author: Nicholls, C. J.

text:
    No. 11,431.
    Succession of Jumonville Morvant.
    1. Where, after a succession has been placed under a regular administration an, olographic will of the deceased is found bequeathing the usufruct of certain specific property to a particular person, and this will is, at the instance of the legatee, offered for probate by an attorney at law and probated over the opposition of the heirs and the administrator, remuneration for such services must be sought not from the succession, but the particular legatee.
    2. To sustain a claim made by the mistress of a man that she is entitled to one-half of all the property left by him at his decease, on the ground that it was the result of their joint thrift and industry and economy, where there is no evidence to show that she furnished a cent for the purchase of the property, but, on the contrary, occupied toward him the relation of his servant, would be to place the mistress substantially on the footing of a wife. Such a claim is sustainable neither by law nor by morals.

      Meld on contest upon the will—
    2.Thatit was throughout a bequest in usufruct for life.
    2. That it was aspecialllegacy of specifically described objects and not a universal legacy or a legacy under a universal title.
    3. That the objects bequeathed were those in existence at the date of the will and not at the date of the death of the testator.
    4. That the executor, being charged with the duty of seeing that the proper security should be given by the usufructuaries under the law, is entitled to commissions upon the appraised value of the property so bequeathed.
    APPEAL from the Eighteenth District Court, Parish of Lafourche. Guión, J., in place of Caillouet, J., recused.

      Thomas A. Badeaux and Arthur F. Knobloeh Attorneys for Executor, Appellant:
    1. The judgment of the lower court should be amended so as to restore fees of counsel and executor’s commission as fixed in the account of executorship; that the land shall be given to Frank Reese in usufruct, during life, on his furnishing security required by law.
    2. A legacy of certain specific and designated objects is a special legacy and not a universal legacy, or legacy under a universal title.
    3. A legacy of designated objects to A and B, for “ longs they live ” and for “they life times” doesnot transfer the objects infull ownership and can only be interpreted as the constitution of an usufruct for life.
    4. In the interpretation of a will, the intention of the testator must govern, and to arrive at the intention effect must be given to every clause and every expression in the will. Qualifying words used by the testator to restrict the extent of the legacy can not be disregarded.
    5. A special legatee has no concern to question any item in the executor’s account which is not covered by the terms of his legacy, and when his legacy is paid him in full.
    6. A concubine, whose status is fixed by a judgment in a suit wherein she was plaintiff and the succession of the deceased was defendant, can not be heard to claim anything from the succession in addition to what is allowed her in the judgment, which has become final.

      Beattie & Beattie Attorneys for Frank Reese, Opponent and Appellant :
    1. In the interpretation of wills the intention of the testator is the guiding star, and in case of doubtful expressions a meaning must be given to them that it is likely the testator meant to give, considering his habits and his education. 35 An. 718, Duranton, Liv. Ill, Tit. II, Chap. Y, Sec. XI, 361; 35 An. 1056, Touillier Y, Sec. 362; Id., Yol. YI, Sec. 310.

      2. A will of movables operates as if written at the moment of the death of the testator. It operates upon all of the property then owned by him. 35 An. 718; Lovelace on Wills, Part II, Oliap. 1,19; Touillier V, Sec. 362.
    3. In the interpretation of wills a court may supply words, and a fortiori it may punctuate in accordance with the rules of the English language. 8 An. 254.
    4. Article 480, 0. 0., does not govern the case at bar, the articles given being in a different house from the one given.
    5. If, in a conjoint legacy to two, one of the legatees is incapable of receiving, the whole goes to the other by accretion. C. 0.1707,1708.
    6. Attorneys’fees for filing application for administration, and especially if there is a will, must be paid by the applicant and not by the estate. 10 K. 541.
    7. An administrator who turns over all of his duties as administrator to his attorney must pay the fees of his attorney himself. 3 An. 517.
    8. An attorney will be allowed nothing from the estate when his services were not beneficial to it and when advice given by him was of such a character as to cause great trouble and costs to the estate.
    9. An administrator or executor guilty of acts of spoliation toward the estate, and so remiss and unfaithful in his duty as to cause great trouble and extra costs, is not worthy of his commissions.

      Glay Kndblooh & Son Attorneys for Harriet Reese, Opponent and Appellant:
    A concubine who receives from her paramour a donation inter vivos which, under Art. 1481, 0. C., is reduced to one-tenth of the estate, is not estopped from claiming as a copartner and in her own right one-half of the property of the paramour, when she alleges that concubinage was a mere incident of the relations that ab initio were those of master and servant, and when she further alleges that her joint labor, industry and economy contributed to accumulate and save such property. 8 M. 11; 7 An. 152; 25 An. 448; 44 An. 61.

      John S. Billion Attorney for Pauline Hébert", wife of decedent and dative tutrix of the minor Germaine Morvant, Opponent and Appellee :
    1. The intent of the testator must appear from the will itself and the instrument is to be construed as a whole.
    2. Though written by an unlettered man, and whilst therefore not according to the rules of grammar, the intent is clear.
   The opinion of the court was delivered by

Nicholls, C. J.

Jumonville Morvant died in the parish of Lafourche on June 2, 1890, leaving neither ascendants nor descendants, but collateral relations. On the 6th June, 1890, Sylvere Morvant, a brother of the deceased, applied to be appointed administrator of the succession. An inventory was taken, and, after the usual delays and notices, Sylvere Morvant qualified as administrator. On the 7th October, 1890, one Harriet Reese filed a suit against the succession represented by the administrator, claiming two one-thousand dollar bills which had been inventoried as part of the assets of the succession as her own property by title of manual gift made to her by the deceased. Answer was filed in the suit, and upon the issue therein made the case was tried and resulted in a judgment on the 7th April, 1891, decreeing that Harriet Reese having been the concubine of the deceased could recover but one-tenth part of the succession after the payment of all just and legal charges. This, judgment was not appealed from and became final.

In the suit of Harriet Reese vs. The Succession of Morvant, a document which was afterward probated as a will was filed, the filing bearing date 25th February, 1891, and it remained on file in that suit until the 8th of October, when, at the instance of one Frank Reese, represented by TÜessrs. Beattie & Beattie, attorneys at law, it was offered for probate as the last will of Jumonville Morvant.

On the 31st October, 1891, Sylvere Morvant and his brothers and sisters filed their opposition to the probate of this document and the-prayer for the executorship, claiming that it was not a will, but asking, if the court should so declare it to be, that Sylvere Morvant be appointed executor.

The District Court on the 12th December, 1892, held the document to be a will, leaving the question of the executorship to be determined subsequently. On appeal to this court this judgment was affirmed. Succession of Morvant, 45 An. 207. In the subsequent contest for the executorship, Sylvere Morvant was appointed and qualified as such on the 17th June, 1893.

The instrument probated as the will was as follows:

“September 14th 1878.

“ Brother and Sister i Give my piec of Lands What i Bout from Miss-O M Gillis To Harriet Reese and Frank the boy what i rase and also, my buggay and all my Cow and my oxson and the Oart also dollar My Mare and oil What i got in the house i give all that To Harriet Reese and Frank Longs they live Brother and sister i give that to. Harriet Reese and Frank for they Life times So no Law got anythings to do With What i give her and Frank i give it to her with all my heart She has been with me 24 years Well my Brother and Sister i sine my manes on thispiee paper for you all to see that i Right dis myself.

“J. Morvant

“ J. Morvant

“JF Morvant

“ Brother Joahim you will get all my money that Mr. H W tabor got for me and you will give it to harriet Rees he got 2 noat for me.”

The executor filed his final account of executorship and tableau of distribution on the 8th of December, 1893. To this account Messrs. Beattie & Beattie, Frank Reese, Harriet Reese, and the tutrix of Germaine Morvant, one of the minor heirs, filed oppositions.

On the trial of the case the executor filed .'pleas of estoppel and res judicata to the opposition of Harriet Reese. •

In this account or tableau the executor makes the statement that, by the last will of the deceased, Frank Reese and Harriet Reese were given the usufruct for life of — first, the real estate described under the item 1 of the inventories, valued at $700; second, the horned cattle or their value, described under Nos. 5, 6, 7, 8 and 9 of the inventories, aggregating a value of $79; third, the movables, the No. 10 (one gun and one hunting bag), valued at $30, but that the buggy referred to in the will is no longer in existence and the mare, “ Dollar,” died long since.

He declares that, in his opinion, the rights of Harriet Reese were fixed'by the judgment rendered in her suit against the succession, and that she can not claim the rights fixed by that judgment and also the usufruct bequeathed her; that, therefore, he proposed to deliver to Frank Reese, upon his furnishing security as usufructuary and otherwise complying with the law, the aforementioned property still in existence, to be enjoyed by him in usufruct according to the terms of the will.

The account showed certain movables and a balance in cash still in the hands of the executor, which he proposed to distribute among the legal heirs of Morvant.

In the opposition filed by Messrs. Beattie & Beattie they claimed as being due them as privileged creditors of the j succession the sum of five hundred and five dollars for their services as attorneys at law. They allege that knowledge of the existence of the paper afterward probated as a will was brought home to Sylvere Morvant, then acting as administrator of the succession, as far back as 25th February, 1891, by the filing of the same in the suit of Harriet Reese. That in spite of this knowledge he failed and refused to open the succession and probate the instrument, but continued to intermeddle in the succession and retain its funds without any authority or legal right and without rendering any account. That on the 8t.i October, 1892, they were employed by Frank Reese to open the estate and to probate the will; that they filed a petition for that purpose in the name of the said Reese, who was a legatee under the will, and asking for letters of executorship; that this application was opposed by the administrator and all the heirs at law of the deceased. That the litigation ended in the probating of the paper as a will by the District Court and in the affirmance of the action of that court on appeal to the Supreme Court. That in this litigation they and opponent Reese acted for the best interest of t le whole estate, legatees and creditors.

Frank Reese claimed in his opposition that by the last will of the deceased he was made his sole universal legatee. He opposed generally each and every item of t e account,- and certain items thereon particularly mentioned. He prayed that he be declared the sole universal legatee and placed in possession of the estate, and that he recover judgment against the accountant for thirteen thousand one hundred and seventy-five dollars.

Harriet Reese in her opposition declared that she was entitled to one-tenth of the whole succession by virtue of her judgment, in the suit already referred to, asserting that said one-tenth had been adjudged to her under a manual donation inter vivos made to her by Jumonville Morvant. She claimed that she was, moreover, entitled to one-half of the remainder of the succession for the reason that for forty years next preceding and up to the death of the said Morvant he and she had lived continuously and uninterruptedly as man and wife, but that their relations ab initio were those of employer and servant — opponent being his servant; that at the time their relations as such began, and for years thereafter, Morvant was a poor man, not owning any property whatever; that opponent attended to all his household affairs, keeping house for him, raising and selling poultry, raising cows, caring for them, selling eggs and milk, doing all his housework, as cook and washerwoman, caring for and saving up the money made by them in their joint industry, economizing in every possible way the sam 5 as a good and dutiful wife would have dore, and demeaning herself toward him as faithfully as if she had been his lawful spouse, taking care of all his cloth’ng, mending and buying same for him; and she avers that by reason of all that is aforesaid, and by her thrift, economy, joint labor and industry during said forty years, she enabled him to acquire, accumulate and have all the property that is inventoried in the matter of his succession, and is therefore entitled to one-half of all the said property after deducting the one-tenth thereof for the aforesa d donation made to her inter vivos. In addition to this claim she opposed the account on grounds which it is unnecessary to particularize in view of the conclusions we have reached in the case.

The district judge recognized Frank Reese as the owner in full ownership of the real estate referred to in the will and ordered him to be placed in possession thereof. It recognized him to be entitled to hold in usufruct certain movables mentioned, and ordered that he be placed in possession as usufructuary on giving security as such according to law. It rejected the claim of Harriet Reese in so far as she set up a claim to be entitled to one-half of the property of the succession, in addition to the one-tenth of the estate adjudged her under the donation of the two promissory notes.

It ordered the executor to account for $175 for the stallion Grandy, and rejected his claim for commissions on the property declared to have been bequeathed to Frank Reese. It reduced the fee of L. P. Caillouet, attorney at law, to $200, and that of Messrs. Badeaux and •A. F. Knobloeh to $250; also reduced to $10 the fee of Ooulon, notary, and such changes having been made and ordered to be made, ■it homologated the executor’s account.

Messrs. Beattie & Beattie, Harriet Reese, Frank Reese, Sylvere Morvant, the executor, and Mrs. Pauline Hebert, tutrix, appealed.

We think the action of the lower court in rejecting the opposition of Messrs. Beattie & Beattie was correct. Morvant appointed no executor in his will, which was limited in its dispositions to a special legacy of specific property. The existence of the paper afterward probated as such will was unknown to his legal heirs at the date of his death, and his succession was regularly opened and placed under administration with an administrator as its legal representative. Opponents claim that their services in subsequently, at the request of Frank Reese, propounding the will for probate and doing so successfully against the opposition of the heirs and administrator enured to the benefit of all parties concerned. It is a mistake to suppose that should a succession have been either entirely or partially settled under the administration of an administrator, that all acts done under such administration would necessarily be invalidated by the production of a will in which the testator should have specially bequeathed particular property. (Dwight vs. Simon, 4 An. 493.) No person other than the particular legatee would have an interest in the probating of the will, and his only interest would be to receive the legacy. If the legacy should in point of fact be received it would be a matter of indifference to him whether it should have been delivered by an executor, an administrator, or by heirs in possession. It is not essentially necessary that an executor should be the representative of a succession in all cases where the deceased may have left a will, although, where that fact is known, such would be the character of the legal representative. The office of executor is but ancillary to the great object of settling and distributing the estate. Nicholson vs. Ogden, 6 An. 486. In this particular case the probating of the will was solely and exclusively in the interest of the special legatee and to him his clients must look, as the court below declared. Roselius vs. Delachaise, 5 An. 481; Michon vs. Gravier, 11 An. 598; Wailes vs. Succession of Brown, 27 An. 412.

The rejection by the court of the opposition of Harriet Reese, claiming one-half of the property of the succession, in addition to the rights adjudged to her under the donation of the two notes mentioned, was also correct. She alleges that she was the servant of Morvant. She never ceased to be such. If anything be due to or belong to h’er, it is not “property ” based upon the grounds set up, but “ money” as “ wages ” for services rendered. If the claim asserted by the opponent were maintained, it would place the concubine of a person upon the same line and footing as a wife. Such a proposition can not for an instant stand the test of either law or morals.

The cases of Delaman vs. Roger, 7 An. 152, and Malady vs. Malady, 25 An. 450, relied on by the opponent, were decided upon their own special state of facts and not upon the theory of a quasi community of acquets and gains between a man and his mistress, on which theory the present claim must rest, if at all. In the cases cited the rights of the women were predicated on the fact that they had actually furnished the money with which the property was purchased.

In the first case the court said: “The reasonable effect of Art. 2804 of the Civil Code is to render the participator in concubinage incapable of recovering as a universal partner one-half of the property acquired, although her labor may have contributed nothing toward its accumulation; but when her capital and labor have contributed a full share toward the result, equity entitles her to half the property acquired.”

Art. 2804 of the former is Art. 2888 of the present Civil Code, and is as follows:

!< Universal partnership shall only be contracted between persons who are not respectively incapacitated by law from conveying .to or receiving from each other to the injury of others.”

There is not a word in the record going to show that the deceased ever received a dollar from the opponent, or that a cent of her money was ever employed in the acquisition of any property, whilst it does appear that in the settlement of the estate she will, under the donation made to her, receive in money an amount equal to one-tenth of the value of the whole succession.

This opponent made special objections to the account filed by the administrator. Some of these objections were to the effect that the administrator had failed to charge himself with various amounts which should have been placed to the credit of the succession; others, that certain charges presented as claims against the succession were excessive. As a general rule, one neither an heir nor a creditor of a succession has no right to interfere in its administration, but under the exceptional facts and circumstances of this ease Harriet Reese, though holder and owner of two notes against third persons, became entitled to examine and question the account of the administrator, in so far as it would tend as rendered to throw the tenth of the value of the estate illegally and improperly below the amount of the two notes donated to her. The parties whose claims were reduced upon these oppositions, and those of Frank Reese, have not appealed. The administrator is not authorized to appear before us in their behalf, and the judgment as to those parties must remain untouched. There has been a misapprehension, we think, in respect to the position and rights of Harriet Reese, and in the scope of the judgment which was rendered in the suit which she instituted to have herself recognized as owner of the two notes referred to.

Her rights as donee of those two notes were entirely separate and distinct from those as a legatee under the will. When upon her claiming ownership of the notes the defence was set up that she had been the concubine of the deceased, and therefore could not, under Art. 1481 of the Civil Code, take by donation to an amount exceeding one-tenth of the value of the whole estate, the court maintained the defence and limited her rights to one-tenth under the article cited, it, at the same time, to that extent recognized the donation in substance, though not in form. The judgment did not change the character of her title. She did not become through the judgment the holder of a general claim against the succession for one-tenth of its entire value, whatever it might be, but remained the owner of a special claim under the donation, which, under no circumstances, was to exceed $2000, but which was subject to be reduced below that sum, if necessary, to such an amount as would make the donation conform to the law. Her status as donee and legatee were not merged together under and through the judgment. The effect of this misapprehension has been, we think, to cause the opponent to make no claim as a legatee under the will, either in this court or the court below.'

The next opposition in its order in the record is that of Frank Reese. In reference to this the district judge said: “The first question to be disposed of is how should the will of Jumonville Morvant be construed and interpreted. In other words, what did he dispose of — to whom and by what kind of title? The executor contends that by his will Morvant left only the usufruct to Frank Reese of the real estate which is described in the inventory, and the usufruct of the horned cattle, gun and hunting bag, which are also inventoried. He claims, on the other hand, that all of the property described in the will and left by the testator at his death was given to him in full ownership and not as usufructuary. By his will the testator constituted Harriet Reese and Frank Reese his legatees, but as the former was his concubine and could not receive anything from the estate beyond the tenth part provided for by Article 1481, the latter became his sole legatee by right of accretion under Article 1707, 0. C. What then did he leave to Frank Reese? * * * I think it plain that he intended to give to his legatees in full ownership the land which he bought from Mrs. C. M. Gillis — -the same which is described under No. 1 of the inventory, and that he gave to them the remainder of the property disposed of by him. The question now to be determined is: Did he leave to them the usufruct of only such property mentioned in the will as he owned on the 14th September, 1878, the day the will was made, or was it his intention to give the usufruct of such property of the same kind as he might leavé at his death? In my opinion the objects described in the will are particular legacies and Frank Reese is a particular legatee. He does not constitute him either a universal legatee nor a legatee under universal title, for he does not give to one or several persons the whole of the property which he leaves at his decease, as provided by Article 1606 of the Oivil Code, nor a certain proportion of the effects of which the law permits him to dispose, as a half, a third, or all his immovables, or a 1 his movables, or a fixed proportion of all his immovables or of all his movables, as provided by ArFcle 1612 of the Oivil Code. The testator designated particularly the property he de. sired to dispose of in full ownership, as well as that which he proposed to give the usufruct of. In my opinion it can not be successfully contended that objects of the same kind as those specially disposed of on the 14th September, 1878, were intended to be included in the legacy, and my view of the case and of the law on the subject is that only such objects as were in existence on the day the will was made were intended to be covered by the clause therein giving the righ of usufruct to his legatees.

“Mareadé says: ‘Ainsi celui qui legue tous ses immeuble; mais eomme biens speciaux determinés et non en masse; celui qui legue m.me en masse et dans leur ensemble toutes ses maisons- — -tous ses bois — tous ses immeubles de- colonies ou de tel departement ec qui exclut ainsi ses autres immeubles ds la disposition ne fait que des legs particuliers. II en sera ainsi encore de toute.- dispositions d’usufruct si éxtendu que eet usufruct puisse étre.’ Yol. 4, p. 101 (Art. 1010, O. N.) ; same volume, p. 117 (C. N. 1019) ; Succession of Dougart, 30 An. 272.

“It is clear to my mind that the testator intended to leave the usufruct of the buggy which he then had, and which the evidence shows was not on hand at the time he died. It is not necessary to discuss what cows he intended to dispose of in usufruct, since the executor has proposed to turn over the horned cattle left at the death of the testator. The evidence shows that at that time there were no longer, any oxen, also that the mare ‘ Dollar ’ had died, and that the cart spoken of consisted of only an axle, a hub and some ties, of little or no value as a cart. I am of the opinion that the language of the testator in leaving the usufruct to his legatees of ‘ all what I got in the house’ can not be interpreted to mean a disposal in usufruct of all that he might have in his house at his death, but only of such as he had at the date of his will. His will designated and meant to designate such objects legally included within the meaning of his language as he owned at the time, for he speaks of the present, and not of what he might have at his death. I am borne out in my interpretation by the rule laid down in Arts. 1720 and 1722 of the Civil Code, and by the decisions of the Supreme Oourt in the Succession of Valentine, 12 An. 286, and Lawson vs. Lawson, 12 An. 603. Counsel contends that all the property owned by the deceased at the date of his death was transferred to him, and not such only as he had on the 14th of September, 1878, the day the will was made, and rely upon the Succession of Burnside, 35 An. 719, and Succession of Marks, 35 An. 1055. It will be noticed that in both of those cases the legatee was an universal legatee and not a particular legatee of certain designated property, as in the instant case. * * * So far as Frank Reese is concerned, I have reached the conclusion that he is entitled in full ownership to the land described under No. 1 of the inventory, and that he is entitled to the usufruct of the cows and other horned cattle, as well as the gun and hunting bag, and the axles, ties andhub of an old ox cart, all of which are described under No. 5 to No. 10, inclusive, and No. 12 of the inventory, on his giving security as usufructuary.”

The judgment of the court as to Frank Reese conformed to the views expressed by the judge in his opinion. The conclusions reached by the District Oourt were correct, except that relative to the disposition made by the testator of the land mentioned in the will and described under No. 1 of the inventory. We are of the opinion that the testamentary disposition made of that land in the will was of the usufruct thereof during lifetime, and not of the full ownership of the property. Counsel of the executor in their brief say: “The articles intended to be bequeathed are enumerated by this illiterate man in his own inartistic and clumsy manner, but in such a way that his meaning is obvious. No period can be supplied, without doing violence to the sense, after the words ‘the boy what I rase,’ and yet without putting a full stop at this part of the sentence it can not be said that the will gives the land in full ownership to Frank Eeese. The sentence in its natural order comes to a stop after the words ‘ longs they live.’ A new sentence begins with the words brother and sister, which follow. Full and complete sense is made by adopting this interpretation of the will. If a period is placed after the words ‘ the boy what I rase ’ we will have to make the following sentence'begin with the words ‘ and also my buggy,’ etc., which is not permissible according to plain rules of punctuation. We contend that the only natural construction to give to the words ■of the will in which they refer to legacies is to treat the land, the buggy, the cows, the oxen, the cart and the mare ‘ Dollar’ as forming but one continuous enumeration, all qualified by the expression 1 longs they live,’ and by adopting this interpretation we come irresistibly to the conclusion that the land as well as the movables was intended to be given in usufruct. We are •strengthened in the contention that we make by the very next sentence in the will, which by the terms used emphasizes the intention of giving the land in usufruct. It says: ‘i give that to Harriet Eeese and Frank for they life times, so no law got anything to do with what I •give her and Frank.’ The word that ’ used in the second clause refers evidently and can not refer to anything else than the whole •enumeration of objects contained in the first sentence, including, of course, the land. If it had been the desire of the testator to exclude the land from the usufruct that he was constituting, it is certain he would have used words to indicate his meaning. It would have been ■easy for him to say, for instance, ‘I give the piece of land that I bought from Miss Gillis, to Frank and Harriet.’ Had he stopped there, his meaning would have been that he gave the land in ownership to these beneficiaries of his bounty, but the fact that he goes on and says that he gives also the buggy, etc., to these persons for as long as they live, and that he further indicates his intention of establishing a usufruct in their favor by saying that he gave them that ’ for their lifetime, points to the conclusion that he meant to give •everything mentioned specifically in the will in usufruct and not otherwise.” Counsel refer us to the frequent use of the words “brother and sister” in the will as significant; they say that by adopting the interpretation that the land and movables were' to be given in usufruct only there was a reason why the testator desired to address his collateral kindred. He recognized that under the law all his property would belong to his blood relations and he did not wish to deprive them of their inheritance. At the same time, he wished to impress upon his heirs that while he gave them everything else that was not enumerated in the will, that even those designated objects would be theirs ultimately, but he wished that Frank and Harriet Reese should not be disturbed in the use of the land and movables as long as they lived.” We think counsel have taken a correct view of the intention of the testator as expressed in his will.

Holding, as we do, that Frank Reese was a special legatee of particular objects, the opposition filed by him wherein he seeks to-charge the executor with an increase in the credit items of the account require no attention at our hands and this is conceded by his counsel.

In deciding that only the usufruct of the land mentioned in the will was conveyed by the will, we throw the constructive possession at least, and the responsibility for that property for the time being) upon the executor, whose duty it will be to see that proper security be given by the usufructuary in the premises. Being thus responsible for it, he is entitled to have the same included in the property upon which his commission is based. With the exceptions mentioned, we think the judgment appealed from is correct.

For the reasons assigned, it is hereby ordered, adjudged and decreed that the judgment appealed from be amended in so far as it adjudged and decreed and recognized Frank Reese to be the owner in full ownership of the real estate bequeathed to him by Jumonville Morvant and described under No. 1 of the inventory in his succession, and that he be ordered to be placed in possession thereof by the executor, Sylvere Morvant, and it is now ordered, adjudged and • decreed that Frank Reese be and he is hereby recognized as usufructuary during his life under the will of Jumonville Morvant of the real estate mentioned in said will and described under No. 1 of the inventory of his succession, and that he be placed in possession thereof by the executor on his giving security according to law.

And it is further ordered, adjudged and decreed that the judgment appealed from be amended in so far as it rejects the claim of the executor to be paid a commission of two and. a half per cent, on seven hundred dollars, the inventoried and appraised value of the real estate recognized m the judgment to be the property of Frank Reese,, and it is now ordered, adjudged and decreed that the claim of the executor to be paid a commission of two and a half per cent, on the appraised value of the property mentioned in the will and described under the Ho. 1 of the inventory be recognized as just and the same is maintained. As so amended, the judgment appealed from is affirmed and the case is remanded for further proceeding according to law, costs of appeal to be paid by Messrs. Beattie & Beattie, Harriet Reese. Frank Reese and Mrs. Pauline Hebert, tutrix.


source: Caselaw Access Project

license: Public Domain

text:
    No. 11,458.
    E. O. Stanard Milling Co. vs. William P. Flower.
    1. The ratification of the act of ail agent can not be divided and applied to one part of the act and excluded from the other; it is entire or nothing.
    2. An agreement signed by an ostensible purchaser of flour couched in the following language:
    “ Bought of E. O. Standard Milling Company 3000 barrels of Eagle Steam flour at $3.85 f. o. b. St. Louis, for shipment at ray option during month of Mareh,. 1893. It is further agreed and understood that if I do not want to receive the flour in March, settlement may be made as follows, viz.: E. O. Stanard Milling Company paying me any difference there may be if an advance in value or my paying E. 0. Stanard Milling Company the difference between the purchase price and the market price at the time of settlement, provided the value then is less than the purchase price. Settling prices to be based on St. Louis Merchants Exchange quotations on extra fancy flour at date of settlement,’’ held to be void as coming within the provisions of Art. 2983 of the Civil Code relative to gaming.
    APPEAL from the Tenth District Court, Parish of Rapides. * J.

      Robert P. Hunter Attorney for Plaintiff and Appellant:
    In a future contract relating to the sale of flour, if the party seeking to enforce the contract was ready to make an actual delivery of the flour, and if as to such party the contract so contemplated, it can be enforced at law, and is not reprobated as a wagering contract. Conner & Hare vs. Robinson, 37 An. 8H; Gruner & Co. vs. Stucken, 39 An. 1076.

      John C. Ryan and J. R. Thornton Attorneys -for Defendant and Appellee :
    Sales of property for future delivery, with the bona fide intention and obligation to make actual delivery, are lawful contracts; but if, under the form of sucha contract, the real intent be merely to speculate on the rise or fall of prices, and the goods are not to be delivered, but the contract is to be settled on the basis of differences of price, the transaction is a wager and is non-actionable. Conner & Hare vs. Robinson, 37 An. 814 and 818; American and English Encyclopedia, Vol. 8, pp. 1006, 1007, 1011; Id., Yol. 3, pp. 873, 875.
   The opinion of the court was delivered by

Nicholls, C. J.

Plaintiffs, a Missouri corporation, seek a judgment against the defendant for $2250 with legal interest from April 1, 1893, under an agreement evidenced by the following instrument:

agreement.

St. Lours, Mo., U. S. A., 10-21, 1892.

Bought of E. O. Stanard Milling Company 3000 barrels of Eagle Steam flour at $3.85 f. o. b. St. Louis, for shipment, at my option, during month of March, 1893. It is further agreed and understood that if I do not want to receive the flour in March, settlement maybe made as follows:

• E. O. Stanard Milling Company paying me any difference there may be if an advance in value or my paying E. O. Stanard Milling Company the difference between the purchase price and the market price at the time of settlement; provided, that the value then is less than the purchase price. Settling prices to be based on St. Louis Merchants Exchange quotations on extra fancy flour date of settlement.

(Signed) W. P. Flower,

per J. G. White.

Plaintiffs allege that they have at all times been ready and willing to comply and have complied with all their obligations under the terms and stipulations of the said agreement, that they manufacture about 2500 barrels of flour daily, and were ready and willing during the month of March, 1898, to ship f. o. b. on the cars at St. Louis the 3000 barrels of flour bought by said William P. Flower, had he so ordered, in accordance with his option as specified in said agreement, which he utterly and entirely failed to do through no fault or neglect of theirs. That not only did he not order the shipment of the flour purchased, but he has failed and refused to comply with the stipulations of the second clause in said agreement by settling the difference between the $3.85 per barrel fixed in the agreement and the price per barrel which said grade of Eagle Steam flour was selling for during the month of March, 1893, at St. Louis, to-wit: $3.10 per barrel, as would be shown by reference to the quotations of the St. Louis Merchants Exchange for extra fancy flour, which is the standard fixed by the said agreement, notwitnstanding amicable demand was made upon him so to do, but on the contrary, when he was requested to settle the said differences in accordance with the terms of the agreement and the usages and commercial customs relating-thereto he refused to settle said differences and announced his intention not to pay the same, thereby voluntarily placing himself in default and relieving and dispensing the plaintiffs with the duty or necessity of giving him any notices or making any further demands upon him; and they expressly deny that under the terms of said agreement they were called upon at any time to give Flower any demand or notices whatever. Plaintiffs aver that the sum claimed is the amount 'of the difference between the purchase price and the market price of said 3000 barrels of flour at the time specified in the agreement, and that this difference represents the actual loss of profits that they would have made on the said 8000 barrels of flour if the said Flower had complied with the contract and agreement and ordered the said 3000 barrels of flour shipped at any time during the month of March, 1893, and he justly owes them the said amount.

Defendant pleaded first the general issue. Further answering he declared that neither himself nor White, who signed the writing or agreement sued on, are merchants in flour or any other article of merchandise, either by the wholesale or retail. That Moses Bloom, who is and has long been a resident of the parish of Rapides, still is a,nd has been for the last fifteen years, the agent for the plaintiff, transacting and managing its business in Rapides and other neighboring parishes in the State. That he is well and favorably known in commercial circles and in business as a man of experience, honesty and integrity, and enjoys the confidence of all who knew him.

That a few days before the date of the writing sued on, respondent heard that flour was very low in price, and cheaper than it had been for many years, with every probability of its advancing a few months later on, and that the plaintiffs’ agent, Moses Bloom, was-selling what was and is known as speculating, wagering or future contracts for it. That he saw the agent, who confirmed this report, and thereupon ordered 3000 barrels of Eagle Steam flour, March, futures, on a basis of $3.85 per barrel for that month; that it was distinctly agreed and understood that neither the said flour so ordered nor any part of it was contemplated or intended by either party for real or actual delivery in the month of March, 1893, or at any other time, and that the agreement was to be what is known as a speculating, wagering future contract; that it was further understood that the margins on the said flour was 15 cents per barrel, or $450 on the whole 3000 barrels, and that if this brand and quality of flour should further decline as much as 15 cents per barrel respondent would he notified and called upon by plaintiffs for an additional margin of 15 cents per barrel, and that he would then have the option of keeping the margin good on that basis, otherwise he would lose any and all margins put up, and the whole transaction was to be deemed null and void from that mome t by all parties without further notice or delays. That not only at the time of giving the order but at the time of signing the writing or agreement sued on, it was the distinct understanding and expressed intention of all parties that it was a speculating, wagering aid future contract, and not an actual or real agreement for sale, purchase and delivery of any flour i i March, 1893, or any other time. That the whole matter was from beginning to end negotiated with and the writirg or agreement sued on signed at Alexandria, La., with the said Moses Bloom, who stated at the time of signing that it was well and perfectly understood that it was not a real contract for delivery or sale and purchase of actual flour because it was a notorious fact that that large quantity of flour would overstock the whole parish of Rapides; that it was never the intention of any party that the agreement sued on was to be considered a purchase, sale, transfer or delivery of any flour at any time, but a mere and simple wager on its future price or value in March, 1893.

That if the said writing is susceptible of any other construction or Interpretation on its face than that of a speculating future wagering agreement as to the future price of Eagle Steam flour at the St. Louis Merchants Exchange in March, 1893, then he shows and avers that the same was signed and the whole transaction from beginning to end was made through error and mistake on the part of himself, the said White and the said Moses Bloom. That during his absence and without his knowledge the writing or agreement sued on was signed at Alexandria, La., and forwarded to the plaintiffs by the said Moses Bloom; that on his return to Alexandria on or about the 31st of October, 1892, he was for the first time informed that the agreement had been signed, and at the same time was notified by the Rapides bank that the plaintiffs had drawn two sight drafts on him, each for $450, and exchange thereon, and payment thereof was demanded.

That one of the said drafts was drawn and dated on October 24, 1892, and the other October 27, 1892. That he forthwith, on the 31st October, 1892, notified the plaintiff that he refused to honor the said drafts, and that he declined to consummate and execute the agreement by putting up the first or any subsequent margin and to consider the whole transaction at an end and off. Respondent specially denied that any demand was made on him for the amount sued for, or that any notice or statement was sent him, or any notice for him to pay for and receive the said flour, or that plaintiff was ready and willing to deliver any flour at any'time before the filing of this suit; thus showing that it knew and understood the agreement sued on to be nothing more than a speculating wagering agreement as to the price and value of Eagle Steam flour at the St. Louis Merchants Exchange, March, 1893.

On the trial of the case the court rendered judgment rejecting plaintiff’s demand, and it has appealed.

There can be no doubt that the contract as made between Bloom and Flower was what is known as a future contract. In his testimony the former admits that fact. He said: “I am an old resident of this town and parish. This whole transaction was negotiated through me here in Alexandria. When this flour was ordered it was understood that it was to be future flour; there was to be nó actual delivery in March or at any other time; it was understood that it was a future contract — that no delivery was to be made. The understanding with Mr. Flower was that he was to put up a margin of fifteen cents per barrel and keep his margin good if flour declined. I can’t remember whether I told Mr. Flower at the time he gave the order he would be closed out, but it is the custom so far as I know. .'Mr. Flower was not present when this contract was signed. I remember when Mr. White signed the agreement that he said to me: ‘ Now, Mr. Bloom, this is a future and not a- real contract,’ and I replied, ‘ This was not for actual delivery; that 3000 barrels of flour at one time here would overstock the market, and that if that large quantity of flour were in this town at one time, you couldn’t sell it for 25c. per barrel.’ It was not the intention of any of the parties that this should be actual flour — by any of the parties I mean myself, J. G-. White or W. P. Flower. About the same time of this transaction, I made similar contracts for the delivery of flour in March. I sold about 13,000 barrels under similar contracts.” Plaintiffs concede that the evidence establishes that the defendant did not contemplate the actual purchase of 3000 barrels of flour, j but submit that it does not establish any sub-understanding on the part of the plaintiffs. The company urge that Bloom was not authorized to make this particular contract; that the writing evidencing the agreement does not show on its face any illegality; that knowledge of the actual facts .of the case was not brought home to them. We understand it to 1 e intimated that even though plaintiffs’ agent (acting as such) may have made an illegal contract, the contract could none the less be enforced if the principals themselves were not aware of its character, for it is claimed that their right to recourse would not be affected unless they were a party to the understanding which made them so. Bloom, in the transaction, unquestionably acted for and in behalf of the plaintiffs in making this agreement. The plaintiffs sue upon it. If they affirm it at all they must do so in its entirety as made; they can not affirm part and repudiate a part. Elam vs. Carruth, 2 An. 275.

Without entering into details of the testimony in the ease, it suffices to say that we are satisfied that the plaintiffs had full knowledge from the beginning of the exact terms of this agreement. Referring to the writing on which this suit is based, plaintiffs’ counsel claims that it is nowhere stipulated in it that the E. O. Standard Milling Company are to have the option of not making an actual delivery of the flour; that their obligation to deliver the flour when called for in the month of March, 1893, f. o. b. on the cars at St. Louis, is absolute and unequivocal, that it is only the defendant who is granted the right of not calling for the actual flour and the privilege of requiring a settlement by an adjustment of the differences in price.

With a view of testing the character of the agreement entered into between the parties, let us assume that on the 31st of March, 1893, the price of flour, instead of being $3.85 per barrel, the price mentioned in the agreement as the purchase price, had advanced to $4.85; that on that day, the defendant having notified the plaintiff that he would not accept delivery of the flour, they had paid into his hands the sum of $3000, and then ask by what right and under what title would the defendant have received the money, and from what cause, from a legal standpoint, would the plaintiffs have paid it. Would it have been' paid to defendant by way of damages? Damages are given as the result and consequence of a breach of contract, but in the case assumed there would have been no breach .of contract, and not only was there not a breach of contract as a contract of sale, but the plaintiffs would have been unable under the contract (no matter how greatly might have been their desire or their interest to do so) to free themselves from their obligations as vendors by the performance of the legal obligation of the delivery of the flour imposed upon them as such by the law. In spite of themselves they would have been forced under the contract (if legal) to have paid the defendant a sum of money. If the money would not have been paid by way of result or consequence of a breach of contract, then it would have been paid by way of direct affirmative performance of an original contract. If that contract had been one of sale, the performance would have consisted of the delivery of the 3000 barrels of flour, but instead of this we find that the position of parties to a contract of sale would have been reversed, the vendors paying over instead of receiving money; and not only this, but the amount so paid differing greatly from that stipulated as the price of the flour. Reasoning backward from result to cause, we And that this original contract was not one for the sale of flour.

Taking the suit as it is, what is its character? Is it a suit for the specific performance of a contract of sale? If it was, then the demand would be for the purchase price stipulated in the agreement and plaintiffs would have alleged and would seek to prove a tender; but the demand is not for the purchase, and the necessity of the tender is absolutely denied. Is it a suit against the plaintiffs for damages? Clearly not. If the defendant (had the plaintiffs made a tender) had declined to receive delivery, his refusal would have been simply the exercise by him of the legal right so to do expressly reserved and stipulated in the contract, and damages do not flow from the exercise of a legal right. New Orleans vs. Wardens, 11 An. 244. The suit is for the specific performance of a contract, but the contract sought to be enforced is not a contract of sale. We are of the opinion that the agreement was purely and simply that which Bloom declares in his testimony. All parties clearly understood it to be a wagering, speculating future contract in which an actual delivery of the flour was not contemplated under any contingency. The agreement bears on its face that the parties were not contracting on the basis of the after execution by either of the legal obligations springing from a contract of sale, but expressly ab initio upon the fact of the non-execution of such obligations. It will be noticed’ that under no contingency was the milling company to have the right of delivery — a right which it certainly would have, had the contract been one of sale.

In holding that the agreement fell under the provisions of Article 2983, which declares that the law grants no action for the payment for what has been won at gaming, or by a bit, except for games tending to promote skill in the use of arms, such as the exercise of the gun, and foot, horse and chariot racing,” and wis, therefore, not enforceable, we are of the opinion the District Court reached a correct conclusion, and the judgment appealed from is therefore affirmed.


author: Nicholls3 C. J.

text:
    No. 11,469.
    W. H. Howcott, J. E. and F. X. Ransdell vs. Board of Commissioners of the Fifth Louisiana Levee District.
    1. An assessor can not bring together a number of distinct properties belonging to different individuals — fix a single valuation upon them as a whole, and, ascribing the ownership of them all to one of the owners, assess taxes against him to the full amount of the assessment 011 that false assumption.
    2. The aet of the tax collector in advertising and adjudicating said properties in block to the State in enforcement of the delinquent taxes thereon so assessed, * was without legal authority.
    3. Property of one person can not be sold confusedly with those of others where there is no privity of estate between the parties; one person’s property can not be sold to pay the debt of another.
    4. The transferrees from the State of property held by it under such a title are riot protected by the prescription of three and five years.
    APPEAL from the Seventh District Court, Parish of Madison. Montgomery;, J.

      Jos. E. Ransdell Attorney for Plaintiffs and Appellees:
    1. An illegal assessment is insufficient description of property and want of notice on radical defects. A tax sale under such conditions will be invaded and not protected by the prescription of either three or five years. 82 An. 228; 34 An. 123; 29 An. 510; 35 An; 1086; 37 An. 356. ,
    . 2. Description in tax deed must be the same as that on assessment roll, which is the warrant to collect. Rougelot vs. Quick, 34 An. 126; Blackwell, pp. 123, 278.
    8. Taxes must be legally due in their entirety, otherwise the sale is void. Rouge-lot vs. Quick, 34 An. 126.

      4. There is no actual assessment of property as contemplated hy law, when it is not assessed to the owner, and is confusedly assessed with other property. • McWilliams vs. Michel, 48 An. 984.
    5. An assessment is defective and a sale thereunder null and void when the property is owned in indivisión, and is assessed to the estate of a deceased co-proprietor when he lived and died in another parish. Norris vs. Hays, 44 An. 904. The promiscuous commingling in an assessment of the lands belonging to several different proprietors (as in the instant case) is analogous to the case of lands owned in indivisión, hence the sale thereunder would be] null and void.
    6. If the description includes more than the taxpayer really owns, the assessment will bo void. For example, if the area of the tract, or the taxpayer’s interest therein, is exaggerated the mistake is fatal. Saunders on Taxation, 108, and other authorities cited.
    7. Separate tracts of land must be assessed separately and sold separately. When the property is assessed and sold in block, Art. 210 of the Constitution is violated, and the sale will be annulled. Saunders, p. 107, and authorities; Norres, Tutor, vs. Davis, 44 An. 907.
    8. A tax sale of property, assessed in the name of one who is not the owner, is an absolute nullity and passes no title. LeBlanc vs. Blodget, 34 An. 107; 28 An. 537. Hence these sales were absolute nullities, beyond question, as to all lands which did not belong to Lambdin, or to Byrne, and if absolute nullities as to over one-half of the land included therein, it logically follows that they are null in toto.
    W. M. Murphy for Defendant and Appellant:
    1. Any attack upon the validity of a tax sale, except for the want of an essential prerequisite, is barred by the prescription of three years. ‘Acts of 1874, page 155; In re Douglas, 41 An. 765; 40 An. 142; Barrow vs. Wilson, 39 An. 410.
    2. All informalities connected with or growing out of any public sale are pre-* scribed against by the lapse of five years. 38 An. 1174; 14 An. 777; 29 An. 535; 33 An. 673; 21 An. 584.
    30 In every case where a tax sale has been annulled for insufficiency or illegality of the assessment, it will be found that the property has not been sufficiently described for its identification. 29 An. 510; 15 An. 15; 14 An. 709.
   The opinion of the court was delivered by

Nicholls3 C. J.

In the years 1880, 1881 and 1882, the assessor of East Carroll parish assessed together, in the name of Samuel H. Lambden, a large body of lands separately described by numbers of township, range, sections and subdivisions of sections, at a valuation in block for all the lands, the same aggregating some nineteen hundred or more acres.

During the same years the assessor also assessed in similar manner a large body of land aggregating two thousand and seventy-three acres in the name of Charles Byrnes.

In April, 1883, the tax collector of East Oarroll advertised these lands for sale for delinquent taxes. The advertisements followed the assessments. At the sale made under the advertisements both bodies of land (each sold in block) were adjudicated to the State as the last and highest bidder.

The State subsequently transferred these lands to the defendant' the Fifth Louisiana Levee District.

On the 16th of May, 1892, plaintiffs instituted the present suit, in which they allege themselves to be the owners of certain described property included in the two sales referred to, by purchase from their former owners, Samuel H. Lambden and Charles Byrnes. In their petition they refer to and attack the sales of the said properties to the State as being nullities and a cloud upon their title. They pray for judgment annulling and setting aside any claim or title of the Fifth Louisiana Levee District to the lands described in their petition and quieting them in their own title to the same.

The attack upon both sales is substantially the same, varying only as to names of parties and description of lands.

They aver that no valid assessment of these lands was made. That only a small portion of the lands described in the assessments belonged to the parties in whose names they were assessed; that the greater portion belonged to other parties; that the portion belonging actually to the parties named was blended and confused with property of other persons, and charged with taxes not due by it. That a portion of the lands assessed to Lambden was situated in West and not in East Oarroll, and a portion of the lands described was at a distance of many miles away and entirely separate from the other portion.

They aver that there was a large discrepancy in the lands assessed in the name of Byrnes, between the acreage set out in the tax rolls and the true acreage indicated by the description, and that the amount of taxes for which the property was sold being calculated upon an erroneous acreage was largely in excess of what was due by the 1020 acres of Byrnes land which was really included in the tax collector’s deed.

That the lands were illegally sold confusedly with property belonging to other people and for taxes due for such other lands. They charge that notice was not given to Lambden & Byrnes as required by Art. 210 of the Constitution. The defendants pleaded, first, as an exception, “the prescription of three years in bar of plaintiff’s right to bring this action to invalidate a tax title under which defendants hold possession in good faith.”

They next answered by a general denial, and pleaded the prescription of five years against all the alleged informalities charged in the petition.

Judgment was rendered in the District Court against the defendants, and in favor of the plaintiffs, in Conformity to their prayer, and the defendants appealed.

The evidence establishes that a large part of the property assessed to Lambden and a large part of that assessed to Byrnes belonged not to them, but to other persons; that a part of that assessed to Lambden was in another parish, and a portion was entirely separate from the other lands and many miles away.

The witnesses testity: That whilst Byrnes was assessed on 2078 acres the description of the land per official survey shows only 940 belonging to him plus 300 acres belonging to other parties; the whole amounting to 1240 acres instead of 2078.” We do not think plaintiffs have shown want of notice to the former owners. The sales under the assessments having been made in block, and following the assessments, the question submitted to us is whether the former owners were divested of their title or not, and whether the defendant is protected and secured by the prescriptions set up.

There can be no question as to the assessments made having been wrongly made. The assessor has no legal right to include in one assessment and under one valuation properties belonging to different persons (Persons vs. O’Neal, 32 An. 228; Workingmen’s Bank vs. Lannes, 30 An. 871) and the State, through its officers, had no right to sell together properties of different individuals assessed in that manner.

In suits between private individuals conducted under ordinary proceedings, where the rules of proceedings are far less rigorous than in tax proceedings, it has been on several occasions held that the property of one person could not be sold confusedly with that of another where there is no privity of estate between the parties. See Mavor vs. Armant, 14 An. 178, and Savage vs. Williams, 15 An. 252.

The property of one person can not legally be sold to pay the debt of another, even though through the sale a debt of his own may be paid, and the tax collector was without power or authority'to do so. We are of the opinion that the prescriptions pleaded do not apply to this case.

For the reasons assigned it is hereby ordered, adjudged and decreed that the judgment of the District Court be and the same is hereby affirmed.


author: Nicholls, O. J.

text:
    No. 11,474.
    Beland and Johnson vs. Gebelin and Duggan.
    1. Before the court sustains an exception filed by a defendant his legal interest to take the particular exception must appear.
    2. Plaintiff in bringing a petitory action is not necessarily forced to cumulate therewith an action of nullity to set aside judicial proceedings in which apparently his title in the property has been divested. He has at his risk the right to allege such proceedings to be absolute nullities and to go to trial on that issue.
    APPEAL from the Fifteenth District Court, Parish of East Baton Rouge. Buelmer, J.

      Cross & Cross Attorneys for Plaintiffs and Appellants:
    1. The rule that the decree protects the purchaser is subject to two conditions: (1) That the court is competent, in the subject matter, to render the decree. 14 L. 273; 13 An. 476; 25 An. 164; 2 L. 328; 11 L. 156; 20 A n. 233; 29 An. 523; 30 \ n. 139, 727; 23 An. 310; 30 An. 482, 1111; 40 An. 571; James vs. Meyer, 41 An. 1100. (3) The purchaser must be an innocent third party. (11 An. 3; 14 Ai}. 622 ; 34 An. 293, 1017); and a deputy sheriff can not claim this position. 8 N. S. 165; 6 L. 407 ; 9 L. 44; 15 L. 398, 4. R. 205.
    2. A judgment in attachment suit, without citation, or actual seizure of property, is absolutely null, and can be collaterally attacked. 4 An. 187; 6 An. 551; 7 An. 669; 15 An. 709; 33 An. 615; 1 N. S. 9; 6 L. 377; 11 R. 121; 6 An. 265; 2 An. 492 ; 6 R. 205; 2 An. 569, 503; 13 An. 481; 20 An. 76; 21 An. 27; 24 An. 253; 26 An. 730, 735; 23 An. 421. So, a sale by the Federal marshal can be attacked in a State court. 31 An. 746.
    3. A sale of property under administration under a fl. fa. is an absolute nullity. 13 An. 476 ; 25 An. 154.
    4. A return showing an adjudication by a defunct sheriff is void. In such case it is the duty of the acting sheriff to execute the deed. C. P. 691-2. Voorhies Revised Laws, Sec. 3436.
    5. On a trial of an exception the facts of the petition must be taken as true. (9 An. 265; 10 An. 586); for allegations not denied are presumed true. 11 An. 516; 14 An. 137; 18 An. 161; 20 An. 430; 31 An. 433.

      J. A. Addison Attorney for Defendants and Appellees:
    1. Asale of real property belonging to a succession, under a decree of a competent court, will not be beld to be an absolute nullity on account of irregularities in the mortuary proceedings which lead to the granting of the order. In such a ease the claimant under adverse title must cause the sale to be annulled by direct action. 23 An. 331.
    2. The title acquired at a judicial sale is presumed to be valid until the contrary is shown in a direct action to revoke and annul, contradictorily with all parties in interest. 29 An. 116.
    3. Sales directed or authorized by the courts of probate are judicial sales to al legal intents and purposes (13 La. 433) and purchasers thereat are not bound to look beyond the decree. 10 R. 396; 138 U. S. Í56; 44 An. 421. He must look only to the jurisdiction of the court. Art. 109, Constitution 1879.
    4. No relative nullities in the title of either plaintiff or defendant can be inquired into, even though there have been fraud. Hen. Dig. 1114, No. 2.
   The opinion of the court was delivered by

Nicholls, O. J.

Plaintiffs aver that they are the sole heirs of their father and mother, Jean Marie Lancelot and his wife. That their father’s succession was opened in East Baton Rouge and a certain piece of real estate described in their petition was inventoried as community property. That John O’Connor, in his capacity as public administrator, took possession of said property on June 17, 1871, and rendered his final account, which was homologated December 31, 1873. That in the decree homologating the account the parish judge ordered the property to be sold to pay debts and effect a partition, but that this sale was arrested by a decree of court affirmed on appeal June 29, 1878, on the petition of O. D. Eavrot, tutor of plaintiffs, who were then minors. That on March 31, 1884, said John O’Connor, ex parte, procured an order to sell property to pay debts, and an undivided half interest in said property was adjudicated to Joseph Gebelin, but said sale was an absolute nullity for the following reasons:

1. The court was without jurisdiction to render the order. The public administrator was' fnnetns offieio and his office abolished. In this matter his final account had been homologated and he was specially enjoined and prohibited from selling said property by a decree still in force.

2. The sale was an absolute nullity, because it purported to sell the ■ undivided half interest belonging to the father to pay community debts.

3. That all the debts as set forth in the account of 1873 were presumably paid and prescribed, and by inspection the purchaser could see said order was ultra vires.

4. IJhat petitioners having been represented by a tutor were necessary parties to any proceedings to sell.

5. That Joseph Gebelin was deputy sheriff and could not validly purchase property sold by the sheriff.

That about the time of this sale there turned up among waste papers in the sheriff’s office a pretended sale by the sheriff of the other undivided half interest in said property to B. Peibelman, made in execution of judgment in Feibelman vs. Lancelot, No. 682, parish court, and by mesne conveyances the said half interest has been transferred to Joseph Gebelin.

That said sale was never treated or intended to be a serious sale. The judgment in Feibelman vs. Lancelot, which was under attachment proceedings, was an absolute nullity. There was no citation and the property was never actually in the possession of the sheriff, but remained continuously in the possession of John O’Connor till March, 1884. That said sheriff’s sale was nothing but a projét and not an executed title. It was never recorded before 1884, when B. Peibelman sold his litigious claim without warranty to John H. Lamon for $50, which was a nullity, as said Lamon was an attorney, practising in said court. That said property is worth $3000 and the annual revenue $250. That Joseph Gebelin is the ostensible owner of said property, but Timothy Duggan, of said parish, is in possession, and plaintiffs are informed and believe has a title to said property either for his own benefit or for the benefit of said John O’Connor. That said Duggan is the confidential friend of said O’Connor and has been acquainted with all the facts and circumstances connected with the illegal divestiture of plaintiffs’ title from the beginning.

Plaintiffs prayed for a citation upon Gebelin and Duggan, and for judgment recognizing them as owners of the property, and for a writ of possession putting them in possession thereof. They further prayed for judgment against Gebelin and Duggan in solido, at the rate of $250 per annum, from March, 1884, till the trial of this suit, reserving to them the right to sue for revenues from the trial of the suit until final delivery.

Timothy Duggan in limine filed a peremptory exception to plaintiff’s petition on the following grounds:

1. That in the suit of Peibelman vs. Lancelot, No. 682, Parish Court of East Baton Rouge, filed May 18, 1872, execution was issued and Peibelman, the plaintiff therein, became the purchaser of the undivided one-half of the two lots of ground described in plaintiff’s petition.

2. That said Feibelman sold his interest in said lots to J. H. Lamon on the 20th day of July, 1880.

3. The said J. H. Lamon was recognized as and decreed to be the owner of said property so purchased by him in suit of J. H. Lamon vs. John O’Connor, Administrator, No. 608, Seventeenth District Court for East Baton Rouge, filed March 20, 1884, and subsequently sold his interest in said lots to Charles McVea.

4. Joe Gebelin became the purchaser of the other undivided one-half of the said two lots at the public sale made in the matter of the succession of J. M. Lancelot, deceased, which sale was ordered by a court of competent jurisdiction, and the purchaser is not required to look beyond the jurisdiction of the court.

5. Charles McVea instituted suit against Gebelin for partition of said two lots (No. 702, Seventeenth District Court for the parish of East Baton Rouge), which partition was decreed to be by public sale, and thereat Gebelin became the bona fide purchaser of both lots for a valuable consideration.

Neither one nor all of the above and foregoing sales and solemn adjudications can be attacked collaterally, but plaintiffs must institute a direct action to revoke and annul them and make proper parties thereto. He prayed that the peremptory exeep ion be maintained and that plaintiffs’ suit be dismissed.

This exception having been fixed for hearing, on the hearing thereof exceptor offered in support of the same the records of the various proceedings referred to in his pleadings.

To the introduction of this evidence as it was offered, plaintiffs’ counsel objected on the ground that, viewed as an exception, the same should go to trial admitting all the facts set forth in plaintiffs’ petition to be true, but that said so-called exception is really an answer, and the object of introducing said testimony is to covertly set up issues en pais collaterally, thus trying the case piecemeal, confusing the issues involved in the case.

The court overruled the objection and admitted the evidence, the objection to go to the effect. To this action of the court plaintiffs excepted.

The court finally acted upon the exception, maintained it and dismissed the suit. Plaintiffs have appealed.

It is true plaintiffs made Timothy Duggan a party as being in possession of the property, but they allege that the title stood in the name of Gebelin and the exception filed shows such to be the fact. Plaintiffs’ allegations as to Duggan were metely tentative; they did not allegó absolutely and positively that he had or claimed any interest in the property, and merely called him into court to the end. that he might either disclaim or announce his actual interest and position. At the time he filed his exception he had done neither; non constat that he has really any interest at all in the matter, any concern in the titles or even in the possession.

Under that condition of affairs the District Court, at his instance, dismissed plaintiffs’ suit not only as to Duggan but as to Gebelin In this action it was clearly wrong. Duggan had in no manner claimed to represent Gebelin. Possibly the only exception he was entitled to have filed even so far as concerned himself was that he should be dismissed from the suit as having no legal connection with the issues involved. In the manner and form in which he had been made a party he might, as matters stood, have filed exceptions looking to his own discharge from the suit, but not tending to throw plaintiffs out of court.

Assuming, however, that Duggan had shown such connection with the issues as to entitle him to raise the particular question involved in the exception, we are of the opinion that the evidence offered should have been excluded and the rights of parties should have been tested on the face of the papers. There is no doubt as to the legal necessity under certain circumstances of bringing direct actions to annul judicial proceedings and decrees, contradictorily with the parties legally interested in maintaining them, as conditions precedent to relief asked, but the necessity for such direct action is contingent upon the issues which the plaintiff tenders. In a petitory action brought under ordinary, conditions the only parties necessary originally to the action are the plaintiff claiming ownership of properly and a defendant in possession of the same. If the defendant deems it to his interest that his vendor, his lessor or other parties be brought into the proceedings it is for him to take steps leading to that end. The plaintiff in this case has not cumulated with the petitory action proper, actions of nullity against the various proceedings alluded to in the pleadings and made parties accordingly, for the reason that the theory of his case is that all those proceedings are absolute nullities, needing no judicial action to set them aside; that they are void, not voidable. The allegations of the petition are to that effect. If the plaintiffs think proper to go into this case on that basis on the strength of the correctness of their legal conclusions on that' subject they have, AT their own risk, the right to do so. Should it turn out on inquiry that the proceedings alluded to were not void as claimed, but simply voidable, and the case should be before the court without proper parties and the proper prayer, plaintiffs will take nothing by their action. Defendant can not in limine and on exception introduce evidence and have the court pass upon the character of the proceedings which plaintiffs assume to be and characterize as absolute nullities. That will be one of the issues on the merits.

For the reasons herein assigned, it is hereby ordered, adjudged and decreed that the judgment appealed from be and the same is hereby annulled, avoided and reversed; and it is now ordered and decreed that the case bereinstated in the District Court, to which it is hereby remanded for further proceedings according to law.


text:
    No. 11,486.
    Heirs of John Ford vs. Mills and Phillips.
    1. A succession sale made under an order granted by the clerk of court upon application of a person acting as administrator can not be dealt with as an absolute nullity upon the ground that the particular person had not the qualifications necessary for appointment, nor because, though letters of administration signed by the deputy clerk were in the record, there was no direct evidence of an appointment by the clerk. The action of the latter granting the order of sale was a recognition by him of such an appointment and that the party had legally qualified under it.
    2. Where the deed under which a party claims title to real estate as vendee at a succession sale does not recite that it was made under order of court and is otherwise silent as to the observance of the formalities essential to the legality of such a sale, and where the evidence shows that the auctioneer in selling departed from the terms of the order authorizing a sale, such title can ot serve as the basis for the commencement of the prescription of ten years
    3. Where the title tendered to a purchaser makes no reference to that under which the vendor holds, bad faith can not be presumed in the purchaser from the fact that the vendor’s title was of record and fatally defective.
    Declarations of former owners of, property in derogation of their own title and good faith made after they had ceased to be owners are not admissible against the subsequent vendees of the same.

      5. Plaintiff in bringing a petitory action is not forced to cumulate therewith a direct action, of nullity with proper parties to set aside judicial proceedings under which his title has apparently been divested, if he alleges that such proceedings are absolute nullities. He has the right, at his risk, to tender and go to trial on that issue.
    APPEAL from the Eighth District Court, Parish of Catahoula. Dagg, J.

      Frank B. Thomas and Allen B. Hundley Attorneys for Plaintiffs and Appellants:
    A person in no manner related, not an heir and not even a creditor, is not entitied to the administration o£ an estate. 0. 0., Arts. 1046;1049.
    A curator or administrator must take an oath before the judge (or before some officer legally authorized to administer oaths), who has appointed him, before he enters on the performance of his duties. 0. C., Art. 1126.
    It is only after the lapse of ten days, and notices given, and after the inventory is closed, that the appointment can be made. O. C., Art. 1114,1115; 0. P., Art. 966, 967,970.
    ■Clerks of court can not appoint administrators until after the legal notices are given, nor can he grant orders for sale of succession property, unless application be accompanied with statement of debts. B. S., Secs. 308, 310, p. 78.
    The conditional order appointing administrator must be followed by a second order appointing and confirming, and an order that letters of administration issue, after the expiration of the publication of the notices required by law. 39 An. 298, Sec. 8; 35 An. 405; 40 An. 233.
    Curators or administrators must wait thirty days after their appointment before they can demand the sale of the immovable property. C. C., Arts. 1164, 1165, 1166, 1167, 1168.
    It should be presumed that no sale is necessary or that sufficient money is on hand to pay debts; if not, creditors can apply to the court to sell property. C. P., 990, 991, 992.
    An administrator can not pay debts without an order of court. 0. 0., Arts. 1179,1180, 1181, 1184, 1185, 1186.
    To be prima facie evidence of a valid title, a deed to property sold at a judicial sale must state and set forth on its face every essential fact to show that they complied withthelaw; otherwise it is radically defective in form and substance. 8 Martin, 6 and 9; 30 An. 1275.
    The sale of a thing belonging to others is absolutely null, and the prescription of ten years will not prevail. 0. 0., Art. 2452; 29 An. 560; 4 B. 26, 201; 14 An. 598.
    A deed not valid in form can not form a foundation for the prescription of ten years. C. 0., Art. 3486; 38 An. 885.
    A deed which, on its face, shows radical defect is such a notice to a purchaser as would make him a possessor in bad faith. .0, 0., Art. 3452.
    Prescription does not run against minors. 0. C„ Art 3522.

      Potts & Hudson Attorneys for Phillips, and J. F. Ellis and D. IV. Thompson Attorneys for Mills, Defendants and Appellees:
    The order of court appointing an administrator is a judgment, which can not be attacked collaterally, and can only be annulled in a direct action brought against the administrator for that purpose. 28 An. 806; 10 An. 496; 2 La. 249; 2 An. 538; 8 An. 85; 19 An. 69.
    The acts of a defacto administrator, acting under letters issued by a competent court, are valid and legal, although the ordor or judgment appointing him may be illegal, so long as the judgment making the appointment remains in force. Administrators are officers of the court, and their acts, like those of other public officers, done in pursuance of their duties as such, are valid and binding until deprived of their office in a direct action. 2 La. 249, and others.
    An action not brought against the administrator directly, and to which the administrator is not a party, is not a direct action, and in such a collateral proceeding the judgment appointing the administrator can not be attacked nor annulled. 8 An. 85; 10 An. 496; 28 An. 806.
    In judicial proceedings courts and officers arejpresumed to have done their duty. The administrator making the saie under orders of the court is presumed to have complied with all the formalities of the law in making the sale, and the burden is upon those alleging to establish the want of these formalities by legal evidence.
    The adjudication completes the sale made at public auction. The deed afterward prepared and executed is but the evidence of the sale. The deed may be informal or defective, while the sale and adjudication is legal and valid. O P., Art. 695; 29 An. 207; 31 An. 276; 36 An. 776.
    Purchasers at public sales, under orders of courts having jurisdiction, are not compelled to look beyond the order or judgment of the court ordering the sale. 31 An. 276; 39 An. 67; 14 An. 632; 19 An. 353; 20 An. 124; 15 An. 250; 2 An. 468; 18 An. 485; 21 An. 505.
    An error in the manner of signing the deed does not invalidate the sale, the only question being whether the deed came from one havingthe power to represent the succession and make the sale. 28 An. 806.
    The prescription oí Uve years cures all informalities in public sales, such as want of advertisement, want of appraisement, offering at wrong time or place, failure to announce terms and conditions of sale, etc. 21 An. 506; 10 Rob. 396; R. 0. 0. 3543; 29 An. 534; 33 An. 1176; 39 An. 60; 28 An. 571; 34 An. 209; 32 An. 437, etc.
    He who acquires an immovable in good faith and by a just title prescribes for it in ten years. R. 0. 0. 3478.
    Good faith is always presumed in matters of prescription, and he who alleges bad faith in the possessor must prove it. R. C, 0. 3481.
    This court will notice exproprio motu the want of proper parties and willnofc render judgment in a cause affecting parties not before the court. Liquor and Tobacco Company et als. vs. Jeffries et als., 45 An. 632.
   The opinion of the court was delivered by

Nicholls, C. J.

John Ford died in 1868, leaving eight minor children, some personal property and the small tract of land in the parish of Catahoula which forms the subject of this litigation. In ,1865 one Dean applied to be appointed administrator, alleging that an administration was necessary in order to liquidate and settle the succession and pay debts. On the 12th De. ember, 1865, the district clerk signed an order directing the advertisement of the application according to law, and “decreeing that if after the expiration of said period no opposition be made in the meantime, he be appointed administrator on his giving bond and security for the sum and conditioned according to law and on his complying with the law in all other respects.” On the 2d January, 1866, the deputy clerk issued letters of administration to Dean, in which after a recital that Dean “had been appointed administrator of the succession of John Ford and taken the oath and executed bond as prescribed by law,” it is declared : “ therefore, be it known that the said A. B. C. Dean is hereby confirmed in said appointment.

On the 11th January, 1866, the district clerk, upon an application of Dean, as administrator, praying for a sale of all the property of the succession to settle and liquidate the same, rendered an order of sale of all the property “ at public auction on the terms and conditions required by law.”

On the 26th December the following instrument, upon which the title of the defendants is based, was executed by Dean and placed of record:

State of Louisiana, \

Parish of Catahoula. J

Know all men by these presents, that I, A. B. C. Deán, administrator for the heirs of John Ford, did offer for sale on the first day of December, 1866, according to law, the tract of land below described to highest and last bidder, whose name will also appear below. Therefore, the aforesaid Mr. Dean, a resident of Catahoula parish, Louisiana, does bargain, sell, convey and deliver unto Solomon Jemison, a resident of the aforesaid parish and State, and Ransom B. Jemison an equal portion of said land, the said Ransom B. Jemison being a resident of Caldwell parish, the following tract or parcel of land, with all the improvements and appurtenances thereunto belonging, on what is known as Sandy Creek, Catahoula parish, Louisiana, to-wit: (Here follows a description of the property.)

“ The consideration of the above named land given by the Jemison brothers is seven hundred and forty-five dollars, for which they have executed their joint notes for, made payable to A. B. 0. Dean or order, due on the first day of December, 1867, with Josiah Jemison and C. P. Kees as security to said notes. Now it is the true intent and meaning of both of the above contracting parties that the above described land is to remain specially mortgaged and hypothecated, and the same is hereby mortgaged and hypothecated for the payment of the above described notes.

In testimony whereof we have this day signed our names and affixed our seals thereunto in the presence of W. H. Holloman and Levi Prestridge, witnesses of lawful age and domicile. Signed, sealed and delivered on this the 22d December A. D. 1866.

(Signed) “ A. B. C. Dean. (seal.)

(Signed) “ Solomon Jemison. (seal.)

(Signed) Ransom B. Jemison. (seal.)

Witnesses:

(Signed) • “ W. H. Holloman.

(Signed) “ Levi Prestridge.”

On the 22d November, 1869, Solomon and Ransom Jemison sold the property to R. L. Elliot.

R. L. Elliot sold to W. H. Elliot on the 26th December, 1886.

W. H. Elliot sold to William MeBroom on the 18th day of October, 1888.

William MeBroom sold to P. M. Mills (one of the defendants) on the 27th day of May, 1890.

F. M. Mills transferred a portion of this property to C. G. Wood-bridge, on the 9th day of February, 1891,

C. G. Woodbridge sold his interest on the 29th day of June, 1891, to Guy Phillips.

F. M. Mills and Guy Phillips are at present in possession of the property under their respective titles, and claim to be owners thereof.

On the 25th July, 1892, the plaintiffs, as heirs of John Ford, instituted the present petitory action against Mills and Phillips, praying to be declared the owners and placed in possession of the tract of land referred to, and for rent of the same, at the rate of $200 per annum, from the 27th May, 1890.

Plaintiffs attack all the proceedings in the matter of the succession of Pord, and declare them to be absolute nullities.

They allege that Dean was neither a creditor of the succession of Ford nor a relative or connection of the family; that he had no right to be appointed administrator; that the original order touching the appointment, signed by the district clerk, was null and void, as it was a conditional order of appointment, and the subsequent order signed by the deputy clerk was also an absolute nullity, as he was without power or authority to appoint or confirm an administrator. They allege that the order of sale was granted within three months of the appointment of the administrator in violation of Art. 1164 Revised Civil Code, that there was no necessity for the sale of immovable property; that no creditor applied for a sale, and Dean never filed a statement of debts. That the pretended sale to the Jemisons was absolutely null as a judicial sale; that it was nothing more than a private sale by Dean to said parties; that in making the same, Dean did not pretend to make it as administrator of the estate of John Ford or auctioneer, but as administrator of the heirs of John Ford, which he never was; that it was also absolutely null as a judicial sale, for the reason that none of the forms of law for such a sale were complied with; that it was not advertised for sale in three public places in the parish of Catahoula; that the deed of sale does not recite that it was made in pursuance of or in obedience to any order of court; that it had been advertised to take place at the court house door or at the late residence of the deceased for thirty days preceding the sale, or for any number of days, in three public places in the parish, designating said places; that he had offered the same for sale to the by-standers in an audible voice, or that he proclaimed the terms of sale, whether for cash or on a credit of twelve months, nor that he adjudicated said lands and improvements to the said Jemisons as the last and highest bidders as administrator and auctioneer of the estate of John Ford, deceased; nor did Dean sign the deed to the Jemisons as such, but signed the same in his individual name, thereby making it a private sale and absolutely null and void; that in point of form and legal requirements it could not form the basis of the commencement of prescription; that the deed does not show whether it was the first or second attempt at sale; that if for the first attempt it was null and void, as it was sold for less than the appraisement. That the Jemisons and all the other parties holding under them were purchasers and transferees and possessors in bad faith; that they had actual and constructive knowledge and notice of all the illegalities and informalities connected with the sale; that the deed of sale to the Jemisons conveyed no legal title to them, and they could not legally convey title to another.

Defendants filed exceptions, only one of which has been referred to in this court.

That exception, which was to the effect that the necessary parties had not been made and that the persons holding and claiming the property as owners under the Dean deed and since should have all been made parties, was overruled and defendants answered.

They pleaded the general issue, averred their good faith, maintained the legality and validity of the proceedings in the matter of the succession of Ford and of the various titles thereunder. They averred that the purchase price of the sale to the Jemisons was received by Dean, administrator, and applied by him to the payment of valid existing debts of the succession, and finally pleaded the prescription of five and ten years.

The plaintiffs having alleged the absolute nullity of the proceedings in the matter of the succession of Ford and gone to trial on that issue, we do not think it was necessary for them to have made other parties than those before us. See Belard & Johnson vs. Gebelin & Duggan, decided this day, also, Succession of Bright, 38 An. 141.

The District Court held the sale from Dean to the Jemisons to be so radically null as not to serve as the basis for the commencement of prescription. It was of the opinion, however, that there was no evidence before it impugning the good faith of R. L. Elliott and those holding the property after him, and therefore took as the initial point of prescription the date of R. L. Elliott’s purchase. With that date as the starting point, the court held that the prescription of ten years had accrued even as against the minors. It therefore sustained the plea of the prescription of ten years and rejected plaintiffs’ demand. They appealed.

We are of the opinion that plaintiffs’ objections in so far as they seek to base the nullity of the transfer of the property to the Jemisons upon the ground that Dean was not the administrator of the succession for the reason that he was neither a creditor nor a relative or connection of the Ford family, and that there is not in the record any evidence of a direct order of the district clerk himself appointing him as such, but simply a paper from which it would ap - pear that Dean’s appointment rested upon the unauthorized act of a deputy clerk, can not be inquired into in the collateral manner attempted. The order of sale was granted by the district clerk upon a petition addressed to the court by Dean as administrator and he was at least a de facto officer. We presume, besides, that there must have been some intermediate order, between the original one of the district clerk and the later one of his deputy. We think the paper signed by the latter was intended to be merely the “ Letters of Administration” which issue to an administrator after he has complied with the law. We agree with the district judge, that the claim of ownership to the property in litigation-based upon the prescription of ten years, as founded. upon the alleged sale to the Jemisons, is untenable.- The deed of sale upon which this claim rests is radically defective in its recitals and form, and dehors the deed, we are satisfied that Dean — if- he were acting in the matter of the sale under the order of the court — departed from the terms of the order. He was ordered to sell according to law, and the evidence shows that there was no attempt whatever to sell the property for cash, but that it was transferred at once to the Jemisons upon their furnishing their notes payable at twelve months. The case falls under the operations of the principles announced in the case of Ambrose vs. Marsh, 27 An. 241; see also Succession of Eritz, 12 An. 368.

We next come to defendant’s claim of prescription, based upon the -transfer of the property by the' Jemisons to R. L. Elliott, and upon the subsequent changes of ownership. If R. L. Elliott’s-title and possession was of such'a character as'to serve as the commencement of the prescription of ten years, the conclusions reached by the district judge on this branch of the case were correct, except as to Elijah Ford.

, We have therefore to inquire into the question of the prescription of ten years, based upon the transfer of .the property from-the Jemisons to R. L. Elliott and upon the subsequent changes in ownership.

Plaintiffs contend that had the court permitted. J. J. McKeithen, Thomas Davis, Ool. M. O. Davis and Wade Hough to testify upon the points which they sought to interrogate them upon and had not excluded their testimony as it did (but under reservation of their bills of exception), they would have established the bad faith of the two Elliotts and McBroom. They contend that the excluded testimony was admissible. We think the judge’s ruling correct. Plaintiffs sought to prove, as against the defendants, declarations of former •owners made to those witnesses derogatory to their own titles— those declarations having been made subsequent to their having themselves alienated the property. Declarations made under such •circumstances can not be permitted to affect subsequent vendees. We were inclined to doubt the propriety of the ruling as to Hough’s testimony, as it does not very clearly appear from -the record what the date of the statements to Hough was, but it was plaintiffs’ duty to have made the recitals show the date with certainty, so as to ■affirmatively establish error on the part of the judge. We have to assume his rulings to be correct until the contrary is made manifest. 'There was no reference in the title tendered to R. L. Elliott to that under which the Jemisons acquired. Bad faith can not be presumed from the fact that the Jemison title was of record. Fletcher vs. Cavelier, 4 La. 274; Ribas vs. Bennett, 5 La. 242; Heirs of Self vs. Taylor, 33 An. 769; Pattison vs. Maloney, 38 An. 885.

Plaintiffs claim that under any circumstances minority has saved the rights of the children of William Duncan Ford and those of Elijah Ford. We think that the evidence establishes that the prescription of ten years had run as against William Duncan Ford before his death — he must have been thirty-four years of age at that time. He became of age in 18Y2 and died in 1885. R. L. Elliott purchased the property as we have seen in 1869. Elijah Ford must have become of age in 1883. Prescription as to him was not completed when this suit was brought. For .the reasons herein assigned, it is ■ordered, adjudged and decreed that the judgment appealed from be ■and the same is hereby affirmed as to all the plaintiffs — Elijah Ford excepted. It is further ordered, adjudged and decreed that the judgment be annulled, avoided and reversed as to Elijah Ford, and judgment is now rendered in his favor and against the defendants, recognizing and declaring him to be the owner of an undivided interest in the property mentioned in the petition to the extent of the interest inherited-by him in the same. That interest not clearly appearing by the record as to its extent, the case is remanded to the lower court to have the same ascertained, fixed and declared; ■costs of appeal to be shared between the appellants, other than Elijah Ford, and the appellees in proportion to their respective interests.