an.d then read by me, said notary, to the testator in the presence and hearing of said witnesses, all at one and the same time without interruption and without turning aside to other acts,” is a compliance with Art. 1578, Civil Code, as it expressly mentions all the essentials to the validity of the will required by said article.
    PPEAL from the First Judicial District Court, Parish of Caddo. Taylor, J.

      Land & Land for Plaintiffs and Appellants.

      Wise & Herndon for Defendants and Appellees.
   The opinion of the court was delivered by

McEnery, J.

This is a suit brought by the collateral heirs of D. Monroe, deceased, against the administrator and heirs of his universal legatee, to annul and set aside his last will and testament in nuncupative form by public act, on the following grounds:

1. Because John N. Hicks was not, at the date of the execution of said act, a notary public, and had no capacity to perform the functions of such officer.

2. Because no express mention is made in said act that said pretended testament was received by the notary in the presence of three witnesses residing in the place where the will was executed, and was dictated by the testator to the notary in the presence of said three witnesses, and was by the notary written as it was dictated in the presence of three witnesses, as required by law.

Defendants answer by general denial, and aver that the will attacked is good and valid in law.

The judgment of the lower court was in favor of defendants, maintaining the validity of the will, from which plaintiffs appeal.

The copy of the will attacked is as follows:

The State oe Louisiana, ) Parish of Caddo. J

Be it known, that this day before me, John N. Hicks, a notary public, in and for the said State and parish, duly commissioned and sworn, came Donald Monroe, a resident of said State and parish, who, in the presence of George W. Kendall, H. F. Doll and E. Martin, competent witnesses, residents of said State and parish, declared that the following is his last will and testament, to-wit:

1. I desire that all my just debts shall be paid as soon after my death as possible.

2. I will and bequeath unto my dearly beloved wife, Emily (born Padgett), all of the property of every description whatsoever, including real estate, personal property, money, accounts, rights and credits, of which I may die possessed.

Lastly. I appoint my said wife executrix of this my last will and testament.

The above and foregoing was written by me, said notary, as dictated by the testator, the said Donald Monroe, in the presence and hearing of the said George W. Kendall, H. F. Doll and E. Martin, and then read by me, said notary, to the testator, in the presence and hearing of the said witnesses, all at one and the same time, and without interruption and without turning aside to other acts.

In witness whereof the testator signs Ms name in presence of me, said notary, and in the presence of said witnesses, and the said witnesses at the same time sign their names in presence of me, said notary, and in the presence of the testator, and of each other, on this the twenty-sixth (26th) day of March, A. D. eighteen hundred and eighty-nine (1889).

(Signatures.)

The notary who received the will was first commissioned by the Governor in 1873, under which appointment he acted officially until reappointed in 1878, when he was again appointed and qualified, and acted. In 1880.he was again commissioned by the Governor and qualified.

Section 2505, Revised Statutes, requires all notaries to renew their bonds, every five years, and Sec. 2504 directs that said bonds shall be filed with the Auditor of Public Accounts. The notary renewed his bonds, but failed to record the same with the Auditor.

Section 2505 does not say that the failure to file the bond shall ipso facto vacate the office. The failure to file the bond with the Auditor may be a just cause for the suspension of the notary by this court, as provided for in said Sec. 2505.

Notaries public continue in the discharge of their duties so long as they renew their bonds, unless suspended by this court for just cause. Revised Statutes, 2506.

The notary who received the will not only had a lawful right to the office by appointment, but he was in possession of the same and qualified to act. He was a dejure and defacto officer, and it will not be necessary to review the discussion in the briefs relative to the validity of the acts of a notary who is in possession of his office but not qualified to act.

■ All the essential facts, of which express mention must be made under Art. 1578 of the Civil Code, are shown in the body of the will.

The will recites: u The above and foregoing was written by me said notary, as dictated by the testator, the said Donald Monroe, in the presence and hearing of the said George W. Kendall, H. F. Doll and E. Martin, and then read by me, said notary, to the testator in the presence and hearing of said witnesses, and at one and the same time, and without interruption and without turning aside to other acts.”

The above declaration of the notary is clear that the testator die-tated the will; that the notary wrote it as dictated, and the dictation and writing were both in presence of the testator and the witnesses, and that the will was read by the notary to the testator in the presence of the witnesses.

We do not think that there is that doubtful meaning in the language as suggested by plaintiff’s counsel, that from the declaration of the notary it is doubtful whether the will was dictated or written in the presence of the witnesses, and that it may have been dictated out of their presence and afterward written in their presence, or its dictation only may have been in their presence. Nor do we think that it was essential that the notary, should declare- that the will was “ dictated to me, said notary, and written as dictated,” etc. The notary’s declaration shows that the will was dictated to him. No other inference can be drawn from the language employed by the testator.

The will meets all the requirements of the Oode.

Judgment affirmed.

Rehearing refused.


text:
    No. 11,704.
    State of Louisiana vs. John Braxton, Jr., et als.
    Ail indictment under Act 44 of 1S90 which alleges a club as the dangerous weapon used, proof that a pistol was so employed will not sustain a conviction.
    APPEAL from the Tenth Judicial District Oourt, Parish of Natchi-toches. Coco, J.

      M. J. Cunningham, Attorney General, and Phanor Breazeale, District Attorney, for Plaintiff and Appellee.

      Scarborough & Carver for Defendant and Appellant.
   The opinion of the court was delivered by

McEnery, J.

The defendants were indicted under Act 44 of 1890. 1 The indictment charges that John Braxton, Jr., and Peter Braxton and Reuben Braxton, on or about 23d September, 1893, did wilfully, maliciously and feloniously strike, stab, cut and thrust Martin Roy and Charles Jones with dangerous weapons, to-wit, knives and clubs, with the intent, there and then, the said Martin Roy and Charles Jones to kill,” etc.

There are several bills of exception in the record, all of which, except one, are abandoned.

The bill reserved and relied upon by defendants is directed to the charge of the trial judge.

The trial judge was asked to charge: “That a pistol is not a club, that a club is to be understood in its ordinary acceptation, and does not include a pistol.

“The charge was declined by the court for the reason that the court charged the jury that a club was any blunt instrument sufficient in character to inflict bodily harm; that whilst a pistol was not, in the common acceptation of the term, a club, yet it could be used as a club.” The bill is faulty, in not stating that a pistol was the weapon used by defendant. But we are not disposed to take advantage of this omission. The judge charged in reference to it, and we will presume that his charge related to the facts in evidence and the application of the law to them. The indictment described the dangerous weapon as a club. Act 44 of 1890 prohibits assaults with a dangerous weapon with intent to kill. The indictment should not only aver the weapon employed in the assault to be dangerous, when not known as such, but should specify it. Am. and Eng. Ency. of Law, 813.

If it is essential to allege the weapon used, it is necessary to sustain a conviction that the evidence supports the averment in the indictment as to the kind of weapon employed in the assault. If the instrument laid in the indictment and the instrument proved are of the same nature and character, there is no variance. 1 Wharton’s Criminal Law, Sec. 519.

“Thus evidence of a dagger will support the averment, of a knife, though evidence of a knife will not support the averment of a pistol.” Id.

A pistol is not a club and has no resemblance to it. The one is a recognized dangerous weapon; the other only when employed as such. There is no necessity of describing the one as a dangerous weapon in an indictment; there is a necessity of describing the other as dangerous. It is so described in the indictment under which defendant was convicted, and the proof must correspond with the averments.

“If several weapons are alleged as the instruments of an aggravated assault, proof of any one of them, which in law makes the offence complete, will suffice. The wound must not appear to have been inflicted by a weapon other than that laid or implied from the allegations, except when such allegation is surplusage, and perhaps in some other exceptional cases.” 2 Bishop Criminal Procedure, Sec. 65.

Several weapons are alleged in the indictment, but we are not informed by the judge whether there was any evidence as to their use. For fear of doing an injustice to the defendants we will not presume that evidence was offered as to the use of knives alleged in the indictment.

It is therefore ordered, adjudged and decreed that the judgment appealed from be annulled and reversed, and it is now ordered that this case, be remanded for further proceedings according to law.


text:
    No. 11,566.
    State of Louisiana vs. American Biscuit Manufacturing Company.
    A person or corporation engaged in the manufacture of new articles of commerce, such as crackers, fancy soup and Italian paste, from flour, is exempt, under Art. 206 of the Constitution, from a license tax.
    APPEAL from the Civil District Court for the Parish of Orleans. King, J.

      E. Howard McOaleb, Jr., for Plaintiff and Appellant.

      Thomas J. Semmes for Defendant and Appellee.
   The opinion of the court was delivered by

McEnery, J.

This is a suit to collect a license from the defend-ían! company. The defence is exemption from the payment of the ■license under Art. 206 of the Constitution. There was judgment for ■defendant, from which the State Tax Collector appealed.

The defendant company manufactures products out of flour, such as crackers, biscuits, Italian paste, etc. From one hundred and sixty to one hundred and seventy-five different varieties are manufactured. Soup paste is also produced by the factory, and fifteen kinds of fancy paste. No bread, such as is commonly known as baker’s bread is manufactured.

From two hundred and fifty to three hundred employés work in the factory. The articles manufactured are shipped over a territory of twenty-five hundred square miles, and the annual sales amounted to four hundred and forty-one thousand three hundred and five dollars and thirty-seven cents in 1891, and four hundred and eighty-nine thousand eight hundred and forty-six dollars and thirty-two cents in 1893. The process of manufacture is, that the flour leaves the barrels and passes through a powder sifter, thence into a powder mixer, from this into a dough box on tracks and is worked into two different kinds of dough; goes into a cutting machine, and finally into the oven, from which the complete articles are taken, boxed and shipped. The material is handled exclusively by machinery.

From this statement it will readily be perceived that the establishment is a manufactory in which raw materials are made into wares suitable for use. There are new shapes, new combinations, new qualities given to the raw material by the process of manufacturing the article from the original material. The State of Louisiana vs. Dupre & Hearsey, 42 An. 561.

Our attention is directed to the cases of State vs. Eckendorf, 46 An. 131, and City vs. Mannessier, 32 An. 1075.

In the first case the exemption claimed was for the production of baker’s bread. The baker produced no new article from the original material. He only prepared the manufactured article, flour, for consumption by cooking it. And in the second ease the defendant was a confectioner, selling ice cream which he made. The court said: The attempt to magnify a confectionery into a manufacture must fail.” There is certainly no similarity between the business of defendants and the confectionery of the defendant in the case of City vs. Mannessier, 32 An. 1075, above referred to.

In the case of City of New Orleans vs. New Orleans Coffee Company, Limited, 46 An. 86, also referred to by the plaintiff, the defendant corporation did not claim that it was a manufacturer by changing the coffee into a new article, but claimed exemption simply from the fact of manipulating the ground coffee by a secret process so as to change its taste and flavor.

In the instant case the identity of the original material is lost in thé new articles created in the change of shape, new qualities and new combinations, which enter into their composition, which render them suitable for use in an entirely different manner from the manner in which the original material could be used. Simply baking the flour in the manner employed by bakers would not make the crackers, the fancy paste, the soup paste, Italian paste, macaroni, vermicelli, etc.

Judgment affirmed.


author: Breaux, J.

text:
    No. 11,660.
    Belard & Johnson vs. Gebelin & Duggan.
    The plaintiffs claim, as heirs, their interest in real estate inherited.
    The heirship was denied by the defendant, and only one of the plaintiffs proved that she is an heir of the deceased from whose successions they claim to inherit.
    The suit is dismissed as to the heir who did not prove his heirship.
    The public administrator was recognized as the administrator of the succession of the father, who died in 1867.
    An inventory was made and an account filed which was homologated; in the decree the sale of the property was ordered to pay debts.
    On appeal the decree to sell the property was reversed. Subsequently in a court o£ competent jurisdiction another order of sale was issued to pay debts and the property was sold.
    The adjudicatee acquired a valid title to half the property. The purchaser was not hound to look beyond the probate decree.
    With reference to the other half of the property mortgaged by the mother after the death of her husband.
    In the foreclosure proceedings the mother, who was an absentee, was not cited. The judgment ,and the sale thereunder are absolute nullities and do not support the plea of prescription.
    The defendant, a purchaser at a sale made subsequently, is entitled to one-fourth of the taxes paid by him and one-fourth the value of his improvements, and to one-fourth of the purchase price paid by him to his warrantors.
    Proof of the price of the sale pronounced null and void is not such as will support judgment for the amount in this case.
    The suit of Mrs. Leonie Lancelot is dismissed at her cost in both courts.
    The defendants are condemned to pay the costs of the appeal taken by Eugenie Lancelot.
    The defendants consent that judgment for plaintiffs be entered against them.
    The warrantors do not consent to such a decree.
    Judgment is rendered as prayed for by the defendants as against themselves, but not against the warrantors.
    The right of the former, the defendants, to recover amount claimed of the war-rantors, is especially reserved.

      A, PPEAL from the Fifteenth Judicial District Court, Parish of East Baton Rouge. Buckner, J.

      Cross & Ooss for Plaintiffs and Appellants.

      Kernan & Lay cock arid A. Addison for Defendants and Appel-lees.
   The opinion of the court was delivered by

Breaux, J.

The plaintiffs, Leonie Lancelot, wife of Daniel Belard, and Eugenie Lancelot, wife of W. D. O. Johnson, allege that they are heirs of Jean Marie Lancelot, their father, who died in Baton Rouge in 1868; and of Marie B. Lancelot, their mother, who died in California in 1889, and sue the defendants to be recognized as owners of immovable property described in their petition, and to be placed in possession. One of the defendants, Duggan, denies in his answer that he is the owner of the property, and avers that his co-defendant, Gebelin, is the owner. The latter, Gebelin, in his answer denies that plaintiffs are the heirs of Jean Marie Lancelot and Marie E. Lancelot, his wife, as alleged by them.

The only evidence relating to proof of heirship was introduced by the defendants, who offered it presumably to show that plaintiffs are not the heirs of Jean Marie Lancelot and wife, or not their only heirs. Plaintiffs argue that the evidence proves their heirship; the evidence consists of six certificates of birth and baptism, containing different names from those of plaintiffs’ except in one.

The first is the certificate of the birth and baptism of Eugene Victorin Lancelot. The second of John Anthony Lancelot. The third of William Albert Lancelot. The fourth of Victor Thomas Henry Lancelot. The fifth of Joseph Lafitte Lancelot;, and the last of Marie Eugenia Louise Lancelot. Three of the children of the marriage, it seems, are dead. The name of Leonie is not mentioned at all, nor that of Eugenia, the nearest to it being Marie Eugenia Louise Lancelot. One of the given names, with the family name, suffices for identification.

The heirship of Mrs. Johnson being proven, the issues will be decided only in so far as relates to her, she being the only party plaintiff, under the proof made; as to the others, the suit will be dismissed.

This ease was before this court on appeal taken by the plaintiffs from a judgment dismissing their suit on a peremptory exception interposed by one of the defendants, Duggan. The judgment of dismissal was reversed, the suit was reinstated and remanded to the District Court, to be tried on its merits. 46 An. 326.

Our previous decision contains a.statement of the case; another; statement in this case, setting forth the facts, would be mere repetition.

The defendant Gebelin, in his answer filed after the case had been remanded, and therefore not included in the statement in the first, appeal, alleged, substantially, that Mrs. Lancelot in June, 1879, mortgaged her half interest to secure $450, upon which mortgage, the creditor, Peibelman, obtained judgment, and under execution of that judgment bought the property mortgaged. That in July, 1880, the purchaser, Peibelman, sold to John H. Latnon.

That the latter was decreed the owner in a suit against J. O’Connor, administrator, and subsequently sold to Charles McVea.

That he bought the other half interest of the property at a public sale in May, 1884, in the succession of Jean Marie Lancelot. That at the instance of Oharles McVea a judgment of partition was obtained and the property was ordered sold, and at the sale he became the owner of his half interest. He alleges his good faith, and avers that none of the sales and orders upon which his title is based can be collaterally attacked in this suit, but that the plaintiff must institute a direct action to revoke them.

He claims the taxes that he paid; the value of the improvements he has made on the property; that the proceeds of the sale of the property have been applied to the payment of the debts of the successions of Jean Marie Lancelot and of Mrs. Lancelot; in case he should be evicted, he is entitled to the restitution of the purchase price of the property.

The judgment of the District Court rejects the demand of plaintiffs. They have appealed.

There is no difference of any moment between the plaintiffs and defendants as to the facts of the case stated. They differ regarding an account filed by the administrator and as to the effect of the homologation of the account, also regarding the effect of a sale of a half interest of the father, Jean Marie Lancelot, to pay community •debts.

The plaintiffs contend that the purchaser is not an innocent third person.

Plaintiffs and defendants also differ regarding the sheriff’s sale to Feibelman of one-half of the property attacked on the ground that there was no citation on the debtor, Mrs. Belard, or her husband, in *he attachment suit of the former, the creditor, Peibeiman.

Prescription vel non also is one of the issues with reference to one-half of the property belonging to the succession of Jean Marie .Lancelot.

John O’Connor, public administrator, in 1871 applied for the appointment as administrator of that succession, and alleged that the -widow had permanently left the State, and that the succession was indebted.

An attorney for absent heirs was appointed.

The appointment of the public administrator was opposed by the ■under-tutor and by an alleged agent.

The opposition was overruled and the administrator was appointed.

In 1872 he presented a tableau of liabilities and assets; the latter •consisting of real estate in his possession not sold.

Contradictorily with the attorney for absent heirs and after required advertisement the account was homologated; the court ■ordered the sale of the real estate at public auction to pay debts.

Subsequently, on the representation of the tutor of the minors, there was a hearing before the Parish Judge in opposition to the sale. A peremptory exception was filed to the opposition of this tutor by the administrator, which was sustained by that judge.

On appeal to the District Court the judgment of dismissal of the -opposition was annulled, the opposition was not passed upon, the ■case was remanded by the District Court to the Parish Court.

Under the Constitution of 1879, the District Court became vested with original jurisdiction of the case.

That court was vested with authority to order the sale, and in its exercise ordered the sale.

As far as the record discloses, the public administrator held that position until the office was abolished. He had not been discharged, .and was the administrator at the time of the sale, under the pro-vision of Sec. 4 of Act 111, extra session of 1877, that nothing in the act abolishing the office should be so construed to affect the management of successions then under administration by the public administrators.

With reference to the joint interest sold separately, the widow had mortgaged her interest, and the sale which followed of the property mortgaged, even if void, was notice to third persons that the half had been encumbered with a mortgage and sold, and that there was no necessity of a sale of more than the remaining half. Moreover, it has been repeatedly decided that a purchaser at a sale of succession property is not bound to look beyond the decree of the court ordering the sale. “ It is now well settled that where there is a formal decree of the court of probates recognizing the necessity of selling the property inherited by minors for the payment of debts of the succession, and giving an opportunity to the attorney of the absent heirs to show that in fact no such necessity existed, the purchaser is not bound to look beyond the decree.” Michel’s Heirs vs. Michel’s Curator et al., 11 La. 149; Lalaune’s Heirs vs. Moreau, 13 La. 431; Valderes, Executrix, vs. Bird and others, 10 Rob. 396.

The proof does not sustain the charge that the purchaser was not in good faith. So far as the record shows he was a third person, Without interest, and occupied no position making it improper for him to bid on the property.

With reference to the remaining interest, the half composing the assets of the succession of Mrs. Jean Marie Lancelot, the plaintiffs urge that there was no citation and that the property was never actually in the possession of the sheriff. The widow of Lancelot was married to Francis Belard. She was not Mrs. E. Lancelot.

The citation is addressed to “ Thos. B. Dupree, attorney ad hoe, representing Mrs. E. Lancelot, an absentee.” Belard, her husband, was not a party to the suit. The judgment was rendered against an officer of the court representing the wife alone. We deem this an illegal citation, upon which no valid judgment could be rendered. Citation is the foundation of the suit. When addressed to a curator ad hoe, through whom defendants are to be brought into court, it should not be addressed to him as representing the wife alone and ignore the husband, who is a necessary party to the suit.

The defendants can not be considered bound by a citation not addressed to them or to their curator ad hoe as their legal representative in the suit..

The curator can not exercise any of the functions of that trust until served with regular process.

Until then his appearance in the case is of no legal effect.

The sale of Mrs. Belard’s interest in the property, under the execution of a judgment rendered without citation, is an absolute nullity.

The defendants plead the prescription of five and ten years as giving title.

The adjudication was null and void and does not support prescription.

The adjudicatee, Peibelman, sold the property to Lamon in 1880.

The deed of sale is equally as ineffective as a basis of prescription. In the deed containing the no warranty clause was included the judgment obtained by the adjudicatee. It was null and void, having been rendered on an illegal citation. The nullity was apparent on the face of the judgment transferred. The purchaser was an attorney at law. The deed had never been recorded. The price was the comparatively insignificant sum of fifty dollars. The purchaser took no legal steps to obtain possession prior to 1884, four years after the deed to him. The transferee of an illegal judgment, under the circumstances of this case, and the purchase of the property sold under its execution, is not owner in good faith.

The subsequent sales and partition would support the plea of prescription if the time required from their dates had elapsed. These last owners are several removes from the sale which was made on insufficient citation. He (the owner who made the improvements on the property) is entitled to one-fourth of the value of the improvements, and one-fourth of the taxes paid by him.

He is also entitled to one-fourth of the price paid by him for half of the property to the late Charles McVea, and to a judgment against his heirs for the amount, with legal interest from judicial demand.

With reference to the improvements, their value is charged at this time, and not referred to a petition for the reason that the plaintiffs, in the brief, concede that the defendant is entitled to’their value.

The demand for the purchase price of the property at the sale of November 20, 1872, to Eeibelman, is dismissed.

It is not established that the heirs ever received the amount, or that they were in any manner benefited by the sale or its proceeds.

It is ordered, adjudged and decreed that the judgment appealed from be and the same is hereby affirmed in so far as relates to the property of Jean Marie Lancelot, thereby affirming defendant Gebe-lin’s title to half of the property at one time owned by Jean Marie Lancelot and Emilie Lancelot, his wife, in community.

■ As to the remaining half of the property it is ordered, adjudged and decreed that the judgment be annulled, avoided and reversed, to the extent of one-fourth of the whole, of which one-fourth the plaintiff Eugenie Lancelot, wife of W. D. O. Johnson, is hereby decreed the owner, and it is orders I that a writ of possession issue placing her in possession, and that she recover judgment at the rate of two dollars a month rental on the said one-fourth from judicial demand.

It is further- ordered, adjudged and decreed that the defendant Gebelin recover from Eugenie Lancelot one-fourth of the taxes paid by him and one-fourth the value of his improvements, with legal interest from day of judgment, and that the same be paid by her to the defendant Gebelin before execution of judgment and eviction.

The taxes paid amount to one hundred and thirty-two dollars and thirty cents.

The value of improvements, one thousand and eighty-one dollars and ninety cents, the one-fourth due by the plaintiff is three hundred and three dollars and seventy-two cents.

And that the demand of this defendant, for the purchase price in matter of the sale of November 18, 1872, is dismissed.

It is further ordered, adjudged and decreed that the defendant Gebelin have judgment against his warrantors, Charles McVea, W. W. McVea and Mary V. McVea, jointly, for one-fourth of the purchases paid by him, viz., two hundred and twelve dollars and fifty cents, with legal interest from judicial demand; that Mrs. Leonie Lancelot, wife of Daniel Belard, in so far as relates to her suit and her appeal, pay the costs of both courts, and that the remaining costs — that is, the costs of Eugenie Lancelot in the lower court and on appeal, be paid by the defendants.

On Application por a Rehearing.

The plaintiffs in their application for a rehearing aver that Leonie Lancelot was recognized as heir when her mother qualified as tutrix, .and that the tutor appointed after her mother’s death swears that she was recognized as heir.

We have not found evidence of record proving that Leonie Lancelot was recognized as an heir of her mother, nor is there any evidence of record proving that her mother qualified as tutrix of a daughter named Leonie. The certificates of baptism do not include Leonie as one of the children.

The dative tutor testifies “there were two children when their ■father died, a boy and a girl.”

This suit was brought by Leonie and Eugenia, two of the alleged ■daughters.

Presumably one of the daughters was a posthumous child, not known to the tutor who testified, and that this accounts for the two •daughters.

We are morally convinced that Leonie’s rights as heir are as ■ ■alleged. But after diligent examination of the record we have not found legal evidence of the fact. Plaintiffs’ application for a rehearing would be refused but for the fact that the defendants, through counsel, have joined in the application, and have alleged that they .are satisfied that Mrs. Leonie Belard, one of the plaintiffs and appellants, is a daughter of Jean Marie Lancelot and his wife, Emeline ■Gabos. They aver that appearers desire to make an end of this litigation, “and therefore pray the court to grant the rehearing asked by counsel for appellants and to render in favor of the said Mrs. Leonie Belard the same judgment that has been rendered in favor of Mrs. Eugenie Johnson, with a corresponding judgment in favor of appearers for taxes and improvements, and against the warrantors •of appearer for the additional sum of two hundred and twelve dollars and fifty cents.” The warrantors have not joined in this application.

As between plaintiffs and defendants we can give force and effect to the agreement, not, however, in so far as relates to the warrantors, who deny the heirship alleged.

Considering the foregoing application it is ordered, adjudged and decreed that as between plaintiffs and defendants our preyious decree be amended by rendering in favor of Leonie Belard the same judgment- as that rendered in favor of Mrs. Eugenie Johnson, with a judgment corresponding in her favor for taxes and improvements, .similar (as set forth in our original decree) ; also as to costs, that is they (in the lower court and on appeal) are to be paid by the defendants, as relates to Leonie Belard.

The defendants’ rights to recover two hundred and twelve dollars and fifty cents from the warrantors are reserved.

As between plaintiffs and defendants on the one part and the war-rantors on the other the rehearing is refused, with reservation to defendants as above.

The parties having agreed to the amendment made, no rehearing need be granted.


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    No. 11,534.
    Mrs. James Edwards et al. vs. O. A. Fairex.
    The plaintiff brought suit to have a tax sale decreed null.
    The first ground of the defendant in support of the sale was that the plaintiffs had admitted in their petition the validity of the assessment and sale.

      Held: The averment that an assessment and sale had been made, followed by allegations that they were null, is not an admission which concludes the plaintiff.
    An assessment and sale may have been null and not cured as to the nullities by the healing and-curative statutes — 38 of 1882 and 82 of 188á.
    The second ground of the defendant was that the notice for which Art. 210 of the Constitution provides is not required when the property is sold for taxes of 1879 and prior years.

      Held: The property was assessed in the name of a dead man, many years after his death, and sold at tax sale in his name. The adjudication was null.
    APPEAL from the Civil District Court for the Parish of Orleans. Rightor, J.

      Francis B. Thomas for Plaintiffs and Appellees.

      William 8. Benedict and Robert <?. Dugué for Defendant and Appellant.

      J, Zach. Spearing amicus curise.
   The opinion of the court was delivered by

Breaux, J.

The defendant appealed from a judgment annulling a tax sale.

In support of the judgment the plaintiffs and appellees argue that the tax sale was null for the reasons:

1. That the assessment was not made in the name of the owner.

2. That no notice was given as required.

8. That the adjudicatee did not pay the taxes he assumed.

The defendant and appellee, Fairex, claims that the judgment should be reversed on the grounds, viz. :

1. That the plaintiff who alleges that there was an assessment and a sale of the property can not question the validity of the assessment.

2. That the notice for which Art. 210, Constitution of 1879, provides is not required when the property is sold to enforce payment of the taxes of that year and previous years.

8. That the State alone and not the former owner of the property can take advantage of the non-payment by his purchaser of the taxes which he assumed in his deed.

The record discloses that the property was advertised by the tax collector and offered for sale by auction for taxes prior to 1880, and that in default of a bid under Act 88 of 1882 it was adjudicated to the State.

In July, 1885, after advertisement under Act 82 of 1884, the property was adjudicated to the defendant for the taxes due.

The tax records show that the taxes were not paid from 1870.

The former owner died in 1866.

The assessors continued to assess the property in his name. It was advertised as his in 1885, and the property was adjudicated by the tax collector to the defendant that year, assessed in the name of James Edwards, who had departed this life a number of years prior to the assessments.

The tax deed is not in all respects conclusive evidence that the property was assessed and advertised and sold as stated in the deed, and that all essentials have been complied with.

The healing and remedial statute of 1884, No. 82, could not impart to tax deeds the force and effect of conclusive evidence. There are informalities that can not be cured by statute intended to operate retrospectively.

The proof of “assessment” and “sale” of itself is not conclusive evidence that all essentials were complied with in 'the proceedings, nor did the plaintiff by alleging that the defendant “claims said property as owner under a title held by him from the State of Louisiana, dated August 3, 1885,” judicially admit the existence of a legal assessment and a sale.

This allegation is followed in the petition (in same paragraph) by the other allegations stating the grounds upon which the plaintiff claims that the tax sale should be declared void.

Admissions can not be divided against plaintiff.

With reference to the want of notice alleged.

'The nullity resulting from this want of notice is claimed on grounds affecting the proceedings for the assessment and collection of the taxes.

The property having been assessed in the name of a dead man, the adjudication to the State did not divest the owners of their rights to claim the nullity of the sale.

This court has treated the neglect of the officer in thus assessing property as fatal to the validity of the sale. Sewell vs. Watson, 31 An. 591; Stafford, Ex., vs. Twitchell, 33 An. 524; Montgomery vs. Land and Lumber Company, 46 An. 409.

An assessment of the property in the name of the owner was a requisite.

It is true that acts of 1882 and 1884 under which the sales were made prescribe notice of sale by advertisement.

We are not concerned, at this time, with the question of personal and special notice to the tax debtor and the necessity .of giving such .a notice.

Granting for the discussion that public advertisement of the sale is the only notice required, it is manifest in this case that the advertisement was not notice to the owner, whose name was not mentioned.

Act 98 of 1882, under which the property wa£ adjudicated to- the •State, made it the duty of the tax collector to advertise the property in the name of the person to whom assessed, and in case there was •error to insert the correct name in the advertisement.

No attempt at correction was made. The property was not sold •contradictorily with the owners.

The plaintiffs had no notice, actual or constructive, of the tax sale.

The want, of both notices has undoubtedly the effect of invalidating the sale.

The third ground: that there can be no tax deed under Act 82 of 1884 unless the taxes of 1880 and subsequent years have been paid by the purchaser does not require our determination in this case j having reached the conclusion that the first and second grounds pleaded are fatal to the validity of the tax sale under which the defendant holds.

It is therefore ordered, adjudged and decreed that the judgment appealed from is affirmed at appellant’s costs.

Rehearing refused.


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    No. 11,560.
    State of Louisiana vs. S. L. James.
    Under a contract to work tlie penitentiary on joint account, bearing date in 1868, the officers oí that institution were paid by the grantees.
    On renewing the contract in 1870 a rental was substituted to hall the proceeds, provided under the act oí 1868, and the lessees again bound themse.ves to pay the officers, including the members of the Board of Control, the chaplains and the clerk.
    At the second and last renewal of the contract lin 1890 the lessees bound themselves to pay the rental stipulated each year of the lease.
    The whole question is as to the meaning of the word “ net,” whether “ net ” to the lessee orto the State.
    The court decides that it gives emphasis to the condition, that the lessor is to receive the amount stipulated “ net,” and not after deducting amounts paid to the members of the Board of Control, chaplains and clerk, officers whose services were needful to all parties in carrying out the terms and conditions of the contract.
    APPEAL from the Oivil District Court for the Parish of Orleans. Monroe, J.

      M. J. Ounningham, Attorney General, for Plaintiff and Appellee.

      Farrar, Jonas & Kruttschnitt for Defendant and Appellant.
   The opinion of the court was delivered by

Breaux, J.

The State brought this suit to recover a balance of six thousand dollars, claimed as due on a contract of lease.

The defendant answers that he had paid all that he owes.

The question relates to the salaries of the Board of Control, chaplains and clerk, and whether they should be paid by the lessee or by the State.

The facts are that under the first contract of lease, bearing date March, 1868, Governor Baker, under the sanction of General Hancock in command of the military department, made a contract they termed one of lease of the penitentiary for a period of five years. The penitentiary was to be worked by the lessees for joint account of themselves and the State — i. e., one-half of the net profits to go the State and one-half to the lessees. Under the contract the salaries of the Board of Control, chaplains and clerk of the penitentiary should be charged to the current expenses of the institution. The duties of this Board of Control, of the chaplains and clerk are defined in the act.

For their services the five members of. the board and the chaplains were to receive one hundred dollars each and the clerk two thousand dollars.

The board was appointed by the Governor, and the chaplains and clerk by the concurrent action of the board and the lessees. The board and lessees were directed to employ a physician at a salary of six hundred dollars per annum.

The act also authorized the board to furnish books to the convicts, and the lessees were required to furnish each convict with ten dollars and a suit of clothes at the expiration of his term. These and all other expenses were to be charged to the lessees.

Subsequently the Legislature ratified this contract of lease, and in the act of-ratification authorized the Board of Control to adopt resolutions regarding the health and the religion of the convicts, and required that they should see that the ration's of the convicts were not less than those prescribed by the United States army regulations for soldiers, and that the “lessees” furnished the convicts with clothing.

All the expenses were to be charged to the current account of the lessees, and not to the State.

Governor Warmoth, in April, 1870, authorized by Act 56 of 1870, substituted James & Co. to the prior “lessees,” and extended the term of the lease to twenty-one years. The prior lease remained in full force and effect, save that instead of working the penitentiary on joint account, as previously, the lessees should pay five thousand dollars for the first year, and increase the rental one thousand dollars each year daring the term of the lease. Under this contract the lease was for a fixed sum, plus certain payments assumed by the lessees, to-wit: The salaries of the clerks, the Board of Control and the chaplain. When this lease was about to expire, the Legislature, by Act 114 of 1890, authorized the extension of this lease for a term of ten years, at an annual rental of fifty thousand dollars net, payable'in advance.

Agreeably to the terms of this lease, Governor Nicholls entered into a contract with the defendant.

The stipulations and conditions of prior leases were to remain in full force and effect, with the following modifications and changes (the act recites), as provided in Act 114 of 1890.

They were with reference to the character of the work of the convicts — that is, they are. to work on levees, railroads and other public works, and further provided for a bond to secure the rental.

In 18*78 the lessees had not paid the amount of the rent promptly; differences arose in regard to the amount due. An act requiring the examination of the books was adopted by the Legislature at its session that year and authorizing a settlement. After the examination the rents were paid and no deductions were claimed for the salaries of the Board of Control, chaplains and clerks.

Thereafter the lessees paid annually without setting up any claims for these salaries.

Under the present lease the lessee, James, paid at least one year’s rent without objection.

The foregoing is a statement of the facts which led up to the present situation.

The question-is as to the meaning of the word “net” in the following phrase, copied from the last contract, in point of date.

“At an annual rental of fifty thousand dollars net, payable in advance.”

We have seen that under the contracts preceding the last entered into, the lessees paid rents and certain expenses, among them the salaries of the Board of Control, chaplains and clerk.

In the last contract of lease the word “net” is inserted after the amount fixed for rent.

The plaintiff, through the Attorney General, urges that this word qualified the amount the State is to receive as “net” while the defendant argues that it applies to the expenses that the lessee is to pay, and that under the old contracts the State having received her rental “net” without any deductions for salaries of her officials it was unnecessary in renewing the lease to add the word “net,” if it was intended that the State should receive a fixed sum plus the charges for salaries.

We think it unnecessary; that fact of itself would not have the effect of limiting the obligations of the lessee and of excluding liabilities he assumed in contracts of prior dates.

It may have been inserted under the maxim abundans cautela non nocet, without reference to any necessity, or it may have been that it was the intention to specially guard against any claim presented with the view of reducing the amount the State stipulated should be paid.

In any case the intention must be made evident in order that it may be construed as meaning “net” to the lessee and net to the lessor.

It would involve a change of the conditions of contracts which form part of the new contract.

Manifestly, these conditions can not be restrained unless the language of the new act is plain and' unambiguous. The rule of construction of contracts between private individuals is reversed when the grant emanates from the government. The words used are the grantee’s, who sought and obtained the enactment of the statute (American and English Bncyelopcedia of Law, Vol. 23, p. 407), and the rule that the grantor is bound to explain himself clearly respecting the extent of his obligations does not apply.

Moreover, the parties to these acts have placed a construction upon them that must be noticed. During many years they paid these salaries. The defendant paid the amount of rent the first year under the last contract.

The conditions at the time were of recent date, and performance on the part of the lessee by paying the whole sum is an act we do not feel at liberty to overlook in ascertaining the meaning of the contract. He had been interested when the last payment was made in a number of similar payments under the old contract. The maxim contemporánea expositio est fortissima in lege is not without application. The inference to be drawn from acquiescence under previous act was confirmed by a payment under the new contract.

The charges had been connected with the administration of the property and the working of the. penitentiary; the lessees took charge of the entire plant, consisting of the penitentiary, its machinery, appurtenances, convicts, and administered it according to law, without the deduction now claimed. Under the modifications of the last contract, which did not refer to the plant at all or to the method adopted for its administration, we are unable to find that the State is liable for salaries and not the lessee. If the latter is not liable there are ,a number of other expenses that should not be charged.

The rent instead of being fixed as stipulated would be subject to a number of deductions annually.

We think that the penitentiary was leased on condition that the lessee should pay the expenses of administration and that the word “net,” as used, applies to the amount of the rent to be paid. It only served to give emphasis to the intention that fifty thousand dollars net should be paid annually.

It is therefore ordered, adjudged and decreed that the judgment appealed from is affirmed at appellants’ costs.


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    No. 11,562.
    Maurice St. Amant vs. Eugene Tessier.
    The plaintiff alleges that the title to property of which he is the owner did not pass to the ostensible adjudicatee; that the amount of the bid was not paid.
    The executor by whom the property was sold, many years after the probate proceedings and probate sale, appeared before a notary and acknowledged that the amount of the bid had not been paid.
    The written acknowledgment was made the basis of plaintiff’s suit.
    The court holds that it can not be given force and effect, because it was ex parte and because the wrongs declared to have been committed to pass title are not given with particularity as to dates and circumstances, and further that plaintiff’s father consented to the sale; that the parties must look to the pro eeeds and not to the property sold for whatever rights they may have.
    APPEAL from the Civil District Court for the Parish of Orleans. Théard, J.

      A. L. Tissot and Gabriel Hernandez for Plaintiff, Appellant.

      Harry L. Edwards for Defendant, Appellee.
   The opinion of the court was delivered by

Breaux, J.

The plaintiff claims real property in the possession of the defendant.

The succession of his grandmother was opened in 1874. She left a will in which she acknowledged an indebtedness to her son, the father of the defendant, of one thousand dollars.

He alleges that on the 26th of October, 1892, in the presence of a notary public and two witnesses, the father of the defendant and executor of the grandmother’s succession acknowledged that in March, 1874, he caused his dying mother, defendant’s grandmother, to make her will and therein declare that she owed him the amount of one thousand dollars.

That she did not in fact owe him that amount, but that he was anxious to become owner of the real property she owned at the time and at her death defeat all claims of plaintiff’s father as an heir, who was the half brother of defendant’s father.

The father of defendant, Andre Tessier, also declared, in the written acknowledgment, that he applied to Louis Ovide St. Amant, plaintiff’s father, and obtained from him his power of attorney authorizing him to sell the property. That he concealed from plaintiff’s father and from petitioner the fact that their mother had made a will.

Andre Tessier, testamentary executor of the succession of Helene Escot, the grandmother of plaintiff, sold the property to the defend-ant by public auction, under an order of the Probate Court, for the sum of seven hundred and fifty dollars, which he acknowledged to have received in cash; the deed evidencing the transfer was duly recorded.

The plaintiff avers that he was not paid any amount by his son, who figures as purchaser; that the transfer was fraudulent, and made in pursuance of an agreement fraudulently entered into between the father and son, and that the latter was only an interposed person.

The defendant tendered the plea of no cause of action, and interposed the plea of prescription.

The plea of prescription, prior to the decision of the court sustaining the last exception filed, had been referred to the merits; it was presented previous to the filing of the exception of no cause of action.

From the decision of the court sustaining the exception of no cause of action the plaintiff prosecutes this appeal.

The jurisdiction of the court that probated the will is not questioned. The judgment probating the will has never been reversed, and must be given effect. With reference to the act of sale establishing the adjudication made of the property, it recites that the required probate order for the sale had been issued. To the date of sale nothing discloses any irregularity in the proceedings. The executor, in this notarial act, declares that he has received the price of adjudication.

The father of the defendant, who was the executor, repaired before a notary nineteen years after the adjudication and declared that it was all a simulation, and that he had never received the price.

The petition does not state the date, nor set forth the character of the undue influence, and allegations in the light of the decision from which we quote:

“The supplemental petition will be scrutinized in vain for any allegations to the effect that undue influence was by the defendant exerted upon the testator at the time of making the will.” Zerega vs. Percival, 46 An. 590, 613.

The plaintiff’s position that the defendant can not have greater right than his father had would have great force if the ease had admitted of averments and evidence under the averments making the former a party to the alleged captation and fraud.

In a matter involving title to immovable property the admissions made and the testimony admissible are not sufficient to set aside the sale even as relates to the aljudicatee, who, though a son, was a third person, and is entitled to the protection the proceedings and the act of sale secures, as between him and the executor.

The plaintiff declares upon the written acknowledgment of the executor made in 1892. He does not seek to have the property restored to the succession of his grandmother, but alleges that it was the desire of the executor to deliver the property to him as owner, and prays to be declared the sole owner of the property. These declarations of the executor do not admit of any such relief. If they were not ex parte and were admissible in evidence they would not establish the right claimed.

It is alleged that the property was sold with the consent of plaintiff’s father. The alleged fact that- the executor concealed the existence of the mother’s will in obtaining the consent of this heir does not give cause to annul the sale. The sale remains unaffected by the allegations if true.

It is not alleged that concealing the existence of the will had aught to do with obtaining the power of attorney which gave authority to represent the absent heir (plaintiff’s father). The instrument of writing of October, 1892, can not have the effect plaintiff contends it has. Granted, all the facts it recites, it does not include the defendant within its terms in such a manner as to affect the property which he bought many years ago and for which he paid the executor at the time.

We think there is no error in the judgment.

It is therefore ordered, adjudged and decreed that the judgment appealed from is affirmed at appellant’s costs.


author: Miller, J.

text:
    No. 11,699.
    State ex rel. Evershed vs. The Judges of the Court of Appeals.
    This court will not, by writs of mandamus or certiorari, review orders or decrees of the lower court made mouths before any application here.
    PPLICATION tor a, Mandamus.

    Farrar, Leake & Lemle for Relator.
    Respondents in propria persona.

   The opinion of the court was delivered by

Miller, J.

The relator, defendant in a suit in the Civil District Court, was adjudged to pay the amount claimed. Before appealing to the Court of Appeals he applied for a statement of facts. He alleges the judge of the lower court required the submission of statement to the plaintiff acting as his own counsel — counsel then absent from the city. The petitioner further alleges that on plaintiff’s return he furnished his memoranda or statement to the judge, who thereupon gave a statement of facts. But the judge’s statement was not signed until the 16th November, 1893, nearly two months after the appeal was granted. The Court of Appeals dismissed the relator’s appeal on the ground the statement was not signed before the appeal. The relator then obtained a devolutive appeal, annexing the statement with the petition for the appeal requesting the judge would make it part of the record. This the judge declined, as he had already signed a statement. The devolutive shared the fate of the first appeal. We are informed by relator’s petition that during the pendency of the devolutive appeal he asked for a mandamus commanding the judge of the lower court to sign a statement for that appeal and the mandamus was refused. The dates of the dismissals of the appeals were respectively January 9 and April 15, 1894. The present application near the close of the year is for a certiorari and mandamus of this court commanding the Court of Appeals to.hear and determine the devolutive appeal on the statement famished by the judge for the first appeal.

If the relator had any cause of complaint when the first appeal was dismissed in April, 1894, he should then have applied to this court. That appeal was dismissed because the statement was filed too late. It is indispensable the statement be procured before the appeal; if after, the delay is fatal to the appeal. Code of Practice, Arts. 603, 604; Syndic of Hellis vs. Asselvo, 3 Martin Reports, 204; LeBlanc vs. Broussard’s Heirs, 16 La. Reports, 137. The relator’s explanation of the delay is, that the judge of the lower court, presented with the statement, required it should be submitted to the opposite party. The law requires it should be presented first to the opposite counsel.

The relator’s further explanation is that the opposite counsel was absent. If there was any force in the explanation, then a mandamus should have been sought to compel the lower court to sign the statement. After the first dismissal there was the devolutive appeal. If the judge of the lower court could have been required by this court to make another statement for that appeal, the application for the exercise of our supervisory jurisdiction should have been made prior to April, 1894, when that appeal was dismissed by the Circuit Court of Appeals. We can not issue writs of mandamus and certiorari to correct supposed wrongs under decrees or orders of the lower courts made months before the application is made to us.

The relator’s application is therefore refused.

Rehearing refused.


text:
    No. 11,696.
    State of Louisiana vs. Charles M. Vallery.
    The admissions of the accused will not be excluded merely because tlie witness testifying to it states lie can not recollect all that was said by the accused, there having been no interruption of the admission and nothing to indicate it was subject to any qualification.
    The statement of the accused that he would shoot the deceased, quickly followed by the killing, is admissible as part of the res gestee. Greenleaf on Evidence, Sec. 308.
    The court again affirms that threats of the deceased, or his dangerous character, can not be proved by the accused indicted for murder unless in aid of self-de-fence, after an attack or demonstration by the deceased, menacing the life of the accused, is first proved; and whether such overt act was proved the court must determine from the bill and the qualifying statement of the trial judge. Constitution, Art. 81; 36 An. 158; 37 An. 862, 443.
    Applications for new trials in criminal cases must rest largely in the discretion of the trial judge, and unless the bill shows clearly the requisite basis for the application the ruling of the trial judge will not be disturbed.
    APPEAL from the Tenth Judicial District Court, Parish of Rapides. Andrews, J.

      M. J. Cimningham, Attorney General, and Phanor Breazeale, District Attorney, for Plaintiff, Appellee.

      J. F. Ariail and H. H. White for Defendant, Appellant.
   The opinion of the court was delivered by

Miller, J.

The defendant, convicted and sentenced for murder, appeals to this court, relying on several bills of exception.

One of these bills is to admission of testimony of the expression of the accused, that he would put fourteen buckshot into the deceased. The objection urged to this testimony was, that forming part only of the declaration of the accused, it could not be admitted, and it was hearsay. It appears by the bill that the wife of the deceased overheard the remark of the accused, that he would put the shot into the deceased. The remark was made in an adjoining room of the house, the common dwelling, we infer, of the accused and the deceased. The witness states she can not recollect all that the accused said, but is quite distinct as to the remark in question. The general rule is, that the confession sought to be urged against the accused must be used in its entirety, so that he may have the benefit oí any exculpation or explanation his whole statement may afford. Undoubtedly, where the confession offered was interrupted, or there are circumstances suggesting that the confession or declaration on the point involved was incomplete and would be modified, if all that the accused said was before the jury, in all such cases the portion of the statement offered should be excluded. Here the declaration preceding, by only a short time, the killing, appears to be complete as to the purpose. There is nothing to suggest or afford any basis for the inference of any qualification or modification. We think the tendency of the authorities in such cases is to let the testimony go to the jury, and that the objection is only to its effect, of which the jury is to judge.

Another question raised by the exception is as to the exclusion of testimony offered by the defendant to show the dangerous character of the deceased. Such testimony has no tendency to justify killing, except when self-defence is set up and the accused proves a hostile demonstration on the part of the deceased, menacing the life of the accused. Then proof of the dangerous character of the deceased is admissible, as tending to show the reasonable belief of danger under which the accused killed the deceased. Testimony of character is, hence, wholly irrelevant, and should be excluded, unless the requisite basis, usually termed the overt act of the deceased, is first proved. Wharton’s Criminal Law, Secs. 69-70. This court has no means of determining whether this requisite basis has been laid, except from the bill of exceptions and the qualifying statements of the trial judge. It may be said that the weight attached to the statements in the bill tends to impair the efficacy of the appeal, presenting ques - tions of law dependent on the facts developed before the trial judge. But none the less, this court, in determining such questions, must be governed by the bill, with the additions of the trial judge. Of course, the bill always claims the overt act was proved. Now, in this case, the statement of the trial judge is that no basis existed to permit the introduction of character testimony, and the asserted overt act of the deceased was, in fact, an effort to defend his life. We are bound by the bill, and thus tested, the testimony was properly excluded. Const., Art. 81; State vs. Miller, 36 An. 158; State vs. Kerwin, 37 An. 782; State vs. Jackson, 37 An. 896; State vs. Ford, 37 An. 443.

Under another bill it is pressed upon us that a new trial should have been granted on the ground of newly discovered evidence. As we glean it from the bill, testimony was £iven by the State as to the kind of coat the accused wore the night of the offence, and this it is charged in the bill, surprised the accused. The newly discovered evidence the bill attributes to witnesses, who, if permitted, it is claimed, will swear, one, that the accused, in prison that night, wore a different kind of coat, and that coat “was as it is now cut, but the cuts seem to have become longer through wear,” and both witnesses, it is claimed, will give testimony tending to show there was in the prisoner’s cell no other but that of the kind different from that to which testimony was give on the trial. The grounds of the application to procure testimony of those near at hand, and with whom the accused had been in contact during his confinement awaiting trial, does not impress us favorably. Nor did it the trial judge. It. is our jurisprudence not to reverse the rulings of the trial judge unless the basis for such reversal is clearly shown.

As to the other point presented by the bill — -i. e., the right of the trial judge to appoint a District Attorney in this case, we think the power is clearly conferred by the Act No. 74 of 1876.

It is therefore ordered that the sentence of the lower court be affirmed.