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    No. 11,811.
    Pickett et al. vs. Southern Athletic Club.
    If plaintiff was an absentee or was absent from the parish in which the property is situated, the evidence of the fact is too general to sustain an action, to annul and set aside a sale made more than five years prior to the suit.
    The legal presumption is that the tax collector gave the notices as declared in the deed. Until the contrary appears, a deed of record these many years, without question, will not be annulled for the alleged want of notice.
    The error charged in not having appointed a curator ad hoc to represent the taxpayer in order to avail must be shown beyond question, otherwise title to real estate would at times be extremely uncertain.
    APPEAL from the Civil District Court for the Parish of Orleans. King, J.

      F L. Richardson and Kernan & Wall for Plaintiffs and Appellants.

      J. Zach Spearing and J. J. McLaughlin for Defendant and Appellee.
    Argued and submitted November 5, 1895.
    Opinion handed down November 18, 1895.
    Rehearing refused December 16, 1895.
   The opinion of the court was delivered by

Breaux, J.

The plaintiffs, heirs of the late W. S. Pickett, who died on the 4th day of August, 1884, sue for the recovery of a square of ground purchased by their ancestor in the year 1856. It was sold for taxes in 1883 and adjudicated to the State of Louisiana. Prior to that time, to-wit: in 1876, under revenue act of 1873, it had been adjudicated to the State in payment of taxes for 1867 to 1876.

With reference to the sale, made in 1883, it is urged that no notice had been given to the owner.

With reference to the tax deed of 1876, it is argued that as there is no recital in the tax collector’s deed and no evidence aliunde of the appointment of a curator ad hoc to represent the absent owner and no evidence of notice to him.

Under Sec. 3 of an act approved July 12, 1888, the auditor sold the property to John Spansell, who subsequently became defendant’s author.

The tax collector declares in his deed showing the adjudication of the property to the State for the taxes of 1880 and subsequent-years, that legal notice of sale was given to Wm. M. Pickett, the tax debtor.

The chief deputy clerk for the State Tax Collector, by whom the adjudication was made to the State in 1883, testifies substantially, that the notices to the tax debtors were mailed to the owners where the property was located, when their residences were not known. There is also evidence of record to show that the late Wm. M. Pickett had not resided in New Orleans (in which the property is situated) since 1865.

The defendant urges good faith, pleads the validity of the tax proceedings and invokes the prescription of one, five and ten years.

From a judgment rejecting their demand the plaintiffs appeal.

The main attack upon the last deed of adjudication to the State is the asserted want of notice of sale to the taxpayer as required by Art. 210 of the Constitution.

The deeds of tax collectors for those years are prima facie evidence of legal sales. Unless that presumption be controverted, and the contrary of the recital of the deeds is established, it should be accepted as true.

The recital is true until its untruth is established.

The decisions heretofore were controlled by the fact that it was made manifest that no notice, as required, had been given of taxes due for which it was the intention to offer the property for sale.

In the case of Breaux vs. Negrotto, 43 An. 426-433, this court said: “ But we think the evidence is conclusive that no notice of any kind was ever served on the plaintiff.”

In Parish of Concordia vs. Bertron, 46 An. 366-360: “It is in proof, no notice was given in the parish of-that adjudication as required by the Constitution.”

Here there is no evidence of witnesses on the trial of a positive character regarding notice, and impeaching the veracity of the declarations of the deed.

In the absence of such evidence we do not feel authorized to treat as naught these declarations, made at a time contemporaneous with the proceedings of sale.

The following we must regard as controlling considerations in reaching a conclusion upon this point.

Plaintiff in a petitory suit for property sold at tax sale (after the many years that have elapsed in this ease) must make out his title to the property on all points.

The proceedings being regular, on the face of the papers, the evidence must be of a positive and convincing character to authorize the courts to set aside and declare null a tax deed upon the ground urged. The property had been assessed, duly advertised, offered for sale and adjudicated, and presumably the notice required preceding the sale was given.

The action of plaintiff is met by another tax deed, anterior in date, made under the provisions of Act 47 of 1873. Plaintiffs urge its nullity on a number of grounds — that the taxpayer was absent and no curator ad hoc was appointed to represent him; that the purchase for the State was subject to the approval of the auditor, and without that approval there was no sale.

Near twenty years have elapsed since this sale was made. The tax debtor remained silent; at his death the plaintiffs did not choose to assert title or interest in the property; they are confronted with great difficulties to have it now determined that at the date of the sale the property was vacant, or that the owner was unknown or absent, or had left no known agent in this State, conditions required for the appointment of a curator ad hoe.

The sale was prima facie valid under the terms of the Constitution. The presumption sustains the claim of the State as a purchaser in good faith and the title of the defendant also finds support in the adjudication to the State which remained so many years unquestioned.

The least effect that this state of fact can have is to impose upon the plaintiff the burden of proving all the conditions essential to establish the taxpayer’s absence.

Without the absence the title was legal and in due form and all needful notices were served, it must be conceded.

The absence that would annul should be timely invoked and amply shown.

Time obliterates evidence and removes from the parties the means to verify transactions, hence it creates a presumption in favor of the regularity of proceedings and against the charge of illegality.

Lastly, the plaintiffs’ objection is that the auditor did not confirm the sale to the State.

Section 62 of'Act 42 of 1871 and Sec. 6 of Act 47 of 1873 are similar. Interpreting the former, this court held that the omission to obtain the auditor’s deed did not invalidate the tax collector’s deed as a muniment of title. The correctness of the decision upon this point has since always remained unquestioned. Barrow vs. Wilson, 39 An. 407.

If we should concede that the tax sale in 1876 is void, and that plaintiffs in law can not be held to the proof wo have before stated, they are then confronted with the tax deed of 1883, in which it is declared that all required notices have been given.

The testimony of a clerk in the tax collector’s office, general in its character, does not show want of notice.

In the case of Webre vs. Moore, 46 An. 574-579, we said: “ But we wish to say that it is based upon and confined to the particular facts fully stated in the opinion, and is not intended to give a license to tax collectors to dispense with notice to absent owners whose names are known, but whose residence is unknown, without exhausting the means provided by law for obtaining the latter.”

It must be held, until the contrary appears, that the collector exhausted the means provided by law, as stated in the deed.

Judgment affirmed.


source: Caselaw Access Project

author: Nicholls, C. J.

license: Public Domain

text:
    No. 11,916.
    The State of Louisiana vs. Muff Williams.
    There is no law in. this State requiring the service of a copy upon an accused of a proces verbal of the action of the jury commissioners in drawing the jury. Rev. Stat., Sec. 992.
    The endorsement on an indictment “ a thru bill,” evidently intended for “ a true bill,” will be. considered as so intended by the grand jury and to have resulted either from a slip of the pen or mistake by the foreman, whose mother tongue' was probably not English, as to the spelling of the word, or as to the word itself.
    The objection raised by the accused to the finding of the grand jury went only to form, and not to the chm'ge presented against him. Under Sec. 106á, Rev Stat., an amendment was properly ordered by the court.
    APPEAL from the Twentieth Judicial District Oourt for the Parish of Assumption. Guión, J.

      M. J. Gunningham, Attorney General, O. D. Billion, District Attorney (John Marks, of Oounsel), for Plaintiff, Appellee.

      Lawrence H. Pugh for Defendant, Appellant.
    Submitted on briefs November 23, 1895.
    Opinion handed down December 2, 1895.
   The opinion of the court was delivered by

Nicholls, C. J.

Defendant has appealed from a sentence of death, based upon the verdict of a jury rendered upon an indictment charging him with murder.

One of his grounds of complaint is that he was not served with a copy of venire as the law requires, because of the failure of the paper served on him to contain a copy of the “ proces verbal of the jury commissioners showing the date of drawing and number of jury commissioners present.”

We know of no law requiring the service of a copy of a proces verbal upon an accused person of the action of the jury commissionei s in drawing the jury.

Section 992 of the Revised Statutes declares simply that “ every person who shall be indicted for any capital crime, or any crime punishable with imprisonment at liardi labor- for- seven, yesurs. ©ir upward, shall have a copy of the indictment and the- list oft the* jjuwy-, which are to pass on his trial, delivered to- him. at- least-two. wkoSe days before the trial.”

The other grounds of complaint, though raised! at different, times and in different forms, all rest upon the correctness, or incorrectness o' the proposition advanced by him that no true bill had- been Stand against him by the grand jury. He contends- that “ the- findsag of the grand jury was incomplete, insensible-,, utterly void!, nralt and meaningless, and the so-called indictment fatally dafactiw@b.y reason of the said finding.”

From the motions to quash, demurrer, Mils of esweptiemt, motions for a new trial and motion in arrest of judgment,, it would appear that the finding of the grand jury, endorsed on the- baefe of the indictment and signed by the foreman, was written “ em thorn hill,” instead of “ a true bill.”

The objection to the finding of the grand jury was first raised by demurrer and motion to quash before trial, but after arraignment. The court overruled the objection, holding that the finding and endorsement were sufficient under the rule of idem swans, but none the less it ordered the clerk of court to enter an order directing the finding by the grand jury on the indictment to be so amended as to read, “ a true bill.” The copy of the indictment served upon the. defendant was a copy of the indictment as so amended.

In the proceedings of the court of September 18, 1894, we find! the following minute entry:

• State ok Louisiana versus Muee Williams, Indictment for Murder. j-No. 911.

In this case the grand jury came into open court and reported the following, viz.: “ Indictment for murder; a true bill.

(Signed) “L. Himel, Foreman of the Grand Jury.”

We assume that the original entry (prior to amendment) was: “ Indictment for murder; a thru bill.

(Signed) “ L. Himel, Foreman of the Grand Jury.”

In the first volume of Wharton on Criminal Law (Principles, Pleading and Evidence), Sec. 497, the author discusses the subject of the “ Finding and attesting of the bill.” He says: “The examination being over, it becomes the duty of the grand jury to pass upon the bill * * * The usual practice is for the foreman to sign the return, and the words ‘ a true bill,’ with his name attached, have been frequently considered a good finding, though it was held not an error where the endorsement was simply ‘ a bill,’ omitting the word ‘true.’ And in some States it has been held sufficient to omit ,the words ‘ a true bill ’ altogether, where the signature of the foreman is given. The weight of authority, however, is that the omission of the words ‘true bill,’ if excepted to before verdict, will be fatal.”

In Frisbie vs. United States, 157 U. S. 163, the Supreme Court of the United States said:

“Id is objected that the indictment lacks the endorsement ‘a true bill,’ as well as the signature of the foreman of the grand jury. No objection was made on this ground in the Circuit Oourt, either before or after the trial. There is in the Federal Statutes no mandatory provision requiring such endorsement or authentication, and the matter must therefore be determined on general principles,

“ It may be conceded that in the mother country, formerly at least, such endorsement and authentication were essential.

“ The endorsement is parcel of the indictment and the perfection of it. (King vs. Ford, Yelv. 99.) But this grew out of the practice there obtained.

“ The bills of indictment or formal accusations of crime were prepared and presented to the grand jury, who, after investigation, either approved or disapproved of the accusation, and indicated their action by the endorsement ‘a true bill’ or ‘ignoramus,’ or sometimes in lieu of the latter ‘ not found,’ and all the bills thus acted upon were returned by the grand jury to the court. In this way the endorsement became the evidence, if not the only evidence, to the court, of their actions.

“But in this country the common practice is for the grand jury to investigate any alleged crime, no matter how, or by whom, suggested to them, and after determining that the evidence is sufficient to justify putting the party suspected on trial, to direct the preparation of the formal charge or indictment. Thus, they return into court only those accusations which they have approved, and the fact that they thus return them into court is evidence of such approval, and the formal endorsement loses its essential character.”

This matter is fully discussed by Beasley, C. J., in State vs. Magrath, 44 N. J. Law, 227, 228; by Moncure, President of the Court of Appeals, in Price vs. Commonwealth, XI Cush. 473, 474, the latter saying: “This omission in an indictment is simply the omission of a form, which, if oftentimes found convenient and useful, is in reality immaterial and unimportant.” In each of these cases it was held by the court that “ the lack of the endorsement was not necessarily, and under all circumstances, fatal to the indictment.”

In Bishop Crim. Prac., Sec. 700, it is said: “In the absence of a mandatory statute, it is the better view that both the words ‘ a true bill,’ and the signature of the foreman may be dispensed with if the fact of the jury’s finding appears in any other form in the record.” See also State vs. Creighton, 1 Nott & McC. 256; State vs. Cox, 6 Ired. (Law) 440.

In Gardner vs. People, 3 Scammon, 83, 87, the court held that “the signature of the foreman, though a statutory requirement, would be presumed if the indictment was recorded. Nevertheless, as it is not an unvarying rule for the grand jury to return into the court only the indictments which they have found, it is advisable at least that the indictment be endorsed according to the ancient practice, for such endorsement is a short, convenient and certain method of informing the court of their action. The defect, however, is waived if objection is not made in the first instance and before trial, for it does not go to the substance of the charge, but only to the form in which it is presented. There is a general unanimity of the authorities to this effect.”

In State vs. Agnew, 52 Ark. 275, it was held that a statute requiring an endorsement of “a true bill” signed by the foreman, was directory; that objection to a lack of such endorsement was waived unless made before pleading.

In McGuffee vs. State, 17 Georgia, while holding that the usual practice of endorsement was advisable, the court said that the objection of account thereof was “ an exception which goes rather to Che form than to the merits of the proceedings” and too late after trial. See also State vs. Martins, 14 Missouri, 94; State vs. Murphy, 47 Missouri, 274; State vs. Shippey, 10 Minn. 223; People vs. Johnson, 48 Cal. 549; War-Kon-Chaw-Reek-Law vs. United States, Morris (Iowa) 332.

• In this connection reference may be made to Sec. 1025, Revised Statutes, which reads:

“ No indictment found and presented by a grand jury in any District or Circuit, or other court of the United States, shall be deemed insufficient, nor shall the trial judgment or other proceeding thereon be affected by reason of any defect or imperfection in matter or form only, which shall not tend to the prejudice of the defendant.”

‘•The endorsement was no part of the charge against the defendant. If no indictment had in fact been found by the grand jury —in other words, if there was no legal accusation against him the defendant should have objected on this ground when the court called on him to plead to this, which it assumed to have been properly presented to it. The very fact of pleading to it admits its genuineness as a record. State vs. Clarkson, 3 Ala. 378, 383. Instead of denying the existence of any legal accusation the defendant demurred to it, on the ground of insufficiency, thus abandoning all question of form and challenging only the substance.”

In the case before this court the record shows that the grand jury reported an indictment for murder in the ease of the State vs. Muff Williams. The indictment was filed in court and is itself a part of the record (Pickerell vs. Commonwealth (Ky.), 30 S. W. 617). It charges the defendant with having murdered one Augustin Johnson. He was unquestionably tried and convicted under an indictment found by a grand jury. Defendant’s complaint is leveled merely at the word “ thru ” appearing in the endorsement before the word “ bill.” The word was evidently intended for the word “ true.” As written, it was either a slip of the pen, or the mistake of a person whose mother tongue probably was not English as to the spelling of the word or as to the. word itself.

In this State, under Sec. 1064 of the. Revised Statutes, “ every objection to any indictment for any formal defect apparent on the face thereof shall be taken by demurrer or motion to quash such indictment before the jury shall be sworn and not afterward, and every court before which any such objection shall be taken for any formal defect may, if it be thought necessary, cause the indictment to be forthwith amended in such particular, and thereupon the trial shall proceed as if no such defect had appeared.

The authorities cited show that the objection raised went only to form and did not reach the charge presented against the accused. The court was authorized to make the amendment it did and the case properly went to trial.

The judgment appealed from is affirmed.


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    No. 11,714.
    In the Matter of John D. Belton, Praying for Appointment of a Receiver.
    Though the shares oí a corporation, after its creation may be held by a less num - berof shareholders than that which the law would have required as a condi fcion precedent to fclie organization of the same corporation, the corporation continues to exist.
    Neither the want of oilicers by reason of failure to elect, or by death, nor the burning of the mill which it was the object of a corporation to carry on, will of themselves work a dissolution of the corporation.
    The connection of an officer of a corporation with it is one of personal trust and terminates at his death. The property of the corporation which he had in his possession or custody as such officer does not pass at his death into the possession of and under the control and administration of his administrator. The stockholders have the right to insist that corporate property should be placed in the hands and under the control of corporate agencies.
    Where the necessary offices of a corporation having all become vacated by the centring* of its stock in the hands of two owners, and by the death of the owner of the majority of the stock, who at the time of his death held the principal office of the company, the administrator of this stockholder, as such, takes possession of all the corporate property and takes no step looking to a re placement of officers, the remaining stockholder has the right to take judicial action looking to the appointment of a receiver by the court. If upon the trial of a demand for such an appointment it should be shown that corporate officers could not be replaced through corporate agencies either by reason of lhe unwillingness or inability of the stockholders to do so, the court would be authorized itself to appoint a receiver. It would not follow that a third person should be selected as such receiver, nor that the representatives of the deceased stockholder would be deprived of the legitimate influence which they should have in the selection as holders of stock.
    APPEAL from the Civil District Court for the Parish of Orleans. Rightor, J.

    Fenner, Henderson <& Fenner for Plaintiff, Appellant.

      Henry Denis for Mrs. Joseph Menge, widow and natural tutrix, Defendant, Appellee.

      Argued and submitted November 4, 1895.
    Opinion handed down November 18, 1895.
    Rehearing refused December 17, 1895.
    Plaintiff, together with Jos. Menge and Wm. A. Reese, were the-(Scaly stockholders of the Edna Rice Mill Company, a corporation organized under the laws of this State; Jos. Menge was the secretary and treasurer, William A. Reese was chairman of the finance committee, and plaintiff the superintendent; on January 15 the rice mill and plant were totally destroyed by fire; on or about the 24th of January, 1894, Joseph Menge died and William A. Reese disposed of his stock to the succession of the said Menge; after the destruction of .the mill and plant various suits were instituted by the corporation against various insurance companies, upon policies of fire insurance upon their property held by the corporation, which were pending and undetermined at the time of the death of the said Menge; after his death his wife, Mrs. Ida Menge, as tutrix of her minor children and administratrix of his .succession, assumed the administration of the affairs of the corporation generally and the direction of the said suits in particular; and since that time she has continued and is continuing her administration of the affairs of said corporation generally and the direction of the said suits in particular; has compromised all the suits against the insurance companies and has received from them sums aggregating more than fifteen thousand dollars, in settlement of their indebtedness to the said corporation; that she has collected and retains other assets belonging to the said corporation. The plaintiff claims in all these matters Mrs. Menge has acted entirely without legal right, and in her administration of the corporation’s affairs is and has been a mere negotiorum gestor; that her assumption of the administration of the affairs of the said corporation, and her appropriation of all its assets, was and is a flagrant trespass upon the rights of the plaintiff, who is a stockholder and creditor of the same, and who as such is entitled to require that its affairs shall be properly administered; that the said corporation is now hopelessly derelict — the only stockholders being plaintiff and the succession of the late Joseph Menge, represented by Mrs. Ida Menge as aforesaid; that there are various other creditors unpaid; that to the end that he may be enabled to assert his rights as a stockholder and creditor he desires that a receiver should be appointed by the court, in accordance with law and the rights of all interested parties.
    Defendant, in her capacity as widow in community of the late Joseph Menge and natural tutrix of the minor children, issue of her marriage with said deceased, excepted to the demand upon the ground that the petition disclosed no legal cause of action, and she prayed that the demand be dismissed, which the District Court considered well taken, sustained the same and dismissed the suit. Plaintiff appealed.
   The opinion of the court was delivered by

Nicholls, C. J.

In the brief filed in this court plaintiff declares that having been unable to effect any satisfactory settlement of his rights with Mrs. Menge, who has arrogated to herself all the rights and powers of the corporate body, he has brought this suit for the appointment of a disinterested third person as receiver and for a judicial settlement of the affairs of the corporation, which is hopelessly derelict, with no officers or duly qualified representatives. He calls our attention to the form of the proceeding as not being an application for the appointment of a receiver on ex-parte affidavits, but a demand contemplating a trial upon the merits and a full opportunity for both parties to be heard. He declares that the power of the State courts to appoint receivers in proper cases has been clearly recognized, and that the only question before the court is whether the petition sets out a proper case for the exercise of its power or jurisdiction. He says it is the case of a’ corporation utterly derelict, with no officers or representatives authorized to take charge of its affairs; that there is no attempt here to divest the properly and legally constituted officers of a corporation of the control of its property and affairs; that it is a corporation without officers; that the administratrix of a deceased stockholder has assumed the administration of its affairs without any further right or authorization than may be implied from the fact that she represents the heirs of her deceased husband, who was a stockholder; that he objects to the exclusive administration assumed by the defendant and demands a judicial settlement of the corporate affairs to the end that his rights as a stockholder and creditor, which are denied by the defendant and, those of other interested parties, may be regularly ascertained and protected. He claims that the appointment of a receiver is a matter which rests largely in the discretion of the court, and that this discretion can be intelligently exercised only after a trial upon the merits, when the court will have been put in possession of all the facts.

The defendant resists the application. In her brief she calls our attention to the fact that while plaintiff avers that there are various other creditors unpaid, plaintiff does not say who they are, nor what is due them, nor that they have made any complaint in the premises, nor that they join him in his application or approve of his action.- That he does not aver that the property or assets of the company are abandoned, and exposed thereby to loss or damage, but, on the contrary, says that they aré under the administration and in the possession of the defendant. That he does not aver that her administration is bad or negligent or fraudulent; that he does not aver that he is exposed to any danger, immediate or remote, of loss or injury from her administration; that he does not aver that she has excluded him from a participation in such possession and administration, nor that he has made a demand upon her. for such participation, nor that he has objected to, or remonstrated against, her administration and possession; that he does not aver that he has made a demand upon her for payment of his debt, or that she refuses to acknowledge it or pay it; that he does not aver that the corporation is insolvent; that the averment that the company is derelict is'nullified by the averment that defendant administers its affairs as a negotiorum gestor; that defendant in the interest of all parties concerned took charge of the affairs of the company, as plaintiff, (from his own showing, an officer and director of the corporation) , abandoned the care and management of it, having taken no care to p;otect its ássets from Joseph Menge’s death, on the 26th of April, 1894, to the institution of this suit, on the 12th of October, 1894; that plaintiff has been guilty of laches and brought about the condition complained of, and has no legal right to apply for a receiver under such circumstances.

She further asserts that plaintiff’s petition discloses the fact that the corporation of the Edna Rice Mill Company is extinct, inasmuch as the number of its incorporators is reduced to two, and a corporation can not be composed of less than three persons; that at the extinction of a corporation its property vests in the stockholders, who thereby become joint owners of the same; that therefore, on the face of the petition, plaintiff and defendant are simply joint owners of undivided property, each one having a right to hold and possess it until a partition takes place; that the right of the parties in such cases is to demand the partition of the common property, and if necessary the sequestration of it pendente lite, but not the delivery of it into the hands of a receiver; that it is doubtful whether a receiver may be appointed in Louisiana as an incident to a partition suit, but that in the absence of a partition suit as a mode of dividing the property and settling the rights and interests of the joint owners between themselves, there being no creditors demanding it, no such appointment can be made.

The plaintiff replies that the question of laches vel non can not be raised on the trial of an exception of no cause of action; that such an issue could only be raised and determined on a trial upon the merits and evidence adduced. That it is true that the act under which the corporation was organized requires that there be originally at least three stockholders, and he is not prepared to say what might be the effect in such a ease of the subsequent reduction of the number of stockholders to two in so far as the right to continue business as a corporation is concerned; but that qaoad its liquidation and the rights of stockholders and creditors, the corporation does still exist. That the defendant by purchasing the interest of the third stockholder could not have affected the rights of the plaintiff as a stockholder. That the relations between the parties are exactly what they were constituted in the charter to which both subscribed. They are both stockholders in a corporation and the assets are corporate assets and are to be distributed as such.

The contention of the defendant that the Edna Rice Mill Company has been dissolved — that by reason of that fact the property of the corporation has resolved itself'into property held in joint ownership between the stockholders; that the present situation is that of certain joint property in the custody and possession of one of the joint owners, who is entitled to hold possession of the same as joint owner under the rules applicable to that kind of property and subject alone to an action of partition, is not tenable. If his premise that the corporation is dissolved were true it might be that his conclusions would be correct. Possibly Art. 474 of the Civil Code may countenance that pretension, and true it is in an obiter in rhe case of Stark, Receiver, vs. Burke, Watt & Co., 5 An. 741, the organ of this court declared that “by the civil law on the dissolution of corporations of the class therein the subject of litigation the property of the corporation belonged to its members and must be divided among them;” but his premise is not true, and the result which he sets up as following therefrom has not arisen in this case. If it be true that by the mere centering of the stock of a corporation in the hands of two stockholders, a less number than the number of stockholders required as a condition precedent to the creation of the corporation, the corporation is dissolved ipso facto, and the property at once changes from corporate property to individual property held in joint ownership between the two, then the purchase by a single person of all the stock of a corporation would also dissolve it and convert its property into the individual property of the single stockholder, subject to be disposed of by him at will as such. That is not true. After a corporation has been formed, our law, in express terms, declares that it is “ an intellectual being different and distinct from all the persons who compose it (Art. 435) ; that the estate and rights of a corporation belong so completely to the body that none of the individuals who compose it can dispose of any part of them. In this respect the thing belonging to a body is very different from a thing which is common to several individuals as respects the share which every one has in the partnership which exists between them ” (Art. 436) ; that' “what is due to a corporation is not due to any of the individuals who compose it, and mee versa ” (Art. 437). The rights and obligations of parties would be confounded and thrown into confusion by adopting the rule which defendant contends for.

In Green’s second edition of Brice’s Ultra Vires, page 795, in a note it is said, “ A private corporation does not become dormant or forfeit its franchises because a single individual becomes, by purchase of the stock, sole owner of the corporate property and franchises, and if such sole owner continues the business under the corporate name without notice to the public he may be sued as such corporation. Newton & Co. vs. White, 42 Ga. 148; Cook vs. Kent, 105 Mass. 246.”

In Morawitz on Private Corporations, Sec. 1009, the author says: “The decease of all the stockholders in such a corporation, therefore, does not terminate its existence, and it is well settled that all the shares in a corporation may be held by a single person and yet the corporation continue to exist; and if the charter or by-laws require certain acts to be done by more than one shareholder, the sole owner may transfer a portion of his shares to other persons So as to conform to the letter of the rule.” In support of this proposition he cites the aforementioned case of the Newton Manufacturing Co. vs. White; Russell vs. McLellan,. 14 Pick. 69-70, and Baldwin vs. Canfield, 26 Minn. 43. See Fitzgerald vs. Missouri Pac. R. R. Co , 45 Fed. Rep. 819.

It has been held that the owner of all the stock of a corporation is not authorized to pledge the property of the corporation to the prejudice of its creditors. (Stewart vs. Gould, 36 Pac. 277.) In a note on the same page of Brice’s Ultra Vires it is stated that the want of the proper officers, byreason of failure to elect or by death, does not cause dissolution, though the exercise of the powers of the corporation may be thereby suspended, and that mere insolvency, proceedings in insolvency, the appointment of a receiver or nonuser of the powers granted does not of itself work dissolution. The authorities cited in support of these propositions are too numerous to be specially referred to.

We are of opinion that the Edna Rice Mill Company has not been dissolved and that we must deal with its affairs as an existing company.

When Menge, the secretary and treasurer of that company, died, the position which he held being a personal trust did not pass to or devolve upon his administratrix, but became vacant subject to replacement. The corporate property at his death did not pass under the control of the administratrix of the succession of Menge as such.

The plaintiff has the undoubted right to insist that it be placed in the hands of some corporate agency. The situation either admits of this being done extra-judicially by the stockholders and through methods provided for by the charter, or it does not. If it be possible to place corporate matters in the hands of corporate agencies selected by the stockholders themselves and defendant has the means of bringing this about legally, outside of any action by the court, she ought to avail herself of that power and bring that result about; but should she be either unable or unwilling to do so she can not insist that matters should remain as they are forever.

We think plaintiff has made a sufficient showing to entitle himself to a hearing upon the merits. We can not tell whether, when the case goes to trial, the situation at that time will be of such a character as to call for the exercise of the CQurt’s action in appointing a receiver. If the court should be called on to make such an appointment it by no means follows that a third person will be appointed or that the succession of Menge will be deprived of exercising the legitimate influence to which it will be entitled as a stockholder in the corporation.

The allegations of the petition might have been in some respects more specific than they are, but they are sufficiently so to throw the whole case open to inquiry.

The judgment appealed from is hereby annulled, avoided and reversed and the cause is remanded for further proceedings according to law, costs to await the decision of the lower court.

Rehearing refused.


text:
    No. 11,901.
    State of Louisiana vs. John Case et al., Alex. Cestias et al., Alphe. Fontelieu et al.
    A PPEAL from the Nineteenth Judicial District Oourt for the Parish ■*> of Iberia. Voorhies, J.

      M. J. Cunningham, Attorney General, for Plaintiff, Appellee.

      A. & C. Fontelieu for Defendants, Appellants.
    Submitted on briefs November 9, 1895.
    Opinion handed down December 2, 1895.
   Defendants charged with violation of Act No. 7 of 1892, entitled “ An act to prohibit the gambling game of craps, and to provide punishment therefor,” were found guilty, and each sentenced to pa,y a fine of fifteen dollars, and costs of suit; they appealed.

This court is without jurisdiction, ratione materise, under Art. 81 of the Constitution, to entertain the appeals.

The appeals are dismissed.

The opinion of the court was delivered by

Nicholls, C. J.


author: Watkins, J.

text:
    No. 11,666.
    Francis B. Williams vs. Gustave Drew.
    The plaintiff and defendant in a petitory action, liaying both derived title through a common source, that is to say, an agreement between three persons to make entries of government lands, and divide same between them in certain determined proportions, must look to, and abide by the terms and conditions of acts and contracts made and entered into between themselves, at different-times, in reference to said lands, for the ascertainment of their respective interests therein.
    And if, during the px'ogress of negotiations, one of the joint owners becomes invested with complete title to the whole property, and afterward his heir and legal representative enters into a transaction and compromise with the widow and heirs of another of his associates, in respect to the common property, making a relinquishment to them of all his rights, except as to the portion he reserves and retains, it has the legal effect of an estoppel against the subsequent assertion of any right, title or interest of said heir, or that of his assigns, as against said widow and heir and their assigns.
    APPEAL from the Seventeenth Judicial District District Court for the Parish of St. Mary. Allen, J.

      Beattie & Beattie, Todd & Todd for Plaintiff, Appellant.

      Edward Simon for Defendant, Appellee.

      Branch K. Miller for Warrantors, Appellees.
    Argued and submitted December 1, 1894.
    Opinion handed down January 2, 1895.
    Rehearing refused December 2, 1895.
   The opinion of the court was delivered by

Watkins, J.

This is a petitory action of ordinary form, seeking the recovery of two tracts of land described in the petition, wherein the defendant denies and disavows the title of the plaintiff,'~and in the alternative that the judgment goes against him, he prays for like judgment against his respective warrantors who are cited to defend this action.

In the court below there was judgment in favor of the defendant and plaintiff has appealed, and in this court he appears and pleads, in aid of his title, the prescription acquirendi causa of ten and thirty years. The representation of the plaintiff is that he acquired title to a portion of the lands in controversy on the 1st of February, 1893, from W. H. Howcott and Walter R. Brashear, and another portion on the 9th of March, 1893, from Walter R. Brashear alone.

That in the former he acquired the following lands, to-wit:

Lots 1, 2, 3 and 5 of S. 12, T. 13, R. 12.

S. E. 1-4 of S, 1, T. 13, R. 12.

Lots 1, 2, 3, 4, 5 and 6 (W. 1-2), S. 24, T. 13, R. 12.

N. 1-2 of S. 2, T. 13, R. 12.

N. E. 1-4 of S. 3, T. 13, R. 12.

Lots 1, 2, 3 and4 of S. 13, T. 13, R. 12.

Lot 1 and S. E. 1-4 S. 25, T. 14, R. 12.

N. E. 1-4 of S. 36, T. 13, R. 12.

Lots 5 and 6 of S. 36, T. 13, R. 12.

(All land in T. 13, R. 12 E.)

Lots 1 and 3 of S. 25, T. 14, R. 12.

N. E. 1-4 and E. 1-2 of N. W. 1-4, S. 35, T. 14 S., R. 13.

Lot 4, S. 13, T. 15, R. 13.

Fractional S. 11, T. 15, R. 13.

N. W. 1-4 of S. W. 1-4, S. 13, T. 15, R. 13.

Lot 1, S. 14, T. 15, R. 13.

Lot 4, S. 23, T. 15 S., R. 13 E.

Oontaining 3600 55-100 acres.

That in the latter he acquired the following lands, to-wit:

Lot 4, S. 26, T. 14 S., R. 13 E.

W. 1-2 of N. W. 1-4 and N. W. 1-4 of S. W. 1-4, S. 1, T. 15, R. 13.

Lots 4, 5, 6 and 8, S. 2, T. 15, R. 13.

Lot 6 of S. 10, T. 15, R. 13.

Lot 1 of S. 15, T. 15, R. 13.

Lot 1 of S. 22, T. 15, R. 13.

All in T. 15 S., R. 13 E., containing 863 78-100 acres.

It is alleged in the petition that the whole of said lands are situated in the parish of Assumption, wherein the titles are duly recorded; and that the defendant, Gustave Drew, notwithstanding the title thereto was in Walter Brashear and William Howcott, pretending to own the aforesaid lands, entered thereon and cut down and carried away a large number of cypress trees, fully worth ten thousand dollars, and is now illegally detaining and holding possession cf same and refuses to give them up, although he holds no just title to said property.

Plaintiff’s prayer is that his title to said lands be recognized, that he be decreed the owner thereof and placed in possession of same; and that he have and recover from the defendant the sum of ten thousand dollars as the value of timber removed, alleging himself to be duly subrogated to all the rights of his vendor thereto.

In his answer the defendant avers that he is the bona fide owner, with titles from the widow and heirs of Henry E. Lawrence, deceased, bearing dates, respectively, June 24, 1889, May 26, 1890, August 28, 1890, and December 10, 1892.

That in the first he acquired the following lands, viz.:

Lots 5 and 6 in S. 2, T. 15, R. 13 — 164 acres.

Lot 6 in S. 10, T. 15, R. 13 — 62 acres.

Lot 1 in S. 15, T. 15, R. 13 — 140 acres.

All in township 15, range 13, containing 240 acres.

That in the second he acquired the following lands, viz.:

Lots 5 and 6 in S. 4, T. 13, R. 12.

W. 1-2 of S. 2, T. 13, R. 12.

N. E. 1-4 of S. 3, T. 13, R. 12.

E. 1-2 of S. E. 1-4 of S. 3, T. 13, R. 12.

Lots 1 and 2 of S. 15, T. 13. R. 12.

B. 1-2 of S. E. 1-4 of S. 15, T. 15, R. 12.

All of township 13 of range 12 east, containing 1077.6 acres.

That in the third he acquired the following lands, viz.:

W. 1-2 of N. E. 1-4 of S. 12, T. 13, R. 12 E.

N. E. 1-4 of S. 12, T. 13, R. 12 E.

Lot 3 of S. 12, T. 13, R. 12 E.

Lots 3 and 4 in S. 13, T. 13, R. 12 E.

Lot's 4 and 5 in S. 12, T. 13, R. 12 E.

Lot 1 in S. 13, T. 13, R. 12 E.

Lot 2 in S. 13, T. 13, R. 12 E.

E. 1-2 of S. E. 1-4 of S. 1, T. 13, R. 12 E.

W. 1-4 of S. E. 1-4 of S. 1, T. 13, R. 12 E.

Lot 3 in S. 15, T. 13, R. 12 E.

Lot 4 in S. 23, T. 15 of R. 13 E.

Lot 1 in S. 14, T. 15, R. 13 E.

Containing in all 1380.47 acres.

That in the fourth he acquired the following land, viz.:

The N. E. 1-4 of S. 36.

E. 1-2 of S. 25, T. 13, R. 12 E., containing 444.60 acres.

It is further averred that all of said lands are situated in the parish of Assumption, that he is in possession thereof, and that his titles were duly recorded at dates of acquisition. ' '

That the aforesaid lands belonged to the matrimonial community existing between Henry E. Lawrence and his wife at the time of his death, and thereafter became property owned by said widow and heirs in indivisión, said property having been acquired by said Henry E. from Effingham Lawrence, Jr., his brother, by an actof salebearing date April 17, 1848.

That if any of said lands were ever sold and transferred by said Henry E. Lawrence to Robert B. Brashear, said sale or transfer was judicially annulled and set aside, and the property restored to Henry E. Lawrence by a judgment of court rendered in a suit entitled Henry B. Lawrence vs. Robert B. Brashear, in the parish of St. Mary. That he and his authors in title have always been in the quiet, legal and undisturbed possession of the aforesaid property, as owners under bona fide titles translative ,of property for more than thirty years, and he pleads the prescription often, twenty and thirty years in bar of plaintiff’s demands.

• The answer then specially avers and represents that if Walter Brashear, the only surviving heir of Robert Brashear and his wife, has disposed of any of said lands in favor of the plaintiff, pretending to be the owner thereof, by inheritance from his father, he has done so without any legal right; and that if said Walter Brashear ever had any title therein, he and his vendees are estopped from setting up same against him, because of an agreement and compromise that was made between him and defendant’s warrantors and vendors, bearing date January 18, 1881, and duly recorded, wherein Walter Brashear “relinquished in favor of the defendant’s authors all their rights of heirship whatsoever in and to all property, and all demands of any and every nature and character,* which he might have or could have, for the consideration therein stated; and that if any title whatever rested in Walter Brashear, or his mother (in said property) it springs from .their rights as heirs and survivors of Robert B. Brashear, deceased, and the aforesaid act operates as a bar and an estoppel, which is herein pleaded specially.”

The further averment of the answer is that the demand of the plaintiff for damages is frivolous and unfounded; and, in any event, is barred by the prescription of one year; and he especially disclaims the ownership of any lands other than those set out in his answer, and to that extent prays that the plaintiff’s demands be rejected.

He cites his vendors in warranty, and prays for such judgment in his favor and against them as the plaintiff may obtain against him.

The warrantors appear and answer that the plaintiff has no title to the lands sued for, for the reason that Walter Brashear, the author of defendant’s title and that of Howeott was without right, title or-interest of any kind whatever in the lands sued for, because the only title the said Brashear ever had therein was that which he may have inherited from his father, Robert B. Brashear, and that-he, by an authentic act of January 18, 1881, renounced, released, acquitted, and assigned to them any and all of his said supposed right, title and interest to them, and divested himself completely thereof. They further represent that, at and anterior to the respective dates on which they conveyed said lands to the defendant, they were the true and lawful owners of the said lands. That they were acquired by Henry E. Lawrence, the deceased husband, and father of the appearers, from Effingham Lawrence, Jr., on the 17th of April, 1848; and that neither Henry E. Lawrence nor they have ever parted with, or been divested of their oAnership of same. That if any title to any portion of said lands was ever passed from Henry E. Lawrence to Robert B. Brashear, the same is null and void, and that the nullity thereof has been judicially pronounced in a suit between said parties. That, joining their own possession to that of Henry E. Lawrence and Effingham Lawrence, Jr., it has continued for more than thirty years, and has been lawful, peaceable, continuous, public, unequivocal, actual and corporeal, in the quality of owners of said property under titles translative of property and in good faith; and thereupon they plead the prescription of ten, twenty and thirty years.

They pray that the plaintiff’s demands be rejected, and in the alternative that judgment should go against them, they allege themselves entitled to be reimbursed the amounts they have expended for taxes on the property, and that the plaintiff be restrained from taking possession until same are fully reimbursed to them.

The plaintiff prints to an agreement which was entered into on the 22d of May, 1845, between James Dick, Henry E. Lawrence and Robert B. Brashear, relative to the entry of public lands from the United States as the source of his titles to property in suit, the substance of which was that Dick was to furnish the money, and Lawrence and Brashear were to make the selections and to secure the patents therefor, and the titles were to vest in the parties, respectively, in the proportions of one-half in Dick and one-fourth each in Brashear and Lawrence.

He claims that, in pursuance of said agreement, a large amount of lands was entered, principally in the name of Dick, but some in the name of Effingham Lawrence, Jr., supposedly for convenience.

That in 1849 Dick died leaving a last will, whereby all of his property was bequeathed to Mrs. Widow Sarah D. Partee, constituting her his univeral legatee; and that said will was duly probated and the legatee placed in possession.

That subsequently some trouble arose between, the parties to the agreement of 1845, which was settled by the execution of the following documents, namely:

1. An act of sale from H. E. Lawrence to Mrs. Sarah D. Partee, of date February 14, 1850, of all the lands entered in the name of Effingham Lawrence, Jr., same having been previously conveyed from Effingham Lawrence, Jr., to Henry E. Lawrence on the 17th of April, 1848.

2. An act of sale from Mrs. Sarah D. Partee to Robert B. Brashear of “all the right, title and interest, property, claim and demand of every kind and nature whatsoever which she now has, or]may¿have or possess, in and to the following described tracts of land,” etc.

That in this manner the title became vested in Robert B. Brashear, and at his death it was inherited by Walter R. Brashear,¡¡his only child and heir, who conveyed said lands to W. H. Howcott on the 19th of January. 1898, and he in turn conveyed same to the plaintiff by acts of sale February 1, 1898, and March, 1898.

Consequently, the two acts of sale referred to — the one'from Lawrence to Partee and that from Partee to Brashear — are of vital importance in determining the title in controversy primarily; "for it is evident that, originally, H. E. Lawrence owned one-fourth interest in all the lands that were entered in pursuance of the agreement of 1845, Brashear one-fourth and Mrs. Partee ore-half, in virtue of her legacy from Dick.

There is no claim made that Brashear at any time disposed of his share in the property to any one, and he must therefore have retained same until his death; and as there is only one deed referred to whereby H. E. Lawrence conveyed any property to Mrs. Partee as the heir of Dick, it must be examined and considered for the purpose of ascertaining what property was conveyed, and whether there remained any interest in the common property in Henry E. Lawrence which passed through his widow and heirs to the defendant.

An examination of the deed first named discloses that Henry E. Lawrence only conveyed, in terms, to Mrs. Sarah D. Partee “ all the right, title and interest, property, claim and demand of every kind and nature whatsoever which he acquired from Effingham Lawrence, Jr., by the transfer above mentioned, in and to the following lands,” describing them, and expressly limiting his contract of warranty “ against all lawful claims and demands whatsoever arising from his own acts and against none other,” etc.

This act of sale is authentic in form, and was duly signed by H. E. Lawrence and Mrs. Sarah D. Partee in the presence of notary and witnesses.

Claim is made that the recitals of this act disclose that a previous settlement had been made between all parties to the agreement of 1845, but the only recital that the act contains which in any manner indicates such previous settlement is the following, to-wit:

“That after satisfying the claims of said Henry E. Lawrence and Robert B. Brashear, and in all other respects and matters complying with and fulfilling the terms and conditions of the said agreement, sundry tracts of land fully described in the patents hereinafter referred to fell to the share of James Dick, who by his last will and testament * * * bequeathed the same to the said Mrs. Partee, his niece.

“ Now therefore in consideration of the premises, and in order to carry into effect the agreement aforesaid, the said Lawrence moreover declared that he does by these presents grant, convey, * * * unto Mrs. Partee, * * * all the rights, title and interest * * * which he acquired from Effingham Lawrence, Jr., by the transfer above mentioned in and to the following lands,” etc.

But that recital does not state in what manner the claims of Henry E. Lawrence had been satisfied, whether by partition of the common property or otherwise. Nor does it state in what manner the terms and conditions of the agreement of 1845 had been complied with and fulfilled. Nor does this act purport to describe the sundry tracts of land that fell to the share of Dick. But in so far as such purported settlement is concerned we are left entirely in the dark. As a title this instrument conveys nothing except the lands that were entered in the name of Effingham Lawrence, Jr., and for those there is no consideration expressed in the act. It is a fact that is worthy of observation, that Robert B. Brashear was not a party to that act, and therefore his undivided interest in those lands did not pass to Mrs. Partee thereby.

Consulting the act of sale from Mrs. Sarah D. Partee to Robert B. Brashear, a few years later in date than the act of sale from H. E. Lawrence to her, which makes reference to the previous conveyances, we find the recitals quoted from the former incorporated therein, and to them is subjoined the further statement, viz.:

“And whereas she, the said Mrs. Partee, is desirous of bringing the said agreement to a close so far as she is or may be interested or concerned, and of terminating and disposing of her interest in the said lands as acquired by her as aforesaid:

“ Now, therefore, for the consideration and on the terms and conditions hereinafter expressed, the said Mrs. Partee moreover declared that she does by these presents grant, bargain and sell * * * unto the said Robert B. Brashear * * * all the right, title, interest, property, claim .and demand of every kind and nature whatsoever, which she has or may have and possess in and to the following described tracts of land,” etc. (Our italics.)

To this act Henry E. Lawrence was not a party, and by its terms it conveyed to Brashear only the interest or share of Mrs. Partee, leaving that in the same indeterminate situation, in respect to amount or quantity, as before. But in one respect it is certain and definite, and that is in respect to the alleged settlement between the parties to the agreement of 1845; but it shows that it was at that date — March 25, 1856 — incomplete, for it states that the vendor, Mrs. Partee, was “ desirous of bringing said agreement lo a close, so far as she is or may be interested or concerned.” (Our italics.)

It is, therefore, quite evident that these two instruments do not import — as plaintiff’s counsel insist — a transfer from Henry E. Lawrence to Mrs. Partee of all the title and interest of the former in the lands that were acquired by the parties under the agreement of 1845. It is equally evident that they do not evidence a full and final settlement of the affairs of the joint owners, or a partition and division of the common property, by licitation or otherwise.

Consequently, our conclusion is to give same effect in so far only as the lands that were entered in the name of Effingham Lawrence, Jr., are concerned, as that is the extent to which she acquired title from Henry B. Lawrence.

The plaintiff’s counsel has furnished us several schedules of the lands in controversy, which are appended to their brief, and we reproduce some of them for the purpose of making some comparisons as a means of better presenting our views in regard to the titles of the parties respectively.

The following is a tabulated statement of all the lands that were entered under the agreement of May 22, 1845, in the names of James Dick and Effingham Lawrence, Jr., respectively, viz.:

Aggregating over 4500 acres.

The subjoined tabulated statement shows the lands that are claimed in the petition and those claimed in the answer respectively, viz.:

The following tabulated statement shows the lands that Henry E. Lawrence conveyed to Mrs. Sarah D. Partee, and indicates those that are contained in the petition and answer, and also those that are contained in the petition and not included in the answer:

We mark with X all lands claimed in petition and answer. We mark wiih 0 all lands claimed in the petition and not in answer.

The following tabulated statement shows the various lands that Mrs. Partee conveyed to R. B. Brashear, viz.:

The following tabulated statement shows the lands Walter R. Brashear and W. H. Howcott con veyed to the plaintiff, viz.

Instituting a comparison between these several statements, we are enabled to trace the titles of the parties, and from the comparison find the following facts, viz.:

1. The lands which are claimed in defendant’s answer, and found in the tabulated statement of lands that are entered in pursuance of the agreement of 1845, are the following, viz.:

(c) W. 1-2 of N. E. 1-4, Sec. 12, T. 13, R. 12 — 80 acres, is omitted, possibly by mistake or accident.

2. In the foregoing list (a) none are included or covered by the deed from Henry E. Lawrence to Mrs. Sarah D. Partee; but all those contained in list b were conveyed, thus confirming, by the comparison of the tabulated statements, the truthfulness of the recital of the act of sale.

It is therefore evident that the only conflict there is between the titles — on the face thereof — of the plaintiff and defendant, is in respect to the five hundred and twenty-eight acres that were entered in the name of Effingham Lawrence, Jr., and by him conveyed to H. E. Law - rence, and by Lawrence to Mrs. Sarah D. Partee; and as a necessary consequence the plaintiff is obliged to look elsewhere for proof in support of his claim to the remaining 2219.78 acres, which are covered by the deeds of the defendant from the widow and heirs of H. E. Lawrence. Though it is a fact that is apparent on the face of the deeds that the widow and heirs of H. E. Lawrence conveyed to defendant, Gustave Drew, on June 24, 1889, the following, to-wit:

Lots 5 and 6, S. 2, T. 15, R. 13, 164 acres.

Lot 6, S. 10, T. 15, R. 13, 89.94 acres.

Lot 1, S 15, T. 15, R. 13, 82.94 acres.

And on August 23, 1890, the following, to-wit:

Lot 1, S. 14, T. 15, R. 13, 82.94 acres.

Lot 4, S. 23, T. 15, R. 13, 82.56 acres, which places him in the position of possessor under title, in competition with the plaintiff, who claims to have derived a previous title thereto from a common author, H. E. Lawrence, while living — those two deeds covering all the lands which are embraced in the defendant’s answer, and designated as those entered in the name of Effingham Lawrence, Jr.

3. It is shown that Mrs. Partee conveyed to R. B. Brashear all the lands described in tabulated statement a, supra, save and except the following, viz.:

and for these lands she gave to R. B. Brashear no title.

4. It is shown that Walter Brashear and W. H. Howeott conveyed to the plaintiff all the lands embraced in tabulated statement a, supra> but did not convey-—

in statement b, hence we have the following propositions established by the deeds, viz.:

1. That defendant claims in his answer two thousand seven hundred and forty-seven and seventy-eight one-hundredths acres of land that are embraced in the quantity that was entered under the agreement of 1845; and that of these two thousand two hundred and nineteen and seventy-eight one-hundredths acres were entered in the name of Dick, and five hundred and twenty-eight acres were entered in the name of Effingham Lawrence, Jr.

2. That none of those entered in the name of Dick were conveyed by H. E. Lawrence to Mrs. Sarah D. Partee, but all of those entered in the name of Effingham Lawrence were conveyed.

3. That the widow and heirs of H. E. Lawrence conveyed to the defendant title to the whole of the latter, as well as a large portion of the former, the two parties being thus assigned the position of tracing title to this portion of the land through Henry E. Lawrence as a common author.

4. That there were seven hundred and twenty-five and fifty-six one-hundredths acres of the land that were entered in the name of Dick, which Mrs. Partee didnot convey to R. B. Brashear; and of those that were conveyed to Brashear, there were three hundred and sixty-three and six one-hundredths that were entered in the name of E. Lawrence, that were not conveyed by Walter R. Brashear and W. H. Howeott to the plaintiff.

Therefore, as before stated, we will omit from present consideration the claim of the plaintiff to the lands entered in the name of Dick, which he derived through Howeott, Walter Brashear and Mrs. Partee, as same is without other foundation than that derived from the agreement of 1845, and Mrs. Partee’s legacy from James Dick; and will restrict consideration of same, as derived from lands entered in the name of Effingham Lawrence, which was traced through H. E. Lawrence, Mrs. Partee, Walter Brashear and Howcott, to 528 acres, less 368.06 — 164.94—same being the net balance in the posses-of defendant, that is subject to controversy.

On the 28th of May, 1849, Henry E. Lawrence executed an act of sale to Robert B. Brashear for a large amount of land therein described, and among them are those particularly designated as all that were “ purchased by the said Lawrence from Effingham Lawrence, Jr., by an act passed before the said Ricardo, notary, on the 18th day of April, 1848;” and also, “all the rights, title and interest, being the one undivided third in and to the lands entered in the name of N. and J. Dick and Effingham Lawrence, Jr., all situated in this State, and containing two thousand acres, more or less.”

The price of this sale was sixteen thousand five hundred dollars, on terms of credit, secured by mortgage; and it was accompanied with the renunciation of the wife of the vendor.

But it also appears that, subsequently, Henry E. Lawrence instituted an action of nullity against Robert B. Brashear, which resulted in a judgment on the 3d of April, 1858, annulling the aforesaid sale of the 28th of May, 1849, and wherein it is, among other things, decreed “that all the property described in said act, and transferred and conveyed therein, be and same is hereby restored to the possession of the said plaintiff, under the title under which he holds the same, free from all mortgages and incumbrances,” etc.

The object as well as the legal effect of that judgment was to replace the parties in the same relative positions they occupied at the time the sale was originally made.

The important features of these transactions are:

1. That the two parties engaged therein were H. E. Lawrence and Robert B. Brashear, both of whom were parties to the original agreement of 1845.

2. That Dick, the third party, died in 1849, nearly ten years prior to said judgment, leaving his property to Mrs. Partee as his universal legatee, who, on the 25th of March, 1856, conveyed her entire interest to R. B. Brashear during the pendency of that suit and more than two years prior to the rendition of judgment.

It is quite evident that Robert B. Brashear could not acquire any right to or interest in the common property from Mrs. Partee during the pendency of that suit, quoad the undivided interest of H. E. Lawrence, and that the effect of any mere paper title from Mrs. Partee to R. B. Brashear must have been subordinated to said judgment and controlled thereby. Its effect was to utterly defeat the attempted alienation by Mrs. Partee to R. B. Brashear of the interest of H. E. Lawrence in lands entered in the name of Dick at least.

On the 26th of July, 1860, only a little more than a year subsequent to said judgment annulling said sale, Henry B. Lawrence instituted suit against the legal representatives of R. B. Brashear for a partition of all the properties in which they had interests jointly, growing out of the agreement of 1845, aggregating about five thousand six hundred and seventy-six acres, specifically describing all the dealings and operations of the parties thereunder and all the acts and transactions of the parties in respect to said land, including Mrs. Partee and her conveyance to Brashear and the judgment annulling same.

Henry E. Lawrence died, leaving this suit pending at his death, and a partition was thereby held in abeyance. Affairs remained in this situation until the 18th of January, 1881, when Walter R. Bra-shear, as sole surviving heir of R. B. Brashear, entered into a compromise settlement with the widow and heirs of H. E. Lawrence, the purport and effect of which is: 1. That said widow and heirs conveyed to Walter R. Brashear full title to certain designated property, or, in other words, they recognized his ownership, by inheritance from his father, of certain described properties. 2. W. R. Brashear, in consideration therefor, gave full acquittance to said transferees of every kind and species of claim and demand which he had or may have urged against them, or anyone of them, for any cause whatever, “particularly such demands and claims as he may have (had) against them, or any one of them, by virtue of his being the son and heir of R. B. Brashear,” etc.

This appears to be the manner in which the sole heir of R. B. Brashear and the surviving widow and heirs of H. E. Lawrence chose to adjust their differences and settle their disputed rights and interests, and which had remained so long suspended by the pending partition suit.

It did not purport to be a sale, but a settlement. It had the effect of recognizing the undivided share or interest of each,and it recognized the title of Walter R. Brashear to certain specified lands as heir of his father, and relinquished or abandoned any further or other right in his favor as heir.

The suit for the annulment of the former title of H. E. Lawrence to R. B. Brashear was the necessary precursor of the suit for partition, and the compromise settlement terminated the partition suit and adjusted their differences, and is binding on all the parties thereto and has the authority of a thing adjudged. We are satisfied that it operates as a complete bar and estoppel as against Walter R. Brashear and those claiming under him, and prevents their assertion of title derived from R. B. Brashear against the widow and heirs of H. E. Lawrence. And while this estoppel may not have effect as regards Mrs. Partee, as she is not a party to the suit nor to the act of compromise, yet it does affect the assertion of any title that Walter R. Brashear derived by inheritance from his father, although same may have been derived from Mrs. Partee, And our conclusion is that the defendant, possessing a title from the widow and heirs of H. E. Lawrence, who possessed as owners under the tranaction and compromise of 1881, can not be divested by the transferees of the heir of R. B. Brashear.

We have consequently reached the same conclusion at which the judge below arrived.

With regard to the plea of prescription that the plaintiff filed in this court, nothing was said in either argument or brief, and we have not discovered anything on the record to sustain it.

On the contrary, the judgment of the court annulling the title made by H. E. Lawrence to R. B. Brashear on the 3d of April, 1858, decreed the plaintiff to be entitled to be placed in possession of all the lands conveyed, including all the lands entered under the agreement of 1845. And the partition suit of H. E. Lawrence vs. R. B. Brashear’s legal representatives in 1860, proceeds upon the hypothesis that the plaintiff was in possession and that fact is not denied by the defendants therein. •

And by the terms of the act of compromise of the 18th of January, 1881, Walter R. Brashear abandoned and relinquished in favor of the widow and heirs of H. E. Lawrence (the vendors of defendant) , all the rights and interests he had derived from the succession •of his father — thus renouncing, at least, his possession as owner in their favor.

On this statement there is no basis for the prescription the plaintiff urges, predicated, as it must be, on rights derived from R. B. Brashear and Walter R. Brashear, his heir. In so far as the defendant’s pleas of prescription are concerned, no consideration is necessary, as we have found that he possessed a title as owner that did not require the help of prescription.

Judgment affirmed.

On . Application for Rehearing.

There are but two points made in the elaborate briefs of the plaintiff and appellant for a rehearing; the balance is detail.

This is a petitory action, and our decree affirmed the judgment in favor of the defendant, from which the plaintiff appealed.

The foundation of the plaintiff’s claim is the agreement which was made on the 2d of May, 1845, by which James Dick, HenryE. Lawrence and Robert B. Brashear engaged to enter lands from the government of the United States, Dick to furnish the money, and Lawrence and Brashear to make the selections and locations.

The first proposition assigned in the application is, that our opinion was in error in saying that the titles were to vest in the parties respectively, in the proportion of one-half in Dick, and one-fourth each in Brashear and Lawrence; the truth being that, under that agreement the legal, as well as the equitable title, was in Dick, and in him alone.”

The second proposition is, that no part of the land claimed in this suit was embraced in the conveyance from H. E. Lawrence to R. B. Brashear, bearing date May 28, 1849.

If either proposition can be sustained on the record plaintiff is entitled to a rehearing.

I.

ON THE FIRST PROPOSITION.

Of course, the agreement was anticipatory, being made in advance of the entries of the land. All entries were made in the names of either James Dick or Effingham Lawrence, Jr., the latter name being used instead of that of H. E. Lawrence, supposedly as a matter of convenience. None of the lands were entered in the name of R. B. Brashear. All the entrance money was furnished by Dick, and several thousands of acres of land were selected and patented as stated.

Now, what was the course of the transactions between these different parties, during the following twenty-five years, with reference to these lands, as exhibited by written deeds and other acts? Let us look into the record and see.

But in the beginning it must be remarked that the title of H. E. Lawrence and assigns depends upon the self-same deeds and transactions as does the title of R. B. Brashear and assigns, and that the plaintiff’s title is alleged to have been derived from Dick and subsequently from Walter R. Brashear', the son and heir of R. B. Brashear.

Roundly stated, plaintiff’s claim is that his ancient author, Dick, was, under the agreement of 1845, the exclusive owner of all the lands which were entered in either the name of Dick or Effingham Lawrence, and the equitable interest of H. E. Lawrence in the common property as well as that of R. B. Brashear had been adjusted and settled, and that the defendant acquired nothing from H. E. Lawrence; while on the other hand defendant claims to have derived certain specified lands of those in suit from the widow and heirs of H. E. Lawrence, bearing dates, respectively, June 24, 1889, May 26, 1890. and August 28, 1890, H. E. Lawrence having acquired from Effingham Lawrence, Jr., by an act bearing date April 17, 1848.

The controversy is as to which has the better or paramount title to the property in dispute.

In 1849, only four years after the aforesaid agreement was entered into, Dick died, leaving a will in which he bequeathed to Mrs. Sarah D. Partee all of his property, constituting her his universal legatee. This will was probated and Mrs. Partee put in possession of the estate of the deceased.

On the 14th of February, 1850, within one year after Mrs. Partee became possessed of her inheritance, H. E. Lawrence conveyed to her all of the lands which were entered and stood in the name of Effingham Lawrence, Jr., same having been previously conveyed from Effingham Lawrence, Jr., to Henry E. Lawrence on the 17th of April, 1848.

Subsequently on March 25, 1856, Mrs. Partee conveyed all the right, title and interest she possessed to Robert B. Brashear, and at his death Walter R. Brashear inherited his entire estate, he being the only child and heir. Walter R. Brashear conveyed to W. W. Howcotb on the 19th of January, 1893, and he in turn conveyed to plaintiff.

Consequently, these two transactions, the one between H. E. Lawrence and Mrs. Partee, and the other one between Mrs. Partee and R. B. Brashear, are chiefly relied upon as sustaining the plaintiff’s chain of title.

But it is striking that there does not appear any deed from R. B. Brashear to Mrs. Partee of his share of the common property, and there is no reference made to it in the deed of Mrs. Partee to him of her interest in the property.

But counsel for the plaintiff insists that the deed from H. E. Lawrence to Mrs. Partee evidences a full settlement of all his interest in the common property.

That deed conveys only certain specified property — that which the vendor had acquired from Effingham Lawrenee; and his warranty is limited to claims and demands arising from his own acts, alone.

The following clause in the deed is, however, relied upon as supporting the plea of final liquidation and settlement, viz.:

“That, after satisfying the claims of the said Henry E. Lawrence and Robert B. Brashear, in all other respects and matters, complying with and fulfiling the terms and conditions of the said agreement, sundry tracts of land fully described in the patents hereinafter referred to fell to the share of James Dick, who, by his last will and testament * * * bequeathed the same to the said Mrs. Partee,” etc. (Our italics.)

This transaction took place in 1850, soon after the death of Dick; but in the deed from Mrs. Partee to R. B. Brashear in 1856 we find the statement, viz.:

“ And whereas she, the said Mrs. Partee, is desirous of bringing the said agreement to a close, so far as she is or may be interested or concerned, and of terminating and disposing of her interest in the lands as acquired by her as aforesaid,” etc. (Our italics.)

If, in point of fact, a full and final settlement had been made with Henry E. Lawrence and Robert B. Brashear in 1850, as intimated in the deed of that year, how can it at the same time be true that in 1856, when the second deed was executed, Mrs. Partee should have still been “ desirous of bringing the agreement to a close.”

If, in point of fact, plaintiff’s] present contention were true, that Dick was the sole and exclusive owner of all the lands, how is that expression in the former, viz.: “that sundry tracts of land, fully described in the patents hereinafter referred to, fell to the share of Diek, who by last will and testament bequeathed the same to the said Mrs. Partee,” etc., to be accounted for? and how is that expression in the latter, viz.: “ She was desirous of bringing the said agreement to a close so far as she is or may be interested or concerned, and of terminating and disposing of her interest in the lands as acquired by her as aforesaid,” etc., to be accounted for? It is impossible to be done.

Mrs. Partee, the author of plaintiff’s title, was a party to each of those deeds. She was vendee in one and vendor in the other. She is fully committed to the recitals of the former deed that certain lands “fell to the share of Dick,” and that he, by last will, “bequeathed the same” to her. These recitals in the deeds between Henry E. Lawrence, Robert B. Brashear, and Sarah T. Partee, universal legatee of Dick — all the parties to the original agreement of 1845 — are absolutely inconsistent and irreconcilable with the idea that Diek was sole and exclusive owner of all the lands which were •entered under the agreement of 1845.

Those two deeds are the ones through which the plaintiff claims, And they absolutely disprove the contention he now makes on this application for a rehearing.

Even if the original agreement of 1845 contemplated such absolute vestiture of title in Dick — though we are confident that it did not — it was clearly competent for them to make such disposition of •the property afterward as they chose.

This first proposition is altogether unfounded.

II.

It appears that on the 28th day of May, 1849, prior to the time Mrs. Partee acquired her inheritance from Dick, Henry E. Lawrence ■executed an act of sale to Robert B. Brashear for a large quantity of land, and amongst those particularly described are the lands which were purchased by him from Effingham Lawrence, Jr., on the 18th of A.pril, 1848, and also “ all the right, title and interest, being the •one undivided one-third in and to the lands entered in the names of FT. and J. Dick and Effingham Lawrence, Jr.,” etc.

The price of this sale was sixteen thousand three hundred dollars secured by vendor’s lien and mortgage.

H. E. Lawrence instituted an action against R. B. Brashear for the nullity of the aforesaid sale, and on the 3d of April, 1858, recovered a judgment annulling it and setting same aside, and all the property thereby convéyed was restored to him as owner.

The parties to the foregoing sale and judgment were H. E. Lawrence and R. B. Brashear, two of the parties to the agreement of 1845, and this suit was brought and judgment obtained near ten years after Dick had died and Mrs. Partee, as legatee, had become possessed of his property.

And notwithstanding she had made a title to R. B. Brashear in 1856 to all the lands she had acquired through Dick, no defence was made in that suit on that ground.

It is quite evident that Mrs. Partee could not acquire any title from R. B. Brashear to that land during the pendency of that suit against him.

On the 26th of July, 1860, Henry E. Lawrence instituted against R. B. Brashear a suit for a partition of all the aforesaid lands in which they were jointly interested in virtue of the agreement of 1845, specially enumerating and descrioing them, as well as all the acts and transactions of the parties to them.

Henry E. Lawrence died leaving this suit still pending. R. B. Brashear subsequently died also.

Afterward, on the 18th of January, 1881, Walter R. Brashear and the widow and heirs of H. E. Lawrence made and entered into a compromise of the partition suit, whereby the rights of the former to certain specified land was recognized, and he in turn relinquished his claim to all the remainder to the latter.

The second proposition of plaintiff for rehearing is that the deed of H. E. Lawrence to R. B. Brashear of the 28th of May, 1849, did not include the lands which were covered by the agreement of 1845.

Unless he can sustain that proposition, the judgment must stand.

But in that deed there is a positive declaration that he did convey “ all the right, title and interest, being the one undivided one-third, in and to the lands entered in the name of N. and J. Dick and Effingham Lawrence, Jr.,” etc., and that certainly referred to the lands which were entered under the agreement of 1845. It could have referred to nothing else.

Yet, counsel for plaintiff still insists “ that not one piece of land described in the act of May 28, 1849, is shown tobe in dispute here ” —referring to the numbers and description of the lands.

But that may be true, so far as the lands which are particularly described are concerned; yet it is not correct, in so far as their designations as the lands entered in the names of Dick and Lawrence are concerned.

In the suit to annul the sale of May 28, 1849, they were treated as being included, and also in the judgment canceling the sale.

Also in the partition suit between H. E. Lawrence and R. B. Brashear, they are enumerated and described.

Recognizing this to be a fact, and endeavoring to evade the force and effect of those judicial admissions, counsel for plaintiff in his brief, is driven to the necessity of declaring:

“But this whole suit of Lawrence is, on its face, a falsity; he claims that the act of May ‘¿8,1849, referred to those lands.”

Surely, counsel can not be serious in desiring this court, on this mere assertion, to declare that suit a “ falsity,” notwithstanding it was maintained and judgment thereon pronounced more than thirty years ago.

If it was not a fact that those lands were included in that act of sale, how is it that they were included in that suit and judgment?

And if they were not included in that suit and judgment, why is it now decried as a “falsity?”

Having been included in that suit and judgment against R. B. Brashear, both H. E. Lawrence and R. B. Brashear are bound by them, and so is W. R. Brashear, as the son and heir of R. B. Brashear, and W. R. Brashear is plaintiff’s immediate author.

This contention is also absolutely groundless.

Rehearing refused.


author: Miller, J.

text:
    No. 11,817.
    William H. Fitzpatrick vs. Hunter C. Leake.
    The proceeding to revive a judgment begun within the ten years is effective, followed by the judgment of revival, though rendered after the ten years. C. C., Art. 3517; Martinez vs. Vives, 30 An. 818.
    The acknowledgment of the judgment debtor that his property has been alienated by a tax sale will not bind the mortgage creditor, or in the least degree interfere with the enforcement of his judicial mortgage claimed to have been can-celled by the tax sale.

      The title claimed to be derived from a tax sale of property encumbered at the time of the tax sale with a judicial mortgage still of record against the owner, will not be forced on a proposed purchaser under his agreement to buy, unless the tax sale is produced and its prima facie effect is unimpaired by testimony.
    APPEAL from the Civil District Court for the Parish of Orleans. Theard, J.

      Dart & Kernan for Plaintiff, Appellee.

      Farrar, Leake & Lemle for Defendant, Appellant.
    Argued and submitted November 5, 1895.
    Opinion handed down November 18, 1895, and December 16, 1895.
   The opinion of the court was delivered by

Miller, J.

This appeal is by defendant, condemning him to take the title tendered by the plaintiff to property the defendant had agreed to buy. The defence is that the property is encumbered with a mortgage against a previous owner, J. Q. A. Fellows, or at least that is the only defence necessary to be considered.

Mr. Fellows acquired the property in 1871. It became subject to a judicial mortgage against him in 1880. The judgment giving rise to this mortgage was revived in time, but not reinscribed until June, 1892, when the original inscription had ceased to have effect. Undoubtedly, the reinscription took effect from its date and bound the property, if still the property of Mr. Fellows. Civil Code, Art. 3333 ; Shepherd vs. Press, 2 An. 100.

The plaintiff claims that the property ceased to be that of Mr. Fellows by tax sales, at which Mrs. Montgomery acquired, and who sold to plaintiff in 1892. He contends the tax sales bound Fellows as owner, bound his creditor, purged the property of the judicial mortgage, and hence, the title tendered by plaintiff acquiring from Mrs, Montgomery, the purchaser at the alleged tax sales, is valid.

But the record shows no tax title. There are, it is true, recitals in the deed from Mrs. Montgomery to plaintiff, that she acquired at tax sales on assessments against Fellows. There are also recitals in various certificates put in the record from the Recorder of Mortgages and Register of Conveyances, from the Comptroller and from the Auditor, to the cancellation of taxes against Fellows, and to erroneous assessments against him of the property. There are also certificates of non-alienation of the property by Mrs. Montgomery or by Fellows. There is, too, a certificate headed redemption certificate, which, in fact, is a certificate from the mortgage office, of the canceling of judgments against Mr. Fellows in favor of the State. We do not appreciate that these certificates make proof of a tax sale to Mrs. Montgomery, and that sale is the basis of her alleged title.

We are referred to the deed from Mrs. Montgomery to plaintiff, in which Mr. Fellows intervenes, affirming the validity of the tax sales. That binds him unquestionably, but not his mortgage creditor. If there never was any tax sale, or one that passed no title, the mortgage creditor could not be prejudiced by the statement or ratification of his debtor. If that were possible, there would be an easy mode for the debtor to relieve himself from the. mortgage.

The issue made by defendant was that the property was encumbered with the mortgage against Mr. Fellows, the previous owner. That issue the defendant supported by proof. If the plaintiff had put in the tax deed showing the tax sale, conceding its prima facie effect, and that it bound the mortgage creditor if valid, still the defendant would have had the right to impeach it if he could. But in our view, the plaintiff, failing to pub in proof any tax sale, has not made, out his case.

We are not disposed to encourage fanciful objections to title. But here is a case in which the defendant is sought to be compelled to take a title, when there is on the records a mortgage against a previous owner reported against the property by the mortgage certificate and claimed to be canceled only by a tax sale, of which there is no legal evidence produced. The. defendant alludes in his brief to the fact that it was deemed necessary for Mr. Fellows to intervene in the deed to plaintiff, and we think, the circumstance well calculated to suggest bo any purchaser whether, if ratification by the debtor of the tax sales was essential, it would furnish any protection against the mortgage creditor. That doubt we do not think has been removed by the proof called for by the issue. We think the judgment should have been of non-suit, leaving plaintiff at liberty to renew his suit.

It is therefore ordered, adjudged and decreed that the judgment of the lower court be avoided and reversed, and it is further ordered, adjudged and decreed that plaintiff’s demand be dismissed as in case of non-suit, at his costs.

On Application por Rehearing.

In this case, both parties concurring in the application to remand, it is ordered, adjudged and decreed that the case be remanded to the lower court, and our previous judgment is avoided and set aside.