author: Poché, J.

text:
    No. 10,038.
    John McDougall vs. Pascal Monlezun et al.
    A tax sale is not necessarily cancelled, and annulled by a certificate of redemption issued under the provisions of section 69 of act 42 of 1871, as such certificate is intended merely to redeem immovable property from a previous forfeiture to the State.
    Under that section the privilege of redemption is extended to any person interested, and this includes the purchaser at the tax sale.
    If the certificate is made in favor of the original owner, it is competent for the purchaser to show that he.made the payment out of his own funds with intention to retransfer the property to the former owner, on condition of reimbursement within a given time by the latter.
    An action to invalidate a tax sale made under a law of the State is barred by the prescription of three years. Barrow vs. Wilson, 89 Ann. 408, affirmed.
    APPEAL from the Twenty-fifth District Court, Parish of Lafayette. DeEaülon, J.

      Brecmx & Eenoudet, for Plaintiff and Appellant.

      Chas. JD. Caffery & M. E: Girard, for Defendant and Appellees.
   The opinion of the' Court was delivered by

Poché, J.

This suit involves the title to a tract of land which was sold by the tax collector of the parish of Lafayette, wherein the property is situated, on the 6th of May, 1876, for taxes levied against it for the years 1873 and 1874.

Plaintiff claims under a sale made-to him in April, 1833, by Otto Meine, the owner of the land at the time that the tax sale took place.

At that sale the property was adjudicated to William Brandt, who sold the land to L. E. Salles iu January, 1877.

The defendant Monlezun purchased the same property from Salles in May, 1877.

Plaintiff charges nullity and fraud in all these transactions, and Monlezun, Salles and Brandt are all thus made parties to the suit.

The first ground of nullity is a certificate of redemption issued by the tax collector and by the Auditor of Public Accounts, under date of May 16, 1876, in which it is recited that the taxes and damages for which the property had been forfeited to the State had been paid into the State Treasury by William Brandt for account of Otto Meine, which certificate of redemption wras of record at the date of Salles’ purchase from Brandt, and of Monlezun from. Salles. Hence, plaintiff charges fraud and nullity as to a certificate issued by the Auditor of Public Accounts under date of December 31, 1876, confirming the adjudication and tax deed made by the tax collector to William Brandt.

Plaintiff also alleges numerous illegalities, irregularities and inform alities in the manner of assessing said property for the years 1873 aud 1874 — and in the proceedings which were the basis of the tax sale of May 6, 1876.

Of the number are, want of legal notices, omission to list the property as belonging to anon-resident (Otto Meine, being then a resident of New Orleans), absence of required affidavits to assessment rolls, omission to sell the lands in fifty acre lots, insufficient aud defective description of the property, insufficiency aud irregularity of advertisement of the sale, and other informalities of a similar character.

The defense consisted of numerous exceptions, pleas, answers and amended answers, substantially maintaining the legality of the tax sale, and the just title of the defendants, ending with a plea of the prescription of three years in bar of plaintiff’s suit to invalidate the tax sale, aud the plea of prescription of five years as curing all defects of form and of the proceedings leading to the tax sale.

At a first trial one of the exceptions urged by the defendants was sustained by the district court, whose judgment was, on appeal, reversed by this court, whence the case was remanded to the lower court for trial on the merits of the cause. McDougall vs. Monlezun, 36 Ann. 223.

After the cause was remanded the defendanrs severed in their defenses, and each of their cases was tried separately, resulting in judgments against Brandt and Salles, and a judgment in favor of Monlezun, recognizing his title and quieting him in his possession.

Hence, on issues involving the legality of a certain title we have to deal with a singular state of things, exemplified by a judgment which annuls the tax sale, and by another judgmeut sustaining the title of a purchaser holding under such tax sale.

Plaintiff is appellant as to Monlezun and appellee as to Brandt and Salles.

After a serious study of the case, including a tedious examination of a most cumbersome record, as incomplete as we found it last year, (38 Ann. 230), we conclude that the case turns on the two following questions :

1st. Did the certificate of redemption issued on the 16th of May, 1876, annul the tax sale of the 6th of that month, and restore the ownership of the property to Otto Meine 9

2d. Is that part of plaintiff’s action which seeks to invalidate the tax sale of May, 1876, on the alleged grounds of uullities for illegality and irregularity of the proceedings, barred by the prescription of three years, and has that prescription accrued1?

1st. On the first point the record shows the following salient facts as bearing on the issues which we are called to review :

The property in suit had been forfeited to the State for unpaid taxes of 1873 and 1874, in accordance with the provisions of secs. 67 and 68 of act 42 of 1871, and the certificate of redemption was, under its own terms, issued in compliance with sec. 69 of the same act, which reads: ‘‘ That if any person interested in any lot or lands forfeited to the State shall, after the date of the collector’s return, pay to the Treasurer of the State or to the tax collector charged with the collection of the tax for which said property was forfeited, the taxes for which the same were returned, and all taxes subsequently accrued on such land, and 25 per cent damages thereon, and 25 per cent additional for every year or part of year, after one year, the Auditor, upon proof thereof, shall execute and deliver to such person a certificate of redemption of the same.” * * (Italics are ours).

Prom a careful analysis of the language of that section, it appears that the redemption therein contemplated is not from an adjudication or tax sale to a third person, but simply from a forfeiture to the State, and that no payment' is therein contemplated or suggested from the delinquent to the adjudicatee of his property at a tax sale.

It will also bo noticed that tlie privilege of redeeming the property is not restricted to tbe former owner, but it is extended to any person interested. Hence, it follows tliat the imrchaser at a tax sale made subsequently to the forfeiture to the State is included in the persons interested, and that the most frequent exercise of the privilege is found at the hands of the purchaser, who thus relieves his purchase from the effect of the previous forfeiture to the State.

The certificate of redemption contemplated in that section is materially different from, and must not be confounded with, the redemption which results from section 62 of the same act, and therein lies the error of plaintiff in claiming that the certificates of redemption which issued on May 16, 1876, had the effect of necessarily and absolutely cancelling the tax sale of May 6, and the adjudication to Brandt. .

Sec. 62 of the act provides : “ That real estate sold hereafter under the provisions of this act or any former revenue [act, shall be redeem ■ able by the owners thereof, or their legally authorized agents, within two years from the day of sale, upon the payment to the party purchasing at the tax collector’s sales of the amount of the purchase-money 'with 50 per cent additional and all costs, ” * * * (Italics are ours).

It thus appears that the privilege of redeeming the property is restricted to the owner thereof, and that the payment is to be made to the party purehasmg, and not the Treasurer or tax collector. The provisions of this statute assume that the amount of the taxes due to the State has already been paid by the purchaser, and that the forfeiture to the State has thereby been cancelled.

Referring to the certificate, with which we are now dealing, the evidence in the record shows that Brandt, the adjudieatee, liad been in the habit of paying the taxes cf Otto Meine on the property with money which the latter would send him every year. It is shown that Meine was notified first that the property had been forfeited to the State, .and of the payment which he should make without delay to save his land. His answer was that he was out of funds. At the sale, which soon followed, Brandt bid in the property, with the intention of saving it for Meine, obtaining the promise of the tax collector to wait for him for six months without increasing” damages, of which he immediately informed Meine by letter.

At the expiration of that time Meine had failed to come to the rescue, and as the tax collector pressed Brandt, who was powerless to relieve Meine, he sold the property to L. E. Salles, the deputy tax collector, who made the payment out of his own funds into the State treasury, and for whose benefit, as a purchaser, the certificate of redemption operated, in default of Meine’s compliance with the promises made for him by his agent.

In a letter to his attorney, under date of September 12, 1877, Otto Meine corroborates this state of facts, and unequivocally admits that he had paid no taxes on the property after the year 1872, thus confirming the conclusion that the certificate of redemption did not, aud was not intended absolutely to enure to his benefit. His assignee is bound by his acts and admissions in all these matters.

The proceeding was irregular, but the only party who could have derived any benefit from the irregularity was Meine himself, to whom the tax collector had extended an indulgence of six months.

By the payment, at any time between the 6bh of May, 1876, to the 1st of January, 1877, of the precise amount of the adjudication, Meine would have been the beneficiary of the redemption issued to his agent; and it was only on his default that the law took its course, resulting in his expropriation,

We fail to discover any elements or intentions of fraud in the con-, duct of either Brandt or Salles, or any undue advantage which accrued to either under their management.

A difference of only $35 appears to exist between the purchase-price at the tax sale, and the price ($100), paid by plaintiff to Meine for the identical property.

In addition to the facts hereinabove recited the record shows by other circumstances almost conclusive, that the redemption did not enure to the benefit of Meine, from the fact that the sale had already been made, and that under the sale from Brandt to Salles the latter went into possession of the lands, which possession was tranferred to Monlezuu in May, 1877, from which time he has been in uninterrupted possession of the same. This view is confirmed by the Auditor’s ratification of the tax sale in December, 1876, at which time he certified that the lands had not been redeemed by the owner.

Hence, it follows, as we hold, that the adjudication and tax sale of the 6th of May, 1876, was not concelled or annulled by the certificate of redemption issued on the 16th of May, of the same year.

2d. This suit was filed in November, 1883, and the sale attached, and took place, as stated, in May, 1876 ; hence, more than three years had elapsed between the date of the sale and the institution of the suit.

The tax deed is translative of property ; it was executed by a com-potent officer, under the provisions of a law of this State — act No. 47 of -1873 ; it contains a recital of a compliance with all the formalities prescribed by the act; the record shows that, holding under it, the defendant, Monlezun, has been in possession of the property sold thereby for more than three years, and has added to it many and valuable improvements, and the case therefore falls under the prescription established by section 5 of act 105 of 1874.

It reads as follows: “Any action to invalidate the titles of any property purchased at tax sale under and virtue of any law of this State, shall be prescribed by the lapse of three years from the date of such sale.”

In commenting on that provision of law, and measuring its effect and bearing on a plea interposed to an action to invalidate a tax sale, this court recently said :

“ This is distinctly a statute of prescription. It operates not upon the rights of the parties. It does not purport to validate a title which otherwise would be invalid. It simply limits the time w.ithin which owner of the original title shall be allowed to assert his rights against the purchaser at a tax sale.” * *

“ It is a mistake to treat this statute as one intended to cure defeats in tax titles. It is a statute of prescription, barring an action, regardless of the merits or demerits of either title.’.’ Barrow vs. Wilson, 39 Ann. 403.

Hence, in the instant case, the statute must be construed, under the plea interposed as, and held to be an impassable barrier, which eliminates the very right of the court to investigate or consider the grounds of alleged nullity in the tax sale.

.We, therefore, conclude that the judgment in favor of Monlezun must be affirmed, and'the judgments rendered against Brandt and Salles respectively, are manifestly erroneous. •

It is, therefore, ordered, adjudged and decreed, that the judgment rendered below, against William Brandt and against L. E. Salles, be each annulled, avoided and reversed, and that there be judgments in •favor of each of said parties rejecting plaintiff’s demand against them and dismissing his action at his cost in both courts, and it is ordered that the judgment in favor of the defendant, Monlezun, be affirmed with costs.


source: Caselaw Access Project

author: Fenner, J.

license: Public Domain

text:
    No. 9941.
    Mrs. John Faren, Widow and Tutrix, vs. T. J. Sellers & Co.
    Under a written contract by winch the contractor agrees to demolish a building, but containing a clause that “the work of demolition is to be carried out according to the directions of the supervising architect, whose decisions on all points I agree to accept as final,” held: that this operated such a reservation of control over the work as prevented the contractor from being independent, and created the relation of master and servant.
    Held: That even if the relation'of contractor and coutractee existed, yet, if the latter personally interferes in the work, or some part of it, he is responsible for any injury to a servant of the contractor occasioned by such interference.
    Held: If an injury results to a servant from the combined negligence of the master and fellow-servant, the master is responsible notwithstanding tlie contributory negligence of the fellow-servant.
    The master is responsible for the negligence of a servant who stands as his vice-principal aud direct representative, invested with his own authority over inferior servants, and the latter, when injured by such negligence, are not barred by the doctrine .of fellow-servant.
    A servant is only bouud to see patent, not latent, defects; mere knowledge of defects will not bar recovery for resultant injury unless accompanied by knowledge that .they are necessarily dangei ous, and he has a right to rely on the superior knowledge aud judgment of his master, and to act on the assumption that the latter will not expose him to evitable risk, and has taken proper precaution to guard him from danger.
    When the master has created the danger, he Is bound to guard against it, and if he himself does not know or believe that the danger exists, he cannot require superior knowledge and judgment from the servant.
    PPEAL from the Civil' District Court for the Parish of Orleans. Houston7 J.

      Harry H.'Hall, for Plaintiff and Appellee:
    1. Master and Servant. The risk assumed by the servant is the ordinary hazard incident to the employment, and this is synonymous with unavoidable accident. Wood, Master and Servant, p. 738. Unless the act is necessarily and inevitably dangerous, no negligence. Ho. 739, 681. It is not contributory negligence, per se, to engage in a dangerous occupation. Beach, Contrib. Heg. 370 ; Wood, p. 763.
    2. The servant has a right to rely upon the caie and superior knowledge, information, and judgment of the employer. Wood, pp. 749, 751; Thompson. Neg. p. 975.
    An employee is not bound to inquire as to latent defects. He has a right to presume that this injury has been made by the employer upon whom the duty devolves, and although the servant may know of the defects, this will not defeat his claim, unless he knows that the defects are dangerous. Wharton, Heg. § 215.
    3. A propriétor who retains control may direct what shall he done without liability for injury to the contractor’s servants, provided he does not retain control of the means and method pf'ijbs accomplishment. Wood, 599; v. 594; v. 7 Ann. 321; 45 Ills. 455; 15 Wall, 649. / *
    4. • The master is liable for subjecting tbe servant, through negligence, to greater risks than those which fairly belong to the employment. negligence, for which the master is liable, is: I. Hegligence in subjecting the servant to the risk of injury from defective buildings or premises;

      2. Negligence, where the master, or his vice-principal, personally interferes, and either does, or commands the doing of, the act which caused the injury. Thompson, Neg., 2, 069; Beach, Contrib. Neg. 311, 350 ; Wood, Mast, and Serv. 676, 837, 699, 843; Wharton, Neg., § 205.
    The employer may be guilty of personal neg’ect, connecting itself with the negligence of the contractor, so as to render both liable. Cooley, Torts, p. 548.
    5. Whenever the negligence of the master, united to the negligence of a fellow-servant, contributes to the injury, the servant injured thereby may recover from the common employer. Beach, Con. Neg. 313; Wharton, Neg., § 234, 913; Thomp., Neg., ii, 913.
    6. The owner is bound by the same legal obligation to the servants of the contractor, that exist as between him and his own servant, to keep the premises in a safe condition, and is liable to any of the servants of such contractor for injuries resulting to them from defects therein, not under a contract obligation, but by force of the maxim : Sic utcrc tuo ut non alimutn lcedas> Wood, 699 ; Wharton, §§ 232, 234, 199 note ; Cooley on Torts, p. 549.
    7. The servant need only raise a reasonable presumption of negligence or fault on defend ant’s part. The jury may fairly infer from the fact that he had performed similar acts in safety that he was not guilty of negligence in attempting to perform the act which caused the injury. Wood, Master and Servant, p. 777.
    . Chas. 8.. Bice, for Defendants and Appellants:
    Wood on the Law of Master and Servant, p. 593: “ When a person lets out work to another to be done by him, sucb person to furnish the labor, and the contractee reserving no control over the work or workmen, the relation of contractor and contractee exists, and not that of master and servant, and the contractee is not liable for the negligent or improper execution of the work by the contractor.”
    P. 598. — “ Where aperson lets work to be done by another, by contract, or job, which is innocent and lawful in itself, but which may, if carelessly or negligently done, result, iu injury to another, he is not charged with liability if such work is, in fact, carelessly and negligently performed. He is only liable in such cases when the work to be done necessarily creates a nuisance. When it is lawful in itself and in all its details, be is not liable for the acts of the contractor or his servants, unless he retains control over the work and the instruments of its performance. He may personally, or by an agent, superintend the work, and direct as to what shall be done, provided ho does not retain control over the method and means of its accomplishment. Thus, where a person, in erecting a building upon a public street, lets out the stone work to be done by a contractor, under the direction and to the satisfaction of a superintendent employed by him, this reservation is not such a reservation of control over the method and instruments of accomplishing the work, as renders him liable for an injury resulting from the negligent execution of the work by the contractor.” See Park vs. Mayor, etc., 4 Selden, N. Y., 222; G-allagher vs. Southwestern Exposition, 20 La. 943 ; see, also, Wood on Railway Law, vol. 2, p. 1009 et scq.; Patterson’s Railway Accident Law, p. 119 to 130, Hunt vs. Penn. R. R. Co., 51 Pa. Stat. 475; 80 Pa. Stat. 105-6, Wray vs.-Evans ; Shearman & Redfield on Negligence, p. 95; Camp vs. Warden St. Louis Church, 7 Ann. 324-6.
    Even if there were serious doubts as to the meaning of those parts of the contract, which have been, it is contended, incorrectly interpreted in plaintiff’s petition, their interpre - t-ation 'by the conduct of the parties thereto, which would create the law as to third parties, removes that doubt.
    Art. C. C. 1956 — “ When the intent of the parties is doubtful, the construction put upon it, by the manner in which it lias been executed by both, or by one with the express or implied consent of tlie other, furnishes a rule for its interpretation.” See Charge to Jury, Record, p.
    *• Optima legwm interpres consuetudo,"

    And if there were douhts, the interpretation would be in tavor of these defendants. Art. C. O. 1957.
    Beach on Contributory Negligence, p. 369: “ The servant is held, by his contract ot hiring, to assume the risk of injury from the ordinary dangers of the employment; that is to say, from such dangers as are known to him, or discoverable by the exercise of ordinary care on his part. He has, therefore, no right of action, in general, against his master for an injury befalling him for such a cause. His right to recover will often depend upon bis knowledge or ignorance of the danger. If he knew of it, or was under a legal obligation to know it, it was a part of his contract, and he cannot recover.”
    P. 368 — “ If the servant runs the risk with his eyes open, he will ordinarily have no remedy, no matter what the knowledge on the part of the master.”
    P. 370 — “ It is the rule applicable to this subject, that, if the servant, when the defect or danger is brought to his knowledge — when he discovers that the machinery, buildings, premises, tools or any other instrumentalities of his labor are un afe or unñt, or that a fellow-servant is careless or incompetent — continues in the employment, without protest or complaint, he is deemed to assume the risk of such danger, and to waive any .claim upon his master for damages in case of injury.”
    Cooley on Torts, p. 451 — “ The terms in which the proposition has been stated will exempt the master from responsibility in all cases where the risks were apparent and voluntarily assumed hy a person capable of understanding and appreciating them.”
    Leary vs. Boston and Albany R. B. Co., 139 Mass. 584 *. “ But the servant assumes the dangers ot the employment to which he voluntaiily and intelligently consents, and, while, ordinarily, he is to be subjected only to the hazards necessarily incident to his^employment, if he knows that proper precautions havj^o'een iiftgleoted, and still knowingly consents to incur the risk to whiqhAife -mYi be exposed thereby, his assent will dispense with the duty of the mast&r-tóftake such precautions.”
    In Coombs vs. New BeAiord Cordage Co., 102 Mass. 596, the Court charged the jury that," “ if the plaiiNtiff, being of sufficient age and intelligence to understand the nature of the risk †/ó which he was exposed, anS. with full notice of the dangerous nature of the service which he undertook, chose to"contract to do it, he assumed all such risks as were cYlearly within the scope of his employment, and no implied contract could arise on the • part of the master to indemnify him against the consequences of such risks.”
    The instructions,” said the Appellate Court, “ were carefully framed and well adapted to y impress the true distinctions upon the minds of the jury.”
    .* Cooley on Torts, p. 155 — “It has often been, and very justly, remarked, that a man may decline any exceptionally dangerous employment, but if he voluntarily engages in it, he should not complain because it is dangerous.” •
    In an English case, Thomas vs. Quartermaine (Bailway and Corporation Law Journal, April 30,1887), the High Court of Appeals said*. “ The workman who goes to work at a particular place, or confinues working there with knowledge of the state of things there existing, does so voluntarily, and has himself caused his exposure to the risk.”
    A very clearly stated case, upon this point, hut too extended to quote, is that of Sullivan, Administrator, vs. Louisville Bridge Co., 9 Bush (Ky.) 85.
    In Assops vs. Tates, 2 Hurl. & Normans, 767-70, it was contended that there was case for the jury. “"We think not,” said the Court, “first, after having complained of the hoarding [without promise of remedy], and knowing all the circumstances, he voluntarily continued the work.”

      See, also, Billon vs. Union Pacific R. R. Co., 3 Dillon, 328 ; Hough vs Railway Co , 100 U* S. C.,224; Kelley vs. Silver Spring Co*, 34 Am. Rep. 615-620 j Thompson on Negligence. rol. 1, pp. 1008, 905, 996, 936-7, 940 2.
    In Sweeney vs. Bortin & Jones Envelope Co., 5 N. E. Rep. 359, a very recent case decided . by the Court of Appeals of New York, that Court said: -‘The servant accepts the service subject to the risks incident to it; and where the machinery and implements of the employer’s business are, at tile time, of a certain kind and condition, and the servant knows it, lie can make no claim upon the master to furnish other or different safe, guards.”
    Cases could be added ad libitum.
    While the defense goes to claim of plaintiff, it is submitted that, even if liable, the verdict of the jury against them is excessive. Poirier vs. Carroll 35 Ann. 708.
   The opinion of the Court was delivered by

Fenner, J.

The defendant firm became the purchaser of the immense structure known as the Main Building of the World’s Exposition, erected in the Public Park of the city of New Orleans. The object of tile purchase was to demolish it and to convert its materials into marketable lumber. The building was one of the largest ever constructed, covering a space of about 1300 by 900 feet. It was built for a temporary purpose and with great baste. The height and breadth of its spans were unusually large and many of the timbers were of great size and weight, the whole secured by an elaborate system of rafters, ridge-pieces, pujiútás, braces, etc. The -work of its safe demolition was one of great magnitude and reipiifcco^ skill and eare.

- Defendants entered into a written contrae.*; with one J. H. Lynch, the pertinent portions of which are as follows: thai- Lynch was “to take down and lower on to main or ground floor of building; the whole of the trusses of various sizes, namely, the 75 foot spans and sfifty foot spans. In effect, the whole of the internal framing of the biiilding with the exception of that portion known as the gallery section, ,etc., etc.” *■ 6 * “The word truss, or section aforenamed is to mean-the whole of the frame worlc which is in position or place between two uprigihts or posts, and to include plates, braces, jaeh-rafters, ridge-pieces, purlines-, double postsor uprights supporting plates on which foot of seventy-five', and fifty foot spans rests, and also includes the maiu uprights or posts, the whole to be lowered and piled in tlieir respective sizes and scant-lings, etc.” Lynch further agreed to use all necessary and proper braces, struts, etc., so as to secure the safety of the various parts or portions of the above building. The whole of the work of demolition to be carried out according to the directions of the supervising architect, tohose decisions on all points in dispute, I (Lynch) agree to accept as final. If, at any time, I do not use due diligence and do not push the work or carry it out to his satisfaction, and notice in writing having been given me and I failing to carry out the instructions, I agree to forfeit this contract and give up all claim to any money or moneys that may be due to me. I do further agree to accept all responsibility with regard to any accident that may befall or happen to any of my employees or laborers.” Lynch was to receive $5.00 for each truss lowered, weekly payments to be made at the rate of fifty per cent, on amount of work done on certificate from supervising architect, the remainder to be paid on completion.”

We take occasion now to say that the agreement as to Lynch’s responsibility for accidents to employees is brutum fulmen at to plaintiff, and this is admitted by defendant’s counsel.

The supervising architect, referred to in the contract, was one employed by Sellers & Co., who resigned immediately after-wards and no other was employed, the only substitute being a police officer having no pretensions to being an architect, whom Sellers & Co. engaged simply to keep the record of Lynch’s work and to give him certificates for payment.

Immediately after the contract, Sellers & Co. proceeded, through other employees, in advance of Lynch’s work, to strip the building, not only of the sheathing but of many of the important braces and purlines. The purlines are heavy cross-timbers connecting the immense successive trusses or spans with each other, fitted at each end into a slot in the trusses and secured by nails. They were of prime importance in strengthening and maintaining' the structure. There were 18 of them between each pair of trusses. Sellers' & Co. removed all except one on the 50 foot spans and three on the 75 foot spans, the last being one running along the crest of the trusses and one on each side. The testimony is conflicting as to the number and location of the braces removed, and the matter is of slight consequence. There is no question that the result of Sellers & Co.’s work was to weaken the structure beyond the-point of security, to make it dangerous to the lives of all who entered it and to add enormously to the hazard of Lynch’s work. In point of fact, over forty of the-trusses fell of their own weight at different times, and without doubt the whole of the structure was weakened, jarred and in many parts thrown out of plumb. The building was thereby converted into a public nuisance dangerous to all who approached it, and it was subsequently condemned as such in an official report of the city surveyor.

The expert witnesses all agree that the method of demolition thus adopted by Sellers & Co. was improper, unsafe and unscientific, and that the braces and purlines, or at least a greater number of them, should have been left for removal in connection with the trusses themselves as. evidently contemplated by the contract, and as no doubt would have been done had the work proceeded under the direction of a competent architect.

Under this condition of affairs Lynch proceeded with his work and safely removed a large number of the trusses. The method of removal adopted was to bring a'derrick up close to the truss and lash the latter securely to the derrick so as firmly to support it and hold it in position ; then to fasten a gant line to the purline and to disengage the latter from the truss by tension on the gant line, to tear it from its fastenings and then to lower it.

On the occasion with which we are concerned this work had progressed as usual, the truss had been secured to the derrick, and Faren, Lynch’s employee, reached over on the purline for the purpose of fastening the gant line to it, when the purline slipped from its supports, plunging Faren in a fall of seventy-five feet, accompanied by the purline itself which fell on him, occasioning his death.

The widow and minor children bring the present action against defendant for damages, and, on the verdict of a jury, recovered a judgment for $5000, from which the defendants appeal.

The grounds of defence, as we understand them, are threefold, viz.:

1st. That Lynch was an independent contractor, and therefore that the relation of master and servant did not exist between defendants and Faren, the employee of Lynch.

2nd. That if Lynch was not an independent contractor, then that he was a fellow servant of Faren, and the injury resulting from Lynch’s fault, Faren cannot recover.

3rd. That Faren knew the danger and assumed the risks of the work, and therefore cannot recover.

I.

Both parties quote and accept the exposition of the doctrine of independent contractor given by Wm. Wood in his work on Master and Servant, viz.: When a person lets out work to another to be done by him, such person to furnish the labor and the contractee reserving no control over the work or workmen, the relation of contractor and contractee exists, and not that of master and servant, and the contractee is not liable for the negligent or improper execution of the work by the contractor.” Wood on Master and Servant, p. 593.

This is a sound and conservative principle, but the element essential to the discharge of the contractee from responsibility is that he shall not reserve control over the work. This does not mean that he may not reserve a certain kind of power of direction as to the thing to be done, provided the method and instruments of doing the thing are left under the exclusive control of the contractor. “ The simple test is,” says Mr. Wood, “ who has the general control over the work ? who has the right to direct what shall be done and how to do it? And if the person employed reserves this power to himself, his relation to his employer is independent and he is a contractor; but if it is reserved to the employer or his agents, the relation is that of master and servant.” Wood, 611.

In the leading case of Camp vs. the Church Wardens, the contract was for the reconstruction of a cathedral according to certain plans, the contractor agreeing to act “ under the direction and superintendence of the architect appointed by the wardens.” The court found the injury resulted from defects in the plan pursued in prosecuting the work as well as from negligence in the contractor, and held both liable in solido, on the ground that the plan or method of prosecuting the work was under the control of the architect. Camp vs. Church Wardens, 7 Am. 322.

In another case before the Supreme Court of the United States, the contract was for the building of a wharf by the contractor for a railway company, and the contract contained the clause: “ It is understood and agreed that the said G. W. Bayley, division engineer of the company, shall supervise and direet the work- herein agreed to be done, and that the said work shall be done to his said satisfaction.” Considering the nature of the work, the court held that this clause operated a reservation of control over the method of conducting it which rendered the company responsible for injury resulting from defect in such method. R. R. Co. vs. Hanning, 15 Wall. 650.

A recent case, perfectly analogous to the instant one, arose before the Supreme Court of Massachusetts, where the contractor entered into a written contract with trustees, by which he agreed “ to take down the entire building known as the A. house, or so much theroof as the trustees may request,” and which also provided, “ All of said work to be done carefully and under the direction and subject to the approval of the trustees.” The court held that this reservation of control implied that the contractor “ was subject to their orders as to the time and manner and mode of doing the work; that they had the right to step in and say to him, ‘you are not doing this as we directed you to do it; we direct you to do thus and so, and we direct you to do this in the other way,’ ” and that this brought the case within the relation of master and servant,” and rendered the trustees responsible for injuries resulting from the negligence of their employee. Linnehan vs. Rollins, 137 Mass.

In the present case, two things are apparent on the face of the contract, viz.: 1st. That the work referred to in the contract embraced the entire demolition of the internal framing of the building, including removal of braces and purlines. 2d That the entire order, method and plan of this work of demolition was subject to the control of defendants through their agent, the supeivising architect, whose directions Lynch was bound to obey under penalty of forfeiting all his rights. The nature of the work was such that nothing else but the method of doing it required the supervision of an architect, and we can see no other possible construction of the language employed.

If the architect had directed or permitted Lynch to strip the building as actually done by defendants, before removing the spans, Lynch would have been the servant of defendants quoad the adoption of this method, and they would have been responsible for any injury resulting therefrom. Afortiori are- they responsible when they themselves adopt this method and do this part of the work themselves.

All authorities agree that the immunity of a coutractee depends on his entire abstinence from control, and that if he personally interferes in the work and assumes control of it or of some part of it, and through such interference, whether- as a direct result or as a consequence thereof, injury results to a servant, he is responsible. 2 Thompson on Neg., p. 913, No. 40; Wood, Mast. and Servant, p. 837; Wharton on Neg. §§ 186, 205; Cooley on Torts, p. 548; Gilbert vs. Beach, 16 N. Y. 608; Hefferman vs. Benkard, 1 Robt. 432.

It is perfectly clear that the stripping of the building by the removal of the purlines and braces was an essential part of the work covered by the contract; that the time, order and manner of their removal formed important elements of the method to be adopted in effecting the demolition ; that the adoption of the particular method here pursued was the direct act of defendants themselves; that it was a vicious, faulty and dangerous method, and if the injury to Paren happened as a direct result or consequence of this fault, defendants cannot shield themselves from responsibility under the doctrine of independent contract.

II.

The evidence leaves no doubt that the accident to Paren was the consequence of the acts of defendants in stripping and weakening the building. No other cause is assigned for the breaking of the fastenings and the detachment of the purline from its supports, without which it could not have fallen. This detachment resulted from the spreadiugof the trusses occasioned by the removal • of the numerous purlines and braces which held them in position, and by the jarring to which the building had been subjected in this unsafe condition. As to whether this spreading occurred before or after Lynch began work on this particular truss the evidence is conflicting; but it is sufficient to say it could not have occurred at all but for the removal of the other purlines and the strain to which the structure had submitted.

It is claimed, however, that, notwithstanding the fault of defendants, the accident would not have happened but for the fault of Lynch in failing to comply with the stipulation in his contract requiring him li to use all necessary braces, struts, etc., so as to secure the safety of the various parts of the building.”

This may or may not be true; but conceding it to be true, this would only serve to impute the accident to the combined faults of defendants and of Lynch, and the effect would be, not to discharge defendants, but merely to make Lynch responsible in sólido with them. Camp vs. Church Wardens, 7 Ann. 322; Cooley on Torts, p. 548.

If we treat Lynch as a servant and not as an independent.contractor, and Faren, as a fellow servant, this would afford no protection to defendants. The doctrine is well settled that “ if the negligence of the master had a shaie in causing the injuries of plaintiff, the master is liable, notwithstanding the contributory negligence of his fellow-servant.” Grand Trunk vs. Cummings, 106 U. S. 700; Beach on Cont. Neg., § 96; Wharton on Neg., §§ 234, 913; 2 Thump. Neg., p. 913.

Moreover, under this view of Lynch’s relation as a servant, he would be, as to Faren, a vice-principal or direct representative of the master, to whom Faren would owe the same obedience as to the master himself, and for whose negligence the master would be responsible as for his own. Chicago, etc., R. R. Co. vs. Ross, 112 U. S. Sec. 377; Towns vs R. R. Co,, 37 Ann. 632; Wood on Master and Servant, p. 865.

III.

The final contention of the’defense is that Faren knew the danger, and assumed the risk of the work in which he was engaged.

Without discussing the nice distinctions underlying the application of the principle referred to, it is sufficient to say that the servant is only bound to see patent’defects, not latent ones; that mere knowledge of defects will not bar his recovery unless accompanied by knowledge that the defects are dangerous, and that he has a right to rely upon the care and superior knowledge and judgment of his employer, and to act upon the assumption that the latter would not expose him to unnecessary risk, and has taken all proper precautions to guard him from danger. Wood, Master and Servant, pp. 681, 738-9, 763; 2 Thompson, Neg., p. 975; Wharton, Neg., § 215.

Here the defect which occasioned the injury, viz : the disengagement of the purline, was latent and, of course, entirely unknown to Earen, as otherwise he would not have trusted his weight upon it. It was the result of the vicious and faulty method of demolition adopted by defendants, the more faulty because they dispensed with the supervising architect required by their contract, whose better judgment would, doubtless, have prevented such imprudence. At all events, they created the danger, and were under the highest obligation to guard against it. They admit that they did not know or believe that there was danger. How can they require of Earen more knowledge or better judgment than their own ? He, on the contrary, had the right to rely on their superior knowledge and judgment. He had been engaged on this work from the beginning. Notwithstanding the stripping, a very large number of the trusses had been lowered without accident. He was not bound to anticipate that this particular purline was disengaged, or held to assume the risk of such a peril.

The principle invoked by defendants has no application to this case, and as the injury happened by their fault, they must respond for the damages.

The verdict of the jury was unanimous as to defendants’ liability, one juror stating that he disagreed as to amount of damages allowed, without stating whether he thought they should be greater or less. The jury acted under a charge of the judge, unusually full and clear, and certainly as favorable to defendants as the law would .justify. The judge, in overruling the motion for new trial, announced his conclusion that the law and the evidence were in favor of plaintiff.

After a painstaking study of the record, we agree with him.

Judgment affirmed.

Poché, J. takes no part in this opinion and decree, having not heard the argumentof the case.


author: Todd, J.

text:
    No. 9938.
    Mrs. Josephine Jermann vs. Mrs. Mary Tenneas et als.
    "When aman contracts a second marriage whilst his first wife is living and undivorced, and dies leaving property acquired during the second marriage, if the second wife married in good faith, the estate will ho shared equally by the two wives.
    "Where after the death of the husband the widow of the second marriage recovers an im movable, which had been acquired during her marriage, but from which the husband had been illegally evicted before his death, the property, together with its fruits and revenues recovered at the same time, will belong to the second community and be subject tobe equally divided between the two widows.
    The widow of the second marriage is only accountable for the revenues of the property in her possession received by her after the dissolution of the marriage from judicial demand. She is a possessor in good faith.
    APPEAL from the Civil District Court for the Parish of Orleans. Tissot, J.

      J. O. Nixon, Jr., for Plaintiff and Appellee.

      Braughn, Bucle, JDinlcélspiél and Hart, for Defendants and Appellants.
   The opinion of the Court was delivered by

Todd, J.

The petition alleges in substance:

That Francis Jermann, alias Germaine, contracted marriage with the plaintiff, Josephine Atlinger, in Germany in 1851, and that there was born of the marriage one child, Josephine Jermann, who joins in the suit.

That shortly after the birth of the child, the said Francis emigrated to the United States, leaving his wife and child in Germany.

That after his arrival in this country he contracted a second marriage in the city of New Orleans with one Mary Tenneas, of which marriage there were eight children born, who are named in the petition, and with their mother are made defendants in the suit.

.ThatFrancis Jermann died, in this city, on the 2d June, 1873, leaving an estate, consisting mainly of certain city lots and buildings described in the petition, which were acquired during the existence of the second marriage.

That this property, though inventoried as belonging to the succession of said Jermann, had been sold at sheriff’s sale prior to his death, but that in a suit brought after his death by the widow of his second marriage, the sheriff’s sale had been annulled and the property restored to the succession, and rents of the same recovered to the amount of $7311.

This immovable property, the money thus recovered for the rents of the same, and the revenues thereof since it came into the possession of the defendant Mary Tenneas, widow of the second marriage, are askéd to be community property between the deceased Francis Jermann and the defendant and Mary Tenneas, his second wife, but one-half of it is claimed to belong to the plaintiff, Mrs. Josephine Jermann, the first ■wife.

There is no money judgment prayed for against the children of the second marriage.

To this petition there was an exception of no cause of action ” filed.

Upon this exception judgment was rendered as follows (quoting):

It is ordered that the exception * *■ * in so far)as concerns the money demand against the heirs be maintained, and as to the widow, Mrs. Mary Germaine, as far as same concerns rents and revenues up to judicial demand be alro maintained, otherwise overruled.

From this judgment the plaintiffs have appealed.

The appellants do not complain of the judgment so far as it relieves the heirs of a demand for a money judgment, or of any liability for money received by their mother from any source.

There is, however, some obscurity in the language of the judgment, but we construe it to mean and hold that the defendant, Mary Tenneas, widow, is not liable for the revenues of the property since she recovered possession of it, after annulling the sheriff’s sale, prior to judicial demand. Thus leaving intact the demand for the recovery oí one-half of the immovable property and one-half of the money recovered from the rents of the 6«me by the defendant under the judgment against the party holding under the sheriff’s sale.

The theory of the plaintiff’s suit is that the community growing out of the second marriage of Jermann is composed :

1. Of the immovable described.

2. Of the rents recovered for it whilst it was out of the possession of the defendant.

3. The revenues of the property after possession -was recovered by the defendant and before, judicial demand.

4. The revenues after judicial demand.

As we construe it; the judgment maintained the suits in all the above items save the third — i. e., as to the revenues of the property received before the institution of the suit.

A reasonable construction of the language of the judgment can admit of no other conclusion.

The second item above embraces only money collected for the second community — on account of revenues it is true — but not of revenues received from the property by the widow whilst in her possession, but for revenues enjoyed by another whilst the possession of the property was illegally withheld from her and she was seeking to recover it.

The property itself was not in the posse sion of Jermann at the time of his death. It had been sold at sheriff’s sale. It was afterward recovered by the widow, and with the property was recovered also its fruits during the time it was held by the purchaser under the illegal sale. Both parties admit that the property its If belongs to the community, notwithstanding it was not in possession of the community when it was dissolved by the death of Jermann, and we cannot perceive why the fruits of.that property,when recovered, did not have the same status as to ownership or title as the property.itself.

The only question, therefore, really presented for our solution is, whether there was any liability shown by the petition against the defendant widow of the second marriage for the revenues of the property received by her before the institution of this suit whilst in her possession.

It is not charged in the petition that the marriage with Jermann was contracted by her in bad faith; on the contrary, taking the allegation and prayer of the petition as a whole, it is fairly deducible that it is admitted that she entered into marriage in good faith, in entire ignorance of the previous marriage of her husband and of his having another living wife.

Being thus in good faith as to ti.e marriage, she had a right to believe, and did believe, that she was the owner of one-balf of the property acquired during her marriage and the usufructuary, as widow in community, of the other half and thus legally entitled to receive its fruits and revenues. In other words, that she was strictly a possessor in good faith, and she so remained until informed by this suit of the prior marriage of her husband of the existence of his first wife.

The counsel for plaintiff contend that the question of possession in good faith, and the rights incident thereto, has no application under the circumstances of this case, but only applies to petitory or posses-' sory actions, but we cannot concur in this view. It is of wider scope and significance.

It is in truth the broad principle of equity, of universal application, that a person in possession of an immovable under a just title rightfully and legally entitled to believe he is the owner of the premises, cauuot justly be condemned to pay its revenues to another before the same are demanded of him, and his right to receive them is questioned.

We are supported in this conclusion by the decision in the case of Hubbel vs. Inkstein (7 Ann. 252), where the question was directly presented. It is true that in that case the party sued had been put into possession of the property by an order of court as widow and usufructuary; but that circumstance does not effect the piinciple underlying both cases.

With the construciion placed on the judgment appealed from as above stated, we find no error in it, and it is therefore affirmed with costs.


author: Watkins, J.

text:
    No. 9922.
    S. D. Carpenter vs. S. B. Camp et als.
    The books of a commercial partnership are receivable in evidence, and are entitled to great weight and consideration when they bear upon the disputed questions of fact and with reference to which the testimony of witnesses is conflicting.
    In case the business of the partnership has been almost exclusively conducted by onp member of the firm, and the books havo been kept by him, the other is entitled to introduce evidence of the incorrectness of the entries contained therein, and also to show that others, not entered, should be made; but this is subject to overthrow by countervailing testimony.
    APPEAL from the Twenty-third District Court, Parish of Iberville. Talbot, J.

      Samuel Matthews aud Leonard, Marks & Bruenn, for Plaintiff and Appellee.

      A. A. Browne and David N. Barrow, for Defendants and Appellants.
   The opinion of the court was delivered by

Watkins, J.

This is a suit for a partition of the property of a sawmill partnership, by licitation, and the settlement of its affairs between tbe'partners.

The wife of the defendant (Camp) was made a party to the suit, but upon the exception of the curator ad hoe appointed to represent her, an absentee, it was dismissed as to her. Upon like exception the attachment was dissolved and the garnishees discharged.

At this juncture, the defendant, Camp, likewise a citizen of Hall-ville, Texas, appeared by counsel and filed an answer, and submitted himself to the jurisdiction of the court. There is no dispute in respect to what property remains for division aud partition, and none in regard to the necessity and propriety of sale to effect it.

It appears that, prior to March, 1882, there was a partnership existing between J. H. Mallory and the plaintiff m the saw-mill business. The domicile was in Caddo parish, this State, and the defendant, Camp, was employed by the company, a! a salary of $4 per day, with an eventual interest in the business. It was in contemplation of the parties — a part of their agreement — that, when the net earnings of the mill should pay the amount of the original investment, Camp should become a partner. Before this arrangement was consummated the plaintiff became the owner of Mallory’s interest in the plant, and it was transferred to Hallville, Harrison County, Texas, in March, 1882.

Camp, assuming, and obligating himself to pay the deficit on the investment of Carpenter and Mallory of $1590 24, was admitted into full and equal partnership with the plaintiff.

The style of their firm was S. D. Carpenter & Co.

This contract was a verbal one.

The mill was operated at Hallville, Texas, from date of its establishment there until the 19th of June, 1883, when Camp* acting for S. D. Carpenter & Co., sold the entire plant to one J. J. McDearmont, for the price of $5611 23. He removed same to the parish of Iberville, this State, and therein re-established it, and began the manufacture of lumber. He made various payments on the purchase-price, whereby same was reduced to $1932 80, as shown by the books of S. D. Carpenter & Co. In the meanwhile Camp purchased from McDearmont an undivided half interest in the plant, and they formed a new partnership, styled McDearmont & Camp.

In so doing Camp assumed and promised to pay to S. D. Carpenter & Co. the balance due them by McDearmont on the purchase-price of the mill. Subsequently McDearmont & Camp became insolvent, and made a cession, and upon their schedule of liabilities placed S. D. Carpenter & Co. as their creditors at the sum above stated.

At a judicial sale made of the effects of the estate of the insolvents Camp became the adj udicatee for S. 1). Carpenter & Co., of the saw-mill and appurtenances. The tableau of distribution therein filed shows that only a dividend of 31"per cent was due creditors and entitling S. D. Carpenter &_Co. to $602 28.

Deducting this partial payment, and the balance due by Camp, on his assumption” is'$1330 52. In this manner the plant was restored to S. D. Carpenter & Co., and these various mutations of title have produced, in great part, the differences and disputes between the partners.

As the business of this firm was to be under the management and general superintendence of Camp, the books of the concern were either kept by him, or others, under his direction.

They were retained by Camp until about the 1st of February, 1885, when they were surrendered to the plaintiff. During the time the books were in his keeping he caused to be made therein certain entries, of which Camp complains as fraudulent. As soon as he recovered possession of them, he made certain counter entries, correcting and counteracting those made by Carpenter.

These entries and counter entries present the principal controversies for discussion and determination.

These may be enumerated as follows, viz :

1st. Tbe statement of ledger and journal entries in reference to Camp’s purchase of the Mallory interest in the mill, correctly.

2d. The ascertainment of the validity of Camp’s claim for a salary and tlie adjustment of his account, accordingly.

3d. The determination of the amount due S. D. Carpenter & Co. by Camp on account of his assumption of the indebtedness of McDearmont, and the proper correction, if any, of his account.

4th. The proper allowance to be made to the plaintiff for price of mules and wagons sold by Camp.

5th. The adjustment of the item for freight bill paid by Carpenter, Ely & Co. on mill and machinery.

This résumé of the salient points in these complicated transactions enables us to determine the issues more easily.

I.

One of the principal troubles in the way of a settlement — one in relation to which a mass of evidence has been taken — arises from the disputed entries, above referred to.

The books of a commercial partnership are receivable in evidence, and are entitled to great weight and consideration, when they bear on disputed questions, and with reference to which the testimony of witnesses is conflicting and unsatisfactory. In the instant case the books seem to have been kept exclusively by the defendant up to the date the alleged fraudulent alterations were made. Up to this point we may safely assume that the books are correct, and at least, binding on the defendant. But we know of no rule whereby the plaintiff can be precluded from makiug an examination of them, or from introducing evidence to show their incorrectness; but the burden of proof is on the plaintiff, and he must prove the alleged errors by a fair and satisfactory preponderance of testimony. .

The books, when thus considered, show — at a date anterior to the plain tiff’s correction — there was, viz :

A balance against Carpenter of............................$4,077 20

A balance against Camp of................................ 2,730 14

Both parties concede this.

H.

The transaction in reference to Camp’s purchase of an interest in the Carpenter & Mallory mill in 1882, and which is the stepping-stone to theformatien of the partnership of S. D. Carpenter & Co., is thus stated on the latter’s books, as kept by Camp, viz:

“Mill account............................................$1,590 24

“ To Sundries :

“S. B. Camp............................................ $643 36

“ S. D. Carpenter.......................................... 946 88

In point of fact Carpenter & Mallory were indebted to Camp $643 36, and this formed a part of the amount he assumed in purchasing the mill. It should have been treated as a part payment on the amount of purchase price.

It should not have been placed to his credit.

Had Camp paid Carpenter $946 88 he would have been entitled to one-half interest in the mill. But he did not have the cash, and could not pay it. So Carpenter and Camp agreed that this matter should be settled by making proper entries in the books. The one just quoted is the one made by Camp. The proper entry would have been a charge against Camp and a credit to Carpenter of $946 88.

So the books should be corrected by charging Camp $643 36, in order to offset his improper credit of that amount, and he should be charged with the $946 88 due to Carpenter. The judge a quo made the latter correction only. His judgment must be so corrected as to charge Camp with $643 36 in addition.

■ III.

An examination of the evidence has satisfied us that the demand of Camp for an allowance of $4 per day, or $1200 per annum, as a salary, in addition to one-half of the profits, is unfounded, and we concur in the decree of the district judge rejecting the same. He found that the defendant had only withdrawn, on that account, $525, and only charged him one-half of that sum — $262 50. We find, from the books, that he has withdrawn the sum of $582, and should have been charged with the entire amoimt. The situation is just the same as if he had expended, unduly, that sum for any purpose, disconnected from the partnership, He is chargeable with it.

IV.

As is' fully shown in the statement, Camp purchased of McDearmont an interest in the mill and appurtenances, after the sale to him, and its removal to the parish of Iberville; and, as the price, agreed to assume, and promised to pay S. D. Carpenter & Co., the balance J. J. McDearmont was owing them, on his purchase thereof, as shown by the books of said company.

By this assumption said indebtedness became that of Camp, notwithstanding S. D. Carpenter had not released McDearmont.

As has been shown above, this balance is $1330 52, and he must be charged therewith, on settlement.

V.

It is difficult to determine the proper allowance to be made in favor of the plaintiff, on the score of mules and wagons belonging to him, that were sold by the defendant Camp.

It does not appear from the petition that the plaintiff makes any definite and special claim on this score. But evidence was adduced on this issue; the parties argue it in their briefs; the judge a quo has examined and decided it; and specific claim is made in plaintiff’s and appellee’s answer to the appeal of defendant, for an increase of judgment on that account.

Under these circumstances we are of the opinion that the interest of both parties would be better subserved by the decision of it than by its remission to a separate suit.

On this score the plaintiff claims $1812 63, and the eutries on the books show that Camp realized that sum for the mules and wagons belonging to Carpenter, but there appears to have been a previous transaction between Carpenter and Forrest and Munden, in which the former became the purchaser of mules for the price of $600, with which sum Carpenter is charged on the books, and Forrest and Munden are credited. There is a strong probability of this amount having formed a part of the consideration of the subsequent sale by Camp to Forrest and Munden, of Carpenter’s stock. If so, then the latter is not entitled to charge Camp with it. We are of that opinion. Inasmuch as the firm of S. D. Carpenter & Co. had no interest in these mules and wagons, and Camp acted as agent, or negotiorum gestor for Carpenter, he should be held to account for the surplus of the price of sale, above the $600 Carpenter had withdrawn from the firm in making the investment, and with which he is credited back. The surplus is $1212 63.

The defendant’s counsel insists' that when these mules were sold, and their price credited to D. Carpenter, he was a debtor of the concern for a sum exceeding the credit, whereby same was consumed. He instances the general balance of account against him of $4077 20 with which we prefaced our opinion. That, of course, is “begging the question.” Conceding the respective balances against the partners the question remains: are those balances correct, or should they be increased or reduced 7

On this question he concludes his argument in these wolds :

“There were returned, of those teams, one by Munden and one by Eorrest, value of $600, which leaves Dr. Carpenter, a creditor of the firm, $850.” Not alone is this admission directly opposed to his previous assumption, but it is itself incorrect in two particulars, viz :

1st. That Carpenter did not thus become a creditor of S. D. Carpenter & Co., but of Camp, who received, and is chargeable with the whole.

2d. That he incorrectly subtracted the $600 from the $1450 representing the two transactions with J. B. Munden and O. P. Eorrest; 'he should have subtracted it from the total sales of $1812 63. Had he done so, the amount to which Carpenter is entitled would have been shown to be $1212 63, as above stated.

. VI.

There seems to be no dispute in regard to the freight bill of $231 85 that Carpenter, Ely & Co. paid for Camp, and which Dr. Carpenter refunded to them. This sum should be credited to Carpenter and charged to Camp.

VII.

The judge a quo ascertained and decided that the plaintiff had not accounted for the sum of $500, which he had withdrawn and used in his settlement with Garrett & Key, of Marshall, Texas, and that this sum should be charged to his account. Of this there is no satisfactory account given by his counsel, and defendant has not requested an increase of the allowance in his favor; hence, this part of the decree of the lower court must be undisturbed.

It is, therefore, ordered, adjudged and decreed, that the judgment appealed from be, and the same is hereby amended in the following particulars, viz:

1st. By charging the defendant Camp with the sum of $643 36, on account of his purchase from Carpenter of one-half interest in the mill.

2d. By charging Camp with $682, money improperly applied to the discharge of his claim for wages.

3d. By charging Camp with-$1330 52, the amount he assumed to pny S. D. Carpenter & Co. for J. J. McDearmont.

4th. By charging him with $1212 63, as the surplus of the price of the sale of mules and wagons of Dr. Carpenter, above the $600 he had withdrawn from the firm in making the investment in them.

5th. By charging him the sum of $231 85, the amount of his freight bill on the mill that was paid for him by Carpenter, Ely & Co., and subsequently refunded to them by Carpenter.

It is further ordered, adjudged and decreed, that the judgment and decree appealed from be, and is, hereby affirmed in all other respects ; and that, when the partnership property shall have been sold, the proceeds thereof shall be first applied to the payment of the debts of the partnership, which are fixed at the sum of $134 57 — this being the amount admitted by both parties, exclusive of the claim of Mrs. R. E. Camp, which cannot be considered, inasmuch as the suit, on her own motion and exception, was dismissed as to herj and next to the satisfaction of the sums awarded the parties respectively this de cree, and the residue shall be divided equally between the partners.

The cosfs of appeal are taxed against the defendant and appellant, and those of the lower court are to be shared equally by the partners.


author: Bermddez, C. J. Eenner, J.

text:
    No. 9943.
    A. Riggs & Bro. vs. Mrs. Jesse K. Bell et als.
    Defendants have a right to object to a cumulation of several distinct causes of action against tliem, where these have no cognate origin, and where they have no common interest to bo adjudicated upon in one judgment.
    They may sever, but are not bound to do so.
    In a suit in damages for the wrongful obtention of an injunction, the plaintiffs in injunction the sureties on the bond and an alleged instigator or fomentor of the proceeding, though sued, some ex contractu and others ex delicto, may be joined as defendants in the same suit' reserving their right of severance in their defenses.
    Consent cannot give jurisdiction; and when our attention is called to a defect of juiisdic* tion rationc materice, we are bound to rectify it, whatever the laches of the parties.
    APPEAL from the Civil District Court, Parish of Orleans. Monroe, J.

      Thomas J. 8emmes, Albert Voorhies and Branch K. Miller, for Plaintiffs and Appellants.

      James Timony, SamH L. 6-ihnore and J*. B..HUI, for Defendants and Appellees.
   The opinion of the Court was delivered by

Bermddez, C. J.

This is a suit in damages for the wrongful obtention of an injunction.

It is brought against the plaintiff in the injunction case, the sureties on the bond and another party, represented as having maliciously instigated the proceeding.

The amount claimed is $7000.

The defendants excepted on the ground of misjoinder of parties, the instigator pleading further, prematurity, and no cause of action.

Prom a judgment sustaining the defense the plaintiffs appeal.

It is evident that the suit is based on a contract, as to certain defendants, and on a tort as to others.

It is, therefore, apparent that the defendants are all brought in on distinct causes of action.

This would be sufficient to justify their objection, if these causes had not a cognate origin, and if the defendants had not a common interest to be adjudicated upon in one judgment. 32 Ann. 1165.

It is clear that the plaintiffs had a right to two actions, one on the bond, another on the tort; but in the exercise of the first right, they could not claim from the sureties, more than the amount for which they had agreed to make themselves liable-by contract, in case the injunction was decided to have been wrongfully obtained.

It is also clear, that they could have joined in the same action, the principal and the sureties, although more be claimed of the former than could be of the latter. Conery vs. Conners, 33 Ann. 373.

If they had the right thus to sue the principal and the sureties, although liable for different causes and for different amounts, it is impossible to discern why they could not bring in the alleged instigator, who may be held liable for the same reason that the x»’incipal cau be, and which is not the fact of the giving of the bond, but simply the wilful perpetration of a wrong, from which damages have resulted, and for which liability may be incurred without bond.

The defendants surely have a right to sever in the defenses, but this they are not bound to do. This right has been more than once recognized, 17 L. 421; 38 Ann. 187; but this is no reason why they cannot be brought in together to defend the suit, where the causes have a cognate origin, and they have a common interest to be adjudicated upon.

The law abhors a multiplicity of actions, and favors the institution of suits against all defendants who may be liable for the same original cause, and who may have an interest to resist a plaintiff.

Interest revpublicce ut sit finis^lithm.

In the present instance it is apparent that, if the defendants collectively and separately are liable, it is for causes which have a primitive source, namely, the wrongfully procuring and execution of the injunction, that it matters little, or not at all to them, whether they can be held for the damages said to have been sustained because of a contract or because of a tort, and that they have a decided interest in defeating plaintiffs’ claim, for if they succeed in their defense, they will have shielded themselves from all future molestation.

The principle here announced was formally recognized in Waldo vs. Angomar, 12 Ann. 74, in which the court distinctly held that defendants have a right to object to a cumulation of several distinct causes of action against them, unless they have a common interest to be adjudicated upon in one judgment. To this conservative rule we adhere.

It now remains to consider the pleas of prematurity and no cause of action offered by the alleged instigator or fomentor of the injunction proceeding.

We have not been shown how those pleas can hold, and we do not perceive on what they are made to rest.

No doubt the fvrst is based on the assumption that a suit does not lie against him until after damages shall have been awarded against the principal in the case, and the second on the absence of a sufficient charge to hold him liable.

| jjThe first objection might be considered, if urged by the sureties, but it cannot be countenanced when presented by the alleged instigator, for he is sued at least on the same ground which would have sufficed to hold the plaintiff in injunction responsible had no bond been furnished.

The second objection lacks foundation, for, if it be true that this defendant acted maliciously, and so instigated the plaintiff to bring, without probable cause, the injunction proceedings which were instituted, and if the injunction is shown, by legal evidence, to have been wrongfully obtained, it is palpable that this defendant could be held liable for the injnry which may be proved to have been sustained.

The exceptions ought to have been overruled.

It is, therefore, ordered and decreed, that the judgment appealed from be reversed, and that the exceptions be overruled and the defendants ordered to answer. It is further decreed, that this suit be remanded to the lower court for further proceedings according to law, the costs from the filing of the exceptions and those on appeal to be paid by the defendants.

On Application por Rehearing.

Eenner, J.

Counsel for the parties defendant who were sureties on the injunction bond, and against whom the plaintiffs only claim a judgment in solido for $750, now call our attention, for the first time, to our want of jurisdiction in this case so far as they are concerned.

As no such suggestion was made at the hearing, and as one of their counsel actually appeared and argued the case, we should certainly hold them bound, if consent could give us jurisdiction. But neither neglect nor consent of parties can absolve us from our duty to obey the Constitution, and if that denies us jurisdiction we must heed its mandate.

The record shows that these defendants filed separate and independent exceptions of misjoinder, aud, as to them, the judgment of the court a g\ia maintaining the exception and dismissing the action as in case of non-suit, was final so far as any right of review by this court was concerned.

We must, therefore, amend our decree in this respect.

It is, therefore, ordered and decreed, that our former decree be now amended so to restrict the reversal of the judgment appealed from to the exceptions of Mrs. Bell and of Alexander Hill;' and it is further ordered that, as to the other defendants, the appeal be dismissed.


text:
    No. 9944.
    City of New Orleans vs. Joseph A. Shakspeare et als.
    Possession “ under the title of owner M is one of the essential conditions in the prescription of thirty years by which the ownership of immovables can be acquired without any need of title or possession in good faith. C. 0., Art. 3500.
    If it appears that the party who pleads the prescription of thirty years acknowledged at any time before his possession, covers a space of thirty years, that the title of ownership was in his opponent, his plea is defeated, and his alleged ownership is destroyed.
    The prescription of ten years, established by Art. 853 of the Civil Code, by which a possession under an erroneous fixing of boundary lines, prescribes the title of his opponent who sues for a rectification of an erroneous boundary line, applies only in an action of boundary, and not in a petitory action, in which the prescription of thirty years alone can be invoked in support of ownership without a title or possession in good faith. ■
    APPEAL from tbe Civil District Court, Parish of Orleans. Houston, J.

      Walter R. Rogers, City Attorney, and W. F. <fi R. O. Mellen, for Plaintiff and Appellee.
    1. He who would sustain his plea of the prescription of thirty years must show, by satisfactory evidence, a continuous and uninterrupted public and unequivocal possession, under the title of owner, for the full term of thirty years. O. C. 3500 [3465], 3436.
    2. The burden of proof is on him who pleads this prescription to prove it, and he must show, by evidence satisfactory to the court, the beginning of the possession adverse to that of the true owner, that the court may determine if the full term of thirty years has elapsed; and where the evidence has failed to establish the beginning of such posses, sion, but leaves it doubtful, whether the possession has been slightly over or slightly under thirty years, the plea cannot be maintained.
    3. To possess under the title of owner one must have the natural or civil possession of the lands, and at the same time the intention to possess as owner — that is, the intention of claiming title to the land in possession, though it be beyond the true line of the party possessing, whenever and as often as any other person shall set up or claim title thereto. C. C. 3436, 3443, 3454, 3499, 3500, 3501, 3505, 3486-2, 3487.
    4. If one, honestly (honestly though mistakenly) believing that his lot is bounded by a certain fence, take possession up to the fence, and hold possession thereof under the belief that he is owner, but afterwards, within thirty years from the beginning of his possession, discover that the fence is not the true line, but is on the lot of his neighbor, and acknowledge, or assent to, or silently acquiesce in, or fail to dispute the claim and title thereto set up by his neighbor to the land beyond the true line, or fail to assert his own title thereto, or propose to purchase the title thereto from the true owner, he has not held possession under the title of owner for thirty years, and his plea must be overruled. Frederick vs. Brulard, 1 Ann. 382, 383; Babineau vs. Cormier. 1 N. S. 456, 460-1; Broussard vs. Dubamel, 8 N. S. 11,15.
    5. If one in possession, called on by the true owner to vacate the premises within thirty years from the beginning of his possession, do not claim title in himself, or deny it in the person requesting him to vacate, but simply reply that vacating the premises will be an inconvenience to him, because he will have iron castings to remove, and at the same time know that the person requesting him to vacate is thetrue owner, prescription will be interrupted. C. O. 3520 and articles before cited; Gibbs vs. Nelson & Donalson, 16 Ann. 275; Baker vs. Pena, 20 Ann. 52 ; Wilson vs. Bannen, 1 R. 556, 557.
    6. If one in possession, knowing another party to be the true owner, within thirty years from the beginning of his possession of such property, offer to purchase the property from the true owner, prescription will be interrupted.
    7. In respect to public rights the city of New Orleans, as a municipal corporation, is not within the ordinary rules of prescription. A lot belonging to the second municipality of New Orleans became the property of the city by the act of consolidation of 1852. It was formerly used as a public pound; afterwards for the workshops and repair shops of the city, and continued to be so used up (o the 9th day of November, 1880, when it was leased by the city to Jacques Levy. The long use of the lot as a public pound and for the public work of the city was a dedication of the lot to public purposes and rendered it non-prescriptible. The lease to Levy did not destroy its character. The public nature of the lot affected every part of it; and defendants cannot be permitted to prescrib e against that part occupied by them, even though they may have occupied for more than thirty years. 2 Dill. Mun. Corp., § 675; Parish of Plaquemines vs. Fulhouze, 30 Ann. 64.
    8. The defendants having paid no tases on the property in dispute, and having made no improvements thereon, are not in a condition to invoke an estoppel en pais against the plaintiff’s suit for possession.
    9. The fact that the lease to Levy was for a term longer than nine years did not constitute it a contract of sale. The intentions of the parties were clearly to make a contract of lease. The laws of this State do not limit the duration of a lease, provided it be not perpetual. The action was properly brought in the name of the city. Pothier “Traite Du Contract de Louage,” parti, eh. 1, No. 4, and part 1, cb. 2, No. 27; Troplong “Du Contrat de Louage,” No. 4 and No. 22 ; Laurent, tome 25, sec. 4, et seq.; O. C. 2674 et seq.

      H. Howard, McOaleb, for Defendants and Appellees :
    1. Tli© interruption of prescription only dates from the service of citatio”, or defendant’s appearance and answer; and not from the filing of the petition. 8 N. S. 129 ¿ 6 li. 142 $ 30 Ann. 779.
    2. A commercial partnership cannot own immovable property ; the partners are joint own ers. 3 L. 494; 23 Ann. 419; 10 L. 420 ; 7 M 244.
    3. Thirty years continuous, uninterrupted, public and unequivocal poesession of real estate, as owners, gives' title, in Louisiana, without the possession being in good faith. B, C. C. 3475, 3499, 3500, 3503, 3502, 3503; 24 Ann. 452. If the possession commenced in good faith, subsequent had faith will not prevent the prescription. B. C. C. 3482.
    4. Ten years’ adverse possession, under an erroneous boundary line, prevents rectification of the error by proscription. B. C. C. 852 and 853 ¡ 7 U. S. 117; 20 Ann. 343.
    5. A dedication of property to public use cannot be inferred, it must be established by evidence sufficient to exclude every other hypothesis but that of dedication. 5 L. 132 ; 0 L. 153 18 L. 122, 286 ; 19 L. 62; 10 B. 357; 3 Ann. 287; 7 Ann. 233 ; 7 Ann. 498.
    A sale, or a lease of property, to a private person for private purposes, by a municipal corporation, conclusively establishes the fact that such property is not a locus publicus and hors de commerce.

    6. In a petitory action, plaintiff must recover on the strength of his own title rather than on the weakness of his adversary’s; and where a better title is shown, in a third person; the action will he defeated. 22 Ann. 57; 3 B. 206 ; 10 B. 505.
    7. Where a lot is leased for a period of fifty years, and the consideration or rent is payable cask in advance, such contiact is a sale and not a lease; for the essential character of a lease, in which it principally differs from a sale, is that it only has a temporary or lim ited duration, and the price or rent should be divided in annuities or short periodical in,, stallments, representing the fruits or revenues of the thing leased. Thus, the cession of the enjoyment of a thing during a certain number of years, for a unique price, is a sale and not alease. L’Argentre, Cout. Bret, sur 1’art. 52, note 2, n. 5 Fonmaur, Lods et Yc-ntes, Ch. 18, n. 528; Troplong, Louage, 1.1, n. 22; Troplong, dela Yente, 1.1, n. 204; Lurauton, t. 17, n. 37; Duvergier, Louage. t. n. 35; Potkier, Louage, n. 4 , Marcade sur Part. 1713; C. 3J. t. 6, p. 423etseat

   The opinion of the Court was delivered by

Poché, J.

This is a petitory action by which the city seeks to recover a piece of immovable property alleged to have been in the illegal possession of tlie defendants for twenty-seven years, and rents for tile use of the same at the rate of $100 per annum for twenty-seven years.

The defense is the prescription of ten and of thirty years.

The district court sustained the plea of prescription of thirty years, and the city appeals.

There is no dispute as to the chain of titles under which the city claims the ownership of the property, and the discussion is therefore restricted to the question of prescription.

The undisputed facts in the record are that the lot of ground in suit originally formed part of a larger lot purchased by the city, adjoining a lot owned by tbe defendants, and on which they and their ancestors or predecessors have operated a foundry for many years.

It appears that, between the years 1850 and 1852, up to which time tiie adjoining- lots of the respective parties had remained opened, a partition fence was erected by the municipal authorities on what was then supposed to be approximately the boundary-line between the adjacent estates, and that it was subsequently discovered that the fence had been placed about 32 feet within the city’s side of the correct line, thus leaving that quantity of land of the city on the side of the defendants.

But in the meantime, beginning from the year that the fence had been erected, the defendants had occupied the strip of land in dispute, using it to dispose of the cinders falling from their foundry boilers and also as a place to cool and keep their castings and other materials of ordinary use in and about a foundry. That occupation had been continuous and uninterrupted up to the date of the present suit, which was begun in December. 1880.

Defendants date their possession from November, 1850, and plaintiff contends that there is no positive evidence to determine, with legal certainty, the beginning of their possession. Plaintiff also denies that the defendants’ possession was under the title of owners.

1st. • As this last contention is the pivotal question in the case it calls for our immediate attention.

Under our system of laws the ownership of immovables may be acquired by the prescription of thirty years, without the need of title or of possession in good faith. C. C. Art. 3499.

But “ the possession on which this prescription is .founded must be continuous and uninterrupted during all the time j it must be public and unequivocal, and under the title of owner.” Article 3500 Civil Code.

The record must, therefore, be consulted in order to ascertain the true character of the possession of the defendants, irrespective of the time during which it continued.

From the testimony of two of the members of the defendant firm, it is contended that when their possession began they believed that the lot in suit was their own property, or, in other words, that the partition fence had been placed on the correct boundary line between theirs and the city’s adjoining lot, and their possession, although predicated on an erroneous belief, might be held as long as the belief lasted, to be under the title of owner, animo doniini.

But it appears that the city authorities did not have a similar understanding of the condition of things relative to the lot of ground in suit. Hence, in 1872, it was contemplated by the city surveyor to erect thereon a stable and appurtenances for the use of the city. In furtherance of that intention, one of his officials called on one of the defendants, informed him of the fact, and requested him to remove the things belonging to the foundry, and which were lying about on the piece of ground on which the stable was to be erected. The natural answer to such a message by anyone who claimed to be the owner of the property would have been a vigorous objection to such use of his property or for any purpose by another. But in this instance the defendant merely suggested that such a removal of his things would greatly inconvenience the foundry, and in ending the conversation, offered his own stable for the use Contemplated by the officials of the projected stable, the building of which would thus be obviated.

That incident of itself goes a great way to the conclusion that the defendants’ possession was, in their own minds, not under the title of owner, but that it was precarious and by sufferance, under the superior and exclusive title which the city held.

But in another part of his testimony, in answering the question as to the time when it was ascertained that the city laid claim to the lot in dispute, the same defendant, evidently more, honest than ambitious, made the following candid statement:

“We knew nothing of itj I heard nothing of it until they were some years ago speaking about building a lockup there, and it was surveyed at that time. It was only then that we knew that we were on the city’s ground.”

And in another place, he says: “This was about eight to ten years ago. It was all open the whole block. It was all vacant property then, when we took possession. The fence was put there in 1850. I always thought we did own the property until after the survey.”

While another member of the Arm was testifying in his own behalf, he was asked the following question :

“ After Mr. Shakspeare’s death (father of the present defendant, J. A. Shakspeare), what was the name of the copartnership that owned the lot?” (the lot in dispute), to which he very naively answered :

“ The city owned it.”

Of course the witness misunderstood the question, but his answer is, for that very reason, more significant, as it not only shows, but clearly demonstrates the fact that the witness knew that the lot in question was the property of the city, and that the possession of the firm was precarious and by sufferance, under the admitted ownership of the city.

But any doubt which might still linger in the judicial mind on the subject is altogether dispelled by a consideration of the following incident :

In the beginning of November, 1880, the city executed a lease for a term of fifty years, and for a rental of $1200 to one Jacques Levy, of the entire lot purchased from W. H. Avery in April, 1848 including the parcel of land now in suit. As soon as the passage of the ordinance was made known to the defendants herein; on the very next day, one of the members of the firm called at the City Hall, and offered, in the name of his firm, to the then Mayor, the sum of $1500 for the same and identical privileges which had been conferred to, or obtained by Levy, under the terms of the lease, which, however, had already been signed by the Mayor. One of the reasons suggested by the defendant for his anxiety to secure that lease was the fact that his firm, or foundry, had had the use of the fragment of the whole lot, which is now in dispute, for nearly thirty years.

The irresistible legal conclusion which must be deducted from those truthful and honest utterances of the defendants themselves, is that their possession was.not under the title of owners, at least from the year 1872. And their-testimony fairly justifies the inference that they never, for a moment, doubted that the legal ownership of that parcel of land was in the city. If the message from the city surveyor, in reference to the projected stable, was the first information, or a revelation, of the ownership of the city, hitherto unknown to the firm, why is it that the interviewed copartner did not even express or manifest the slightest surprise at such an extraordinary proceeding, if he understood that the official was calling on his firm to relinquish their own property for the use of the city ?

On the contrary, his only suggestion was that the proposed removal of his castings and other things from the ground would greatly “ inconvenience him,” and the inconvenience was so great that he actually offered the use of his own stable for the housing of the city officials’ horses as the shortest way out of the difficulty.

Is this the language or course of dealing of any owner in the face of a cool and deliberate proposition to oust him of the possession of property which he claimed adversely to the world to be his own ?

But such conduct is natural, and is in logical keeping with the subsequently-avowed knowledge of the defendants that “they were on the city’s ground,” that after the survey they knew that they were not owners, and with the offer made in 1880 of an advaneed price on the Levy lease, as a means of quieting their possession of the property.

We do not mean to hold that knowledge or belief that title is in another of itself defeats the prescription of thirty years; but such knowledge or belief, when accompanied by acts or conduct indicating acknowledgment of the adverse title justifies the legal conclusion that the party pleading that prescription did not claim to be owner, and that his possession is not under the title of owner.

From defendants’ whole conduct, as explained by their own testimony, it appears clearly, to our mind, that they never lost sight of the city’s superior and exclusive right of ownership of the ground which they occupied, to which they admittedly subordinated their right of possession. Now, as the title of ownership is a unit, indivisible in its nature between two hostile or adverse claims to the same right, and as ownership in one person is absolutely incompatible, and cannot coexist with ownership of the same thing in another person, it follows that defendants’ possession was avowedly not under the title of ownership. Thus their case is stripped of one of the essential and indispensable conditions which must characterize the possession on which the prescription of thirty years is founded. C. C. 3500, Wilson vs. Baumen, 1 Rob. 556; Dodsman vs. Barrow, 11 Ann. 87.

We, therefore, hold that the plea of prescription of thirty years is not sustained by the evidence, and not made out under the law.

These conclusions find additional support in the fact that defendants have never had the property in dispute assessed in their name, have never paid taxes on the same, and have never placed any improvements, not as much as a shed, thereon.

2d. The plea of prescription of ten years is predicated on the provisions of Art. 853 of the Civil Code, wdiich reads :

If the boundaries have been fixed according to a common title, or according' to different titles, and the surveyor had committed an error in his measure, it can always be rectified, unless the part of the land on which the error was committed be acquired by an adverse possession of ton years, if the parties are present, and twenty years, if absent.”

But in the case in hand we are dealing with a petitory action, and not with an action of boundary, in which plaintiff would be seeking to rectify an erroneous survey. The article is found in the Code under the title of “ Fixing the limits and of surveying of lands;” and it must be construed with reference to other articles under the same title which tieat of the same subject-matter.

Tile pivotal article under that title, Art. 833, provides that “whether the limits be fixed judicially or extra judicially, it must be done by a sworn surveyor of this State, who shall be bound to make a prooes verbal of his work in the presence of two witnesses, called for the purpose, who shall sign the proees verbal with him.” * *

There is no pretence here that such fixing of limits preceded the location of the partition fence erected by the commissary of the municipality, at the time which he describes as being some time before the consolidation (in 1852.)

It is in proof that the surveyor fixed no stakes or made no marks indicating the precise boundary line, and that the commissary built the fence “ as near the line as he could recollect,” and there is no proof, or even an intimation, that the work of the city surveyor, such as it may have been, was ever accepted by the parties as settling the division line.

A similar question came up before this court in the case of Gray vs. Corvillon, 12 Ann. 730, and similar views were therein entertained and enforced.

We, therefore, conclude that the provisions of article 853 have no possible application to the present contention, in which the prescription of thirty years alone could be considered. Hence the plea of prescription of ten years must also fail.

3d. Defendants also make the point that the contract entered into between the city and Jacques Levy on November 9, 1880, although styled a lease, was in law and in reality a sale, and that, therefore, the city has no more claim to, and has no interest to revindicate, the property in dispute.

That contention rests on the fact that the term of the pretended lease is fifty years, and the whole rental was paid in advance, and not by yearly, or shorter, installments.

A careful examination of the contract leaves us under the impression that counsel can hardly be serious in that contention.

Our Code defines the contract of lease as one “ by which one of the parties binds himself to grant to the other the enjoyment of a thing during a certain time for a certain stipulated price, which the other-binds himself to pay him.” Art. 2674.

In this case the city leases for a term of fifty years and for a stipulated price, which the lessee paid in cash.

And the contract contains the further stipulation that, at the expiration of the lease, the improvements on the property shall revert to the city on certain stipulations not necessary to enumerate here,

The manifest intention of the parties was to enter into a contract of lease, and we must decline to construe them into other and different intentions.

With these views we conclude that the case Is with the city, and that the defendants must he held liable for rents during* their entire occupation of the premises. Prom the record, it appears that the rents are worth about ten dollars per annum. As stated in this opinion, the evidence is not conclusive as to the precise time when defendants’ possession i'egan ; it was between the years 1850 and 1852. For the purposes of rentals we fix it as beginning in January, 1852.

It is, therefore, ordered, adjudged and decreed, that the judgment appealed from he annulled, avoided and reversed, and it is now ordered that there be judgment in favor of the-city of New Orleans decreeing her to be the lawful owner of the property described in her petition in this case, and ordering the Civil Sheriff of the parish of Orleans to place her in possession thereof, and condemning defendants to pay rent on said property at the rate of ten dolíais per annum from the 1st of January, 1852, until the property is delivered or restored to the city, and that defendants pay costs in both courts.