text:
    No. 11,541.
    The State ex rel. Mrs. John McEnery et al. vs. John S. Lanier, Register of the State Land Office.
    No ministerial duty rests on the Register of the Land Office to issue patents under an asserted contract the enforcement of which is prohibited by a legislative act. Code of Practice, Arts 829, 830; Act of 1888, No. 106; 6 An. 68.
    The competency of the Legislature to pass such an act is not affected by the provisions of the Constitutions of the United States and of the State protecting contracts. There is no power to compel aState to perform its contract, and the refusal of the courts to notice and give effect to a legislative act prohibiting the enforcement of such contract would be to enforce it and to coerce the State. See the bond cases, 107 U. S. Reports, 711; 27 An. 430; 33 An. 498; 38 An. 337.
    A suit against the Register of the Land Office to compel him to do that which the State has forbidden is in effect a suit against the State, and of such suit the •courts have no ¡jurisdiction unless the State consents. See bond cases, 107 U. S. 711; 27 An. 430; 33 An. 498; 38 An. 337.
    APPEAL from the Oivil District Court for the Parish of Orleans. Ellis, J.

      Felix P. Poohé and W. S. Parkerson for Plaintiffs, Appellees.

      M. J. Cunningham, Attorney General, for Defendant, Appellant.

      Thomas J. Fernán of Counsel.
   The opinion of the court was delivered by

Miller, J.

This appeal is by the defendaut, the Register of the Land Office, from the judgment of the lower court making peremptory the mandamus to divide certain lands claimed to have been recovered by the late John McEnery from the United States, and to issue to relators, his widow and heirs, patents for the moiety claimed by them. The claim is on the contract of deceased with the State, based on the legislative act No. 23 of 1880 for the recovery by him of all lands donated to the State under the swamp land and other ■acts of Congress, his compensation to be fifty per cent, in the lands, •or the money or the scrip recovered in lieu of the lands claimed.

The defence is: There is no ministerial duty imposed on the defendant in respect to the subject of controversy; that the legislative •act of 1880, under which the contract of the late John McEnery was made, has been repealed by the legislative act No. 106 of 1888, and the contract itself abrogated by that act; that the mandamus, if made peremptory, could not be complied with because the State had ■parted with the lands; and the answer denies that the deceased recovered the lands and urges other defences, unnecessary in our view to be noticed.

The judgment of the lower court made the mandamus peremptory to the extent of ordering the register to divide between the State •and relators a part of the lands claimed, ascertained by the judgment to be undisposed of by the State, to issue to the relators patents for the moiety, and as to other lands embraced in relators’ -claim, their rights, as well as all rights of the State, arising out of past settlements with the deceased under his contract were re•served.

On this appeal by the State, the view we take of one question -controls the decision, and in our opinion precludes the expression of any opinion on other phases of this controversy. The writ of mandamus issues to enforce only the pure ministerial duty of the public •official. Whether any such duty ever was imposed on the register >in connection with the subject matter of this litigation we have no -occasion to determine. This court heretofore made peremptory a mandamus to compel the issue of patents to the late John McEnery for the portion of the lands involved in that controversy claimed by him under his contract. It is contended on behalf of the relator that decision settled the question here. The answer in that case substantially denied that any duty in reference to the issue of the patents devolved on the respondent, the Governor and the Register of the Land Office, and neither had authority under the act of 1880 to pass on relator’s contract or audit his claims; that the only authority of the executive under the act of 1880 was to make the contract; none was conferred on him to stand in judgment for the State and the answer averred he declined to do so and made no admission of the relator’s claims. It will be perceived that the defence made no veferenee to the fact that the Legislature had repealed the act of 1880, and, of course,- the- decision took no notice of that repealing-legislation. That legislative act No. 106 is as follows:

“ Section 1. .Be it enacted by the General Assembly of the State of Louisiana, that Act No. 23 of the regular session of the General Assembly of the year 1880, approved March 8, 1880, and entitled ‘ An-act-to authorize the Governor of the State of Louisiana to employ counsel to assert the rights of the State to lands donated to the State by the Federal Government or to recover the value of said lands in money or scrip,’ be and the same is hereby repealed.

“Sec. 2. Be it further enacted, ete., that the act or agreement made between Louis A. Wiltz, Governor of the State, and John McEnery, made March 20, 1880, purporting to be under the authority of said Act No. 23, is hereby abrogated and terminated.

“ Sec. 3. Be it further enacted, etc., that this act shall not take effect until January 1, 1889.”

This repealing legislation is pleaded in this case, and it is insisted the suit is virtually against the State in the form of' a proceeding against the register to enforce the partition of lands in which the relator claims an interest as owner. There is thus before this court an issue not involved in the previous controversy, and that issue is in our view decisive. The question is whether the State can be coerced by the judgment of this court to comply with an alleged contract, the validity of which it denies, and has declared by a legislative act to be abrogated. If this coercion of the State can be accomplished in its own courts it would seem difficult to reconcile this compulsion with the accepted principle the sovereign enjoys, an immunity from suit.

It will, of course, be conceded that the Legislature has by the plainest implication forbidden any and all recognition by its officials of the alleged contract of the late John McEnery. If any duty, ministerial or otherwise, was ever put on any State official in respect to-the contract, it has been withdrawn by this act of 1888. How then can this court hold there is a ministerial duty of the State Register to do that the law has explicitly forbidden? The answer from the relator is that the State could not affect by the act of 1888 the rights acquired under the act and contract of 1880, and we understand by this that the court is to shut its eyes to this act of 1888. But to-affirm, the State by its Legislature can not repeal this act of 1880, so> as to withdraw any power from its officials in respect to this contract, supposes the State can be controlled by its courts. There is no such compulsory power. The State can never be subjected to judicial control unless it consents to be brought before the courts by' direct suit, or by a proceeding against its officials. If the State authorized proceedings against its officials, as it is claimed it did, by this act of 1880, it is simply and only by that permission the proceeding can be sustained. Where the permission is withdrawn from whatever cause, the basis for the proceeding disappears. To say the authority supposed to be conferred by the State through this act of 1880 can not be withdrawn, is in our view practically to deny the immunity of the State from all coercion. The State can do anything' it pleases in respect to its contracts and obligations, freed as it is from any coercive power in the court. We therefore hold that as the act of the sovereign we are bound to notice the act of 1888 and give it effect. Under that act not only is there is no ministerial duty on the defendant, but the mandamus proposes he shall violate the law.

It is plain, too, that this is essentially a suit against the State. The relators seek to enforce an asserted contract the legislative act declares shall not be recognized. Of course all admit the distinction between a suit against the State, absolutely prohibited unless it consents, and a proceeding to enforce a ministerial duty of the official imposed on him by the State. So long as there stood on the statute book the act of 1880, conceding the effect claimed for it by the relator, this proceeding could not be deemed a suit against the State without its consent. But when that act is repealed, and all recognition of the contract prohibited, then the proceeding to enforce it becomes a suit prosecuted against the State, not only without its consent, but in utter violation of its prohibitive legislation. This conclusion is inevitable, and' necessarily fatal to this proceeding, unless on this branch of the case we are again to hold that the State had no power to repeal the act of 1880. We are to adopt the conclusion, it is urged, because that legislation violated the contract right of the late John McEnery, and is hence void under the contract provisions of the Federal and State Constitutions. If this repealing legislation did profess to take away any or all contract rights, still it was the act of the sovereign. The effect of the contract provisions in the organic law is undoubted when applied to individuals. But it is well settled that contracts with States are completely withdrawn from the operation of the provisions of the Federal and State Constitutions securing contract obligations, unless the State consents that its contract shall be submitted for judicial determination. The question in this case is not of legal right or moral obligation. The issue is, has the State consented to be sued? This answer is in the act of 1888, prohibiting the courts from enforcing the asserted contract. To disregard this act and compel performance of the obligation alleged to rest, on the State is to apply to the sovereign the same compulsion that courts bring to bear upon individuals. The power to compel the State invoked by the relator does not exist.

Our view of this case finds, we think, abundant support in the decisions of the Supreme Court of the United States, as well as our own Supreme Court made in the litigation involving the rights of the Louisiana bondholder. The question in that litigation was whether the contract of the bondholder could be enforced by judicial proceedings against the State officer. There was in that ease the distinct contract of the bond holders that taxes for the interest and principal of the bonds should be levied and faithfully applied. That contract was incorporated in the Constitution of the State by the amendment of 1874. The contract rested upon a basis surely as firm as that on which relator’s contract is supposed to rest. His contract is derived from a legislative act. That of the bondholder reposed on a constitutional provision as will as the legislative act. Yet the constitutional convention of 1879, in that part called the Debt Ordinance, to use the language of the court, prohibited the further levy of the bond taxes and forbade the disbursing officer of the State from using the taxes collected to pay the interest falling due in 1880, as well as part of the interest accruing thereafter. The bond case thus showed a plain contract of the bondholder with the State, and as distinct an impairing of that contract by the Constitution of 1879 as can be conceived. Yet the courts, recognizing all this, held that the contract provisions of the organic law protecting contracts had no force to prevent the State’of Louisiana from setting aside its contract obligations. The court gave effect to the Debt Ordinance, declaring the State bonds should not be paid, and held in view of that ordinance the courts had no power bo coerce that payment. We reach the same conclusion in this case in respect to the relator’s contract, and hold under this act of 1888, announcing the will of the State, that we have no power to disregard that will and coerce the State by process against its officers to do that which the Legislature has declared shall not be done. Constitutional Amendment of 1874, Act No. 4, p. 42. The bond cases: Louisiana vs. Jumel, 107 United States Report, p. 711; Macauley vs. Clinton, 27 An. 430; State ex rel. Hart vs. Burke, Treas., et al., 33 An. 498; State ex rel. Guaranty and Indemnity Company vs. Jumel, 38 An. 337.

It is not to be supposed the State will do injustice and close the door of relief to the widow and heirs of the late John McEnery, who claim he rendered valuable services to the State for which compensation is sought in this suit. We have no views to express as to the claim, holding as we now do there is no jurisdiction in the court to examine or enforce the demand, and it.is with reluctance we reach the conclusion the judicial cognizance of relator’s suit is excluded as the law now stands.

It is therefore ordered and decreed that the judgment of the lower court be avoid and reversed at relator costs.

Rehearing refused.

Monroe, District Judge, sat in this ease.

Nicholls, Chief Justice, Associate Justices McEnery and Breaux .recused. ■


source: Caselaw Access Project

author: Nicholls, C. J.

license: Public Domain

text:
    No. 11,702.
    State of Louisiana vs. Joseph Valsin.
    Assuming that in a capital case, counsel for accused would he authorized to admit the fact of death, he could not control the course of the prosecuting attorney nor the evidence the State should introduce.
    ‘Relief through motion in arrest of judgment is confined to matters appearing on the face of the record.
    A PPEAL from the Tenth Judicial District Court, Parish of Natchi--‘A toches. Coco, J.

      M. J. Cunningham,-Attorney General, and Phanor Breazeale, District Attorney, for Plaintiff and Appellee.
    Defendant and Appellant unrepresented by counsel in Supreme Úourt.
   The opinion of the court was delivered by

Nicholls, C. J.

The defendant, indicted for murder, found guilty and sentenced to be hung, has appealed.

The bill of exception reserved by him during the trial recites: That the District Attorney, having offered in evidence the findings- and verdict of the coroner’s jury, objection was made to his so doing, and the objection being overruled, and the record introduced, a bill of exception was reserved. The only objection which was urged was that by reason of defendant’s counsel having offered to admit the death, it was not admissible. It was not claimed that the proceedings before the coroner were sought to be introduced for a pur - pose not legitimate, nor that, but for the admission tendered, they were not admissible. The District Judge says: “They were admitted for the purpose of establishing the corpus delicti, and they were restricted to that effect; that the court instructed the jury that they were to exclude from their consideration any fact contained in the proceeding, save and except so far as they went to show death. That the defendant’s attorney offered to admit the death, but the District Attorney stated he preferred to prove it.”

The objection is utterly without force. Assuming that in a capital1 case counsel of an accused would be authorized, on his behalf, to admit the fact of death, he could not control the course which the prosecuting attorney should follow in the trial of the case, nor the evidence which the State should introduce in support of the charge it has made, if legally admissible. Even in civil matters, parties are not forced to receive admissions in lieu of evidence by which they stand prepared to establish the facts which the admissions cover.

In addition to the bill of exception on which we have just acted,, we find in the record a motion in arrest of judgment and also one fora new trial.

The application for a new trial was based upon an affidavit of the-accused to the effect that by and through the testimony of several named witnesses, he could establish certain facts which, if shown,, would establish an alibi. The affidavit states that these witnesses-“are within sixteen miles of the court house and subject to its power.” Accused made no attempt to fortify his application by affidavits of the parties named, although they were within easy reach. We are of the opinion, besides this, that accused must have known at the time of the trial, as well as he did afterward, of the facts on which he now relies.

The grounds urged in 'arrest of judgment were:

1. “That Art. 86 of the Constitution of Louisiana is mandatory •and requires the style of all process to be ‘The State of Louisiana,’ and the style of this indictment and all the other proceedings in this ■case were ‘ State of Louisiana.’

2. “That the accused was indicted, tried and convicted under the name of ‘Joseph Valsin,’ when in truth and in fact his name is William Volsant.”

Of the second complaint it suffices to say that even if it had any merit it should not, and could not, have been urged in a motion in -arrest of judgment. Relief through that motion is confined to matters appearing on the face of the record.

The only basis for the first complaint seems to be that the indictment in this case was preceded by the words “ State of Louisiana, parish of Natchitoches, December Term, A. D. 1894.”

The indictment itself commences as follows: “In the name and by the authority of the State of Louisiana, the grand jurors of the State of Louisiana * * * do, upon their oath, present,” and closes, after fully charging the defendant with the crime of murder,with the usual declaration that the crime was committed “ contrary to the form of the statute of the State of Louisiana in such cases made and provided, and against the peace and dignity of the same.”

Article 86 of the Constitution requires that “all prosecutions shall be carried on in the name and by the authority of the State of Louisiana,” and conclude “against the peace and dignity of the same.”

All constitutional requirements have been met in this case. We are compelled to affirm the judgment.

Judgment affirmed.


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      No. 11,505.
    Richard Burton vs. W. J. Behan and H. Zuberbier.

      "When a person claims employment for one year under a contract and fails to make out his case, this court will not award judgment, by way of remuneration, for services rendered for a portion of time embraced within the year of the alleged contract.

      Monroe, J. PPEAL from the Civil District Court, Parish of Orleans.
    ■Plaintiff claims wages from defendants as manager and overseer, alleging no specific contract, but the fact that he was under a contract with a former owner for the year 1892; that early in that year the defendants purchased the plantation ;■ were even aware of the terms of plaintiff’s contract, ratified it anti, continued him'in employment, and that said condition extended into ancl embraced the year 1893.
    There was judgment for defendants and plaintiff appealed.

      Fenner, Henderson & Fenner and Beattie & Beattie for Plaintiff and Appellant.

      Farrar, Jonas & Kruttschnitt for Defendants and Appellees.
   The opinion of the court was delivered by

Nicholls, C. J.

The plaintiff has shown that he continued in the-management of the place from the 1st to the 12th of January, 1898, but, atacit reconduction of the contract of 1892 does not absolutely and necessarily flow from that fact, through a presumption juris et de jure-The fact was certainly to be considered in dealing with the relations of parties,- but it is open to explanation, and we think the explanation has been given, and does away with plaintiff’s claims. It appears-that Burton was the manager on the Laurel Valley plantation, employed for the year 1892 by Womald, its owner; that in the early part of that year, unable to meet his indebtedness to the defendants,. Womald sold them the plantation; that finding plaintiff in charge as-manager, defendants continued him to the end of the year; that-from the time they became owners, defendants, to the knowledge of the plaintiff, looked forward to a sale of the place; that in fact it was sold at public auction to third parties on January 12, 1898, under-an advertisement known to the plaintiff, which appeared in Decern - ber, before his contract terminated. He was fully informed of the intended or contemplated sale, and admits in his testimony that before-the end of the year 1892 he had a conversation with General Behan, one of the defendants, in respect to it, and in respect to the effect which that sale might have upon himself. Granting that a loose conversation as testified to by plaintiff had taken place between Zuberbier- and himself on November 12, 1892j the later one with the other-owner left him in no douht as to the situation. Behan testified that about the 25th of November, 1892, he had a conversation on the plantation with the plaintiff, in which the latter inq-uired-some-thing about the prospects for the coming year and what the owners, proposed to do with the place; that he told him it was their intention. to sell the plantation, and that he furthermore told him that, of course, if the plantation was sold there would be no further necessity for his services, but in case it was not sold they would-simply continue him in service, and that Burton made no objection, nor was any allusion made to an agreement or conversation by him with Zuberbier. That plaintiff did at a later interview with him in New Orleans, shortly before the sale, claim that he had been employed for 1893 by Mr. Zuberbier, and that he (Behan) told him it was the first time he had heard of it, and it was singular he had not spoken of it when he was on a visit to the plantation — that when this last conversation took place the plantation was advertised for sale, and the conversation was brief. Plaintiff -himself while under cross-examination states (under successive questions), in regard to a conversation of the 26th November, 1892, betv een himself and Behan, that General Behan told him, not at that time, but in December, 1892, in New Orleans, that they were going to sell the property; that if they did not sell the property they would need his services, and if they did sell the property they would use their best efforts to get him employed by the purchasers. Under questions from the judge he stated that General Behan (in December) had told him that he would be retained if they kept the plantation — if they did not keep the plantation he would do what he could with the purchaser to secure him a position— at that place or any other place. That when this was said to him “ he did not know that he made any remark to him at all — any answer to it — because he knew that they had other plantations, and perhaps would give him a position on one of them, as he heard they were going to make a change in one of them, or he understood they were.”

Under the evidence in the case we do not think it can properly be maintainéd that there was any tacit reconduction of the contract of 1892. If plaintiff had any rights in the premises, it was under the agreement alleged to have been made with him in November by Zuberbier. We do not regard plaintiff as setting up as his cause of action a tacit reeonduetion of the first contract, for he distinctly alleges that he was “ employed ” by them for the year 1893, and he refers to his continuing on the plantation merely as evidence ■of that fact. The averment is “that he was employed by them, for the year 1893, as will be seen by the fact that he was kept on the plantation.” We do not regard the continuance of Burton on the place, under the light thrown upon the situation by the entire evidence in the case, as strengthening his claims. We are impressed forcibly with the belief he remained on the plantation for the few days intervening between the termination of his contract and the sale of the property with the hope and under the expectation that either no sale would tak6 place or that Behan or Zuberbier would be a purchaser (for the sale was made to effect a partition between the owners), in either of which events he had good reason to suppose he would be retained as manager; or should some third person buy, that, none the less, through the good offices of the defendants, he might find employment. After plaintiff’s conversation with ■General Behan, in December, 1892, he could not be in doubt as to what his relations with the plantation and its owners would be after the end of the year. There is no question of silence, or of the effect of silence, involved in this case, for the exact status •of the future was discussed and explained, and he can predicate nothing so far as any contract for the year was concerned, by remaining for a few days, as he did, on the place. Granting that .Zuberbier himself (though he denies the fact) had, in November, 1892, engaged, or promised to engage, plaintiff for the year 1898, as manager, Behan was not informed of it, and he substantially repudiated, by his conduct, the idea of any such arrangement, before Burton had entered upon duty in the new year. We think it clear from the whole condition of affairs, that had plaintiff informed Behan that he •claimed that his joint owner and partner had made with him the engagement he now sets up, the latter would have at once, in express terms, put an end to such a claim. He would have had the right to disown, under the circumstances, such an agreement, and at the very best plaintiff could have held no better position than the plaintiff •did in the case of Word vs. Winder, 16 An. 112.

We think it highly improbable that Zuberbier, in view of the partition between Behan and himself, and the proposed sale of Laurel Valley to effect it, would have undertaken to bind Behan and himself to an engagement of plaintiff for a year, independently of any consideration as to whether the plantation should be sold or not, or who should buy it. There must have been a misapprehension by the plaintiff as to what Zuberbier told him.

It is urged upon us that, even granting that plaintiff should not recover for his services for the whole ye'ar, he is entitled to remuneration for the period during which he actually gave them. That is ■doubtless true, but plaintiff has not sued upon a quantum meruit, and we are not in a position, under the pleadings and the evidence, to grant relief to him in this case.

For the reasons herein assigned, it is hereby ordered, adjudged and decreed that the judgment appealed from be and the same is ¿hereby affirmed.


text:
    No. 11,542.
    John M. Lockhart vs. M. C. Smith.
    1. While under the decision in Prescott vs. Payne, 44 An. 650, an assessor may not be called on to ascertain whether proceedings which culminated in a forced sale of the property of a person holding by recorded title be affected by nullities of a character such as to cause ownership not to shift, he is not authorized to substitute for the actual owner’s title that of a person not holding under the prior title and in privity with it, but claiming under and through a later, distinct. independent adverse title.
    .2. It is the duty of the vendor to tender to his vendee a safe title. The vendee has the right to exact strict proof, as he owes no duty to the vendor, and a judgment of court ordering a specific performance by him of a contract for purchase might not be res judicata in a subsequent petitory action or action in nullity against him by parties other than the plaintiff.
    APPEAL from the Civil District Court for the Parish of Orleans. Theard, J.

      Kernan & Wall for the Plaintiff and Appellant.

      Farrar, Leake & Lemle for Defendant, Appellee.
   The opinion of the court was delivered by

Nicholls, C. J.

Plaintiff seeks to compel defendant to accept 'title to six lots of ground situated in the square bounded by Camp, ■Chestnut, Cadiz and Jena streets, designated as lots 6, Y, 8, 9,10 and 24 on a plan of the square. There was judgment in the District Court in favor of defendant and plaintiff appealed.

An examination of the record shows that these lots were adjudicated to one A. McConnell, Jr., on the 19th January, 1884, at two tax sales made on that day in enforcement of taxes of 1880, assessed upon the same as the property of Jacob Joachim. In the deed to 'McConnell it is declared that “the purchaser takes the property ■ subject to all'taxes, with interest and Costs thereon due’by or-on ác- ; count of said property'still remaining unpaid,whether State,..City or ■ otherwise.” ..The sales were made under Act No. 77 of 1880.

On July 22, 1884, McConnell sold the lots to Valentine' Stuben-rauch. ' ' ' • '.

On 28th June,' 1884, the.lots were adjudicatedto the State of Louisiana at a sale made in enforcement of taxes for the year 1881 assessed upon the property-in -the name of Jacob Joachim. The sale-was made under Act 77 of 1880.

On the 20th December, 1884, they were again adjudicated to the State at two sales made in enforcement of the taxes of 1882, and of the taxes of 1883, assessed upon the property in the name of Jacob Joachim. These sales were made under Act No. 96 of 1882.

On March 28, 1893, the State of Louisiana, through W. W. Heard,. State Auditor, conveyed the lots to the present plaintiff, John. M. Lockhart, the act of sale reciting that it was under authority of See.. 3 of Act No. 80 of 1880.

The defendant refused to accept the title, claiming:

1. That Jacob Joachim had no valid title to the property, and a. sale thereof for taxes assessed in his name could convey no title.

2. The title of the State of Louisiana was acquired at several tax sales based on assessments made in the name of one Jacob Joachim, and the proceedings which culminated in the sales were not notified to the said Joachim as required by law.

3. Prior to the said sales to the State of Louisiana the property was sold for taxes assessed in the name of the said Joachim for the-year 1880, to one Valentine Stubenraueh, and the said proceedings-by which the State of Louisiana acquired title were not conducted contradictorily with the said Stubenraueh. • •

4. The State had no valid title and therefore could convey none to the plaintiff. ' .

The title of Jacob Joachim having been called in question, plaintiff introduced in support of it the following instrument:

“By deed of sale executed by Moses Fox, Constable of the Eighth-Justice Court,- parish of Jefferson, by virtue of a writ of fieri facias, .to him directed by the judge of the Eighth Justice Court of said parish, in the matter of the suit of the City of New Orleans vs. C. C. Brickell, or owner of lots 6 and 24 to 10, square 35 old plan, or 260 new plan Faubourg West Bouligny, No. 300 of the docket of said. court; said constable sold to Jacob Joachim six certain lots of ground, with all the buildings thereon, situated in Faubourg West Bouligny, city and parish of Jefferson, now New Orleans, in the square bounded by Camp, Chestnut, Cadiz and Jena streets, designated as square 85 old plan, or 260 new plan. The said lot» 6 to 10 measure each thirty, feet front on Chestnut street by one hundred and twenty-eight feet.. in depth; lot No. 24 measures thirty feet frontjon Cadiz street by one hundred and fifty feel in depth, and is composed of lots 6 to 10 and 24 as per plan of said faubourg, seized at the suit of the city of Jef-. ferson in the above mentioned suit to satisfy a judgment of said court, in favor of said city for taxes for the year 1868. This sale was made for the sum of ten dollars cash.

(Signed) ' “ C. B. Fish, D. It.

“New Orleans, 'January 3, 1870. ■

Original registered in the conveyance office on June 3, 1870, in. book 96, folio 734.”

Plaintiff not only did not show that Jacob Joachim took possession of the property under this alleged sale, but he offered in evidence the deposition of one W. N. Wilson, who declared that he holds actual, open, notorious corporeal possession (of the property) under John M. Lockhart (the plaintiff) by virtue of a lease executed to him on May 1, 1898; that he has known the property for many years past., and during those years, and until he entered into possession thereof under the said John M. Lockhart, the same has been vacant and abandoned property.” '

No attempt was made by plaintiff to connect C. C. Brickell With Jamen N. Brickell, hereinafter mentioned, nor with this property. No copy of the judgment or the writ of fi. fa. referred to in the certificate of C. B. Fish, and declared to have been the basis of the sale' to Joachim, were produced, nor was their non-production accounted • for, and the same remark applies to the act of sale claimed to have been made by the constable. It is perfectly obvious that this certificate of Fish is worthless as a muniment of title to the plaintiff.. Introduced by the plaintiff, it exhibits a state of facts prejudicial to. his claims. We have said that no attempt was made to connect C. O. Brickell with James N. Brickell. The necessity for evidence on that subject will be appreciated when it is stated that defendant, im opposition to Joachim’s title, has shown by a certified copy of an.act of sale passed on the 25th June, 1853, before Richard Bremen^.; Notary Public, in New Orleans, that these same lots were on that day sold to James N. Brickell (not to C. C. Brickell) by Mrs. Rachel Harbaugh, wife of Warick Martin, and has produced a certificate of H. Cain, Recorder of Conveyances of the city of New Orleans, of date of July 3, 1893, to the effect that it does not appear from the records of his office that said lots had been alienated by James N. Brickell.

It is under this condition of the record that we are asked to compel the defendant to consummate the sale of the property to him, and to declare error and reverse the action of the District Court refusing plaintiff’s prayer to that effect made to it. We would not be ■ justified in doing so. It is the duty of a seller to present to his ven-dee a safe title, and it is the right of the vendee to decline carrying into execution the act of sale where such a title is not tendered.

Plaintiff claims that under the decision of this court in Prescott vs. Payne, 44 An. 650, the title offered is reasonably safe, but we are not of that opinion.

Had Joachim’s title been traced to proceedings against James N. Brickell, or had it been shown that C. C. Brickell, against whom the proceedings were directed, held title to the property under James N. Brickell, plaintiff’s claims would have been much stronger than they are. The assessor might not be called on to ascertain whether proceedings which culminated in a forced sale of the owner’s property were affected with nullities of such a character as not to shift ownership. As matters stand we are not warranted in holding or acting upon the presumption that the C. C. Brickell and the James N. Brickell title are one and the same or in privity with each other.

We must regard the former as an adverse title until the contrary be shown. If property really belonging to James N. Brickell, and so appearing of record, were (without any pretence of a divestiture of said Brickell’s title) to be declared to be sold as owner by a stranger (so far as Brickell was concerned) to that title to another third person, and the act of sale between these parties were placed of record, the assessor would not be justified in making an assessment merely on the strength of such recorded act. There would, in the case supposed, be two titles of record totally distinct from each other and totally independent of each other.

In the case of Williams vs. Landry, ante, p. 5, it will be observed that the title of Mrs. Partee was asserted to be and claimed to be (as it was in fact) through the real registered owner, James Dick. Her title was not an independent one.

The view we take of the rights of the defendant dispenses us from going any further than we have done in the examination of the character of plaintiff’s claims of ownership, and from determining whether, after the State has, under Act No. 77 of 1880, adjudicated property to a purchaser who by the law and his contract takes the property subject to all existing taxes upon it, a court is presented with a tax deed of sale of a later date of the same property, in enforcement of a tax existing at the time of the first adjudication, such tax would be held by it to carry with it per se the ownership of the property, independently of any proof, as to whether the first purchaser had been called upon to pay, and had refused or neglected to-pay the tax, and whether, for the purpose of the later proceedings, the State has the right to absolutely ignore the first purchaser or should to some extent recognize his right of ownership and possession. In the ease before us, McConnell and his vendee seem to have been entirely disregarded; no- demand appears to have been made upon either of them nor any notices given to either.

Plaintiff urges in aid of his title the prescription of three and five years. As between the parties to this suit the rules of prescription are not applicable. We presume plaintiff intended through these pleas to fortify his position as to the strength of his title 'by directing our attention to the situation which other parties would occupy, in a direct action for the ownership of the property. Defendant’s defensive position in this suit is stronger than would be that of the original owner in a litigation based upon the tax proceedings which have been brought to our attention in this case. He owes no duty to the plaintiff and is entitled to the strictest kind of proof in support of the title offered.

A judgment in this case in favor of the plaintiff forcing the defendant to a specific performance of the contract of sale might not be res judicata in case of a future action of nullity, in a petitory action between the original owner and the defendant.

Without passing on what would be the action of the court if the-pleas had been placed before us in a direct petitory aetion, one feature of the case in this connection which has struck our attention is the fact that this property, under the later tax sales, passed into the hands of the very party who inaugurated and prosecuted the same, and that it only passed from the State to a third party in March, 1893, and this suit was filed in the_ same year.

We are of opinion that defendant can not be compelled to take the title offered. For the reasons herein assigned it is hereby ordered, adjudged and decreed that the judgment appealed from be and the same is hereby affirmed.


author: Nicholls, O. J.

text:
    No. 11,654.
    Succession of Bernard Milmo. Opposition of Heirs of Milmo.
    A person holding at one and tlxe same time the position of testamentary executor of an estate and tutor of the minor heirs therein, can not receive and disburse ' a fund in the capacity as executor and charge commissions upon the fund as being in his hands as tutor.

    APPEAL from the Nineteenth Judicial District Court, Parish of Iberia. Voorhies, J.

    Bernard Milmo died April 1, 1891, leaving as issue with his predeceased wife four minor children, Baxter Milmo, Walter Milmo, Gertrude Milmo and Bernard Milmo. He made a last will and testament, appointing John P. Baxter, of Manistee, Michigan, a maternal "uncle of the minors, testamentary executor and tutor of the minors. Baxter accepted the trusts and at once came to Louisiana to qualiiy and perform the duties thereof.
    During the early part of 1894, he was removed from the tutorship, principally for having deposited funds belonging to the minors in a bank out of Louisiana. He was ordered to file an account of his tutorship. This order he obeyed, filing a separate account for each minor. He at the same time filed a provisional account of his ges-tión as testamentary executor. Subsequently, by consent of all parties in interest, as shown by a statement of facts (agreed to by counsel representing all parties), the account of the executor was amended so as to add a claimed commission of_two and a half per cent, and making the account a final one.
    It was further agreed that the court should be requested to fix such bond, to be furnished by the heirs seeking to be placed in possession of the property, as would cover any obligations which it might find to exist against the succession of Milmo, and that upon the heirs furnishing this bond they be' placed in possession.

      To the account filed, an opposition was made by the children of Bernard Milmo, one of whom (Baxter Milmo) is at present a major, •and appearing in his own behalf, and as now the tutor of his brother Bernard. The other two children, Gertrude and Walter, have been ■emancipated. The opposition was specialized to certain items.
    From a judgment maintaining the oppositions in part John P. Baxter appealed. ■ '
    The heirs of Milmo filed a motion for an amendment of the judgment, claiming that the executor should be disallowed all, commissions on the “ground that he had failed to file annual accounts, and to invest the funds intrusted to his gestión;” claiming also that “the allowance of four thousand dollars for the fees of Messrs. Mentz and Burke was excessive,” and claiming that they “are entitled to interest on the amount in the hands of the executor which he .invested in his own name and for his individual benefit;” -

      Philip II. Mentz and Walter J. Burke for Testamentary Executor •and Tutor, Appellant.

      L. O. Hacker for Opponents, Appellees.
   The opinion of the court was delivered by

Nicholls, O. J.

Counsel of the executor in their brief direct our attention first to the opposition made to the items Nos. 131-198 and 252, amounts paid for pew rent in the Jeanerette Church. The District Judge rejected the opposition to item No. 131, inasmuch as the amount paid under the voucher was for pew rent contracted for by Milmo himself, but he sustained the opposition to the other two items; holding .that the rent was due by Baxter individually.

During the period for which rent is claimed the children, with the •exception of Baxter Milmo, were absent from the State. The executor was not authorized to incur the obligation. When incurred it was his individual debt.

Appellant complains of the action of the District Court in holding him responsible for an amount of money belonging to the succession, which was in his hands as execútor, which he deposited in his own name in the Plankington Bank in Milwaukee, and which bank suspended payment while the money was there on deposit. The deposit was evidenced by a certificate in the name of John P. Baxter. A run having started upon the bank Baxter withdrew other moneys-standing to his credit in the bank, but this particular fund he was unable to withdraw, for the reason that he had transferred the certificate to parties who had become securities on the appeal bond' furnished by him as appellant in the partition suits (decided by us at Opelousas), 46 An. 1282, in the matter of the partnership of Milmo, Stokoe & Co., to secure them against the effect of their suretyship. The bank subsequently suspended payment. The executor seeks to justify his course by saying that a part of the fund was in the bank prior to Milmo’s death — -that there was no State bank in the parish of Iberia, nor was there any bank willing to pay interest on deposits, and that this particular bank was willing to pay three per cent.; that his own money was in the same bank, and that he was-seeking what he conceived to be the best interest of the succession. The reasohs assigned are insufficient. The executor made the-deposit in the Milwaukee bank in his own name, upon his own. responsibility and at his own risk. He should be charged and must be charged as if he had never parted with the possession. Baxter vs. Hewes, 45 An. 1065.

Appellant complains of the rejection by the court of a claim-advanced by him as tutor for a commission of ten per cent, on te^i thousand nine hundred and seventy-six dollars, alleged income of ^ the minors for the year 1891.

In the tutor’s account we find the following statement:

“Active Mass.

“For the reason that the estate of Bernard Milmo is still under administration and the minors having no separate property of their-own, there is, properly speaking, no entry to make as showing assets of the minors

“Their rights are involved in the property of the succession subject to administration and payment of debts, and all the property coming under control of the testamentary executor and tutor has-been accounted for in the account rendered heretofore of the gestión-of the testamentary executor.

“Daring the year 1891, in which B. Milmo died, the business of the firm of Milmo, Stokoe & Co. continued under the management of the surviving partners and the testamentary executor and tutor-of the minors. The share of profits coming to the Milmo estate was fourteen thousand six hundred and thirty-five dollars. This was not turned over to the testamentary executor and tutor, but remained in the assets of the firm, except to the extent to which the executor has already charged himself, and the proportion of the above amount accruing since the death of Milmo to the end of said year was ten thousand nine hundred and seventy-six dollars.”

With this statement of record it is difficult to see upon what ground appellant can set up the claim he does for commission as tutor. It is expressly admitted that no portion of the ten thousand nine hundred and seventy-six dollars went into his hands as tutor, and in appellant’s testimony he declares these so-called “profits ” of 1891 were applied to the payment of the debts of the partnership of Milmo, Stokoe & Co. The executor calls them “profits” simply because, according to his statement, the business of the firm for the particular year 1891 — that in which Milmo died — showed an excess of income over outlays. It is not claimed nor pretended that at the end of the year 1891, with all the debts of the firm paid, there remained a balance in its favor. The affairs of the firm for the special year 1891 can not be separated from its general prior affairs in the ascertainment of “ profits.”

It is true that although the firm owed debts of its own, certain of its funds, with the consent of the other members of the firm, were permitted to be applied to the payment of some of the debts of the succession of Milmo (an advance to the succession), but these funds never went into the hands of Baxter as tutor. A portion of them went into his hands as executor, and were by him used for the purpose stated, while the greater part would seem to have been paid out by the firm to the creditors of the succession.

It is obvious that a person holding at one and the same time the position of testamentary executor of an estate, and tutor of the minor heirs therein, can not receive and disburse a fund in the capacity of executor and charge commissions upon the fund as being in his hands as tutor.

The rights and obligations of parties under the administration of the executor and those under the administration of the tutor can not thus be confounded. Succession of Mitchell, 33 An. 353.

The District Court in rejecting the claim for commissions as tutor did not err. Succession of Pomponeau, 10 An. 79, 80; Heath vs. Lambeth, 3 An. 363; Succession of Hargrove, 9 An. 505.

In his account the executor claimed that he was entitled to a commission of two and one-half per cent, upon the total amount of the inventory of the succession. This inventory showed separate property of the succession to the amount of eight thousand nine hundred and eight dollars, and assets of the firm of Milmo, Stokoe & Co. (in which firm the deceased had an interest of ten-eighteenths) to the amount of one hundred and forty-seven thousand one hundred and forty-eight dollars.

The District Court refused to recognize the claim in so far as it was sought to be based on the interest of the succession of Milmo, in the partnership of Milmo, Stokoe & Co., as shown by the inventory, but allowed the executor a commission of two and one-half per cent, on sixteen thousand two hundred and twenty-two dollars as being an amount of money which actually went into his hands as executor.

In the reasons assigned by the District Judge for his action he stated that the partnership affairs had not been at the time of his judgment liquidated, and that he had reason to believe its outstanding liabilities were heavy — that if the executor would be entitled to commissions on the partnership property it would only be on the share which would ultimately pass into his hands free from debts. That matters were not in such a shape as to authorize or to justify him in fixing any specific amount of partnership values as that upon which commissions could be predicated.

After declining to recognize at present a claim for executor’s commissions, except to commissions at two and one-half per cent, on sixteen thousand two hundred and twenty-two dollars, the court declared that 11 the balance of the commission coming to him when he shall have filed his final account will be computed on the amount of the productive property coming to the estate, as the share of the deceased in the partnership of Milmo, Stokoe & Co., when liquidated.”

The executor complains of this action, first in not taking the inventory itself as a basis for commissions, and, second, in not passing finally upon this question. He says that the ‘‘provisional ” account, in which the claim is made, has, by consent, been converted into a final one, but there is no evidence before this court that the partnership has been liquidated or what the ultimate situation, either of the partnership or the succession, will be. It may be that the heirs have been placed in possession, and these matters have all been closed, but if such be the case the transcript does not show it. We do not think there is any ground for amending the judgment in favor of the executor. In the Succession of Grover, 12 An. 335, it was intimated that the executor’s seizin does not extend to the testator’s interest in property belonging to a partnership. We may say in passing that it is the duty of an executor claiming commissions to show affirmatively what portion of the succession property, and a fortiori what portion of the partnership property, is productive, and that he should not leave the matter to inference. In reference to partnership matters the suit of Baxter vs. Hewes, 45 An. 1066, has brought to our notice the fact that they were for a time at least placed in the hands of F. W. Bauman as liquidator, who was paid two thousand dollars for his services. Precisely what part the executor took in the administration does not appear.

The heirs are not satisfied with the judgment of the court, as to the executor’s commissions — they claim that none whatever are due; that he has mismanaged the estate; that his administration has not been beneficial, but a positive injury. .

As part of the amount of sixteen thousand two hundred and twenty-two dollars upon which the court allowed commissions, figures the amount received by the executor which he deposited in the Milwaukee bank, as we have before stated. Upon the theory that that sum would be finally lost to the succession, it would not be proper to permit the executor, through whose imprudent and illegal action it would be lost, to charge commissions upon it. We have held, however, that the fund is to be considered as still in the hands of the executor, as if he had never parted with possession of it. If he be able to pay, and does pay over the amount to the heirs, we are not prepared to cause him to lose the commission, as a penalty ipso facto for his course, which the District Oourt seems to regard as more an error of judgment, in order to obtain an interest-bearing deposit, than a designed wrong. The balance of the sixteen thousand two hundred and twenty-two dollars consists of moneys actually or constructively received from the partnership of Milmo, Stokoe & Co., and applied to .the payment of the succession debts and support of the minors. There seems to be no clash between creditors and minors, and no likelihood of opposing interests. The heirs do not contest either the amount which has been expended upon themselves individually, or upon their co-heirs, and the tutor as such has received and will receive no commissio ;s. Under the circumstances, we are not inclined to reverse the action of the court on the subject of commissions, to the extent of the commissions on sixteen thousand two hundred and twenty-two dollars, but we think conditions should be attached to granting them. Instead of recognizing these commissions as an absolute claim against the succession by the executor, we are of the opinion that the circumstances require us to simply authorize him to deduct the amount thereof from his indebtedness as executor, only after payment in full of everything otherwise due by him, and the delivery of everything for which he is accountable. We assume that the District Court in its future action, should it determine that further commissions are allowable, will similarly guard the interests of the heii’3. The action of the court in refusing to take the inventoried value of the assets of the partnership of Milmo, Stokoe & Co., and the inventoried value of the interest of the succession of Milmo therein, as the basis for estimating the com - missions of the executor was correct. Whether ultimately any commissions will be due to the executor by reason of the interest of Milmo in the partnership of Milmo, Stokoe & Co., and, if so, what their commissions should be, is a matter not to be presently decided.

We leave open the question of executor’s commissions on property or amounts over the sixteen thousand two hundred and twenty-two dollars referred to, which may be based on the affairs of the partnership, subsequently to the filing of the account, to be hereafter dealt with and passed upon by the District Court.

The heirs, in their motion Nr an amendment of judgment, pray that they be decreed interest on the amount in the hands of the executor, which he invested in his name and for his individual interest.”

We do not think the occasion calls for the infliction of statutory penalties upon the executor, and therefore sustain the judgment below on that point. We think the court contemplated a restatement or recasting of the whole account by the executor, so as to show on its face the precise final situation of the parties and enable it to render a direct judgment in the premises. As matters stand we find that the various issues raised were passed on, but not passed on in a form such as to permit of either certain or easy execution. The question as to the interest due by the executor is not presented to us in a satisfactory manner in the transcript or briefs, and we think the •ends of justice will be best attained by leaving that matter open to' •be adjusted hereafter, and disposed of in the judgment to be ultimately rendered in the case.

Counsel of both sides have in their brief discussed at length the .action of the court in overruling the opposition of the heirs of Milmo to the fees of Messrs. Mentz and Burke, and their opposition to the items of the account which figure under the numbers 145, 156, 166, 169, 177, 199, 200, 201, 202, 205, 208, 209, 210, 211, 213, 215, 222, 227, 277, 279, 280, 281, 308, 309, 362, 363 and 403.

None of these items, other than the fee of Mentz and Burke, are eov-■ered by the motion to amend filed in this court. On that ground .alone the judgment below could not be altered, but besides this the heirs did not appeal from the judgment. The judgment of the District Court overruling the opposition made before it to the claim of Mentz and Foster, as it stood recognized by the executor, can not be -altered by us, through a motion to amend in the present ap eal. 'That matter could only be brought before us by direct appeal taken by the heirs. Andrus vs. His Creditors, 46 An. 1351; Chapoton vs. Her Creditors, 45 An. 451.

For the reasons herein assigned it is hereby ordered, adjudged and decreed that the judgment appealed from be amended so as to leave • open for future examination and decision the right of the executor to future commissions other than the commission of two and a half per cent, on sixteen thousand two hundred and twenty-two dollars to which he is decreed entitled by the judgment below, which may be based on the ultimate interest of the succession of Milmo, in the partnership of Milmo, Stokoe & Co., and so as also to leave open for • future examination and decision the question of interest due and to become due by the executor. It is further ordered, adjudged and ■ decreed that the judgment appealed from in so far as it recognizes . as due absolutely to the executor a commission of two and a half per cent, on sixteen thousand two hundred and twenty-two dollars be amended so as to simply authorize the executor to deduct the . amount of the said commissions from his indebtedness as executor . after payment in full of everything otherwise due by him, and the • delivery of everything for which he is accountable as executor. It .is further ordered that the judgment appealed from, except as herein amended, be affirmed, and that this cause be remanded to the District Oourt with direction to recast, or cause to be recast, the account of the executor in conformity to the views herein expressed, and for further proceedings according to law and judgment.


text:
    No. 11,663.
    Reed McLane vs. His Creditors.
    Labor tickets showing simply an amount of money and “ in goods” will not support either a transfer of the claims of the laborer with subrogation to the merchant, or a payment with legal subrogation by the latter.
    “Delivery” is one of the incidental obligations resulting from a contract of sale, while “ acceptance” bears upon one of the essential elements leading up to the creation and formation of the contract itself, viz., consent.

    When it was in contemplation of both parties to a contract of sale that the property should reach the vendee in Louisiana, and while there in his possession a portion of the price would be still unpaid, it is fair to presume, in the absence of express stipulation to the contrary, that the vendee should reserve right of final acceptance for a reasonable time after its receipt, and that both parties should contract with reference to the operation of the laws of Louisiana.
    APPEAL from the Seventeenth Judicial District Oourt, Parish of St. Mary. Allen, J.

    The District Oourt homologated and slightly amended the provisional account of T. D. Hine, syndic of the insolvent estate of Reed McLane. There are two appeals, one of which is aimed at that part of the judgment recognizing a vendor’s privilege in favor of the Ourtis & Co. Manufacturing Company on certain machinery, and|the other at the decree amending the syndic’s account by granting John A. O’Niell a laborer’s privilege on the money resulting from thejsale of a lot of shingles.

      D. Caffery & Son for Curtis Manufacturing Company, Opponents, and the Syndic, Appellants.

      Philip H. Mentz for John A. O’Niell, Coleman & Vinson et als., Opponents and Appellants.
   ON THE OPPOSITION OF JOHN A. O’NIELL.

The opinion of the court was delivered by

Nicholls, O. J.

The attorneys of the syndic and of the opponent entered into an agreement, in which, declaring that the tickets referred to in the opposition of John A. O’Niell were all alike except as to amounts or sums mmed in them — the said sums being five cents, ten cents, twenty-five cents, fifty cents and one dollar — they consented that one of the tickets of each denomination should be annexed to the agreement and attached to the transcript to serve as samples of all the tickets, and that the Supreme Court should consider the tickets annexed to the agreement as such samples, and as if the whole of the package of tickets had been copied into and made part of the transcript.

The agreement referred to, signed by the respective attorneys, has been attached to the transcript with the sample tickets alluded to. They are all alike except as to amounts being printed on one side but with the name Reed MeLane written on the reverse or back of each ticket. The following-is a copy of the face of the tickets:

Reverse side, Reed McLanb.

The only evidence offered by the opponent was the package of tickets mentioned in the agreement of counsel and the testimony of R. E. O’Niell, the son of John A. O’Niell, and his book-keeper. He testified that the business of his father was merchandising; that the insolvent owed his father $820 when he made a surrender; that of this claim $600 were represented by labor tickets; that they were endorsed by Reed MeLane; that he is familiar with his signature; that they represent the original amount paid laborers; that his father came into possession of them by taking them from the laborers for merchandise.

This evidence is totally insufficient to support the judgment. It is not shown who the laborers were who held these tickets; upon what work they were engaged or when engaged; there is no evidence to show that the shingles upon which a privilege is claimed were made, or the trees from which they were made, were either belted, cut or hauled while the particular persons from whom O’Niell obtained these tickets were in the employ of McLane, and there is nothing to ■explain the tickets themselves.

Evidence very different from that which we find in this record would be required to show, either a transfer of the claims of the laborers with subrogation to the merchant, or a payment with legal ■subrogation by the latter. The tickets referred to when coupled with proper evidence under special pleadings might be very important in a given case, as leading up to a privilege, but as we find them with the testimony actually adduced in respect to them in the transcript, they serve only to support a claim for an ordinary debt. That he is an ordinary creditor to the amount shown by the tickets is conceded. The opposition of John A. O’Niell to the account should have been rejected.

•ON THE OPPOSITION TO THE PRIVILEGE CLAIMED BY THE CURTIS & CO. MANUFACTURING COMPANY.

The evidence shows that in March, 1891, George H. Ruffin, as the ■agent of the Curtis & Co. Manufacturing Company, which had its domicile .in the State of Missouri, sold at Jennings in the State of Louisiana to the insolvent Reed McLane, a citizen of the latter State, ■certain machinery belonging to said company. The terms of sale were five hundred dollars cash, the balance on time. The machinery purchased was with the exception of a small part thereof at the time of the sale in Missouri. The portion not in Missouri was in Erie, Pa. The terms agreed on in Jennings were f. o. b. (free on board) cars at St. Louis, McLane to pay all freights from St. Louis to Franklin, La. Subsequently to the sale, but before shipment, a double-block machine was substituted for the ten-block machine. The machine was shipped from St. Louis to McLane at Franklin, and he paid the freight.

The Curtis & Co. Manufacturing Company did not have in stock, at the time of the contract, an engine and boiler constituting part of the machinery contracted for, and that company ordered them from the manufacturers at Erie, Pa., to be shipped directly to McLane at Eranklin. It was understood between the parties that McLane was to get credit for part of the freight from Erie to St. Louis, and he was in fact credited for that sum.

There is no contest as to the indebtedness due by the insolvent -under the contract; the litigation is exclusively as to whether it is secured as to its payment by privilege.

In their briefs opponents say “there are certain facts which counsel for the syndic will claim to be proven and which counsel for opponents will concede the record establishes in order that the determinative facts may be more quickly reached. It is shown that the Ourtis & Oo. Manufacturing Company had their domicile and place of business in St. Louis, Mo.; that Reed McLane lived in Louisiana; that George H. Ruffin was the agent for the company and made the transaction with McLane at Jennings, La.; that Ruffin had full authority to bind his principals by any bargain that he would make; that the machinery was shipped by the company from St. Louis to Reed McLane at Franklin, La.' Such a statement might justify the account filed, but these are not all the facts, evidence as to which strips the transaction of the privilege allowed.” They then say that to facilitate the court they quote literally as much of the •evidence as is needed to show the necessary facts.

Following the quotations which they make, counsel say:

We will now submit the following legal propositions arising out •of the facts proven, as determining the question of privilege vel non.

1. That the machinery bought by McLane was delivered to him when it was delivered to the carrier at St. Louis, and was always thereafter at his risk and in his possession.

2. That the contract by the selling agent in Louisiana was merely •executory, and was not an executed contract until, under the terms of the contract, the goods were placed upon the cars at St. Louis.

3. That the contract was merely executory, and that no title could •or did pass to McLane until the manufacture and selection of these goods was complete, nor until they were set apart irrevocably as his by the vendor at St. Louis, Mo.

4. When a sale is made in Louisiana of goods to be delivered in St. Louis, by the terms of the contract, the sale takes place in law in St. Louis, and the vendor has no privilege in Louisiana.

5. That when a contract is made in one place to be executed in another, and the laws of the two places differ, the rights and obligations of the contracting parties are fixed by the law of the place of -execution.

6. That the chattel mortgage given on these goods in Louisiana is null, void and meaningless, and is not to be considered at all; and that this would be equally true of such a contract made in another State to affect personal property in Louisiana.

7. That after completion of the sale and the passing of the title at St. Louis, there was no act that the buyer could do or contract that he could make in Louisiana or elsewhere which would fix upon the property a privilege which did not arise from the contract under the laws of Missouri.

8. That the laws of sister States do not give the seller of personal property a privilege or lien upon the property.

It is admitted that Ruffin, who represented the Curtis & Co. Manufacturing Company in Louisiana, had full authority to bind it by any contract of sale which he might make without referring his action to Missouri for its approval and ratification. Had the company at the time of the contract had a-shingle saw-mill outfit answering or corresponding in every particular with the description given of the machinery in the contract between McLane and the company, and these two parties had contracted with direct reference to that particular outfit on precisely the same terms and conditions as they did in the actual contract which they made, the contract would have been a Louisiana contract of sale, carrying with it á vendor’s privilege in favor of the seller for the security of the credit portion of the price. The contract actually made between the parties was identical in many respects with the supposed Louisiana contract of sale, which we have just spoken of. There were the two contracting parties dealing with each other in Louisiana, with absolute power over the subject matter of the contract; there was the same aggregatio mentium as to the price and its time and mode of payment and as to an object to be bought and sold accurately described and well understood, but there were some differences between the two cases. In the supposed contract the ownershp of the particular thing contracted for (then in Louisiana) passed as between the parties at once from the company to McLane, even before delivery, while in the contract actually made there was no immediate shifting of ownership for the reason that although the agreement reached a point which would characterize it as a legal contract between the parties and bring it within the literal definitions given in Arts. 2439 and 2456 of the Civil Code, the first of which declares that “ the contract of sale is an agreement by which one gives a thing for a price in current money and the other gives the price in order to have the thing itself,” and that “ three circumstances concur to the perfection of the contract, to-wit: the thing sold, the price and the consent,” and the second declares that “ the sale is considered to be perfect between the parties, and the property is of right acquired to the purchaser with regard to the seller, as soon as there exists an agreement for the object and the price thereof, although the object has not yet been delivered, nor the price paid,” yet the identical thing purchased has not been selected though clearly indicated as to its species or class (Civil Code, Art. 1886). Under such circumstances an application of the general rule announced in Art. 1909 of the Civil Code that “if the obligation between the parties be to deliver an object which is particularly specified, it is perfect by mere consent of the parties,” and that “it renders the creditor the owner, and although it be not delivered to him puts the thing at Ms risk from the date of the obligation,” is modified by the fact that an instantaneous transfer of any specifically selected or appropriated machine was not contemplated.

The agreement between the parties, while it had reached the point of creating civil ties between them, was lacking in some particulars in the features and results of a thoroughly perfect and completed sale. The identical machine which ultimately, by selection, designation or appropriation, would be brought directly under the operation of this contract, would remain, as to its ownership and risk, temporarily in the company. It is upon this special feature of the contract we are now considering, and the fact that some other act, besides “the mere consent of the parties” was necessary to be done, had to be done after the contract had been given, in order to bring the contract to a thoroughly perfect sale, with its full results and effects, and that this act would have to be done in Missouri, and not in Louisiana; it is upon this that opponents rely. They contend that the contract received its final consummation in Missouri, by the designation in Missouri of the particular outfit which was to be applied to the contract — that there was no privilege possible until there was a transfer of ownership, and if such a privilege was to result at all from the contraes, it would spring into existence the very moment ownership vested in McLane, and ownership vesting in Missouri, where no privilege was given by law, none could be made exist by a subsequent taking of the property to Louisiana. Such we understand to be opponents’ position. They designate the delivery of the articles to the carrier at St. Louis on the cars as the time and place at which, and the fact from which, the contract of sale became fully •absolute, and the rights of parties fixed, their theory being that by ’the contract McLane agreed to receive the articles there as his property, and to deal with it thenceforward as his own. They regard the agreement by McLane to pay the freight from St. Louis as conclusive evidence of a delivery by the company to him at that time, and ■a delivery at that point as absolutely inconsistent with the idea of •continued ownership of the property by the company from St. Louis ■to Franklin. We do not regard the agreement of McLane to pay the freight from St. Louis to Franklin, La., as by any means necessarily leading up to the conclusion that he was to receive delivery of the goods at the former place — such a stipulation is often considered as an element by a purchaser of goods in determining and fixing the price which he pays for the same. Granting, however, that the fact of paying for the freight on the goods from St. Louis may bt taken as a consent by McLane to a receipt or delivery of the machinery to him at that place, it would not necessarily follow that the ownership of the machinery changed absolutely at that time from the company to him.

Opponents, in reaching their conclusion to this effect, evidently considered receipt and delivery of goods as necessarily synonymous with an acceptance of them by a purchaser. In this there is serious •error. The acts are distinct. “Delivery” is one of the incidental •obligations resulting from a contract of sale, while “acceptance” bears upon one of the essential elements leading up to the creation and formation of the contract itself, viz.: consent. It may be well to state here that the question whether the articles contracted for by McLane were to be delivered to him at St. Louis, or whether that place was simply indicated as the point of shipment,' and as the starting point from which he was to pay the freight, is one of the •controverted points in the case. We do not regard a decision of it as having the important bearing which opponents give to it. Let us mow consider the question of transmission of ownership in its bearing upon the rights of parties. Opponents contend that the contract between the parties was an executory contract in Louisiana, and that it became an executed contract in Missouri, and therefore-the place of the consummation of the contract determines the question of privilege.

There obviously was but one contract between the parties — the contract made between Ruffin and McLane at Jennings. When the company at their factory or store in Missouri selected a particular outfit and sent it to the carrier for shipment they were not initiating a new agreement or acting by virtue of any original power reserved to them, but simply doing acts in execution of a contract already made; they were not at liberty to depart in a single matter from that agreement, and when the articles shipped would come to be accepted or rejected by McLane it would not be in the exercise of a new power of consent, but under an implied reserved right of holding open to that extent the final, absolute consummation of the original contract under warranty in the sense that word is used in insurance and maritime law. The acceptance by McLane, if given, would have relation back, quoad the place of the contract, to the contract made in Louisiana, and matters would stand legally as if the particular articles which finally reached him had been ab initio at Jenninss. It is true that quoad certain results and certain parties, the executory nature of the contract might bring about important differences between the situation in the two cases, but if matters ultimately took the shape of actual acceptance and actual delivery without the intervention of disturbing factors, the legal situation in our opinion is that which we have indicated. This view of the situation is sufficient to dispose of the issues raised in the opposition. We are by no means prepared to say, however, as a matter of fact, that the ownership of these goods, whether viewed from the standpoint of a Louisiana or that of a Missouri contract, would shift in Missouri at the time, and by the fact of the segregation of a particular machine'from among a number of others at the company’s factory, and its being brought directly under ihe operation of the contract by appropriation. McLane had never seen the particular machine which would ultimately be brought in under the contract. It was in contemplation of both parties that it should reach him in Louisiana, and that while there in his possession a portion of the price would be still unpaid. It would be fair to presume, in absence of express stipulation to the contrary, that McLane should reserve right of final acceptance to a reasonable time after its receipt by him at Franklin, and that both parties should contract with reference to the operation of the laws of Louisiana upon the enforcement of the rights of the seller.

It will be observed that if there were any acts in the matter of the execution of the contract to be performed in Missouri and by the seller, there were also acts in execution by the purchaser to be performed in Louisiana, where the contract was unquestionably made. There were a double set of obligations in execution of the contract. We need not examine into the rights of parties from the standpoint of jurisprudence in courts other than our own, relatively to a change of ownership under a contract of sale of the character of that made between the parties in this case, nor discuss the difference between delivery of an object and the acceptance thereof under a contract of sale.

The question will be found discussed at length in Pope vs. Allis, 115 U. S. 371; Benjamin on Sales, Secs. 701 and 706; Id., p. 1153; Winfield Water Company vs. Winfield, 33 Pacific, 718.

After careful consideration of the important question involved in this litigation we hav e reached the conclusion that the judgment of the District Court recognizing the vendor’s privilege as securing in favor of the Curtis & Co. Manufacturing Company the unpaid portion of the price due to it on the sale of the machinery sold by George H. Ruffin to the insolvent Reed McLane is correct, and should be and it is hereby affirmed.

Eor the reasons herein assigned it is further ordered, adjudged and decreed that the judgment of the District Court sustaining the opposition of John A. O’Niell and recognizing and decreeing in his favor the privilege claimed by him be and the same is hereby annulled, avoided and reversed, and it is hereby decreed that the said opposition be rejected, costs of this opposition in the District Court to be paid by said opponent. It is further decreed that the costs of appeal be paid by the opponents in both oppositions.

Rehearing refused.


author: Nichoi.ls, 0. J.

text:
    No. 11,555.
    Succession of Robert H. Short.
    This court will not consent to looseness in the manner of bringing up an appeal, and when such a condition occurs will not proceed to judgment in the case.
    Although no motion to dismiss be made, the court will dismiss the appeal.
    A PPEAL from the Civil District Court for the Parish of Orleans. Ellis, J.

      On May 4, 1894, Florence Simms filed in the succession of R. H. Short a petition to the District Court in which she alleged that she had been fully emancipated by the court on May 1, 1894; that she was aggrieved by the judgment of July 14, 1891, annulling and setting aside the last will of Short, executed by Zengle, notary (vide 46 An. 452) ; that in said will she was named as one of the legatees of the deceased; that his estate exceeded the sum of forty thousand dollars, and that she desired to appeal, and prayed to be permitted to appeal, to this court from said judgment.
    In the petition for appeal there is no mention made of the various parties to the suit, nor of their interest or capacities, nor is there any prayer for citation. No citation was made. The various attorneys accepted service- and waived citation; this constitutes the only evidence going to show that there are appellees before the court.

      F. Rivers Richardson for Executor et ais., Appellees.

      Rice & Montgomery for Florence Simms, Applicant, Appellant.
   The opinion of the court was delivered by

Nichoi.ls, 0. J.

Appellant states that she is a legatee under the Zengle will, but she does not mention the amount of her legacy, nor that of the ultimate interest, real or supposed, in that succession, which would be affected by the reversal of the judgment appealed from.

The various attorneys who signed the acceptance of service and waiver of citation do not state in whose behalf they did so. A reference made by ourselves to the Zengle will shows that appellant was' a special legatee under it to the extent only of one thousand dollars. What her situation would be were the residuary clause in the will maintained, we can not say nor have we been shown. Another matter has attracted our notice. It is the fact that appellant was a party to and represented in the suit which resulted in 1891 in the judgment appealed from.

We can not consent to the looseness with which this appeal has been brought before the court. Were we to proceed tb judgment in this matter we feel that we would be on uncertain ground, both as to our jurisdiction as to amount and as to whether all parties whose rights are to be affected are before the court; besides this, the right of appeal of this emancipated minor, at this late date, under the circumstances of this case, is by no means certain. There has been no motion made to dismiss, but as matters stand, and with the lights before us, the only disposition we can make at present of the appeal is to dismiss it.

It is hereby ordered and decreed that the appeal taken herein be-' and the same is hereby dismissed. -

Miller, J.', recused. ‘


author: Watkíns, J. Breaux, J.

text:
    No. 11,369.
    John M. Ayer vs. Illinois Central Railroad Company.
    The question is exclusively one of fact. The evidence and the amount claimed by plaintiff prior to suit as damages concur in sustaining the claim allowed in. the decree on rehearing.
    PPEAL from the Civil District Court for the Parish of Orleans. Rightor, J.

      E. W. Huntington and Horace L. Dufowr, for Plaintiff and Ap-pellee, cite C. C., Art. 1934; 128 Mass. 221.

      Farrar, Leake & Lemle for Defendant and Appellant.
   The opinion of the court was delivered by

Watkíns, J.

This is an action in damages against the defendant for the recovery of three thousand eight hundred dollars for injury and damage sustained by certain furniture and household goods, while in transit from Chicago, Ill., to Pass Christian,. Miss., on one of the trains of the defendant.

Plaintiff’s statement is that in December. 1890, he entered into-a contract with the defendant for the transportation of certain furniture and household goods between the two points designated, for which he paid the said company the usual carriage fees, the defendant being a common carrier of freight. The said goods were delivered in good order to the defendant in Chicago, on or about the 20th of December, 1892, and conditioned to be delivered at Pass Christian, Miss., according to the terms of the contract. That while- in transit the goods received injuries to the extent and amount above stated, as will appear by a detailed list of articles and estimates annexed to the petition, petitioner expressly averring the absence of contributory negligence on his part.

He avers an effort to obtain settlement without avail.

The answer of the defendant admits entering “into the contract of affreightment with the plaintiff, annexed to the petition on the date therein named, and that it received a lot of household furniture referred to in the said bill of lading from the plaintiff, at Chicago, Ill., for transportation according to the terms of the contract, to said plaintiff’s order at Pass Christian, Miss.;” but the defendant denies that its railway extends to Pass Christian, Miss., it only extending to the city of New Orleans, La., thus making a connection with Pass Christian, Miss., by the Louisville & Nashville Railway from New Orleans and by the Mobile & Ohio Railway from Cairo, Ill., via the Louisville & Nashville Railway from Mobile, Ala., both of which are independent railways, not controlled or operated by the defendant.

Further answering, the defendant alleges that it performed its full duty under the law and the terms of the contract in respect to the -carriage and transportation of the plaintiff’s property from Chicago to New Orleans, and that said furniture was not damaged or injured by any negligence of the defendant while same was in its possession or under its control, and “that defendant is not liable by the terms of its contract or by the law of the land for any damage to said furniture that may have occurred while same was in the possession of the Louisville & Nashville Railroad Company, the connecting carrier aforesaid, to whom this defendant delivered this furniture in substantially the same condition at New Orleans, La., as when said furniture was delivered to this defendant at Chicago.”

The answer further denies that when received at Chicago that this furniture was as good as new, and alleges the fact to be that it was second-hand furniture that had been for months previous to shipment stowed away in a warehouse and its condition was not first class.

The answer denies the value of the furniture to be as high as that which is alleged, and avers that the damage sustained by it in transit was far less than the amount claimed. The answer further denies that the defendant is liable for damage to the furniture that is incident to the wear and tear of transit, and is only liable for negligence and want of due care in the transportation and safe delivery.

The cause was tried by the judge, who, for reasons assigned in his written opinion, gave the plaintiff judgment for the sum of two thousand dollars, and from that judgment the defendant has appealed.

In this court the defendant has made no appearance by counsel or brief, and hence this court is not advised of any ground on which defendant relies for a reversal of the judgment, and the plaintiff has requested r.o amendment thereof in his favor.

The judge states in his reasons for judgment: “That the plaiutiff is entitled to damages is virtually conceded, and it only remains to estimate the amount.”

On this state of the ease it is unnecessary for this court to examine the questions of law raised in the defendant’s answer, or the measure of its responsibility with respect to that of its connecting carriers, as under the circumstances our opinion would be ex gratia.

But it seems to be conceded that the goods were shipped from Chicago in car-load lots, and on arrival at New Orleans the cars were transferred to the Louisville & Nashville Railway. Of this transfer the General Freight Agent speaks in a letter addressed to the Superintendent thus:

“The freight must have been very badly handled in transferring here, i. e., in New Orleans, and improperly loaded, or the cars must have had very rough handling somewhere in transit,” thus clearly admitting the defendant’s liability.

On the quantum of damages the District Judge has very carefully summarized the facts, and as he appears to have carefully considered all the evidence we do not feel authorized to disturb his finding, after having gone over the record and fully verified his estimates.

On questions of fact we do not feel authorized to reverse, or even modify, the finding of a lower judge, unless patent and manifest error is pointed out.

Judgment affirmed.

On Rehearing.

Breaux, J.

We affirm the principles laid down in our previous deer e.

The plaintiff is entitled to damages.

We think the estimate of the amount should be reduced for the reason that damages to the etagere (part of plaintiff’s furniture) was considerably less than claimed.

The damage to the rosewood bed should be less than the amount allowed.

The estimate placed on the picture of a marine scene on the coast of England, it strikes us, is greater than its value.

We will not again no over thb estimates in detail. Considering the damages as a whole,'we think that fifteen hundred dollars is a fair compensation for all the damages claimed.

We the more readily reach that conclusion because it was stated in evidence on the part of the defendant that plaintiff, prior to suit, had made claim of the railroad company lor that a:r.ount. That-statement was not denied by the defendant.

It is therefore ordered, adjudged and decreed that the amount of our original decree be reduced from two thousand dollars to fifteen hundred dollars, with legal interest, and that appellee pay cost of appeal.

After this reduction and amendment our decree is affirmed.