text:
    No. 10,796.
    J. W. Galliher, vs. Chas. Davidson et al.
    Where tlie mortgage debtor, in anticipation of the foreclosure of the mortgage by the first mortgage creditor, consents to his taking possession of the mortgaged property and cultivating it on his own account, he will, as to his responsibility to other mortgage creditors, be treated as the keeper of the premises.
    The crop raised by him will inure to the benefit of the mortgage creditors. He will be entitled, however, to be reimbursed for crop advances, and repairs on the plantation rendered necessary to preserve it from decay anjl injury.
    The crop raised by said, party, so placed in possession, must he sold with the property as a part of the mortgaged premises.
    Where a party is placed, as above stated, in possession of the mortgaged property, and afterward forecloses his mortgage, the sale under judicial process can not be construed as a conventional sale and thus extinguish his mortgage by eon-fusion.
    Where a junior mortgage creditor bids on the mortgaged property, and his bid is rejected by the sheriff, and he afterward brings a suit against the seizing creditor and sheriff for damages to the amount of his debt, for an irregularity in the sale, which he alleges occasioned the loss of his debt, he recognizes title in the adjudieatee at the sheriff’s sale and abandons his right to be placed in possession of the property as the highest and best bidder.
    PPEAL from the Ninth District Court, Parish of Concordia. Young, J.

      Steele & Dagg for Plaintiff and Appellant:
    1. The sale of a plantation without the “ lease, use and possession ” thereof, and ' without the “ growing crop on said plantation ” does not comply with the law, and therefore is not a judicial sale. C. P. 656; O. C., Arts. 467, 3282.

      2. Irregularity in a public sale may be waived by the owner in so far as his own interests are concerned, but such waiver does not affect the rights oí others. 0; 0., Art. 11; Lawrence vs. Young, 1 An. 297.
    3. ^Vlien the mortgage creditor becomes the owner of the thing xnox*tgaged, his own security is extinguished by confusion. O. C., Art. —; Murphy vs. Ins. Co., 83 An. 454: 34 An. 926,1086. But it requires a judicial sale to enable the purchaser to get a title clear of incumbrances. Ay rand vs. Babin, 7 X. S. 479.

      Luce & Lemle for Defendant and Appellee:
    1. The sheriff’s sale cleared the property of all mortgages.
    2. The sheriff’s sale, was not acquiesced in by the mortgage debtor, and even on-plaintiff’s own petition, there was no extinction of defendant’s mortgage by confusion.
    8. The mules, etc., purchased by Charles Davidson and placed by him on the ltoseland plantation, and the crop cultivated by him on said plantation at his own expense, in his own naxne, at his own risk and for his own benefit, was his . individxxal px*operty, in no way liable for A. P. Campbell’s debts. .
    4. The px’operty of a third person on the mortgage premises, form no part of the mortgage premises and caxx not be held fox the mortgage debt. 28 An. 761,762; 81 An. 734; 24 An. 129; 23 An. 141. To avoid a judicial sale, plaintiff xxiust allege and prove injux*y. 81 An. 840; 6 An. 61; 8 An. 503; 12 An. 271; 10 An. 272, 752; 11 R. 503; 21 An. 380; 31 An. 174; 13 An. 213; 39 An. 269.
    5. The evidence cleai'ly discloses that the plaintiff has suffei'ed no injuxy, as the property on the day of sale, since and now is worth considerably less than the first mortgage of defendant Davidson.
    6. The court will not lend their aid to the annxxlment of titles, whox’e parties . seeking their interposition can not possibly seek relief from the granting of the remedy they invoke. 31 An. 840; 6 An. 61; 8 An. 503.
    7. If tlxe sale to defendant is void for any cause, and title did not pass to him, then his mortgage will revive, with the rank it had on the day of sale, axxd it will he relieved from all the effect of confusion and extinguishment, resulting from his having acquired tlxe ownership of the thing mortgaged. 2 La. 551; 8-An. 462’; 13 An. 601;‘ BO An. 1307; 31 An. 839; 33 An. S9S; 39 An. 366.
    8. If it be held that the growing crop, ote., on the plantation on the day of sale, the property of Charles Davidson was a part of the mortgage prem;ses, the first mortgage and the amoxxnt expended by Davidson up to the day of sale amounted to about $45,000, and exceeds the amount of $40,000 plaintiff alleges he would have bid.
    9. The plaintiff bases his action xxpon an alleged bid, and his evidence shows that his attorney was not authorized, nor ready to comply with his bid, and suffered no injury becaxxse of its refusal.
    10. Plaintiff can not complain of Davidson’s use and occupancy of the Roseland plantation, as the rents and revomies of tlxe'plantation were seized and sold, and purchased by Davidson.
    11. The plaintiff does not sue nor demand the rescission of the sheriff’s sale because illegal, but sues to enforce'a mortgage.
   The opinion of the court was delivered by

McEnery, J.

The plaintiff held the second mortgage and the defendant the first mortgage on the Eoseland plantation, situated in the Parish of Concordia.

The defendant, the owner of the first mortgage, proceeded via ordinaria to foreclose his mortgage, obtained a judgment recognizing his debt and rendering his mortgage executory, and issued execution thereon.

Prior to the suit, with the consent of the owner of the plantation, Davidson, the first mortgage creditor, took possession of the place. Finding it deficient in working stock, agricultural implements, and needed improvements, he supplied these deficiencies and proceeded to cultivate the place for his own account.

His acts were of a conservatory nature and were undertaken to prevent the plantation from deteriorating in value.' He held no lease of the plantation, and there was no value attached to his occupancy of the plantation. By invitation of the owner of the plantation, Alexander P. Campbell, the defendant, Davidson, filed the suit to foreclose the mortgage.

Execution issued on the judgment, the property was seized and advertised for sale on June 8, 1889, and the defendant, Davidson, bid the same in for $82,000,' and it was adjudicated to him.

The growing crop was omitted from the advertisement. It was' specially stated in the advertisement that the growing crop was not to be sold.

There was no mention in the advertisement of the sale of the plantation having been leased to -Davidson, and that it would be sold subject to said lease.

On the day of sale the plaintiff filed with the sheriff a written protest against the sale of said plantation without the growing crop thereon.

Plaintiff’s attorney bid on said property the sum of $32,500.

This bid was rejected by the sheriff, as it was coupled with the demand that the growing crop should be sold with the plantation, and the purchaser demanded to be put in immediate possession.

Defendant’s counsel instructed the sheriff to disregard the bid and to sell subject to Davidson’s occupancy of the place for the current year. It is evident from the testimony of the plaintiff’s attorney that his bid was not a serious one, and the only object in bidding was to run the property up, not expecting it to be adjudicated to him. The plantation with all the property owned by Davidson, and which had been placed thereon by him, was, after the sale, offered to plaintiff for the price that he had bid on the plantation, part cash and balance on favorable terms of credit.

Hence, the plaintiff iñ his suit does not ask that the sale be avoided and the property adjudicated to him.

Plaintiff’s object is to have the sale construed as a conventional sale between Davidson and Campbell, thus extinguishing by confusion the mortgage of Davidson, leaving the mortgage of plaintiff the first incumbrance.

The averment in the petition on this point is as follows: “That said adjudication was illegal, null and void, in so far as it purported to be a judicial sale, and that it does not have the effect of extinguishing th e mortgage. ”

He avers that said sale, if acquiesced in by said Campbell, did have the effect of extinguishing Davidson’s mortgage by confusion, leaving the mortgage of' petitioner the first encumbrance on the plantation.

The acquiescence of Campbell in the judicial proceeding's which he could not avoid, is not in itself sufficient to establish that there had been a consent sale between Davidson and Campbell previous to the institution of the suit to foreclose the mortgage.

There is ño evidence in the record which establishes any sale between Davidson and Campbell of the Roseland plantation, for which the judicial proceedings were resorted, to only as a means of conveying 'title.

On this point.we quote from plaintiff’s brief:

“We do not particularly contend that the evidence establishes that there was an actual conventional sale made from Campbell to Davidson of the Roseland plantation. We do 'say, however, that defendant’s allegation of ownership-of thebrop, is reconcilable, under the evidence introduced, with no other theory. It seems to us then, that on the allegations of defendant’s answer we would be bound to conclude that there was a conventional sale made early in the year' and -that its effect was to extinguish the first mortgage resting thereon.”

The consent of the mortgage debtor that his creditor, to keep the-place from going to decay, shall go on the place, make .necessary repairs, and cultivate it, is not such an agreement as to amount to a sale.

This agreement is lacking in all the essentials of a sale. R. C. C., 2439.

This agreement was not in writing, and even between the parties, would be null and void, unless actual delivery had been made and the sale confessed by the party when interrogated under oath'. C. C. 2275, 2440.

The judicial sale then, was either null and void, or a valid sale. The plaintiff does not seek to annul the sale and divest the title of defendant. He does not attempt to disturb' defendant’s possession, except so far as to have his mortgage recognized as the only existing mortgage debt against the property, by reason of the alleged conventional sale of the mortgaged property to the defendant by Campbell, the mortgagor.

In the alternative prayer of the plaintiff, he asks for damages to the amount of his claim against the sheriff and the defendant for illegal and wrongful acts of both in the adjudication of said property to the defendant. In both allegations in the petition the plaintiff recognizes defendant’s title and ownership of the property, by virtue of a consent sale, or as the purchaser at the judicial sale.

In the second ground of complaint it is alleged “ that the defendant having moved said crop from the premises’and placed it out of the reach of petitioner is responsible for its value which at the time of said sale was not less than $15,000. Avers that the refusal of A. W. Metcalf, the sheriff of your parish, and the said Davidson, to sell said Roseland plantation according to law, and-the sale of said crop have damaged him in the amount of the A. P. Campbell debt, with interest and costs and attorney’s fees above claimed, and that for this the said A. W. Metcalf, sheriff, and the said Davidson, are responsible to him in solido with the said Campbell.”

Under the pleadings and the relief sought by plaintiff the only element of damages that can be considered is the value of the property appropriated by defendant which was subject to the two mortgages and which was not advertised and sold.

Davidson, the defendant, was not in possession of the plantation by virtue of any lease. His occupancy of the place was that of keeper.

He had not been appointed by the sheriff, but his presence on the place must be treated as.though he had been appointed by the sheriff as such, and had been authorized by him to cultivate the place for the benefit of the seizing creditor. In anticipation of a seizure, Campbell, the mortgage debtor, had no right, to the prejudice of other mortgage creditors, to make a gratuitous disposition of the plantation to the creditor who was expected to make the seizure. 'The crop, therefore, made by Davidson on the plantation, was for the benefit of the mortgage creditors. He was entitled, however, to be reimbursed for all advances made for the raising of the crop, and for all necessary improvements on the place. The crop, therefore, formed a part of the mortgaged property, and should have been sold as such. It was appropriated by the seizing creditor and he 'is therefore responsible for it, and must account for it.

The value of the crop and expense of making it are shown in the record. It will therefore be unnecessary to remand the case.

' The defendant in his testimony says that he deposited with Britton & Koontz $23,000, which amount was used in the cultivation, improvement and equipment of the Roseland plantation; $5500 of this amount was expended for stock and improvements, and the balance of the amount in the cultivation of the crop; 223 "bales of cotton were produced on the plantation, which, with the cotton seed, realized $9900, leaving a considerable loss on the crop of 1889.

. The plaintiff, therefore, has suffered no damage by the appropriation of the growing crop by the defendant.

On complying with his bid there can be no doubt that the plaintiff should have been placed in possession of the plantation, as the defendant had no lease of the premises. The plaintiff, however, has abandoned all intention of having his bid recognized and the property adjudicated to him.

The irrregularity in the sale is made the basis for an action for damages for the appropriation of the property by the defendant, omitted from the advertisementin the sale of the mortgaged property.

The evidence satisfies us that the mortgaged property brought its full value. We are of the opinion that the defendant suffered no damage by the forced sale of the'mortgaged property.

Judgment affirmed.


source: Caselaw Access Project

author: McEnery, J..'

license: Public Domain

text:
    No. 10,827.
    The State of Louisiana vs. Charles Mims.
    Confessions of the accused will not be received against him unless they arc voluntary.
    When promises, offering an advantage to the accused have been made to him, in order to induce a confession by the prosecutor, and he invites him to call on him the next day, and the prosecutor does so, and without any invitation of the accused renews the same promises, whereupon the accused confesses, they will be regarded as one entire act, operating from the time the first inducements offered to the accused.
    PPEAL from the Second District Court, Parish of Webster. Boone, J.

      Walter H. Rogers, Attorney General, J. A. W. Lowry, District Attorney, and Watkins & Watkins, for the State, Appellee.

      Drew & Stewart for Defendant and Appellant.-
   The opinion of the court was delivered by

McEnery, J..'

The defendant was indicted for arson, tried, convicted and sentenced to ten years at hard labor.

He has appéaled.

The confession of the defendant made to the deputy sheriff and Wallace Atkerson, while in jail, was offered and received as evidence over the objection of the defendant, on the ground that it was not voluntary.

The testimony of the deputy sheriff, incorporated in the bill of exceptions, discloses the following facts in relation to the confession:

“Atkerson told defendant that if he would tell the truth it would be easier on him. Atkerson told him if he would turn State’s evidence it would be lighter on him, or something to that effect. Atkerson made defendant believe that it would be lighter on him if there was somebody else with him, and that if he would tell on this other party. Atkerson told defendant that he knew defendant was into it and believed some one else was with.him, and if he told the ■truth he believed it would be lighter with him.”

■ The defendant was accompanied by the prosecutor to the jail, when he was arrested. In the jail, on the first day of his imprisonment, he was told by the prosecutor that he “felt certain that he had burned his house, and that it would be better for him to confess; and I told him I thought the law was that if several were’ concerned the one that told or confessed it, the law would make it lighter on Mm. ’ ’

The defendant asked the prosecutor to come back the next day. Two or three days after this first visit the prosecutor visited the jail in company with th.e deputy sheriff, when the conversation took place which is detailed by the deputy sheriff and which induced the confession.

It is the rule that, when promises or threats have been used and their influences have been totally done away with before the confession was made,-the evidence will be received. 1 Greenleaf, Sec. 221.

But the improper influences first exerted will be presumed to continue and to operate to bring about the confession, unless it is shown by clear evidence that they have totally disappeared, from the length of time intervening or from proper warning of the consequences of the confession, or from other circumstances. 1 Greenleaf, Sec. 221. There is in this case an absence of any such circumstances.

On the first day of the-interview of the prosecutor with the defendant, the inducements to confess were offered. The defendant, in consequence of the inducements made to him at the first meeting, asked the prosecutor to visit him the next day. He went the second or third day. The defendant did not make any confession until he was again approached by the prosecutor with promises to make a confession. The inducements offered were in substance the same as those at the fii'st meeting. They were the same influences offered at different days, but so close together as to operate on the mind of the defendant as one entire act. There were no circumstances shown which disconnected them, so as to prove that the defendant, free from them, made a voluntary confession.

The circumstances show that the confession was not a voluntary one. 1 Greenleaf, See. 219; State vs. Garvey, 25 An. 192; State vs. Garvey, 28 An. 925; State vs. Von Sachs, 30 An. 942.

It is therefore ' ordered, adjudged and decreed that the verdict and sentence be set aside, annulled, avoided and reversed, and it is now ordered that this ease be remanded, to be proceeded with according to law and the views herein expressed.


author: McEneby, J.

text:
    No. 10,842.
    James Ware vs. Joseph A. Berlin.
    Want o£ tender must be pleaded in limine, or specially pleaded. !•
    Where the party refuses to accept the notes representing the credit price, a formal tender thereafter is unnecessary.
    Where it appears that the defendant is indebted for rent and revenues to an amount greater than the purchase price and interest paid for the property, no tender of the price on the part of the plaintiff is required before the institution of the suit. 2.
    APPEAL from the Twelfth District Court Parish of Avoyelles. Coco, J.

      Thorpe & Peterman for Plaintiff and Appellant:
    1. The right to have a sale dissolved for nonpayment of the purchase price is one given to the seller by the textual provisions of the Code, Articles 2045, 2046, 2561.
    2. Where the purchaser of immovable property who has not been evicted tliere- . from makes no offer to return the same, he can not both keep the land and refuse to pay the price. 26 An. 709
    8. When the price of property is payable in instalments the vendor may sue for the rescission of the sale at once upon the failure of the vendee to pay the first instalment. 14 An. 840; 28 An. 739.
    4. Where it appears that the defendant is indebted for rents and revenues beyond improvements to an amount greater than the price paid for the property and interest, equity requires no tender of the price on the part of the plaintiff prior to the institution of the suit. 14 An. 597.
    5. When the portion of the purchase price paid is allowed as an offset to rents and revenues it will bo sufficient. 28 An. 738; 28 An. 582.
    6. In a suit to resolve the sale of immovable property for nonpayment of the price, plaintiff lias the right to ask for a judgment for rents and revenues less the amount paid by defendant on the purchase price and expended in improvements. 41 An. 60.
    7. When it is shown that plaintiff’s counsel offered to defendant to return the notes representing the credit portion of the price and that this offer was rejected, plaintiff is dispensed from the formality of making an actual manual tender in tlic form prescribed by law. 4 An. 844;-3 R. 357; 27 An. Ill; 26 An. 453.
    8. Filing the notes with the petition or an averment that; the notes are iii the possession of plaintiff and will be produced, followed by proof that the notes were actually tendered defendant before trial, is sufficient. 24 An. 587.
    9.. Want of tender must either be set up in limine or specially pleaded. When neither is done, defendant can not, after a trial on the merits, dismiss plaintiff’s suit by urging want of tender, especially when it appears from his own pleadings that lie prayed a judgment in reconvention for the same sum which in argument he urges should have been tendered him before suit brought. 3 R. 357; 83 An. 744.

      10. Ko tender of the purchase price is necessary when it appears that the defendant expressly stipulated in the act of sale that upon his failure to pay the purchase price, or any part thereof, said sale should be null and void, and the property should instantly revert to the vendor, without the performance on the latter’s part of any act whatever.
    11. “Stipulations made by parties in their contracts are the law to them except when such stipulations are in contravention of public law or good morals.” 29 An. 156.
    12. Vendee can not refuse payment of the price because paper title to the land is in other persons who have not disturbed him. ICven if he is in danger of eviction from part of the property the recorded title to which is in others, this fact gives him no right to retain the purchase price of another part of the property to which he has a clear and unencumbered title. 8 ^T. S. Ill; 6 N. S. 523; 13 An. 432.

      E. North Cullam and J. R. Duooté for Defendant and Appellee:
    1. The present suit is petitory. The prayer of petition determines the character of the action. 20 An. 170; 1 Rob. 109.
    2. In a petitory action plaintiff must recover on the strength of his title. O. P., Art. 44; 23 An. 274; 15 An. 454, 628. Plaintiff introduced no evidence of title, and appellee showed an outstanding title in Frith, Pearce and Ifiwell. R. 81.
    3. To rescind a sale on account of failure by purchaser to pay the instalments as they fell due, it is essential that tender of amount paid by purchaser be made before suit is instituted. Rath am vs. Hickey, 21 An. 425; George vs. Knox et al. 23 An. 354.
    4. Plaintiff in a petitory action such as the one at bar can not recover rents or revenues; they belong to his vendee. 23 An. 354.
   The opinion of the court was delivered by

McEneby, J.

The plaintiff sold to the defendant two pieces.of property situated in the Parish of Avoyelles; the first comprised thirty acres of improved land with a dwelling house, warehouse and out-buildings thereon', located on the bank of Red River; the other a rail or tramway, running from the river to Marksville, together with the cars, mules and other equipments to operate the road. The price was $5400 represented by 180 notes of $30 each maturing monthly and secured by mortgage on the property with 8 per cent, interest from date.

The defendant went immediately into possession of the property. The plaintiff was in possession of the property when he delivered it to the.defendant.

Berlin, the defendant paid the notes as they matured until October 20, 1887, and he also paid $10 on the note maturing November 20, 1888. He refused to pay anything further on the note, as there was a recorded outstanding title to the property in other parties. The defect in the title, which induced the defendant to refuse to pay any further sums on the price, was a recorded titled to the property in the name of Ewell, Pearce & Frith, the vendor reserving to redeem on or before the 1st of March,' 1876.

A few days after this sale to the above named parlies the sale was rescinded as to the railroad, upon which a mortgage for $1000 was retained.. This mortgage has prescribed. The parties, in whose name the title to the property was recorded when it was sold to the defendant live in the same parish, and have never asserted any claim to said property, or in any way disturb defendant’s possession.

Prior to the institution of this suit, which is to rescind the sale made to the defendant, the parties, plaintiff and defendant, spent much time in a fruitless effort to compromise their differences. Both agreed as to the rescission- of the sale, but differed as to the terms. The plaintiff demanded the property should be restored to him on his return of the notes with the rent and revenues, and the cash paid on the price should be credited on the amount due for them.

The defendant was willing to restore the property, but as a condition precedent, demanded the return of the cash he had paid on his notes, and for improvements which he estimated at $900.

Failing in an amicable settlement the plaintiff brought this suit under the provisions of Articles 2045, 2046, 2561, of the Oivil Code, to have the sale dissolved. In his petition he demands to be placed 'in possession of the property on the annulment of the act of sale, and substantially avers and demands the relief he sought by an amicable ajustment.

The defendant avers that he can not be dispossessed of the property ; that he has a right to retain the property until the plaintiff complies with the stipulations in the act of sale under the warranty clause in the same. He pleads in reconvention for the sum of $490, amount paid by him to the plaintiff on the purchase price with legal interest from judicial demand, and for the sum of $900 for valuable improvements put by him on the property.

In his brief the defendant urges that, as a prerequisite to the bringing of the suit, the plaintiff should have put him in default by offering to return to him the amount paid to the plaintiff, and the notes representing the balance of the purchase price of the property.

There was no exception filed, alleging a failure to make the tender, nor was there any special plea, either separately or in the answer that urged this objection. It is too late to wait until after the trial to make this plea. It should have been pleaded specially or set up in limine.

It can not be urged in the Appellate Court for the first time. Peremptory exceptions founded in law must be pleaded specially. Hivert vs. Lacaze, 3 R. 357; Heirs of Wood vs. Nicholls, 33 An. 745.

In the instant case the rents largely exceeded the cash paid by the defendant.

The defendant before the suit told the plaintiff he would not accept the notes. It was therefore an idle ceremony, to offer them to him. They were tendered in open court after the institution of the suit. School Directors vs. Anderson, 28 An. 739; Hyman vs. Delmas and Haley, 28 An. 582; Hivert vs. Lacaze, 3 R. 357; Nott vs. Marchessau, 4 An. 344.

The defendant does not ask that the plaintiff be compelled to give security against an eviction. This relief could be afforded under the prayer for “ general relief,” but this is not asked. 3 R. 357.

The prayer of the defendant is, that he “do have and recover judgment in reconvention in his favor and against said James Ware in the sum of $490, amount paid by respondent on the purchase price of the property sued for with legal interest thereon from judicial demand. Prays further for judgment against said James Ware, and in his favor for the sum of $900, amount expended by him in valuable improvements on said property.”

Both parties in fact demand the dissolution of the sale.

A restitutio in integrum must be made. The vendor must return the portion of the price paid, with interest from the date of payment, the credit price represented by the notes and pay for improvements of a permanent nature, and the vendee must return the property with its revenues. C. C. 2045; School Directors vs. Anderson, 28 An. 739; McKenzie et als. vs. Bacon et als., 41 An. 6.

The testimony offered to prove the reconventional demand of defendant shows that the labor on the road was generally for ordinary repairs, and not for improvements'.

The road was received by the defendant in good condition. He permitted it to run down. The repairs on the bridges, rendered necessary by the overflow, may be regarded as permanent improvements.

These were practically reconstructed by hands already in the employment of defendant. A hand was employed doing this work. His' time was divided between handling freight and working on the road, in equal parts. He worked by the month at $16 per month. The value of the work done on the bridges was worth $16, exclusive of lumber, for which there is no estimate.

The property rented for $30 per month. This should be the estimate of the value of the property to the defendant during his . occupancy.

It is therefore ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and reversed, and it is now ordered and decreed that there be judgment in favor of the plaintiff, decreeing that the act o"f sale entered into between plaintiff and defendant on the 18th day of July, 1887, by authentic act before ,Adolphe J. Lafargue, clerk of court of Avoyelles Parish, be annulled and set aside, and the sale dissolved. And it is further ordered that the property therein described be restored to the plaintiff, and he be placed in possession thereof.

It is further ordered and decreed that said plaintiff do have and recover judgment against said defendant for the use and occupancy of said property, at the rate of $30 per month from the date of said act of sale, less the sum of $30 per month paid by defendant on the purchase price from July 20, 1887, to October 20,1888, and $10 paid November 20, 1888, with 8 per cent, interest on each payment, and a further credit of $16 for improvements. And it is further ordered that there be judgment in favor of defendant on his reconventional demand on the part of the purchase price paid to plaintiff, and for improvements in the amounts ordered to be credited above on the judgment in favor of the plaintiff. Costs to be paid equally by plaintiff and defendant.


author: Breaux, J.

text:
    No. 10,780.
    Charles DeGruy vs. Joseph A. Aikens & Co.
    The right oí appeal is the rule; it will be maintained unless it be clearly shown that appellant has failed to comply with essential form and requirement.
    The omission to affix stamps in time on the copy taken of the testimony will not be sufficient cause to dismiss the appeal when the ease can be considered without regard to the unstamped testimony.

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

      A. L. Tissot and Branch K. Miller for Plaintiff and Appellee:
    In a suit for damages for personal injuries, a defendant wlio pleads contributory negligence, admits his own negligence. 42 An. 4; Am. and JKng. JKncycl. of Law, p. 18; 34 An. Í0SS; 32 An. 617; 3R An. 116,
    A contractor sued for damages caused by a defect iii public work, which lie agreed to keep in repair, can not urge a want of notice of the defect, where he denies that the defect existed. 37 An. 492, 495.
    A contractor who, under a law requiring the leasing of a public work, becomes lessee thereof with an engagement to keep the work in good repair and condition, is held to a higher measure of care than a municipal corporation, and, for damages caused by a breach of his obligation, may be held without notice of non-repair. 10Í) Mass. 522; IS Pick. (Mass.) 857; 63 Pa. St. 296; 22 Pa. St. 334; 73 Pa. St. 491; 7 Mass. 169.

      Bayne, Den&gre & Bayne for Defendants and Appellants.
    On motion to Dismiss.
    It is sufficient to say that the rule to dismiss embraces no such ground, the only grounds being that the form of the appeal bond is not proper, and that the surety is not good and solvent. The first was disposed of by the judgment of this court, the second, by judgment a quo, and is the only matter now before the court. If any other ground had been presented in the lower court, we would have met it there by evidence; but plaintiff can not now present a new ground for dismissal on a point not raised in his motion, nor presented to the court below.
    The right of appeal is a constitutional right and will be favored, and no appeal dismissed unless the law imperatively commands it. Brewing Go. vs. Boebingcr, 40 An. 277; Murrell vs. Murrell, 38 An. 1238; LeBlanc vs. Itougeau, 39 An. 280, 33 - An. 271; 30 An. 1127; Ooyle vs. Creevy, 34 An. 539.
    If there he no evidence in the record, the judgment reciting that it was founded upon the law and evidence adduced, the Supreme Court will assume that the judge a quo had before him sufficient evidence to justify his judgment. Succession of Jno. T. Moore, 42 An. 385; Huntington vs. Bordeaux, 42 An. 348.
    The parties were not required to have their evidence reduced to writing, or see that a note is made of the evidence adduced.. It was competent for them to have secured a statement of facts. Succession of Moore, 42 An. 335.
    On Tino Case Itsele.
    The lessees of the public wharves of the City of New Orleans are not insurers of the safety of all who go on said wharves; they are only liable for failure to exercise reasonable and proper care in the repair and maintenance of the wharves.
    It being established by the evidence that defendants exercised the highest degree of care and diligence, and did not know of any missing plank, they can not be held liable for injury sustained by plaintiff.

      Especially where the burden of proof being on the plaintiff he fails to prove that the defect was known to defendants, or had existed a sufficient time before the accident to presume knowledge on their part.
    Such {s the well established rule with regard to municipal corporations, and defendants, assuming the obligations of the City, are not bound to a higher degree of care.
    As to municipal corporations see Dillon on Municipal Corporations, 3d Ed., Secs. 1019, 1020,1015, 1024, 1025; Weightman vs. Winship, 1 Black, 52; .Goodenougk vs. Oshkosh, 24 Wisconsin; 550; Doulon vs. City of Clinton, 38 Iowa, 398; Chicago vs. McCarthy, 75 Ills. 604; Todd vs. Troy, 61 Y. Y. 509; Dewey vs. Detroit, 15 Mich. 307.
    The apron or incline portion of the wharves ndt being a walking'place, or intended as such, and being dangerous especially in wet weather, tkoplaiutiff was guilty p£ contributory negligence in going upon that portion of the wharves, and can not recover. AVceks vs. It. R. C„ 41 An. 802; Murray vs. Pont. R. R., 31 An. 491; Schwartz vs. C. C. R. R. Co., 30 An. 15, 34 An. 144, 33 An. 156, 30 An. 15, 32 An. 616; Deikman vs. R. R. Co., 40 An. 787.
   The opinion of the court was delivered by

Breaux, J.

The plaintiff appeals from a judgment refusing to set ■.aside an order of appeal^ and to order execution to issue against the defendant, on the ground that the appeal bond was defective in form and that the surety was not good and solvent.

On the trial of the rule in the District Court to dismiss the appeal, evidence was taken, but filed some thirteen days after the rule had been heard, and several days after the dismissal. The appellee, in his brief, invokes paragraph 48, Section 7, of Act 136 of 1880, and contends that the testimony should be not only stamped, but also filed,, before judgment, and that in the event of an appeal no testimony not so stamped and filed before judgment should be copied into the transcript, and that if copied it should not receive consideration on appeal.

Counsel also relies on Section 2 of Act 136, which provides that no clerk shall file, or permit to be filed, any paper or document unless the stamped be affixed.

The timely affixing of the stamp is the only question.

The papers bear the stamp at this time.

We will not dismiss the appeal because of the alleged delay in complying with the law’s requirement With respect to fixing stamps. Lane vs. R. R., 43 An.

In several eases lately it was held that a judgment rendered on “the law and the evidence ”'will be affirmed, although the transcript contained no evidence, no statement of facts, no bill of exceptions and no assignment of errors. The court assumed that the judge who rendered the decision had before him sufficient evidence, to justify his judgment. Goodrich vs. Newell et al., 43 An.; Succession of John T. Moore et al., 42 An. 335.

Should we not consider the evidence to which objection is made as not being before us, we have the decree in which it is judicially made to appear that the law and the evidence are the grounds of the dismissal of the rule.

If the testimony had not been copied in the transcript, the authority of the quoted decisions would prevail. In maintaining it, we are satisfied that not the least injustice is done to the plaintiff, in not dismissing the appeal,, for we have considered the testimony taken (although not stamped in time), and have not found that there was cause for making the rule absolute and dismissing the appeal on trial of the merits of the rule.

The surety, as a witness, did not affirmatively testify as to the specific property he owns, but he stated that he is worth the amount of the bond subject to seizure, and that in addition the defendants placed funds in his hands to answer to the judgment.' The plaintiff did not choose to propound any questions to the witness, nor did he offer any testimony in rebuttal. The witness made at least a prima facie showing of his responsibility and ability to pay.

Not the least attempt having been made to prove the contrary,, we conclude that the bond is legal and sufficient.'

With reference to the last ground, that the bond of appeal sets out the obligation of the principals as joint, while the judgment against them is in solido, this has been decided and disposed of in a previous decision.

The right of appeal is the rule; it will be maintained, and the appeal will not be dismissed unless it be clearly shown that the appellant ha,s failed to comply with essential forms and requirements.

Judgment affirmed.


author: Breaux, J. Bermudez, O. J.,

text:
    No. 10,818.
    The State of Louisiana vs. Luma McCarthy.
    Continuances in criminal cases are left, in great part, to the discretion of the District Judge.

      2. On a trial for murder, it is not competent for the State to introduce evidence in chief as to the character of the person on whom the offence was committed.
    In'the following- cases, evidence of character having- been admitted in chief, the verdict was annulled on appeal: Dock vs. Commonwealth, 21 Grat. Va., p. !KW; Pound vs. Georgia, 13 Ga. 89; Ben vs. State, 37 Ala. 103; State vs. Potter, 13 Kan., 424; Commonwealth vs. Anderson, 39 Cal. 703.
    Those opinions are approvingly referred to by Bishop, Crim. L\, See. G12; Wharton’s Grim. Ev., p. 83; lb. on Ilomioide, Sec. 023, and Best oil Principles of Ev., Sec. 257.
    Greenleaf, Vol. 3, Sec. 27, also sustains the inadmissibility of that evidence.
    The evidence being- illegal, it can not be presumed that it had no influence on the determination of the jury. Wharton, Yol. 3, Sec. 3257.
    APPEAL from the Thirteenth District Court, Parish of St. Landry. Lewis, J.

      Walter H. Rogers, Attorney General, for the State, Appellee.

      E. P. Veazie and H. C. Castellanos for Defendant and Appellant.
   The opinion of the court was delivered by

Breaux, J.

The defendant was indicted for murder; he was tried ' and convicted without capital punishment.

From a judgment sentencing him to hard labor for life, he prosecutes this appeal.

1. When the case was called for trial two of defendant’s witnesses were absent.

The sheriff’s return shows that one of these witnesses was sick in bed; the other in an advanced state of pregnancy.

The court refused to issue writs of attachment to compel them to be present.

In ruling, the trial judge states that the first mentioned witness was in a dying condition, a fact established in open court by the statement of a near neighbor of the witness, and which controlled him in refusing the writ.

With reference to the second witness, as with the first, the sheriff’s return made it manifest that she could not be present during the term then being held.

2. The defendant, immediately after the court’s refusal to issue the writs of attachment, made two,motions for a continuance, each based on the refusal to compel the attendance of these witnesses.

He alleged, at some length, the facts he expected to prove by these witnesses.

The first are alleged statements made to the witness (the mother of the accused) by the deceased after he had been mortally wounded.

By the second -witness he expects to prove that the dying declaration of the accused -was illegal and could be of no effect.

He also alleges that there was no other witness present by whom these facts could have been proven; also that their presence could not be obtained during the term.

The refusal to grant the continuance has for basis: The failure of the affiant to state that he could not prove the facts sought to be proven by the absent witnesses, by any other witness within the jurisdiction of the court.

The trial judge states that the motion was made for delay, and that he does not believe in the truthfulness of the affidavit, and gives his reason for disbelieving its verity.

3. The court, while the ease was being tried and the witnesses for the State were being examined in chief, permitted the prosecution to introduce testimony to prove the character of the deceased as a peaceable and quiet man. This testimony was admitted to meet the plea of self-defence.

The defendant objected and urged that he had not offered any testimony to prove character, and that such testimony could not be admitted to meet anticipated defences.

That the testimony was irrelevant and inadmissible.

4. The defendant charges that, during the trial and while witnesses were being examined, the sheriff and a deputy occupied seats in front of the jury; in their presence and hearing suggested questions to the counsel for the State, to be propounded to witnesses.

He represents that this participation on the part of these officers had the tendency to produce an unfavorable impression against him.

The trial judge states that the sheriff was the court’s interpreter at t-he time.

That it may be that counsel for the defendant, who were watchful, “ overheard what the sheriff whispered ” to the District Attorney; but that he did not perceive that it was heard by the jury.

5. The defendant complains that he was pot permitted to recall and examine a witness for the State some time after he had been discharged as a witness.

In rebuttal of testimony offered to prove the.good character of the defendant, the State offered in evidence the records showing that he had been indicted for carrying concealed weapons, also for violating Act' 31 of 1886, relative to disturbances of the peace in public streets, etc., and that he plead guilty and was sentenced in each case..

The trial judge ruled that the evidence was admissible as affecting the testimony of defendant.

7. The defendant moved the court to charge the jury in writing. This motion was not insisted upon, but he represents that the trial judge had not been sufficiently guarded at the time that he called counsel’s attention to the rules of court on the subject in the presence and hearing of the jury, in stating that the counsel “ appeared to be in search of a point.”

This is the last of the many grounds of the defence, and a statement of the case.

1. It is consonant with reason, if it be proven that the presence of a witness can not be procured during the term, the writ of attachment should not issue. It would be useless.

The trial judge has stated fully why they could not be compelled to attend as witnesses at the time.

Under the jurisprudence of this court his statements embodied in bills reserved must.be accepted as'correct.

If there was need of corroboration of the statement that the witnesses were unable to attend, there would be ample corroboration by the allegation in each motion for a 'continuance, viz: “That the presence of said witness can not be procured at the present term of your honorable court.”

In the case of State vs. Benjamin, 7 An. 48, a witness was unable to attend court during the term. It was decided that the attachment was properly refused.

2. In refusing a continuance the District Judge has given several reasons justifying his action.

He was unfavorably impressed by the affidavit for a continuance and did not receive it as true. We do not discover that his discretionary powers have been abused; on the'contrary, they were properly exercised.

In criminal trials continuances are left, in much greater degree than in other matters, to the sound discretion of the trial judge. State vs. Clark, 37 An. 129; State vs. Hunt, 4 An. 439.

3. The character of the deceased.

No authority has been cited (and after most diligent search we have not found one) in support of the admission in chief for the State of testimony to show the character and reputation of the deceased.

The proposition excluding the testimony comes to us sustained in every instance by unanimous courts. When not assailed by the prisoner the character of the deceased is not admissible although he pleads self-defence and attempts to establish it.” Pound vs. Georgia, 43 Ga. 89; Ben vs. State, 37 Ala. 103; State vs. Potter, 13 Kan. 424. In the case just cited, Judge Brewer, at the time Justice of the Kansas Supreme Court, now of the United States Supreme Court, was the organ of the court. Dock vs. Commonwealth, 21 Grat. Va. Commonwealth vs. Anderson, 909 Col. 703; State vs. Bass, 11 An. 478.

We have examined every decision referred to by the authors hereafter mentioned, and have not found anything in support of the proposition. In every case the verdict was annulled. Bishop Crim. P., Sec. 612; Greenleaf, Vol. 3, Sec. 27; Wharton Cr. Ev., p. 83; Wharton on Homicide, Sec. 625; Best on Prin. of Ev., Sec. 257.

We aré constrained to the conclusion that the case must be remanded. We can not presume that the evidence had no influence on the deliberation of the jury. Wharton, Vol. 3, Sec. 3257.

4. The alleged participation of the sheriff and one of his deputies in. the prosecution.

This question as presented is one of discretion.

The trial judge, from whom we received the narration of facts, did not discover any impropriety that could in the least influence the jury.

We will not assume that the jury has been in any manner influenced by the conduct of these officers.

5. The recall of a State witness some time after he had been discharged.

This again is a question of discretion of the judge. It was a mere privilege asked, and the court could legitimately refuse to grant it. State vs. Gonsoulin, 38 An. 462.

6. The records showing previous conviction of the defendant for offences committed, was not improperly admitted for the purpose bf discrediting the evidence of the defendant, offered to prove his good character.

He placed his character at issue; the records of the court, for the purpose of impeaching the testimony of his witnesses, and to show erroneousness of their statements, were admissible.

We are of opinion, therefore, that none of defendant’s bills were correctly reserved, except that relating to the evidence taken over defendant’s objections to prove, in chief, the quiet and peaceable character of the deceased. The sentence and the judgment of the court a qua must be reversed, the said verdict set aside, and the cause remanded for new trial, and it is accordingly so ordered.

Bermudez, O. J.,

dissenting.

The bill of exception which is declared to rest on good grounds, and which is made the foundation on which the case is remanded, does appear to be such as should not be sustained.

The complaint is that the District Judge permitted, over the objections of the accused, evidence to be received on the part of the State, in advance of any attack on the reputation of the deceased, to show that he was of quiet, peaceful disposition.

The evidence was objected to on the ground that it was irrelevant and inadmissible.

Conceding that it had that character, how can the accused complain? Surely, evidence which is irrelevant does not appertain to the case, and, if so, how can it be urged that it influenced the jury-in their deliberation in a way prejudicial to the prisoner?

Besides, there was made a motion for a new trial, in which no complaint was made to the ruling of the judge' admitting that evidence.

A motion for a new trial has for its object to show, not only that the verdict convicting an accused is contrary to the evidence and to law, but also to set forth the erroneous rulings of the judge previous to the verdict, in order to afford him an opportunity to review those rulings, and if he find that they were made in error, to afford speedy relief to the accused.

“When no motion for a new trial is made to correct such errors, most of the decisions hold that they are deemed to have been waived, and that the appellate court will refuse to review them.”

“ If the'party complaining fails to pursue this mode lie loses the benefit of any errors on the trial, and is concluded as to all matters occurring at the trial.”

The exceptions taken at the time of the ruling should be renewed in a motion for a new trial, to exhaust the powers of the trial court. V. Thompson on Trials, Vol. 2, p; 2051, No. 2712 andnote, and p. 2126, No. 2802, 2803, and cases cited. '

Mr. Justice Watkins concurs herein.


author: Bermudez, O. J.

text:
    No. 10,764.
    Interdiction of Thos. W. Bothick.
    Under the provisions of Articles 405, 413, 415 of the Revised Civil Code, which are analogous to Article 507 N. C., a wife is relieved from the disabilities which generally attach to women, and may be appointed euratrix of her interdicted husband, without being bound in this State to furnish security; but she can be thus appointed only on the recommendation of a family meeting, duly convened, and held.
    In cases of appointments of curators to interdicted persons, the appointment is dative, that is, conferred by the court, with the advice of a family meeting. In the ease of the appointment of a curator to an interdicted married woman, the appointment of the husband is legal, the law conferring on him the right, “ of course," to be appointed. The same right is not given to the wile, in case of the interdiction of her husband.
    The Supreme Court, in.the exercise of its appellate jurisdiction, has merely the powers of the lower court in the eases brought before it for review.
    That which the court of first instance could not legally do, the Supreme Court is incompetent to do.
    Where the wife and a son of age of an interdicted person raise concurrent claims to the tutorship, the lower court could not make the appointment of either without the recommendation of the family meeting. This court is likewise powerless without such recommendation.
    As in cases of tutorship, where the various functions of the trust can be divided, so in cases of euratorship of interdicts, one may be appointed to take charge of the person, and another to administer the property.
    A PPEAL from the Civil District Court for the Parish of Orleans. Voorhies, J.

      Aug. Bernau for Plaintiffs and Appellants;
    A married woman can not stand in judgment without the authority of her husband or in the event of her husband’s inability to authorize her, without being authorized by the court. In such a case the court will proceed -to render its decree without considering the answer or intervention filed in court by the wife of the person sought to be interdicted, or if it be necessary that the wife be made a party to the suit, the Supreme Court will remand the case to the lower court to be proceeded with as required by law. Delacroix vs. Hart, 24 An. 141;
    Saunders vs. Burns, 38 An. 367.
    Under the law of Louisiana, ascendants and descendants as well as husbands are the legal curators of persons interdicted (Article 229 C. C.; Article 412 It. C. 0.), while under the law of France, the husband’s curatorship only is a legal curatorship.
    All other curatorsliips, including that of the wife over her interdicted husband, are dative. Duranton, 3d Vol. pp. 683 (751, 752); Demolombe, Vol. S, pp. 370 (564, 565, 566);*Baudry Lacantinerie,p. 692, Secs. 1172,1173, 1174; 9th Dalloz, alph, 547 (Cass, November, 27,1816); Ball’s Administrator vs. Ball, 15th Louisiana, 180; Curator-ship of Sarah J. Beecroft, 28 An. 825. And in the absence of grave reasons the curatorship should be conferred on ascendants or descendants. Reportoire General Volume, 8th page, 578 (Metz, February 16, 1842, Bruyere vs. Thomassin)
    The meaning of the words “ the wife may be appointed euratrix to her husband, etc,” * * derived from the code of France, must be sought in the construction placed upon the same by the French courts and jurists, and the fact that in Louisiana, the wife, when appointed, is exempted from giving bond, while in France it is left to the family meeting to regulate the terms and conditions of the administration when appointed, does not make the wife’s curatorship a legal curatorship. Under the law of France, the terms and conditions of all curatorships are fixed by the family meeting. Duranton, 753; Touillier, 1848; Delvincourt. 1, p. 182, No. 8; Repertoire General “ Interdiction,” Vol. 8, 579.
    As the rules respecting the tutorship of minors apply to the curatorship of interdicted persons (Article 415 Civil Code), the judge can not, in the absence of the recommendation of a family meeting, appoint the wife euratrix of her husband. Succession of Arlaud, 42 An. 320.
    The children of an interdicted person being under the law and under penalty of disinherison bound to take care of tlieir insane father, and to maintain him in case of need, should be consulted in the appointment of a curator. And as they will inherit his estate upon his death, they have a right to complain whenever the same is placed in jeopardy. Interdiction Watson, 31 An. 761.
    Under Article 404 of the Civil Code, the appointment of the curator can not be made except after the rendition of the judgment of interdiction, and it has been held in France, that if made before the rendition of the judgment of interdiction, or within the time intervening between the rendition of the judgment and its finality, that the same is a nullity. Repertoire General, Vol. 8, p. 577 (Cass: October 13, 1807; Darnierres-Touillier, 1385; Duranton, 749; Frudhommo, 2, 332). Vet, nevertheless, where the appointment of a curator and a judgment of interdiction are pronounced and made in the same decree, the cost of such proceeding should be borne by the estate of the interdict. A party should not be mulcted in costs merely because he has been unsuccessful in being appointed curator of his father, where the law (as a near relation) forces him, when necessary, to obtain such interdiction, and. when he is successful in so doing. Tutorship Rose Amy Mossy, 3d Robinson, 394; Succession Lewis, 10 An. 791; 10th La. 440, 441.

      James McConnell and Frank L. Richardson for Defendant and Appellee:
    Tlic wife may be appointed curatrix to her husband if she has, in other respects, the necessary qualifications. She is not bound to give security. C. C. 413.
    The authorization of a family meeting is not necessary before this appointment can be made by the court. 7hid.

    Articles 507 and 509, Code Napoleon, wore materially altered when incorporated in the Louisiana Civil Code, and the adjudication, by the courts of France, based upon these articles, are not to be considered in interpreting Article 413, Civil Code.
    Whore charges are made, which were shown to be unfounded, and a mass of testimony is introduced creating a most expensive litigation, the defeated party is properly condemned to pay the costs. C, IV157.
   The opinion of the court was delivered by

Bermudez, O. J.

The children of Thos. W-. Bothick, an interdicted person, appeal from a judgment appointing his wife (theiistepmother) as his curatrix.

They complain that the District Judge had no power to make the appointment in the absence of a family meeting. In support, they contend that the curatorship of interdicted persons is dative, unless in the case of the wife, when the husband is, of course, of right, the curator of the wife, the curatorship then being legal.

The article of our Code which is invoked as justifying the appointment by the judge without the intervention of a family meeting, is. Article 418, R. C. C. (400 C..of 1825), which reads:

“The wife may be appointed curatrix to her husband, if she has, in other respects, the necessary qualifications. She is not bound to give security.”

The first sentence is taken from the Code of 1808.' The second is an addition to it by the compilers of the Code of 1825.

The main portion of the first sentence was borrowed from the Napoleon Code, Article 507, which is in these words: “La femme peut étre nommée tutrice de son mari.”

The difference between the two texts, thus far, consists in this, that the word curatrix is used in our Code, instead of the word “ tutrice ” found in the original.

The French Code, however, contains another sentence, which is:

“En ce cas, le conseil de famille réglera la forme et les conditions de P administration, sauf le recours devant les tribunaux de la part de la femme qui se croirait lésée par l’arrété de la famille.”

That sentence was not retained by the framers of the Code of 1808, who replaced it by the provision, “if she has, in other respects, the necessary qualifications.”

It is apparent that, when the first sentence was imported into our system, it was borrowed with the meaning attaching to it.

A review of the commentators of the jurisprudence relative to it ■establishes conclusively that the curatorship of interdicted persons has always been considered as dative, with the exception stated, when it is legal. See Duranton, Vol. 3, pp. 683, 752; Demolombe, Vol. 8, p. 370; Favard, Vo. Interdiction, Sec. 2, No. 10; Delvincourt, Vol. 1, p. 481; Maguin, Vol. 1, 866; Chardon, Puiss. Marit., No. 87; Mourlon, Vol. 1, No. 1296; Marcadé, Vol. 2, p. 312, note; Baudry Lacantinerie, Dr. Civ., No. 1172; Delsol, Vol. 1, p. 393, No. 677; Cour de Cassation, 27 Nov. 1816. They are all to the same effect.

Dative tutorship, or dative curatorship, is that which is conferred by a family meeting on a person having charge of a minor, or of an interdict.

The wife is not of right the tutrix or curatrix of her interdicted husband; but she may be chosen by the family meeting. The law has taken care to say expressly that she can be appointed, because, on principle, women are excluded from the tutorship, unless in stated cases. The French law declares that, in case the wife is appointed (by the family meeting), the family meeting will prescribe ■or regulate the mode of administration.

An attentive 'consideration of these authorities shows that they do not rest upon the second provision of the law, but solely on the first, which declares that the wife may be appointed. Indeed, the second •sentence may be treated as surplusage, and it is perhaps for that reason that it was not engrafted in the Code of 1808.

The words: en.ce cas, etc., mean that, in case the wife is appointed, the family meeting will direct or regulate the mode of administration. They refer to matters occurring subsequent to the appointment, which is presupposed as a condition precedent.

The appointment of the wife by the family meeting has been ■deemed as required by the first sentence, for the reason that it is, as .a rule, dative' and not legal, particularly in the case of the interdiction of the husband, although it be the latter when the wife is the interdicted person.

When the family meeting appoints, it may, at the same sitting and during the course of the same deliberations, regulate the administration by the wife, under reserve of her right to claim redress eventually.

By conferring on the wife the privilege of appointment, the law has merely relieved her from the incapacity otherwise absolute, and enabled her for the appointment, thereby placing her on an equal footing in the class of persons susceptible of being appointed to the charge of the person and property of the incapacitated unfortunate being.

It is perfectly clear that the second sentence of the French article.' confers op the family meeting no rights which it would not have possessed had the permission not existed; for it is apparent that a family meeting has the unquestionable right to direct how the person of the interdicted shall be taken care of; how his property shall be administered, as. interdicted persons are assimilated to minors, and family meetings advising on the interest of minors are vested with such powers. It would have taken prohibitory legislation to strip them of those powers, and surely there- exists none on these subjects.

The article of the Code of 1808 has remained intact up to the present time, with the exception that it was enlarged in 1825, by the compilers of the Code of that year, so as to relieve the wife, when appointed, from the obligation of furnishing security. It contains, ah initio, a fragment of sentence which is to the effect that the wife may be appointed curatrix of her interdicted husband, if she possesses, in other respects, the necessary qualifications.

This addition may itself be considered as surplusage,-for the obvious reason that, had it not been made, it could not be denied that the wife could not be appointed, if she did not possess the necessary qualifications.

So that Article 418, R. C. C., received in the light -of the interpretation placed by the French jurists on Article 507, N. C., may be construed as meaning that the wife may be appointed curatrix of her interdicted husband on the recommendation of a family meeting, and, in that event, will not be bound to give security.

It appears in the present instance, that the children of the interdicted, all of age, save the minors of a deceased daughter, oppose the appointment of their stepmother, and agree that one of themselves should be entrusted with the curatorship of their father.

Articles 405 and 415, R. O. 0., prescribe that the appointment of a curator and his administration shall be regulated as in case of minors.

It is wise, in cases of this description in which there is competition and one of the aspirants may be relieved from security, that the choice be left not to the judge alone, but to the family meeting, who are more competent to determine to which of the applicants the trust shall be confided.

This view of the ease relieves the court from the necessity of ‘considering the cross charges of incompetency set ug by the parties.

It is therefore ordered and decreed that the. judgment appealed' from, appointing Mrs. Bothick curatrix of her interdicted husband,, be reversed, and her demand for appointment be rejected; reserving the right of the parties and of any one else to be appointed to the-trust, on the recommendation of a family meeting, in due course of law, the said judgment in other respects to remain undisturbed, appellee to pay costs in both courts.

On Application eor a Rehearing and Amendment oe Judgment.

We have given due attention to the application for a rehearing in behalf of Mrs. Bothick, and to the brief in its support; but have not been convinced that our previous decree is erroneous. We must therefore adhere to it.

On the other hand, it is urged that the judgment annulling the appointment of Mrs. Bothick should have gone further, and that James W. Bothick, a son of the interdicted, should, agreeably to the wish of the other children, have been appointed by this court curator to his father.

In the original opinion it is distinctly stated that the appointment of a curator to an interdicted person is dative unless in the case of that of the husband to the wife, which is legal, and can not be conferred without the recommendation of a family meeting.

What is law when the wife is concerned, is likewise law when others are likewise interested; particularly is such the case where •the wife concurrently claims the curatorship.

It is clear that she can not be excluded from it merely because a son of the interdicted, who is acceptable to the other children, claims the appointment.

Both applications, and any other which may be made, must be submitted to the same family meeting, whose duty it will be to recommend the best fitted and most proper person to take charge of the person and property of the interdicted. The judge will next have to act on the recommendation in the exercise of his sound legal discretion.

We are not presently concerned with the apprehended consequences in case the wife is not recommended and not appointed. It may be that she will be recommended and appointed to take charge of the person and- property of the interdicted, or merely entrusted with the custody and care of his person, under the wise and humane-provisions of the law, if applied in such doleful circumstances, by the-the family meeting in the discharge of their duty. Both applications, are refused.


text:
    No. 10,868.
    The State ex rel. J. W. Bothick et al. vs. Albert Voorhies, Judge.
    Tlie Supreme Court -will not issue writs of prohibition and mandamus to a District Judge having probate jurisdiction to prevent him from causing to be held a family meeting composed of persons designated by him, on behalf of an interdicted person, and to command him to appoint as members of such meeting persons whom he has decided should not form part of it. The remedy would be by appeal.
    He has jurisdiction and can exercise it with proper discretion. The act is not ministerial in character.
    Should the judge fail to do as he should do, the aggrieved would not be without other adequate remedy.
    y^PPLIOATION for Prohibition, Mandamus and Certiorari.

      Aug. Bernau for the Relator.
   . The opinion of the court was delivered by

Bermudez, O. J.

This is an application for writs of prohibition-mandamus and certiorari.

The relators, who are the sons and sons-in-law of Thomas W. Bothick, an interdicted person, complain that the District Judge has declined to appoint them as members to compose a family meeting to be held for the purpose of selecting a proper one to take charge of the person and property of the interdicted, and that he has appointed to their exclusion eight persons, who are said to be friends, to constitute such family meeting for the object in view.

The relators have annexed to their petition a copy of the reasons assigned by the District Judge in support of his conclusions.

The charge is made against the District Judge that, in acting as he has done, he has usurped jurisdiction, and he should be compelled to appoint the relators as members of the meeting to be held.

The reasons set forth in the opinion of the District Judge may be good or bad. With this we have at present no concern.

The relators invoke the exercise of our supervisory jurisdiction under Article 90 of the Constitution, but they are not entitled to it.

The powers of this court, under that conservative provision, can be sought only in cases in which a court has no jurisdiction, or exceeds the bounds of its authority; or refuses to perform a ministerial ■duty.; tor has proceeded, notwithstanding valid objections, in a matter before it, in utter disregard and violation of the forms prescribed .and required by law.

In the present instance it is beyond discussion that the court over which the District Judge presides is vested with probate jurisdiction and as such is competent to order a family meeting to be held to pass upon matters affecting the interests of interdicted persons, and to that end, to determine and designate who shall or shall not compose the same.

In doing so, he exercises a judicial discretion, and does not perform a mere ministerial act.

Had the District Judge absolutely declined to convoke a family meeting in a case in which one should be called, he might, on a proper showing, be compelled by mandamus to act; but this is not the case now presented. The attempt is to have this court, in a mandamus proceeding, to review his judgment touching the composition of the family meeting, and thus to convert that form of proceeding so as to perform the functions of an appeal, which can not be done.

The apprehension that wrong or injury, irreparable in character, will be done the relators if the order of the Judge is carried out by the holding of the family meeting, composed, as he directs that it should be, may prove without foundation.

It should not be forgotten that nemo hceres viventis, and it should be borne in mind that the persons appointed by the judge, in meeting assembled, may, at least as a possibility, come to a conclusion favorable to the relators, who then would have prematurely complained. Should it, however, happen that the reverse takes place, and that an improper person is selected and recommended,'the relators will not be left without a remedy, by opposing the appointment.

It can not be assumed that the District Judge will arbitrarily disregard such opposition if founded; but were he to err, the relators could bring up his ruling for review, to this court, together with all preliminary decrees conducive to the appointment of a curator to the person and property of the interdicted. It will be then time to consider and determine all the contentions on the subject.

There is no apparent reason to suppose, at the present stage, that the person to be nominated and appointed, when qualified, will disregard his oath and bond and prove derelict to the duties imposed upon him by law, so as to wrong and injure the interdict, or those who may have an eventual interest in his property; but, were such unfortunately to be the case, on proper representation and proof by one in authority, the District Judge, who is the tutor of tutors, the curator of curators, who is clothed with ample powers to guard against apprehended evil and to remedy actual wrong, would no doubt not fail to exert those powers in a proper manner for the protection of the concerned.

The application does not present a case in Which the writs asked can be allowed.

It is therefore ordered that the application be refused, With costs.


author: Fenner, J.

text:
    No. 10,755.

    Wm. D. Golding vs. Wm. Golding et al.

      1. Property purchased by the husband in his own name after the dissolution of the community by death of wife, does not fall into the community.

      2. On proof that such property was purchased with identified funds of the com- • munity, it might be claimed as community property under the doctrine of Pirtle vs. Price, 31 An. 357; but such claim could only be urged against the husband while the title remained in his name, and could not avail against bona fide mortgagees and subsequent purchasers who acted on the faith of the recorded title.
    3. Where the legal mortgage in favor of a minor on the properly of his tutor has been canceled and erased from the records by the final decree of the court, seized with jurisdiction thereof, in proceedings regular on their face, and with, the advice and consent of a family meeting, a special mortgage has been substituted therefor, subsequent purchasers in good faith of the property will be protected and can not be affected by charges of fraud and conspiracy in the proceedings to which they were not parties and of which they wore ignorant..
    4. The judge® quo has correctly held that the charges of fraud and conspiracy against several defendants herein have not been proved.
    APPEAL from the Oivil District Court for the Parish of Orleans. King, J.

      Jas. P. Hornor & Son for Plaintiff and Appellant:
    1. Where the interests of a minor and liis tutor are conflicting, any judgment rendered against a minor is a nullity where he is not represented by the under tutor, o: P. 275; 1 lien. Dig. 914.
    2. Pailuro of the under tutor to do his duty subjects him to pecuniary responsibility to the minor. 31 An. 51.
    3. The under tutor has no power to consent to the erasing of the minor’s mortgage (31 An. 51), and consequently can not consent to any of the preliminaries-leading to that result.
    4. Property purchased with the identical money stolen by the purchaser from a succession belongs to the succession. 31 An. 357.
    5. A minor has a mortgage on the property of a person who intermeddles with his estate. 8N. S. 366; O. C. 3315.
    6. A special mortgage based on an homologated account, false and fraudulent on its face, held null and void. 31 An. 31.
    7. Purchasers are bound to ascertain that the court ordering the sale had jurisdiction oyer the matter, and that it had the right to exorcise its discretion in the manner it did. 41 An. 401.

      Howe & Prentiss for Executor, Defendant and Appellee:
    1. As to Steers, a third possessor, the plaintiff, so far as this action is hypothecary, has not laid any foundation by demands, and notice for a hypothecary action. O. P. 68, cf seq.; Taylor vs. Pearce, 15 An. 564.
    2. The suit was not preceded by any proper account between plaintiff and his father.
    3. The suit was not brought within one year after the judgments complained of were rendered nor within one year after plaintiff became of age. No fraud extrinsic to the record was attempted to be proved, and the record itself should not be permitted to be attached.

      .4. Tlie suit attempts to join a number of persons who had no privity of contract or common interest, and were not charged with any common offence. 32 An. 1165; HAn. 181; 12 An. 74.
    5. The Second District Court had jurisdiction to render the judgments complained of, and they protect Steers, a subsequent purchaser. 13 La. 431; 31 An. 52; 40 An. 500; 11 La. 156. Irregularities prior to judgment (even if existing, which we do not concede) should be corrected by appeal, and afford no basis for an action of nullity, if this action be such. 9 La. 79; 9 An, 197; 14 An. 396, 656; 22 An. 371.
    6. The property described was acquired after the death of plaintiff’s mother, and was not community property. 2 An. 196; 7 liob. 75.
    7. The petition shows no cause of action against Steers. The bald allegation that he was in “ bad faith,” without any allegation of facts to support it, is nothing. 102 U. S. 372.- The plaintiff must allege and prove some facts from which tlie legal conclusion of bad faith could arise and these must be extrinsic to the matters tried in the Second District Court.
    •8. Kven if the petition showed a cause of action, its allegations were not proved. See the opinion of the lower court copied in the brief.

      TV. S. Benedict for Defendants and Appellees.

      Harry H. Hall for Defendants and Appellees:
    1. Prematurity. “Until the minor has, by proper proceeding in the probate court, ascertained and liquidated contradictorily with her tutor, herrights and claims against him, she is not in a position to enforce them.” Gibbs vs. Simms, 29 An. 532, Vide 30 An. 1192; U C. 37 An. 80S; C. C. 362.
    2. Prescription of one year bars an action to annul a judgment for fraud (C. C. 613); and “ where in an action, more than a year after the judgment, defendant expressly denies any discovery within a year previous to the suit, plaintiff must prove it.” 7 R. 92; 7 R. 94.
    3. Prescription of one year bars an action for damages arising from a tort. C. O. 3536(3501).
    “ If this possession was a wrongful one, as it is alleged to be, the property came into his hands by reason of an offence which he, through his agent, had committed. Ilis obligation toward the plaintiff would rest upon a claim for damages caused by tortious conduct, and is the result of an offence which is prescribed by one year.” Wood vs. Ilarispe, 26 An. 511.
    4. Plaintiff claims that propertypurchased afterthe dissolution of the community may, by inventorying it as such, be made community property.
    There prevails a belief among members of the bar, which is somewhat general, that community property is defined by certain inflexible limitations set out in Art. C. C. 2402 (2371); and that even a debtor who earnestly desires to relieve his individual property from a mortgage granted for his individual debts can not, by inventorying that property as community property, make it such property.

      “ Plaintiff’s ancestors having acquired, during majority, a warrant authorizing the holder to enter a certain quantity of public land previously offered for sale’ located it after the death of his wife. * * * Held, that the title to the land never vested in the community. * •* * Per curiam: Purchasers, without notice, can not be distributed by reason of fraud committed by their vendors, unless their participation in them be proved.” Sexton vs, McGill, 2 An. 190.
    5. Plaintiff claims that the Second District Court had no jurisdiction to annul an inventory and inscription thereof, made under its orders in a probate pro, ceeding.
    I must apologize for citing authority to show that the probate court.aleñe had,, at the time referred to, jurisdiction of private matters, or of suits to annul orders in probate matters; and that a court once properly vested with jurisdiction will maintain it over the subject matter until the final termination thereof. Succession of Hoover vs. i'ork, 30 An., p. 752.
    6. Plaintiff claims that the judgment in the probate court canceling the inventory was rendered on the 17th of August, and signed on the 23d of August, 1869, in , vacation, and was therefore an absolute nullity.
    Act 12 of 1868, p. 14, provides, “ That the Eirst and Second Courts for the parish of Orleans shall be and remain open during the whole year for the trial of all causes in their respective courts.” R. S. 1928.
    7. Plaintiff claims that because he was represented by his father’s counsel the judgment was a nullity.
    The suit was brought against Golding, tutor, and the under tutor. 'The minor was therefore represented.
    “A judgment can not be annulled by direct action from any alleged vice of form in the mode of proceeding. It can only be annulled by such actions for one of the three clauses of vice of form contained in Article 606, O. P.” In other cases the remedy is by appeal. Bank vs. Speckman, 23 An. 146.
    S. And further, plaintiff avers that the judgment homologating the corrected account is an absolute nullity, for causes specified, all of which, if true, would have been grounds for an appeal, but are not grounds for an action for nullity. 14 An. 1656; C. C. 2277 (2257); 23 An. 147. ' -

      Bice & Armstrong for Defendant and Appellee.
    1. Plaintiff makes no pretence of meeting the essential issues of fact raised by the pleadings.
    2. That which comes into existence after the dissolution of the community can not become part of the community, at the beelc of the survivor in the community.
    3. Nothing but registry of title to reál estate affects third persons, in good faith. C. C., Arts. 2264, 2266; Hoyer vs. Sheriff, 40 An. 660.
   The opinion of the court was delivered by

Fenner, J.

The facts out of which this litigation grows are -the following:

The wife of William Golding died in February, 1864, leaving as issue of the marriage a minor child, viz: the present plaintiff, Wm. D. Golding.

After her death, in the months of March' and July, the surviving husband, Wm. Golding, purchased the real estate involved in this-suit.

In October, 1864, the succession of Mrs. Golding was opened, but no inventory was taken till long afterward.

In June, 1865, Wm. Golding executed a mortgage on the real estate above referred to in favor of D. O. McCan, to secure an acknowledged indebtedness-of $50,056.90.

In July, 1865, Wm. Golding made an inventory in his wife’s succession, and included in it the property purchased by him after her death and on which he had just granted the mortgage to McCan.

On June 7, 1866, when the first mortgage note to McCan was about to mature, Golding brought suit against McCan, attacking the consideration of the mortgage, praying for its annulment, and for a further judgment against McCan for more than $100,000.

On June 16, 1866, McCan filed suit by executing process on his-mortgage note, which was enjoined by Golding on the same grounds set up in the first mentioned suit.

These suits went to issue and trial and both resulted in judgments in favor oí McCan, fr'om which judgments Golding took appeals to the Supreme Court.

During the pendency of these appeals a compromise was effected between Golding and McCan, evidently- by a notarial agreement, containing the following stipulations:

1. Golding dismisses appeals, suit Supreme Court Nos. 1511, 1916. (District Court Nos. 18,289, 17,465).

2. Golding agrees to transfer property corner Julia and Tchoupitoulas streets to McCan, in full payment of $25,000, and to substitute for the minor’s tacit mortgage on said property a special mortgage on other property.

8. Golding to pay McCan $5000 in cash and transfer certain judgment to extent of other $5000.

4. The final balance due McCan on mortgage on Novelty Iron. Works is fixed at $15,000, and sundry minor stipulations.

In the meantime, in August, 1865, Golding had filed the inventory taken in the succession of his wife, which exhibited the property here involved, and purchased by Golding after his wife’s death, as .community property, appraised at $52,500, and also recited a further amount of cash on hand of $27,840.

Under the law then in force the minor had a tacit mortgage on the property of his tutor for the amount due him under the inventory, and this mortgage had been preserved under the Constitution -of 1868, by timely record of the abstract of inventory. McCan thus discovered that the real estate on which his mortgage rested figured on this inventory as community property, one-half of which belonged to the minor, and that in addition thereto it was subject to the minor’s mortgage, priming his own, for the large sum appearing -on said inventory.

McCan thereupon brought his action in the Second District Court, in which said inventory had been filed and homologated, against Golding, tutor, and the under tutor of the minors, to have said inventory annulled and set aside, to have the real estate placed •thereon declared to be not community property, but the individual property of Wm. Golding, and to order the tutor, Wm. Golding, to state and prove contradictorily with McCan and the under tutcr the true nature, value and amount of the community property and debts.

After issue joined and contradictory trial, judgment was rendered .as above prayed for.

In accordance with this decree, Golding, tutor, presented a petition in the succession of his wife, with a statement of the assets and ■debts of the community, and asked that McCan and the under tutor be cited to show cause why the said account should not be homologated. Both defendants appeared and filed answer, the cause was regularly tried, evidence was heard, and judgment was rendered homologating the account.

■ This account, of course, eliminated the real estate which had figured on the inventory, but placed the amount of the price paid therefor in lieu thereof, making the community assets the same in amount as on the former inventory. But the account supplied what had been omitted in the inventory, a statement of the community debts, amounting to $80,000, leaving a surplus of $840 due the community, of which one-half belonged to the minor.

On the petition -of the tutor and the advice of a family meeting, the minor’s general mortgage was canceled and erased, and a special mortgage on particular property was substituted therefor in the .amount .of $170.

In this state of the case the title to the two pieces of real estate has passed from Golding to bona fide purchasers, who bought on the faith of the records and judgments above recited, and the property has been sold and resold, until, at the date of this suit, the title of one piece stood in the names of A. A. and J. H. Maginnis, and of the other in the name of S. B. Steers.

The minor, Wm. D. Golding, having attained the age of majority, brings the present action against McOan, his tutor 'and under tutor, and the above named present owners of the property, in which he asserts the nullity of all the above mentioned-proceedings; asserts the integrity of his rights under the original inventory and his tacit mortgage; claims that he, therefore, remains the owner of one-half of the property included therein, and has a mortgage on the other half; and claims in addition thereto a large judgment against McOan, his tutor and under tutor in solido.

Several exceptions were filed and overruled; but the ease is so clear on the merits that there is no need to consider them:

1. The claim of ownership of one-half of the property has no •foundation in law’. The property was purchased by Golding after 'the dissolution of the community, and, under.the plain text of the ■Code, did not become community property. Rev. C. C., Art. 2402.

The claim that the property was purchased with community funds, and was therefore held under a resulting trust in favor of the community, might have force against Golding if the title remained in him, provided it were shown that the purchase was made with the indentical funds held for the community under the doctrine of Pirtle vs. Price, 81 An. 357; but no such proof of identity is made. And in no case could such claim be maintained against the mortgage - executed in favor of McOan, which was accepted on the faith of the recorded title, and still less against the subsequent bona fide purchasers. Receivers vs. Beauregard et al., 1 Woods, 125.

2. The claim of mortgage must be denied for similar reasons.

. The mortgage in favor of the minor which once apparently rested on this property was canceled by a final decree of the only court which had jurisdiction in the premises, on the proceedings perfectly regular to which both the tutor -and under, tutor were parties, and was duly erased from the records with the advice and consent of a family meéting, and substituted by a special mortgage in the amount fixed by the court. Even.if there were fraud in these proceedings, which is not proved, they were regular on their face and fully protect the defendant purchasers, who are not charged with participation in or knowledge of such fraud and had the right to act on the-faith of the record.

3. The sweeping charges of fraud and conspiracy made against the-tutor, the under tutor and McCan, are not sustained by proof and furnish no ground for the relief claimed against the under tutor, McOan, which was properly denied by the judge a quo.

These proceedings furnish no proper base for adjudicating on the special mortgage for $170, recorded against the property now held by the succession of S. B. Steers, and the judge below rightly ignored it. This is without prejudice to the right of plaintiff to assert the same in proper proceedings.

Judgment affirmed.