text:
    No. 1473.
    Philomene Francoise Fontenot vs. Jean B. Manuel.
    Where the terms of the asserted donations inter vivos leave it doubtful whether the usufruct of the property was conveyed to the donee or reserved to the donor, the court may seek the interpretation in the acts of the parties, i. e.y denoting their appreciation of the asserted donations. Civil Code, Art. 1956.

      The court affirms our jurisprudence, that the reservation in the donation inter vivos of the usufruct of the property to the donor annuls the donation. Civil Code, Arts. 1468, 1533; 4 An. 86; 5 An. 533; 12 An. 720.
    The court must give effect to testimony even when contrary to the allegations in. . the petition when received without objection from the party who might have excluded it by his objections, and especially when offered and received in be- ' ■ half of the party by whom that objection might have been successfully interposed if offered by his adversary. 12 Mai'tin, 242; 11 Martin, 26; 18 La. 328.
    ^PPEAL from the Eleventh Judicial District Court, Parish of St. Landry. Perrault, J.

      ■ Kenneth Baillio Attorney for Plaintiff and Appellee:
    There are three kinds of dinations: 1. Gratuitous; 2. Onerous; 3. Remunerative. O. O. 1523.
    The onerous donation is not a real donation, if the value of the object does not manifestly exceed that of the charges imposed on the donee'. O. O. 1524.
    Donations inter vivos are liable to be revoked or dissolved on account of the following causes: * * * The non-performance of the conditions imposed on the donee. O. O. 1559.
    Where a party claiming under an onerous donation desires to avail himself of the provisions of O. O. 1526, he must do so by a special plea, or defence, invoking in his favor the provisions of that article.

      Thomas H. Lewis Attorney for Defendant and Appellant:
    It is a condition precedent to an action of rescission of an onerous or remunerative donation that the donor should offer to restore the , donee to the same situation he was in before the contract.
    The rules peculiar to donations inter vivos do not apply to onerous donations, if, the charges or services imposed upon the donee exceed the half of the value of the object donated. The rules governing commutative contracts apply in such cases. O. C. 1526.
    Such a donation will, therefore, not be annulled on the ground that the .donor does not by the act of donation divest himself at present'and irretrievably of the ownership of the property.
    Upon the' annulment of a donation at the suit of the donor for formal defects, full reimbursement and. indemnity must be made to the donee for the expenses incurred and sacrifices necessarily made in complying with the conditions of the donation. Even where the donation is annulled for non-performance of the conditions by the donee, the donor must reimburse the expenses to the extent to which he has been benefited.
    An onerous donation, like any other contract, must be so construed, if possible, as to give effect to all its clauses.
   The opinion of the court was delivered by

Miller, J.

The plaintiff, Philomene Francoise Fontenot, sues to annul an alleged donation inter vivos of her property to the defendant, Jean B. Manuel. The grounds are, that in so far as the donation purports to convey more than the usufruct during her life of the property, it was executed in error; that as a donation it is null because it does not profess to divest her of the property and no delivery was made, and that its provisions are contrary to law; in the event that the donation is maintained as of the usufruct, then the answer claims it should be annulled for non-performance of the conditions imposed on the donee, and the plaintiff finally claimed judgment against defendant for two years’ rent of the property occupied by defendant under the donation.

The defendant first filed the peremptory exception that the donation was the onerous donation; that under the conditions imposed on him defendant had incurred expenses and made improvements on the property, and that plaintiff could not maintain the suit without first tendering the amount of those charges and expenses. The exception was referred to the merits, and the defendant answered, setting up the act as an onerous donation, insisting its conditions had been fulfilled, and reiterating the allegations in his exceptions as to the expenses incurred by him and the improvements on the property made in fulfilment of the conditions imposed by the act; the answer claimed, in the event the donation was set aside, that judgment should be rendered against plaintiff for the amount of defendant’s reeonventional demand of two thousand three hundred and ninety-two dollars.

The judgment of the lower court was in favor of the plaintiff, annulling the donation, and on the reeonventional demand awarded six hundred and ninty-two dollars to the defendant. From that judgment defendant appeals, and answering the appeal plaintiff asks that he be allowed the rents claimed in the petition.

The act in controversy opens with the donation of the property, fully describing it, to the defendant on the conditions “that the donee, the said Jean Bte. Manuel, shall himself and wife reside on the premises, attend to the affairs and wants of the donor generally, provide for her wants according to her means. The donee shall also care for and protect the property of the donor as he would care for and protect his own property. In case of the illness of the donor the donee and his wife shall nurse her as they would a mother. At the death of the donor the donee shall assume full possession of the property before described and donated. Prior to the death of donor, from this day the said donee shall enjoy the possession of said property in usufruct, and cultivate the land or cause the same to be cultivated for his own use and benefit.”

The petition charges the act was intended to give the usufruct to defendant, and the court ascertains it reserves that usufruct to the donor and hence is void.

The donation inter vivos is that which divests the donor at present and irrevocably of the thing in favor of the donee who accepts it. The donor may give the usufruct to another, but can not reserve it for himself. It has been uniformly held, under this provision of the Code, that the reservation of the usufruct to the donor avoids the donation inter vivos. Dawson vs. Halbert, 4 An. 36; 5 An. 433; 12 An. 721; Civil Code, Arts. 1468, 1533. The defendant insists the donation gives the usufruct to the defendant, and hence is not in conflict with our Code on that point. The act is at best not consistent in its recitals at the death of the donor; it declares the donee shall assume full possession, yet in its conclusion it is stated that defendant, before the death of the donor, shall have possession in usufruct and cultivate the land for his benefit, thus clearly implying that until the death of the donor the usufruct was reserved to her. Again, in the body of the act is the stipulation the donee shall care for and protect the property of the donor as the donee would his own. This language referring to the property as that of the donor, to be cared for as her property, is certainly not consistent with the defendant’s pretensions that the usufruct in the life of the donor, as well as the property after her death, was given to him. If that had been intended the donation would have been simply of the property. Allusion-to the usufruct would have been-useless. So while the. act in its closing sentence states that usufruct and possession shall be • in the donee from its date, the stipulation is inconsistent with. other parts of the act referring to the. property as that of the donor to be taken care -of ■ by the donee and giving him possession only .'at the death of the donor.- • ■ .

The conduct of. plaintiff and defendant-since-the donation .is instructive*, that both interpreted the act that plaintiff was to retain possession and -administer the property for .her benefit. Civil Code Art. 1956; 2 Hen. Digest, p. 1012, No. 7. Thus it appears that after the donation the plantation, or certainly part-of it, was cultivated on shares under contracts made by plaintiff- -exerting- control as owner, as such deriving the revenue from that cultivation. This manifests that both -appreciated she retained the usufruct. Again,- the -record of over five hundred pages-, submitted to us, teems with the comr plaints of -plaintiff that her property,- since- the act of donation, was not' properly cared for, her cattle suffered to die from want of attention, her dwelling going to decay and the fencing • suffered to rot, all from defendant’s neglect. Along with these complaints are the defendant’s denials and his testimony that he did look after the cattle, prop the-dwelling and mend the.fences. The plaintiff’s complaints and defendant’s justifications, or excuses, all-impress the. mind as part of the usual intercourse of a dissatisfied owner against.the person selected to manage that owner’s property. If the defendant had been understood to be clothed by the -act in question with the usufruct of this-property, beginning from the date of the act, besides the full ownership after the plaintiff’s death, there would have been no reason for plaintiff’s complaints as -to its management. But on the theory that the-plaintiff reserved the usufruct-of-the property, and-defendant was to manage for her-, her complaints and -his .statements justifying his management are easily, understood. Again, it appears the plaintiff paid the taxes on the property. If it had. ever been intended defendant was to 'have .the-usufruct under the donation it was for him to pay the taxes. -Civil Code, Art. 1551. So then the "conduct of-both parties, in-our .view, manifests--plaintiff, the donor, was to have the usufruct,-and that conduct-is a better.guide to the intention of- the parties -than the inconsistent statements of the act.' - * ..... i i.

Again, without objection from either-side, the testimony is-in the récord from the plaintiff that defendant was to have the property after her death if he took care of her, until which, to use her own language, she was to be master. The insistence throughout defendant’s testimony is that the act gave him the property, but it is equally true that after the donation, while he resided on the place, plaintiff exerted control as owner, and this is made to appear more distinctly in a part of his testimony when, speaking of the share contracts by plaintiff, he testifies she made the bargains,- he got no part of the share contracts, and as a part of his duty he would have made those contracts for her if she had permitted him. When to all this is added the testimony of the notary, produced by the defendant, that his direction from the plaintiff as'to the act, was that the defendant was to have the property “in fee simple to take effect after the donor’s death,” followed by the repetition from the notary that it was explained at the time of passing the act “ it was to take effect only after the death of the donor,” it seems to us that putting aside any question of the precise issue made by the' petition and giving effect to the testimony offered by defendant, and admitted over plaintiff’s objection, and looking to the conduct of the parties as aiding the interpretations of a badly- worded act, the conclusion is inevitable that the so-called donation did not, as the Code expresses it, divest the donor at present and irrevocably of the property. It sought to do that which the law prohibits.

Under the law it is the donation mortis causa that is to dispose of the testator’s property after death.

The donation that undertakes to dispose of it before death must strip the donor at once of the property. It operates in prsesenti, and any reservation' of the usufruct to the donor annuls the donation. The donation here is within this prohibition. This was the conclusion of the lower court, and we think is' abundantly sustained by the record. Civil Code, Arts. 1468, 1469; 4 An. 36, and authorities already cited. "

The ground discussed is enough to give plaintiff the case. It may be added that the act prepared to be drawn, as testified by the notary, and as explained, as he states at the time, i. e., a- donation' inter vivos to take effect at the donor’s death,' necessarily left theusufruct in the donor until her death. Such an act obviously would have violated a prohibitory law. Civil Code, Art. 1533. The defendant’s argument is, that the act gave the usufruct at- once to defendant. Then it transcended the purpose of the parties, according to the testimony of the notary, defendant’s witness. There is inconsistency in the testimony, and arising from their conduct as to the purpose really intended. It is our' impression' on the whole ease that the act is void on another ground; there was no aggregatio mentium, or at least the testimony fails to satisfy us that any concurrence of mind c f the parties finds expression in the act, repugnant as we think the act is in its terms, and contrasted as we deem it with the testimony and conduct of the parties. On this ground we hold the act void as well as on the other. ’

The defendant urges that the plaintiff should have tendered the expenses and losses incurred by' defendant in order to comply with the conditions of the act. These items claimed by plaintiff amount to two thousand three hundred and ninety-two dollars, made up of loss of crops on his plantation caused by removing to plaintiff’s plantation as required by the act; the expenses of that removal, the amount of fencing by defendant, and the cost of levees made and of lumber furnished by 'him; for two years’ services of plaintiff and his family in waiting 'on plaintiff and attending to her wants, and finally five hundred dollars claimed for the loss of society by defendant’s moving fromhis neighborhood to defendant’s plantation. This amount is claimed in the alternative, i. e., if the donation is not sustained and the want of tender of the amount pleaded as a peremptory exception, it is insisted should itself have defeated the action. In our view no tender was requisite to annul an act we hold to be void.

On the reconventional demand, in our view a large part of it is inadmissible. We have carefully considered this branch of the case, and in our opinion the amount allowed by the judgment of the lower court is ample. The defendant does not object to the allowance save as to ninety-two dollars, which we think was allowed in error.' On the claim for rents preferred by plaintiff’s answer to the appeal, we see no basis to make defendant pay rónt for land on which he resided under the stipulation in the act.

We have not discussed all the points argued by counsel because in our view unnecessary, by reason of the view we take of the act under consideration.

It is therefore ordered, adjudged and decreed that the judgment of the lower court be amended so as to restrict defendant’s judgment against plaintiff to six hundred dollars, with costs of the appeal to be paid by defendant, and that in other respects it be affirmed.

On Rehearing.

The earnestness of the application for the rehearing has induced us more readily to re-.examine this case.

The point urged with great force in the application is, that the petition of the plaintiff attacking the donation avers the intention of the donor was to-give the usufruct t.o the donee, and yet the decision holds the donation void, because it does not give the usufruct to the donee. The court had the fullest appreciation of the contrast between the allegations of the petition and the conclusion reached by us, and that discrepancy formed part of the difficulty we enqountered in our consideration of the case.. . ,

•It must be borne in mind that the pleadings indicate the issue of right to be determined by the judgment, or'rather the relief to be granted. But the court, in ascertaining the relief to be awarded, is guided by the testimony offered and received without objection, Whatever the allegations in the petition, the court must consider and give effect to the testimony produced. It has become a familiar rule that though a party has mistaken his rights in the petition, yet he will recover judgment according to the testimony received without objection, and that testimony which might have been excluded by an objection will bind the parties if suffered to be introduced. The judicial allegation undoubtedly binds the party in whose behalf it is made, but, if • not insisted on, yields to testimony received without objection. Thus, in 11 Martin, 26, the rule under consideration is expressed: If the party mistake his right in the petition the error is cured by evidence establishing it when received without objection. In 12 Martin, 242, the expression is: -Although the allegation be that property belonged to the community, yet if it is shown by testimony received without objection to be the property of the wife, • effect is given to the testimony. Again, in 18 La. 328, it is laid down: A party who, without opposition, permits the introduction of testimony contrary to the allegations in the petition is bound by its effect.

With this rule-in view we find on-the issue submitted as to the validity of this asserted donation ao act, to say the least, inconsistent in its terms,' leaving in doubt, at best, the divestiture by the donor of the property imperatively exacted by the Code. ■ On the question of intention we find a mass of conflicting testimony-as to whether the life usufruct was intended to be given the donee-or reserved to the donor. And as to the property itself, there is the avowal by the notary who passed the act offered by the defendant, that the donation of the plantation was to take effect after the death of the donor. On the issue of possession we find it put beyond all controversy that after this so-called donation the donor continued in possession, leasing part of the land on shares, hiring a laborer to cultivate another portion, deriving the few revenues for herself without the slightest objection or elaimfrom defendant. We find, too, that consistently with the actual retention by the donor of the property and of its revenues after the supposed' donation, she paid the taxes on the property. If it had been .intended the donee should have the usufruct, or if he had had it in fact, it was his obligation to pay the taxes. Civil Code, Art. 1551. As to the usufruct asserted on behalf of the defendant if it ever existed, it would be ended by his death and by the death of the donor, and of both these deaths we are informed by the record. The discussion as to the supposed usufruct of the donee during the life of the donor, presents no practical importance. As to the supposed donation of the property, in our view there is no escape from the conclusion under all the testimony it was not to take effect till the donor’s death, and was and is utterly void on that ground. This court can not close its eyes to all this testimony of the actual fact, and hold notwithstanding the life usufruct was the donee’s, because of the allegations in that respectin plaintiff’s petition, overthrown, we think, by testimony offered without objection, or hold that the donation of the plantation divested the donor “at once,” as required by the Code, when the act is, we think, and certainly the testimony shows it was, only to take effect after the donor’s death.

It must be borne in mind, too, the court is'dealing with a prohibitory law in the public interest to maintain the simplicity of our system of titles, exacting that donations inter vivos must in prassenti divest the donor of the property. The inhibition is like the prohibited jldei commissum and annuls the act. It might be claimed the court would be bound to enforce such prohibitions even if not pleaded.

Aside from this, in our view within the scope of pleadings and of testimony offered on- one side without objection and of that produced by the other we are authorized to hold the act submitted to us void as a donation inter vivos, because, as was also held by the lower court, there was no divestiture of the donor of the property she professed to give. Civil Code, Arts. 1468, 1533; 4 An. 36; 5 An. 533; 12 An. 726.

We have gone over the testimony on the reconventional demand. We accepted the statement in plaintiff’s brief that ninety-two dollars of the demand had been paid. The record is voluminous, and on re-examination we do not find the proof of payment except as to a cabin. As there seems-to be a doubt a,s to the alleged payment we have concluded to let-the judgment of the lower court stand. We have considered defendant’s argument for an increase of the judgment on his reconventional demand, but, in our opinion, .the lower court allowed enough.

It is therefore ordered, adjudged and decreed that the judgment of this court heretofore rendered- be. amended so as to allow defendant six hundred and ninety-two dollars, and with this modification the judgment of the lower court be affirmed, with costs.

Rehearing refused.


source: Caselaw Access Project

author: Miller, J.

license: Public Domain

text:
    No. 1466.
    Nathan Koch vs. Leopold Godchaux.
    An opposition without bond to a seizure and sale presents the issue only whether the notes on which the writ issues have been paid, or obtained by fraud, or otlier defences' specified in Arts.'738, 739 of the Civil Code of 'Practice, exist; hence, when the notes are-for an-amount less, than required -to give this court jurisdiction the appeal will be dismissed, although the opposition claims judgment for a larger amount against one not before the court and against whom no'judgment can be given.- 15 La. 353; i Rob. ’190; 29 An.'121; 30 An. 1163; 31 An. 112.
    APPEAL from the Eleventh Judicial District Court, Parish of. St Landry. Perrault, J.

      Kenneth Baillio Attorney for Plaintiff and Appellant:
    Notes made payable to a particular-person .and. not bearer, nor to the. payee or order, are not negotiable and. do not fall.under the commercial law. 12 R. 144, 150; 3 An. 220; 4 An. 233, 127; .7 An. 599; 25 An. 49..
    When the judge grants an injunction on,.the.allegations under, oath of any of the reasons mentioned in the.-preceding-article he shall require no surety from the defendant, but he shall pronounce summarily upon the merits of his opposition if the plaintiff requires it, as is explained below. O. P. 740.
    A debtor can arrest the sale of his property seized under executory process by alleging under oath any of the following reasons:
    iff * 5? * .
    That it has been extinguished by transaction, novation or some other legal manner.
    That it was obtained by fraud, violence, fear or some other unlawful means.
    That he has a liquidated account to plead in compensation to the debt claimed. O. P. 739.

      B. Titehe and O. F. Garland Attorneys for Defendant and Appellee:
    Where an injunction issues, without bond, against exe.utory process, upon one or more of the grounds enumerated in Art. 739, O. P., the plaintiff in injunction will be restrained, for the maintenance of his writ, to proof of the grounds thus selected, although he may aver other causes not enumerated in that article. 30 An. 1163, Williamson vs. Richardson; 31 An. 112, Berens vs. Boutle; 32 An. 767, Gillespie vs. Scott.
    Unliquidated claims can not be opposed in compensation to promissory notes. R. O. O. 2209; 32 An. 877, Burbridge vs. Anderson; 28 An. 97, Berens vs. Ker; 38 An. 941; 26 An. 740, Noble vs. Flower; 22 An. 430 and 443; 24 An. 208, “a claim for damages can not compensate a note;” 26 An. 716, “an account does not compensate a note.”
    Before seeking to annul a contract of sale, the party asking relief must offer to place his adversary in the same situation that he occupied before the sale occurred. He can not keep the thing purchased and at the same time refuse payment of the price. 14 An. 716, McDonald vs. Vaughn; 14 An. 56, Van Wick vs. Rist; 31 An. 81, Byrne vs. Bank; 29 An. 245, Blake ys. Nelson; Matta vs. Henderson, 14 An. 473.
   The opinion of the court was delivered by

Miller, J.

The plaintiff issued executory process on two promissory notes made by defendant, for amounts aggregating, with the ten per centum-for attorney’s fees, stipulated in the .mortgage acts, an amount less than two-thousand dollars. The defendant obtained an injunction without bond under Arts. 738, 739, Code of Practice, to arrest the execution of the writ of seizure and sale. The opposition substantially averred- that the notes were given for the purchase by defendant of the interest in a commercial partnership of Albert M. Silbernagle; that h,e represented to defendant the partnership was prosperous and agreed that the notes should be deposited with a third person to protect defendant against any claims against Silbernagle that might be brought against the partnership arising from any act of his, of appropriations for his benefit of the partnership funds, or of a character to bind the partnership, the debts of which defendant assumed payment in his act of purchase.

The opposition proceeded to aver that subsequent to defendant’s purchase of the partnership interest, the defendant discovered that it was bound for a large debt of Silbernagle, which defendant, under his assumption, had been compelled to pay, and that Silbernagle’s representations as to the condition of the partnership had been falsified in other respects; that it was found Silbernagle had made overdrafts on the partnership funds and appropriated such funds to a large amount, against which overdrafts and appropriations the guarantee and pledge of the notes had been given defendant by Silbernagle at the time of defendant’s purchase of the partnership interest. The opposition charged that the notes had been' obtained by these fraudulent representations of Silbernagle as to the condition of the partnership, and that this debt for which he had bound the partnership and defendant had been compelled to pay, and the overdrafts and misappropriations by Silbernagle of the partnership brought to light after defendant’s purchase of the interest, aggregating over eleven thousand dollars, were offsets against the notes sued on by which they were compensated, Koch, the plaintiff, was charged to be the agent of Silbernagle, holding and suing on the notes for his benefit, and the opposition prayed for judgment maintaining the injunction decreeing the notes compensated, and for judgment against Koch as agent of Silbernagle for the excess over the notes of the offsets pleaded in the opposition.

Instead of treating this opposition as an answer, the plaintiff excepted that it showed no cause of action, and that exception sustained, the case is here on, the defendant’s appeal and encounters the plaintiff’s motion to dismiss on the ground that the amount involved is less than two thousand dollars.

'• An opposition and injunction without bond is an incident to the demand in the petition for the seizure and sale. It is in legal effect an answer to the petition. The opposition is restricted to the issue whether the notes on which the order for the seizure and sale is based have been obtained by fraud, or paid, or extinguished, or other defences exist specified in the Code, authorizing the opposition without bond. The opposition if maintained, simply and only arrests the seizure and sale, and decrees that plaintiff can not enforce the notes. Code of Practice, Arts. 738, 739; Hozey vs. Sheriff, 15 La. 353; Monott vs. U. S. Bank, 4 Rob. 490; Conrad vs. Sheriff, 29 An. 124; 30 An. 1163; 31 An. 112. It follows, therefore, that the remedy selected by the defendant, i. e., an opposition without bond to arrest the sale of his property on the ground the demand can not be enforced, restricts the issue to that demand, which, as already stated, is under two thousand dollars.

Indeed, in another point of view there is bat one suit before the court, i. e., between plaintiff Koch and defendant Godchaux and on the notes. There is a demand of defendant against Silbernagle for judgment for the excess of defendant’s offsets over the amount of the notes. But Silbernagle is not before the court. It is alleged in the opposition that the notes are not owned by plaintiff, but are sued on for the benefit of Silbernagle, and there is the prayer for judgment for the excess of the offsets against plaintiff as agent of Silbernagle. It is manifest no such judgment could be given against one not before the court either by citation, appearance or any mode, save the recital in the petition that suit is for his benefit utterly ineffective, if it were so, to introduce him as a party against whom a money judgment could be rendered. Koch, the plaintiff, is before us simply and only as holder of the notes, and the only judgment the record admits is whether he can enforce a demand less than the amount to give the court jurisdiction.

We listened with interest to the able argument in support of the defence on the merits, but we reach the conclusion that there is no jurisdiction in this court to deal with the merits.

It is therefore ordered, adjudged and decreed that the appeal in this case be dismissed at appellant’s costs.


text:
    No. 1470.
    James O. Chachere et als. vs. Simon Block; James O. Chachere vs Same.
    The court again recognizes that in the petitory action the plaintiff must recover on the strength of his title, not on the supposed weakness of that of the defendant. 9 Martin, 267 ; 5 La. 78; 2 An. 216.
    The surrender in bankruptcy under the act of Congress of 1867 carries all the property of the bankrupt to the assignee, and no action upon the property or any specific part of it can thereafter be maintained by the bankrupt or by apy one claiming by purchase from them, unless by a new title acquired since the bankruptcy. Bankrupt Act, Sec. 11; Bump, on Bankruptcy, 10th Ed. 217; 44 An. 444.
    Hence, when the petitory action by the bankrupts or their transferees is avowedly for property thus surrendered in bankruptcy, and asserting title existing at and before the bankruptcy and which necessarily passed to' the assignees, the action can not be maintained. Ibid.

    No court can enforce the demand of the bankrupt for property belonging to him at the date of his bankruptcy, which, by the law and his oath to a full surrender, passed to his assignees, unless the property is claimed by a new title from the assignee. 2Hennen’sDigest, veibo Illegality of Contract,'p. 1007; 31 An. 577.
    APPEAL from the Twelfth Judicial District Oourt, Parish of Calcasieu. Fournet, J.

      E. L. Wells Attorney for Plaintiff. and Appellant.

      A. P. Fajo Attorney for Defendant'and Appellee.
   The opinion of the court was delivered by

Miller, J.

The plaintiff, James Q. Ohachere,. p,s the transferee of Joseph Block, and the heirs of Achille Dujire, bring this suit against Simon Block to be recognized as owner in common with him of certain lands in the parish of Oalcasieu. The defendant asserts title to the whole of the land under tax titles acquired by his vendor in 1881. It is conceded that Simon Block, Joseph Block and Achille Dupre were once owners in indivisión of the lands. The plaintiffs claim that the relations of joint ownership existed at the date of the tax sales in 1881; that the sales were in the interest of Simon Block; that hence he could not acquire from the purchaser at the tax sale %hó‘wh'óle óf the property to "the prejudice'of his eo-proprietors,'ánd at best the tax titles can avail only'as'effectihg a redemption of thfe land from the taxes; but the petition further avers that the tax sales are void because there was no proper assessment or notice to the owner, or other formalities observed required in tax sales.

The defendant, Simon Block, asserts the validity of the tax titles, and besides pleads that the title of Joseph Block, from whom Chachere claims to acquire, and of Aehille Dupre, under whom the plaintiff, his heirs claim, was divested by the surrender in bankruptcy under the Federal Bankrupt Act of 1867, made by Joseph Block and Aehille Dupre in 1874, at which date their titles, now asserted by plaintiffs, existed, and consequently passed to the assignees of the bankrupts. This surrender, supported by the usual decrees of adjudication in bankruptcy and the appointment of the assignees, the defendant pleads as an estoppel against Chachere as assignee of Joseph Block and the heirs of Aehille Dupre. Other defences were urged in our view unnecessary to be noticed. From the judgment of the lower court sustaining the estoppel, the plaintiffs appeal.

By a different line of argument we reach the conclusion that plaintiffs can not maintain this action. It is beyond controversy the titles of Joseph Block and the heirs of Aehille Dupre existed at the date of the bankruptcy proceedings. It is claimed by the plaintiffs the property covered by these titles was not placed on the schedules of the bankrupts. But under the law the surrender divests the title of the bankrupts whether or not the property is placed on the schedule. Again, it is urged on behalf of plaintiffs that the bankrupts can assert title on the presumption their debts are all discharged, and because the assignees make no claim. But it is well settled under the bankrupt law that the title of the bankrupt is forever divested by the surrender, that he can never claim any specific property included in the surrender unless by a new title. See Bump, on Bankruptcy, Sec. 14; May vs. Railroad, 44 An. 453.

The plaintiff in the petitory action must recover on the strength of his title, not on the.weakness of that of his adversary. The plaintiff’s case, or at least the testimony produced, i. e.-, the proceedings in bankruptcy, develop that the property they undertake to claim passed to their assignees in bankruptcy, years since. The defendant claims he holds by a new title acquired since the bankruptcy proceedings from the purchaser at the tax sale. But the character of his ■ title, good or bad,-or whether-or not supported by the prescription he pleads, is not at all important. It is enough that plaintiffs have no title. 9 Martin, 267; 5 La. 78; 2 An. 246.

There is another view of this controversy.- Simon Block was a party himself to the bankruptcy proceedings, as a member of the commercial Arm of which Joseph Block and Aehille Dupre were also members, all adjudicated bankrupts. None of these parties can appeal to a court of justice to settle disputes arising out of their claims to property which passed to their creditors, and in respect to which, consistently with the law and their oaths to the surrender of all they possessed, they can advance no right whatever, unless by a new title. No such new title is asserted by plaintiffs, and whether the defendant exhibits such new title is a question on which we express no opinion. See cases collected in 2 Hennen’s Digest, 1007, verbo Legality of Contracts, No. 1 et seg.

It is therefore ordered, adjudged and decreed that the judgments of the lower court be affirmed, with costs.

Rehearing refused.


author: Perrault, District Judge.

text:
    No. 1462.
    Hamilton Derouen vs. F. Jules Hebert et als.
    Where mortgaged property is seized in the hands of a third possessor, who consents to its seizure and sale, waives the thirty days’ demand of payment on principal debtors, and the ten days’ demand on him as third possessor thereof, and who also accepts service of notice of seizure, appoints an appraiser to estimate the value of the seized property, and is present at the sale offering no objection but bidding thereon, he is estopped from attacking subsequently the validity of the sale for any defects or informalities in the proceedings arising anterior to the sale. 5 R. 523; 19 L. 311; 12 An. 838; 2 An. 593; 1 An. 11; 36 An. 774; IS An. 323; 3i An. 886.
    Where the third possessor of property seized and sold to satisfy a previous mortgage is not an heir of the defendant in execution or interested in the distribution of the proceeds of the sale, he has no right to question whether the vendee paid the price, or whether the terms of the sale were complied with by him. 36 An. 771; O. P. 15.
    APPEAL from the Nineteenth Judicial District Court, Parish of Iberia. Voorhies, J.

      Sigur & Sanders and Todd & Todd Attorneys for Plaintiff and Appellant.

      Walter J. Burke and Foster & Broussard Attorneys for Defendants and Appellees.
   The opinion of -the .court was delivered by

Perrault, District Judge.

Plaintiff alleges that he is the owner of a tract of land known as the “ Hayes place,’’-situated in the parish of. Iberia, described as Sections 47, 49, 50 and 51, in T. 13 S., R. 5 E., in the Southwestern Land District of Louisiana, containing one thousand-nine hundred and twenty-four and 12-100 acres. He further avers that a-sale thereof was made to the principal defendant, F. Jules Hebert, by O. T. Oade, Sheriff of- Iberia -parish, December 24, 1892, under a fi. fa. issued out of suit No. 349 of the docket of the Nineteenth Judicial District Court of Iberia parish, entitled “ David Hayes, Administrator, vs. Wm-.- Hayes et als.,” for the ostensible price of twenty thousand dollars cash. ' That shortly after said adjudication Hebert sold parts of said land to Zénon Decuir, Marcel Derouen and Ludger David, and that by other transfers Hebert and these latter persons sold other parts of said property, which they had ostensibly purchased to various other persons, viz.: Chris. Kopp, ?m. Hollander, Joseph Gleubreeh, Max Voge, Aristide Norres, Dueré Norres, Deleíte Destrouet, Ambroise Destrouet, Frank Morgan, Bazille Latiolais, Aristide Deleambre, Leo Dionne, Besta Lipsky, wife of Max Yoge, as shown by several deeds, all of whom are alleged to be in possession. The petition charges that the sale made to Hebert by Cade, Sheriff, was null and void, because the writ did not give the names of the defendants-nor third possessors, and was not directed against said third possessors; that the notices to defendants and the third possessors were never issued nor served, nor proper delays given preceding the seizure and sale under said judgment; that there was no legal advertisement of said property and -that the advertisement did not- mention that the proper notices had been given to the.third possessors of said property and that it-was to be sold under, a vendor’s lien and privilege, and further, that no legal certificate of mortgage was read at said sale by which purchasers might know -under what judgment said lands were sold. ■ . ■ . ....

-The .petition further - charges that Hebert’s bid on said property was fictitious, that he never complied with the.same :by paying the ostensible purchase- price of $20-,000 cash to..the sheriff or.to the plaintiff in the-writ, and that if .any check or draft was given therefor by said Hebert it was merely-for-a sham, and did not-result in payment, but was. the result of -a collusion between-said Hebert and Teburce Norres, administrator of the estate of John Hayes, by which the former was illegally and unfairly vested with title to said land, therefore the sham bid and sham payment carried with them no legal result, and could not form the basis of a legal title to Hebert. Further charging that Hebert’s title derived at said sheriff’s sale, for said reasons, is an absolute nullity, he avers that the subsequent transfers of parts of said land to the other defendants are likewise null and of no effect as to him, and further charges that said illegalities and wrongs committed were not known to him until the institution of the present suit. He demands that said sheriff’s sale be declared null and void; that his ownership to said property be recognized against all the defendants in possession, and that a writ of possession issue, and that'he be put in possession thereof.

Zénon Decuir, one of the defendants, excepted to plaintiff’s suit and demand on the grounds, viz.:

1. Because there was a misjoinder of parties as to him, inasmuch as plaintiff’s petition did not disclose any privity of contract between him and the other defendants.

2. Because the .plaintiff did not allege a tender to defendants, which allegation is a condition precedent to the annulment of a sale or commutative contract.

3. Because plaintiff is estopped by his words, actions and deeds, in that he has made both judicial and extra-judicial admissions and declarations, which prevent him from denying defendant’s title, and by which' he is bound.

4. Because the question of ownership of the property in contest has been passed upon by this court, and is res adjudicata. '

5 and 6. Because the petition discloses no cause or right of action.

F. Jules Hebert, the main defendant herein, answered by general denial, with admission that he had purchased at said sheriff’s sale the property in contest for twenty thousand dollars cash, with special averment that all- the proceedings leading up to said sale were valid, but that he was in no way connected therewith. He specially averred and set up that plaintiff was the third possessor of the land sold by him (Hebert), and that preceding the sheriff’s sale, as such third possessor, he waived notice of seizure due to him as such, as also the thirty days’ demand of payment on the debtors and the ten days’ demand of payment on him as'third possessor of the Mortgaged property; that he appeared at the court house on the day appointed and fixed for the sale of said property, appointed an appraiser to act for him in his behalf in the appraisement of the said property; that he was a bidder at the sale thereof, and that after the sale and adjudication of the said property to him (Hebert), plaintiff, who was in possession of part of said property, vacated it, and delivered up possession thereof to him (Hebert), and because of these acts and conduct of plaintiff he (Hebert) was induced to believe that there was no objection to the sale of said property, that the title thereto was valid, and he was therefore induced to purchase and pay for same; because of all these acts, conduct and declarations of plaintiff he is estopped from denying the legality of his (Hebert’s) title thereto. As further defences, this defendant avers that plaintiff’s petition discloses no cause of action, and that he has no right of action based upon the averments of said petition.

All the other defendants, including'the administrator of the estate of John Hayes, deceased, and C. T. Cade, sheriff, answered, setting up substantially the averments contained in the answer of the defendant, Hebert, and specially invoking the plea of estoppel and the exceptions of no cause of action and of no right of action, and whilst other averments peculiar to them and their rights were made, it is, in our opinion, unnecessary to mention them here.

The lower court maintained the plea of estoppel interposed by the defendant Decuir by way of exception, and, after trial on the merits of the case, judgment was rendered in favor of all the other defendants, maintaining the plea of estoppel and the exceptions of no cause of action and of no right of action, from which judgments plaintiff appeals.

The view which this court takes of the pleas of estoppel, as also of the exception of no right of action pleaded by the several defendants, precludes the necessity of passing upon other defences raised by them or of deciding issues raised by plaintiff not involved in these special defences.

ESTOPPEL,

■The record discloses the following uncontradicted facts: Teburce Horres, present administrator of the estate of John Hayes, deceased, caused ají. fa. to issue in suit Ho. 349 of the civil docket of Iberia parish, entitled “David- Hayes; Administrator, vs. Wm.-Hayes ei ais.,” directing the sheriff of Iberia to seize and- sell the property in contest herein, which, according to the terms of the judgment, was subject to vendor’s lien and special mortgage in favor of the estate of said John Hayes.

Before the writ of 'fi. /d.-issued against the judgment debtors, the hypothecary action was resoi'ted to against plaintiff - herein and one A. L. Hayes, who were the third possessors of said property, and in answer thereto said plaintiff herein and said Hayes declared that they had no objection to the execution of the judgment in satisfaction of the debt, and moreover signed written waivers of their rights as third possessors of the thirty days’demand of payment on the debtors and the ten days’ demand on them as third possessors, and when the fi. fa. issued plaintiff herein waived notice of seizure as such third possessor. • The record also shows due advertisement of the seized property and the appointment of an appraiser by plaintiff, who acted in his behalf in the appraisement of the property, and further shows that he was present at the sale, bidding on the property, and, after sale and adjudication thereof to defendant Hebert.vacated the portion of the land in which he was in possession as third possessor, delivering possession thereof to the adjudicatee, Hebert. In view of the foregoing facts plaintiff can not attack the validity of the proceedings leading up to said sale, nor the title of Hebert resulting from the adjudication of said property to . him, because by his acts and conduct, manifested in every preliminary leading up thereto in which he took an active part, he induced all others to. believe that there was and could be no objection to the proposed sale. In the 5th R. 523, this court held that “ there are cases in which a man may innocently be silent; but in other cases a man is bound to speak out, and his very silence becomes as expressive as if he had openly consented to what was said or done and had become a party to the transaction. Thus, if a man having a title to an estate, which is offered for sale, and knowing his title, stands by and encourages the sale or does not forbid it, and thereby another person is induced to purchase the estate under the supposition that the title is good, the former, so standing by and beiag silent, will be bound by che sale, and neither he nor his privies will be at liberty to dispute the- validity of the purchase.”' In the 12th An. 838, Mullen vs.' Follain,' the informalities urged were:

1. Want of noticó of seizure' and'notice to appoint appraisers/

2. Want of sufficient description of the property seized and sold.'

3, That the seizure was excessive.

These informalities were deemed sufficient by the District Court to annul the sale, but on appeal to this court it was held erroneous, because all the alleged defects, so far, at least, as they were proven, were cured by the conduct of plaintiff himself. He appeared at the sale, made no opposition thereto, bid himself on the property, thereby encouraging others to bid, and gave up possession of the whole premises as sold by the sheriff to the purchaser, Eollain. If under such circumstances he could attack the sale, there would be little security for bidders who might be misled by the act of parties whose property is exposed to public sale.” 36 An. 774. The plea of estoppel herein filed against plaintiff was well taken, and the judgment of the lower court maintaining it, is correct.

The ruling of the lower court excluding evidence as to whether the purchaser at said sale paid the purchase price or not, is correct. It does not appear that plaintiff has any right to question that fact; he is not an heir of John Hayes, and is without interest in the proceeds of said sale. Besides which, the return of the sheriff on the execution, and the sheriff’s deed, recite that the purchaser did pay the purchase price in cash to the administrator of the estate of John Hayes, which fact is admitted by the latter in his answer herein, and is not denied by any person in interest; therefore, as a third possessor of property seized and sold to satisfy a previous mortgage, and having no actual interest in the distribution of the proceeds of the sale, plaintiff has no right to question whether the adjudieatee, Hebert, paid the sheriff the purchase price of said property, or how he complied with the terms of sale. C. P. 15; 36 An. 774.

Eor these reasons we are of the opinion that the judgment of the District Court, maintaining the pleas of estoppel and the exceptions of no cause of action and of no right of action, filed by all said defendants, is correct and supported by authority, and is therefore affirmed.

Ttehearing refused.

W. O. Perrault, District Judge, was called in to try this case.

McEnery, J., absent this term.

Breaux, J., recused.


author: Nicholls, C. J.

text:
    No. 11,621.
    State of Louisiana vs. John Jones et al.
    1. The District Judge should, in all cases where parties are indicted for. murder* charge the jury under Art. 785 of the Revised Statutes “that on all trials for murder the jury may find the prisoner guilty of manslaughter.” State vs. Brown, 40 An. 725. State vs. Brown, 41 An. 411. ’ 1
    2. The discovery, through a confession, of facts legally admissible in evidence tending to show a defendant guilty of the charge agaiust him, would not render admissible the confession itself if it was not voluntary and free from compulsion or inducement. ‘ ‘
    APPEAL from the Tenth Judicial District Court, Parish of Avoyelles. Cogo, J.

      M. J. Cunningham,, Attorney General, and Phanor Breazeale, .District Attorney, for Plaintiff and Appellee.

      Joffrion & Joffrion and A. J. Lafargue for Defendants and Appel - lants. '
   The opinion of the court was delivered by

Nicholls, C. J.

John Jones and Henry Simmons, having been convicted of murder and sentenced to death, have appealed.

The record shows that during the progress of the trial certain confessions made ‘by Henry Simmons were, over the objections- of the defendants, permitted to be testified to and go to the jury, and that in his charge..to the jury-the District Judge, in instructing them what verdicts they could render under the indictment, failed to include that of manslaughter, and that upon his attention being called by counsel of accused to the omission of one verdict which coiild'be returned’tinder an indictment for murder, he stated to the counsel that he had thought of that but that he did not think such a verdict would be applicable to this ease.

It is claimed that it was not shown that the confessions referred to were voluntary and not free'from fear of harm and from inducement; also claimed that it was- the duty of the court to have informed the jury before retiring that, under the laws of Louisiana, in all trials for murder the jury may find a verdict of manslaughter. A question has been raised as to whether the counsel requested the judge to include a “ verdict of manslaughter” as a verdict allowable under a charge of murder, and as to whether the accused reserved a bill of exceptions to the course pursued by the judge. We find a bill of exceptions bearing on this subject which we will first transcribe, and then comment up on the situation of the case viewed from the recitals of that bill. The bill states that “on the trial of the case, while' 'the judge was completing his charge to the jury, one of the defendant’s counsel rose and stated to him ‘that he omitted to inform-’the jury that they could also render a verdict of manslaughter,’ and the judge answered: ‘ I have thought of that, but in this case it can not be done.’ Whereupon counsel said: ‘ We only call attention to this omission of your Honor to protect our rights.’ The omission of charging the jury that they could bring a verdict of .manslaughter also had a tendency to prejudice defendants’ case.”

To the above the court added:

“The court refused to charge the jury as aforesaid for the following reasons:
“ The counsel in this case made no request that I charge the jury that they could return a verdict of manslaughter, nor did they reserve a bill in this respect. What happened was simply this: After the jury received their instructions from the court, counsel remarked to the court £ that the jury had not been instructed as to one verdict, they might render in the case.’ £I remarked to counsel that I had thought of that, but I did not think such a verdict would be applicable to this ease.’ To this counsel shrugged his shoulder and simply remarked: Well, I thought I would mention the matter to your Honor,’ but he never asked for the special instructions nor reserved a bill. He did not even suggest what the additional verdict was, but I concluded it was manslaughter, as I had not instructed the jury that they could return such a verdict. I did not do so because, such an instruction could only have confused the jury and would have necessitated an elaboration upon questions of law not involved in the case at all. It was a case of absolute waylaying in the night, and the questions incident to sudden affray and combat did not, in fact, nor could they be invoked as an element of defence. I think it is the duijy of the trial judge to eliminate from the case all issues not pertinent to it, and which are calculated to draw the attention of the jury from the main facts. Self-defence, insanity and excusable, homicide are special defences which need not be discussed save when, specially made. I have given the above to show that und.er no possible theory of the defendants could they plead injury, from the failure of the court to instruct the jury that they could return a verdict. of manslaughter. Their defence was not that the killing was done under heat of blood, but that they did not do it at all.
“The murder was an atrocious one, and could not have been justified under any pretext, nor was any attempt made to. justify it. Both defendants attempted to locate themselves at places different from the one where the homicide was committed,, and that was their, sole defence.” To which ruling of the court the defendants’ counsel at the time stated, they wanted said charge made to protect their rights, and excepts to said ruling, and tenders this his .bill of exceptions. to be signed by the judge, which is done. This bill as so written we find signed by the judge. It is inartifieially drawn and it is difficult to understand from it precisely, what, did occur at the time,,of the.- giving of th.e charge. The case before us is one involving the, lives pf two..persons, and we are inclined to give to the.,.accused the. benefit of all the doubts in favor of the bill of which it is fairly susceptible. We have affirmatively shown to us, over the signature of the District Judge, a state of facts of so fundamental and radical a character that we can not shut our eyes to it, even though in bringing them to our notice the rules of practice may not have been conformed to with strict technicality. That the judge, in charging the jury, omitted to include a verdict of manslaughter as an allowable verdict on all trials for murder; that this omission was called to his attention by counsel, and that that omission was intentional, and that the judge stated to the counsel, who called his attention to the omission, that such a verdict would not be applicable to this case, are facts which the District Judge himself admits.

It may be fairly assumed from the reading of the bill that this last statement was made to counsel in presence of the jury. ,

With this condition of things in the lower court shown to us, can we permit the judgment to stand? We think not. We are of the opinion that on all trials for murder it is the duty of the District Judge ex propria moto, without request from counsel, to charge the jury that among the verdicts which they are permitted by law to return, under an indictment charging a person with murder, is a verdict of manslaughter, as much so as to inform them that under an indictment for murder it is lawful for the jury to qualify thejr verdict by adding thereto ” without capital punishment,” and that it is reversible error in any case that the judge should have failed to so inform them. And if this be so, how much stronger is the case where a judge not only fails to give such information, but expressly declares that in the ease before him such a verdict would not be applicable.

The law in this State positively prohibits the judge in a criminal case from expressing an opinion upon the evidence, and the declaration made by the judge was in direct violation of that prohibition.

This court has on several occasions been called on to express an opinion as to the duty of district judges in respect to informing the jury what verdicts they can return in a murder case.

Among the cases we refer to State vs. Brown, 40 An. 725; State vs. Brown, 41 An. 411.

The accused did not ask in this case that any special charge, peculiarly and particularly applicable to it, be given. They did not assume as existing, certain facts, and ask the court from that state of facts (facts entirely outside of any evidence in the case) to charge the jury as to the law which would be applicable, if such facts had really entered at all in the matter before them.

Counsel did not come down at all to the merits of this particular case — to its facts — or to any theory upon it. Substantially they ask the court to tell the jury, not that on the trial of this cause, and because of any particular features connected with it, that a verdict of manslaughter could be returned by the jury, but that on all trials for murder such a verdict could be returned. That being the law, the judge should have so instructed the jury. The question of injury, as resulting from the judge’s course, does not enter as a factor in the matter. The duty of the judge was absolute and mandatory, and his failure to perform it, fatal.

In the examination of this subject we noticed a sentence in the opinion in State vs. Jackson, 45 An. 1035, which, read alone and not in connection with the recited pleading and facts of that case, might be misleading, and to which, we think it not amiss therefore to refer.

In that case, which was one of murder, the District Judge had, in point of fact, charged the jury generally upon the law of manslaughter, but declined to give a special instruction asked.

In our opinion we said that “ there was nothing in the case at bar, under the statement of facts as given, upon which the court could have been called upon to charge upon the law of manslaughter, and to make his refusal to do so ground of refusal.” The sentence should properly read: “that there was nothing in the case under the statement of facts as given, upon which the court could have been called upon to make the special charge asked, upon the law of manslaughter, and to make his refusal to do so ground of refusal.”

The conclusions we have reached upon this particular branch of the case would necessitate a reversal of the judgment, and the remanding of the case, without discussion or mention of other questions involved in it, but in view of another trial, it is proper that we should refer to the confessions made by Henry Simmons, which are the subject of several bills of exception.

The first bill of exceptions was reserved by both defendants. It appears from it that the State, through one W. B. Marshall, a witness upon the stand, proposed to place before the jury a confession of Henry Simmons, one of the accused, and that defendants objected on the ground which we have already stated, but that the objections were overruled and the confession went to the jury. The circumstances under which this confession was made are thus stated by counsel to have been made by the witness. He (witness) and a number of men armed with guns and Winchester rifles arrested Simmons, who was asked how the killing was done. Simmons stated that Henry and Van Washington had done it. He (witness) told him, 1‘ Now you had better tell the truth and not tell a lie.” Simmons at the time was in apparent fear and trembling, and then and there he told them that he, Simmons, and John Jones had killed the deceased.

The judge makes the following statement upon the bill: “ Marshall (the witness) stated that he and two others had arrested Henry Simmons and that they were at the time armed, but he said that they had made no threats against the life of Simmons, nor had they offered to do him bodily harm, nor had.they made any hostile demonstration however (whatever). That they offered him no inducements, or favors or immunities. That he, Marshall, had asked Simmons who had done the killing, and that Simmons had answered that Henry Washington and Van Washington had done it. Marshall then said to him: ‘Henry, you’d better tell the truth and not lie about it.’ Simmons was not bound in any way, and had not even been arrested. He then told Marshall that he and John Jones had done the killing. Marshall testified that he then concluded to take Simmons to a party of men who had in the meantime arrested John Jones, and he did so. Simmons was then taken, and his hands were, bound together and a rope placed around his neck. Whilst in that condition he repeatedly made statements of his guilt, which were,, however, all excluded, and it was only after the crowd had concluded, not to do him. violence,, and had decided to turn him over to the authorities, that he might be legally tried, and after they had actu-, ally started with him to Marksville, the parish seat, that his confessions, to which P. J. Coco,. E. D.. Coco,. John George and others, testified, were admitted..

‘1 His first confessions were contradictory, but in his last he gave, the details of the killing with such particularity, which circumstances subsequently corroborated so thoroughly,, as to leave no doubt as to the verity of the statement.”

The second bill of exception is leveled at. the action of the court in permitting the testimony of. one John George, touching, a confession made in his presence by Henry Simmons, to go to the jury over objections of the same character as those mentioned in the first bill.

Counsel in this bill state that it was reserved by “ defendants’ counsel,” but the judge states that this particular bill was taken by counsel of Simmons only.

The third bill, the judge states, covers objections to the testimony touching the same confession which had been testified to by John George, but as testified to by different witnesses (Paulin J. Ooco and Edouard D. Ooco).

Counsel state in the second bill that this confession was made to P. J. Ooco and others before going to the woods, whilst they were all armed. That whilst the witness George had offered no inducement or made no threats, yet others had done it a short time before to extort said confession, which had previously been excluded for said reasons. They objected that a confession extorted through inducement or threat can not be received in evidence when made to a person who had arrived after said threats had been made or inducements offered, and that any confession made after that time is not voluntary.

The court overruled this objection, stating that the confession' was made at a different time and place, and under'circumstanced totally different from those under which the excluded confessions were made. This confession was made under no offer of violence, threats or immunities, and when- the parties who had charge of the’ accused had decided to' turn him over to the authorities, and whilst the prisoner was being taken to the parish seat. No confessions made by the defendant whilst the attitude of the mob was menacing, and whilst he may have apprehended bodily harm, were received in evidence. The one received was made by him voluntarily and under no improper influences.

In the third bill the defendants assert that Paulin -J-. Ooco and Edouard D. Ooco testified that the confession was-made while anum-' ber of men- armed with guns and Winchester rifles had Henry Simmons under arrest, and whilst coming from the woods with Sim-: mons, who had his hands tied and a rope around his neck. That whilst such was the situation,- Simmons broke out' in- a laugh; saying he would have more time to meet the- “Old Man/” and that -Simmons then said also that he and John Jones had waited until midnight under an oak tree near by for the deceased to pass by in order to kill him. That this was on the Thursday night previous to the killing, and that on Sunday night he (Simmons) had shot Bond and missed him and Johnnie Jones had finished him, and they maintain that this confession was not voluntary and free from fear or inducements.

The judge, in overruling the objection, said: “This is the confession testified to by John George and others, and it was’made under the circumstances stated in the bill of exceptions to George’s testimony.”

The District Judge differs in his statement of facts and in his conclusions from the counsel of the prisoners. Were we imperatively called upon in this case to pass now upon the admissibility of the confessions in evidence, we would be forced (inasmuch as the testimony of John George, Paulin Ooco and Edouard Coco is not in writing) to be guided by the statements of the judge.

In view of this difference and of the ordering of a new trial, at which the testimony will be taken de novo, and matters then placed, we hope, in such a shape as to present this question before us, should it arise again, free from any conflict between the judge and the counsel, we do not feel at liberty to dispose of it as matters stand. The exact details of the situation when each of the confessions took place, the connection of the parties present at the time the one was made with those present at the time the other was, the continuity of events or the break of the continuity, the intervals between the confessions, the places where each was made, the order in which they were made — everything, in fact, tending to show the circumstances under which the confessions were made, should be clearly brought out and recited. Mere conclusions of fact should not be depended upon or sent to us on which we will be expected to base our decision.

There is one matter connected with the bills which has attracted our attention and to which we think it proper to refer.

In the first bill of exceptions the District Judge passes outside of the particular confession then before the court to another confession made by Simmons, and in respect to this he says that in it “ he gave the details of the killing with such particularity (which circumstances subsequently corroborated so thoroughly) as to leave no doubt as to the verity of his statement.”

If the District Judge, in reaching his conclusions as to the admissibility of the confessions, was influenced by the consideration that “the facts detailed in them were found subsequently to be so corroborated as to leave no doubt as to the verity of the statement,” he committed an error. The discovery through a confession of facts, legally admissible in evidence, and tending to prove a defendant guilty of the charge against him, would not render admissible the confession itself, if it wa3 not voluntary and free from compulsion or inducement. The question at that time before the court in this case was the admissibility of the confession, not its truthfulness. Yates vs. The State, 1 S. W. Reporter, 65.

Before closing this opinion we feel it our duty to allude to the “ minute entries ” in this case. They are carelessly and imperfectly made. The minutes of each’ day should show exactly what took place in the case on that’ day, and the District Clerk is not justified in making, to cure prior defective entries, a general entry on the last day of the trial “that; the accused was present from the beginning to the end of the trial.”

The number of judgments which this court has been forced to reverse and remand by reason of defective records calls upon us to urge upon District Attorneys the necessity of their giving personal supervision each day to the entries made in criminal cases by the clerks.

Eor the reasons herein assigned, it is ordered, adjudged and decreed that the verdict of the jury be set aside, and the judgment thereon rendered be and the same is hereby annulled, avoided and reversed, and that the cause be remanded to the lower court for further proceedings according to law, the parties charged to remain in custody.


author: Nicholls, O. J.

text:
    No. 11,590.
    The State of Louisiana vs. January Wright.
    1. The principle attempted to be announced by a party indicted for murder in a requested special charge to the jury that “ even if the killing be proved and that the prisoner at the bar did it, that does not permit the law or the jury to presume malice ” is stated entirely too broadly and, as stated, was correctly refused.
    2. After a general charge to the jury, in which the court had fully instructed it as to what constituted the crime of murder, including a full definition of express and implied malice, and the manner of proving it, and that it was incumbent on the State to prove all the necessary elements going to constitute-the crime of murder, as defined beyond a reasonable doubt, a special charge ' was given to the effect that “ from the mere proof of the hilling by the accused, malice is not to be presumed as a matter of law or by the jury, but where the facts and circumstances of the hilling are placed in evidence before the jury, and there was no accompanying palliating or extenuating circumstances, the jury may infer malice.” Meld: That through the general and special charge the jury was fully and properly advised as to the law, and as to its duty in the ease.
    APPEAL from the Eighteenth District Oourt, Parish of Lafourche. Caillouet, J.

      M. J. Cunningham, Attorney General, and B. F. Winchester, District Attorney, for Plaintiff and Appellee.

      John 8. Billiu for Defendant and Appellant.
   The opinion of the court was delivered by

Nicholls, O. J.

The defendant, charged with murder, was found guilty and sentenced to death. The appeal taken presents to us but one single question.

Oounsel of the accused asked the court to charge the jury that “even if the killing be proved, and that the prisoner at the bar did it, that does not permit the law or the jury to presume malice.”

The bill of exceptions states that “the court refused to give the charge, in the words quoted, and a qualified charge was given, whereupon counsel reserved this bill, and submitting same to the attorney for the State and found correct was given to the court.”

The court added to the bill the following words •

“The court gives the requested charge with the following modification and in the following language: ‘ Formerly it was the law that the proof of the killing by the accused raised a presumption of malice, but such is no longer the law.; that from the jmere proof of the killing bjr the accused, malice is not to be presumed as a matter of- law or by the jury, but when the facts and circumstances of the killing are placed in evidence before the jury, and there'are no accompanying palliating or extenuating circumstances, the jury may infer malice.’

This qualified charge (says the judge) is to be taken in connection with the general charge,, which was not. excepted to, in which the court had fully instructed the jury as to what constituted the ¿rimé Of murder, including a full definition of express and implied malice and the manner of proving it; and that it was'incumbent oh the State to prove all the necéésary'elements' goifig to constitute the crime of murder,- as defined, beyond a reasonable doubt. ’ The evidence showed a killing without any extenuating circumstances.”

As the bill is drawn the objections of the- appellant seem- to be directed to the refusal of the judge to charge exactly, in the words of the counsel, rather than to the correctness of the charge as actually given. We think the charge as requested to be made was correctly-refused .to be given. ■ The -idea which counsel-intended to convey was, as stated in the proposed instruction to the jury, calculated to mislead it.' The principle attempted to be announced was entirely too broadly stated.

Assuming, however, that the bill was designed to reach the charge as actúa ly made, we do not think that appellant has'any ground of complaint.

We think the instructions to the jury such as were approved by this court in State vs. Trivas, 32 An. 1090.

In that case the court, after referring to the fact that at one time it was held that- -from the -mere proof- that -a deceased person had been killed by the accused, malice is presumed by the law from the fact of killing, that declared “experience in criminal practice has compelled the courts of this country to modify and materially relax the vigor of the common law rule on this point; and recognizing that frequently the excuse for the deed apparent on the evidence offered to prove the homicide, the courts have shaped the rule so as to conform with undeniable experience. These mild and able modifications were considered and adopted by our immediate predecessors in the case of the State vs. Swayze, 30 An. 1323, and we shall now be guided by the rule which requires the judge to charge that malice is presumed from the proof of the homicide when such proof is unaccompanied by circumstances of extenuation.

“ The jury may be instructed to weigh and consider all the circumstances arising from or connected with the evidence proving the homicide, and that the presumption of the innocence of the accused must yield to the presumption of malice or deliberate intent only when the evidence is unaccompanied by circumstances showing alleviation, justification or excuse.”

The general charge was not required to be given in writing nor excepted to and is only referred to in a general way by the District Judge in the bill of exceptions.

We have every reason to believe that through the general charge and the special charge given to it, the jury was fully advised of the law in the case.

Judgment affirmed.


author: MoEnery, J.

text:
    No. 11,529.
    Lafayette Bank of St. Louis vs. Algiers Brewing Company.
    APPEAL from the Civil District Court, Parish of Orleans. King, J.

   MoEnery, J.

Appeal dismissed.


text:
    No. 11,481.
    A. S. B. Pior, Tutor, vs. D. M. Giddens et al.
    APPEAL from the Ninth District Court, Parish of Red River. Hall, J.

    This case is controlled by Rawlins vs. Giddens, ante, 46 An. 1136.
   Nicholls, O. J.

Remanded.


text:
    No. 11,482.
    Florsheim Bros. Dry Goods Company, Limited, vs. Giddens et al.
    APPEAL from the Ninth Judicial' District Court, Parish of Red River. Hall, J.

    This case is controlled by Rawlins vs. Giddens, ante, 46 An. 1136.
   Nicholls, C. J.

Remanded.


author: McEnery, J.

text:
    No. 11,440.
    State of Louisiana vs. Vincent & Hagan.
    APPEAL from the Oivil District Court, Parish of Orleans. Rightor, J.

    The issues same as involved in State vs. Williams, ante, 46 An. 922.
   McEnery, J.

Judgment affirmed.


text:
    No. 11,400.
    The State of Louisiana vs. Dasylva Courcier.
    y^PPEAL from the First Recorder’s Court, City of New Orleans.
    This case is controlled by decision in State vs. Dasylva Courcier, No. 11,399, ante, 46 An. 907.
   Nicholls, C. J.

Appeal dismissed.


text:
    No. 11,110.
    Edward Frederich and Chas. Durrieu vs. Southern Electric and Manufacturing Company.
    APPEAL from the Civil District Court, Parish of Orleans. King, J.

   This case only involved questions of fact.

The opinion of the court was delivered by

Nicholls, C. J.


author: Watkins, J.

text:
    No. 11,583.
    State ex rel. A. M. Lamothe vs. N. H. Rightor, Judge.
    In case a judicial sequestration, as an incident of a real action, is dissolved, and the plaintiff is left under the restraint of an injunction forbidding him to collect rents pendente lite, there is such probability of-resulting injury therefrom that he is entitled to a mandamus to compel the allowance of a suspensive ap* peal from such interlocutory decrees.

      y^PPLIOATION for a Writ of Mandamus.

      Edwin Laizer and Gabriel Fernandez for Relator.

      Albert Voorhies for Respondent.
   The opinion of the court was delivered by

Watkins, J.

The object of this application is to compel the respondent to grant relator a suspensive appeal from certain interlocutory judgments that he rendered' in a certain suit pending in his court.

The respondent returns that he granted the. defendant an injunction restraining plaintiff from collecting rents of the real property in controversy during the pendency of the suit; and also granted plaintiff a judicial sequestration of said rents and revenues, and directed the sheriff to collect and retain the same.

That the plaintiff moved for the dissolution of the injunction, and the defendant moved for the dissolution of thejsequestration; and that he maintained the injunction and quashed the sequestration.

He further returns that as the plaintiff — relator here — had “no apparent right of possession better than his principal’s — the defendant — and' as these were, Consequently,' interlocutory orders, not working an irreparable injury,”'he refused'to grant relator a suspensive-appeal from said decrees. '

The record brought up in the original shows that the relator brought suit for the revocation and annulment of certain alleged donations of certain valuable improved, real estate, situated in the city of New Orleans — the rental value of which was estimated at one hundred and twenty dollars per month — on the ground of ingratitude on the part of the donee and for other causes. To this' demand the defendant answered, and averred that she held title to the prop - erties in controversy, regular in form, and for which she paid a valuable and adequate consideration — disavowing said alleged donations.

Upon this real action .were engrafted, by supplemental proceedings, the defendant’s injunction to restrain plaintiff from collecting rents, and plaintiff’s judicial sequestration, requiring the sheriff to collect same pendente lite.

It is evident that the revenues were an incident of the suit, and the party decreed to be owner would ultimately be entitled to them.

Whether the judge improvidently granted and, consequently, properly quashed the sequestration, and correctly granted and refused to dissolve the injunction, are questions which are not of present concern; but the question is whether those decrees, interlocutory though they be, are of such a character that injury may result there - from to the plaintiff as relator. Code of Practice, 566; State ex rel. James L. Cole vs. Judge, 29 An. 803; Hyde vs. Jenkins, 2 La. 427.

In our opinion they are. If plaintiff remains under the operation and restraint of the injunction forbidding him to collect the revenues of the property during the pendency of the suit; and plaintiff can not obtain any relief from the decree dissolving his judicial sequestration directing the sheriff to collect and hold same for account of the successful party in the suit, he, necessarily, is placed in the situation of taking the risk of losing same notwithstanding he might win the suit.

We are of opinion that this is a proper case for the allowance of a suspensive appeal and that the relator is entitled to relief.

It is therefore ordered that the preliminary mandamus be made peremptory, commanding the respondent to grant the suspensive appeal requested and he be taxed with costs.


text:
    No. 11,592.
    State of Louisiana vs. Phil. Clark et als.
    The certificate'of the Assistant Secretary of State is competent evidence of the date of the promulgation of a law.
    PPEAL from the Nineteenth District Court, Parish of Iberia. Voorhies, J.

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

      A. & Charles Fontelieu for Defendants and Appellants.
   Tihe opinion of the court was delivered by

Watkins, J.

Phil. Olarke, Richard Wilson, Martin Jones, Julien Mallet and Edward Isaacs were indicted for a conspiracy to commit the crime of murder, and the last two, having been convicted and sentenced to imprisonment in the penitentiary, have appealed.

They rely on the following bills of exception for relief, viz.:

One taken to the refusal of the judge to quash the general venire of jurors, on the ground that the law whereunder the same was drawn had not, at the time same was drawn, been fully promul - gated and was not in force; and one taken to the judge’s refusal to permit counsel for the defendants to introduce in evidence a certificate of the Assistant Secretary of State for the purpose of showing the date of the publication of said act.

The grounds on which the motion to quash are predicated are fully stated in the brief of defendants’ counsel, and we have made an extract therefrom as the most exact way of presenting his views, viz.':

“ That on the 5th day of July, 1894, the jury commissioners, acting under Act No. 44 of 1877, proceeded to draw, and did legally draw, a general venire for the term of court to be held on the 3d day of September, 1894, which general venire was duly published according to law in the official journal of the parish of Iberia.
“ That no order was issued, nor could such an order issue, canceling, vitiating and quashing the said general venire drawn on the said 5th day of July, 1894.
“That on the 6th day of August, 1894, acting under a pretended Act No. 89 of 1894, an order issued from this Honorable Oourt appointing jury commissioners, and ordering the said commissioners to meet at the court house in New Iberia in order to draw a general venire for the said September term of court.
“ That the said commissioners did illegally proceed to draw a general venire, which were illegally summoned for the term of this Honorable Oourt.
“That at the time the said order, dated August 6, 1894, was issued by the Honorable Court, the pretended Act No. 89 of 1894 had not been promulgated twenty days in the official journal of the State and therefore was not a law. That all the acts of the jury commissioners, under the pretended Act No. 89 of 1894, were therefore illegal, null, void and of no effect.
“ That the ignoring and setting aside of the legal general venire drawn by the jury commissioners on the 5th day of July, 1894, was contrary to law and without warrant and authority.”

The foregoing is a literal reproduction of the grounds assigned in one of defendants’ bills of exception.

The defendants’ motion to quash the general venire was filed on the first day of the term, and the grounds therein assigned are the same as those assigned in the bill of exceptions.

The record discloses the facts to be as stated in the motion to quash and the bill of exceptions — the trial judge having, presumably, acted on the presumption that Act 89 of 1894 had repealed Act 44 of 1877, in appointing jury commissioners on the 6th of August, 1894, and ordering them to draw a general venire for the September term of court.

If he was correct in that assumption, the defendants’ complaint is without foundation. Act 89 of 1894 was approved by the Governor on the 7th of July, 1894; and it declares in terms that Act 44 of 1877 is thereby repealed. Anterior to the approval of the former statutes the jury commissioners appointed under the latter had, on the 5th of July, met and drawn a general venire of jurors for the September term of court. And the point is made by the motion to quash, and in the bill of exceptions, that at the time of appointing of the jury commissioners on the 6th of August, 1894, Acc 89 of 1894 had not been promulgated twenty days in the official journal of the State, and was therefore not a law.

The provision of the Oivil Code with regard to the promulgation of the laws, is that “ all laws enacted by the Legislature of the State shall be considered promulgated at the place where the State Gazette is published, the day after the publication of such laws in the State Gazette; and in all other parts of the State, thirty days after publication.” Revised Civil Code, Art. 6. The time required for promulgation is, by the Constitution, reduced to twenty (20) days. Constitution, Art. 40.

The certificate of the Assistant Secretary of State is to the effect “ that Act 89 of the regular session of the General Assembly of the State of 1894 was duly published in the official journal of the State of Louisiana on the 22d of July, 1894.” Consequently sufficient time had not elapsed between that date and the 6th of August, 1894, for the publication of the act and its promulgation according to law.

Objections were made, however, by the State’s attorney, to the admission in evidence of the certificate of the Assistant Secretary of State; and the objection having been sustained by the court, the defendants’ counsel retained the aforesaid bill and annexed the certificate thereto. The judge assigned no reasons for sustaining the objection and disallowing the certificate in evidence.

The Civil Code provides that the Secretary of State “ shall keep a register in which he shall write down the title of all the laws passed by the Legislature, together with the dates when they shall have been respectively published in the State paper; and the register thus kept, or the eertifieate delivered from the same, by the Secretary of State, under his official signature and seal, shall be evidence of the publication of the laws,” etc. Revised Civil Code, Art. 6; Revised Statutes, Sec. 3493.

The Secretary of State is authorized to appoint an Assistant Secretary of State. Revised Statutes, Sec. 3522.

And the Assistant Secretary ef State “ is fully authorized to perform all or any of the duties or official- acts required by law of the Secretary of State,” etc. Revised Statutes, Sec. 3523.

It is evident that the certificate of the Assistant Secretary of State was competent evidence for the purpose for which it was offered, and that rejecting it was error on the part of the trial judge, which entitles the defendants to relief.

It is therefore ordered and decreed that the verdict of the jury thereon based be annulled and set aside, and it is further ordered that the cause be remanded to the lower court, and the sentence of the court for the purpose of a new trial in - accordance with law and the views herein expressed.


text:
    No. 11,513.
    Succession of Mrs. E. L. Cauvien, Widow of Antoine O. Degruy, Deceased.
    1. The charge that a subscribing witness to awilldid not hear the dictation of the testatrix is disposed of by the statement that he could hardly hear her talking* because she was very sick.
    2. The charge that a subscribing witness could not understand or speak the French language is disposed of by proof that the testament was dictated and wholly written in the Iflnglish language.
    3. The purposes of the law are subserved by proof that the language employed by the testatrix was fully understood by the notary, and faithfully expressed in the testament as written by the notary.

      4. To meet the requirement of the law, the proof, administered on a charge that a certain phrase of the testament was not, in point of fact, dictated by the testatrix, must be sufficient to overcome the sanctity that attaches to a quasi official record, and the legal presumption that is thereon raised, in favor of the truthfulness of its recitals, and the just performance of an official act by a public officer.
    APPEAL from the Twenty-first District Oourt, Parish of Jefferson Rost, J.

      J. Numa Augustin and Charles P. Drolla for Testamentary Executor, Defendant and Appellee:
    The will is the repository of the deliberate intentions of the testator. The cardinal rule for the interpretation of wills is to ascertain the intention of the testator and to give effect to it when ascertained. Succession of Burnside, 35 An. 708, 715.
    It is the identity of thought and not of words that the law requires. Starr vs. Mason, 32 An. 9; Gidden vs. Ex. Burke, 35 An. 179.
    The act of the notary receiving the will in presence of witnesses is an authentic act, and it makes full proof of what is contained in it. Segur vs. Segur, 12 An. 25.
    Proof to set aside a will is admissible, but it must be peculiarly strong to overeóme the presumption resulting from the authentic act; and the testimony of the witnesses themselves, who have given their solemn attestation to the completion of the required formalities, is entitled to little weight to set aside a will. Succession of Young, 11 An. 65; Starr vs. Mason, 32 An. 9; Major vs. Eynault, 7 An. 52.
    ‘‘The prohibition of external proof prying into the testator’s intentions in making the will, the requirement of the rigid observance of formalities, showing by the will alone that the intention is that of the testator and not of anybody else; the authenticity of the instrument, protecting the intention thus manifested for all time, from the treacherous memory or the fraudulent contrivance of witnesses.” Gross on Succession, p. 183.
    An act with the testimony of the notary and the witnesses is not overcome by conflicting testimony, some of which goes to show that the testator was not sufficiently acquainted with English to make a will in that language. Starr vs. Mason, 32 An. 9; Landry vs. Tomatis, 32 An. 120.

      Where the evidence shows that the party attempting to nullify a will was herself the only party who offered to explain to the notary what was said to him by the testatrix, and the notary did put down all the intentions of the testatrix as expressed by her, with a due regard to identity of thoughts and not of words,- the will can not be invalidated nor nullified. Hamilton vs. Hamilton, 6 N. S. 146; Starr vs. Mason, 32 An. 11.

      Thomas S. Ellis for Plaintiff and Appellant.
   The opinion of the court was delivered by

Watkins, J.

This suit has for object the annulment of the will of the decedent, Mrs. DeGruy, upon the following grounds, to-wit:

1. That one of the witnesses to the testament, Mr. Wilbrug Huguet, did not hear the dictation of the testatrix because of the indistinctness of her articulation when speaking to the notary.

2. That another of the witnesses, James Rostrup, was totally ignorant of the French language, in which the testatrix partially dictated same.

3. That, as the testatrix partially dictated the testament in the French language, which the notary did not understand, the services of an interpreter were called into requisition.

4. That the clause in the body of the will dispensing the executor from giving bond was not dictated by the testatrix to the notary in the presence of the witnesses.

5. That the instrument was not voluntarily dictated by the testatrix, but its provisions were suggested to her — she merely acquiescing therein by monosyllables.

The answer of the defendants — the forced heirs, legatees and testamentary executor having been made parties — was a general and special denial. After hearing and considering the testimony of a number of witnesses, and amongst them that of the notary and the three attesting witnesses, the District Judge reached the conclusion that plaintiff’s case was not made out and rejected her demands, and maintained the will as legal and valid.

We have read the briefs with care and attentively examined all the evidence, and both briefs and evidence have impressed our minds with the correctness of the conclusions of the judge a quo. This is the case of an old lady making a will in the nuncupative form by public act, while in extremis lying on her death bed, and manifestly suffering great pain, though perfectly rational and conscious of her acts.

The first two grounds may be disposed of with the simple statement that the subscribing witness Huguet, as a witness in this case, said that he “ could hardly hear her talking because she was very sick;” and although the subscribing witness Rostrup could not speak a word of French, the will purported to have been dictated in English, and is wholly written in that language. Each of these subscribing witnesses signed the testament, and, on the stand as witnesses, do not disavow their signatures. These facts thoroughly dispose of these two grounds of complaint.

With regard to the third ground there is quite a contrariety of statement, the preponderance of which, however, favors the defendants’ theory — the substance of the testimony being that the testatrix dictated her wishes in broken English, which was understood by the notary and subscribing witnesses, and was by the notary correctly expressed in the testament.

Five of the witnesses testifying in this case unite in making the statement that the testatrix dictated her will in broken English, but did it understanding^ and intelligibly.

The notary testifies that the ■ entire dictation of the testatrix was in English, but that he had occasion to make a pause now and then, and repeat to her some of the words and inquire what she meant, and to his questions she would reply: “Yes, that is correct.”

He states, emphatically, that he took the dictation of the testatrix only, and after writing each paragraph he read it over to her, in order to make sure that he was right.

The notary could neither speak nor write the French language, and the testament is in the record — brought up in the original— and is wholly written in the English language.

There is not one of the witnesses who states that the testatrix could not speak the English language, except the plaintiff; and in this she is contradicted by her sister, Mrs. Henry A. Ha,rvey. On this subject the record says:

“Q. Mrs. Harvey, you are a daughter of Mrs. DeGruy?
“A. Yes, sir.
“Q. You were present at the time of the taking of her will by William J. McOune, the notary?
:<A. Yes, sir; I was.
“Q,. Did your mother speak English or French?
“A. English.
“Q. How did she speak English?
“A. Broken English.
Q. Sufficiently well to be understood?
“ A. Everybody always understood her.”
Again:
“ Q,. And Mr. McOune repeated it to your mother?
“ A. Yes, sir. .
“ Q. Your mother spoke broken English?
“ A. Yes, sir.
Q. Did she speak it frequently?
“ A. All of the time. We' always had ladies that came to the house that spoke English.”

The plaintiff, as a witness, is contradicted by her brother, Horace DeGruy. On this subject the record says:

“ Q. Mr. DeGruy are you a son of Mrs. Onezime DeGruy that lately died?
“ A. Yes, sir.
“ Q. How many languages could your mother speak?
“ A. She could speak French and broken English.
<[ Q,. Did she speak broken English in such a way that you could understand what she was saying?
“ A. She could speak good enough for anybody to understand her.”

These positive statements are confirmed by several witnesses who had been intimately acquainted with the testatrix many years.

The judge a quo, in our opinion, satisfactorily disposes of the fifth complaint of the plaintiff, to the effect “ that the testament was not voluntarily dictated by the testatrix, but its provisions were suggested to her, she merely acquiescing in monosyllables.” On this subject his judgment declares:

“ That if, as alleged in the petition, the will was not written down by the notary in the very words dictated to him by the testatrix, the evidence goes to show that the plaintiff herself was the only party who offered to explain to the notary what was said to him by the testatrix; (but) that the notary did put down all of her intentions as expressed by her, with a due regard to identity of thoughts and not of words. 6 New Series, 146; 32 An. 11.”

The foregoing expressions embody our views fully. With reference to the phrase in the will appointing an executor and dispensing him from bond, the charge that it was not dictated by the testatrix, is not supported by the evidence; it does not overcome the sanctity that attaches to a gwasi-official record, and the legal presumption that is thereon raised in favor of the truthfulness of its recitals, and the just performance of an official act by a public officer.

Judgment affirmed.


text:
    No. 11,487.
    Boland & Gschwind vs. Slidell Brick and Tile Manufacturing Company, Limited.
    APPEAL from the Sixteenth Judicial District Court, Parish of St. Tammany. Reid, J.

   All parties in interest filed in open court an agreement for a consent judgment.

The opinion and decree was delivered by

McEnery, J.


text:
    No. 1278.
    Isaac Freiburg & Bro. vs. A. Langfelder. Mrs. Pauline Langfelder, Intervenor.
    APPEAL from the Fifth Judicial District Court, Parish of Ouachita. Richardson, J.

   The plaintiffs appellants.

Appeal dismissed.


text:
    No. 1288.
    Same vs. Same.
    APPEAL from Fifth Judicial District Court, Parish of Ouachita. Richardson, J.

      Defendant and Intervenor Appellant.
   The opinion of the court was delivered by

McEnery, J.

In a dation en paiement the thing transferred to the wife must bear a just proportion in value to the amount due the wife. A sale is an entirety, and there is no contract where there is no agreement as to the price. If the property transferred to the wife esceeds appreciably the debt due her, she can not be permitted to retain a part of the property transferred and remain a creditor to the community for the difference.


text:
    No. 11,392.
    State of Louisiana vs. Henry Fried et al.
    ^PPEAL from the Second Recorder’s Court, City of New Orleans.
    The issues same as in State vs. Sarodat et ais., ante, 46 An. 700.
   McEnery, J.

Judgment affirmed.


text:
    No. 11,439.
    State of Louisiana vs. Emile Algeyer & Co.
    PPEAL from the Civil District Court, Parish of Orleans. Rightor, J.

    The issues same as involved in State vs. Williams, ante, 46 An. 922.
   McEnery, J.

Judgment affirmed.


author: McEnbry, J.

text:
    No. 11,494.
    State of Louisiana vs. Mason Smith & Co.
    A PPEAL from Civil District Court, Parish of Orleans. Monroe, J.

      The facts and principles of law involved are the same as in State vs. Williams, ante, 46 An. 922.
   Judgment of District Court reversed.

The opinion of the court was delivered by

McEnbry, J.