author: DUNBAR, Judge

text:
    No. 13,846
    Orleans
    SUCCESSION OF BRIERRE
    (July 1, 1931. Opinion and Decree.)
    (October 30, 1931. Rehearing Refused.)
    (November 30, 1931. Writs of Certiorari and Review Granted by Supreme Court.)
    (February 29, 1932. Opinion and Decree of the Supreme Court.)

      Dart & Dart, of New Orleans, attorneys for appellee, Mrs. Theo. F. Brierre.
    Eugene J. McGivney, Monroe & Lemann, and Milling, Godchaux, Saal & Milling, of New Orleans, attorneys for defendant, appellant.
   DUNBAR, Judge

ad hoe. This is. an appeal from a judgment making absolute a rule taken by the tutrix herein to require the Whitney-Central Trust & Savings Bank (Poydras street branch) to deliver to the tutrix a bank deposit to the credit of the decedent, Theodore F. Brierre.

The tutrix contends that as a matter of law she is entitled to administer the estate of the deceased because she is the duly and legally qualified tutrix of a minor child of the deceased and has the right to demand and receive the money in the possession of the Whitney-Central Trust & Savings Bank, standing in the name of the deceased, upon presentation of her letters, of tutorship, without presenting a certified copy of a judgment putting the heir in, possession and without qualifying as administratrix.

The bank contends that the tutrix is not entitled to receive delivery of the deposit standing to decedent’s credit, as natural tutrix, unless her letters of tutorship are accompanied by a certified copy of a judgment recognizing the minor as the only heir of the decedent and putting the minor in possession of the estate, or, in the alternative, unless the tutrix qualifies as administratrix of the estate and presents letters of administration to the bank.

'The contention of the bank, as a matter, of law, is that under the express provisions of Act No. 64 of 1921, and also in view of the prior decision of the Louisiana Supreme Court in the case of Deshotels v. LaFleur, 134 La. 1052, 64 So. 905, it cannot safely turn over the deposit to the tutrix upon presentation of her letters of tutorship, unless it is also shown that the heir has been put in possession of the estate and .recognized as the only heir by judg-. ment of court, or unless she qualifies as administratrix.

The tutrix contends that Act No. 64 of 1921, properly interpreted, does not provide for such requirements, and, even if it can be so construed, the act is not mandatory, and , that, accordingly, the tutrix is entitled to the deposit in question upon presentation of her letters of tutorship, on the ground that the Supreme Court decisions and settled jurisprudence of this state allow a tutor to administer a succession without qualifying as administrator.

The material portions of Act No. 64 of 1921 are as. follows:

“Section 1. That it shall be lawful for any national bank, state bank or banking. association to transfer any balance of deposit account of any deceased person, or any other property of any deceased person in its possession, to the heirs, executors or administrators of the said deceased person, or to the tutors, curators or other legal representatives of such heirs; and the letters of such executors or administrators issued by any court of competent jurisdiction, or the judgment of any court of competent jurisdiction recognizing and putting such heirs in possession accompanied, if said heirs be not sui juris, by the letters of their tutors, curators or other legal representatives issued by any court of competent jurisdiction, shall be full and sufficient authority for the making of said transfer, which when so made, shall be a full protection to any such national bank [etc..].
“Section 2. That such national banks, state banks or banking associations are hereby authorized to transfer said balances of deposit and said property on any form of receipt signed by said executors or administrators of said deceased persons, accompanied by a copy of the letters of such executors or administrators, duly certified as hereinabove set forth, or signed by the heirs of said deceased persons, if sui juris, accompanied by a copy of the judgment recognizing and putting said heirs in possession, duly certified as hereinabove set forth, or signed by the tutors, curators or other legal representatives of such heirs, if not sui juris, accompanied by a copy of the judgment recognizing and putting such heirs in possession, duly certified as hereinabove set forth, and a copy of the letters of such tutors, curators or other legal representatives, duly certified as hereinabove set forth,” etc.

Counsel for tutrix argue that the act of 1921, properly construed, does not require a tutor to present, in addition to his letters, a judgment of court recognizing and putting the minor heir in possession. Counsel’s contention in this regard is. very briefly stated in their brief as follows:

“The act is clear and unambiguous; it clearly states that it shall be lawful for any bank to transfer any balance of deposit of any deceased person ‘to the tutors, curators or other legal representatives of such heirs.’ After making this declaration the Act provides:
“ ‘And the letters of such executors or administrators issued by any court of competent jurisdiction, or the judgment of any court of competent jurisdiction, recognizing and putting such heirs in possession accompanied, if said heirs be not sui juris, by the letters, of their tutors, etc., shall be sufficient authority in making the transfer.’
“Had it been the intention of the Legislature to require the tutor to present in addition to his letters, a judgment of court recognizing and putting the minor heirs in possession, the Act would have so provided. In other words, the Act would have used the words ‘provided that’ in lieu of the word ‘and’ so that it would read as follows (we quote from Section 1) :
“ ‘That it shall be lawful for any national bank * * * to transfer any balance of deposit * * * to the heirs * * * or to the tutors * * * of such heirs; provided that the letters, * * *’ etc.
“As we construed the Act the expression used by the Legislature is. disjunctive conjunctive; that is, the Bank may transfer to the tutor, with or without a judgment recognizing and putting the heirs in possession. Should the Bank do either it is protected under the statute, provided that in case of a non-resident the inheritance tax is first fixed and paid.”

We are unable to agree with the interpretation of the act of 1921 suggested by learned counsel for the tutrix. It seems to us that both the language and intent of the act contemplate that, in order for a bank to be protected under such circumstances, it is entitled to demand that, in addition to the letters of tutorship, it must be given proof of heirship in the form of a judgment recognizing the heir as the only heir and putting the heir in possession of the estate. For delivery of the deposit the protection to the bank is stated in the act to be “the judgment of any court of competent jurisdiction recognizing and putting such heirs in possession accompanied, if such heirs be not sui juris, by the letters, of their tutors, curators or other legal representatives issued by any court of competent jurisdiction.”

Section 2 of the act which provides for a proper and safe receipt for the transfer and delivery of such deposits also states that a bank is authorized to transfer such deposits on receipts “signed by the heirs of said deceased persons, if sui juris, accompanied by a copy of the judgment recognizing and putting said heirs in possession,” or signed by the tutors or such heirs if not sui juris, (1) accompanied by a copy of the judgment recognizing and putting such heirs in possession, and (2) a copy of the letters of tutorship.

The learned counsel for the tutrix contend, however, that, even if the act of 1921 is to be interpreted ‘as requiring, for the protection of the bank, a judgment putting the heirs in possession in addition to letters of tutorship, the act is not mandatory, and that the decisions of the Supreme Court prior to the adoption of the act have established the rule that a duly qualified tutor has the right, without qualifying as administrator, to exercise all of the rights and functions of an administrator in the absence of objection by the creditors, and that, accordingly, the tutrix in this case, in the capacity of an administratrix de facto, is entitled to demand and receive possession of the deposit.

Counsel for the tutrix cite and rely on Succession of Weber, 16 La. Ann. 420, and Soye v. Price, 30 La. Ann. 93, in support of their contention:

“In the case of Succession of Weber, 16 La. Ann. 420, the Court said:
“ * * The mission of the tutor, as fixed by his appointment and the letters granted him, is. to administer the estate of the minor, C. C. Art. 327 (now 337). He is the agent of the minor and he does for the minor what the latter might do for himself, if he were of the age of majority. The law accepts for the minor any succession which falls to him, with benefit of inventory. If, therefore, there should be found, in the patrimony of the minor, a succession, the tutor may administer it; not because it is so written in the letters of tutorship, for such express authority cannot be found there; but because the succession is an effect, a thing, belonging to the minor, and therefore subject to the administration of the tutor, for the ultimate advantage of the minor.’
“In Soye v. Price, 30 La. Ann. 93 the Court, after citing various cases, said:
“ ‘These cases clearly recognize the right of the natural tutor of the minor heirs of the deceased spouse, in the absence of opposition, to take possession of the estate in his capacity as tutor, and to administer it as other property of his wards for their benefit. The possession of the tutor is the possession of the minor, and all of his acts are in the name and on behalf of his wards.’ ”

The theory of counsel for the tutrix seems also to be supported by the opinion of Judge Watkins in the case of In re Scarborough, 44 La. Ann. 288, at page 293, 10 So. 858, 859, in which he stated:

“But I think our opinion is correct in announcing, as a proposition well sustainid in our jurisprudence, that a duly qualified, bonded, and acting tutor may ex virtute officii, administer the succession coming to his wards without any appointment as administrator thereof, and in so doing perform the dual functions of tutor and administrator.”

Although there is considerable confusion in the jurisprudence, and the question as to how far and under what circumstances a tutor may act as administrator has fed the flame of juridical controversy for many years in Louisiana, counsel for the bank admit that the doctrine announced without qualification in the case of In re Scarborough, supra, probably represented the view of our Supreme Court prior to the comparatively recent decision of that court in the case of Deshotels v. Lafleur, 134 La. 1052, 64 So. 905.

The Deshotels case is the most recent case dealing with the questions involved, and counsel for tutrix contend that this case approves the rule announced in the cases already referred to. Counsel for the bank, on the other hand, contend, that the decision in the Deshotels case qualifies and partly changes the rule established in the prior decisions with relation to the extent of the right of a tutor to administer a succession without qualifying as an administrator.

The thirty-seven page opinion of Mr. Justice Monroe in the Deshotels case is most exhaustive. He analyzes and reviews at great length the jurisprudence of Louisiana and the articles of the Civil Code in relation to the subject. The facts of the case and the points actually decided are stated briefly in the court’s syllabus as follows:

“Where a man dies leaving a widow in community, major and minor heirs, and an estate in community burdened with debt, and the widow in community, having been confirmed as natural tutrix of the minors, administers the community and succession, in the absence of any demand by the creditors or the major heirs for the appointment of an administrator, and causes real estate belonging to the community to be sold for the payment of a community debt, such sale will be held binding on the major heirs, and the adjudicatee will be held to have acquired a just title, protected by the prescription of ten years, in a suit' brought by the major heirs, more than ten years afterwards, for the recovery of the property on the ground that the acting administratrix was not authorized to represent them in obtaining the order of sale; and they will be presumed to have acquiesced in her administration, and. in the obtention of such order, where they neither allege nor attempt to prove that they were absent from the place where the succession was opened, or were ignorant of the fact that the succession owed the debt for which the property was sold, or were not advised at. the time of the intention and fact of the sale, or that there, was any other means by which the money to pay said debt could have been obtained, or that the price obtained for the propérty was less than its value.
“A succession may be administered without the. appointment of an administrator, in so far as to bind those who, being sui juris, acquiesce in such administration; but the acquiescence of creditors and major heirs in the administration, by the tutrix of minor heirs, of a succession falling conjointly to' such major and minor heirs, does not enlarge the powers of the tutrix, quoad the minors, or remove the restrictions which the law places thereon with respect to the alienation of immovable property belonging to them; hence, though" the sale, made at the instance of the tutrix, acting administratrix, of immoveable succession property, to pay succession debts, may be binding on the creditors and major heirs, the minors are not bound by it, unless it was made upon the advice of a family meeting, duly homologated.”

It will be noted from the syllabus of the case that an attack was made by the major and the minor heirs upon a sale of property belonging to the estate, made by the tutrix, assuming to act as administratrix, without legally qualifying .as such, and without the recommendation of a 'family meeting. The sale was sustained in so far as the major heirs were concerned, on the theory that no allegation was made by them that the sale was not for a fair price and because they acquiesced in the action of the tutrix since they did not object, as they had a right to do, and permitted the sale to be made by the tutrix, and were therefore bound in the same way as creditors would be bound had they-stood idly by and permitted the sale to have been made. As to -the minors, the sale was set aside, and in this connection the court said:

“The minor heirs were, however, incapable of acquiescing in ■ anything done by their tutrix which involved an exercise’ of authority in excess of that which the law conferred upon her for the administration of their property, and hence were not bound by the sale, provoked by her in violation of the prohibitions of the law.

The facts and decision in the Deshotels case, as such, do not, in our opinion, justify the conclusion or inference that a tutor has the unqualified right -to assume generally the functions of an administrator; but, on the contrary, the sale made by the tutor in this ease is upheld as to the major heirs only on the theory of estoppel and as. to the minors was held to be invalid.

Counsel for the tutrix cite and rely on, in support of their contention that the Deshotels case approves the unrestricted 'and unqualified rule announced in the pri-' or cases cited by them, a statement in the opinion of Hr. Justice Monroe, which we are compelled to interpret merely as a qualification and restricted recognition of the general rule indicated in some of the earlier cases, in view of the language of the decision that follows this statement, which will be referred to later on in this opinion. The statement relied on by counsel for the tutrix is as ’ follows:

“In the case of Bryan v. Atchison [2 La. Ann. 462], it was held, as we have seen, that a succession, falling exclusively to minors, though burdened with debt,' may,’ in the absence of any demand by creditors for the appointment of an admirn istrator, be administered by the natural tutrix of the minors, so as to bind the heirs and creditors, and that in such capacity the natural tutrix may defend a suit brought to recover a debt claimed to be due by the succession of the deceased husband - and father, and may defend a proceeding to compel the sale of succession property in satisfaction of the judgment therein obtained and of other debts. The doctrine so enunciated (In 1847) has been many times affirmed, cited, and acted on, and has become a rule of property which we do not feel at liberty to disturb. Succession of Story, 3 La. Ann. 502; Labranche v. Trapagnier, 4 La. Ann. 561; Dickason v. Smith, 5 La. Ann. 196; Fabre v. Hepp, 7 La. Ann. 6; Monget v. Penny, 7 La. Ann. 134; Hair & Labuzan v. McDade, 10 La. Ann. 535; State v. Heirs of Leckie, 14 La. Ann. 641; Succession of Weber, 16 La. Ann. 421; Vincent v. D’Aubigne, 19 La. Ann. 528; Bland v. Lloyd, 24 La. Ann. 604; Soye v. Price, 30 La. Ann. 95; State ex rel. Jones v. Shreveport, 33 La. Ann. 1247; Succession of Sadler v. Henderson, 35 La. Ann. 826; Succession of Lamm, 40 La. Ann. 318, 4 So. 53; Succession of Dumestre, 40 La. Ann. 571, 4 So. 328; Tutorship of Minors Scarborough, 43 La. Ann. 320, 8 So. 940; Id., 44 La. Ann. 293, 10 So. 858; Vincent v. Phillips, 47 La. Ann. 1240, 17 So. 786; Succession of Keppel, 113 La. 246, 36 So. 955; Succession of Weincke, 118 La. 207, 42 So. 776.”

As we have already indicated, the statement of Mr. Justice Monroe above quoted seems to us to be only a recognition of a limited rule compelled, in his opinion, by virtue of many prior decisions involving the particular facts and problem stated, and the statement is made by Mr. Justice Monroe for the purpose of confining the rule to the facts stated, while in the same decision the prior cases indicating a more liberal rule and application of the rule are inferentially discredited by the actual decision in the Deshotels case and the specific language of the opinion of Mr. Justice Monroe which follows the statement we have quoted. For example, Mr. Justice Monroe, after reviewing all of the authorities and after having stated the restricted rule referred to above, which he considered had been established as a rule of property by the jurisprudence, quotes article 1044 of the Revised Civil Code of Louisiana and announces his view of the law as established by the Civil Code as follows:

“Moreover, the only authority which the law confers upon tutors and tutrixes to assume the administration of successions falling to their wards is coupled with the singularly explicit restriction, to-wit:
“ ‘And it shall be given them, under the charge of their being personally responsible for their acts of administration, and giving security, as before required, though these tutors should be the father or mother of the minors.’
“Conceding that the security thus required is intended rather for the benefit of the creditors than of the minors, the fact remains that the tutrix is to administer upon her own personal responsibility, and not upon the responsibility of the minors, and, hence, that she administers because she is tutrix, and not as tutrix, just as a prominent official may attend a banquet or open the baseball season, .because he is what he is, and yet exercise no function of his office.”

In the light of the facts and actual questions involved and decided in the Deshotels. case, and the language of the decision quoted above, we are unable to agree with counsel for the tutrix that, in the absence of an objection by creditors, a tutor has the unqualified right to administer a succession and exercise all the powers and functions of an administrator, without legally qualifying as such as required by article 1044 of the Louisiana Revised Civil Code. Furthermore, the broad statements as to the right of the tutor to act in general as administrator without qualifying as such seem to be in the teeth of article 1044 of the Louisiana Code, while the theory of the status and rights of a tutor as- announced by Mr. Justice Monroe in the language we have referred to above is, in our opinion, not only sound in reason, but is in accord with the meaning and intent of the articles of the Louisiana Code dealing with this subject.

The bank in this case has -the right, therefore, to require for its. protection that, before delivering the deposit to the tutrix, as administratrix, she legally qualify as administratrix, or, in the alternative, before delivering the deposit to her, as tutrix, that she present a judgment recognizing the heir as the only heir and putting the heir in possession of the estate.

We may say, parenthetically, that it is interesting to note, in connection with the discussion of the meaning of the Deshotels case, that even if the rule stated by Mr. Justice Monroe, which is. relied on by counsel for the tutrix, is not restricted, as we interpret it, to cases where the tutor defends actions against the estate and to other conservatory measures and activities, nevertheless, the right of a tutor to act as an administrator seems to be expressly restricted by Mr. Justice Monroe, in the language quoted by counsel for the tutrix, to a situation where a succession has. fallen “exclusively to minor heirs.” In order for a bank having in its possession money or property belonging to a deceased person to know that this property, as part of the estate' of such deceased .person, has fallen “exclusively to minor heirs” (which if true would authorize the tutor to take possession and administer the succession), reliable and conclusive evidence of the fact that there are no other heirs, and that the minor heir or heirs represented by the tutor are the sole and only heirs of the deceased, would, under any circumstances, have to be given to the bank. The mere allegation of these facts is not sufficient to protect the bank, nor could such facts be conclusively determined in an ex parte proceeding, or any proceeding between the tutor and the bank so as to bind third parties. In fact, before the adoption of the act of 1921 and the earlier acts on this, subject, even an ex parte judgment recognizing the minor as the only heir of the deceased and putting her in possession in the present case would not be conclusive, although such a judgment would very probably protect the bank in making a payment against the later claim of an heir not mentioned in the judgment, on the ground that the bank had used reasonable care in ascertaining to whom the money should be paid. However, since the adoption of Act No. 64 of 1921 and the earlier acts dealing with the same subject-matter, the presentation to the hank of a certified copy of a judgment recognizing and putting heirs in possession is full protection to the bank, if it acts on the faith of the facts found by the judgment. It would seem, therefore, that, in order for the bank to determine that the tutor, had the right to receive the property and administer the estate of the deceased person, because the succession has fallen “exclusively to minor heirs,” it is entitled to and has the right to require, in order for it to be fully protected, the presentation of a judgment recognizing and putting the minor heirs in possession of the estate, and, if it does not require and obtain certified evidence that such a judgment has been rendered, it might be argued with plausibility that it acted at its own peril and subjected itself to the possibility of a later claim by another heir or heirs, or persons claiming to be the only real heirs, if, as a matter of fact, such persons existed.

The conclusion we have reached in this case could also probably be supported and justified, if it were necessary, on another and different ground, because we are inclined to the opinion that Act No. 64 of 1921, properly interpreted, contemplates and inferentially indicates that its intent was to dispense the banks with the necessity, risk, and trouble of investigating facts as to heirship, and the examination of court records and court decisions in connection with making a decision as to when and under what circumstances bank deposits belonging to deceased persons should be delivered to claimants, by affirmatively providing in substance that banks can, without investigation, or inquiry of any kind, and with perfect safety to themselves, transfer and deliver deposits upon the simple presentation and delivery to them of certified copies of documents and court records of the kind and character specifically designated and described in the act. together with the receipt of the person or persons described in the act. In short, the bank is entitled to demand the documents which the law specifically provides will be sufficient to protect it and cannot be compelled to act if anything less than or different from what the law requires for its protection is, offered as a substitution.

For the reasons assigned, the judgment appealed from making the rule absolute is reversed, and it is now ordered that there be judgment in favor of Whitney-Central Trust & Sayings Bank, defendant in rule, and against Mrs. Theodore F. Brierre, tutrix, plaintiff in rule, dismissing and discharging the rule.

WESTERFIELD, J. and MORENO, J. ad hoc, participating.


source: Caselaw Access Project

author: HIGGINS, J.

license: Public Domain

text:
    No. 13,966
    Orleans
    EVANS v. ORLEANS INDUSTRIAL LIFE, HEALTH, ACCIDENT & BURIAL BEN. INS. CO., INC.
    (March 21, 1932. Opinion and Decree.)
    Charles J. Mundy, of New Orleans, attorney for plaintiff, appellee.
    Stephen C. Hartel, of New Orleans, attorney for defendant, appellant.
   HIGGINS, J.

Viola Evans, as beneficiary, brought this action against the defendant, an industrial life insurance company, to recover the face value, i. e., $175 of a policy issued on the life of her father on October 14, 1929.

The petition alleges that the insured died at the Charity Hospital in New Orleans on February 27, 1930, and that documentary proof of .death, together with the policy and premium receipt books, were delivered to the defendant, but that it has refused to pay the claim, and that plaintiff is entitled to the sum of $175, plus 6 per cent interest because of the company’s arbitrary and illegal failure to pay the claim within sixty days from the date of proof of death, as required by the provisions of Act No. 17 of 1920.

The defendant filed an exception of prematurity on the ground that no • complete proof of death has been furnished to the exceptor in accordance with the provisions of the policy; and, in compliance with the rules of the trial court requiring that exceptions and answer be filed at the same time, answered admitting the payment of the premiums and the death of the insured at Charity Hospital in New Orleans on the date alleged, but denying, liability on the following grounds, to-wit: (1) That complete proof of death was. never furnished defendant in accordance with the provisions of the policy; (2) that the insured fraudulently misstated his age in order to obtain the policy of insurance; (3) that the deceased misstated the condition of his health, certifying that he was in sound health, whereas, at the time of the issuance of the policy, he was suffering from a disease of the liver, from which he later died, and that the policy was therefore null and void; (4) and, in the alternative, that, in the event the defendant should be held liable, its liability should be limited to $87.50, or one-half the face value of the policy, because the deceased died within six months from the date the policy issued, the company’s liability being limited to that extent under a clause in the policy.

The trial court tried the exception and the merits of the case at the same time, and rendered judgment in favor of the plaintiff for $87.50, with 6 per cent interest from February 27, 1930, and the defendant has appealed.

The defendant offered evidence tending to show that the company had furnished blanks to the plaintiff for the purpose of filing the necessary proof of death and that the plaintiff failed to fill out the blanks, and return them to the defendant; that the only proof of death was the statement by the physician of the Charity Hospital, where the insured died, giving a description of the deceased, cause of his death, and the date of his demise. The policy and premium receipt book were also surrendered at the time the physician’s statement was delivered to the defendant. Defendant refused to pay the claim, and plaintiff, through her attorney, wrote the following letter:

“New Orleans, La., December 14, 1930.
“Orleans Industrial Life, Health, Accident & Burial Benefit Insurance Company, Inc., New Orleans, La:
“Gentlemen: Viola Evans, as beneficiary of her father, James Evans, who died last spring, has placed in my hands for collec; tion, a claim against you for $140.00 the amount due under his. policy, which is in your possession, No. A-376472, and I write to ask what are you going to do about paying the same?
“An immediate reply is requested, as otherwise, I am instructed to file suit without further notice. I remain,
“Very truly yours,
“[Signed] Charles J. Mundy.”

Defendant replied as follows:

“New Orleans, La., Dec. 18, 1930.
“Mr. Charles J. Mundy, New Orleans, La.
“Dear Sir: We are in receipt of your letter of December 14th. in reference to the death claim of James Evans. We beg to advise that we have offered to settle this claim on several occasions if they could furnish us with proof of correct age.
“Awaiting your reply, we are
“Yours truly,
“Secty-Treas.”

The policy on its face makes the following provision:

“In consideration of the payment of the premium stated in the schedule below, on or before each Monday, doth hereby agree, subject to the conditions below and on page two hereof, each of which is hereby made a part of this contract and contracted by the insured and every person entitled to claim hereunder to be a part hereof, to pay upon receipt of proofs of death of -the insured made in the manner, to the extent and upon the blanks required herein, and upon surrender of this policy and premium receipt book or evidence of payments hereunder, the amount stipulated in said schedule, to the executors or administrators of the insured, unless payment be made under -the provisions of the next succeeding paragraph.”

On the back of the policy, under the caption of conditions, we find the following:

“Proofs of death under this policy shall be made upon blanks to be furnished by the Company and shall contain answers to each question propounded to the claimant, physician and other persons, and shall contain the record, evidence and verdict of the coroner’s inquest, if any be held. All the contents of such proofs of death shall be evidence of the facts herein stated in behalf of, but not against the Company.”

Prom these facts and policy provisions the defendant argues that the suit is premature, since the plaintiff failed to file proof of death upon the blanks furnished by the company. Plaintiff counters by saying that the company waived the filing of proof of death upon its blanks and limited the issue to the proof of the correct age of the deceased, and that, since the deceased, in the application for the policy, stated that he did not know the date of his birth, and the company’s agent certified that he appeared to be 42 years of age, that the question of the deceased’s age was waived by the company and was immaterial to the issues presented in the case.

There is no doubt that, under the above-quoted provisions of the policy, the company originally had the right to insist that due proof of death be furnished by the beneficiary upon blanks provided by it and ■that the plaintiff would not have had any right to file suit until such proof would have been furnished.

Did the company waive and dispense with the usual formal proof of death in its letter of December 18, 1930? Prom reading the letter one could come to no other conclusion than that the sole reason for withholding payment was {hat further proof or evidence of the deceased’s correct age was desired and required. So that, at the time the plaintiff filed her suit, she was led to believe by the defendant’s statement that the only controversy about the policy and payment under it was the correct age of her father. Nothing was said about the company exacting the formal proof of death upon its own blanks. As we read and understand the defendant’s letter, the company was satisfied with the proof of death submitted, except that it wanted further proof of the correct age of the deceased. We therefore conclude that formal proof of death on the blanks furnished by the company was waived and dispensed with by it, and that defendant is estopped from urging that technical defense under its exception of prematurity.

Passing to the defense that the deceased fraudulently misrepresented his age, the evidence shows that the agent who solicited the deceased’s application for insurance filled in the printed form of application all in his own handwriting, the signature of the deceased being by mark (X), and thus showing that the insured was illiterate and could not write. In response to question No. 4, “Date of Birth,” the insured answered, “Do not know.” In answer to question No. 5, “Age next birthday,” the deceased stated “42.” The agent who obtained the application certifies at the bottom of the application as follows.:

“I hereby certify that on the date above I saw the person to be insured and recommend the issuance of a policy upon the statements of the applicant on this date. The age of life proposed is 42 years. I consider the risk good.
“[Signed] Buford, Agent.”

Counsel for defendant points, out that the physician’s certificate of the Charity Hospital states that the deceased’s apparent age at the time of his death was 46 years, and that therefore plaintiff’s own proof shows that the deceased misrepresented his age. Defendant introduced no evidence to show the correct age of the deceased, and did not attempt to cross-examine the plaintiff to show that her father was over 42 years of age at the time the policy was issued. Certainly the physician’s statement of the apparent age of a fatally sick man is not proof of his correct age. But, even if the deceased were 46 years of age at the time the policy was issued to him, it appears to us that the correct age of the insured was immaterial, because the company had the deceased’s own statement on the application blank for insurance showing that he did not know the date of his birth. We understand this to mean that he did not know the day, the month, or the year that he was born. In reply to question No. 4 he gives ihis definite information to the company. In reply to question No. 5 he gives his age as 42 years. The answers are conflicting and irreconcilable. The officers of the company, who read the application for insurance, could arrive at no other conclusion than that the illiterate negro did not know the date of his birth, and, consequently, was only guessing his age. Furthermore, it appears to us that the company relied upon the certificate of their agent, who stated that the age of the life proposed was 42 years and that he considered him a good risk. Under the circumstances, we find that the defense of fraudulent misstatement of age is untenable.

The next defense is that the deceased made a misstatement as to the condition of his health. The evidence shows, that the policy was issued without a medical examination of the assured. The agent certifies in his certificate that he saw the person to be insured and considered him a good risk. Therefore there is no doubt that the agent had an opportunity of judging t.he apparent state of health of the deceased and, if not satisfied with it, could have exacted a medical examination. He did not exact, a medical examination, and recommended the risk as a good one, and the company accepted the opinion of its officer in issuing the policy.

The provisions of Act No. 97 of 1908, in reference to a policy issued under such circumstances, are as follows:

«* * * it shall also be presumed that the company has waived its rights to claim a forfeiture of the policy based on the ground.that the assured did not make true and full answers in the application as to the health, habits or occupation whenever it shall appear that .the agent of the company knew, or might have ascertained with reasonable diligence, the true condition of the applicant’s health. * * *”

In the case of Williams v. Unity Industrial Life Insurance Company, 14 La. App. 680, 130 So. 561, this court rejected the defense of fraud and misrepresentation as to the insured’s health, where it was shown that the agent had ample opportunity of observing the state of health of the insured, and where the policy was issued without a medical examination, invoking the provisions of the act of 1908. We conclude that this defense is likewise without merit.

Taking up the final defense, we observe that the policy was issued on October 14, 1929; that the deceased died on February 27, 1930, and therefore the policy had been in force and effect less than six months. The policy on its face provides that one-half of the benefit shall be paid in the event of death within six months after the date of the policy. Therefore only one-half the face value of the policy is due claimant.

For the reasons, assigned the judgment appealed from is affirmed.


author: JANVIER, J.

text:
    No. 13,994
    Orleans
    DIEBEL v. BERTUCCI
    (March 21, 1932. Opinion and Decree.)
    Matthew A. Grace, of New Orleans, attorney for plaintiff, appellee."
    Long & Wilkinson and Hugh M. Wilkinson, of New Orleans, attorneys for defendant, appellant.
   JANVIER, J.

Plaintiff seeks recovery for personal injuries and for the cost of repairing her automobile, which injuries and property damage were sustained in an automobile collision on St. Charles avenue, at the corner of Seventh street, during the forenoon of October 17, 1930.

The district court awarded her $513.19.

She was driving her car up the avenue, following a- course immediately adjacent to the neutral ground. Defendant’s car, driven by himself, was also going up the avenue and, as its rear bumper was about to pass the front bumper of plaintiff’s car, the two became engaged, with the result that plaintiff lost control of her vehicle and it swerved towards the neutral ground, crashing into a tree a few feet above the intersection of Seventh street.

The record shows conclusively that plaintiff was in no way at fault and, therefore, defendant’s liability depends on whether the hooking together of the bumpers resulted from his fault in turning too soon towards the path occupied by plaintiff’s car, as is contended by plaintiff, or from the fact •that a third automobile, belonging to an unknown owner, suddenly passed to his right and swerved in front of his car with the result that an emergency was created which made it apparent that 'defendant must strike either the car passing on his right or that of plaintiff.

That there was in the immediate vicinity a third automobile is conceded by all. parties.

Defendant maintains that there were three lines of traffic; in the, first of which, nearest the neutral ground, was plaintiff’s car. Defendant himself was in the second or middle line and his car had overtaken and was' slowly passing plaintiff’s. The third car, according to defendant, was passing him in the third line on his right when it suddenly swerved to the left directly in front of his car with the result that it became necessary for him to immediately adopt one of two courses, either continue in a straight line and strike the third car, or swerve slightly to the left in an attempt to “cut” between the rear of the third car, and the front of plaintiff’s- car.

Plaintiff’s contention is that defendant was attempting to pass her and to “cut” between her car, which was on his loft, and the third car which was ahead of him, and that he passed too close to her car and turned before he had entirely passed it.

“It is quite true that it has often been held that one who acts in a sudden emergency may not be responsible for the re-, suits of his act and cannot be expected to. exercise the discretion and judgment which would be exhibited by an ordinarily prudent person acting with deliberation.” Independent Oil Refining Co. v. Lueders, 17 La. App. 154, 134 So. 418. See, also, Buckner v. Powers, 12 La. App. 630, 125 So. 744; Kennedy v. Opdenweyer, 11 La. App. 532, 121 So. 636, 123 So. 906.

But that doctrine has no place in a situation in which the party who causes, -the damage has himself been to .some extent at fault in doing anything which added to the creation of the emergency. A reading of the record convinces us that defendant was not exercising all necessary caution in pass; ing on the right side of plaintiff’s car.

Without objection, a portion of the traffic ordinance (C. C. S. No. 7490) was introduced in evidence, and from this portion, which is paragraph 3, article 1, section 1, it appears that in such a situation the driver of the overtaking vehicle, desiring to pass one ahead, must pass to the left after first signaling intention to do so and must not turn into the path ahead until the roadway is entirely clear. It is very evident .that defendant did not do this, and we think that to this extent he was. at fault.

A plaintiff free from fault may recover from either one or the other of two joint tort-feasors. Therefore, although the fault of the unknown owner of the third car may have contributed to the accident, still defendant, if he did anything without the doing of which the accident would not have occurred, may be held for the entire loss.

We feel that but for the defendant’s negligence the accident would not have occurred.

While the physical injuries of plaintiff were not severe, they were painful and she will retain a slight scar on her chin. Fortunately the evidence indicates that it will be scarcely noticeable. The damage to the ear was conclusively proven and we see no reason to disturb the amount of the award.

The judgment appealed from is affirmed, at the cost of appellant.


text:
    No. 13,981
    Orleans
    MOBLEY, SUPERINTENDENT OF BANKS, v. HIBERNIA BANK & TRUST CO.
    (March 7, 1932. Opinion, and Decree.)
    Arthur J. O’Keefe, Jr., Leon Davidson and Walter W. Wright, of New Orleans, attorneys for plaintiff, appellant.
    Quintero & Ritter, Henry & Cooper and A. M. Suthon, of New Orleans, attorneys for defendant, appellee.
   HIGGINS, J.

A. B. Mobley, as superintendent of banks of the state of Georgia, brings this action against the Hibernia Bank & Trust Company, as tutor of the minor William W. Wilkins, Jr., to recover the sum of $1,000 and for recognition and maintenance of an assessment he levied against the minor as the owner of certain bank stock, and the execution he issued thereunder.

The petition alleges that the minor’s mother was the owner of ten shares of the capital stock of the Citizens’ Bank of Waynesboro, Georgia, having a par value of $100 each; that the minor, upon the death of his mother, was recognized as her sole and only heir by the civil district court of New Orleans, and thereby became the owner of the stock; that the Citizens’ Bank of Waynesboro, Georgia, is insolvent, and that plaintiff, as superintendent of banks of the state of Georgia, has full charge and control of the liquidation of its affairs; that, in accordance with the laws of the state of Georgia, particularly the Banking Statute of the state, approved August 16, 1919 (Laws Ga. 1919, p. 135), and the amendments thereof approved August 14, 1920 (Laws Ga. 1920, p. 102), and August 26, 1925 (Laws Ga. 1925, p. 119), plaintiff, as superintendent of banks of the state of Georgia, levied a 100 per cent, assessment of the par value of the stock for the benefit of the depositors and issued execution against the Hibernia Bank & Trust Company, as tutor of the minor, for the sum of $1,000, with 7 per cent interest from February 1, 1930; and that copies of the notice of assessment and the execution were annexed to and made a part of the petition.

Defendant excepted to plaintiff’s petition on the ground “that the plaintiff herein is without any right or authority or capacity to stand in judgment as plaintiff herein or to prosecute this suit” because he is without extraterritorial power.

There was judgment in favor of defendant maintaining the exception and dismissing the suit and plaintiff appealed.

At the outset we note that plaintiff claims the right to bring this suit solely and only by virtue of the office which he holds as superintendent of banks of the state of Georgia under its banking laws.

Now it is well settled that executors, administrators and receivers apjpointed by courts of other states, without bringing ancillary proceedings in the courts of this state, have no power of administration in this state and cannot maintain an action or stand in judgment in our state courts. Henderson’s Heirs v. Rost, 15 La. Ann. 405; Burbank v. Payne, 17 La. Ann. 16, 87 Am. Dec. 513; Mason, Administrator, v. Executors of Haller Nutt, 19 La. Ann. 41; Agee v. Brent, 132 La. 821, 61 So. 837; Hale v. Allinson, 188 U. S. 56, 23 S. Ct. 244, 47 L. Ed. 380; Sterrett v. Second National Bank, 248 U. S. 73, 39 S. Ct. 27, 63 L. Ed. 135; McCullough v. Scott, 182 N. C. 865, 109 S. E. 789; Finney v. Guy, 189 U. S. 335, 23 S. Ct. 558, 47 L. Ed. 839.

But it is contended by plaintiff that the superintendent of banks of the state of Georgia is more than an ordinary administrator, executor, or receiver who are merely officers of the court without title to the assets which they administer, because he is a quasi assignee for the benefit of the depositors of the insolvent hank and has title to the funds as such.

The general law on the subject is stated in 46 C. J., sec. 288, page 1032, verbo “Officers,” as follows:

“Extraterritorial Power. When the law confers upon a person powers that he, as a natural person, does not possess, that power cannot accompany his (person beyond the bounds of the sovereignty which has conferred the power, and although the Legislature may require certain official acts to be done beyond the state’s limits, such acts are done by its express permission and the power cannot be implied.” See, also, R. C. L., volume 11, page 432.

In the case of Moore v. Mitchell, 281 U. S. 23, 50 S. Ct. 175, 74 L. Ed. 673, the Supreme Court of the United States in effect held that the treasurer of Grant county, Indiana, had no authority or right to bring a suit in the state court of New York, the court saying:

“Petitioner claims only by virtue of his office. Indiana is powerless to give any force or effect beyond her own limits to the act of 1927 purporting to authorize this suit or to the other statutes empowering and prescribing the duties of its officers in respect of the levy and collection of taxes. And, as Indiana laws are the sole source of petitioner’s authority, it follows that he had none in New York. Mechem, Public Offices and Officers, sec. 508; McCullough v. Scott, 182 N. C. 865, 873, 109 S. E. 789. He is the mere arm of the state for the collection of taxes for some of its subdivisions, and has no better standing to bring guits in. courts outside Indiana than have executors, administrators, or chancery receivers without title, appointed under the laws and by the courts of that state. It is well understood that they are without authority, in their official capacity, to sue as of right in the federal courts in other states. Prom the earliest time, federal courts in one state have declined to take jurisdiction of .suits by executors and administrators appointed in another state.”

In Van Tuyl v. Carpenter, 135 Tenn. 629, 188 S. W. 234, 237, the superintendent of banks of the state of New York, under a statute similar to the one involved in the instant case, sought to enforce an assessment on a Tennessee stockholder. The court, in denying him the right to maintain the suit in his capacity as superintendent of banks, in the absence of special legislative authority to do so, said:

“The right of action, if any, is not in the bank, but in the superintendent of banks. His right is rooted in the statute, but that statute gives him no right to sue in a foreign state. Such vestiture has been held, by the highest authority, an essential prerequisite."

See, also, Great Western Mining & Manufacturing Co. v. Harris, 198 U. S. 577, 25 S. Ct. 770, 49 L. Ed. 1163.

Counsel for plaintiff has riot referred us to any case which holds that the plaintiff, as superintendent of banks of the state of Georgia, is a quasi assignee in whom title to the assets of the insolvent bank vests for the benefit of the depositors. In the light of the foregoing authorities it is our opinion that plaintiff is not the quasi assignee of the assets of the bank' in question any more than an administrator, executor or receiver would be considered as the quasi assignee of the assets of the estate which they represent and administer.

Plaintiff also failed to introduce in evidence any statute of the state of Georgia which vests title to the assets of a defunct bank in him or gives him special authority to sue and stand in judgment in the courts of a foreign state. In fact, the banking laws of Georgia have not been filed or offered in evidence or even annexed to the petition of plaintiff. Under the circumstances, there is nothing before the court to show that the Georgia superintendent of banks has authority to bring this suit, and since there is no authority in any state officer in Louisiana to bring a suit of this nature (Act No. 250 of 1928, sec. 19) against a stockholder of our state banks, it must be presumed that such authority has not been granted to plaintiff under the laws of the state of Georgia.

In the recent case of Taylor, Bank Examiner, v. Terzia, 171 La. 1046, 132 So. 781, 783, our Supreme Court said:

"Counsel for the plaintiff cite two decisions of the Supreme Court of Arkansas, which they contend support plaintiff's position that the action of state bank commissioner in levying the assessment on the defendant was conclusive both as to the necessity for and the amount of the call. These decisions are Davis, Bank Commissioner, v. Moore, 130 Ark. 128, 197 S. W295, and Aber v. Maxwell, State Bank Commissioner, 140 Ark. 203, 215 S. W. 389. But these decisions were not offered in evidence in the court below, and we cannot regard them as evidence here. The interpretation as well as the language of the laws of a sister state must be proved as a fact in a case; otherwise, we cannot consider such interpretation."

Defendant’s exception is levied against plaintiff’s right, authority and capacity to maintain this suit and stand in judgment; therefore, unlike the exception of no cause of action, the allegations of the petition are not to he considered as true; consequently, it was incumbent upon plaintiff to introduce in evidence the law of Georgia urpon which he relied. Having failed to do so, the decisions of the Georgia and Alabama Supreme Courts cannot be regarded as evidence by this court.

But, even if the decisions of the Georgia Supreme Court, to-wit: Coffin Bros. & Co. v. Bennett, 277 U. S. 29, 48 S. Ct. 422, 72 L. Ed. 768; Sessions v. Bennett, 155 Ga. 193, 116 S. E. 300; Bennett v. Green, 156 Ga. 572, 119 S. E. 620; Doster v. Mobley, 38 Ga. App. 508, 144 S. E. 385; Bennett v. American Bank & Trust Co., 162 Ga. 718, 134 S. E. 781; Crawford v. Swicord, 147 Ga. 552, 94 S. E. 1025, were properly before us, they would have no bearing upon the present case because the question as to the extraterritorial powers of the superintendent of banks of the state of Georgia was not raised there, all of those suits having been brought against parties living in the state of Georgia.

Also, conceding that the Alabama case of Mobley, Superintendent of Banks of Georgia, v. Smith (Ala. Sup.) 138 So. 551, mainly relied upon by (plaintiff, was properly before us, it does not appear that the point raised here was considered there. Furthermore, the court found that tfie cause of action which the superintendent of banks was asserting was one that he had a right to bring under the express terms of the statute of Alabama, Code 1923, sec. 5681.

For the reasons assigned the judgment appealed from is affirmed.


text:
    No. 14,095
    Orleans
    BYWATER v. ENDERLE
    (January 25, 1932. Opinion and Decree.)
    (February 15, 1932. Rehearing Refused.)

      Raymond Gauche, of New Orleans, attorney for plaintiff, appellee.
    John H. Hammel, Jr., of New Orleans, attorney for defendant, appellant.
   JANVIER, J.

Appellee, contending that the amount in dispute herein is more than $2,000, asks that we dismiss the appeal, or, in the alternative, transfer it to the Supreme Court.

Plaintiff, Bywater, claims to be the owner of certain real estate described in the petition. He alleges that defendant is in possession of one-half of the said property without any title thereto and without any right to remain thereon, and that, without any good or lawful reason, said defendant refuses to deliver possession of the property to plaintiff.

Enderle, defendant, admits that he is in possession of the said one-half of the property, but asserts that he is the real owner thereof, and he attaches to his answer interrogatories on facts and articles and alleges that, if those interrogatories be truthfully answered, it will appear that he is in fact the owner of one-half of the said realty.

The district court rendered judgment in favor of plaintiff, Bywater, condemning defendant, Enderle, to deliver possession of said property. Enderle has appealed.

In support of the motion to dismiss the appeal, or to transfer it to the Supreme Court, counsel for appellee argues that there is in dispute the title to an undivided one-half of the property and that the undivided one-half is worth more than $2,000.

Appellant maintains that it is not the title which is here in dispute, but merely the right of occupancy, and that this right of occupancy is worth less than $2,000.

A reading of the petition and the answer leads to the conviction that it is the title itself which is in controversy and not merely the right of occupancy.

Plaintiff, in his petition, makes several allegations as to the title. In one paragraph he states “Petitioner is the true and lawful owner.” In another he avers “That Charles Enderle (defendant) is in the actual physical possession * * * without any title whatsoever thereto.”

Defendant’s answer contains the following: “That defendant is in truth and in fact the joint owner.”

We know of no language which could more clearly put at issue the title itself.

In actions recuperdae possessionis, the fact of possession — the right of occupancy —and nothing else is at issue, but in petitory actions the title itself is in dispute and the amount involved is not merely the value of the right of occupancy. In Meeker’s Assignees v. Williamson et al. Syndics, 4 Martin (O. S.) (La.) 626, the Supreme Court said:

“The plaintiff, proving that he was in possession, and ousted by violence, fraud or artifice, becomes entitled to recover possession at once: the other party, not being even permitted to say that the plaintiff has no title to the thing. But when the plaintiff puts at issue his right of possessing, as where he alleges that he is the owner, and presents his title, as the evidence of his possession, the simple fact of possessing is no longer the only question.”

In Haas v. Irion et al., 125 La. 1034, 52 So. 149, 150, is found a case in which there was dispute as to the nature of the action which was under consideration. The court said:

“The petition alleges that the plaintiff is owner of the land in the possession of the defendants, and bases all of his rights to relief on his title. The claim of ownership marks the action as petitory. Code Prac. arts. 43, 44.”

We conclude that this is a petitory action and that, in determining what amount is in dispute, we must consider the value of the property itself and not the value of the right of occupancy.

While we find in the pleadings no averment that the one-half interest, which is here involved, exceeds $2,000 in value, counsel for both parties apparently concede that the whole property is worth considerably more than $4,000 and the purchase price is shown to have been $.6,250. We feel, therefore, that the value of the one-half interest considerably exceeds our maximum jurisdictional limit.

Since we are authorized by Act No. 19 of 1912 to transfer such an appeal to the Supreme Court we have decided to follow that course.

It is therefore ordered, adjudged, and decreed that this appeal be and it is transferred to the Supreme Court of Louisiana to be disposed of according to law, the transfer to be made within thirty days after this judgment becomes final, and, if not so made, then the appeal to be deemed dismissed; defendant and appellant to pay the costs of appeal in this court, the remaining costs to await final determination of the matter.


text:
    No. 14,005
    Orleans
    JOFFRION-WOODS, INC., v. HIBERNIA BANK & TRUST CO.
    (January 11, 1932. Opinion and Decree.)
    (February 15, 1932. Rehearing Refused.)
    (March 30, 1932. Writs of Certiorari and Review Refused by Supreme Court.)

      Martin, Woods & Woods, of Lutcher, and Chas. T. Wortham, of Donaldsonville, attorneys for plaintiff, appellant.
    Rosen, Hammer, Wolff & Farrar, of New Orleans, attorneys for defendant, appellee.
   JANVIER, J.

This matter is submitted on an agreed statement of acts, and, since those facts are somewhat involved, we have concluded to set forth in full the statement as prepared by counsel:

“On January 26, 1927, plaintiff was the holder for value of a check for the sum of $1,740.32 drawn by L. B. Babin, of White Castle, La., on the Bank of White Castle, said check being payable to plaintiff’s order.
“After endorsing said check, plaintiff deposited same with the St. James Bank & Trust Co., Lutcher, La., with the full understanding that said bank would forward same for collection in the usual and customary manner.
“The St. James Bank & Trust Co., as was its custom with out-of-town checks, after endorsing said check, forwarded same-to the defendant bank for collection for account of the St. James Bank & Trust Co.
“The defendant bank acknowledged receipt of said check on the printed form hereto annexed and marked ‘Exhibit A,’ filling in one of the blank lines with the date or number of the said check and the amount thereof.
“On January 27, 1927, the defendant bank sent the said check, with other checks, constituting a cash letter, to the Bank of White Castle for collection and payment.
“The said check reached the Bank of White Castle on January 29, 1927. The drawer, L. B. Babin, had sufficient funds to his credit in the-said bank, and the Bank of White Castle immediately stamped the said check ‘paid,’ charged the amount to the account of said Babin, and placed the said check among the cancelled checks to be returned to said Babin.
“The Bank of White Castle then issued an exchange or draft, No. 8244, dated January 29, 1927, drawn on the defendant bank for the amount of $2,768.97, in payment of said cash letter, which amount included the payment of said Babin’s check for $1,740.32, and other checks.
“The said draft for $2,768.97 reached the defendant bank on January 31, 1927.
“At the opening of business on January 31, 1927, the Bank of White Castle had on deposit with defendant bank in a checking account the sum of $995.95. At or about the same time that defendant bank received from the Bank of White Castle the said draft for $2,768.97, the defendant bank also received from the Bank of White Castle for collection various checks aggregating $3,475.46, all of which were received for collection on exactly the same terms and conditions as the check received by defendant bank from the St. James Bank & Trust Co. as set out in ‘Exhibit A’ hereto annexed.
“Said checks so received consisted of one drawn on a bank in Cleveland, Ohio, for $2.444.67, and other checks aggregating $1,-030.79.
“The defendant bank entered on its books a credit to the aforesaid checking account of the Bank of White Castle for the full amount of said checks, namely, $3,475.46, making the total credit to the Bank of White Castle in said account the sum of $4,471.41.
“The aforesaid check on Cleveland, Ohio, for $2,444.67 was, on January 31, 1927, forwarded to Cleveland, Ohio, for payment by mail, in the usual course of business, and the defendant bank had no way of knowing, prior to February 2, 1927, at the earliest, whether or not said check would be paid. Without including the amount of this check there was to the credit of the Bank of White Castle on the books of the defendant bank only the sum of $2,026.74.
“Defendant bank dishonored the said draft, and remitted no funds to the St. James Bank & Trust Co. in payment of the check in question.
“On being notified by the defendant bank that the check had failed of collection, the St. James Bank & Trust Co. charged the amount of said check to plaintiff’s deposit account with it.
“The said check for $2,444.67 on Cleveland, Ohio, was paid on or about February 3, 1927.
“The State Bank Commissioner of Louisiana closed the Bank of White Castle in the forenoon of February 1, 1927, and said bank was not thereafter reopened.
“The St. James Bank & Trust Co. in forwarding said check for collection, as aforesaid, acted as the agent for plaintiff.”

In its petition, plaintiff charges “that at the time the said draft was drawn by the Bank of White Castle, and received by the Hibernia Bank & Trust Company, the Bank of White Castle had to its credit on . the books of the Hibernia Bank & Trust Company, as a deposit account subject to check or -draft, the sum of Four Thousand, Four Hundred Seventy-three and 20/100 ($4,473.20) Dollars.”

It appears, however, from the statement of facts, that, when that draft was received by Hibernia Bank & Trust Company, there was to the credit of the Bank of White Castle not $4,473.20, as alleged in the petition, but only $995.90, and that thus Hibernia Bank & Trust Company, as drawee of the said draft, found itself under the necessity of deciding whether it would permit the Bank of White Castle to overdraw its account, or whether it would dishonor the said draft within twenty-four hours of its receipt, since, under section 136 of Act No. 64 of 1904 (the Negotiable Instrument Law), “the drawee is allowed twenty-four hours after presentment in which -to decide whether or not he will accept the bill.”

Defendant bank (Hibernia), being unwilling to permit the overdraft, followed the other course and dishonored the draft.

Since defendant, Hibernia Bank & Trust Company, had come into possession of the draft as agent for plaintiff and others, and, since it was payee as well as drawee, it did not return the draft to Bank of White Castle, but retained it, and in doing so it followed the proper course, because the draft did not belong to the Bank of White Castle, but belonged to plaintiff and others, who were interested in the amount which the Bank of White Castle was attempting to remit to Hibernia Bank . & Trust Company.

Thereafter, it is true that the other checks which had been sent by the Bank of White Castle for collection were actually collected, and, as a result of said collections, the account of the Bank of White Castle in Hibernia Bank & Trust Company showed a credit balance of $4,473.20; but before that time the Bank of White Castle had been closed by the state bank commissioner of Louisiana, who took over its affairs.

When Hibernia Bank & Trust Company accepted those checks, it took them merely for collection, and the amounts represented by the checks did not thereby become immediately available to Bank of White Castle.

Even had the cheeks been received “for deposit,” instead of “for collection,” Hibernia Bank’s receipt of them would not have been unconditional. Joffrion-Woods, Inc., v. St. James Bank & Trust Co., 171 La. 172, 129 So. 808.

As. has been said by the United States Circuit Court of Appeals for the Fifth Circuit in Pascagoula National Bank v. Federal Reserve Bank, 11 F. (2d) 866, 867:

“As above indicated, the duty of a bank, whether imposed by statute or by agreement, to receive on deposit checks on other banks, does not necessarily imply that the amount to be credited for a check becomes, immediately upon the bank’s receipt of it, part of the depositor’s- balance, subject to be checked against and withdrawn.”

It is argued that, since defendant, when it dishonored the said draft, did not return it to the Bank of White Castle, its action in retaining it constituted acceptance thereof. But, as we have stated, defendant had no right to return the said draft for the reason that a drawee who refuses to accept a draft must return it, not to the drawer, but to the owner, and, as we have said, the Bank of White Castle was not the owner, but was merely the drawer, and the draft was therefore properly retained by Hibernia Bank & Trust Company as the agent for plaintiff and, others interested therein.

Had the state bank commissioner of Louisiana not closed the Bank of White Castle and taken charge of its affairs, the Hibernia Bank, as payee, would no doubt have presented the said draft again, and the draft would have been accepted and honored; but, before that could be done, the funds and assets of the Bank of White Castle were, by operation of law, impounded and subjected to the general pledge of creditors, and the Hibernia Bank & Trust Company, as depositary, having in its. possession funds of that impounded estate, no longer had the right to honor drafts drawn against those funds.

It may at first be difficult to analyze the situation because of the confusion which results from the fact that defendant, Hibernia Bank & Trust Company, was both drawee and payee in the draft for $2,-768.97, and because of the fact that, included in that draft, were amounts due to others than plaintiff; but if in discussing and considering the legal situation we substitute another bank for the Hibernia Bank & Trust Company in its capacity as payee, and if we consider only the amount due the plaintiff, the situation is easily understandable, and admits of no other legal conclusion.

For instance, let us assume that JoffrionWoods, Inc., had handed to Canal Bank for collection a check for $1,740.32 drawn by Babin on the Bank of White Castle, and Canal Bank 'had presented the said check to Bank of White Castle and Bank of White Castle had, in remitting to Canal Bank for the proceeds of said check, sent a draft drawn on Hibernia Bank payable to Canal Bank. Canal Bank would have presented the draft to Hibernia Bank and that bank, since it did not have to the credit of the Bank of White Castle sufficient funds to honor the draft, would have dishonored it and would have returned it to Canal Bank, as payee. Later Canal Bank could have re-presented the draft, and, had funds then been available, payment would have been made; but if, in the meantime, Bank of White Castle had been closed and its affairs taken over by the state bank commissioner, the Hibernia Bank, as depositary, having in its possession funds of the Bank of White Castle, would have been forced to refuse payment because of the fact that, by the action of the state bank commissioner, all funds of the closed bank were impounded.

Counsel for plaintiff argue that, when the Bank of White Castle sent to Hibernia Bank checks for collection to be deposited to its general credit, it thereby appropriated, pro tanto, to the payment of the draft in . question, so much of the proceeds of those checks as might be necessary to pay the draft, and that, thus the proceeds of those checks, when ultimately received, were subject to an assignment to plaintiff and others who were interested in that draft.

The issuance by the Bank of White Cas.tle of the draft or check did not, of itself, operate as an assignment of any part of its funds, because that draft or check was never accepted by the drawee. It is provided in section 189 of Act No. 84 of 1904 (Negotiable Instrument Law) that “a check of itself does not operate as. an assignment of any part of the funds to the credit of the drawer with the bank, * * *” and we find that, in discussing the question of whether or not the issuance of a check constitutes an assignment, the Supreme Court of Louisiana, in M. Feitel House Wrecking Co. v. Citizens’ Bank & Trust Co., 159 La. 755, 106 So. 292, 294, said:

“* * * the law in this state is that, until a check- has been accepted or certified by the drawee bank, it does not operate as an assignment of any part of the funds of the drawer in the bank, although the bank may have been notified of the drawing of the check, and hence, unless the check has been accepted or certified by the bank, there is no privity between the bank and the holder, and therefore the holder has no cause of action against the bank.”

It follows that, although the Hibernia Bank & Trust Company knew that the draft or check was in existence and knew that, as payee, it would again present it to itself as drawee, nevertheless, since the check was not good when presented the first time, it was. neither paid nor accepted by the drawee, and therefore no assignment took place. Later, when the funds were available, they had all been subjected to the rights of. the state bank commissioner.

Had the Bank of White Castle, instead of sending to the Hibernia Bank the draft for $2,768.97 and the other checks to be collected and placed to its general credit, merely sent the checks, with instructions to the Hibernia Bank to collect them and to use the proceeds to pay plaintiff and the others interested, then it might well be argued that those checks were thereby appropriated, or assigned to plaintiff and others similarly situated; hut that is not what was done. The draft which the Bank of White Castle sent to Hibernia Bank was in no way connected as an associated transaction with the checks sent for collection.

Let us assume that A gives to B a check for $1,000, drawn on his account in the C bank, and that on that day A has in the C bank only $100, but deposits for collection checks payable to him totaling $900. Let us assume that B' presents his check before the other checks have been collected, and that payment is refused him. Let us assume -that A then goes into bankruptcy. Can it be argued that A has appropriated to the payment of B the checks which he gave to C bank for collection? We answer, most assuredly, “No.” There has been no appropriation, no assignment, no “ear-marking” of funds, and other creditors have a right to share equally with B in that fund which forms a part of the impounded estate of A. Similarly, here, Bank of White Castle has not appropriated or assigned to the payment of plaintiff any portion of the checks sent to Hibernia Bank for collection. It has merely sent a draft in payment of a debt; the draft being drawn against its general account and it, in an unassociated transaction, has sent on other funds to augment its general account. Non constat, there may be a hundred other creditors of Bank of White Castle holding similar drafts, and the payment of this one draft would create an illegal and unfair preference in favor of those interested in this draft and against all other creditors similarly situated. It cannot be assumed that there are no other creditors; nor can we undertake to rank their claims. The failure of the Bank of White Castle deprived that institution and its officers, of the right to manage its affairs. It inoculated with the germ of death checks and drafts issued and outstanding, and it deprived those having the possession of assets belonging to it of the right to do anything with those assets, except hold them subject to the orders of the state bank commissioner.

What matters it that in its answer the Hibernia Bank & Trus| Company did not in words state that it could turn over the fund only to the bank commissioner? The charge of the plaintiff is that, on January 1, 1927, when the draft for $2,768.97 was presented to Hibernia Bank & Trust Company, the Bank of White Castle “had to its credit on the books of the Hibernia Bank & Trust Company, as a deposit account subject to check or draft, the sum of Pour Thousand, Pour Hundred, Seventy-three and 20/100 ($4,473.20) Dollars.”

The proof is that that bank did not have this amount to its. credit. Thus plaintiff’s case fails. Plaintiff did not allege that the Hibernia Bank later collected the other checks and that the credit was then sufficient to pay the draft. If it had so alleged, defendant could have answered that later, when the amounts were collected, the account had, by operation of law, been impounded. In fact, the admitted statement of facts does show that, when the credit was received the state bank commissioner had already taken charge.

The remaining question is: Can the Hibernia Bank refuse to remit to JoffrionWoods, Inc., its share of what would have been the proceeds of the said draft, had it been paid, and can it base its refusal on the fact that the funds on deposit with it, which funds, would have belonged to the Bank of White Castle had that bank not been closed, must be taken over by the state bank commissioner?

Plaintiff’s counsel contends that in such case the depositary 'may not ehampion the rights of the state bank commissioner, and they assert in their argument that the said commissioner asserts no claim to the fund. In the first place, the record fails to show that the said bank commissioner asserts no claim to the fund and, in the absence of any affirmative showing that he abandons any claim thereto, we may not assume that he has no interest therein; particularly since the pertinent statute, Act No. 300 of 1910, plainly makes it his. duty to take charge of any such asset as is here shown to exist.

Of course, no such suggestion is made here; but if a bank commissioner by inaction, may give to one ordinary creditor the opportunity to receive payment in full, such inaction would be plainly prejudicial to the rights of all other ordinary creditors. The statute makes it the duty of the commissioner to collect all such assets and, if it is his duty to collect, it is the duty of the holders of all such assets to pay to him and to no one else. It is thus the duty of Hibernia Bank & Trust Company to pay such fund to the bank commissioner, and it may not pay the fund, or any part thereof, to any other claimant.

The judgment appealed from is affirmed.

WESTERPIELD, J. I respectfully dissent.


author: WESTERFIELD, J.

text:
    No. 13,833
    Orleans
    MEHLE v. McLEAN
    (February 15, 1932. Opinion and Decree.)
    (March 21, 1932. Rehearing Refused.)
    (April 25, 1932. Writs of Certiorari and Review Refused by Supreme Court.)
    Harold Moise, of New Orleans, attorney for plaintiff, appellant.
    Jos. M. Jones, of New Orleans, attorney for defendant, appellee.
   WESTERFIELD, J.

This is a suit for $105.30 on a dishonored check. The defense is that the check was not supported by valuable consideration, being the result of a transaction contra bonos mores.

There was judgment below in favor of defendant, and plaintiff has appealed.

The check sued on was issued in payment of a bet on a race horse. David A. McLean, who issued the check and whose legal representative is made defendant in this suit, McLean having died shortly after issuing the check, was a member of the veterinary firm of McLean & Karstendieck. Plaintiff placed a bet with McLean, through an employee, on a horse by the name of Sidney, which was entered in a race scheduled to be run on some eastern track. Sidney won the race, and McLean promptly drew his check in payment of the wager and sent it to Mr. Mehle, the plaintiff, who indorsed it over to a Mrs. C. B. Crisler in settlement of an obligation. When Mrs. Crisler deposited the cheek, it was returned with the notation, “Party deceased.” Mehle thereupon took up the check and made demand upon Mrs. David A. McLean, the widow of the maker of the check, individually and as administratrix of his succession. Mrs. McLean declined to pay the check, and this suit resulted.

Article 2983 of the Civil Code reads as. follows:

“The law grants no action for the payment of what has been won at gaming or by a bet, except for games tending to promote skill in the use of arms, such as the exercise of the gun and foot, horse and chariot racing.
“And as to such games, the judge may reject the demand, when the sum appears to him excessive.”

This article is a compound of articles 1965 and 1966 of the Code Napoleon. Similar provisions are found in the Code of Justinian and the writings of Paulus.

“ ‘Praeter quam si quis certet’ followed by Paulus’ commentary upon the wagers permitted, ‘quad virtutis causa fiat,’ indicates that the senatus consultum forbade betting except with a contestant. Three hundred years after Paulus’ time, Justinian dropped out of the law spear and javelin contests, inserted horsemanship and legalized bets made by anyone on the result. After reciting the antiquity of gambling and the sin, poverty and waste of time resulting therefrom, Justinian forbids all gaming in private houses and in public buildings and places, and even that any person shall be a looker-on at such games. He provides that no action shall lie to recover a wager,, and differing from our law, that thg loser and his heirs shall have the right, barred only by the prescription of fifty years, to recover the money paid to the winner. From these provisions, however, he-makes five exceptions: jumping, pole-vaulting, foot-racing, a sort of gladiatorial contest called perichyte and horsemanship, but limits to one solidus the amount recoverable from the latter, ‘ut casum gravem non sustineat’; and he makes it a condition to any recovery that the gains have been ‘sine dolo atque callidis machinationibus’ or, in the language of the track, ‘you mustn’t fix the jockey or dose the horse.’
“The Roman law makes illegal all wager contracts, except those specifically named. Our law and the French law declares that the exceptions enumerated are illustrative only, nonetheless the compilers of the Code Napoleon have preserved the meaning and spirit of the Senatus consultum: ‘Les jeux propres. á exercer au fait des armes * * * et * * * qui tiennent á 1’addressee et á 1’exercise du corps.’ The language of our Code, ‘games tending to promote skill in the use of arms,’ expresses only a part of Paulus’ ‘virtutis causa.’
“Article 2983 properly modernized ‘certet hasta vel pilo jaeiendo’ into ‘the exercise of the gun,’ but the substitution by our Code and by the Code Napoleon of the special terms ‘horse and chariot racing’ for the general term ‘hippice’ (horsemanship) is inaccurate, and not an improvement.
“Justinian set a definite limit to the sum recoverable under a wager contract; our Code and the Code Napoleon while naming no sum as a limit, have preserved the spirit of Justinian’s decree, ‘ut cas.um -gravem non sustineat,’ by providing, ‘and as to such games, the judge may reject the demand when the sum appears to him excessive.’ ” Robert H. Marr, Tulane Law Review, June, 1930.

Our Constitution provides that ‘‘gambling is a vice and the Legislature shall pass laws to suppress it.” This provision is first found in the Constitution of 1879 (article 172) and repeated in the Constitution of 1898 (article 188) and 1921 (article 19, sec. 8).

It is contended that the effect of this provision of the Constitution is to repeal article 2983 to the extent that any gambling contract is excepted because it is a pronouncement of the public policy of the state. No enabling legislation is necessary, it is said, because all laws inconsistent with the declared public policy of the state are void and contracts with inconsistent objects unenforceable because contra bonos mores.

In Shreveport v. Maloney, 107 La. 193, 31 So. 702, decided in 1901, long subsequent to the adoption of the constitutional article a city ordinance by the city of Shreveport designed to suppress pool rooms was held invalid because a municipality cannot punish an offense not denounced as such by the Legislature. Marksville v. Worthy, 123 La. 432, 49 So. 11. The court there said:

“There is no law on the statute books which makes betting on horse races as carried on by the turf exchanges a public wrong. It cannot be held to come within the terms of the article cited above for the very plain reason that the article is not operative proprio vigore. The legislature has not deemed proper to carry out its mandate. Until it takes action, the article cited must remain without effect. To the legislature alone the power is delegated of legislating against gambling. * * *
“In another case, to which we are referred by plaintiff, the evidence satisfied the court that the act which the municipality sought to suppress came within the definition of a lottery, and was, for that definite reason, repugnant to the policy of the state; and, besides, the municipality was. seeking; to enforce a statute of the state adopted to prohibit the particular game denounced as gambling. New Orleans v. Collins, 52 La. Ann. 976, 27 So. 532.
“We have no hesitation in saying that the law denouncing lotteries (article 178 of the constitution) is in force, for it is not limited as is article 188 of the constitution against gambling. It (article 178, Const. 1898) announces the policy of the state as., being against lotteries, and makes it an act repugnant to the peace and good order.
“The business of the defendants has never been considered a lottery, and, as conducted, it is not a lottery. The basis of the business of turf exchanges is the running of horses and the betting on the result. To an extent, at least, these acts have received legal sanction, as expressed in one of the articles, of the Civil Code (article 2983). The right to recover a bet on the result of a horse race has been recognized.”

In Bain v. Grillot, 6 La. App. 825 (in which case a writ of review was denied by the Supreme Court), following the Maloney case, we held:

“A bet on a horse race has been recognized as a lawful obligation in this state for more than a century. [Citing authorities.]” :

Under Act No. 57 of 1908 and Act No. 127 of 1920 the operation of a betting book or a French mutual pooling device is denounced and penalty provided. A feeble suggestion is made that McLean operated a betting book, but it has completely failed of establishment in the record, so we do not have to consider this feature of the law.

A contention is also made that under the article of the Code only such bets are permitted as tend to promote “skill in the use of arms, such as the exercise of the gun and foot, horse and chariot racing.” This, contention could hardly have been made if the article of the Code had been carefully read, because it is not required that the bet should promote skill in horse and chariot racing, but, in denying a right of action for gambling transactions in general, an exception is made in favor of such bets as are placed upon the games tending to promote skill, etc. In other words, it is not the bet but the game. Betting ia allowed on horse races because the law favors horse racing and not because it favors betting.

In the Maloney case, supra, we find the following:

“The contention is that the betting made under the conditions here has no tendency to promote and develop fine horses, as the betting is made on races run at distant places in the country, where no race or horse is ever seen by the parties who put up their bets. If horse racing, which in itself has nothing offensive to public morals, as plainly indicated by the cited article, supra, is made the means to carry on betting, which is nothing but gambling, it should receive the attention of the legislature, as directed by article 188 of the constitution.”

In the Bains case, supra, the wager was made within the inclosure of a race track upon a horse running at that track and in earlier cases by the owners on the horses themselves. Grayson v. Whatley, 15 La. Ann. 525; St. Ceran v. Sherman, 18 La. Ann. 520; Vititoe v. Shea, 161 La. 984, 987, 109 So. 785; Moore v. Johnston, 8 La. Ann. 488, but we can discover no difference in principle. As long as article 2983 is in the Code, bets may be made and collected upon horse races, no matter where the race is run, or who owns the horse, the constitutional provision notwithstanding.

For the reasons assigned, the judgment appealed from is reversed, and it is now ordered that there be judgment in favor of plaintiff, Allen Mehle, and against defendant, Mrs. David A. McLean, in the full sum of $105.30, with legal interest from the 19th day of August, 1929, until paid, and for all costs.


text:
    No. 13,856
    Orleans
    ANDERSON v. THOMAS
    (November 3, 1931. Opinion and Decree.)
    (November 30, 1931. Rehearing Refused.)
    (January 4, 1932. Writs of Certiorari Granted by Supreme Court.)
    (March 30, 1932. Opinion and Decree of Supreme Court.)
    Charles J. Mundy, of New Orleans, attorney for plaintiff, appellee.
    E. M. Stafford and Daniel Wendling, of New Orleans, attorneys for defendant, appellant.
   WESTERFIELD, J.

Plaintiff brings this suit for recognition as owner of an undivided one-third interest in certain property described in his petition. Eleanor Anderson Thomas, the record owner of the property is made defendant.

There was judgment below in plaintiff’s favor as prayed for and defendant has appealed.

Plaintiff claims to be the only son of Louis Anderson, Jr., one of five legitimate children born of the union of Louis Anderson, Sr., and Henrietta Anderson, who are alleged to have been married on or about the 22nd day of September, 1866. He alleges that defendant’s author in title, Racheal Anderson, one of the children of Louis Anderson, Sr., plaintiff’s grandfather, widow by her first marriage of Edward Garther, and widow by second marriage of Peter Martin, referred to in the pleadings for sake of brevity as Racheal Anderson, died February 2, 1924, possessed of the property in dispute; that Forman and John Anderson, brothers of Racheal Anderson, were recognized as her sole heirs and, as such, put in possession of the property by judgment qf the Civil District Court; that Louis Anderson, Jr., plaintiff’s father, then deceased, was likewise a legitimate brother of the said Racheal Anderson and that plaintiff is entitled by representation of his said father to the one-third interest in the property, the other child of Louis Anderson, Sr., having died without issue before Racheal Anderson.

The record contains a certified copy of a marriage license issued in the parish of Lafourche to Louis Anderson and Henrietta Anderson under date of September 22, 1866, but there is nothing to show that the marriage was celebrated. There is considerable oral testimony tending to prove that Louis Anderson, Jr., was known as the son of Louis Anderson, Sr., and the brother of Racheal Anderson, but nothing to indicate that a marriage ceremony was had.

One of plaintiff’s witnesses, Fanny Augustine, testified that she was born in 1865 and, when asked whether she was present at the birth of Louis Anderson, Jr., plaintiff’s father, replied in the negative, explaining that he was born before she was and consequently before 1866, the date of the alleged marriage of plaintiff’s grandparents. A photograph of a headstone having the inscription “Louis Anderson born September 18, 1862, died July 2nd, 1905” is in evidence. It is apparent, therefore, and not denied, that plaintiff’s father was born four years before the date of the alleged marriage of his parents. He was, therefore, illegitimate, since the subsequent marriage did not ipso facto have the effect of legitimation without acknowledgment by his parents before their marriage by an authentic act or by the contract of marriage itself. Rev. Civ. Code, art. 198; Van Dickson v. Mayfield, 158 La. 529, 104 So. 315. There is in this record not the least trace of evidence tending to show the acknowledgment of Louis Anderson, Jr., by authentic act cr in a marriage contract.

Fanny Augustine also testified that plaintiff’s father, Louis Anderson, was the youngest of the Anderson children. Plaintiff’s counsel attributes much importance to this testimony, which is without contradiction in the record when considered in connection with an admission in defendant’s answer. If Louis Anderson, Jr., was the youngest of the Anderson children, says counsel, Forman, John and Racheal Anderson must have been older than Louis; consequently if Louis was born four years before the marriage of his parents, his brothers and sister must have been born a greater length of time before their parents’ marriage. In the petition of plaintiff there appears an allegation in paragraph 3 to the effect that:

“Of said marriage between Louis Anderson, Sr., and Henrietta Anderson, above referred to, there was born the following named children, to-wit: Louis Anderson, Forman Anderson, John Anderson. * * *”

To this allegation defendant replied as follows:

“Defendant admits that Forman Anderson and John Anderson and Racheal Anderson were born of said marriage, but defendant denies the remainder of the averments of said paragraph 3.”

This admission by defendant is said to establish the right of plaintiff to participate in the inheritance with his father’s brothers, Forman and John Anderson, evidently upon the theory that their relation to their deceased sister, Racheal Anderson, is no more legitimate than plaintiff’s father, their brother, whom plaintiff represents in the succession of Racheal Anderson, his aunt, and all are in the same boat. We cannot follow counsel in this contention. The most that can be said of the effect of the allegation in the petition and the admission in the answer, together with the testimony of Fanny Augustine, is that it establishes the illegitimacy of For-man, John and Racheal Anderson as well as of plaintiff’s father, Louis Anderson, Jr.; hut since plaintiff’s suit is in the nature of a petitory action, he must recover upon the strength of his own title and cannot rely upon the weakness of defendant’s title.

It is said that the oral testimony in the record is sufficient to show a slave marriage, all parties to this litigation being colored people and Louis Anderson, Jr., having been born in 1862, a year previous to the abolition of slavery, and that while the civil effect of such marriage would be dormant during the period of slavery, it would be active, subsequent to the emancipation, by the mere fact of the parties continuing to live together as husband and wife. Ross v. Ross, 34 La. Ann. 860.

The requisites of a valid slave marriage are stated in the Succession of Young, 166 La. 285, 117 So. 150, 151, to be as follows:

“In order to establish the validity of the alleged slave marriage, it is incumbent upon them (plaintiffs) to show: (1) consent of the parties; (2) consent of the masters; (3) a ceremony; and (4) ratification by the parties subsequent to their emancipation. Succession of Walker, 121 La. 865, 46 So. 890; Johnson’s Heirs v. Raphael, 117 La. 967, 42 So. 470.”

We find no proof whatever in the record of this case which would establish a slave marriage between Louis Anderson, Sr., and his alleged wife, Henrietta.

Our conclusion is that the judgment appealed from is erroneous, and for the reasons assigned it is annulled, avoided, and reversed, and it is now ordered that there be judgment against the plaintiff, Willie Anderson, and in favor of -the defendant, Eleanor Anderson Thomas, dismissing this suit at plaintiff’s cost.