author: Watkins, J.

text:
    No. 13,306.
    Charles Dobson vs. New Orleans and Western Railroad Company.
    Syllabus.
    In ease it is established by the evidence that the plaintiff was the foreman of a gang of laborers who were engaged in hauling dirt with a train-of-flat cars, and sustained injury by a collision of the train with a cow on the track in the night time, and which accident was caused or contributed to by the conductor’s abandonment of the train, the defendant will not be relieved from liability on the ground that the plaintiff and conductor were fellow-servants.
    APPEAL from the Civil District Court, Parish of Orleans — SI, Paul, J.

      Benjamin Rice Forman and B. R. Forman, Jr., for Plaintiff, Appellant.

      Farrar, Jonas and Kruiischnitt for Defendant, Appellee.
   The opinion of the court was delivered by

Watkins, J.

This is an action for the recovery of - twenty thousand dollars damages for personal injuries which the plaintiff alleges he sustained at the hands of the defendant.

On the issue joined and trial had before the district judge, a decree was rendered in favor of the defendant, rejecting the demands of .the plaintiff, and the latter prosecutes this appeal.

The statement of the plaintiff’s case, as it appears in the petition, is substantially as follows, to-wit:

That on the 5th day of August, 1896, petitioner was employed as foreman of laborers by the defendant, and in the course of his occupation as such, was a passenger, entitled to safe carriage on board a freight train of the defendant, which was used by said company to transport its laborers, foreman and employees from New Orleans to Ohalmette.

That said train at the time of the accident complained of, being-bound from New Orleans to Ohalmette, was operated with an engine in the rear, with no light on the front end of same. That there was no gong sounded, or other signal given of its movement; and there was no watchman or look-out on the train who could have given to the engineer at the rear end, due notice of there being any obstacle, or stock on the track, which might interfere with its safe movement.

That through this gross carelessness and neglect of the defendant, its agents, servants and employees who were operating the train, the accident occurred, and the injury was inflicted upon him.

Plaintiff assigns as a further evidence of fault and negligence, that the train conductor, and all the train crew, except the engineer, got off the train and left the engineer in exclusive charge of same; and he, being a£ the rear end, and unable to see the track at the forward end, it ran over a cow on the track, and thereby the train was wrecked, and particularly the car on which he was a passenger was derailed, whereby he was “lacerated, mashed and bruised”, his arm was broken and his leg was injured, whereby he has been permanently injured and incapacitated from work and earning a living — this occurrence having taken place during the darkness of the night.

For answer, the defendant denies that plaintiff was a passenger upon any train of the defendant, or that he was entitled to the rights of a passenger; but, on the contrary, avers that the plaintiff was foreman of a dirt train, engaged in hauling dirt, and doing repair work alons’the line of the defendant railroad, and was injured by the said train accidentally running over a cow which was on the track; and that the accident happened entirely without any negligence on the part of the defendant, and, if there was any negligence, it was the negligence of the plaintiff’s' fellow-workmen, for which this company is not responsible.

The answer concludes thus:

“Defendant avers that the plaintiff was cared for at its cost; his doctor’s and hospital bills paid; his wages continued during the time that he was laid up, and that when he recovered, he returned to the service of the defendant, and remained in its service until the 8th day of May, 1896, when he voluntarily quit.
“That he never, at any time, made any complaints of disability to do his work, and performed his work on all occasions satisfactorily, except upon one occasion, when he was reprimanded for negligence and the plaintiff took offence at this reprimand, quit the service of the company, and brought this suit.”

For the foregoing reasons, defendant prays that plaintiff’s demand be rejected at his cost.

The reasons assigned by the district judge for his decree in favor of the defendant, are very brief, and as follows, to-wi>t:—

“Plaintiff was a fellow-servant of the train hands. They were all engaged in the same labor of carrying sand or gravel from one point to another along the line of the road for the construction of the roadbed.
“Besides, the whole fellow-servant doctrine is founded upon the still broader doctrine, that a servant engages to encounter all the risks which are incident to the service he undertakes; so that when a servant well knows the existence and extent of the risk or hazard, and willingly exposes himself to it,' he can not recover, if injured. (Stucke vs. Railway Company, 50th Ann., 185-215.)
“The plaintiff well knew of the custom of backing the train at night without headlight or watehout; even a child might have foreseen the consequences, and yet, he voluntarily rode thereon for his own convenience.”

The two' disputed propositions of the case are (1) whether the plaintiff was a passenger, and entitled to safe carriage on the defendant’s train; (2) whether he was foreman of a dirt train engaged in hauling dirt and doing repair work along the line of the defendant railroad at the time of the accident, which was due to the negligence of plaintiff’s fellow-workmen, for which the company is not responsible.

An examination of the evidence shows the following facts substantially:

That plaintiff states that the accident whereby the injury was inflicted upon him, occurred upon the 5th of August, 1896, while he was engaged at work for the defendant. That he was the foreman over the crew of negro-laborers, and that they had been sent out at night to 'take a dirt train along- the line of the Bone Factory and Gentilly Road; and while coming back at eleven o’clock at night, he was injured. That the train was on its way from New Orleans to Ohalmette at the time of the accident. That the engine was on the rear end of the moving dirt train; and no look-out in the front end. That when the accident occurred by the train having encountered a cow upon the track, the conductor and all the train crew, except the engineer, had left the train, as he supposed on account of the badness of the night, and their desire to get to their homes as soon as they could.

That by the collision of the train with the cow, several cars were derailed, and amongst the number, the one on which he was riding. That as a result of the collision, he was struck in the back by the car on which he was riding, and one of his arms was broken, and one of his legs was injured. That he was dashed down, and the car fell upon him; and he was dug out from beneath the car. That his back and leg and knee were, likewise, injured.

That on account of his injuries, he was taken to the Hotel Dieu, where he was under treatment for about four months; and that he was unable to go to work for six months.

That at the time, he was getting $60 per month; and now he is working at Fabacher’s restaurant at $15 per month.

The following is a part of the interrogation'of .the plaintiff, viz:

“Q. — How did you happen to be on this train when the accident occurred?
“A. — I was foreman over a crew of negro laborers, and we were sent out that night, and at the time we were taking sand, you understand, from the river and putting it on the track along the road-bed.
“They used to send these trains out at night so as to get the gangs together, and get out quick; and so this night I was sent to unload a train, and the accident happened.
“Q. — You were instructed to go with your crew and unload the train ?
“A. — Yes, sir.
“Q. — You had nothing to do with the running of the train?
“A. — No, sir.
“Q. — The train had a foreman, an engineer and a conductor and the crew to run it?
“A. — Yes, sir.
“Q. — Where did you get on the train?
“A. — On the Gentilly Road at the Bone Factory.
“Q. — Is that where you were taking the dirt?
“A. — We were (landing) it there; but I got on the train at Chalmette.
“Q. — Where did you first get on the train?
“A. — At Chalmette.
“Q. — Did you and your gang (load) your train with dirt at that point?
“A. — No, sir; it was loaded at Chalmette.
“Q. It was loaded at Chalmette, and you and your gang got on it for the purpose of coming to what point?
“A. — To the Bone Factory and Gentilly road_
“Q. — Was it not coming from Chalmette to the Bone Factory when the accident occurred ?
“A. — No, sir.
“Q. — After you had unloaded the dirt, they backed (the train) up ?
“A. — Yes, sir.
“Q. — To get some dirt?
“A. — That was the last trip of the night.
“Q.- — Your quarters were down there?
“A. — Yes, sir.
“Q. — And also the gang’s quarters?
“A. — Yes, sir; we were all going back.
“Q. — Where did this accident occur?
“A. — Two miles from Chalmette.”

The foregoing are answers that were given by the plaintiff to interrogatories that -were propounded by the court; and during his further examination by his counsel nothing contrary or additional thereto was developed.

Several of the laborers who had been on the train, but had departed therefrom when it halted in the vicinity of the Slaughterhouse, corroborate the plaintiff’s testimony substantially.

From the foregoing testimony, it is evident that the plaintiff, as foreman of a gang of laborers, had embarked upon a dirt train of the defendant which was laden with sand that was to be transported a distance of several miles and discharged, for the uses and purposes of the company. That the train had made its trip with safety, its load of sand had been discharged, and it was on the return trip to Chalmette; and when at a point on the road in the vicinity of the Slaughterhouse, the train was halted, the laborers took their departure for their homes, and the conductor and all the train-crew, except the engineer, likewise left the train. The engine being attached to the rear end, and there being neither a headlight on the forward end of the train, nor any one posted thereon for the purpose of giving to the engineer notice of any obstacles that might be on the track, the train was, suddenly, and without warning, brought in collision with a cow, which caused several of the ears to be derailed, and especially the third one from the forward end on which the plaintiff was seated, and thereby sustained the serious injuries which he has related — the occurrence having taken place at about the hour of eleven o’clock P. M., the night having been dark and. rainy, and the train being' run at a rapid rate of speed.

We think the defendant is liable, and that the principles of law which were announced in Stucke vs. Orleans Railroad Co., 50 Ann., 172, are entirely applicable, and that the defense of fellow service can not properly be applied under the facts of this ease.

The evidence makes it perfectly clear, that neither the engineer who was left in charge of the train after the departure of the train-conductor and the remainder of the crew, nor the plaintiff, was guilty of any fault; and it shows conclusively that the cause of the accident was the direct and immediate result of the train being without a headlight in front, and without any one being posted thereon to keep a look-out for obstacles on the track, and to communicate any danger to the engineer.

This fault was contributed to by the departure of the conductor before the train had reached its destination — thus leaving the engineer to his own resources.

It would not be admissible for this court to hold, under these circumstances, that the plaintiff as a servant of the defendant, had assumed such a risk or hazard as one that was “apparently incidental to an employment intelligently undertaken.”

Smith vs. Sellars, 40th Ann., 527.

But, if in point of fact, there was co-association and fellow-service between the employment of the plaintiff and the engineer, the plaintiff was not guilty of contributory faul t, if the engineer was not guilty of negligence.

In our opinion, we can not do better than cite and collate ¿ few extracts from the authorities cited in the Stucke case, as the best means of stating- the principles of law upon which our decision must rest— the trend of which is, that there is no co-association nor fellow-service between the conductor of -the dirt train and the plaintiff, who was a foreman of a gang of laborers who were engaged in hauling dirt.

In the Stucke case it is said:

“It is equally evident that there was neither co-association nor fellow-service between the conductor * * * and the plaintiff who was working, temporarily, in the emergency pit. Their service and employment sustained no possible relation to each other.
**■*#**# *
“(But), if the plaintiff had been a fellow-servant of either of said servants, that fellow-service would not relieve the defendant from the just consequences of its own fault and negligence, to which the plaintiff did not contribute.”

In Railway Co. vs. Cummings, 106 U. S., 700, the court say:

“That if the negligence of the company contributed to, that is to say, had a share in, producing the injury, the company was liable even though the negligence of a fellow-servant of Cummings was contributory, also. If the negligence of the company contributed to, it must have necessarily been an immediate cause of, the accident, and there is no defense that another was, likewise, guilty of a wrong.”

In Towns vs. Railroad Co., 37 Ann., 630, this court held:

“It is now settled upon the very highest authority, that when the injury is caused partly by the negligence of a fellow-servant, and partly by the failure of the company to provide proper and suitable apparatus, the negligence of the co-servant will not exonerate the company from the consequences of its own fault” — citing Railway vs. Cummings, supra.

In Myhan vs. Electric Light Company, 41st Ann., 964, this court very clearly defined the duty of the master to its servant in regard to employing them in any dangerous enterprise, in the following emphatic language:—

“At any rate, it was the duty of the defendant company to have known of the dangei’ous character and condition of the electric wires. The knowledge which they ought to have had, the law presumes juris et de jure, they had. Even had the company’s representatives sworn that they did not know of the same, such ignorance on their part would not have exonerated them. A superior is presumed to know, and in law knows, that which it is his duty to know, namely, whatever may endanger the person and life of his employee in the discharge of his duties.”

In Laning vs. Railroad Company, 49th N. Y., 534, the proposition is very well put, in these words, to-wit:

“That some general agent, clothed with the power to make performance for the master has not done his duty at all, or has not done it well, neither shows a performance by the master, nor excuses the master’s non-performance. When it is done, and not till then, his duty is met, or his contract is kept. * * *
“If a master’s personal knowledge of defects be necessary to his liability, the more he neglects his business, and abandons it to others,.the less will he be liable.”

The principle announced in that case was applied by this court in Poirier vs. Carroll, 35th Ann., 699. But the case of Railway Company vs. Ross, 112 U. S., states the governing rule with regard to the liability of fellow servants in the course of the operation of railroad .trains, in the following language, to-wit:—

“When the service to be rendered requires for its performance the employment of several persons, as in the movement of trains, there is necessarily incident to the service of each the risk that the others may fail in the vigilance and caution essential to his safety; and it has been held in numerous cases, both in this country and in England, that there is implied in his contract of service in such a case, that he takes upon himself the risks arising from the negligence of his fellow servants, while in the same employment, provided always the master is not negligent in his selection or retention, or in furnishing adequate materials and means for the work; and that if injuries then befall him from such negligence, the master is not liable.”

But, in applying the foregoing principles, the court stated the fol- • lowing exception to that rule, and said:—

“The doctrine assumes that the servant causing the injury, is in the same employment with the servant injured, that is, that both are engaged in one common employment. f The question in all cases, therefore, is, what is essential to render the service in which different persons are engaged a common employment?”

In answering that question, the court makes the following quotation from the opinion of the Lord Chancellor in Coal Company vs. Reid, 3 Macq., 266, to-wit:—

“It is necessary, however, in each particular case, to ascertain whether the servants are fellow-laborers in the same work, because, although a servant may be taken to have engaged to encounter all the risks which are incident to the service, which he undertakes, yet he can not be expected to anticipate those which may happen to him on occasions foreign to his employment. When servants, therefore, are engaged in different departments of duty, an injury committed by one servant upon another, by carelessness or negligence in the course of his peculiar work, it .is not within the exemption, and the master’s liability attaches in that ease in the same manner as if the injured party stood in no such relation to him.”

The court also cited with approval an extract from the opinion of the Lord Chancellor in McNaughton vs. Railroad Company, 19 Court Sess. Cases, 271, to-wit:—

“That the master’s liability might be sustained without conflicting with the English authorities, on the ground that the workmen-in that case were engaged in totally different departments of work; the deceased being a joiner or carpenter who, at the time of the accident, was engaged in repairing a railroad carriage, and the persons by whose negligence his death was occasioned, were the engine driver and the person who arranged the switches.”

The court, thereupon, in the principal case, in summing up, said:

“To bring the ease within the exemption, there must be this most material qualification that the two servants must be men in the same common employment, and engaged in the same common work under that common employment.
“There is, in our judgment, a clear distinction to be made, in the relation to their common principal, between servants of a corporation exercising no supervision over others engaged with them in the same employment, and agents of the corporation clothed with the control and management of a distinct department in which their duty is entirely that of direction and superintendence. A conductor, having; the entire control and management of a 'railway train occupies a very different position from the brakemen, the porters and other subordinates employed. He is, in fact, and should be treated as, the personal representative of the corporation, for whose negligence it is responsible to subordinate servants. * * * In no proper sense of the term is he a fellow-servant with the foreman, brakeman, the porter and the engineer. The latter are fellow-servants in the running of the train under his direction. ' As to them and the train, he stands in the place of, and represents the corporation.”

In Towns vs. Railroad Company, 37th Ann., 630, this court recognized and applied the principle announced in that case.

In Hough vs. Railway Company, 100 U. S., 213, the court made reference to the Ross case and said that that court had “placed a very important limitation upon it” — the doctrine of fellow-service — “by holding that the conductor of -a train, and the employees do not bear the relation of fellow-servants to (each other), and- that the company is responsible to them for the injuries resulting from his neglect of duty.”

In Railrad Company vs. Vaughn, 149 U. S., 914, is stated as an exception-to the rule, that an engineer and fireman of a locomotive engine running along without any train attached, are fellow-servants of the company,.so as to preclude the latter from recovering from the company'for injuries caused by the negligence of the former; but in so doing the court distinguished that case from the Ross case, and affirmed the latter.

From the foregoing authorities, as well as from the principles announced in the Stucke case, we think it is clear that there was neither fellow-service, nor co-association between the plaintiff and the conductor of the freight train and, consequently, the fault of the conductor in having abandoned the train and subjected it to the peril of the accident which happened afterwards and caused the injury to the plaintiff,- can not relieve the defendant from liability. For the reasons assigned, and those cited in the opinion referred to, we think the judgment appealed from is erroneous, and must be reversed.

The proof shows that the plaintiff received painful and serious injuries by the accident — the car on which he was riding having been derailed, he being thrown violently to the ground and the car precipitated upon him, whereby his arm was broken, and other serious injuries inflicted.

As a- result of the accident,;he was sent to the hospital where he remained under treatment for four months, and was rendered unable to do any work for a period of six months. On account of the injuries inflicted, he was disabled from performing ordinary service, such as .lie was engaged in at the time of the accident, and was only capable of doing some kind of lighter work, for some time thereafter.

The proof discloses that after the accident happened, the defendant’s doctor attended the plaintiff at the hospital and administered to his injuries; and that the company paid his wages during his four months’ confinment therein, and when his broken arm was healed, it gave him other employment.

Of this commendable and highly praiseworthy course of conduct, we feel it our agreeable duty to make mention. But, while approving the company’s acts of humanity and kindness, we can not admit that it has thereby completely exonerated itself from, all responsibility for the reparation of the plaintiff’s injuries, though we do think that it has the effect of mitigating the damages which plaintiff is entitled to recove? from the company.

We think the evidence justifies an allowance in his favor of the sum of one thousand dollars as damages.

It is, therefore, ordered and decreed that the judgment appealed from be annulled and reversed; and it is further ordered and decreed that the plaintiff do have and recover of the defendant the sum of one thousand dollars, with legal interest from judicial demand and all costs.


source: Caselaw Access Project

author: Blanchard, J. Watkins, J. Blanchard, T.

license: Public Domain

text:
    No. 13,295.
    Mutual Life Insurance Company vs. Mrs. Nellie Houchins et als.
    Syllabus.
    On Motion to Dismiss Appeal.
    1. Denial of the right of appeal — a motion to dismiss which strikes at the foundation of the right itself — is not one of those which must be filed within three days of the time allowed the appellee for appearance and answer.
    2. A third person appealing from a judgment rendered in a controversy between others, is entitled to avail herself of everything in the record affecting her rights, to the end of showing that as between the parties the judgment is erroneous and that if corrected as to them, and a right judgment rendered,, her rights will not be injuriously affected.
    3, This court will not anticipate, on a motion to dismiss, the Issues which appellant (a third person) proposes to submit to it.
    4, The test of the right of a third person to appeal is not that the judgment should operate as res judicata as regards such person. The true test is, rather, whether the third person asserts an interest in the res, or subject matter of the judgment.
    On the Merits.
    An assignment of an undivided interest in a policy of life insurance by an heir of the beneficiary to a third person without reciting a consideration must be esteemed a donation; and, considered as such, to have effect, it should be passed before a notary and two witnesses as required by law, otherwise same will not be enforceable.
    APPEAL from the Civil District Court, Parish of Orleans — St. Paul, J.

      Branch II. Miller for Mrs. Nellie Houchins, Defendant, Appellee.
    Fenner, Henderson and Fenner for Mrs. Bettie Allen, Defendant, Appellant.
    The opinion of the court on the motion to dismiss was delivered by Blanchard; J.
    On the merits by Watkins, J.
    On application for rehearing by Blanchard, J.
    On Motion to Dismiss Appeal.
   The opinion of the court on the motion to dismiss was delivered by

Blanchard, J.

Mrs. Bettie Allen, widow, a third person not a party to this suit, alleging herself to be aggrieved by the judgment rendered herein between the parties litigant, obtained an order of appeal therefrom.

The judgment in question awarded to Mrs. Nellie Houchins, one of the defendants, an interest to the extent of $6,363.64 in the proceeds of a policy of insurance for $10,000 on the life of Lorenzo B. Green, deceased, taken out in plaintiff company.

The correctness of this judgment in part the appellant disputes, averring injury to herself thereby, claiming that she is the beneficiary of an interest in the said policy of insurance, which said interest of hers the judgment, without legal sanction under the evidence adduced, awards (to Mrs. Houchins.

The latter, cited as appellee, moves to dismiss the appeal on various grounds.

The first is that the Mutual Life Insurance Company is not cited to answer the appeal, or otherwise made a party thereto.

An examination of the' petition of appeal shows that citation to all the parties to the suit, including the Mutual Life Insurance Company, was asked, and we find in the record a citation addressed to the Company, calling upon it to answer the appeal, which citation bears the sheriff’s return of service.

The remaining five grounds for the motion are as follows:—

2. “That none .of the rights claimed by appellant are adversely affected by the judgment of the court below”.

3. “That the appellant’s appeal raises issues which were not contested or passed upon in the court below, and which are entirely dehors the record of the case; that it would require new evidence, not heard by the lower court, to dispose of the issues raised and contentions made by the appellant; that the present record does not enable the court to ascertain the facts upon which appellant relies for the reversal of the judgment appealed from”.

4. “That appellant, a third person, was no party to the proceedings or judgment in the court below, the correctness of which latter can he tested only by facts pleaded and proved before its rendition; that the record as made up in the District Court does not disclose any interest of appellant herein, but, on the contrary, shows that she has no such interest; that nothing can be decided in her favor on this appeal.”

5. “That the judgment appealed from does not at all affect the interest of appellant, and does not form res judicata against her”.

6. “That the appellant has not shown in any manner that she has a pecuniary interest herein, in respect to which she has been aggrieved by the judgment of the lower court”.

Discussing together these several grounds assigned for dismissal, counsel for appellant contends that all of them are subject to the terms of C. P. 886, which requires that a motion to dismiss shall be filed within three days after the time allowed for appearance by the citation of appeal, and that since the motion in question was filed some ten days after the return day of appeal, it comes too late.

We cannot take this view. Denial of the right of appeal — -a motion to dismiss which strikes at the foundation of the right itself — is not one of those which, under the Code, must be filed within three days of •the time allowed the appellee for appearance and answer. If an appellant is without legal right to appeal, the denial thereof by motion to dismiss may he presented after the three days.

Eut the opposite of this equally applies the other way. If the grounds of the motion to dismiss, other than that alleging want of citation, do not strike at the right of appeal, then is the contention of appellant well taken and the motion comes too late. 18 La. Ann. 191; 12 La. Ann. 745 ; 32 La. Ann. 13; 7 N. S. 271.

It needs no argument to show that the last five grounds of the motion all negative the right to take this appeal.

Viewing them thus, they are confronted with Art. 571 of the Code of Practice which provides: “The right of appeal is given, not only to those who were parties to the cause in which a judgment has been rendered against them, but also to third persons not parties to such suit, when such third persons allege that they have been aggrieved by the judgment”.

The appellant lias brought up this ease under this Article and complains she is aggrieved by the judgment rendered between the parties.

To enable her to show this, she must, it is true, establish that the judgment rendered was erroneous between the original parties to the suit, for a third person cannot be aggrieved by a right judgment between others, unless there was fraud and collusion on their part.

Herman vs. Smith, 7 N. S. 676.

But' she is entitled to avail herself of everything in the record affecting her rights, to .the end of showing that as between the parties the judgment is erroneous, and that if corrected as -to them, and a right judgment rendered, her rights will not be injuriously affected.

Griffing vs. Bowmar, 3 R. 113.

She cannot, of course, avail herself of anything not in the record.

The five grounds for dismissal quoted above clearly anticipate the issues presented by the appeal. This cannot be.

This court will not anticipate, on a motion to dismiss, the issues which the apellant (a third person) proposes to submit to it. • On trial of the merits of the appeal it may be that certain issues raised by the appellant cannot be adjudged from the record as brought up, or it may not appear that she has suffered such an injury from the judgment rendered as authorizes her to appeal. If so she will be the sufferer. Appeals are frequently dismissed, or their demands rejected, after hearing when it would be improper to dismiss them on motion in limine. Succession of Duffy, 50 La. Ann. 795; Brown vs. Land Co., 49 La. Ann. 1780; Saw Mill Manufacturing Co., 48 La. Ann. 715.

The merits, then, of this appeal are not to be considered on the motion to dismiss, and to go into the questions raised in the last five grounds of the motion would be to go into the merits of the appeal itself.

Indeed, the only question deemed now to be before the court is whether appellant is entitled to have the merits of her opposition to ■tie judgment rendered in the court below between the parties to the suit, hereafter considered.

She has this right.

Griffing vs. Bowmar, 3 R. 113; Pillot vs. Cooper, 7 La. Ann. 656; State ex rel. Sharp vs. Judge, 22 La. Ann. 176.

The test of the right of a third person to appeal is not that the judgment should operate as res judicata as regards such third person. To apply such a test would be to exclude all appeals by third persons, and to relegate to “innocuous desuetude” Art. 571 of the Code of Practice. Judgments can never operate as res judicata against persons not parties to the proceedings leading up to the same.

The true test is, rather, whether the third person asserts an interest in the res, or subject matter of the judgment. If so she has the right of appeal.

The motion to dismiss is denied.

On the Merits.

Watkins, J.

Mrs. Bettie Allen, as a third person, not a party to the original proceedings, is appellant from a judgment in the District Court between other persons, alleging that she has an interest in the matter in dispute adversely to their claims and pretensions therein.

This ease was before us on the motion to dismiss the appeal on the part of Mrs. Nellie ITouchins; and same was examined by this court, and the application denied.

That motion proceeded mainly upon the theory “that the record as made up in the district court does not disclose any interest of appellant herein, but, on the contrary, shows that she has no such interest,” etc.

Since our opinion was handed down, declining to dismiss the appeal, Mrs. Nellie Houehins has filed an answer to the appeal, praying the affirmance of the judgment appealed from, and that ‘the appellant be condemned to pay ten per cent, upon the amount of the judgment appealed from as damages for a frivolous appeal. The matter in controversy is the distribution of the proceeds and avails of a life insurance policy among certain persons claiming distributive portions thereof— same being the sum of ten thousand dollars which is due by the Mutual Life Insurance Company upon a policy of insurance on the life of Lorenzo S. Greene, and in favor of Mrs. Sarah R. Greene, his wife, her heirs, executors and assigns.

Alleging the issuance of the policy on June 6th, 1855, for the sum of ten thousand dollars on the life of Lorenzo S. Greene, and his death on July 1, 1898, the Mutual Life Insurance Company filed in court a petition of interpleader, in which it is stated that the beneficiary, Mrs. Sarah R. Greene, departed this life on February 8th, 1886, leaving as her surviving children, the following persons, to-wit:

1st. Mrs. Bettie Allen;

2nd. Mrs. Sallie G. Cragin;

3rd. Robert W. Greene.

That on June 9th, 1886, the said Mrs. Bettie Allen transferred and assigned to Mrs. Nellie Houchins, all her right, title and interest in and to the said policy of insurance; and that on April 4,1881, the said Robert W. Greene, likewise assigned, transferred and conveyed to the said Mrs. Nellie Houchins all his right, title and interest in and to said policy of insurance; and that petitioner received due notice of the said two transfers and conveyances, and filed same therewith as part thereof.

Petitioner further admits its liability for the amount of said policy, and that same is due and exigible; and that it is willing and desirous of paying 'the amount of said policy to whomsoever may be entitled to receive the same.

The petition further alleges, that conflicting claims by parties setting up rights to the different portions of the said sum, have been made to your petitioner, who is unwilling to assume the burden and responsibility of deciding the differences which have arisen — stating the respective claims of Mrs. Nellie Houchins, Mrs. Sallie G. Ozagm and Walter S. Collins. The statement is made that Mrs. Houchins claims under and by virtue of the two aforesaid assignments, the amount of two-thirds of said policy as a beneficiary thereof; and, also, the right to be paid out of the fund, before any division thereof shall be made between the parties entitled to share therein, the sum of twenty-one hundred dollars, or thereabouts, as the amount of premiums she had paid upon the policy from the 6th of Juzze, 1886, to the date of the death of Lorenzo S. Greene, with legal interest thereon from the date of the respective payments of premiums made.

It is further stated that Mrs. Cragin claims one-third of said fund as a beneficiary thereof; and that Walter S. Collins claims one-fourth of the amount of said policy, he being the issue of Mrs. Alice Greene, wife of W. S. Collins, and issue of the said Lorenzo S. Greene, and his wife, Mrs. Sarah R. Greene — said Mrs. Collins having died prior to the death of her father and mother and entitled to one-fourth of the policy, as a grandchild.

Upon, these averments, the prayer of plaintiffs petition is, that a judgment be rendered fixing and establishing the rights of the respective claimants upon said fund, after due enquiry.

The object of thp foregoing proceeding evidently was, that a judgment be rendered fixing the rights of parties, so that the money could be distributed among them legally and equitably, and thereby save the company from risk or responsibility.

All the parties named were cited, and appeared and answered, stating their respective claims; and' upon the trial and introduction of evidence, a judgment was rendered decreeing that Mrs. Nellie Houehins is entitled to take first out of the amount of the policy $2727.28, being the amount of premiums paid by her with interest added; and decreeing her entitled to one-half of the residuum, that is to say, $3636.36; that Walter Collins is entitled to one-fourth of the said residuum, that is, $1818.18 and that Mrs. Sallie G. Oragin is entitled to one-fourth of said residuum, that is, $1818.18.

The petition of the appellant for appeal, contains the following statement as the foundation of her right, to-wit:—

“That the policy of life insurance, the distribution of the proceeds of which is the subject-matter of this suit, and of the judgment rendered by this honorable court, was payable to Mrs. Sarah Greene, the wife of the assured, or in the event of her death prior to the decease of the assured, then to her children.
“That the said Mrs. Sarah R. Greene died on February 8th, 1886, prior to the death of the assured, leaving as her surviving children the following:
“1st. Mrs. Sallie G. Cragin;
“2nd. Robert W. Greene;
“3rd. Tour petitioner, and
“4th. Walter C. Collins, a grandchild, son of a predeceased daughter of the said Mrs. Sarah R. Greene.
“That Lorenzo S. Greene, the assured, died on the 1st day of July, 1898. That your petitioner, thereupon, became entitled to the one-fourth of the net proceeds of the said policy.
“Now, your petitioner shows, that in this proceeding instituted by the Mutual Life Insurance Company, to which your petitioner was not made a party, this honorable court has decreed that Mrs. Nellie Houehins is entitled to petitioner’s share of the proceeds of the said policy, under and by virtue of a pretended transfer and assignment by petitioner -to the said Mrs. Nellie Houchins, executed on the 9th day of June, 1886; whereas in truth and in fact, as will fully appear from ■ an inspection of the written instrument evidencing the said pretended transfer and assignment, and of the evidence adduced at the trial of this cause, which has been filed and .is part of the record hereof, the said pretended transfer and assignment by petitioner to the said Mrs. Nellie Houchins is'absolutely null and void, for the following reasons, to-wit: '
“1st. Because, from said instrument and evidence, it appears that the said pretended transfer and assignment was made by petitioner without any consideration; was in fact intended as a donation; and was not executed in a manner and form required by law to give validity to such a donation.
“2nd. Because, in the execution of the said pretended transfer and assignment, petitioner was not authorized by her husband, who was then living.
“Petitioner further shows that all of the allegations of fact herein-above contained fully appear in the record of this cause, that petitioner is, therefore, aggrieved by the judgment hereinbefore rendered by 'this honorable court, and desires to appeal suspensively therefrom.”

The prayer of the petition conforms to the foregoing averments.

The written assignment to which appellant’s petition refers, and under which Mrs. Nellie Houchins claims as beneficiary, is brief, and of the following tenor, to-wit’:

“State of Louisiana. :
“Parish of Lafourche. :
“Be It Known, That I, Mrs. Bettie Allen, of the State and parish aforesaid, do hereby transfer and convey to Mrs. Nellie Houchins of the same State and parish, all of my right, title, claim and interest in and to policy No. 14702, issued by the Mutual Life Insurance Company of New York, on the life of Lorenzo S. Greene in favor of Mrs. Sarah R. Greene (now deceased) as the beneficiary named therein for the sum of ten thousand dollars ($10,000.00) and dated the 6th day of June, 1855.
“This transfer is absolute and unconditional, and is intended to vest in the said Mrs. Nellie Houchins all of my interest in the said policy No. 14702.
“Done at Rienzi Plantation in the State and parish aforesaid, this the 9th day of June, 1886, and signed in duplicate.
“Bettie Allen."
“Witness: F. W. Smith."

From the foregoing instrument it appears that no consideration for the said transfer was expressed therein; and that Mrs. Bettie Allen’s husband did not sign as authorizing her sig'nature.

Our attention has been attracted to the following paragraph selected from the testimony of Mrs. Nellie Houchins as a witness in her own behalf, upon cross-interrogation by counsel for Walter Collins, to-wit:

“Q. — What was the consideration of the transfer by Mrs. Bettie Allen for her interest in this policy ? ■
“A. — There was no consideration.
“Q. — Wasn’t it understood and agreed between you and Mrs. Allen at the time the transfer was made, that you would pay the premiums on the whole policy for everybody’s interest in it?
“A. — It certainly was not.”

There is no other evidence, nor any statement tending to establish any consideration whatever for the assignment by the defendant, Mrs. Houchins. ‘

Counsel for the appellant take the position that under the evidence contained in the record of the proceeds of which all parties in interest were entitled to avail themselves, she is entitled to one-fourth of the proceeds of the policy, unless she has disposed of her interest; and he relies upon the fact (1) that the assignment states no consideration; (2) that Mrs. Houchins expressly declared that it had no consideration; and (3) that as a donation, it was void for want of form, as it was under private signature, and not evidenced by a notarial act. R. C. C. 1536.

Counsel submit that the precise question under consideration was considered and determined by this court in the case of Lambert vs. Penn Mutual Insurance Company, 50th Ann., 1036 — that case being a stronger one in support of the donation than the instrument under consideration, for the reason that it stated that it was made “for a valuable consideration, but shown to be without consideration by evidence dehors the instrument.

Counsel makes the following extract from the opinion of 'the court in the ease cited, to-wit:

“The conclusion we announce on this subject is that a donation made in the form of an onerous contract — that is to say an onerous contract which is not such because without consideration, and really intended as a donation in disguise — to have effect as a donation must be passed' before a notary and two witnesses.”

And, thereupon, counsel submit that “by the plain terms of Article 1536 of the Code, this assignment was null ab initio, and its nullity may be invoked at any time.”

The instant case appears by comparison to be an exact parallel to that of Lambert vs. Insurance Company, cited supra; and for the reasons therein assigned and the authorities therein cited, the judgment appealed from must be annulled, in so far as it decrees the proceeds and avails of the life insurance policy in question to Mrs. Houehins under and by virtue of the assignment made by the appellant.

But inasmuch as it appears from the record as well as from the recitals in this opinion that a contradictory decision was not rendered on the issues herein presented in the district court, we think it but just and right that the case should be remanded in its present condition, with instructions to the district judge to hear any evidence which any or all parties may introduce as appertaining to the decision herein rendered — to the end that no injustice may be done; and render judgment accordingly.

It is, therefore, ordered and decreed that the judgment of the district court remain undisturbed in all respects except as to the distributive share of the fund in controversy which is claimed by the appellant, Mrs. Bettie Allen — -it being the sum of $1818.18; and it is further ordered and decreed that in réspect to that sum or interest, the judgment appealed from be annulled, and the cause remanded to the court a qua for the purpose of enabling the parties in interest to have their rights contradictorily heard and determined.

It is finally ordered and decreed that the costs of appeal be taxed against the appellee, Mrs. Nellie Houehins, and that all other costs await final judgment in the premises.

On Application for Modification of Decree.

Blanchard, T.

The decree heretofore handed down reversed in part the judgment appealed from and remanded the cause to enable the parties in interest, as to that part of the judgment, to have their rights contradictorily heard and determined.

A modification of this decree is now asked by Mrs. Nellie Iiouchins, appellee, so as to reserve to her all defences and grounds of resistence which may be available to her, either in law or fact, against the grounds of nullity set up, or to be set up, against the validity of the assignment of the policy made by Mrs. Bettie Allen.

While it is considered that this special reservation is unnecessary and that Mrs. Ilouchins’ full rights of defense against the demand of Mrs. Allen exist by the terms of, and necessary implication from, the decree as adopted, nevertheless it is now ordered that the modifications prayed for be allowed and that all the rights of defense and grounds of resistence which may be available to her be reserved to Mrs. Houehins. v

Rehearing refused.


author: Nicholls, O. J.

text:
    No. 13,333.
    W. H. Woolverton et als. vs. Robert Stevenson et als.
    Syllabus.
    1. The curator ad hoc appointed to represent an absentee in a partition proceeding, is not required to take an oath. (Thayer vs. Tudor, 2nd Annual, 1010; Killealea vs. Barret, 37th Annual, 868; Hansell vs. Hansell, 44th Ann., 549.) ,
    2. Where property has been sold to effect a partition by licitation and gone into, the hands of third parties, the partition will not be rescinded by reason of the discovery made, since the same, of the omission froih the partition of property of Insignificant value.
    3. Where property owned in indivisión by a mother and son is conveyed by them to a creditor of the mother, in consideration of the extinguishment of the mother’s note, the act does not evidence a donation to the mother by the son, of his interest in the property conveyed; if there was a donation it was of the son’s portion of the price, to the mother.
    To warrant the refusal by adjudieatees at a judicial sale to take title they must show, not a remote and possible, but a substantial and threatening danger The fact that one of the former links of title was a donation, presents’no such danger, when it is not shown that the donor was at the time a married man, nor that he has since married and had children.
    11 PPEAL from the Civil District Court, Parish of Orleans.— -tk Theard, J.

      Dart & Hernán for Plaintiffs in Rule, Appellees.

      Carroll & Carroll for W. H. McOhesney, Defendant in Rule, Appellant.
    Statement op the Case.
   The opinion of the court was delivered by

Nicholls, O. J.

W. II. McOhesney is appellant from a judgment of the District Court ordering him to take title to certain property adjudicated to him at a judicial sale made on the 21st'of February, 1899, in the matter of the partition suit of W. H. Woolverton et als. vs. Robert Stevenson et als., and to comply with the terms and conditions of said adjudication.

The judgment in question was rendered upon a rule taken in that suit, upon appellant, to show cause why he should not comply with such adjudication.

In answer to this rule, after pleading the general issue, he admitted that the property had been adjudicated to him, as stated in the rule, but he denied that a good and valid title had been tendered him.

That it was not good for the following assigned reasons:

“Firslt. — The judgment of partition, rendered in these proceedings, was and is null, void apd of no effect, in that the curator ad hoc, for the absent defendant, Robert Stevenson, did not take the oath directed by the court and required by law.
Second. — The judgment herein, decreeing a sale for a partition, was and is null, void and of no effect, in that it appears from the record, No. 52,990, Civil District Court (Succession of N. W. Woolverton, Sr.), to which reference is made in these proceedings, that other property was owned in indivisión by the parties to these proceedings, and that the fact of such ownership was not represented to the court, and was not taken into account by it in reaching its conclusion, that there could be no partition in kind; that the law requires that there should be a partition in kind among co-owners, if the same can be accomplished, and that the court must be advised of all the property owned in indivision by the partie.
Third. — The properties in question are claimed to be owned by the parties to this suit as the heirs of Nicholas W. Woolverton. The latter claims ownership under an act of transfer from Mrs. Mar.y Ann Woolverton, widow of Joseph S. Stevenson, and then wife of Nicholas W. Woolverton, Jr., and from Robert Stevenson, by an act passed before B. Ory, N. P., April 3rd, 1891; that said act recites that it is a dation en paiement for a debt due the transferee by Mrs. Mary Ann Woolverton; that said act is and was insufficient to convey the interest in said property of Robert Stevenson, amounting to a one-half undivided interest, for the reason that he was represented in said act by the attorney in fact, under a procuration authorizing said' attorney to “sell, transfer and convey,” the said property on such terms as said attorney might see fit; that the said attorney in fact had authority only to make a sale of the interest of said Stevenson in said property, and was without authority to transfer the same without consideration to the said Stevenson, and in payment of the debt of a third person.

If, however, the court should hold that the attorney in fact of said Stevenson had authority, under the procuraition referred to, to transfer the interest of said Stevenson in said property in payment of the debt of another, then that said transfer, being without consideration to the said Stevenson, was equivalent to and in fact was a donation by the said Stevenson of his interest in said property, and that the said donation, if such it be, will be reducible to the disposable portion of the estate of said Stevenson by his forced heirs at the time of his death, he being still alive.

The following admissions are in the record:

“It is admitted that lot No. 20, adjudicated to W. M. McChesney, was acquired by the Joseph 'S. Stevenson community from Mrs. Dudley.

It is admitted that the curator ad hoc of the absent defendant, Robert Stevenson, took no oath as such.

It is admitted that the parties plaintiff and defendant to the partition suit herein owned (and still own), in the same proportions in indivisión in which they own the property partitioned, a certain other piece of property in this city, being the rear portion of original lot No. 25, in the square bounded by Laurel, Third, Annunciation and Fourth streets, measuring about 38’ by 25’.

It is admitted and agreed that citation was issued to, and returned by the sheriff as served on, Robert Stevenson, absent defendant, by personal service on L. A. Hubert, curator ad hoc., and that the defenses embraced in paragraphs 4 and 5 of the answer are formally abandoned.”

The proceeding in which ;the judicial sale to the defendant was made is a partition suit brought by four parties, as plaintiffs, against Robert S. Stevenson and Jacob Woolverton, for the partition between them of certain described properties.

The defendants are described as being residents of the city of Brooklyn, in New York, and the latter as being a minor.

Plaintiffs alleged themselves to be owners in indivisión, with defendants, of the property referred to.

That Robert S. Stevenson and Jacob Woolverton are the children of Mrs. Ann Woolverton, a deceased daughter of Nicholas W. Wool.verton, Sr., the former being issue of her first marriage with Joseph H. Stevenson, and the latter, issue of her second marriage with Nicholas W. Woolverton, Jr. That plaintiffs are the children of Nicholas W. Woolverton, Sr., by a marriage other than that of which Mary Ann Woolverton was the issue.

That plaintiffs and defendants are the sole heirs of Nicholas W. Woolverton, Sr.; that plaintiffs were unwilling to hold the property described any longer in indivisión with the defendants; that a partition, by lieitation, was necessary; that it was necessary that a curator ad hoc be appointed to represent Robert Stevenson, and a tutor ad hoc to represent Jacob Woolverton, and they prayed the court to make such appointments.

They prayed for citation, for a sale of the property, and finally for a partition between the parties.

L. II. Hubert was appointed curator ad hoc of Robert Stevenson, and J. O. Daspit as tutor ad hoc of Jacob Woolverton.

The curator ad hoc answered, saying he had no objection to the granting of plaintiff’s prayer, and prayed that, after the legal requirements had been complied with, there be judgment as prayed for in plaintiff’s petition. The tutor ad hoc pleaded a general denial, and called for strict proof.

The court, after hearing evidence, ordered the sale to be made, and it was accordingly made, appellant becoming the adjudicatee of one of the properties at the sale.

On the third of April, 1891, Mrs. Mary Woolverton and George F. Baumann and Nicholas W. Woolverton, Sr., were parties to a notarial act passed on that day before Benjamin Ory, a notary public, for the Parish of Orleans, in which it was recited that George F. Baumann appeared in the act and acted therein in his capacity as the duly appointed authorized agent of Robert Stevenson, a resident of Brooklyn, New York, under a power of attorney, - which he produced and which was annexed to the act.

In the act it was recited that Mrs. Mary Ann Woolverton and George E. Baumann declared that the former was indebted to Nicholas W. Woolverton, Sr., in the sum of six thousand, eight hundred and seventy-five dollars, represented by a promissory note, executed by her (she being then the widow of Joseph S. Stevenson), to her own order, and by her endorsed, and dated the 26th of N ovember, 1877, payable one year after date, secured by her mortgage, granted on the property described, in the act. That later a new note was given by her to represent this indebtedness, and a new mortgage given by her on the property to secure the same. That that indebtedness, with interest accrued thereon, was still unpaid and due. That Mrs. Woolverton and Robert Stevenson were both without ready funds to pay the indebtedness. That they had offered to transfer and convey the property to Nicholas Woolverton, Sr., in full payment and satisfaction of the said indebtedness, and that Nicholas W. Woolverton, Sr., had accepted the offer. That in consideration of the premises, and in consideration of the return and delivery to Mrs. Mary AnnWoolverton, and unto Robert Stevenson, of both the notes, the receipt whereof they acknowledged, and granted full acquittance and discharge thereof, therefore, they, the said Mrs. Mary Ann Woolverton, in her own name and behalf, and the said Baumann, in his described capacity, and for and on behalf of said Robert Stevenson, grantedj bargained, sold, conveyed, transferred, assigned, set over, and delivered and gave in payment the said property, with all legal warranties, and with substitution and subrogation to all their rights and actions in warranty against all former owners or vendors to Nicholas W. Woolverton, Sr., who accepted the same, acknowledging dellivery and possession of the property conveyed.

The property was declared to be the same property which the said Mrs. Woolverton acquired during the community of acquets and gains, which existed between her and her late deceased husband, Joseph H. Stevenson, and upon his death, in New Orleans, on the 18th of April, 1870, his community half share and interest then vested in the said Robert Stevenson, as his sole and only child and heir.

By the power of attorney, annexed to the act before Ory, notary public, which was executed in Brooklyn, New York, on the 12th of March, 1891, before Sloane, notary public, Robert L. Stevenson constituted and appointed George F. Baumann, of the city of New Orleans, to be “his lawful agent and.attorney in fact for him (me), and in his (my) name, place and stead, to sell, transfer and convey to' such person or persons, ‘for such price and sum, and on such terms as his (my) said attorney in fact shall see fit; all his (my), rights, title and interest, of any nature and kind in and- to the following described property (describing it); to receive and receipt for the price-of said sale or sales, and give and grant full and entire acquittance and discharge therefor, whether in notes or cash, or both; to sign and execute in favor of the purchaser or purchasers of said property, good and sufficient deeds and titles thereto, with or without warranty, and sign and execute any and all other instruments of writing that shall or may be required, and generally to do and perform everything else' that shall or may be required and necessary in the premises, binding himself (myself) to ratify and confirm all and whatever his (my) said attorney in fact shall lawfully do, in and by virtue of the power of attorney.

Opinion.

The first objection urged by the appellant, that the proceedings were null and void, for the reason that the curator ad hoc for the absentee, Robert Stevenson, had not taken an oath, is not well founded, as has been several times declared by this court. (See Thayer vs. Tudor, 2 Ann., 1010; Killelea vs. Barrett, 37 Ann., 868; Hansell vs. Hansell, 44 Ann., 549).

It is possible that some special case night occur, where a discovery having been made after a partition of some property not included in it, the partition would be made over again in totality (C. C., 1380), but in cases like the present, where the property omitted is of insignificant value, and the partition having been made by licitation, the properties have passed by judicial sales into the hands of third purchasers, no-such result would follow. The omission would not be ground for rescission, but simply for a'supplementary partition (C. C., 1401).

The contention of appellant .that the transfer made in the act before Ory, being without consideration to Stevenson, it was in fact a donation by him of his interest in the property, and that the donation (if such it was) would be reducible to the disposable portion of the estate, of Stevenson, by bis forced heirs at the time of his death, he being then alive, assumes as a fact that there was no consideration for .the transfer by Stevenson to Woolverton.

We are by no means satisfied that this assumption is correct. It is-true that the mortgage note given by Stevenson’s mother was executed during her widowhood, but it is quite likely that it represented a debt which had its origin during the community which existed 'between herself and Stevenson’s father. Assuming, however, that Robert Stevenson made a donation to his mother, it was not a donation to her of his half of the property which was transferred in the Ory act to Woolverton. The half of that property which belonged to Stevenson passed direct from him to Woolverton, as being the former’s property. Woolverton, by the purchase, became indebted to him for one-half of the price of the whole property, which, under the agreement, was the amount of the mortgage note of his mother. Instead of paying .the amount to Stevenson, Woolverton, by consent, applied it, pro tanto, to the extinguishment of Mrs. Woolverton’s outstanding note. The donation, under these circumstances, would be of the sum of money so applied, and not of the real estate which had been transferred.

Granting, however, that the' property itself had been donated, it would not follow that appellant would be entitled to relief upon that ground. It is nowhere pretended that Stevenson was married, still less that he had any children.

We do not think that donations, made by a man prior to marriage, are made subject to reduction at his death, as being beyond the disposable portion of his estate, by the fact that he should, after making the donation, have married and died, leaving issue of his marriage. The syllabus in the matter of the Louisiana Savings Bank, in Liquidation, 48 Ann., 1428, is to the effect “that on the trial of a rule to test title, on the ground that same depends upon an act of donation inter vivos, which is subject to revocation by forced heirs, it should be made to appear from the pleadings that there are heirs in esse ” ‘or in posse, whose legitime would be affected, otherwise there would be no sueü substantial issue as this court could conclude by its decree.’ ”

The most serious objection urged by the appellant is that raised as to whether Baumann had not, in transferring Stevenson’s interest in the property, exceeded his authority under the power of attorney given him. It may be conceded that the conveyance could Iv.we been set aside bn that ground, had Stevenson brought a direct action for that purpose against Woolverton, the transferee, and had the issues been left to be determined on the face of the papers without allegation and proof of facts back of and dehors the acts showing prior situation of the parties and touching the community and Stevenson’s relation to the mortgage note, but this question is not presented to us in a direct action between the parties, to set aside the sale, but collaterally and incidentally in a proceeding to require a subsequent purchaser of the property to take title to the same, and this under exceptional circumstances.

The act of conveyance was made as far back as. 1891, and the property, in .the absence of proof to the contrary, is presumed to have gone into Woolverton’s possession. During that long period, and while the parties were all alive, not a word seems to have been urged by Stevenson against Baumann’s action.

The transferee of the property was Stevenson’s grandfather, the father of his mother. The effect of the conveyance was to cause him to release a large claim against the latter; mother and grandfather are both now dead, and the facts and circumstances under which the note indebtedness arose, will probably be difficult of proof at so late a date. The declaration made in the act of sale, that neither Mrs. Woolverton, nor Robert Stevenson, had, at that time, ready money to pay the note, would indicate that Stevenson, as well as his mother, was interested in its payment.

It is true that'declaration was made, not by Stevenson, but by his agent, but none the less it has some significance in view of all the surrounding circumstances of this case.

The property transferred has been inventoried in its entirety as property of the succession of the grandfather, of whom Stevenson is an -heir. He has been brought into these proceedings as an heir, and judgment has been rendered contradictorily with his legal representative, ordering the sale of this very property to effect a sale by Imitation to effect a partition among the grandfather’s heirs, and under that judgment the identical property has been sold. Could Stevenson, under these circumstances, attack the sale in the hands of the appellant, and is it at all likely that he would attempt to do so?

Article 1000 of the Civil Code declares that the person called to the succession does an act which makes him liable as heir, if when cited before a court of justice, as heir, for a debt of the deceased, he suffers judgment to be given against him in that capacity, without claiming the- benefit of inventory or renouncing the succession.

The provisions of that article do not cover this particular case in terms, for Stevenson has not been sued for a debt of the deceased, and though he has been cited in the ease, it has been through a curator ad hoc. The effect of the judgment rendered herein may not be to fix upon the absentee the status of an heir generally, -but if we give any effect at all to his being present in court through a curator ad hoc, as we think we are bound to do, the effect, we think, would be sufficient to pass this property fon to the purchaser free from all claims of ownership on the part of Stevenson. Parties owning real estate in Louisiana should take some care to safeguard their interests in the property, and not leave their rights to be tardily exercised to the prejudice of the public who have dealt with the property on the strength of judicial proceedings, to which they have been made parties by curators ad hoc.

We do not think there is any likelihood of' Stevenson’s advancing a claim hereafter to this property. When adjudieatees, at a judicial sale, instead of utilizing the period during which the property has been advertised for sale, to set on foot an investigation into the title of the property offered for sale, postpone such examination until after they have assumed obligations as adjudieatees of the property, they must be prepared, when they seek to avoid meeting these obligations by charging a defect in the title of the property, to show not a remote and possible danger in accepting title, but a substantial, probable threatening, danger.

We do not think appellant has presented such a case to us.

The risks of the situation, if any, áre remote, and the purchaser, by becoming the adjudicatee, must take them.

For the reasons assigned, it is ordered, adjudged and decreed that the judgment appealed from be and the same -is affirmed.


author: Monroe, J.

text:
    No. 13,164.
    Mrs. Cannon J. Adolph vs. Mrs. Catherine Richardson.
    Syllabus.
    1. The notice required by Article 210 of the Constitution of 1S79 should be given to the owner of the property, and not to a former owner to whom it may have been assessed.
    2. Where, in a petitory action, an outstanding title, in the name of a third person, is urged as an element of weakness in the title originally declared on, and it appears that such title has been transferred to the plaintiff, and, by amended pleadings, has been made the basis of his suit, it can not be attacked by the defendant for relative nullities, but must stand until set aside by those who have a right to set aside the sale.
    AN RE Catherine Richardson applying for certiorari or writ of review to the Court of 'Appeal, Parish of Orleans, State of Louisiana.

      Farrar, Jonas, Kruttschnitt & Gurley for Petitioner.

    Respondent Judges pro se.

      F. Rivers Richardson for Mrs. Adolph, Respondent.
   The opinion of the court was delivered by

Monroe, J.

This is a petitiory action, against the person in possession, by Mrs. Cannon J. Adolph, on behalf of her seven minor children, to recover certain real estate which had been acquired by the father of said minors, before his marriage, and which they are said to have inherited at his death. The nominal defendant, Mrs. Richardson, discloses no interest, and the defense was assumed by Rafael Roca, as owner, but it appears from the evidence that the person who really claims ownership is Antonio Augusti and that the title was made to Roca, and his name was used, in order to enable Augusti to avoid the payment of certain taxes for which he was liable as part of the purchase price of the property, and to obtain the cancellation of the inscriptions thereof. There “was judgment in the district court for the defendant, which was reversed by the Court of Appeal, and we are asked to review the judgment of the latter- tribunal.

The facts of the case are as follows:

Adolph acquired in 1870, failed to pay taxes for several years, prior to 1880, and the property was sold for said unpaid taxes, in 1880, under Act 82 of 1884, to P. A. Bacas, for $45, plus the unpaid taxes from 1880 to 1886. Bacas paid the $45, but did not pay the taxes. Not long afterwards, he was re-imbursed his expenditure by Adolph, and gave up his interest, but there was no formal reconveyance and the title received by him from the tax collector was placed on record July 5, 1886.

In January, 1889, said property, after having been advertised in the name of Adolph — for the city taxes — for the years from 1879 to 1887 inclusive, was adjudicated by the city treasurer, to the city of New Orleans. The act confirming this adjudication was passed March 23, 1891, and registered March 24, 1891.

In August, 1891, after advertisement, in the name of Bacas, for the State taxes of 1890, the property was sold by the State tax collector, under Act 85 of 1888, to Augusti, whose title was recorded August 26, 1891. The cash price at which the adjudication was made was $19.35, being the amount of the State taxes for 1890, in addition to which the purchaser assumed and promised to pay, all other taxes on the property, State or city. Instead of complying with his obligation in this respect, however, he put the property in the name of Roca, in whose name, as an innocent third purchaser, suits were brought, in the city court, in 1894, to cancel the inscriptions for the city taxes for the years of 1880 to 1890, inclusive, and there were judgments ordering such cancellations, but reserving the rights of the city.

In October, 1895, Bacas and one Stewart executed quit claim deeds conveying the rights which they might have had in the property to ■Mrs. Adolph, as tutrix; and, in November, 1895, Mrs. Adolph, as tutrix, paid into the city treasury $201.40, in full payment of the city taxes due up to 1890, inclusive, and received from the city treasurer and city comptroller a redemption certificate whereby the city subrogated her to all its “titles, rights, liens and mortgages, incident to, and growing out of said taxes.” And, thereafter, in October, 1895, Mrs. Adolph brought the present suit.

Counsel for defendant rests his application for the review of the judgment of the Court of Appeal and his argument in support thereof upon two propositions, to-wit:

1. That the court erred in holding that the person entitled to the tax notice, under Article 210 of the Constitution of 1879, is the owner of the property.

2. That the court erred in holding that a redemption of property bid in by the city could be allowed by the city treasurer and comptroller after the year from the date of recording without special authority.

I.

It v/ill be observed, from the foregoing statement of the facts, that the adjudication to the city, in 1889, was made upon the basis of an advertisement in the name of Adolph, although the paper title to Bacas under Act 82 of 1884, had been recorded in 1886. It is true that, according to repeated decisions of this court, Bacas was not the owner of the property because he had not complied with the terms of the adjudication. Nevertheless, the title standing in his name, it was competent to assess the property in his name for the taxes which he had failed to pay. Prescott vs. Payne, 44th Ann., 650; Augusti vs. Citizens’ Bank, 46th Ann., 529; Michel vs. Stream, 48th Ann., 341; Marti vs. Wall, 51 Ann., 953. But the sale to the city was based upon asssessments for the years from 1879 to 1887, inclusive, during the greater part of which time the title stood in the name of Adolph, and for the rest, in the name of Baeás. There were, therefore, two questions which might have been raised as to the validity of the adjudication made by' the city, if there had been any one in a position to raise them. The one, as to the validity of - the assessments upon which it was based; and the other as to the notice. There were, however, but three persons concerned in the matter, the city, Adolph and Bacas and, of the three, it may well be questioned whether the two latter were in a position to complain. But we need not stop to consider that question. Neither Adolph nor Bacas made any complaint. Bacas had never really become the owner of the property, and 'had abandoned all idea and all right to become the owner by accepting reimbursement from Adolph, whilst Adolph acquiesced in the sale, and the plaintiff, representing his children and heirs, ratified it long afterwards by paying the taxes for which the property had been adjudicated and obtaining a subrogation to the rights of the city as adjudieatee. Whether the assessments were good or bad, and whether the notice should have been given to Adolph or Bacas, therefore, the title of the city was never attacked by the parties who alone could be said to have been interested in the property when it was acquired, and it was certainly good as to those'who were without interest.

That being the situation, the title of the city having been recorded March 24, 1891, the State undertook to sell the property for the State tax of 1890, under Act 85 of 1888, and after advertising it in the name of Bacas, adjudicated it, in August, 1891, to Augusti. It will be observed, however, that, at the time of this advertisement and sale, the recorded title was in the name of the city of New Orleans. Bacas had neither a legal nor an equitable title. He was not the owner and he did not appear to be the owner, and, to hold that the advertisement in his name, and the notice to him was sufficient fo-r the purposes of the sale, would be to hold that the property of one person may lawfully be sold under procedings in the name of another.

We do not concern ourselves with the question whether legislation leading to such results would be competent. It ought, at all events, to be plain, specific, and unambiguous, and we find none of that character, either constitutional, or statutory, among the laws of this State. Article 210 of the Constitution of 1879 requires that notice for the purposes of a sale for taxes, shall be given to the “delinquent.” The general laws upon the subject of the conveyance of property contemplate the payment of all taxes, as a condition precedent to every “sale, or transfer or exchange” of real estate, so that no vendor or transferror can be supposed to- occupy the position of a delinquent as to property which no longer belongs to him. R. S. 2519-20. In the contemplation of the law, therefore, the “delinquent” is he who owns the property, and has not paid the taxes, rather than his vendor, who, if the law be properly applied, could not have made title unless all taxes due at the time were paid. In Concordia vs. Bertran, 45 A., 358, it was held that the notice should be given to the owner at the time, and not to a previous owner to whom the property had been assessed.

In Johnson vs. Martinez, 40 Ann., 52, it appeared that the property had been assesssed to “F. Johnson,” who was dead; and that the proceeding to sell was conducted in the same name. This court said: “Tax sales for taxes accrued since the Constitution of 1879 must be preceded with notice to the owner, or no title passes.” And to the same effect are the decisions in Genella vs. Vincent, 50th A., 956; and Succession of Lacroix vs. Lumber Co., 49 A., 1445.

In Lague vs. Boagni, 32nd Ann., 913, it was said: “In case of non-payment of- taxes legally assessed and due, it was incumbent on the tax collector to proceed against the true owner of the land so assessed.”

II.

It is well settled that when property is sold for taxes with a right of redemption reserved to the tax debtor, and the delay allowed for such redemption expires, the title vests in the purchaser; but that he may, if he chooses, permit the debtor to redeem, notwithstanding the expiration of the delay. This, we believe, is conceded. But the counsel for the defendant (plaintiff in this court) makes the point that, whilst the city of New Orleans might have permitted Mrs. Adolph to redeem, after the expiration of the year, it was incompetent for the city treasurer and the city comptroller to do so in the name of the city without express authority from their principal.

In dealing with this identical question, in the recent case of West vs. Negrotto, 27 S. R., 75, it was held that “where an outstanding title in some third person is set up by the defendant in a petitory action, and the plaintiff produces a title from that person himself, such title must stand until set aside by the party entitled to have the sale set aside.” Scott vs. Briscoe, 37 A., 178; Bernard vs. Noel, 45th Ann., 1136; Font vs. McConnell, 46th A., 223.

We therefore conclude that the grounds of complaint urged against the judgment of the Court of AppedSl are not well sustained, and that the defendant in said judgment is not entitled to the relief prayed for.

It is therefore ordered, adjudged and decreed, tha;t said judgment remain undisturbed; that the demand herein made be rejected; and that this proceeding be dismissed at the cost of the petitioner.

Rehearing refused.