author: Poci-ns, J. Fenner, J. Roché, J.

text:
    No. 8182.
    George Heroman et al. vs. Louisiana Institute of Deaf and Dumb et al.
    A judgment sought to be annulled cannot be opposed as res adjudicata, to the action of nullity#
    If, however, the only ground alleged for annulling said judgment be error of decision upon the issues involved, the decision upon those issues by a competent court, operates as a conclusive estoppel between the parties before the Court.
    In absence of fraud or collusion minors, properly represented, are bound by a judgment as fully as if they had been majors and personally cited.
    Matters once determined by a court of competent jurisdiction, if the judgment has become final, can never again be called into question by the parties or their privies, though the judgmentmay have been erroneous and liable to certain reversal on appeal.
    This estoppel extends to every material allegation which was at issue in the cause and was therein determined.
    APPEAL from the Seventeenth Judicial District Court, Parish of East Baton Rouge. Sherburne, J.

      Burgess <& Burgess, O. B. Favrot, Favrot & Lemon, for Plaintiffs and Appellants:
    1. A natural tutrix who remarries without convoking a family meeting to advise as to her continuance as tutrix, ipso facto, ceases to be tutrix, and thenceforth she is without power to bind the minor by any acknowledgment, express or implied. 2D An. 802 ; 31 An. 380.
    2. Prescription is not interrupted on a claim against a succession by any process served upon one who has ceased to be tutrix, from having contracted a second marriage without having convoked a family meeting to retain her in the tut >rship. 18 An. 44; 26 An. 370.
    3. A tutrix cannot revive a debt agaiust a minor, which is prescribed.
    4. Prescription on a claim agaiust a succession is interrupted either by citation or its equivalent,, or by an acknowledgment of the claim by the legal representative of the succession, and in no other way. There is no consideration for a contract based on a prescriptive obligation, unless the obligor knew that this obligation -was prescribed, and it is clearly shown that the obligor intended to supply the nullity of the old by the execution of a new contract. Troplong on Pres. vol. 1, pp. 108 to 110; C. C. 2252; B. O. .0. 2272.
    5. In no way can the action of a family meeting be considered as having the effect of the renunciation of a prescription acquired in favor of a minor.
    6. The maxim, contra non valentón atjere ct cet, and the provisions of the Act of Congress of 11th June, 1864, can not be invoked to suspend x)rescription on notes, daring the time the creditor and debtor have both resided within the lines of JToderal occupation, or whore it appears that it was in the power of the creditor to reach the domicile of the debtor, and there institute legal proceedings, and avoid the prescription of his debt. 29 An. 82!); 24 An. 555.
    7. The maxium contra non valentón has no place in our laws ou prescription. The Act of Congress of 11th June, 1864, can not have a retroactive effect. L. D. Pres. V. (a) Nos. 5, 6, 7, 8.
    8. One who has made a judgment one of his grounds of action against others cannot be heard contradictorily with the same persons to assert the nullity of the judgment. 2!) An. 599.
    9. The knowledge of the agent, acquired during and in the course of his employment, is the knowledge of his principal. Story on Agency, 451, 140 ; p. 159.
    10. A judgment rendered against a person dead, and not represented, is an absolute nullity, and may be attacked directly or collaterally, and by any one against whom it is sought to be enforced. 29 An. 647.
    11. Where a part of the heirs are minors, who have accepted with benefit of inventory, and some of the heirs are of age, an administration of the succession is absolutely necessary. O. C. 1047, 1052, 1055; 14 An. 641; 28 An. 859 ; 23 An. 179; 27 An. 351; C. P. 976.
    12. Succession property cannot be sold under a fi. fa 25 An. 154; 27 An. 556.
    13. Property of a succession sold for cash in order to pay the debts of the succession must, at its first offering, bring its full appraised value. If sold for less thau its appraised value, the sale will be invalid.
    14. A family meeting should be composed of the relatives of the minors, who live within thirty miles of the courthouse. The homologatiou of the proceedings of a family meeting, ratifying a compromise involving the interests of minors, will be set aside, when it appears that the lower court, at the date of the homologation, had no evidence before it going to show whether the compromise would injure or benefit the minors. B. C. O. 28Í-282; 2 An. 941; 30 An. 976; 32 An. 97; B. C. C. 240.
    15. In all cases in which the nullity of an agreement is not limited to a shorter period, by a particular law, that action may be brought within ton years.
    Minority suspends prescription. C. C. 2221.

      Scvtú. P. GreeveSj for Warrantors and Appellees:

      First — Prescription was suspended in favor of a citizen of Missouri and. against a citizen of Louisiana, from April, 1861 to April, 1866. Act of Congress of June 11, 1864, B. S. IT. S. Sec. 1048 ; 11 Wallace, 244, 493; 12 Wallace, 700; 18 Wallace, 151; 93 U. S. Otto, page 96; 24 An. 31, 183; 28 An. 841.

      Second — Executory process may issue against the mortgaged property of a decedent in whosoever hands it may be found. C. P. 62, et seg., 734, 744; P. C. C. 1421; 1 An. 205 ¡ 2 An. 509; 20 An. 375; 12 An. 551; 28 An. 622 ; 32 An. 412; 10 La. 490.

      Third — -One contracting with a person in ignorance of his incapacity, may call on the party, if the disability has ceased, and then his assent shall confirm the contract. P. C. C. 1794, 1795; 2 An. 727; 6 La. 215.

      Fourth — A judgment rendered without legal citation and no appearance of the defendant, and no default previously entered, is an absolute nullity. C. P. 606, 206 ; 30 An 363.

      7'ifth — When all the formalties required by law for the alienation of minor’s property have" been fulfilled, the acts made for "those pmposis shall have the same force as if they had been executed by pei sons of full age. P. C. C. 1868, 2231; C. P. 615, 992; 18 Howard, 497; 12 An. 426; 10 La 274; 9 An. 433.

      tíi&th — Mrs. Heroman, widow in community, having been authorized thereto hy her husband, purchased at the sale, ratified the same and is concluded.by her own acts from objecting to the validity of the sale, and is estopped from denying the validity of the judgment against her in suit 13 9£, by vol untarlly executing the same. O. P. 567, 612; 24 An. 225; 23 An. 524.

      Seventh — Ho suit will lie to recover what has been paid or given in compliance with a natural obligation, and a natural obligation is a sufficient consideration for a now contract. P. C. O.1758, 1759, 2203; C. P. 38.

      Eighth — Where a change iu the terms of the sale more favorable to the seized debtor is made, such change will not invalidate the sale; it will be presumed to have been made at the instance of the seized debtor, and he is estopped from contesting it. 13 An. 215; 15 An. 370.

      Xinth — A promise or contract that destroys a prescriptive right shall not be avoided by an allegation that the party was ignorant or in errorwith regardtothelawof prescription. P. C. C. 1846.

      Tenth — As to the fact that the notes were prescribed no error can be set up, for they were filed in suit 290, and their counsel employed to attack the proceedings had in that suit failed to discover it.

      Eleventh — The presciiption of five years covers all informalities connected with or growing out of any public sale, even against minors. P. C. C. 3543; IP. 331; 10 P. 396; 3 An. 328, 546; 14 An. 777; 21 An. 584; 29 An. 534.

      Twelfth — If the notes were prescribed, mid Mrs. Donning, tutrix, and John Bonning, co-tutor failed to interpose the plea before the sale, the minors, within four 'years after their majority could have called their tutrix to account for their neglect, but the title of a purchaser at the salo is not affected. Courts cannot supply tlio plea of prescription. P. C. C. 3463, 3464; 19 An. 266; 20 An. 219; 21 An. 395; 12 An. 350; 32 An. 953.

      Thirteenth — As against a purchaser in good faith at a judicial sale, the minors must be held at this distant period to have been represented projiorly in the suit, or at least to have ratified the proceedings hy their long silence and acquiescence. 14 An. 157; 15 An. 88.

      Merrick & Foster, foi‘ Bird’s Executors, Appellees.
   The opinion of the Court was delivered hy

Poci-ns, J.

Plaintiffs, as heirs of the late George M. Heroman, seek to annul the sale of a valuable piece of property situated in Baton Rouge, formerly owned by their father, and adjudicated at a sheriff’s sale to the executors of John Bird, of Missouri, by whom it was sold to the Trustees of the Louisiana Institute for Deaf and Dumb, now the actual possessors.

The suit is brought against the Trustees of the Institute and against the executors. The latter were called in warranty by the Trustees, an.l in their turn, they called in warranty Mrs. Celestine Bonning, widow G. M. Heroman.

Mrs. Bonning, instead of defending the titles under controversy, joined plaintiffs in assailing their validity and in their prayer to restore the property to the Heroman succession.

The issues ’raised by the pleadings are numerous, and the facts underlying them very complicated.

We state the following as the important features of the controversy :

On the 7th of May, 1856, G. M. Heroman executed in favor of John Bird, of Missouri, his three promissory notes, maturing respectively in one, two and three years, amounting together to $12,000, and secured by mortgage on the property now in litigation.

G. M. Heroman died in 1801, leaving a surviving widow and five minor children, whose mother was qualified as the natural tutrix. In 1863, widow G. M. Heroman married John Bonning, without convoking a family meeting, so as to be retained in the tutorship of her children.

On the 28th of April, 1865, executory process was instituted by John Bird on the three notes held by him, against the “ heirs of Q. 31. Hero-man,” causing the required notices to be served on Mrs. Celestine Bonning, natural tutrix, and John Bonning as tutor of the Heroman minors.

On the 6th of June, 1865, pending the executory process, a family meeting, convoked in behalf of these minors, reinstated Mrs. Bonning to the natural tutorship of her children, “ nunojpro time,” and dispensed her from furnishing the bond required by law.

In a document filed June 10,1865, bearing no date, Mrs. Bonning as tutrix, and John Bonning as co-tutor, acknowledged to have received all the notices required by law, in the executory process instituted as above set forth.

The property thus seized was offered for sale on July 1st, 1865, and for want of a sufficient bid, was re-advertised for sale on a twelvemonths’ bond. It was adjudicated on the 18th of July of that year, for $13,000, to Mrs. Bonning, who, being unable to furnish the required bond, paid $1,000 cash, and executedfor the balance, three notes, maturing in one, two and three years, secured by mortgage and vendor’s lien on the property sold, which settlement was accepted by the seizing creditor.

On the 21st of June, 1866, a family meeting, convoked for the purpose, sought to ratify the purchase of July 18th, 1865, in the interest of the Heroman minors, and to make them liable for the notes executed by their mother.

On the 13th of March, 1867, suit was filed against Mrs. Bonning, personally and as tutrix for her minor children, and against one of the heirs who had become of age, for the purpose of .enforcing payment of the notes executed by Mrs. Bonning on the 18th of July, 1865.

' Judgment was rendered on April 8, 1869, and was executed in September, 1878, resulting in the adjudication of the property for $10,000, to the executors of John Bird, who, in the meantime, had died.

This suit was instituted on the 19th of October, 1879, by four of the five Heroman heirs, who allege the absolute nullity of the proceeding's and the sale made in the executory process issued on April 28th, 1865, and of all the proceedings predicated on, or purporting to ratify, said sale.

The defendant Trustees maintain the legality of their title and that of the Bird executors, their vendors, whom they call in warranty, and in case of eviction, they pray for judgment against their warrantors for $2,500, amount paid them on account of the purchase price, and also for $2,380, amount disbursed by them for improving the property.

For defense, the executors, as defendants and as warrantors, urge the legality of all the proceedings under which they acquired title, and claim that all irregularities, if any, which may have crept in their executory process of April, 1865, have been fully cured by the acts of the family meetings of June, 1865, and of June, 1866, and by the certificate or admission of Mrs. Bonning, tutrix, filed June-10, 1865, and they finally urge, in bar of plaintiff’s recovery, prescription of ten, five, four and one years.

This appeal is prosecuted by plaintiffs from an adverse judgment by the District Judge, who has given no reasons in support of his decree, and thus fails to inform us which of the numerous defenses prevailed in his opinion.

We shall first direct our attention to the validity of the proceedings inaugurated on the 28th of April, 1865, and culminating in the adjudication of the property to Mrs. Bonning.

If those proceedings be found regular, valid and binding, the case is with the defendants, without the necessity of investigating all the subsequent proceedings which were predicated thereon.

If, on the other hand, those proceedings are found to be virtually irregular and illegal, and the sale made on July 18, 1865, be found in consequence an absolute nullity, and not ratified by any of the subsequent proceedings invoked as such, it is evident that plaintiffs have made out their case.

A careful perusal of the statement of the proceedings which we have made above, and which is taken without comment from the record, will expose to the legal mind several wanton violations of the rules of practice absolutely required under our laws; and will disclose the startling fact that the executory process of April 28, 1865, was literally carried on by a plaintiff without defendants.

By contracting her second marriage, without the authorization of a family meeting to retain her as tutrix, Mrs. Bonning was ipso facto removed from the tutorship, (C. C. Art. 254) and had no more authority to represent her children in legal proceedings than any stranger or even plaintiff himself. 32 An. 51 ; 22 A. 21.

It follows, therefore, that the notices served on her as tutrix, and on her husband as co-tutor, had no more legal effect than if served on any stranger or imaginary being.

It is, therefore, safe to conclude that the executory process, as carried on, lacked the notice or demand to pay required by Art. 735 of the Code of Practice, and also the indispensable notice of seizure, and all the other notices required by law.

It has often been held that these notices amount in legal importance to citation in an ordinary process, in default of which all other proceedings, including the judgment, are stricken with absolute and incurable nullity.

It is to be noted that the petition for executory process is absolutely silent on the subject of any interest of Mrs. Bonning in and to the property proceeded against; no process is asked against her personally, and therefore none was served.

These considerations clearly point to the nullity of the sale made under such anomalous proceedings.

But defendants call our attention to the action of the family meeting of June 6, 1865, reinstating Mrs. Bonning, nunc pro tune, in the tutorship of her children, and to her admission that she had received all the notices required by law; and their counsel are seemingly serious in arguing that such proceedings could cure, not only relative nullities, but even an absolute nullity, such as would affect a judgment rendered without citation on the defendant.

That the law which requires the solemn action of a family meeting to restore a mother to the functions of tutorship, which she had forfeited by contracting a second marriage, without complying with the rules of law made conditions precedent to her right of retaining her natural tutorship, does not contemplate that the action of such family meeting may, in any contingency, have a retroactive effect, is an' axiom which cannot be strengthened by reasoning.

The very necessity of the family meeting excludes the idea that its action can retroact so as to legalize acts done without the authority, nay, in contravention of law. The power of the family meeting thus composed could provide only a dative tutorship, and could not reinstate the tutorship by nature.

Defendants next fall back on the action of the family meeting held on the 21st of June, 1866, and hold up this proceeding as a full and legal ratification of the sale of July 18, 1865.

A careful reading of the petition convoking this family meeting, and of the proceedings of the meeting, leaves the mind in doubt as to the true object of the call and of the matters passed upon by the meeting.

It is in fact easier to define what was not asked and what was not accomplished, than to affirmatively explain the end proposed or attained.

We conclude that the family meeting was not convoked for the purpose of ratifying the sale of July 18th, 1865. On the contrary, the petition refers to a suit filed and a judgment rendered in November, 1865, for the purpose of avoiding that sale and decreeing that the property yet belonged to the Heroman succession ; and concludes with the prayer that the family meeting should assume the latter position, and treat the purchase made by Mrs. Bonning on July 18,1865, as made for the succession, and that the mortgage executed by her be assumed as binding on the succession and heirs. The recommendations of the family meeting, which were homologated by the court, conform with the prayer of the petition, and assume the notes and mortgage created by Mrs. Bonning as binding on the heirs.

We may state, in this connection, that the suit filed on May 13, 1867, against Mrs. Bonning personally, and against the Heroman heirs, was predicated upon the action of this family meeeting and must abide its fate.

Now, in treating with the sale of July 18th, 1865, the family meeting was compelled to consider it either as legal and binding, or as absolutely null and void. Its legality depended upon the acts held up as confirmatory by defendants. Its nullity flowed from the want of defendants in the executory process, unless cured by the alleged ratification.

If valid, it was a purchase made on credit by a married woman, living under the regime of the legal community, and the property passed to the community of John Bonning and wife. As such it completely divested the previous community of Heroman and wife, and clearly could not he treated as the property of the first and dissolved community, and much less as that of the succession of Geo. M. Heroman. If, on the other hand, the nullity of the sale resulting from the want of parties defendants was not cured, as we have shown above, by the family meeting of June 6, 1865, and proceedings had thereunder, the sale being absolutely null, it could not be ratified. Nothing can flow from nothing. 4 An. 229.

The act of the family meeting of June, I860, was, therefore, illegal, null and void, and strikes all proceedings in the suit of May, 1867, with incurable nullity.

Our conclusion is, therefore, that the succession of Goo. M. Heroman has never been divested of its title to the property in controversy, and that the parties must be restored to the position which they occupied previous to the 28th of April, 1865. The plea of prescription set up by defendants, warrantors, is also untenable.

We have purposely avoided to express an opinion on the plea of prescription of five years, interposed by plaintiffs, in bar of any rights claimed under the notes of May, 1856. We hereby reserve to the executors of Bird any and all rights which they may claim under these notes against the succession and heirs of Geo. M. Heroman, to whom we decree the property.

The Louisiana Institute being purchasers in good faith from Bird’s estate, they must recover judgment against the latter, for the sum of $2,500, amount paid on account of the purchase price, and the additional sum of $2,380, disbursed for improvements on the property, without prejudice to the rights, if any, of the executors of John Bird to claim the latter amount from the heirs of Heroman.

The conclusion which we have reached precludes the necessity of passing upon the numerous other issues raised in the pleadings and several bills of exception reserved during the trial, a solution of which would have stretched this already lengthy opinion into unpardonable dimensions.

It is, therefore, ordered, adjudged and decreed, that the judgment of the lower court be annulled, avoided and reversed ; and proceeding to render the judgment which should have been rendered, it is ordered, adjudged and decreed, that the proceedings in executory process instituted on April 28th, 1865, and the sale made thereunder on July 18th, 1865, and all the other proceedings predicated thereupon, and all proceedings intended and purporting to confirm and ratify said sale, and that the sale of November 16th, 1878, to the executors of John Bird, and the sale by them to the Institute for Deaf and Dumb, be and they are hereby all and severally declared null and void, and without effect; and that the property mortgaged by Geo. M. Heroman on the 7th of May, 1856, be decreed to be the property of his succession and community, to be liquidated according to law.

It is further decreed that the Trustees of the Louisiana Institute for Deaf and Dumb recover judgment against the executors of John Bird in the sum of twenty-five hundred dollars, received by them as part of the purchase price, and the additional sum of twenty-three hundred and eighty dollars for improvements added by said Trustees to said property, without prejudice to the rights, if any, of said executors to claim the latter amount from the succession and heirs of G. M. Heroman, and that all costs in both Courts be paid by said executors, defendants and warrantors.

On Rehearing.

Fenner, J.

A careful review of the facts and law of this case convinces us that the judgment rendered in suit No. 1198 is binding as res judicata upon all the parties plaintiff herein, so far as the consideration upon which the judgment rests is concerned, and that there exists no lawful ground for annulling said judgment or sale made in pursuance thereof.

The arguments on the original hearing were addressed so prominently to the questions considered and decided by us in our original opinion, that our attention was diverted from this feature of the case.

We do not mean to contradict the doctrine that the judgmentsought to be annulled cannot be opposed as res judicata, to the action of nullity itself. 29 A. 599 ; 32 A. 15.

We merely mean that if there be no other ground of annulling the judgment than error of decision upon the issues involved, the decision upon those issues is final as between the parties to the litigation and operates as res judicata. This is self evident.

The parties to the suit No. 1198 were as plaintiffs, the executors of John Bird, the authors of the defendant corporation, and called herein as its warrantors ; as defendants, Mr.s. Bonning, personally, and as tutrix, John Bonning, co-tutor, and to authorize and assist his wife, and John F. Piker, under-tutor of the minors, George M., Elizabeth Ann, Mary C. and Emma G. Heroman, and finally, Frederick Heroman, a major heir.

We think it clear that, at least, in absence of fraud, the minors thus brought into court, through their tutrix, co-tutor, and under tutor, are as fully bound as if they had been majors and personally cited. La. State Bank vs. Nav. Co.; 3 An. 313; Johnson vs. Weld, 8 An. 126; Shaffer vs. Scuddy, 14 An. 575.

There was no other way of bringing them into court, and it is the mode provided by law. C. P. 115, 116, 108; C. C. 337; Dwight vs. Smith, 9 Rob. 32; Perche vs. Ledoux, 12 An. 350; Martel vs. Richard, 15 An. 598.

All objections as to citations are shut off by the appearance and answer of all the defendants through attorneys of the highest character whose authority to represent them is not disputed. What were the issues in the case1? The petition sets forth, substantially, all the proceedings discussed by us in our original opinion, viz : the original loan by John Bird to Geo. M. Heroman, secured by mortgage; the death of Heroman ; the executory proceedings in suit 290; the sale and adjudication to Mrs. Bonning; the execution of her notes for the price and mortgage on the property; the proceedings of the family meeting of June, 1866, ratifying the sale to Mrs. Bonning, and assuming the notes and mortgage executed by her for the price as binding on the heirs; and it prayed for judgment against the defendants on said notes with recognition of the mortgage, and decreeing that the property be seized and sold to satisfy the same.

The answer is as follows :

“ The defendants now come into court, and for answer say, that the notes sued on should not be paid, and that they are not bound to pay them — that they are wholly without consideration; pray that plaintiffs’ petition be rejected, and for general relief.”

It seems beyond dispute that the issues thus framed involved directly the validity and binding effect of the proceedings under which the liability of the defendants and of the property, for the debt and mortgage, was asserted in the petition.

Our original decree herein iudieates that w'e should have decided those questions differently; but the judgment rendered by the court in the suit itself, No. 1198, conforming to the prayer of the petition, sustained the demand of the plaintiffs therein and, therefore, decided the issues involved in their favor.

All the present plaintiffs were parties to that suit.

The jurisdiction of the court over the subject matter of the controversy does not admit of dispute.

No appeal having been taken, and the delay allowed by law therefor having expired, the finality of the judgment is as complete as if it had been reviewed and affirmed by this Court.

No principle of the law is more inflexible than that which fixes the absolute conclusiveness of such a judgment upon the parties and their privies. Whether the reasons upon which it was based were sound or not, and even if no reasons at all were given, the judgment imports absolute verity, and the parties are forever estopped from disputing its correctness. Cooley on Const. Lim, pp. 47, et seq., and authorities there cited.

“Matters once determined in a court of competent jurisdiction, may never again be called in question by parties or privies against objection, though the judgment may have been erroneous and liable to, and certain of, reversal in a higher court.” Bigelow Est. 3d Ed., Outline, p. Ixi, 29, 57, 103.

“ The estoppel extends to every material obligation or statement which, having been made on one side and denied on the other, was at issue in the cause, and was determined therein.” Aurora vs. West, 7 Wall. 102; 4N. Y. 113; 2 An. 462; 14 An. 576; 19 La. 318; 5 N. S. 664; 11 M. 607; 14 La. 233; 5 N. S. 170.

It is vain now to contend that the proceedings anterior to the suit, upon which the liability of the defendants and of the property was based, were absolute nullities. That was matter of defense to the suit. The court, in rendering judgment, necessarily affirmed the validity of those proceedings, and, right or wrong, it stands as a thing adjudged.

Equally vain is it to contend that the court had no right to order the property to be seized and sold. This was the relief asked in the suit and adjudged by the court, and is equally concluded by the judgment. The proceedings in execution being eomformable to the express terms of the judgment, cannot be questioned.

We find nothing in the facts, as presented by the record, or in the argument and authorities of plaintiffs’ counsel, to restrain or avoid the application of these well settled principles.

We cannot, consider the point made, in argument, that Mrs. McNabb, one of the plaintiffs, though a minor when the suit was instituted, had reached majority before the judgment was rendered, and that, therefore, the judgment against her former tutrix, and under tutor, did not bind her. . • ■

No such ground of nullity is set up in the pleadings, and it. does not fall within the issues presented in the case. We cannot notice it. The equity of the case, as well as the law, is clearly with the defendants. The plaintiffs have no rights not derived from their ancestor, George M. Heroman, and it is beyond dispute that he received from John Bird twelve thousand dollars in good money, as the consideration ujmn which, ultimately, the claim in suit No. 1198 rested. ' The attempt of plaintiffs heroin, if successful, would deprive Bird’s estate of the property taken in satisfaction of that claim, without returning the money borrowed, and, indeed, leaving him with his right of action therefor destroyed.

It is, therefore, ordered, that our former decree herein be annulled and set aside; and it is now ordered, that the judgment appealed from be affirmed at appellants’ cost.

Roché, J.

I adhere to the original opinion.

Mr. Justice Levy, absent on account of illness, did not participate in the opinion and judgment of the Court on the rehearing.


source: Caselaw Access Project

author: Todd, J.

license: Public Domain

text:
    No. 7670.
    Schmidt & Ziegler vs. J. R. Kent et al.
    This-is virtually a suit against one person to pay the debt of another. The promise to pay the debt of another, to be binding, mast be in writing, signed by the promissor.
    A representation made with no intention to deceive, hut from an honest belief, gives rise to no liability because erroneous, although parties to whom such representations were made, acted upon the faith of them,
    A privilege cannot ho recognized by the court where there is no prayer asking for its recognition.
    APPEAL from the Sixth District Court for the Parish of Orleans. liujhtor, J.

      W. 8. Benedict, for Plaintiffs and Appellants :
    A factor’s contract must stipulate the amount he is to advauce to entitle him to a privilege r he has no privilege for any sum beyond the amount stipulated. 30 An. 1332.
    Where the factor agrees, after payment of the amount stipulated to be advanced by him, to pay a second lien, he is bound therefor to the extent of the amount of crop that has come into his hands after paying his o\vn advance.

      T. Gilmore é Sons, for Defendants and Appellees:
    1. Privileges become extinct by the extinction of the thing subject to the privilege. C.C. Art. 3227. Given vs. Alexander, 25 Ah. 586.
    2. There is no droit de suite in matters of privileges on movables. Troplong Priv. et. Hypoth. vol. 1, Ko. 161.
    3. Privileges are stricti juris. They are valid against third persons only from the date of the recording of “ the act ” or evidence of indebtedness, as provided by law. C. C. Art. 3273, 3274.
    4. Privileges are legal results, and are not themselves the subject of stipulation: C. C. 3185.
    5. In this case there was no privity of contract between plaintiffs and defendants.
   The opinion of the Court was delivered hy

Todd, J.

This is a suit for the recovery of $2,230, the aggregate amount of three promissory notes signed hy one J. D. Labranche, to the order of and endorsed hy H. A. Battles. J. R. Kent & Co., defendants, were not parties to these notes, but are charged with being liable to plaintiffs for their amount, andaré sued therefor, and j oined in the suit with Battles, the payee and endorser of the notes.

The facts connected with this controversy are these:

On the 3d of December, 1877, a contract was entered into between I-I. A. Battles and J. D. Labranche, a rice planter of the Parish of St. Bernard, hy which the former was to advance to the latter $4,000, in money and supplies, on his crop of the ensuing year, and to aid him in the making and cultivating same. The contract was recorded on the 9th of the same month.

Battles proceeded to advance to Labranche under this agreement till about the 1st of May, 1878, his advances up to that date amounting to $2,973.41, Being unable to make further advances, Labranche was compelled to look elsewhere for means to cultivate his crop. In this emergency he applied to the defendants, J. R. Kent & Co., who agreed to furnish him three thousand dollars, on condition that the prior lien in favor of Battles should be cancelled, and they, Kent & Co., should have tiie first lien on the crop. This cancellation was made, and in the written agreement between Battles and Labranche, respecting this cancellation, it is declared, (quoting):

. “ And the said Battles does also grant a full and complete release of a certain promissory note for the sum of $4,000, furnished by the said Labranche, * * * and hereby authorizing and requiring the Recorder of Mortgages of the'Parish of St. Bernard to cancel and erase said mortgage (privilege) from his books.”

Thereupon, J. R. Kent & Co. entered into writings with Labranche, by which they obligated themselves to advance him the $3,000, and he acknowledged that the advance was for the necessary plantation supplies to enable him to make and gather his crop, and which was to be consigned to them. The contract further stipulated a pledge on the crop under the act of 1874. It was without date, but was recorded on the 7th of May, 1878, in the book of mortgages of said parish. Prom this time forward, Kent & Co. continued during the year to make advances, to an amount exceeding $6,000, the amount stipulated originally proving insufficient for the making and gathering of the crop.

About the same time that the contract was made with Kent & Co., and immediately succeeding the surrender of the $4,000 note by Battles to Labranche, and the cancellation of the privilege, Labranche acknowledged in writing the debt to Battles to the amount of $2,973.41, for the sums previously received from him, and recognized a privilege therefor, and divided the debt into three equal parts, for which he gave his throe several promissory notes for $743,351 each.

This writing was also recorded in the mortgage book of said parish.

Three of these notes were acquired by the plaintiffs, and it is for the amount of them that this suit is brought against J. R. Kent & Co. and Battles.

Judgment was rendered against tiie latter by default, and in favor of Kent & Co., rejecting as to them the plaintiff’s demand, from which judgment plaintiffs have taken this appeal.

They allege in their petition substantially, that Kent & Co. had no privilege on the proceeds of the crop for any amount beyond the $3,000 stipulated in the contract, and that they were induced to acquire said notes held by them by the representations of Kent & Co., to the effect that the crop of Labranche would be sufficient to pay them, Kent & Co., and also the notes of plaintiffs.

This is denied by Kent & Co. in their answer, and they further aver that they were not parties nor privy to the subsequent agreement between Battles and Labranche, recognizing a privilege in his favor after the cancellation of the one under the first contract, nor to the understanding or agreement between Battles and the plaintiffs, under which the latter became the holders of the notes, and deny any liability to plaintiffs on account of the notes, or for the debt for which they were given.

The prayer of the plaintiffs’petition is simply for the recovery of the debt claimed against the defendants. They do not ask for the recognition of any privilege on the proceeds of the crop in the hands of Kent & Co., or to be declared privilege creditors of Labranche, who is not a party to the suit. They only ask a personal judgment against defendants. It is virtually a demand against Kent & Co. to pay the debt of another person. It is not pretended that they bound themselves in writing to do so, but their alleged liability to plaintiffs rests alone on the fact asserted that they induced plaintiffs to become the holders of the notes sued on by false representations respecting the crop of Labranche, by which they were led to believe that it would prove adequate to pay all the advances made upon it, both by Battles and Kent & Co.

As a matter of fact, the crop proved insufficient, when sold by Kent & Co., to whom it was consigned, to pay even the advances made by them. Had there been any excess over their own debt, Kent & Co. would not have been authorized without Labranche’s order to pay the same to plaintiffs. It appears from the evidence that, before the extent of the crop was ascertained and when both they and the plaintiffs believed that it would be more than sufficient to meet their demands, Kent & Co. suggested to plaintiffs the importance or necessity of obtaining an order on them from Labranche to pay them, plaintiffs, any balance in their hands over and above their own claims.

There is no doubt that at one time Kent & Co. fully believed that the crop of Labranche would realize from ten to twelve thousand dollars, and that they so expressed themselves to the plaintiffs, but we are satisfied it was an honest belief, the expression of which subjected them to no obligation to plaintiffs to pay Labranche’s debt to them, and was not intended to deceive the plaintiffs, who could have ■ easily acquainted themselves with the condition and prospects of the crop, and to whom the same sources of information were open, respecting the same, as to Kent & Co.

The result was a serious disappointment to all parties interested, but we see no grounds on which Kent & Co. can be held liable for the debt of Labranche to plaintiffs, who, like themselves, became Ms creditors from a mistake of frequent occurrence, an extravagant over estimate of the outcome of a growing crop.

It is seriously urged by the counsel for Kent & Co., that plaintiffs had no privilege on Labranche’s crop whatever; that after the surrender of the original debt, and the cancellation of the privilege under it, the parties could not, by their agreement, revive that privilege, since a privilege flows from the nature of the debt, and can neither be created nor revived by agreement of the parties. There may be force in this proposition, but we are dispensed from considering it, inasmuch as plaintiffs do not pray for the recognition of any privilege, but, as stated, seek only a personal judgment.

We see no reason to disturb the judgment appealed from, which is, therefore, affirmed with costs.

The Chief Justice recuses himself, having been of counsel.

Levy, J., absent.


author: Poch3<j, J.

text:
    No. 8343.
    Succession of Bernard Wellmeyer.
    Money received by the widow and minor children of. a deceased person from benevolent societies, of which he was a member, and due to his family at his death, should be deducted from the one thousand dollars allowed by law to the widow and minor in necessitous circumstances.
    Tlio difference between the alleged value and the price brought at public auction of certain insurance scrip should not, however, be charged to the administratrix and deducted from the one thousand dollars.
    An opposition filed after an account of administration has been homologated, in so far as not opposed, comes too late.
    A privileged creditor who cumulates, in a contest over an account of an administration, his action to compel recognized creditors to contribute pro rata to the payment of his claim, cannot maintain an appeal in this Court, where his claim is not an appealable amount.
    APPEAL from tlie Civil District Court for the Parish, of Orleans. liightor, J.

      A. J. Lewis, for Administratrix, Appellant.

      Jno. Wellmeyer, Opponent and Appellant, in propria persona.

      Chas. A. Conrad, for Duer & Sons, Opponents and Appellees.

      JBraughn, Buelc <& Binlcelspiel, for Opponents and Appellees.
   Tbe opinion of the Court was delivered by

Poch3<j, J.

The administratrix, who is the widow of the decedent, has taken this appeal from the judgment of the court which deducted from the homestead of one thousand dollars for the widow and minor children in necessitous circumstances, the following items :

1. Amount received by her from the Jackson Benevolent Association, $152.

2. Amount received by her from St. Joseph’s Society, $105.

3. The difference between the alleged market value of five shares of the stock of the Firemen’s Insurance Company, $290, and the price which the said shares brought at auction, $165, to-wit: $125.

Opponents, appellees, pray, by way of amendment, that the claim of John Duer & Sons, for $106, be rejected, on the ground that their opposition to the account was filed too late.

Another, and a separate appeal was taken by John Wellmeyer, claiming to be a privileged creditor of the succession for $755.81, as clerk hire, who filed a petition on the 24th of January, 1831, after the homologation of the account, so far as not opposed, in order to compel the creditors recognized in the account to contribute their pro rata share towards the settlement of his claim, and whose proceeding was dismissed by the Court.

We find no error in the ruling of the District Judge, under which he charged the widow and minors’ homestead of one thousand dollars with the amounts received for them from the two benevolent societies.

Recognizing, as a correct interpretation of the Homestead Act of 1852, now Art. 3252, C. C., the doctrine that the situation of the widow and minors, as to their necessitous circumstances, must be tested by their position at the time of the death of the deceased, we find from the record that, in this case, the widow and her minor children were then entitled to those amounts, which we consider a,s property owned in their own right, within the sense and meaning of the Act, and that their claim was to receive from the succession a sum sufficient to make up one thousand dollars, when added to the property or sum thus owned by them.

We find a correct exposition and a very wise application of this doctrine in the case of the Succession of Boisblanc, decided by our immediate predecessors, and reported in 32 An. page 17, in which the previous jurisprudence on that point was fully reviewed, and this question settled in a manner perfectly satisfactory to our minds.

We cannot concur with the ruling of the District Judge in charging the administratrix with the sum of one hundred and twenty-five dollars, as the difference between the alleged or proved market value of the Firemen’s Insurance scrip, and the price which it sold for at auction.

The return of the auctioneer does not state the name of the purchaser of that, or of any other movable property of the succession. The record contains testimony which shows that the administratrix made no purchases at the sale, and we fail to discover any reason, in law or justice, to hold her responsible for that sale, when the record shows that all the proceedings were regular and legal, and considering that no fraud is charged, and that she is not even alleged to have made the purchase of the scrip at the public sale. An auction sale made in conformity to law is generally the best and safest test of the value of any specified piece, of property.

We think there was also error in allowing the claim of John Duer & Sons, whose opposition was filed after the homologation of the account, so far a's not opposed. After such a decree the issue is confined to the items of the account which have been opposed, and it is then too late to ask a reopening of the account, with a view to increase the number of creditors. The publication of the legal notices, the expiration of the legal delay, and the oppositions filed, create an issue which is partially settled by such a decree, which is final as regards the list of creditors, in so far as not opposed previous to the rendition of the decree. Succession of Egana, 18 An. 283; Succession of Mouton, 23 An. 527.

In the judgment of the lower court, the proceeding instituted by John Wellmeyer was treated as an opposition and was dismissed for reasons not stated by the court.

He justly contends that Ms proceeding must not be confounded with an opposition, simply because it is engrafted into the succession, where it was allowed to linger without opposition ; and he shows that his action is directly against the creditors recognized in the account, on whom he prays for citation, and against whom he prays for judgment proportionally, so as to make up the amount of his claim.

Such being the case, there being no fund before the.Court for distribution, quoad his action, which is brought under Art. 1188, C. C., and his claim being for only $755.81, we are clearly without jurisdiction as to his matter, and hence his appeal must be dismissed.

We find no error in the judgment of the lower court amending the account in some minor details.

It is, therefore, ordered that the appeal taken herein by John Wellmeyer be dismissed at his costs.

It is further ordered that the judgment of the lower court be reversed, in so far as it allows the claim of John Duer & Sons, whose opposition is dismissed with non-suit, and in so far as it charges the administratrix with the sum of one hundred and twenty-five dollars, as difference between the value and the actual proceeds of the sale of the Firemen’s Insurance Company scrip, and that as thus amended, said judgment be affirmed, costs of appeal to be paid by the succession.

Levy, J., absent.

Rehearing refused.


author: Poché, J.

text:
    No. 7260.
    Kate G. Stapleton vs. F. Butterfield et al.
    Action to ánnul a sale made under executory process is not an action to annul a judgment, and hence, need not be brought in the same court that granted the order of seizure and sale.
    This is not-an attempt to annul a judgment: plea of prescription of one and two years is therefore not well taken; nor proscription of five years, because in this case prescription was suspended duriug the marriage, as the suit of the wife would have been prejudicial to the husband.
    The note and mortgage both show they were executed by a married woman, without any apparent authorization by the judge, and that the debt secured by the act was for a past indebtedness of the wife; this was sufficient to put any third party on his guard, and open the door to investigation.
    The debt contracted by the wife in this case is shown to have been a debt of the husband: the mortgage and sale of plaintiff’s property in execution thereof are both nullities.
    APPEAL from tlie Fourth District Court for the Parish of Orleans. Houston, S.

      L. JE. Simonds, for Plaintiff and Appellant:
    1. A married woman is not bound by her mortgage, although purporting to be executed under an authorization from the Judge, unless she actually borrowed money or contracted a debt thereunder.
    2. The Act of 1855, (No. 200) cuts lier off only from pleading that money, actually borrowed, did not enure to her benefit; but from no other defense.
    3. Where the holder of the note of a married woman, which is not binding on her, forecloses the mortgage and himself buys the property, it may be recovered from him by the mortgagor.
    4. Prescription against the wife is suspended during marriage.
    5. Butterfield is not a holder for value, nor without notice of the limited capacity of plaintiff. He parted with nothing for the note. Its proceeds go to pay Falconer’s debt.
    6. The mortgage is assignable only, not negotiable.
    7. Plaintiff was not- a sole trader or public merchant. She was not separate in property. She had nothing to do -with the store conducted by her husband.
    8.. The laws of prescription are inapplicable. The note and mortgage being in violation of a prohibitory law, were absolutely null and void. To have it so declared, it is only necessary to show its character. Prescription is suspended during the marriage. It is presumed the husband would not permit her to sue to annul a contract made to secure his obligation. If prescription be at all applicable, it is that of ten years, under R. C. C. 2221.
    9. The fiat for executory process is not such a judgment as requires an action of nullity. It is not res judicata. Besides, plaintiff does herein sue for its nullity, by supplemental petition.
    10. Plaintiff had a right to cumulate, with her demand for restoration of the property, a demand for the revenues and accumulated taxes.

      W. B. Koonts, for-Defendants and Appellees :
    1. An action to annul or rescind a contract is prescribed by five years. R. C. C. 3542. To annul a judgment or decree of a court of competent jurisdiction, the action is prescribed by one year. C. P. 611, 613.
    2. An action to annul a judgment or decree of court must be brought before the court that rendered it. C. P. 608. And the institution of a suit in a court that has no jurisdiction is null; and the subsequent investiture of jurisdiction will not-cure the nullity. 21 An. 754; 26 An. 37; 28 An. 568.

      3. A third holder, before maturity, without notice, and for value, of a note and mortgage of a married woman, executed in accordance with the Act of 15th March, 1855, is not affected by any equities which may exist between her and her original creditor. 26 An. 418, 324 ; 28 An. 232.
    4. The effect of the Act of 15th of March, 1855, is not simply to shift the burden of proof from the creditor to the debtor. The married woman who takes the benefit of the Act, is hound as though she were a single woman. 15 An. 54; 21 An. 283 ; 26 An. 201, 418; 30 An. 790, 793; 32 An. 1197.
    5. Upon complying with the formalities of the Act of 1855, the contracts of married women furnish proof against them, unless attacked for fraud, and in a contest with the creditor, by whom the fraud was committed. 30 An. 790; 28 An., (not reported) O. B. 45, p. 407; 31 An. 834; 32 An. 1104. 1200.
    6. The action is prescribed. R. C. C. 3542.
    7. The Court was without jurisdiction ratione materia. 21 An. 754; 26 An. 37 ; 28 An. 568.
    3. A third holder of a mortgage bote without notice, is not hound by equities existing between the maker and payee. If plaiutiff alleges fraud, the holder must be shown to have had knowledge of it. 28 An. 232: 30 An. 790 ; 31 An. 834; 32 An. 1104 ; 32 An. 1200.
    9. There is no variance between the authority to borrow and the act which secures the money borrowed.
    10. One is a third holder for value, who takes the note in. payment of a pre-existing debt, or even as collateral security. Story on Promissory Hotos, § 195; Chitty on Bills, p. 85; 21 An. 555.
   The opinion of the Court was delivered by

Poché, J.

The object of this suit is to annul a note of $10,000 and a mortgage to secure the same, executed on January 4, 1867, and to set aside a sale under executory process, in execution thereof, of plaintiff's paraphernal property, on the grounds that the debt represented by the note was not a debt of the wife, but of her husband; that the mortgage was the result of fraudulent collusions between her husband and his creditor, the mortgagee, and that the act of mortgage was not made in conformity with the Judge’s certificate, authorizing plaintiff to borrow $10,000, and to secure t.lie same by mortgage on lier separate property.

Tiie defense was:

1. An exception to the jurisdiction of the court.

‘2. Tlie plea of prescription of one, two and five years.

3. The general issue.

First. The exception to-the jurisdiction of the court, on the ground that the object of the suit was to annul a judgment rendered by a different tribunal, was not well taken. The order of seizure and sale is not a judgment, in the legal sense of the term; it adjudicates no rights not conferred by the act of mortgage, and only authorizes the execution of an act importing a confession of judgment, and, therefore, the action to annul a sale, made under executory process, is not an action in nullity of a judgment. 16 L. 250, Harrod vs. Voorhies; 19 A. 158, Humphreys vs. Brown et al.

Second. As this is not an attempt to annul a judgment, the plea of prescription of one and two years cannot avail the defendants. Nor is-the prescription of five years, under Art. 3542 of the Civil Code, applicable to this case, because prescription was suspended during the marriage, for the reason that the action of the wife would have been prejudicial to her husband. If the debt secured by the wife’s mortgag ■ be decreed not to be her debt, it becomes a debt of the community, or of the husband as the head of the community, and hence, the discharge of the wife from the obligation would throw the burden on him, and thus it is clear, that her action to that end is prejudicial to her husband. C. C. 3525.

An examination of the act of mortgage of January 4,1867, shows that the act does not purport to be made under the authorization of the Judge, to which no reference is made in the whole act, and that the debt secured by the act is not stated to be for a loan made at the time, but the act itself purports to be for a past indebtedness of the wile. The note and the mortgage both show that they were executed by a married woman, and were, therefore, sufficient to put a third person negotiating them on his inquiry. Therefore, Butterfield, the holder, cannot estop plaintiff from alleging and proving that the debt contracted by her did not enure to her separate benefit, but was in reality her husband’s debt, which she was induced, by fraudulent misrepresentations, and under marital influence, to assume and to attempt to secure by the mortgage on her separate property. 5 An. 496, Gualin vs. Matherno; 6 An. 122, McComas vs. Green; 7 An. 145, Pilcher vs. Kerr; 29 An. 124, Conrad vs. LeBlanc.

The inquiry into the real consideration of the note was, therefore, a proper subject of investigation under the circumstances of this case.

The evidence shows, beyond a doubt, that no loan of money was made to plaintiff by Falconer, the mortgagee, at the time of the execution of the mortgage, or at any time previous thereto ; and that the debt represented by the note and mortgage was part of a series of notes amounting together to $40,000, executed by plaintiff several years before, as the purchase price of a lot of goods purported to have been purchased by her from Falconer, the mortgagee.

It further appears from the evidence, that plaintiff was not a public merchant or trader, and not separated in property from her husband, and that, therefore, the debt thus contracted was in truth and in fact a debt of the community, or of the husband.

It follows, therefore, that the mortgage obtained from her on January 4, 1867, was an absolute nullity, as a contract made in direct violation of a prohibitory law, and that the sale of her property, made in execution thereof, is also a nullity.

The judgment of the lower court in favor of defendants is, in our opinion, erroneous, and must be set aside.

It is, therefore, ordered that the judgment appealed from be annulled, avoided and reversed, and it is now ordered, adjudged and decreed that the note and mortgage executed by plaintiff on January 4, 1867, be declared null and void, and that the sale of her property described in her petition, made in execution of said mortgage, be and the same is hereby annulled and set aside, and that the right of plaintiff to recover rents and revenues, and to sue defendant Butterfield for unpaid taxes, be reserved; costs in both Courts to be paid by the defendants.

Rehearing refused.


text:
    No. 7526.
    Southern Mutual Insurance Co. vs. Mary A. Pike et als.
    Where the lieivs of a president and treasurer of a corporation aie sued for moneys alleged to have been received by deceased in his said capacities, and they set up that the only money so received was Confederate money, and of which a tender was made, such an allegation does not constitute an admission of liability or indebtedness for the amount so tendered and lienee does not authorize a judgment against them for that amount.
    Such a tender does not pieclude defendants from pleading prescription against the demand.
    Where more than ten years have elapsed since the deceased, in his capacity as president and treasurer, rendered the last account of his administration of the affairs of the corporation, the plea of presciiption must prevail.
    APPEAL from tbe Fifth District Court for tbe Parish of Orleans. Rogers, J.

      A. Tj. Gusman, 8. B. Greenes, Barrow & Pope, Geo. Tj. Bright, for Plaintiffs and Appellees:
    1. The tender made by appellants, in May, 1877, was an admission of the debt, and bars their subsequent plea of prescription. 18 An. 602; Greenleaf on Evidence, Tol. 2, Sec. 600; 2 Starkie on Evidence, See. 788.
    2. The rule that admissions cannot be divided, does not apply to those in the pleadings; 18 La. 6; 4E. 144 $ 14 An. 860: so that the admissions in the answer of defendants can be divided.
    3. The matter of Confederate money having been set up in practical avoidance of the admission of the debt, appellants were bound, in order to succeed, to prove that Tike had indeed received this money “ iu the business of the company, in the discharge of his duties as president and treasurer.” Not having even attempted to do so, judgment properly went against them. 14 An. 860; 21 An. 175, 565; 22 An. 228.
    4. As both payment and tender waive the general denial and bar the plea of prescription, and this Court having held that a payment in Confederate money bars the plea of prescription —28 An. 584 — it follows that a tender in Confederate money will also bar this plea.
    5. A tender of something else than the thing demanded is a waiver of the general issue. 14 An. 868, Davis vs. Millaudon.
    6. The record in No. 705J, containing but 152 pages, and this record containing 331 pages, it is manifest that the issues and facts of the two cases are not the same.

      7. Hot having perfected tlieir eight hills of exceptions reserved against the admissibility and legality of our evidence, nor complied with their recorded agreement that the rulings of the Judge a quo oh their exceptions should he the subject of review by this Court, appellants must be held to have waived all their exceptions, so that no attacks from them is now permissible as to the admissibility and legality of our evidence, and if made cannot be noticed by this Court. 9 R. 465; 16 An. 356; 4 An. 349 ; 11 M. 26; 12 M. 242: 1 H. S. 459; 6 H. S. 86; 1 La. 301 • 6 La, 677; 18 La. 321; 11R. 346; 3 An. 280, 627 • 5 An. 15; 6 An. 316; 9 An. 254; 10 An. 491, 637, 713; 12 An. 741, 758; 15 An. 38D ; 20 An. 306; 21 An. 635; 22 An. 55 ; 24 An. 445 ; 26 An. 160; 32 An. 1044.
    8. The Act of 1858 now R. C. C. 2278, that certain renunciations of prescription, and revivals of claims by promises and acknowledgments cannot he proven by parol, is not essential to the preservation of public order, and so is not a law unto the Judge, hut unto litigants, and therefore can he waived by these last. 10 An. 713.

      Merrielc, Race & Foster, in propria persona, claiming interest in the judgment as Attorneys.

      Andrew 8. Herron, II B. Magruder, F. B. Richardson, for Defendants and Appellants:
    W. S. Pike was a mandatory, all the obligations of his mandate began at the same time and were coterminal. 32 An. 488; 4 An. 172.
    Prescription once accrued is a vested right which can only he divested by written renunciation or tacit acknowledgment, positively proving renunciation. R. C. C. 3461.
    An attorney at law cannot, by his pleadiugs, renounce prescription without special authority. R. C. C. 3462; 6 R. 149.
    It is impossible to prove by parol testimony, the interruption of prescription against one deceased. If admitted without objection, it cannot he considered, being violative of a prohibitory law. R. G. C. 2278, par. 2; 23 An. 747; 24 An. 401; 26 An- 221; 15 An. 416 ; 32 An. 453.
    Ho appeal will he dismissed for irregularities or informalities, except on motion made within three days after filing the transcript. 21 An. 329; 11 An. 613; 12 An. 745; 3 An. 326; 2 An. 138.
    Reply to brief Ho. 4 of plaintiffs and appellees to the following points made by us in our first brief:
    1. The judicial confession cannot he divided.
    2. That a tender of Confederate money does not bar a plea of prescription against good money.
    3. That the authority of Dupre vs. Lumpkin, 18 An. 584, cited by appellees, does not apply.
    4. Reply to comments upon the decision of Davis vs. Millaudon, 17 An. 104.
    5. Reply to comments upon the evidence introduced to show an interruption of prescription, or that it never begun to run.
    6. Reply to comments upon our argument that W. S. Pike, as president and secretary, was agent.
   The opinion of the Court was delivered by

Todd, J.

This is a suit against the widow and heirs of the late William S. Pike, to compel the rendition of an account of his administration of the affairs of the plaintiff Company, aspresident of said Company, and to recover the sum of $280,235.32, the alleged amount of money and funds of the corporation received by him, and of his alleged liabilities for premiums collected, those he failed to collect, etc., and also for the delivery of the notes, hooks, seals, and other property of the Company held by him at Ms death.

The character of the action, and the history of the litigation connected with the subject matter of the suit, will be fully seen by referring to cases 7051 and 7821 of this Court, reported in 32 An. 483, 492. The first of these cases was identical with the instant one, except that though the petition in that case charged the same liabilities against all the heirs, the present defendants, and for the same causes as in this case, William S. Pike, Jr., one of the heirs, a resident of the Parish of East Baton Rouge, where that suit was brought, was alone cited.

This Court, by its decree in that case, ordered the defendant therein, W. S. Pike, Jr., to render an account of the administration of the said William S. Pike, Sr., as president and treasurer of said Company, within sixty days after notice of the judgment.

The case 7821 mentioned, shows that in obedience to this decree, W. S. Pike, Jr., rendered the account called for, and pleaded against the action and demands of the corporation the prescription of ten years. This Court affirming the judgment of the District Court, overruled the plea of prescription, so far as related to specific property sought to be recovered, and sustained the plea against the moneyed demand.

In the instant case, the defendants are appellants from a judgment of the District Court, condemning them to pay $115,464.70, and ordering a rendition of an account of W. S. Pike’s administration of the Company’s affairs up to the time of his death, which occurred in 1875.

The defense relied on in this case is the one that prevailed in the previous case — the prescription of ten years against the moneyed demand.

The plaintiff’s counsel, whilst denying the correctness of the decision' in that case, urge that there are certain admissions in the answers of the defendant in this case, that not only takes it out of the principle of that decision, but actually precludes the defendants from entering the plea of prescription, and the Court from entertaining it, and this argument prevailed with the Court of the first instance, as shown by its decree now under Teview.

The admissions referred to we copy from the answer, and are as follows:

Defendants admit that from the 21st day of January, 1856, up to the said day of Wm. S. Pike acted as president and treasurer of the Southern Mutual Insurance Company, in the City of Baton Rouge, but aver that all the business of said corporation ceased in the year 1862, owing to the war then existing between the United States and the Confederate States, and that after that period no new risks were taken. That on the expiration of the practical workings of the corporation in the year 1863, there was on hand in Confederate money, the sum of one hundred and fifteen thousand, four hundred and sixty-four, and 70-100 dollars, which the said Pike was obliged to receive in tlio business of the Company, in the discharge of 1ns dirties as president and treasurer, that being' the only currency then in use in the State of Louisiana.
“That in the year 1863, the said Win. S. Pike removed to the City of New Orleans, where he resided until his death, in the year 1875. That when he came to this city, as aforesaid, he brought with him the only assets of the Company then existing, consisting of the said $115,-464.70 in Confederate currency, which still exists in kind in the possession of these Respondents, and which is herewith tendered in court to await the order of court.”

These admissions follow the general denial.

The answer in the other case decided by our predecessors, contained substantially the same averment of the conversion of the funds of the Company into Confederate money and the compulsory cause thereof; but there was not in that answer, as in this, a tender of the Confederate money, and it is claimed, besides, that in this answer there is virtually an admission that Pike was the president and treasurer of the Company up to the time of his death, and that during this time prescription could not run in his favor.

The admission is claimed to be found in this expression :

“ Defendants admit that from the 21st day of 'January, 1856, up to the said day of Win. S. Pike acted as president and treasurer of-the Southern Mutual Insurance Company.”

It is this language of the answer which, as stated, it is claimed is inconsistent with, and precludes the plea of prescription filed by defendants. The nature and effect of this part'of the answer are first to be considered.

It is an elementary rule of practice that where a particular thing is demanded in a suit, and the delivery of that thing is tendered by the defendant, in response to the petition, or where a liability is charged for a stated debt, and the money is sought tobe recovered, a tender of the sum claimed, or a part thereof, amount to judicial admissions touching the thing or the money demanded, that cannot, as a rule, be defeated by prescription or any other defense inconsistent with a liability for the thing or money tendered on the part of the defendant, and the right of th.e plaintiff to receive that thing or recover that money. It is quite as elementary, however, that the tender made must accord strictly with the demand.

Here the suit is for the restitution of certain specific objects, and to establish a liability for, and compel the payment of a large sum of money. As to the moneyed demand, the defendants deny any liability therefor, and, as wo construe it, not to weaken that denial, but to strengthen it and to g'ive-a reason therefor, they say that the party, whom they are sued as representing, never liad in his possession and keeping the sunr of money charged, and which receiving possession and keeping is averred to be the very basis of their demand, but that only “ Confederate money ” was received by him through compulsion ; and which Confederate money, worthless though it be, is tendered to the plaintiff as the money and only money that Pike had received and kept as president and treasurer of said Company.

We do not think the admission on this point, and the tender referred to, have the force and effect contended for and constitute a confession on the part of the defendants that they owe to the plaintiff the amount of Confederate money so tendered, $115,464.70, in lawful currency of the United States, for which alone — and not for Confederate money— they were sued. And our conclusion is the same, whether we consider the entire answer as a whole, or the parts thereof separately. The admission that Confederate money had been received and the tender in kind of this money, could not reasonably be coustrued as a confession that the defendants, or the party they represented, owed a like amount in any kind or sum of money.

Nor do we view the language last quoted from the answer, as an admission that Pike was the acting president and treasurer of the Company up to the time of his death. Were we to construe the word “said,.” or “ said day,” occurring therein, as referring to the time or the day named in the petition, as'terminating the tenure of his office, his functions in the capacities charged, and which was the day of his death, as contended for by counsel, then we might give it that meaning, but we do not so construe it. It may be, strictly speaking, the proper grammatical construction, there being no time or day mentioned in the answer and, therefore, none therein to which the expression “said day” refers; and the day of Pike’s death being the day last named in the petition. But we must not rely solely on grammatical construction as an infallible test to arrive at the meaning of a word or sentence, but should rather gather that moaning from the entire context, and following this j uster rule, we find in other parts of that answer expressions which fully show that no such admission was intended. For instance, itis stated in theanswer “ that all the business of said corporation ceased in the year 1862, owing to the war, and after that period no new risks were taken.” “ That on the expiration of the practical workings of the corporation in 1863',” etc., language that forbids the idea of the Company being still in existence, and Pike acting as its president and treasurer, when he died. Construed as a whole, the clear intent of the answer was that the Company ceased its active operations and was no longer a live Company after 1863, and then ended, practically, Pike’s connection with the Corporation as its president and treasurer.

■ Thus, we find nothing in the answer that operates as a bar to the plea of prescription, or in any way takes this case out. of the principles and the decision respecting this plea, enunciated in the case 7821, decided by our predecessors. In that case, this question of prescription against the identical demands preferred in this suit was determined, and determined upon issues and pleadings substantially the same as now presented, the only difference being that in that case, whilst all the parties now sued were charged with liability for the debt, only one of them, but he standing on the same plane, and having the same representative capacity as the others, was sued. There is no reason, then, why that decision should not be viewed as determining the same issue now presented upon the same demand, and should not control our conclusion respecting it, unless we find it so repugnant to the legal principles bearing on the issue, as to deprive it of all force and authority as a precedent. To show how completely it covers this case, we quote from that opinion delivered by Chief Justice Manning, as the organ of the Court,.as follows:

“ This Company was located at Baton Rouge. The last meeting of its directors was held there February 1, 1862. The statement made then by the elder Pike, as its president and treasurer, is the basis of this suit. He left that place permanently in 1863, or early in 1864. During his life no suit was instituted against him. The latest entry in the books was in 1864. The prescription pleaded by the defendant, as one of the heirs of his father, cannot be successfully opposed to the demand for any specific object, such as the books, etc., and it is conceded that it does not. But the cash or money in hand in 1864, and the liability for non-collection of the notes and premiums on policies, is on a different footing. By the conversion of the former, and by the failure to collect the latter, a debt was created and the prescription liberandi causa is applicable thereto.
“It cannot be seriously contended that Pike received the money as a special deposit. It was not expected that he should return it in kind, or distribute the identical money among those who might be entitled to it.
. “From themomeut when the business of the Company stopped, when he ceased to conduct it in any of the capacities he had assumed, the liability for the money or personal obligation arose, which was enforceable against Mm. This is equally true of the notes. If it was his duty to collect them, and he failed to perform it, whereby they were lost, his liability attached, and Ms creditors must enforce it in time, at their peril.*****
We hold that the elder Pike’s liability attached in 1864; that his son and heir cannot prescribe the demand for specific property, but he can oppose the piescription liberandi causa to the claim for money, and to that of indebtedness for failure to collect the notes and premiums which it is alleged he should have collected. He lived twelve years after the business of the Company had ceased. No judicial demand was made during that time for the recovery of the debt created by his alleged laches, and his heir is protected from that demand by the lapse of time.”

This same demand is again urged by the same plaintiff and against the same defendants, and others joined with him in the same capacity, and by reason of its rejection by our predecessors, for the canse assigned, we must regard the disposition thus made of it as final and conclusive, and authoritative upon us.

It is, therefore, ordered, adjudged and decreed, that the judgment appealed from be annulled, avoided and reversed, and proceeding to render such judgment as should have been rendered, it is further ordered, adjudged and decreed, that the plaintiff recover of the defendants the specific objects described in the petition, such as the books, papers, seal, etc., of the Southern Mutual Insurance Company, and that the rest of the demand therein contained, be rejected, and the plea of prescription filed against the same as to said moneyed demand be sustained ; defendants to pay costs of the lower court, and plaintiff of this appeal.

Levy, J., absent.


author: Pocini, J.

text:
    No. 7645.
    Mrs. Annie Huyghe vs. Henry Brinkman.
    The judgment of a justice’s court ejecting an occupant of a house under the laws of landlord and tenant, charged to be null and void in an action of damages for wrongful ejectment, cannot be inquired iuto collaterally, if regular in form and valid on its face.
    A plaintiff in an ejectment suit is not responsible for tbe manner in which the officer charged with the execution of the judgment performed his duty, unless he instructed him or directed his course in the premises.
    APPEAL from the Third District Court for the Parish of Orleans. Monroe, J.
    .7. 0. Nixon, for Plaintiff and Appellee:
    1. The judgment of a justice’s court in an ejectment suit where plaintiff sues as landlord is not conclusive of title between the parties, where the plaintiff in the suit has never been in either physical or legal possession of the property, and whore the defendant has always possessed and claimed as owner.
    A contract of lease can only be created by consent of parties.

      3. A mere notice from one not in possession, and wlio lias never been in possession, to a possessor who claims as owner, that he will be held liable for rent if he does not vacate, cannot make the possessor the tenaot of him who gives the notice. 17 An. 23 5 20 An. . 2(38; 19 An. 101,

      Bayne & Beneyre, for Defendant and Appellant.
   The opinion of the Court was delivered by

Pocini, J.

This is an action for damages, in which plaintiff charges in substance, that at the instance of defendant, who claimed to be the owner, by qrarchase at a partition sale of her husband’s succession, of the house and lot in which she had resided before and since her husband’s death, she was illegally ejected from her home by the constable of a justice’s court, in execution of a judgment of said court.

She charges the’nullity of said judgment, which was rendered on the law of landlord and tenant, on the ground that she was not a tenant of the defendant, and that said judgment of the justice’s court was virtually a judgment passing on the title to immovable property, over which said court had no jurisdiction, and she claims damages in the sum of two thousand dollars.

Defendant appeals from a verdict and judgment in plaintiff’s favor, for five hundred dollars.

We note that plaintiff in her petition does not allege ownership of the property, and does not pray to be recognized as such, and hence the question of ownership cannot be passed upon in this case.

Plaintiff charges that the judgment in the justice’s court was obtained by deception and fraud, and is an absolute nullity. An inspection of the record of that case shows that plaintiff was duly cited in an ejectment suit as a tenant, and that a judgment, regular in form and valid on its face, was rendered and duly notified. No appeal was taken from said judgment, no action in nullity was filed, and judgment is, therefore, final.

It maybe, as plaintiff argues, that the evidence did not show that she was a tenant of defendant, and that the true object of the suit was to place defendant in possession of immovable property, under an issue involving a question of title, over which the court had no jurisdiction. But there is no evidence in the record to support those allegations, or to show that such proof was made in the justice’s court. As the judgment is not absolutely null, we have no authority to review it, and must conclude that it is what it purports to be, a judgment of ejectment between landlord and tenant.

Hence, the defendant Brinkman cannot be held responsible in damages for causing the execution of a valid judgment rendered in his favor; and is not responsible for the acts of the officer charged with tlie execution, unless it be proven that he directed the officer as to the manner and mode of executing the judgment. 11 A. 476, Barrymore vs. McFeely, 32 A. 1179.

The record shows that the defendant was not present and did not in any manner interfere with the officer in the discharge of his duty.

As the judgment under which plaintiff was expelled is final and valid on its face, and as she does not claim title or ownership to the property from which she wns ejected, we are at loss to conceive upon whait grounds she can recover damages in this suit.

Hence, we conclude, that there is error in the verdict of the jury.

It is, therefore, ordered, adjudged and decreed, that the verdict of the jury be set aside, and the judgment of the lower court annulled, avoided and reversed, and it is ordered that plaintiff’s demand be rejected, and her action dismissed, as in case of non'-suit, at her costs in both Courts.

Rehearing refused.

Levy, J., absent.


text:
    No. 7752.
    Mrs. E. Weiser vs. Peter Blaese et al.
    When an order was rendered granting a suspensive appeal, but before the transcript was filed in this Court, a. rule was taken to set aside the order of appeal, on the ground of insufficiency, of the surety on the appeal bond, which rule was made absolute, and a judgment was rendered revoking the order of appeal after the transcript was filed:
    A motion to dismiss the appeal, accompanied by a transcript of the proceedings in the lower court on the rule, with its judgment setting aside the order of appeal, will be maintained and the appeal dismissed'.
    No appeal will be recognized in this Court without an order of appeal upon which it is based.
    APPEAL from the Third District Court for the Parish of Orleans, Monroe, J.

      A. L. Tucker, 8. Belden, for Plaintiff and Appellant.

      L. L. Bevy, for Defendant and Appellee.
   The opinion of the Court was delivered by

Todd, J.


author: Poohé, J.

text:
    No. 8592.
    State ex rel. Police Jury of Livingston Parish vs. F. W. Miscar, Sheriff, et al.
    A suit for mandamus by the Police Jury of a parish to compel the Clerk and Sheriff of the parish to remove their offices and archives toa now seat of juBtice designated by said Police Jury, which contains no moneyed demand, discloses no appealable interest within the appellate jurisdiction of the Supreme Court; and an appeal taken from a judgment f ’ therein will be dismissed.
    The affidavit of appellant or of his counsel, touching the pecuniary amount involved in a controversy, will be considered by the Supreme Court, when the record discloses some pecuniary amount in dispute; but when it appears from the'nature of the suit that no judgment can be rendered, adjudicating a pecuniary gain or loss to either party, such affidavit will not be considered as conferring jurisdiction.
    APPEAL from tlie Eighteenth Judicial District Court, Parish of Livingston. Thompson, J.

      8. D. Kills, District Attorney, M. A. Strickland, W. B. Kemp, for Relator and Appellants.

      Bussell & Marr, for Defendants and Appellees.
   Motion to Dismiss.

The opinion of tlie Court was delivered by

Poohé, J.

The Police Jury of Livingston Parish lias taken this appeal from a judgment rejecting its application for mandamus to compel the Respondents to remove their offices and their papers and' archives from one place to another, the latter place- having been selected and designated by an ordinance of the Police Jury, as the parish seat of said parish, in obedience to an election ordered under the provisions of Act No. 13 of 1877, Extra Session.

Appellees’ motion to dismiss the appeal, on the ground that the issue presented in the cause does'not involve a pecuniary amount in dispute within our appellate jurisdiction, is well founded and must prevail.

Art. 81 of the present Constitution, defining the jurisdiction of this Court, has already been the subject of several thorough judicial investigations, and we consider the following proposition as embodying a correct interpretation of that Article, and as firmly established in our jurisprudence: with the exception .of suits for divorce and separation from bed and board, and of cases involving the legality or constitutionality of any tax, toll, or impost, or of any fine, forfeiture or penalty imposed by a municipal corporation, our civil appellate jurisdiction must be tested-By the pecuniary amount involved in the controversy,

as between the parties thereto. State ex rel. Newman vs. Hayles, 32 An. 1136; State ex rel. Crean vs. Bouny, 32 An, 1191; State ex rel. Buckner vs. Jastremski, 33 An. 110.

In this case there is no moneyed demand of any kind; and hence, our jurisdiction must be tested by the amount of direct pecuniary interest involved in the controversy as between the parties thereto, as disclosed by the pleadings and by the evidence.

The issue is the right of Relators to compel the Respondents to obey the mandate of the Police Jury changing the parish seat, and we are at an absolute loss to conceive of any pecuniary interest which the Relators may have, directly or indirectly, in the determination of such an issue. And it is equally clear that Respondents have no more pecuniary interest involved in the question.

W e quote from appellants’ brief on the merits, the folio win g significant declaration: .

The clerk and sheriff, as officials, have no interest as to where the seat of justice shall be located in a parish.”

And without violence, the same reasoning can be applied to the members of the Police Jury, as officials.

We note, and we have given due consideration to the allegation in Relator’s petition, and to the affidavit of their counsel filed in this Court, in which it is stated that the amount in controversy and the interest involved to the people of Livingston largely exceeds one thousand dollars in tliis suit.”

But we have sought the record in vain for any evidence to support either the allegation or the affidavit.

With due deference to counsel, we know that, their affidavit was made in good faith, and it is very probable that the suit does involve, for the people of Livingston Parish, a pecuniary interest exceeding one thousand dollars, but such interest, if it exists, is not disclosed by the record, and besides, the people of Livingston are not parties to this controversy.

In the case of Crean, 32 An. 1191, we distinctly laid down the rule that: “ The magnitude of public interest awakened by the peculiar litigation, the importance of the legal questions, added to the dire consequences to flow from the execution of an alleged unconstitutional Act of the Legislature, cannot alone be invoked as the test of our jurisdiction in any given case.”

In the case of Wilkins vs. Gault, 32 An. 929, plaintiff had sued on an amount exceeding one thousand dollars, but the record showed that a portion of the sum declared upon consisted of legal interest added to the capital of the claim, which, without such interest, did not exceed one thousand dollars, and for those reasons the appeal was dismissed, and in that case the following rule of interpretation was announced : “ The real amount in dispute, exclusive of interest, whenever the same can be legally ascertained from the pleadings and documents annexed, and not the allegations of parties, is to be the test of our jurisdiction and shall be our rule in determining all such questions.”

In the case of E. R. Moore et al. vs. Police Jury of Bossier Parish, involving the removal of the parish seat, we entertained jurisdiction on the ground that a citizen bf the parish intervened in the suit, and alleged and showed an appealable interest in the controversy.

When, from the nature of the pleadings, some pecuniary interest is disclosed, and the special amount of it does not clearly appear, an affidavit showing that such interest is of an appealable amount, will be considered in support of the appellate jurisdiction.

But no allegation and no affidavit can create an appealable amount of interest, in a litigation which, from its very nature and essence, presents an issue involving no pecuniary gain or loss to the parties in the suit, and where it is apparent from the pleadings that the only judgment to be possibly rendered, can adjudicate no amount in dispute or dispose of no fund to be distributed.

The principle on which wo rest this opinion was fully recognized and frequently applied by our predecessors of this Court, in determining similar questions of jurisdiction, as appears from the following decisions: State ex rel. Sternberg vs. Lagarde, 21 An. 18; State ex rel. Creagh vs. Judge, 21 An. 108; State ex rel. Wrotnoski vs. Bryan, 21 An. 186; State ex rel. St. Romes vs. Levee Press Company, 22 An. 622; State ex rel. Hero vs. Lavische, 24 An. 148; State ex rel. Belden vs. Markey, 21 An. 743.

We are, therefore, clear that the pleadings and the evidence in this case fail to disclose in either party to the suit, a pecuniary interest within our appellate jurisdiction. The motion to dismiss and the merits of the case, being submitted together, we had the undoubted authority to examine the evidence, as well as the pleadings, in testing the question of jurisdiction.

And we may add, that by this view of the subject, the ends of justice are well subserved, since a question involving an interest purely local will be solved by the local authorities.

It is, therefore, ordered, that this appeal be dismissed at appellants’ . costs.

Rehearing refused.

Levy, J., absent.


text:
    No. 8493.
    Mrs. Catherine Zeller, Widow, vs. Southern Yacht Club.
    The alluvion or batture that forms upon the shores of Lake Pontchartrain is not susceptible of private ownership, such alluvion does not therefore'become the property of owners of lots fronting on said Lake.
    It is the accretion made by rivers and streams only, that belongs to the proprietors of the adjacent lands.
    APPEAL fromtlie Civil'District Court for the Parish of Orleans. Lazarus, J.

      Joseph Brewer, W. B. Pascoe, for Plaintiff and Appellant:
    1. The rule of construction that a later statute does not repeal a former statute unless by positive enactment or irreconcilable conflict; that one section of a statute does not repeal a former, if it can he construed as an exception to such former section, is more strictly enforced in reference to the Civil Code than even in the case of a statute.
    2. The former statute, section, article, sentence, is affected by the latter only so far as the exception specifically made is concerned; and this exception cannot he extended by implication or inference — because such extension would constitute a pro tanto repeal of the general law previously existing. C. C. Art. 23; 4 Rob. 71; 2 An. 919; 3 An. 399; 13 An. 329, 383; 20 An. 140; Bowen vs. Lease, 5 Hill, 221; Canal Co. vs. Railroad Co . 4 Grill & John, 1; Street vs. Commonwealth, 6 W. & S. 209; Commonwealth vs. Easton Bank, 10 Barr, 442; Brown vs. County Commis., 21 Penn. 37: Sedgwick on Con. Stats, and Con. Law, pp. 98-106.
    3. Lake Pontchaitrain is not an Arm of the Sea, hut is an inland basin, not having an immediate connection with the*sea, and situated above the level of the sea. The right of aceretion does exist on Lake Pontchartrain. C. C. Art. 510.
    4. “ Accession, ” is derived from the Latin work accessio, which means, an increase or addition. The derivative, accession, is the right to all which one’s own property produces, whether that property he movable or immovable, aud the right to that which is united to it by accession, either naturally or artificially. 2 Kent Comm. 360; 2 Blackstone Comm. 404; C„ C. Arts. 504 et seq. ¡ Bouvier’s Dictionary, verbo Accession. •
    5. The property claimed by plaintiff is both an accession and accretion.
    <3. A frontage on Lake Pontchartrain is what plaintiff acquired under her title. The boundary of her property, in the deed, was a frontage on the lake, and that she islegally entitled to.
    7. Usurpations and wrongs to private rights of property cannot he justified by considerations of benefit to commerce, and the right of expropriation of private property can only he exercised according to the forms of law. 12 An. 541.

      8- Defendant corporation is without title, and although it contends that the property claimed by plaintiff is common property, yet this same corporation has taken possession, occupy, use and enjoy this common property, to the exclusion of plaintiff and all other persons, which is a clear usurpation of a private right.

      Joseph B. Bornor, Brands W. Baleer, for Defendant and Appellee:
    1. Accession is that which becomes united to, or incorporated with other property, by reason of human agency. O. C. Arts. 504 etseq.

    2. One claiming of an accession to his property, must first tender the value of the materials and the piice of the workmanship to the person who made it. C. O. Art. 508.
    3. Alluvion, or batture, is the gradual and imperceptible deposit of earth by a river, or flowing stream, on its hanks. It results from the forces of nature, not by human inter- • vention. O. O. Art. 509; Domat Civil Law, Art. 2157.
    4. Accretion is the right to claim the alluvion, or batture, which is the thing. Bouvier’s Dict’y, verbo Accretion.

      5. It is essential to the right to accretion, that the land should be bounded on one side by a ■water-course. 6 M. 216 ; 9 M. 717; 18 La. 122.
    6. 'There is no right of accretion, alluvion, or batture, in favor of owners of land fronting the sea-shore. 12 La 324. 18 La. 122.
    7. Lake Pontchartrain is an arm of the sea, and there is no right of accretion upon its shores. Its shores are not susceptible of private ownership. C. C. Art. 450-1-2-3.
    8. The Revetment or Protection Levee, on the shore of Lake Pontchartrain, in the rear of the City of New Orleans, erected by the Mississippi and Mexican Grulf Ship Canal Company, under Act. 30 of 1871, are the property of the corporation of the City of New Orleans, under its exclusive control, and are not susceptible of private ownership or control. Act 30 of 1871; Act 16 of 1876,
   The opinion of the Court was delivered by

Todd, J.

The plaintiff, having title by purchase to a lot situated on Lake Pontchartrain, seeks in this suit to be declared owner of the “batture, accession or accretion, formed and to be formed between the former frontage of the lot and the waters of the lake,” and to recover of the defendant two thousand dollars for trespassing thereon.

An exception was filed by the defendant, substantially to the effect: “ That the petition disclosed no cause of action; that the plaintiff seeks to recover an accession or accretion on the shore of Lake Pontchartrain, and the right of property does not exist in such accession or accretion on said lake, the same being an arm of the sea.”

The exception was sustained and the suit dismissed, and the plaintiff has appealed.

We think the judgment was correct.

Accession “ is that which is united to, or incorporated with, the property,” and under certain conditions belongs to the owner of the property to which it becomes united. The term is generally applied to what is united to the property by artificial means. C. C. 504, 507, 508.

“Accretions” are the gradual and imperceptible augmentations of the soil situated on tlxe shore of a river or other stream,” and are called “ alluvion',” and sometime “ batture.”

“ The alluvion belongs to tlio owner of the soil situated on the edge of the water, whether it be a river or stream, and whether the same be navigable- or not.” C. C. 509.

“ Preeterea quod per allvvionem agro tuo jlumen adjaeit, jure gentium tibi adquiritur.” Justinian, lib. 41, tit. 1, law 7, sec. I.

The only thing that can, in tins suit, he embraced under the claim of “ accession ” as distinguished from accretioh, alluvion, or batture, which last result from natural causes alone, is the protection or revetment levee, constructed by public authority after plaintiff’s acquisition of the lot between the bank of the lake and the waters thereof. Even if such construction could be the subject of private ownership, the ground on which it rests must first-be shown tobe plaintiff’s, before she could claim any interest in the levee, or other improvement made thereon.

The next Article of the Code, following the one recognizing accretions or alluvion on rivers becoming the property of the owners of the contiguous soil,- declares:

“The same rule applies to derelictions by running water retiring-imperceptibly from one of its shores and encroaching on the other; the owner of the land adjoining the shore left dry, has the right to the dereliction.”
This right does not take place in case of derelictions of the sea.” C. C.-510.
. “ JEt quidem naturali jivre eommunia sunt omnium heecjaer aqua pro' fluens, mare, et per hoc littera mcms.n
JEst autem littum marts quatenas hybernas fluetus maximus excurrit.” Justinian, Ins. lib. 2, tit. 1, sec. 1-3.

The plaintiff, however, denies that Lake Pontehartrain is either the sea or an arm of the sea, and, therefore, contends that this question of' accretions or alluvion on the sea shores has no applicability to this case. It might be a sufficient reply to this, to say, that the only acknowledged right to accretions as property under our law, are those formed on rivers and running streams; and that there is no recognition of any property right therein, when formed on lakes, bays, arms of the sea, or other large bodies of water, and that the modes or ways of the acquisition of property are limited to those expressly prescribed bylaw and cannot be extended by implication. But we consider this question virtually disposed of in the case of Milne vs. Girodeau, 12 L. 324. That was a petitory action to recover a lot lying on the same body of water, Lake Pontehartrain. On this lot the defendant had erected buildings. In the opinion of the Court it is stated :

“ The defendant, who is in possession, avers in his answer that it makes a part of the sea shore, is common-property,' and that plaintiff cannot have the ownership thereof.
■ “ It appears to us that the ground in question lies much below high water mark, and forms part of the bed of the lake, and is ,not, therefore, susceptible, of private ownership.” .

We have attentively examined the case of Hollingsworth vs. Chaffe, 33 An. 547, to which we have been referred, and find it has no bearing on this case.

The judgment of the lower court is, therefore, affirmed with costs,

=Levy, J., absent;