source: Caselaw Access Project

author: Bermudez, O. J. Fenner, J.

license: Public Domain

text:
    No. 10,769.
    Michael Sauer vs. Union Oil Company.
    An appellee is not entitled to be cited to answer an appeal where the motion ot appeal is made and granted in open court within ten days after the signature-o£ the judgment, the order making the appealreturnable to the Supreme Court on a stated day.
    An appellant derives the right of giving a thing in pledge in place of a bond, not from the court, but from the law. A deposit of municipal bonds for an ample amount, made with the Clerk of Court, within the ten days, perfect the appeal.
    The essential allegations of fact contained in plaintiff’s petition are not supported, but negatived even by his own testimony.
    An employee in an oil mill, who is directed by a superior to go to a distant point, with no direction as to the route to take, if he is ignorant of the route, should inquire; and if, failing to inquire and without the direction or knowledge of the superior, he selects an improper and dangerous route through and amongst machinery and passing over and under running wheels and belts, when there were other proper and safe routes, he is at fault and assumes the risk of resulting injury.
    Where the evidence leaves the cause of an injury unproved it can notbe attributed to defendant’s negligence or fault. >
    The failure of defendant to summon a witness who was an employee at the time of the accident a year preceding the trial, in absence of any proof that he-remained in its employ, or was accessible, or was even living at the time ot trial, can not sustain any presumption against defendant.
    APPEAL from the Twenty-sixthDistrict Court, Parish of Jefferson. Host, J.

      W. L. Thompson, E. B. DuBuisson and Branch K. Miller for Plaintiff and Appellee :
    An order of appeal granted on motion in open court can not bemodified, extended or perfected by subsequent proceedings at chambers. Eournet et al. vs. Van Winekle, 33 An. 1109.

      An order of appeal by petition at chambers being defective for want of citation will bo dismissed. Schmitt vs. JDronet & Rabasse, 42 An., No. 8, p. 716; Wheeler & Pierson vs. Petevkin et. ah, 38 An. 663; Succession of Treadwell, 38 An. 260; Eournet vs. Van Winkle, 33 An. 1108; Gerodiasvs Handy, sheriff, ot al., 31 An. 334; Ilardy vs. Stevenson, 27 An. 05; Potior vs. Thibodaux, 21 An. 618; St. Romes vs. Sterling, 21 An. 277; Bolling vs. Anderson, 10 An. 650; Schmidt vs. Benit, 17 An. 74; Pratt vs. Irwin, 5 An. 115; Walker vs. Alartolo, 16 Xj. 50.
    Where no citation is.prayed for and none is issued or served, the fault is inmutable toáppellant. Succession of Treadwell, 38 An. 260; Gerodias vs. Handy, 31 An. 334; Adams vs. Demody, 21 An. 238; Guilbeau vs. Cormier, 21 An. 269.
    Service of petition of appeal, without citation, is no citation. O. P., 179, 581, 582, 583; 1 TIcnnen, Appeal IV (a), No. 5; 7 La. 361; 10 La. 399; 131, 220.
    The failure of a litigant to produce important testimony, easily within his reach, and presumably under his control, raises the presumption that it would have been against him. 41 An. 866; 38 An. 779; 35 An. 694.
    Where there are two modes of performing a service, one safe and the other dangerous, it is the duty of the master, who knows of the two, to« warn the servant, who does not know, of the dangerous mode.
    It is the duty of the master to warn the servant of any danger incident to the business. Wood on 31. and S., p. 718; Wash vs. Poet Valve Co., 110 3Iass. 23; R. R. Co. vs. Port, 17 Wall. 553; 120 3Iass. 427.
    The servant is entitled to all the information the master possesses with regard to the dangers of the employment, not patent to his observation, or which he would not readily understand in consequence of his youth, inexperience, or want of capacity, known to the master. Wood on 31. and S., pp. 725, 730, 731.
    If there exist facts known to the employer, and unknown to the employe, increasing the risks of the employment beyond its ordinary hazard, the employer is bound to disclose such facts to the employe; otherwise he is liable for negligence in case of injury from such unsual risks. Veering on Negligence, p. 313; Wharton on Negligence, Secs. 208, 20!), 211; Tutrix vs. Sellers, 39 An. 1019,1020.
    The master is bound to exercise reasonable care to prevent accidents to his workmen. Wood on Haster and Servant, Sec. 329.
    It is the duty of the master to provide a safe place for the servant to perform his labor. Doering on Negligence, Sec. 199.

      Bayne, Denégra & Bayne for Defendant and Appellant:
    To recover damages for injuries received, it is necessary for the plaintiff to prove that the accident, in consequence of which the injuries were received, was caused by the negligence of the defendant, and that the plaintiff was guilty of no negligence which created or aided the accident. Doikman vs. So. P. R. R., 39 An. 788; White vs. R. R. Co., 42 An. 990; 40 An. 787.
    Plaintiff was bound to make use of liis eyes to see a source of danger which was open and apparent to everybody. He was a child, but had reached the age of reason. Walsh vs. St. Paul and Duluth R. R., 2 Am. and Eng. R. R. Oases, 145.
    He had within his power the means to protect himself. I-Ie chose to take the risk. He was told to do a certain thing, but had it in his power to use his discretion as to the means. Dandie vs. So. P. R. R., 42 An. 689.
    The master is not called upon to point out patent dangers plainly and easily seen by the employed with the use oPordinary care. Smith’s Whitaker’s Negligence, See. 203, p. 347.

      All of the cases cited by the plaintiff refer to extraordinary perils to which employes are subjected without knowledge and without option as to means, etc.
    Plaintiff bears the burden of proof, and must not only make his case probable, but reasonably certain.
    The damages are excessive. 41 An. 1043; 40 An. 810.
    Plaintiff was guilty of contributory negligence, and can not recover. Murray vs. Post It. It., 31 An. 491; Schwartz vs. C. C. It. It., 30 An. 15; Woods vs. Jones, 34 An. 1041; Weeks vs. N. O. & Sp. El. R. It., 40 Ah. 802

      Percy S. Benedict, Lewis Guión and W. S. Bendict on the same side:
    1. In an action by an employe for injuries sustained through the alleged negeclt of his employer, the burden of proof is on the employe. Wharton on Negligence, Sec. 428; Shearman & Bedf. on Negligence, See. 99; 2 Thompson on Negligence, Sec. 1053; Stevenson Evidence, Art. 93, p. 143; 1 Ilonnen, 495, VIII, No. 4; Eouque’s Digest Ev. VIII, No. 4, p. 237; Deering on Negligence, p. 343, See. 215.
    2. A master docs not guarantee the safety of his servants. On the contrary, there is no rule of law better settled than that a servant assumes and accepts the ordinary hazards and dangers of his occupation, such as arc incident to it, and for an injury sustained through such danger he can not recover. Doering, See. 196.
    A master is not bound to give instructions to warn servants against obvious danger. Deering, Sec. 197.
    In providing machinery, appliances or tools for the use of his servants, the master does not warrant their safety; he is not insurer in their fitness; he is not required to see that they are absolutely safe. Dooring Nog., Sec. 198. Where an employe unnecessarily assumes a dangerous position during the course of his employment, and suffers injury thereby, be can not bold his master liable. Deering Neg., See. 212; 95 U. >S. 439.
    3. To recover one must make his claim certain; to make it probable is not enough. 8M. 14; 10 M.419; 14 E. 455; 19 L. 198: 2 R. 27; 12 R. 471; 6An.2S;8An. 25; 10 An. 310; 12 An. 12.
    Plaintiff must prove his allegations or he can not recover. 13 M. 709; 12 D. 29o; 8 B. 101; 2 An. 383; 5 An. 37; GE.31B; IS E. 425; 12R. 518; 5 An. 264.
    4. By the Spanish law, in no case does one witness make full proof of any fact or contract; its maxim is testieu?ms> testis nullus. 3 M. 190.
    One witness can not establish a claim over $500. 12 An. 208.
    The corroborating circumstances must appear aliunde and not from plaintiff’s own verbal testimony. 8 N. S. 45S; 3 L. 214; 2 R. 204; 7 An. 54. o. A master is not bound to give instructions to warn servants against obvious danger. Deering, p. 312.
    6. Where an employe is injured in consequence of a defect in the machinery, .tools or appliances furnished by the employer, the latter is not liable in damages unless he had notice of the defect, or ought, in the exercise of his duty, to have known of it. Deering, p. 344 and cases there cited.
    There is no proof of defective machinery.
    7. In a recent decision your honors held (41 An. 500, Cary vs. Sellers): To maintain an action by an employe for an injury resulting from defective’machinery or appliances, two elements must concur, viz: fault or knowledge on the part of the employer; innocence of fault or ignorance of danger on the part of the employe.

      However gross the fault of the employer in subjecting the employe to risk from such causes may be, yet when the employe knew the defects and danger, and still knowingly and without protest consents to incur the risk to which ho is exposed, he is deemed to assume such risk and to waive any claim for damages against the master for injury resulting therefrom.
    •S.. Contributory negligence on the part of plaintiff bars recovery for injury sustained.
    Well settled principle of law. 27 An.53; 30 An.15; 95U.S.697; 31 An. 491; 32 An. 615, Beach on Cont. Neg. 311.
    *9. Where a person knowingly puts himself in danger lie assumes all risks. Beach on Cont. Neg., 39, 369; Whittaker’s Smith on Neg., p. 137.
    10. Where the plaintiff is in a position that he can do things one way and be a safe way, or do them in another which would not be a safe way, he is hound to do them in the way which would he safe to do such act, and not without any cause for it at all expose himself to danger. Whittaker’s Smith on Nog., 391.
    .11. An employe must observe ordinary care for his personal safety in any employment. He must make reasonable use of his senses to avoid danger and injury in the course of his employment. An employer is not liable for an injury sustained by an employe, where his own negligence or want of care contributed materially to the injury.
    Beering on Negligence, Sections 210, 212, and plaintiff must not only prove liis 'Case, but show due care on his part. Id., Sec. 215.
    Am. and Eng. Encye. of Lnw, p. 23.
    In an action for personal injuries, the plaintiff can not give in evidence to enhance the damages that he had a wife and children. (Nor)
    Evidence that the plaintiff had a family to suppoi't is not admissible to enhance .the damages. Booring on Neg., Sec. 419, p. 654.
   On Motion to Dismiss

The opinion of the court was delivered by

Bermudez, O. J.

In support of his motion to dismiss, the plaintiff and appellee contends that he should have been, and was not, cited, not even asked to be cited, and that the appeal was not perfected by the appellant giving bond, as required by law, within the tan days prescribed.

It appears that a verdict having been returned and a judgment rendered thereon, for $3500, against the defendant — the judgment signed in open court on the last day of the term, namely the 23d December, 1890 — the defendant moved for and obtained a suspensive appeal, returnable to this court, on the third Monday of January, 1891, on defendant furnishing bond, according to law.

The record shows that, subsequently, viz.: on January 2, 1891, •within the ten days following the signature of the judgment within •which a suspensive appeal could be taken, the defendant made another motion, which was granted, to the same effect as that made ■on the last day of the term; and, besides, filed a petition for the same purpose, in which it is alleged that the appellant, being unable to furnish bond with personal security, proposes to avail itself of the privilege accorded by law (Article 3065 of the R. O. C.) and to substitute thereto municipal bonds, specially designated, for the sum of :$6500.

The judge, at chambers, repeated the orders previously made, granting a suspensive appeal, returnable on the stated day, on the appellant depositing the bonds, specifying them, with the clerk of the court, to secure the payment of such judgment as might be rendered on appeal.

On the same day, January 2, 1891, the appellant deposited the bonds with the clerk; an instrument in writing, having the appearance of a bond, being duly drawn up and signed by counsel for the appellant and by the clerk, to show the fact of the deposit, its nature •and object, and the actual delivery of the bond to the court officer.

The complaint of the plaintiff and appellee is, that he was not cited, that no citation was issued to or was served on him, to answer the appeal, returnable to the Supreme Oourt on the third Monday of January, 1891, according to law.

The complaint is evidently based upon the assumption that, under the circumstances of the case, the appellee was entitled to be cited to answer the appeal; but this is a groundless pretension.

There was a motion made in open court on the 23d day of September, 1890, the last day of the term, when the judgment was signed, for a suspensive appeal, which was granted, returnable on the third Monday of January following, to this court, on the defendant furnishing bond, according to law.

That portion of the order allowing the appeal on the defendant furnishing bond according to law was a superfluity. As much may be said of the motion, petition and orders filed, and made on January2, 1891.

The right of appeal is a constitutional prerogative in a case of this description, the amount exceeding $2000, and the judge would have had no discretion to refuse it. Neither would he have had the right to add to or take from the requirements of the law, in such cases of suspensive appeal from money judgments.

The Code of Practice declares that, if the appellant who has obtained the order of appeal, within ten days after the signature-of the judgment and the ten days following the adjournment of' the court holding term in the county, has within that time furnished bond and surety, conditioned as the law directs, for an amount exceeding by one-half that for which the judgment was rendered, execution shall thereby be stayed. O. P. 575, amended in 1870,, p. 49, and in 1890, p. 88.

It is settled that when the appeal is asked and granted in open court within the ten days it is unnecessary to have the appelleecited, because he is considered as present in court and taking notice-of all proceedings transpiring therein in the cases in which he is, concerned, particularly those in which he has obtained judgments to> become executory in the course of time, in the absence of any suspensive appeal.

The judge, in cases in which money judgments are rendered, has, no right to fix the amount of the bond for a suspensive appeal, by requiring it to be either for a larger or smaller amount than that provided by law. The Code regulates that amount, and whatever-the order cf the judge may be in such cases, the appellant furnishes, the bond, as far as the amount is concerned, at his own risk and 'peril.

The motion for a suspensive appeal having been made and granted on the day on which the judgment was signed, and which was the last day of the term, it follows that the requirements of the law were fulfilled carefully, and that the plaintiff and appellee was not entitled to a citation to answer the appeal, returnable here, as already stated.

He is presumed to have been in court when the motion was made and granted, and therefore to have received the notice which the-service of a citation would have conveyed,, of the order allowing the appeal, and making it returnable here on a particular day,, which, in this case, is that fixed by special legislation.

The appeal was perfected within the ten days prescribed by law.

It was useless for the appellant to have again moved and petitioned, on the 2d of January, 1891, for-a suspensive appeal, and for leave to furnish the public securities,, instead, of a personal obligation with a surety, as is usually done.

The appeal had been previously asked and granted. The subsequent proceedings to the same effect were- superabundant.. They* did not amend or modify the anterior ones..

The appellant does not derive from the court, but from the law, the privilege of substituting valuable public bonds to an ordinary security) as is usually done.

Article 3065 R. R. O. distinctly declares that whenever a person who is bound by law to give a surety, can not do so, he is admitted to give in pledge a thing which may be kept without difficulty or risk, and which is to be deposited in the hands of the public officer whose duty it is to receive the surety.

The clerk of the court is the one in whose favor the bond for an appeal is required by law to be made, and he was the officer with Whom the bonds substituted to an ordinary surety were to be, and actually were deposited, to await final judgment. ,

There is no other complaint in the motion to dismiss.

It, therefore, follows that, under the circumstances of this case, the appellee had due and seasonable notice of the motion of appeal and order granting the same and fixing the return day, and that he can not be heard to say that he has not been cited, and that the ap - pellant should have at least prayed that he be thus notified.

Motion overruled.

On the Merits.

Fenner, J.

The allegations of plaintiff’s petition are, that he was an employee of the defe'ndantcompany; that he “was ordered by the foreman of said oil company to go and assist William Baker, also in the employ of the company, in placing a belt on the meal crusher;, that said work was of a dangerous character and required experience, which was known to. the foreman and of which petitioner was unaware; that petitioner, in compliance with the aformentioned command, did'go, and, in assisting to place said belt on the meal crusher, was struck on the right side of the head a painful blow by a defective, old and worn out clutch-lever, of heavy weight, which broke loose from its fastenings,” and inflicted the injuries complained of; and that said injuries were the result of gross negligence and carelessness on behalf of the foreman and officers of said company.

The defendant answered by general and special denials of negligence and by plea of contributory negligence. We have never encountered a case in which the allegata and the probata were so widely different. There is not a word of evidence to show that the work of “placing a belt on the meal crusher” was dangerous; or that the plaintiff ever began or engaged in said work; or that “in assisting to place said belt on the meal crusher ” he was struck by a clutch-lever; or that the clutch-lever was “ defective, old and worn out.”

The plaintiff introduced no evidence whatever relating to the accident except his own oral testimony. The substance of that is, that he received the order from the foreman at a point remote from the meal crusher; that he received no instructions how to go there; that he selected his own route without inquiry, although he professes to have been ignorant of the surroundings; that it passed through and amongst the machinery of the mill; that, in his own words, he “ crawled up ” to a certain platform, where he was quietly standing before he reached Baker or the meal crusher, when he was suddenly struck violently on the head by something, which knocked him off the platform down to the lower floor and inflicted the injuries complained of. He does not pretend to know what struck him, but presumes it was the clutch-lever, because, on recovering from his insensibility, he saw the clntch-lever broken, and did not hear of anything else being broken about the machinery. This is plaintiff’s case, and his whole case, so far as the cause of injury is concerned. Its failure to substantiate the allegations of the petition,and, indeed, the manifest inconsistency between the two, are glaring and startling.

The defendant’s witnesses prove that the route chosen by plaintiff was an improper and dangerous one, involving passage through the machinery and over and under running wheels and belts; and that there were other proper and usual routes which were free from danger.

Plaintiff claims that the foreman was guilty of negligence in not directing him how to go; but the proof shows that plaintiff had been working about the mill for a long time, though he had been working in the interior only for two days prior to the accident. Doubtless the foreman supposed that he knew or would inquire for the proper route; and surely, if he did not know, it was his duty to inquire.

But beyond this, the defendant’s witnesses establish that the clutch-lever was situated entirely below the platform on which plaintiff was standing, and that it was physically impossible, even if it had broken, that it should have flown upward and struck plaintiff’s head.

How the clutch-lever came to break is left a matter of pure conjecture. No cause for its breaking is proved by plaintiff. Nothing else about the machinery was injured. Defendant’s theory is that plaintiff stepped on some running pulley or belt and was violently thrown off the platform down and against the lever, and thus broke it. But this is only a theory.

There is a plan introduced by defendant and a great deal of testimony as to routes and the location of belts and pulleys and platforms, and the levee, etc., which is very difficult to understand. Defendant applied to the court for an order directing the jury and counsel to visit and view the premises, which were very near the court house; but plaintiff objected, and the judge declined to give the order. The evidence showed that the clutch-lever had been mended and was restored to the same position it occupied at the time of the accident, and that all the surroundings were the same. A view of the premises might have enlightened the jury, and the plaintiff’s objection that it would place the jury and counsel in peril to enter such a dangerous place does not savor of serious sincerity. He was keeping light from the jury.

Sauer says that Baker was within about twenty-five feet of him when he was struck, and his counsel arraigns the failure of defendant to put him on the stand as affording a presumption that his evidence would have been hostile to defendant. The accident occurred in January and the case was not tried until December, 1890. It is not shown that Baker remained in the employ, or was accessible, or was even living at the time of the trial; nor is there any showing that he was observing plaintiff when the accident occurred. It is plaintiff’s case that needs additional proof, not defendant’s. There is no ground for the application of any presumption in such a case.

On the whole we think the verdict and judgment can not be sustained, for three reasons:

1. The proof is irresponsive to the complaint.

2. It fails to establish any fault or negligence on the part of defendant.

3. The weight of evidence establishes imprudence and fault in plaintiff in selecting, without inquiry, an improper and daiigerous route.

It is therefore ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and reversed, and that there be now judgment in favor of defendant^ rejecting plaintiff’s demand, .at his cost in both courts.


author: Fenner, J.

text:
    No. 10,708.
    L. H. Fernandez vs. James Smith and H. Gormley.
    2. A purchaser of property at tax-sale who notifies the occupant of his purchase, and, on being informed that the tax has been paid and that the owner has the tax-receipt, repeatedly requests the latter to produce the receipt and makes all efforts to secure such production without avail, can not be held in damages for taking the proceedings authorized and directed by the statute to be put in possession. He is protected by the principles of damnum absque injuria and volenti non fit injuria.

    2. But -when, after the occupant is ejected, full evidence is exhibited to the purchaser of the payment of the tax for which the sale was made, with a demand for dismissal of the proceeding, the refusal of the purchaser, compelling the owner to resort to an injunction suit in order to protect the property and keeping her out of possession, places the purchaser in the wrong and makes him liable for all damages subsequently accruing.
    PPEAL from the Civil District Court for the Parish of Orleans. Voorhies, J.

      Harry L. Edwards for Plaintiff and Appellant:
    1. A widow seeking to recover from a third person, or to maintain an action concerning property belonging to the community, should establish the marriage as conclusively as any other fact. Her capacity to stand in judgment is as essential a fact of proof as any other, especially when her right to sue has been put at issue by the pleadings. 15 An. 410.
    2. The refusal of the judge a quo to give to the jury a special charge involving a matter of great import to the party on whose behalf the request is made, and where the charge relates materially to the defense, will be sufficient cause for the setting aside, on appeal, of the verdict.
    8. Where a person proceeds in the usual way, under Act No. 82 of 1884, to obtain possession of property bought by him at tax sale, and his writ of possession is sued out in good faith, he is protected by the order of court, should the tax sale be illegal, from any damages caused by the ejectment to the party injured. Under no circumstances could more than actual damages be allowed; never vindictive damages. 35 An. 518; 15 An. 133.
    4. When an injury would not have happened,except for the culpable negligence of the party injured, concurring with that of the other party, no action can be maintained. 34 An, 10S6 and 180; 31 An. 154, 490; 5 Otto, U. S. 441.

      A. J. Lewis, for Defendant and Appellee:
    The verdict of the jury pronounced in such case, after patiently hearing the testimony from the lips of the witnesses before them, in a long and full trial of the cause, in the constant presence of the lower judge, and with his approval, will not be diminished. But this honorable court will even increase the damages allowed, when insufficient. 3 H. S. 151, 152;4An. 448; 17 An. 30, 50; 20 An. .455, 458; 30 An, 220; 41 An. 1125.

      In assessing such damages, actual loss and expense incurred, attorney’s fees, public scandal, mortification, anxiety oí mind, etc., are all to be considered. -MeFee vs. R. R. Co. 42 An. 797; Hamilton vs. R. R. Co. 42 An. 829.
   The opinion of the court was delivered by

Fenner, J.

Under Act 82 of 1884, Fernandez purchased at a tax sale, made to enforce an alleged unpaid tax of 1871, a piece of property described in the tax deed as follows: “ A certain lot of ground in the Third District of the city, in the square bounded by Spain, Mandeville, Villere. and Robertson streets, designated as lot — in square 615, said lot — measuring 32 feet on Spain street, by a depth of 128 feet * * *. Said property was duly assessed in the name of Henry Gormley-for the year 1871, and of which property James Smith is the present owner.” ■

There was in this square a lot, the title to which stood in the name of James Smith, which lot fronted on Spain street, though the dimensions given in the title were slightly different. James Smith had died, but his succession had not been opened, and the recorded title had not been changed. The property was then occupied, one-half by his widow, Mrs. Barbara Smith, and the other half by a tenant who leased from her.

Notwithstanding certain variances in descripción, he concluded, as we think not unnaturally, that this was the property covered by the tax sale and deed. It appears that, in the case of several other properties bought by Fernandez at this sale for the tax of 1871, the owners had produced their tax receipts.

Fernandez, therefore, through his counsel, wrote a letter notifying Mrs. Smith that he had bought the property at tax sale for the tax of 1871, and requesting that she call and see about it, and, if the tax of 1871 had been paid, to bring the receipt. Her son called and told him that the tax had been paid and his mother had the receipt, but he did not bring the receipt. Numerous efforts were made by Fernandez and his counsel to get the parties to show the tax receipt, and they were informed that, if they produced the receipt, they would not be troubled. We need not go into details as to this evidence; it satisfies us, .that though they always claimed to have the receipt, they never exhibited it as requested. The following letter addressed to the counsel of Fernandez shows the spirit in which they acted:

“Dear Sir: I wish to let you know that Mr. Smith is dead, and give you to understand that I have the State tax receipt for 1871, and all others, and if you wish to see it you call at 86 Urquhart street; Mr. George Smith will show them to you. Now you enter suit and when you get done, I will tend to you.
“Yours Dearly Friend,
“ Mrs. George Smith, 86 Urquhart street.”

In response to this letter, Fernandez called on George Smith, as requested, but failed to get a sight of the receipt. Fernandez says Smith told him, May be he had the receipt and maybe he did not; for him to enter suit,'and after it was over he would attend to him on the outside.” Smith denies this, and says he didn’t show him the receipt, because he had returned it to his mother, and told him to go to her and see it. At all events he failed to get sight of the receipt.

We have weighed this evidence very carefully, and we are quite satisfied that the Smiths were in fault for not showing the tax receipt, which would certainly have obviated all further trouble.

Fernandez had nothing left but to resort to the judicial process provided by the Act 82 of 1884.

Section 4 of said act reads: “That'all the sales under this act shall vest in the purchaser an absolute and perfect title to the property conveyed without redemption, and it shall be the duty of any court having jurisdiction of the value of the property sold, to issue an order to the sheriff, upon presentation of a duly certified copy of the deed, commanding him to forthwith seize the property described in said deed; and after three days’ notice of such, to either the former owner’or occupant of said property, the sheriff shall put the purchaser into actual possession of the property, unless enjoined by a court having jurisdiction.”

Fernandez applied to the court in the manner prescribed, and on exhibition of his tax deed, the writ of possession was issued and due notice served on Mrs. Smith.

The law plainly indicates that the object of the three days’ notice was to enable the defendant to avoid ejection by the proper proceeding. But Mrs. Smith waits- in silence until she has been actually ejected. She is not shown to have exhibited her tax receipt even to the sheriff’s officers who-ejected her, which might have delayed their action.

Up to this point, we think Fernandez was undoubtedly protected by the principles embodied in th.e maxims damnum absque injuria and volenti non fit injuria.

He acted under the warrant of the State and in the mode expressly directed by the State in the statute above quoted. He had taken every precaution and had given Mrs. Smith full warning and opportunity to save all trouble by the simple exhibition of the tax receipt. She disregarded the legal assertion of his rights. It is her own fault if she suffered thereby. The law can not justify a party having a perfect defence against a claim, of which the claimant is ignorant, in concealing the evidence of the defence when repeatedly called on to produce it, and then claiming damages when the claimant is driven to legal proceedings.

After she had been ejected from one-half the premises, however, Mrs. Smith consulted her lawyer, and placed in his hands the title deed and the tax receipts, including that of 1871, making up the clearest possible ease that Fernandez had r.o right whatever against the property. These were exhibited and explained to Fernandez and his counsel, and the demand was made that the proceeding should be dismissed. It was the obvious duty of Fernandez to do so.” He now assumed a position which placed him clearly and outrageously in the wrong. He demanded that Mrs. Smith should pay his costs and attorney’s fees, which was utterly unwarrantable. He then required that she should sign a document relinquishing all claim for damages, to which he had not the slightest right. He then refused to dismiss the proceeding, and drove Mrs. Smith to the necessity of instituting this injunction proceeding in order to recover that part of her property from which she had been ejected, and to stop proceedings to eject her tenant from the other half, upon whom -notice had been served. She remained out of her property for nearly a month, and was compelled-to rent a house to live in. She might have been kept out until the termination of the suit had she not taken the responsibility of moving back, to which no opposition was made. Under the notice served on the tenant, the latter refused to pay her rent and the rent was lost.

The jury rightly considered that she was entitled to damages, but under the circumstances of this case, and considering her conduct prior to the ejectment, already commented on, we think the allowance of §750 is excessive, and that §350 is- ample to cover all her actual damage.

It is therefore adjudged and decreed that the verdict and judgment appealed from be amended by reducing the damages allowed to §350, and that as thus amended the same be now affirmed, appellee •to pay costs of this appeal.


text:
    No. 10,840.
    H. & C. Newman vs. Cannon, Sheriff, et al.
    •Sales made in Louisiana, by agents of nonresident vendors haying power to make complete and binding- contracts, o£ goods to be delivered and actually delivered in Louisiana, constitute Louisiana contracts, subject to Louisiana law, and entailing tlie vendor’s privilege»
    Article 8230, Rev. O. C., excludes the vendor's privilege on merchandise sold only when the goods have been unpacked and so mixed with other goods of tlie purchaser that their identity can no longer be established.
    8. The vendor who claims a privilege upon merchandise sold, which has been unpacked and mixed with other goods of the purchaser, must clearly show that they remain capable, by inspection, of indentification, and must identify them with reasonable certainty,
    APPEAL from the Twelfth District Court, Parish of Avoyelles. Coco, J.

      Thorpe <& Peterman for Plaintiffs and Appellants:
    1. Sales of property perfected in other States do not carry the vendor’s privilege when sued upon in Louisiana unless such privilege be affirmatively proved to be accorded by the laws of such States. 41 An. 1048.
    2. Privileges are strioti juris, and, as against third persons, must be clearly and conclusively established. They can be claimed only for those debts for which they were expressly‘granted in the Code, and they are not to bo extended from one case to another. R. C. 0., Arts. 3183, 3185; 13 Án. 52; (i An. 113, 376; 3 An. 429; 17 La. 162, 442; 38 An. 217.
    3. Qne asserting the vendor’s privilege upon merchandise must prove clearly and conclusively, as to third parties, that the specific goods upon the price of which the privilege is claimed, were bought from the claimant by the debtor in whose possession they are seized, and that those specific goods have not been paid for. R. C. C., Arts. 3227, 3230.
    4. The exact amount of money realized by the sale of merchandise upon which vendor’s privilege is asserted must be proved before the court will, by judgment, enforce the privilege for a specific sum. 37 An. 863.

      Irion & Lafargue for Defendants and Appellees:
    A purchase of goods from a resident of another State, for delivery in this State» evidences a contract to' be executed in Louisiana. The vendor of such property is entitled, under our laws, to the vendor’s privilege. 86 An, 859.
    A contract made by a duly authorized agent having power to bind his principals springs from the law of the place where the contract was made, 41 An. 1048.
    A power of attorney that confers the right to an agent of a mercantile firm to make any and all business contracts, confers the authority to sell goods.
    The privilege of the vendor is recognized and enforced upon goods which have been sequestered in the purchaser’s possession, whose identity has been established, and which have not been sold confusedly with the other things of the purchaser. C. G., Articles 3227, 8228, and 8230.
    The vendor’s privilege is never extinguished as long as the sheriff holds the property or its proceeds, so that the property has not been sold confusedly with the mass of other things of the vendee. 11 An. 475.
    Privilege is only lost on goods when mingled with an old stock of the purchaser, so that none ofthem can bo identified. 19 La. 278.
    The Supreme Court has not the power to revise the judgment of the Circuit Court of Appeals. 22 An. 465; 27 An. 669.
    Creditors who, upon agreement of counsel, took part, by examination of witnesses, introduction of testimony, and argument of counsel, in an action brought by others against a common debtor', will be considered as parties to said action, and are estopped from questioning the privilege of the creditors in whose suit they thus figured. As to them, the issues passed upon and decided by judgment are res adjiuUcata.

      W. Hall for the Defendants and Appellees:
    Vendor’s privilege superior to others when goods remain in hands of purchaser. O. C. 3227.
    Seizure and sale of goods do not extinguish vendor’s privilege as long as the sheriff holds the property or the proceeds, and property has not been sold confusedly with other goods. 11 An. 475.
    .Judicial estoppels arise from pleas filed, or a position taken in the coui'se of judicial proceedings.
    Any statement thus made is taken as the solemn affirmation of the truth, and the party can never withdraw from a position thus assumed. Cross on Pleadings, par. 59, p. 68; 31 An. 82.
    Though a judgment in an antecedent suit may not constitute the technical basis of plea of res adjudicata, yet it may be ground for estoppel. Cross on Pleadings p. 68; 7 An. 458.
    In proceedings in concurso, all.parties are plaintiffs and defendants.
    The evidence introduced by an opposing creditor may be used by the rest; and they will be bound by that introduced in favor of claim so opposed. A creditor can not take advantage of part of evidence of another opponent and reject answers to interrogatories drawn from creditors whose claim is opposed.
    Nach opponent may introduce further evidence, but that spread upon the record can not be divided. Cafiin vs. Pollard, 9 Bob. 300.
   The opinion of the court was delivered by

Fenner, J.

The case presents a conflict between plaintiffs, who are attaching creditors, and certain creditors who claim the vendor’s privilege.

D. Blum was a merchant carrying a general stock of merchandise, the whole of which was attached by EL & O. Newman. .Thereupon, numerous other creditors, who claimed privilege as vendors on particular portions of stock, sued Blum and issued writs of sequestration under which they seized the goods on which they respectively claimed the privilege, which goods were already in the hands of the sheriff under Newman’s attachment.

The whole stock was sold under order of the court, the various lots of goods on which privileges were claimed being appraised and sold separately.

The several suits were separately tried. H. & C. Newman obtained judgment against Blum, with privilege on the property attached.

The other creditors also obtained judgments against Blum, recognizing the privileges claimed on the particular goods sequestered.

Although EL & O. Newman were not parties to the several sequestrations brought by the creditors claiming privilege, an agreement is found in the record under which their attorneys were accorded and exercised the right to take part in the trial and argument of said case; and it was further agreed that, “in the event of subsequent proceedings for judicial distribution of said fund, the evidence offered at the original trials of said suits be used in said proceedings for distribution,” and also that, in event of appeal from the judgment of distribution, the said evidence should be copied in the record.

The suggestion is advanced that, by reason of this participation of H. & C. Newman in the trial of the sequestration suits, the judgments rendered therein have the force of the thing adjudged against them; but we think the whole tenor of the agreement indicates that its sole purpose was to avoid the retaking of testimony in the distribution proceedings, by allowing the attaching creditors to excercise their right of cross-examination and argument in the original suits.

We think the attaching creditors are not bound by the judgments thus rendered, but had the right to contest the privileges claimed in the distribution proceedings and on appeal therefrom.

The present appeal is taken from the final judgment of distribution arising on a rule taken on the sheriff, by EL & C. Newman, to show cause why he should not pay over to them the proceeds of sale remaining in his hands, to which rule the creditors claiming special privileges were made parties.

The judgment allowed the several privileges claimed, of which the appellants, H. &. O. Newman, complain on various grounds.

I.

Two of the creditors claiming privilege, viz., Scharff Bros, and the Mansur & Tebbetts Implement Co., are merchants of St. Louis, and, as to them, the point is made that the sales were Missouri contracts governed by the law of that State, which does not recognize the vendor’s privilege.

The evidence is very positive that the sales were made in Louisiana by agents of the vendors, who had full power to make final and binding contracts, and that the goods sold were to be delivered and were actually delivered and accepted in Louisiana. There is no room for controversy that such .a dealing locates the sale in Louisiana and subjects it to our law. The case of Claflin vs. Meyer, 41 An. 1048, relied on by appellants, is really authority against them, because the absence of the characteristics above stated is made the conspicuous reason for the denial of the privilege there claimed.

II.

We can not approve the construction sought to be placed by appellants’ counsel on Article 8280 of our Code, which is as follows: When the things reclaimed consist in merchandise, which sold in bales, packages or cases, the claim shall not be admitted if they have been untied, unpacked or taken out of the cases and mixed with other things of the same nature belonging to the purchaser, so that their identity can no longer be established.” •

The counsel contends that the mere facts of unpacking and mixing with other goods of the purchaser, are intended to exclude the claim, and that the qualification, ‘1 so that their identity can no longer be established,” only assigns the reason why-the legislator ordained the exclusion. This construction deprives the qualification of all force and effect, and would give the statute the same meaning which it would have if it had not been inserted at all. This is contrary to sound rules of construction, and we think it very clear that the statute means such a mixing with other goods of the purchaser as would disable the vendor from establishing their identity.

III.

Nothing remains except an examination of the evidence in the several cases to establish the identity of the goods on which the respective privileges are claimed.

So far as the claims of L. Godchanx, Scharff & Bros., and the Mansur & Tebbetts Implement Company, are concerned, we do not understand that there is any dispute that they have sufficiently established the identity of the goods sold by them. .

The claims of A. Lehman & Co., Jaubert Bros., A. Baldwin & Co., and the Haller Manufacturing Company, present serious difficulties.

Lehman & Co. and Jaubert Bros, are jobbers in dry goods, dealing in goods not manufactured by themselves or dealt in exclusively by them. The evidence does not satisfy us that a large portion of the goods sequestered by them remained in such a situation that their identity could be established. They seem to have based this identification largely upon the claim that all the dry goods found in Blum’s stock had been bought from their firms, and that what did not belong to one belonged to the other. This is not the kind of identification required by the law. The goods themselves must remain capable of identification; otherwise the privilege is lost. The evidence altogether is unsatisfactory and contradictory. Doubtless a part of the goods were satisfactorily identified, but another part, consisting of numerous remnants of staple goods, which might have been bought from any dealer, certainly did not admit of such identification. The record does not present the means of distinguishing those which could, from those which could not, be identified; or what were the respective prices brought.

• The claim of A. Baldwin & Oo. is subject to similar objections, and, in addition, the fact is exhibited by the record that, in the case of several articles, the number identified, sequestered and sold actually exceeds the number sold to Blum. Thus, while the account sued on exhibits sales of only two dozen hatchets, four French pots, etc., the list of goods identified and sold by the sheriff shows four dozen hatchets, twenty-one French pots, etc. This shows how uncertain was the means of identification, when applied to such goods as cow-bells, sheep-bells, files, monkey-wrenches, paint-pots, ovens, chains, coil,of rope, etc.

The account of the Haller Manufacturing Company comprises tinware, of which they were manufacturers, and hardware. The former was doubtless easily and properly identified, But their identification of the articles of hardware exhibits the same uncertainty as that of A. Baldwin & Oo. They also identified and sequestered a greater number of several articles than appeared on their own accounts.

We have no doubt that all of these parties have identified and are entitled to privilege on some of the goods sequestered by them, but not as to all; and the evidence, as now presented, does not enable us to distinguish between them. It may be that under a remanding of the cause, they may be able to improve the certainty of their identification and to separate the price of the goods properly indentified from that of those which can not be identified.

It is, therefore, ordered, adjudged and decreed that the judgment appealed from, in so far as the claims of Scharff Bros., Leon Godehaux and the Mansur & Tebbetts Implement Oo., be now affirmed; and that in other respects, the same be avoided and-reversed and the ease remanded for further proceedings according to law and the views herein expressed. Costs to abide the final determination' of the cause.


author: Watkins, J. Watkins, J.

text:
    No. 10,854.
    Thomas H. Gale vs. John O’Connor.
    1. In ease a public administrator obtains an order o£ court to sell property of a vacant estate, and, under regular proceedings thereafter, the same is sent to sale, and adjudicated for a price actually and really paid, he can. not be proceeded ag-ainst,.as a negotiornm gestor, by persons claiming- an interest in said succession and property, on averment that such sale.was the result of a fraudulent conspiracy on the part of others, in which said public administrator did not participate.
    2. He is entitled to be dealt with as public administrator, and not as a negotiornm gestor.

    APPEAL from the Seventeenth District Oourt, Parish of East Baton Rouge. Buckner,..J.

      Bouse & Grant for Plaintiff and Appellant:
    1. A direct action of nullity will not lie to set aside a probate sale made in Hast liatón Rouge parish in 1872, in succession proceedings provoked by the public administrator. Field vs. Gagne and wife, 31 An. 182; Chapman Ex. vs. Nelson, Id. 341.

      2. If it lies, plaintiff should not be required to bring it, but should bo allowed to attack the sale collaterally, for lack of jurisdiction. Weeks vs. M. L. S. and W R. R. Co., 47X. W. Rep. 737. ■
    3. Xlic sale may be attacked collaterally, for lack of jurisdiction as to the res, or the necessary jurisdictional steps. Pasteur et al. vs. Lewis and Lynd, 39 An. 7,8; Wilson, curator, vs. Imboden, 8 An.. 140; Burns vs. Van Loan, 29 An. 560; Burton and Wife vs. Brugiere and Sheriff, 30 An, 478; O’Donald vs. Lobdcll, 2 La. 299; Bishop vs. Hampton, 15 Ala. 761; Farrar vs. Dean, 24 Mo. 16; Succession of Curley, 18 An. 728; Succession of White, 9 An. 232; Gcrnonvs. Bostick, 15 An. 097; Beale vs. Walden, 11 Bob. 67; Miltenberger vs. Knox, 21 An. 399; Clemens vs. Comfort, 26 An. 269; Xoda vs. Fontenot, 2 An. 782; Harris vs. Xorris Heirs, 11 Martin O. S. 297; Beauregard vs. Lampton, 33 An. 827; O’Donaghan vs. Knox, 31 La. 384; Thompson vs. Whitman, 13 Wall. 457; Ferguson vs. Crawford, 70 X. V. 253; Bloom vs. Burdick, 1 Hill, 138; Sfcarlmek vs. Murray, 5 Wend. 148; People’s Sav. Bank vs. Wilcox, 15 R. I. 258; Augustin vs. Avilla, 29 An. 887; Sevier vs. Sargent, 25 An. 220; Fowler vs. Gordon, 24 An. 270; De la Ferriere vs. Kngland, 27 An. 686; Woolfolk vs. Woolfolk, 30 An. 139; Maspero vs. Urquhart, 24 An. 114; Martin vs. Cannon ot al., 25 An. 225; State ex rol. Pearson vs. Judge, 22 An. 61; Beckham vs. Henderson, 23 An. 446; Oalvit vs. Mulholland, 12 Rob. 258; Womack vs. Womack, 2 An. 389; Lc Page vs. Gaslight Co. 7 Rob. 183; Jfllliot vs. Labarre, 21,a. 326; Galpin vs. Page, 18 Wall. 350; Orepps vs. Durden, 1 Smith, Lead. Oa. 978; Gaines vs. Dela Croix, 6 Wall. 720; Thatcher vs. Powell, 6 Wh. 119; Klliot vs. Piersol, 1 Peters, 328; Williamson ys. Berry, 8#How. 495.
    4. The sale in this case was void because there were no debts alleged or proved. Burns vs. Van Loan, Burton and Wife vs. Brngier and Sheriff, O’Donald vs. Lobdcll, Bishop vs. Hampton, Farrar vs. Dean, supra, and Succession ofDumcstre, 40 An. 571; Succession of Walker, 82 An. 321; Freeman Judicial Sales, 174, 175; Duncan vs. Veal, 49 Tex. 603; Paul vs. Willis, 7 S. W. Rep. 357; Harwood vs. Wylie, Id. 789.
    f> The sale was void because the appointment of administrator was made before . inventory. Shelby vs. Bacon, 16 IIow. 56.
    6. It was void because the inventory showed a value more than the jurisdictional amount under Art. 1190, O. C.
    7. It was void because no notice was given of the application for appointment of administrator. Girod's Ileirs vs. Girod’s Kx’rs., 18 La. 394; King vs. Lastrapcs, IS An. 582; Pfarr & Kullman et al. vs. Belmont, 87 An.294; Succession of Henderson, 2 Rob. 391; Succession of Talbert, 16 An. 230; Succession of Gusman, 35 An. 404; Succession of Curley, 18 An. 728; Succession of White, 9 An. 232; Love vs. Banks, 3 La. 480; Succession of Porter, 5 Rob, 96; Caldwell et al. vs. Glenn, 6 Rob. 9; Succession of Phelan, 20 An. 355.
    8. The sale was void because not advertised for thirty days, the property sold being immovable; Brush vs. Ware, 15 Peters, 98; Soye vs. Maverick, 18 Texas, 100; Case of Lettrius Alrio, Copp’s Land Owner, 1886, 1G3; Gernon vs. Bostick, 15 An. 697; Succession of Weber, 16 An, 420; Civil Code, 1164, 1166; Succession of Hebrarcl, 18 An, 485.
    The sale was void because the succession having been accepted by heirs many years before, did not exist in 1872. Pasteur et al. vs. Lewis & Lynd, Bealo vs. Walden, Miltenberger vs. Knox, Clemens vs; Comfort, I-Iarrod vs. Norris Heirs, Beauregard vs. Lampton, Soye vs. Price, Augustin vs. Avilla, Sevier vs. Sargent, Fowler vs. Gordon, De la Ferriere vs. Kngland, Woolfolk vs. Wooli'olk, Maspero vs. TIrquhart, Martin vs. Cannon et al., State ex rel. Pearson vs. Judge supra, and Succession of Durnford, 25 An. 456; Succession of Hacker, 28 An, 446; Succession of Grehan, 25 An. «384; Beckham vs. Henderson, O’Donaldvs. Lobdell, Le Page vs. Gaslight Co., Calvitvs. Mulholland, and Womack vs. Womack, supra.
    10. Such acceptance would be presumed in favor of the heirs against a stranger, if it were not averred. Civil Code, 1014, 1017; Ware et al. vs. Jones, 19 An. 428; Edwards vs. Hicks, «30 An., Part 2, 926.
    11. By provoking the probate proceedings and sale, defendant became liable to the heirs as 'negotiorum gestor or constructive trustee. McClendon vs. Bradford, 42 An.160; Civil Code, 2295, 2298; 1 Perry on Trusts, Secs. 211, 245, 265, 288; Christy vs. Sill, 95 Pa. St. 380; Weeks vs. Bosworth, 61 Wis. 78; Brush vs. Ware, 15 Pet 93; Hill on Trustees, 246, Notes, and 247; Fitz vs. Keichard, 20 An. 549; Water-house vs. Bourko,14 An. 3.58; Sargent vs. Davis, 3 An. ,353: Soileau vs. Bougeau, 2 An. 966.

      C. C. Bird for Defendant and Appellee:
    1. The parish courts, created by the Constitution of 1868, were courts of general, unlimited jurisdiction in probate matters. Constitution of 1868, Arts. 73 and 87, C: P. 1870. Arts. 921 and 924.
    2. The judgment of the parish court appointing an administrator and ordering a sale of property can not be attacked collaterally. Morgan vs. Locke, 28 An. 806; Duson vs. Dupró, 32 An. 896; Bils vs. Questi, 2 La. 249; Hogan vs. Thompson, 2 An. 539; Davis vs. Stevens,^lO An. 496; Lalanne’s Heirs vs. Moreau, 13 La. 431; McXitt vs. Turner, 16 Wall. 352-366; Grignon’s Lessee vs. Astor, 2 How. 319; . Thompson vs. Tolmic, 2 Pet. 157: Mohr vs. Manierre, 101 XT. S. 417; Comstock vs. Crawford, 3 Wall. ,396; Thaw vs. Bitchie, 136 XT. S. 519.
    3. The existence of debts is not essential to the jurisdiction of the probate court to administer upon small vacant successions under Art. 1190, C. C.; Valderes, Executrix, vs. Bird, 10 Bob. 396; Beal vs Walden, ll Bob. 67.
    4. The appointment of an administrator of vacant succession under Art. 1190, C. C., before inventory, is an irregularity not affecting the jurisdiction of the court.
    5. The appointment of the administrator without notice of the application therefor was an irregularity not going to the jurisdiction of the court. Borer on Judicial Sales, Secs. 72 and 111; Succession of Curley, 18 An. 728, distinguished; Gross on Successions, 402.
    6. Art. 1115 C. C. docs not apply to proceedings under Art. 1190.
    7. The land claim sold was movable and not immovable property, and therefore the ten days’ notice of sale given .was sufficient under 1167, C. C.
    8. The allegation of acceptance in plaintiff’s petition is insufficient. O. P. 1870, Art. 172; Idem, Art. 174; Idem, Art. 175; Balston vs. Barclay, 6 Martin, O, S., 649; Barrett vs. 7/acharie,2 An. 655: Fuoilier vs. Bobin, 4 An. 61; Seghers vs. Lemaitre, 5 An. 263. .
    9. Plaintiff is now barred from accepting the succession of his ancestor under Article 1030, C. C. Succession of Waters, 12 An. 97.
    10. Defendant can not be held as negotiorum gestor, under Article 2295, C. C. Conceding the facts stated in the petition to be true, he is only atrespasser.
   The opinion of the court was delivered by

Watkins, J.

Plaintiff seeks to charge the defendant as a negotio rum, gestor, on the ground that he intermeddled with an unlocated land claim against the United States government, which was reported in favor of Christopher Gale (petitioner’s) ancestor, in 1821, and confirmed in 1846 — said ancestor having died in 1819.

It is alleged, substantially, that, in 1872, the defendant, being at the time public administrator for the parish of East Baton Rouge, provoked an administration of said ancestor’s estate — same being alleged to be a vacant estate worth less than $500 — and caused a simulated sale of said land claim, the only asset of the succession, to be made “ for the bare costs of administration.” And at the sale same was ostensibly adjudicated to D. W. C. Wheeler, who, on the faith of such adjudication, procured from the Surveyor General of Louisiana, in satisfaction thereof, the scrip authorized by act of Congress to be issued therefor; and upon which said surveyor general made an indorsement to the effect that said purchaser was the legal representative of said ancestor.

It is further alleged that said scrip was located upon certain pine lands in the State of Wisconsin, which were, in 1873, patented to “ Christopher Gale, or his legal representatives, and that said lands have since been denuded of timber and sold for taxes, and put beyond reach and recovery by the heirs of said ancestor, of which the petitoner represents one-eighth.”

The petition charges that the said succession proceedings were and are “null and void, for reasons apparent on their face, and because of the fact, aliunde, that the heirs of Christopher Gale had accepted his succession in the year 1828, and there was, therefore, no estate to administer in 1872.”

It also charges that “ the succession proceedings and sale, the procurement of the scrip, its location and patenting, were had, done and continued in pursuance of an agreement, or agreements, between D. W. C. Wheeler, * * the purchaser at the succession sale; A. G. Foster, who acted as his attorney; his brother, E. W. Foster, then surveyor general; D. J. Wedge, who acted as attorney for the defendant in the succession proceedings; and Chapman, Hosmer & Co.,, claim agents at Washington, D. C.”

It is not charged that the defendant was a party to the alleged conspiracy, but it is avowed that he, perhaps ignorantly, permitted his office to be used in furtherance of same.

Alleging that all the other parties named reside beyond the jurisdiction of the court, the plaintiff seeks relief against the defendant alone — his averment being that ‘ ‘ the defendant, by pretending to administer upon the succession of the said Christopher Gale, and the said land claim as [an] asset thereof, became liable as negotíorum gestor to your petitioner for his proportion of the value of the said right to satisfaction in certificates of location for the said land claim of the said Christopher Gale, and of the lands located therewith, viz., in the sum of $4000,” etc.

The prayer of his petition is for judgment in keeping with the foregoing averments.

To this suit the defendant filed an exception of no cause of action; and, also, excepted on the ground that the proceedings in the succession of Gale, described in plaintiff’s petition, were had and taken in pursuance of an order of the late parish court, of the parish of East Baton Rouge, acting as a court of probate; and that the defendant, as public administrator, acted thereunder.

That said judicial order has never been revised, or set aside, on appeal, or in a direct action of nullity; and that same cannot be collaterally attacked in this suit.

He therefore prays the dismissal of the suit.

On the trial of said exceptions, same were sustained and the suit dismissed, and from that Judgment plaintiff prosecutes this appeal.

We are of opinion that the judge a quo correctly ruled in sustaining the defendant’s exceptions and dismissing the plaintiff’s suit.

As a cause of action we are disinclined to regard the averment as to defendant sufficient; for, notwithstanding it is specifically averred that the judicial sale and adjudication to Wheeler was simulated, it is admitted in the same sentence which contains that averment, that the sale had a consideration to the extent of “ the costs of- administration;” and, notwithstanding it is alleged that this sale was procured and consummated by the means and instrumentality of a conspiracy entered into by and between certain named persons, it is distinctly stated that the defendant is not charged to have been a particeps criminis, but it is averred that “ he, perhaps ignorantly, permitted his office to be used in furtherance of the same.” These two averments and judicial admissions are inconsistent with the following averment, that the defendant had rendered himself liable as an intermeddler “ by pretending to administer ” the succession of Gale, and destituting it of said property.

It is clearly inconsistent to charge the defendant with responsibility as a negotiorum gestor, and at the same time to admit that he, as public administrator, procured from the probate court an order for the sale of this property, while ignorant of the alleged conspiracy on the part of others to procure the disposition of the same.

But if it be conceded that plaintiff’s petition discloses a cause of action, it is clear that the order of court, and the proceedings thereafter, can not, on such averments as those previously quoted, be collaterally attacked, or questioned in suits between other parties.

The court that granted the order had complete jurisdiction of the res. The defendant was public administrator de jure et defaeto. The property was duly inventoried and advertised; and it is admitted that at the sale a small consideration was paid. It will not suffice to say now that there were no debts due the deceased then.

In Webb vs. Keller, 39 An. 55, we said on this subject:

“The complaint is made of the order of the court directing the sale, on the ground that the estate * * * owed no debts, etc.
* * *, The debts were subsequently placed upon the tableau, and proved to the satisfaction of the judge who was competent, etc.
* * This was a mere irregularity, and not a cause to challenge the proceeding as null and void.

The same principle was affirmed in Linman vs. Riggins, 40 An. 764.

The defendant must be dealt with as public administrator and not negotiorum gestor.

Judgment affirmed.

On Application for Rehearing.

Watkins, J.

We have carefully examined the plaintiff’s elaborate application for rehearing, and the printed record, opinion, exhibits and brief accompanying same without being convinced that our opinion is erroneous.

The theory of plaintiff’s case is that defendant is liable, and can be proceeded against as a negotiorum gestor; and our opinion holds, that on the state of facts presented he is not <prima faeie liable in that capacity.

The gravamen of the application is that his petition alleges it to be a fact — not a fact apparent of record; not a fact known to the defendant — but a fact aliunde “ that the heirs of Christropher Gale had accepted his succession in the year 1828, and there was no estate to administer in 1872” — hence, the administration was a fiction. This may have been perfectly true as matter of fact; but without allegation of defendant’s knowledge of such a condition of things, it would be intolerable that he should be held as a wrong-doer; while •it would be permissible that the alleged conspirators should be so held afid made responsible for the avails thereof, as well as for the consequences of their acts.

Nothing in'the opinion is intended to deprive the plaintiff of any remedy or redress she may have against other parties, and the same is fully reserved.

Rehearing refused.


author: McEnery, J. Breaux, J.

text:
    No. 10,761.
    Succession of James Regan.
    A stipulation made between a mortgage creditor and an executor and liis counsel, to the effect that the creditor will not foreclose his mortgage, but will permit the sale of the mortgaged property by the executor upon terms of credit, in order that it may realize a larger price, provided the executor and his counsel will not charge commissions or counsel fees upon theproeeeds, will be enforced, if said contract is plain and unambiguous, and free from suggestion of fraud or ei'ror.
    APPEAL from the Civil District Court for the Parish of Orleans. VoorMes, J.

      W. S. Benedict for the Executor and Tutor, Appellee:

      Harry H. Hall for the Opponent and Appellant:
   The opinion of the court was delivered by

McEnery, J.

The dative executor of this succession, by the advice of a family meeting and under an order of court, sold all the property of the succession to pay the debts of the same. D. O. McOan, who, for borrowed money, held a special mortgage on a piece of real estate, concurred in the recommendations of a family meeting, to sell the property on terms of credit.

The sale was made in this manner in pursuance of an agreement between the attorney of the executor and the mortgage creditor, McOan. The agreement between the attorney and the creditor, McOan, was, in substance, that the.'property on which McOan held a special mortgage should not contribute to the payment of theprivil-' eged costs of succession beyond $250, exclusive of the cost of selling the property.

The executor filed a final account and proposed a distribution of the proceeds.

McOan filed an opposition to the account, generally opposing it, and specially insisting upon the enforcement of the agreement with the attorney of the executor.

McOan’s debt was not privileged. The nature of his debt gave him no vendor’s.or other privilege. It was an ordinary debt secured by special mortgage on specific property." It was therefore subject to the general privileges, such as funeral charges, law charges, expenses of last sickness, and the widow’s and minors’claim for $1000, when in necessitous circumstances, and taxes and insurance on the property. The executor or his attorney and the creditor could not therefore make any agreement that would relieve this property from the succession charges which the law imposes upon it.

But there is no limitation upon the agreement that the executor or attorney or any other creditor holding a special or general privilege may make so far as it relates to his debt. He may, of course, renounce it.

In the instant case the attorney and the executor both Agreed, in the interest of the succession, that their fees .and commissions should not exceed the sum of $250. Their fees and commissions were thus reduced in order to induce the mortgage creditor, McOan, to consent to the speedy sale of the property.

There is no dispute as to the effect of the agreement so far as the attorney is concerned. But it is urged that he could not, without his consent, thus .remit the commission of the executor. The executor was a party to all the succession proceedings. He • was necessarily in court and a party to all of them.

In the motion, which was evidently "made by consent, to discontinue the application of McOan to administer the succession of Regan, it stated that the motion is made “ with the understanding that the mortgage of mover is to be paid in full from the proceeds of sale of the Baronne street property, and that said mortgage creditor is not to be made to pay the cost of this succession nor to the executor’s commission or attorney’s fees.”

The agreement .with reference to the renunciation of the executor’s commission and the attorney’s fees is legal and binding.

It is therefore ordered, adjudged and decreed that the judgment .appealed from be amended so as to strike therefrom the amount of $750 allowed the executor as commissions, and the same to be charged to the executor, to be paid out first, on account ■ of the privileged debts of the succession and the homestead of the minor children; and if these have been paid, then to the mortgage creditor, McOan. In other respects the judgment is affirmed.

On Application nor Rehearing.

Breaux, J.

In his brief for a ■ rehearing, the counsel for the opponent, D. C. McOan, states that, while it is true that the only points of serious discussion were the items upon the account of the executor’s “commissions and attorney’s fee” (both, by. our opinion, stricken from the account), and that, although it would seem that the issues of the cause had been fully passed upon, in reality they were not.

That many other disputed items, proven not debts of the succession, if not specially passed upon, will presumably stand.

We have taken up and examined the items of the account seriatim. The following is the result of our examination:

It is admitted that the executor correctly debits himself with collections and proceeds of sale.

On the credit side of the account, the first item is the “sheriff’s cost to effect sale,” $477.85.

The opponent contends it should be $338.85.

The deputy in charge of the sales’ department testifies that it is a correct account, and there is no evidence to the contrary.

With reference to the taxes for'1880, the officer testifies that they were paid, and this seems to be borne out by the. certificate in evidence.

From which it will appear that the amount credited on the account is $1791.65; amount due the city for taxes, $1523.88.

The Orescent Insurance Company’s account, $15.25, it is contended was for insurance on other property than that on which the opponent had a mortgage, and that the amount paid by Home Insurance Company for 1888 was paid by McOan.

We have made a statement of these claims without intending to prejudice the rights of the opponents, or of the succession.

They are not satisfactorily proven and they are dismissed as in case of non-suit.

It is ordered that our decree be amended by dismissing from the account of administration the item for taxes for 1880, and the item for insurance in the Orescent Insurance Company and that for the Home Insurance Company for 1888, and that, as thus amended, the original decree remain undisturbed.


author: Watkins, J.

text:
    No. 10,495.
    Mrs. A. R. Smith vs. City of New Orleans et al.
    ON MOTION TO DISMISS.
    Suit having been brought against a State tax-collector for the revocation of a tax title he had made to the State, and judgment having been rendered annulling it, he is competent, quoad /¿oc, to prosecute an appeal for the State, and stand in judgment here.
    Personating the State, as such a suit concedes him to be, the State tax-collector was under no obligation to furnish an appeal bond, and the judge a quo properly dispensed him from it.
    ON TUB MBRITR.
    1. Notwithstanding a sale to the State was made in the enforced collection of State taxes of 1881, yet, being made in January, 1885, it was authorized by the terms of Sections 52 and 59 of Act 95 of 1882, and theproperty was correctly adjudicated to the State.
    2. The properly was adjudicated to the State, as the last and highest bidder, at public auction. A forfeiture for the non-payment of taxes is, ordinarily accomplished by the registry of a delinquent list, in the office of the recorder of mortgages or auditor of public accounts, whereby the title of alt properties lliereon listed passes to the sovereign by a statutory condemnation .
    3. Section 5 of Act 105 of 1874 is a recognized tax statute of prescription, which limits the time within which the original owner of property alienated for taxes shall be allowed a right ol' action against a purchaser, to invalidate his title. This prescription is sui generis.

    APPEAL from the Oivil District Court for the Parish of Orleans. Ellis, J. .

      B. B. Forman for Plaintiff and Appellee:
    1. A tax sale or other sale of one lot, with one description, can not be made to cover and extended to another lot with a different description. Bell vs. Taylor, 37 An. 56.
    Insufficient or incorrect description in an assessment or advertisement or deed is fatal to a tax sale, whereby a citizen’s property is sought to be taken from him without notice. Ileugliey vs. Barrow, 4 An. 248; Jacques vs. Kupman, 6 An. 542; Wills vs. Audi, 8 An. IS); Wilson vs. Marshall, 10 An. 327; Sutton vs. Calhoun, 14 An. 209; Tliibodaux vs. Kellar,'29 An. 508; Marin vs. Orleans, 30 An. 293; Bank vs. Lanes, 30 An. 871; ltapp vs. Lowry, 30 An. 1272; Person vs. O’Neal, 32 An. 228; Stafford vs. Twitchell, .S3 An. 520; Carter vs. New Orleans, 33 An. 816.
    2. Since the Constitution prohibits the forfeiture of property to the State fornonpayment of taxes, that which is prohibited directly can not he accomplished indirectly by the form of a sale to herself. Article 210.
    3. If the deed does not recite a compliance with Article210, it is void.
    4. -A tax sale without notice or demand, other than by publication, is void. Article 210.
    5. Property, in possession of the City of New Orleans, used for public school purposes, is exempt from taxation and its for taxes is void. Article 207.
    6. Possession is the first essential for the beginning of all prescription acquirendi causa.

    7. Ifiach specific piece of property is only affected by the privilege for taxes on it, and for no other taxes; and if the inscription docs not identify the property, there is no privilege, and it should be cancelled. All taxes and tax privileges are prescribed in three years. Act 13, 1870, p. 11; Act 96,1877, p. 132, Sec. 36; Act 77, 1880, p. 95, Sec. 24; Act 96, 1S82, p. 130, Sec. 34; Act 98, 1886, p. 145, See. 34; Act 85, 1888, p. 124, Sec. 33.
    S. The judgment for the drainage assessments, rendered in January, 1875, in 27 An.. 20, is prescribed by ten years (C. C. 3547), and the inscription thereof should he cancelled in the absence of proof of revival and re-inscription.
    9. This drainage assessment can no longer he collected, and should ho erased as an illegal incumbrance on property. Davidson vs. New Orleans, 34 An. 170; Succession Patrick Irwin, 33 An. 64.

      Bayne, Denegre & Bayne on the same side.

      W. H. Rogers, Attorney General; Wynne Rogers, Attorney for Tax-. Collector, and T. MeC. Hyman, Assistant City Attorney, for Defendants and Appellants:
    When a Tax-Collector's deed of sale of property sold for taxes describes the same as situated in a certain square, the number of the square and the streets hounding same being correctly given, and fronting on a certain street correctly named, with certain measurements within a few inches of being correct, and assessed in the name of a person.who at that time was the owner of the prop- - erty, such a description is sufficient, because by it llio owner would not he misled and the property sold he identified.
    Especially would this be the ease where it is shown that the ownerjpossessed no other property in that square

      The description is sufficient if it does not mislead or deceive one.
    Errors of description can not be taken advantage of when no application has been made to the Board of Review for correction of the same.
    Act 80 of 1888 is a remedial and healing statute, intended to cure irregularities in prior tax proceedings by making the tax titles acquired by the State good and perfect, and tlic assessments under which sales wore made legal and valid.
    The burden of proof is on the defendant to prove the defects complained of.^
    The deed of sale is prima facie valid in all respects.
    All actions to annul tax sales for any irregularities or informalities, of whatever nature, are prescribed by two years from the day the Tax-Collector’s deed is recorded.
    Ender Section 66 of Act 88 of 1886, and Section 65 of Act 85 of 1888, the State is entitled to take possession of the property bought by her at a tax sale.
    The provisions of Sections 51 of Act of 1877, p. 116, and 52 of Act of 1882, p. 186, authorize property sold for taxes to be adjudicated to the State.
   On Motion to Dismiss.

The opinion of the court was delivered by

Watkins, J.

The grounds assigned for the dismissal of the city’s appeal are, (1st) that the matter in dispute is, as to her, less than §2000; (2d) that she is without interest to maintain an alleged sale to the State.

Evidently she is without interest as. to the title of the State to the property in suit; and her taxes are less than §2000 in amount. To this extent, the appellee’s motion must prevail, and the appeal be dismissed. But the matter is different in respect to the appeal of the State Tax Collector. As to him, the grounds of the motion are, (1st) that he is without interest to prosecute an appeal from the judgment rendered; (2d) that no law authorizes him to appeal in behalf of the State; (3d) that if he can legally thus appeal, he can so do only on furnishing bond; (4th) the order of appeal was void, because it dispensed the Tax Collector from furnishing bond; (5th) that the matter in dispute does not exceed §2000, exclusive of interest.

This is a suit to test the adjudication of a piece of improved real ■estate, in the city of New Orleans, to the State, and for that purpose the State Tax Collector was made a defendant.

We think it self-evident that, if the law authorized the Tax Collector to stand in judgment, for the purposes stated in the plaintiff’s1 petition, and the judgment rendered in’ her favor, it also authorized him to prosecute an appeal from that judgment, and stand in judgment on appeal. The theory of plaintiff’s case certainly is that, as the Tax Collector passed to the State, he was the proper person with whom to litigate its validity. .Whether she was correct in that assumption we-need not decide, because she is completely estopped, by her judicial admission of his competency, from now gainsaying it for her own advantage, and to the detriment df the State.

Personating the State, as he is conceded to be, the State Tax Collector was under no obligation to furnish security, and the order of appeal is valid. In the Tax Collector’s answer the value of the property is stated to be $4000, and claim is made for over $2000 of revenues. We think this part of the motion is not well grounded, and must be overruled. Merchants Mutual Insurance Company vs. Board, 40 An. 371.

On the Merits.

The object of this litigation is three-fold, viz.: First, to ascertain whether a tax adjudication to the State covers the property claimed by the plaintiff; second, if it does embrace it, to annul same for want of constitutionality of the law, under the authority of which it was made, 'for want of due compliance with essential requirements of the law, in the proceedings antecedent to the sale, and for want of sufficient description' of property to constitute a valid alienation; third, in the event of either of the foregoing propositions being decided in her favor, her prayer is that, for various reasons assigned, all interfering mortgages and liens recorded against the property be cancelled and erased, and, also, the record of the sale to the State.

The answer of the Tax Collector is that, under three different adjudications, iii the enforced collection of State taxes for 1881, 1882 and 1883, the property claimed by the plaintiff was conveyed to the State of Louisiana, and that she was duly advised thereof by reason of the registry in the proper book of conveyances, prior to her alleged acquisition of same. That the taxes for which said sáles were made were legally assessed, and the sales legally made. That all notices and demands required by law were given to the tax debtor, as required. He avers that the title of the State is good and valid, and that she is entitled to be recognized as the owner thereof, to have the revenues, since the 21st of May, 1885, at $600 per annum, paid to her, and to be placed in possession thereof. He pleads the prescription of three years to plaintiff’s demands, and in bar of her action to annul the title of the State, the prescription of two, three and five years.

From a general judgment in plaintiff’s favor the State Tax Collector has appealed. ■

I.

The first adjudication of the property to the State was made on the 17th of January, 1885, in the enforced collection of State taxes of the year 1881, and the description contained in notarial act of conveyance is as follows, viz.:

u A certain lot of ground in the square bounded by St. Charles, Camp, St. Joseph and Julia [streets], designated as lot No. 28, in-square 181: said lot 28 measures 26 feet front on Julia street, by 151 feet in depth.”

There is but slight difference between that description and the one contained in the deeds of the plaintiff’s authors. The only difference being that, in said deeds, the front measurement on Julia street is given at “ 26 feet 3 inches;” and the depth, at 105 feet, plus “ 45 feet 4 inches” — the total depth being 150 feet 4 inches.

It will be thus perceived, that the tax deed gives the correct front measurement, minus three inches, and the correct depth, plus eight inches — an insignificant variation. There is no difference, as to the square in which the property is found. None, in reference to the street on which the property fronts. All the deeds describe it as being composed of one lot fronting on Julia street, and another immediately in the rear of same. In one of the deeds of plaintiff’s authors, the lot in question is mentioned as being “ designated on the particular plan of said streets by the number eleven of thirteen buildings erected by the New Orleans Building Compafiy; said lot measuring, American measure, 26 feet3 inches front on Julia street,” etc.; and that description is cited by plaintiff’s counsel as constituting conclusive evidence of error in the tax title, which denominates the lot conveyed as No. .28.

That, in our opinion, is an error. For, instead of declaring that it bore the number eleven on Julia street, it plainly declares that it does bare the number eleven of thirteen buildings erected' by the New Orleans Building Company.’’ Non constat that 28 was not the correct municipal number. But, in order to put the question at rest, the plaintiff’s vendor was interrogated as a witness, and deposed that she owned but one single piece of property in the square designated, and that one, she said, was described in the deeds in evidence. We do not regard‘it as doubtful, but, on the contrary, clear, that the property adjudicated to the State is identical with that claimed by the plaintiff, and, hence, we must determine the other questions in the case.

II.

It is contended by plaintiff’s counsel that as the property was adjudicated to the State in the enforced collection of 1881 taxes, the assessment thereof, and the sale therefor, must, of necessity, have been made in pursuance of the revenue law of 1880 — Act 77 of 1880 —and, as that statute did not delegate the power to the Tax Collector to make an adjudication to the State, the conveyance was utterly void, and conveyed no title to the State.

As this question lies at the foundation of the title, it must.be determined first.

The adjudication to the State was not made until the 17th of January, 1885, long subsequent to the passage of Act 96 of 1882, Section 52 of which provides: “That the bid to be accepted shall be, at least, equal to the taxes and costs, and interest, otherwise the Tax Collector is hereby authorized to bid in said property for the State,” etc.

Whether this statute was, or not, intended to- apply to tax sales thereafter t>o be made, in the collection of antecedent taxes, was not left to decision, or open to inference, for it is specially provided in Section 59 of said act “that tax collectors, and ex officio tax collectors, throughout the- State, shall be, and are hereby, required to seize, advertise and sell the property on which delinquent taxes are due, on or before the first day of May, 1883, and of each succeeding year thereafter; and if any Tax Collector, or ex officio Tax Collector, shall fail', neglect or refuse to seize, advertise and sell the said delinquent property, as aforesaid, he shall be deemed guilty of nonfeasance in office, and shall, upon'ponviction, be dismissed therefrom.”

Construing these two pertinent provisions together, we think the conclusion irresistible that the Tax Collector should seize, advertise and sell “delinquent property” just in the same way in which he was required to seize, advertise and sell non-delinquent property for current taxes. The Legislature had just the same constitutional warrant for authorizing an adjudication to the State in one instance as in the other. As the sale in question was after the enactment of the law of 1882, We think the act of the State Tax Collector, in making the adjudication to the State, was 'authorized and valid.

III.

The next question for consideration is whether the statute just adverted to, and those of like import, come within the terms of the prohibition contained in Article 210 of the Constitution, and which is couched in these terms, viz.:

“ There shall be no forfeiture of property for the non-payment of taxes; * * but, at the expiration of the year in which they are due, the collector shall, without suit, * * advertise for sale the property on which the taxes are due,” etc.

We must determine what was the evil the framers of the organic law had in mind when the quoted provision was drafted, and to which the remedy was to be applied.

This can be best understood by an inspection of the revenue laws in force antecedent to the adoption of that instrument.'

The revenue law of 1869 required Tax Collectors to make out their delinquent lists of unpaid taxes on the 1st of December, and send same to the parish Recorders, whose duty it was to forward same forthwith to the Auditor of Public Accounts. It declares “that the list and verification, when filed in the office of the Auditor of Public Accounts, shall be entered by him on a record kept for that purpose, and shall, from the day of filing, vest a title to the lands and lots therein returned_fo the State of Louisiana, which shall be impeachable only on proof that taxes for non-payment, whereof the lands were returned forfeited, had been in fact paid to the Collector before the return of the list to the Recorder.” Secs. 74 and 76, Act 114 of 1869.

By the revenue law of 1870, the effect of such filing is declared to be a mortgage only. Secs. 65 and 67 of Act 68, of Extra Session cf 1870. But this provision was repealed, and those of 1869 reSnacted in 1871.. Vide Sections 66 and 68 of Act 42, 1871. This law remained in force until 1877, when it was so amended as to vest title in the State “from the day of filing in the Recorder’s office.’’ [Italics ours.] Sec. 61 of Act 69 of Extra Session of 1877.

Under the effect and operation of this system of forfeiture great abuses were inflicted upon the taxpayers. By the simple recordation of a parochial delinquent list, made up by a Tax Collector and filed in the Auditor’s office, at the Capitol of the State, all the delin quent property of an entire parish passed to the State by an indefeasible title. It was, doubtless, the purpose of this constitutional prohibition to put an end to this evil, and to require that, in the future, no property should be thus forfeited to the State for delinquent taxes; but that, in all cases, delinquent property should be seized, advertised, and sold at public auction to the last and highest bidder. And it seems to be the purpose of the statute quoted, that if, at such public auction, there shall be no bid for the property of an amount equal to the amount of taxes, cost and interest, the Tax Collector is authorized “to bid in said property to the State.” In such case the Stale, as the last and highest bidder, becomes an adjudicatee at public auction. Title does not pass to her by the process of forfeiture, which is clearly distinguishable from a public judicial sale. To point the argument, it is only necessary to instance a like provision that is contained in the law of 1877, which recognizes the right of the State to become a purchaser at public auction, whereby she acquires a title contradistinguished from that by the process of forfeiture, as indicated in Section 61 of that act. Vide, Sec. 57, Act 96 of Extra Session of 1877. Hence the-statute in question is constitutional.

IV.

The plea of prescription of three years, urged by the defendant, as a bar to the plaintiff’s “ action to invalidate the title” of the State, to property purchased by her at public auction, is predicated on Section 5 of Article 105 of 1874, which is as follows, viz.:

“ Any action to invalidate the titles to any property purchased at tax sale, under or by virtue of any law of this State, shall be pre-. scribed by the lapse of three years from the date of such sale.”

This statute defines and fixes a period of prescription against the action to invalidate a tax title tor cause of nullity; and it must be computed “ from the date of sale,” by the specific terms of the act.

We first gave effect to this statute in Barrow vs. Wilson, 39 An. 403, and, in the course of our opinion said, after quoting it, in juxtaposition with Article 3543, R. O. O.:

“We have thus placed the two provisions side by side, in order to exhibit the broader and more sweeping effect of the [former] law. While the article of the code covers informalities only, the act of 1874 creates a positive bar against any action to invalidate ’ a tax title.”

And proceeding with the discussion we further said:

“ It now becomes our duty to ascertain the effect of sucha statute upon the rights of the parties under such sales. 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 within which the owner of the original title shall be allowed to assert his rights against the purchaser at a tax sale” (pp. 406, 407).

Again we said :

“The statute does not concern itself with the strength of one title 'or the weakness of the other. The plaintiff had a right which could only be. enforced by an action. The lawmaker had the power to fix a reasonable limit within which such action should be brought, under the penalty of its being thereafter barred by prescription. That power has been exercised, and when the time has expired, the courts are bound to enforce the limitation and deny the action” (p. 409). ’ Vide, also, McDougal vs. Monlezun, 39 An. 1005.

There is nothing we can add to this- terse and vigorous interpertation of this statute, which would give it additional force. It is essentially, a tax statute and its purpose is obvious. The plaintiff acquired title in August, 1885, and his vendor acquired from the tax delinquent on the 22d of May, 1885, subsequent to the registry of the Tax Collector’s deed to the State. Both of these acts are by private signature, and unaccompanied by certificates of mortgages, and consequently the title passed cum onere.

The plaintiff’s title is not an adversary one to that of the tax delinquent. She is the common author of the plaintiff and, her vendor. The Tax Collector’s deed to the State was executed on the 17th of January, 1885, and this suit was filed on the 18th of March, 1889— more than three years after the date of the sale which this action seeks to annul. Our conclusion is that the prescriptible term has expired, and we are bound to enforce the limitation, and deny the plaintiff’s action.. The judgment appealed from must, therefore, be reversed.

It is ordered and decreed that the judgment of the District Court be annulled and reversed; that the demands of plaintiff and appellee be rejected, at his cost, in both courts; that those of the defendant in re-convention be sustained, and the State of Louisiana be recognized as the owner of the property in controversy, and placed in possession thereof, and that she be entitled to rents and revenues. But it is further and finally ordered, that the claim of the State for a fixed and definite allowance on that score be dismissed as of non-suit, with a full reservation of the rights of all parties.


author: McEnery, 3'.

text:
    No. 10,816.
    James Clarke & Co. vs. Their Creditors.
    A provisional syndic can only claim commissions on effects of the insolvent which have been confided to his care.
    He can not claim commissions on effects which liavebeen pledged, although properly on the schedule. lie has a right tqliquidate the debt and secure residuum for creditors, upon which commissions should be allowed.
    APPEAL from the Civil District Court for the Parish of Orleans. Ellis, J.

      John M. Baldwin and Walter D. Denégre for Opponent and Appellee:
    ■1. A provisional syndic is entitled-to receive for his trouble and services 1 per cent, on the appraised value of the goods and effects confided to his care. 11. S., See. 1793.
    2. AVI)ere movables are validly pledged by an insolvent more than three months before his cession, and are in the hands of the pledgees at the time of the cession, the right of the pledgees to retain control and possession of these movables is an essential constituent of thejiws pignoris, and this pledged property can not be subjected to the costs and burdens of administration by syndics, llensliaw vs. His Creditors, 40 An.,p. 3.

      E. T. Floranoe, for the Provisional Syndic, Appellant:
    1. All insolvent “ must mention in his schedule ” “ all his property.” Rev. St., See. 1786; Civ. Code, Arts. 2170, 2171.
    2. “All the property of an insolvent ” includes everything he owns except what is exempt from execution, ltev. St., Sec. 1786; Civ. Code, Art. 2183.
    3. The fees of a provisional syndic arc calculated “ on the estimated value of the goods and effects confided to his eare.” Rev. St., Sec. 1793.

      i. A provisional syndic is required “ to take conservatory measures ” to protect the interests of all concerned. Rev. St., See. 1793; Matthews & Finlay vs. Cred., 11 An. 38.
    3.Pledged property, as it forms part of the insolvent’s estate (Renshaw vs. Cred., 10 An. 37), and is mentioned in the schedule, is included for purposes of calculation of the provisional syndic’s commissions, in the words “goods and effects confided to his care.” Jaequet vs. Cred. 38 An. 863.
   The opinion of the court was delivered by

McEnery, 3'.

The facts- in this case are as follows:

1. John R. Picton was the provisional syndic of James Clark & Co.

2. As appears from the inventory taken immediately after the appointment of said provisional syndic, the total assets of the insolvent were appraised at $84,588.63,- all of which were mentioned in the schedule filed by the insolvent, but of which assets there came into the actual physical possession of the provisional syndic a certain amount appraised at $16,402.84.

The balance o'f the schedule assets so appraised consisted of coffee- ■and notes belonging to the insolvent, but in the hands of pledgees.

The coffee was sold by the pledgees, and the proceeds thereof credited by them on the amount due by the insolvent, leaving a balance still due on the debt for which the coffee was pledged.

3. The assets to be distributed by the provisional syndic exceed $2000; the debts to be paid therefrom exceed the assets; consequently the percentage to be paid to creditors of inferior rank depends on the amount to be allowed as commission to the provisional syndic.

4. The provisional syndic was called on by creditors to investigate-the validity of all these pledges with a viaw to protecting the rights of creditors, and performed the duty required of him.

5. The provisional syndic, with the authorization of the court, took legal proceedings to attempt to recover for the estate the surplus remaining over (as claimed) from two of these pledges, to which proceedings the syndic afterwards succeeded, and which proceedings are still pending — the amount in contest being $8000.

6. If the amount of the commissions to which the provisional syndic is entitled is to be calculated upon the total amount of assets, as it appears in the schedule and inventory, including the pledged assets, the amount of those commissions is $845.88; if the amount is to be calculated only on the appraised value of the assets that came into the physical possession of the provisional syndic, then those commissions will amount to $164.02.

7. This appeal is taken only from the portion of the judgment of the lower court that maintains the opposition to the item of “ com missions of provisional syndic:”

The question submitted for determination is: Can the provisional syndic be paid commissions on pledged property of the insolvent?

The provisional syndic is entitled to a commission on the goods and effects of the insolvent confided to his care. Sec. 1793, R. S.

The mere cession of the property of an individual does not give the provisional syndic the right to demand and take possession of effects of the insolvent which have been pledged. The pledgee has the undoubted right to retain the property until his debt is satisfied. In a proper case the syndic can sue to liquidate the debt and reduce to possession the residuum, if any, for the benefit of the creditors of the insolvent. Renshaw vs. His Creditors, 40 An. 37.

In this case the provisional syndic has not obtained any balance due the insolvent’s estate from, the pledged effects.

The fact of suit having been brought at the solicitation of creditors, to liquidate some of the debts, and secure possession of the pledged property, does not entitle him to commissions.

He has not received them on deposit and they have not been confided to his care.

The institution of this suit was a necessary proceeding to get possession of the pledged property; but it may be that the syndic will fail in efforts to secure possession of the same.

It is also contended by the provisional syndic, as the insolvent is required to place on his schedule all his property, movable and immovable, rights and actions, and these pledged effects were on his schedule, he had the right to commissions on the same, and bases his demand on the provisions of Section 1791, Revised Statutes, which says “all the property of the insolvent debtor on his schedule vests in the creditor.” It is of course the duty of the insolvent to make out a complete schedule, as required by the insolvent laws, but he can only deliver to the syndic such property as he has in his possession, or which he controls. Pledged property is not in his possession, and he can not get possession of it without satisfying the debt.

Its place on the insolvent’s schedule does not, as stated above, divest the pledgee’s possession.

The syndic can only claim commissions on such effects which have come into his possession, and which have been confided to his care.

The pledged property has never been in his possession and confided to his care, and he, therefore, has no claim to commissions on it.

Judgment affirmed.