author: Marr, J.

text:
    No. 691.
    The State vs. J. H. Lartigue and Thomas Williams.
    An indictment lor stealing need not expressly designate the offense charged as grand or petty larceny.
    The parish courts have jurisdiction, and hence have power to receive informations, in all criminal cases, when the offense charged is not' necessarily punishable with death, or imprisonment at hard labor, and when the accused waives his right of trial by jury.
    A mere opinion as to the guilt of the accused, unassociated with any bias, or prejudice, does not disqualify a person to serve as juror.
    The judge is authorized, on his own motion, to strike a juror from a regular panel, if satisfied that the juror is morally unfit to return a just verdict.
    APPEAL from the Fourteenth Judicial District Court, parish of Ouachita. Parsons, J. Trial by jury.

      W. fiT. Potts, District Attorney, for the State and appellee.

      Robert J. Caldwell and Robert Ray, for defendants.
   The opinion of the court was delivered by

Marr, J.

In March, 1877, the district attorney filed an information in the parish court of Ouachita against Julien EL Lartigue and Thomas Williams, who were in prison, in default of bail for their appearance at the next term of the district court, charging that they, at and in the parish of Ouachita, on the sixth of February, 1877, “with force and arms, one cow, of the value of fifty dollars, of the goods, chattels, and property of Bobert Miller, then and there being found, feloniously did steal, take, and carry away.” Warrants of arrest were issued on this information, and the accused being brought into court, both decided not to waive trial by jury.

At the ensuing term of the district court the accused appeared and filed separate motions to quash the information on the grounds:

First — That prosecution by information can not originate in the parish court, and must originate in the district court, which alone has power to try criminal cases by jury.

Second — That the accused could not be legally called on by the parish judge, in whose court the information was filed, to say whether they would be tried by the parish judge or by a jury, because the parish judge could not tender them a jury.

Third — That the law of the State of Louisiana makes a distinction between grand and petty larceny; and the information does not state whether the offense charged is grand or petty larceny.

Fourth — That by the law of the State the punishment is greater for grand than it is for petty larceny, thereby making two distinct offenses.

The two grounds last mentioned were taken by Lartigue alone, who also moved the court to grant' him a separate trial on the ground that his defense would be prejudiced if both the accused were tried together; and he also moved for a change of venue on the ground that he could not obtain an impartial trial in the parish of Ouachita by reason of the prejudice existing in the public mind.

Our attention has not been called, by bill of exceptions or otherwise, to any error of law in the ruling of the district judge in refusing these motions; and we can not undertake to review his decision in this respect.

The motions to quash having been overruled, the accused pleaded not guilty, elected to be tried by jury, and were convicted; and they have appealed from the judgment sentencing them to two years imprisonment in the penitentiary.

Four bills of exception, and the motions to quash, present the only questions which we can consider, and we shall dispose of them seriatim:

First — As to the objections based upon the distinction between grand and petty larceny, established by section eight of the act of 1874, p. 223, creating the Superior Criminal Court, but little need be said. This section declares that the crime of larceny shall be divided into grand and petty larceny. If the thing stolen be of the value of one hundred dollars or more, the crime is grand larceny, and the penalty is imprisonment in the parish prison, or at hard labor in the penitentiary, at the discretion -of the court, for not more than ten years. If the value be less than one hundred dollars, the crime is petty larceny, and the penalty is imprisonment in the parish prison, or in the penitentiary, at the discretion of the court, for not more than two years. The mode of trial and all the proceedings are the same, whether the crime be grand larceny or petty larceny. The only difference is in the penalty. The word “ larceny ” is not used in indictments and informations. It designates the offense which is usually called stealing, and it is aptly charged in the information in this case by the words “feloniously did steal, take, and carry away one cow, of the value of fifty dollars, of the good, chattels, and property of Bobert Miller.” It would not be possible to charge the crime of petty larceny, as defined in the statutes, more clearly; and the sentence is for the penalty appropriate to that crime.

Second — The other grounds of the motion to quash are based upon the supposed want of jurisdiction in the parish court.

By the constitution, article six, the right of trial by jury is secured to the accused in all prosecutions. Article eighty-five confers upon the district courts unlimited jurisdiction in criminal cases; and article eighty-seven provides that the parish courts shall have jurisdiction in criminal matters, in all cases when the penalty is not necessarily imprisonment at hard labor, or death, and taken the accused shall waive trial by jury.” This article goes on to declare that the parish courts shall also have the power of committing magistrates, “ and such other jurisdiction as may be conferred on them by law,” and that “ there shall be no trial by jury before the parish courts.”

It is obvious, therefore, that the parish courts have jurisdiction in criminal matters in those cases only in which the two conditions concur:

First — A charge not necessarily punishable by imprisonment at hard labor or death; and,

Second — The waiver by the accused of trial by jury.

As the district courts have unlimited jurisdiction in criminal cases, the-restricted jurisdiction thus conferred upon the parish courts is necessarily concurrent with that of the district courts.'

The word jurisdiction, as used in this article, eighty-seven, evidently means the power to hear and determine, jus dicere, to say what the law is; or, as article seventy-six of the Code of Practice defines it: “ Jurisdiction means the power of him who has the right of judging.” Substituting for the word ‘‘jurisdiction” the words “the right of judging,” and the clause of article eighty-seven in question will read thus:

“In criminal matters the parish courts shall have the right of judging in all cases when the penalty is not necessarily imprisonment at hard labor, or death, and when the accused shall waive trial by jury.” The penalty of larceny, whether grand or petty, is not necessarily imprisonment at hard labor, or death; and the authority which the Legislature has chosen to confer upon the parish courts to receive informations in the cases which may fall within their cognizance, to have the accused arrested and brought before them, and required to decide whether they will waive trial by jury, is no enlargement of their jurisdiction, their right of judging, nor is it in excess of legislative power.

This grant of jurisdiction to the parish courts necessarily assumes that the accused, in the class of cases specified, have the right to waive trial by jury; but it does not indicate the manner in which this faculty or right of waiver shall be exercised, nor how the decision of the accused shall be manifested. This deficiency is supplied by the act of 1868, No. 120, which in no way enlarges the jurisdiction, the right of judging; nor does it violate either the letter or the spirit of the constitution.

Section four of this act, p. 157, authorizes the district attorneys to file informations in the parish courts against all persons accused of crimes which may be cognizable in said courts, upon which it is made the duty of the parish courts to issue warrants for the arrest of the accused, and to fix the amount of the bail-bonds to be given by them.

Section five requires the accused, in all such cases, to appear, if under bond, or to be brought into court by the sheriff or other officer, if in actual custody, “ and such accused shall, without being required to make any motion, plea, or answer to such information, first decide whether they will waive trial by jury.” If they decline to waive trial by jury, the ■proceedings are transferred to the district court, where the accused must appear and answer, just as if the prosecution had been commenced in that court.

By section six, if the accused shall decide to waive trial by jury, “ the parish court shall then take cognizance of and proceed to try and determine the case.”

In cases originating in the district courts, in which the penalty is not necessarily imprisonment at hard labor, or death, before the accused •shall be required to file any motion, plea, or other defense, “ he will be required to decide whether he will waive trial by jury; and if he shall' decide that he waives trial by jury, the district court shall proceed to' try the case;” and if, from any cause, the case is not tried at that term, •the proceedings shall be transferred to the parish court, which shall take jurisdiction of and try and determine the case. Section seven, p. 158.

This act is a wise provision of law. Tt is necessary that some tribunal holding frequent sessions should have jurisdiction of criminal cases, minor offenses, in which the accused, if unable to give bail, may prefer a ■speedy trial, rather than remain in jail until the meetirig of the district ■court, which holds but two sessions in the year; or in which, for any reason, the accused may choose to waive his unquestionable constitutional right of trial by jury, and to risk the finding and decision of the judge rather than that of twelve of his peers.

The proceedings in this case were strictly in accordance with the act .•of 1868. The information was properly filed in the parish court. The opportunity was afforded to the accused, as the law requires, to waive trial by jury and be tried at once by the parish judge, if that had been their choice and decision; and the case was transferred to the district court, and there tried and determined, because they chose and decided not to waive the right of trial b3j- jury.

Third — The first bilbof exceptions calls in question the correctness of the ruling of the district court in requiring the accused, when arraigned, to say how they would be tried, they having already, in the parish court, decided not to waive trial by jury.

We are at a loss to understand the object of this bill of exceptions, since no possible injury was done to the accused, nor were their rights in any manner impaired. Perhaps, as the prosecution did not originate in •the district court, it was not necessary to ask the accused how they would be tried-. But they elected to be tried by jury, they were tried by jury, and no attempt was made to induce them to forego the right so to (be tried. If the prosecution'had originated in the district court, the accused would have been required, in limine, to make their election, whether to be tried by jury or by the court. There was a time when •there were several modes of trial, notably, by wager of battel, by the ordeal of fire, by the ordeal of water, etc., and the form which was then, necessary, on the arraignment of the accused, in order to give him his right of choice, has been preserved, though it is no longer necessary. It, may be useless, without significance, but it can do no harm to the accused, to have the question put to him in solemn form: “How will you be. tried ?” and to require him, even when he must necessarily be tried by-jury, to answer: “ By God and my country.”

Fourth — The second bill of exceptions is to the ruling of the court in. declaring competent as a juror one Hudson, who, in answer to the usual question, whether he had formed or expressed any opinion as to the-guilt or innocence of the accused, said: “ I think, from what I have-heard, the parties are guilty.” The judge adds to this bill of exceptions, that “ the further examination of the juror on his voir dire showed that, his opinion was not fixed, and predicated on rumor, and, in his opinion, could not influence his verdict.”

We think the rule as stated in Bunger’s case, 14 An. 462, is correct, that “ an opinion predicated upon rumor, when there is no bias or prejudice in the mind of the juror, is not a disqualification,” and that the judge did not err in deciding that Hudson was a competent juror. He was challenged, peremptorily, and did not serve in the case, and it is not. shown that the accused exhausted their challenges, or suffered any injury from that ruling.

Fifth — The third bill of exceptions is to the ex parte action of the court, in striking from the regular panel one of the jurors, Hayward Boach.. The judge states that Boach was discharged for misconduct as a juryman in a case which had just been tried. Other jurors had brought it to the attention of the court that Boach had, before being sworn as a juror, stated that he had not formed or expressed an opinion in the case as to the guilt or innocence of the accused, and, afterward, and to the other-members of the jury, he admitted and stated that he had previously formed an opinion, and would not agree to a verdict contrary to that, opinion. The judge had also been further informed that the same juryman had promised the accused in that case not to bring in a verdict against him.

If the statements made to the judge, and upon which he discharged. Boach, were true, and susceptible of proof, he should have been prosecuted at once, and should now be prosecuted without delay. It was the-plain duty of the judge to strike his name from the list of jurors, and, we think, he should have ordered Boach into the custody of the sheriff.. His presence was a pollution of the temple of justice; and he was better fitted to render the State service in the penitentiáry"than to sit in judgment as a juror on the solemn and momentous question of the guilt or-innocence of his fellow-men.

Sixth — The fourth bill of exceptions is by Lartigue alone, to the ruling of the court:

1. In taking up the case out of order, and in violation of the rules of court.

2. In calling the case without having first had it fixed for trial, and notice given to the accused. Before this objection being made the district attorney asked the judge to fix the case then, which was accordingly done.

3. In striking the name of Roach from the list of jurors; about which nothing more need be said.

The judge states that at the beginning of the third week of court, when the criminal docket was taken up, the court made a special rule requiring prosecutions against parties then confined in the parish prison to be taken up and first disposed of, the accused being then in jail, and the case being reached on the regular call of the docket.

There is no statement or complaint that the accused were denied, or that they asked for, any continuance or delay; nor that any witness in their behalf was not in attendance; nor that their means of defense was abridged or impaired; nor that they suffered any injury or prejudice from the action of the court.

We find no error in the judgment appealed from, and it is therefore affirmed with costs.


source: Caselaw Access Project

author: Mark, J.

license: Public Domain

text:
    No. 724.
    Adeline Edwards vs. Samuel Whited.
    The clerks of the lower courts are authorized to record all decrees and mandates of the Supreme Court, made in cases originating in their courts, and to issue all legal processes necessary to the execution of such decrees and mandates.
    A judgment of this court, rendered for or against a person dead, and not represented here, is an absolute nullity.
    Any judgment absolutely null may be attacked collaterally, and by any one against whom, it is sought to be enforced.
    APPEAL from the Fourteenth Judicial District Court, parish of Ouachita. Parsons, J.

      Cobp & Gunby, for plaintiff and appellee.

      Bobert Bay and Garrett & Garrett, for defendant.
   The opinion of the court was delivered by

Mark, J.

In October, 1867, Blanehin & Giraud, merchants of New Orleans, brought suit against Samuel Whited to recover a large sum due for advances and plantation supplies. They claimed a privilege on the crops, mules, wagons, stock, and farming implements on the several plantations cultivated by Whited; and they charged that Armstrong and M. T. Edwards were removing the property which they claimed was subject to their privilege. They caused the property to be sequestered, and prayed for judgment against Whited, Armstrong, and Edwards, in solido, for the whole debt due by Whited. The property was released and delivered to Blanchin & Giraud on forthcoming bond.

Of the three defendants, Edwards alone, who was not indebted to Blanchin & Giraud, answered; and he claimed part of the property as owner, in virtue of a purchase from Armstrong; and asserted the lessor’s privilege on part, for the rent of a plantation leased by him to Armstrong. The record does not show that either Armstrong or Whited made any appearance; nor that any judgment by default was taken against them.

The judge recused himself; and the case was tried by a lawyer selected by him for that purpose; and judgment was rendered in favor of plaintiffs, against Edwards, maintaining the sequestration, except as to seven bales of cotton, decreed to be the property of Edwards, and ordered to be delivered to him. This singular judgment, which does not condemn any one to pay any sum of money, and in which no one is mentioned as defendant but Edwards, was rendered on the tenth of November, 1870; and was signed on the twenty-sixth of September, 1871. Blanchin & Giraud took a suspensive appeal; and Whited was their surety on the appeal bond.

The record of appeal is missing; but we learn from the minutes that a decree was rendered in July, 1872, affirming so much of the judgment as declared Edwards to be the owner of the seven bales of cotton. In other respects the judgment was reversed; and the lessor’s privilege was awarded to Edwards on a portion of the property sequestered, and a concurrent privilege with Blanchin & Giraud on the remainder. A rehearing was granted, and the court adjourned without disposing of the case.

Edwards died in September, 1872, and his widow qualified as administratrix before January, 1873. No suggestion of the death was made in the Supreme Court, as far as we can discover; and at the July term, 1873, the decree rendered at the July term, 1872, was set aside, on the rehearing; and a final decree was rendered, simply affirming the judgment appealed from. '

• On the sixteenth of March, 1876, a writ was issued on this judgment, commanding the sheriff of Ouachita parish to take into his possession the seven • bales of cotton sequestered, declared, to be the property of Edwards, and to deliver the same to Edwards or his heirs and legal representatives. Of course the sheriff could not find the cotton, which went into the possession of Blanehin & Giraud nearly nine years before; and his return shows that Blanehin & Giraud did not reside in the parish of Ouachita; and that neither Whited nor the legal representative of Edwards could point out the cotton, nor any property belonging to Blanehin & Giraud.

On the twenty-sixth September, 1876, this suit was brought by the administratrix of M. T. Edwards to recover of Whited, surety in the appeal bond, the seven bales of cotton or the alleged value, eight hundred dollars.

Whited excepted on several grounds, one of which, only, we shall notice; and that is, that the mandate of the Supreme Court was not filed in the district court, and no order of court was obtained upon which to issue a fieri facias; and the clerk can not issue s, fieri facias before these formalities are complied with. This is a mistake, and we notice it to prevent any misapprehension of the law on this subject in future. By the act of 1855, page fifty-one, section five, the clerks of the district courts have power “ to receive, file, and record all mandates and decrees rendered by the Supreme Court, and to issue all legal process thereon.” This section is re-enacted in the Revised Statutes of 1870, section 464. When the mandate of the Supreme Court is sent to the clerk of the district court, it is his duty to receive, file, and record it; and to issue the proper process, when required to do so by the party entitled, or his attorney.

The defendant answered, charging that plaintiff had been guilty of laches in not pursuing Blanehin & Giraud promptly; and by a supplemental answer he set up the nullity of the decree of the Supreme Court rendered in July, 1873, upon the ground that Edwards died in September, 1872, pending the appeal; and his heirs and representatives were not made parties.

There was judgment in favor of plaintiff against W’hited for $787 50, the value of the seven bales of cotton. Whited took a suspensive appeal; and the plaintiff, in her answer, prays for the affirmance of the judgment, with one hundred dollars damages for a frivolous appeal.

It was proven that Blanehin & Giraud obtained an extension of time from their creditors in August, 1873; that Blanehin died in August, 1874; that the firm became insolvent in 1875; and was in bankruptcy in 1876; and it was admitted that M. T. Edwards died in September, 1872, and that his widow was appointed administratrix prior to first of January, 1873.

Several bills of exception were taken by defendant; but we shall notice one only; and that is to the ruling of the court in refusing to allow him to prove that Edwards was dead when the decree of the Supreme Court was rendered, affirming the judgment in Blanehin & Giraud vs. Whited and others, at the July term, 1873. The objection was that the nullity of the decree of the Supreme Court could not be set up nor proved by the defendant, as surety in the appeal bond, nor attacked in a collateral mánner.

If a judgment is an absolute nullity, it can not be enforced; and the nullity can be invoked by any one against whom the attempt to enforce it is made; and no valid judgment can be rendered for or against a dead man. The rules of this court provide for cases in which the death of a party occurs pending the appeal; and it may not be out of place to state what these.rules require: . .

If the proper representatives of a deceased party come in voluntarily they will be admitted parties at any time.

If the appellant die pending the appeal, and his representatives be known and reside in the State, the appellee may, on affidavit, obtain an order to summon them to appear within twenty-five days; and in default of their appearance, after due return of service, the appellee may have the appeal dismissed, or have the cause heard and determined.

If the representatives of the deceased appellant be not known, or do not reside in the State, on proper affidavit, the appellee may obtain an order, and give them notice to appear, within three months, by publication in a newspaper printed at the seat of government, or at the place where the court sits; and upon proof of such publication, in default of appearance, the appellee may have the appeal dismissed, or the cause heard and determined.'

If the appellee die, pending the appeal, the appellant may, in like manner, have his representatives, if they are known and reside in the State, summoned to appear, witnin twenty-five days; and in default of appearance, after due return of the service, the appellant may proceed to have the cause heard and determined.

If the representatives of the deceased appellee be not known or do not reside in the State, the appellant may, in like manner, give notice by publication; and if they do not appear after the expiration of three months, on proof of publication, the appellant may have the cause heard and determined. See rules of court at the end of 17 An., amendments 111.

In such cases the proper representatives are summoned or notified to appear; and the cause proceeds, as in other cases, as if the parties so summoned or notified had actually appeared.

We take occasion to say, that counselors of this court should, when they have knowledge of the death of a client, party to a cause pending, inform the court, and have the suggestion of death made of record, so that the court may not do so vain a thing as to pronounce a void decree. If no such suggestion is made, the court, ignorant of the death, will proceed of course; and there may be delays, and confusion, and much useless litigation, which a prompt suggestion of death would avoid. We do not hesitate to say, that a decree of this court for or against a person no longer in existence, is an absolute nullity; and that the nullity may be shown by any person against whom the attempt is made to enforce it.

The court below should have allowed the proof of the death of Edwards; and of the failure to make his legal representative a party in his stead; and, if it were necessary, we should remand the case to enable the defendant to make this proof.

But we know, from the entries in the minutes, that the appeal was pending, on rehearing, at the end of the July term, 1872; and that the final decree was rendered at the July term, 1873. It was admitted on the trial that Edwards died in September, 1872; and no steps were taken to have his legal representative made a party. In reality, the case is still pending, on the rehearing, because the court had no power to proceed after the death of Edwards. The decree of July, 1873, is an absolute nullity; and the judgment appealed from is suspended, and can not be enforced, until the appeal is disposed of, contradictorily with the legal representative of Edwards, the deceased appellee.

Without noticing the other points raised in the pleadings, and discussed orally and by brief, it suffices to say that the pleadings and proof do not authorize the judgment appealed from; nor do they show any present right of action against the defendant as surety on the appeal bond.

It is therefore ordered, adjudged, and decr.eed that the judgment appealed from-be annulled, avoided, and,reversed; and that there be judgment in favor of defendant, appellant, against the plaintiff, appellee, as in case of nonsuit, with costs in both courts.


author: Howell, J. Marr, J.

text:
    No. 480.
    The Mayor and City Council of Monroe vs. Joseph Hoffman.
    Where by the charter of a municipal corporation it is provided that a vacancy in the office of mayor shall be filled by election, the Governor can not legally fill such vacancy by appointment, in virtue of a general law authorizing him to fill vacancies in municipal offices.
    The power of an illegal, but de facto mayor of a city (who acts under color of a legal appointment), to represent the city in a legal proceeding, can not be called in question collaterally.
    The power to forbid the erection, and compel the removal of buildings formed of combustible materials, within the densely-built-up parts of a town, inheres in municipal corporations, and hence does not depend on any legislative grant.
    APPEAL from the Fourteenth Judicial District Court, parish of Ouachita. ' Trial by jury.

      W. W. Farmer, City Attorney, for plaintiff and appellee.

      Cob!) & Gunby, for defendant.
   The opinion of the court was delivered by

Howell, J.

This is a suit to compel the defendant to remove a wooden building erected within what is known as the “ fire district ” in the city of Monroe. The defendant excepted to the capacity of the mayor for want of the qualifications to hold said office and the right of the Governor to make the appointment of the mayor or the councilmen.

The right to an office, it is long since settled, can not be thus collaterally raised, and the judge a quo did not err in overruling the exceptions.

The answer presents a three-fold defense:

First — The mayor and trustees of the town of Monroe had no power, express or implied, to adopt ordinance No. 19, of October 6, 1870, creating the fire district, and said ordinance was null and produced no legal effect.

Second — The ordinance No. 56, adopted the third of January, 1872, by the mayor and council of the city of Monroe, suspending the effect of the above ordinance No. 19, did not give vitality or validity to the latter.

Third — If these propositions be unsound, the charter of Monroe, of May 4,1871, does not confer the power to remove or destroy wooden buildings once erected in the fire district, without compensation, and the corporation could not compel its citizens to enter into a contract to take down the buildings on a certain day.

First — The plaintiffs consider that the town of Monroe was never empowered by express words to establish fire limits and to prevent the erection of wooden buildings therein; but they contend that this power is fairly implied in the powers expressly granted by the various acts of the Legislature incorporating the town, and that such power is necessary to the objects and purposes of such corporations.

By a clause in article 433, R. C. C., corporations may “ enact statutes and regulations for their own government, provided such statutes and regulations be not contrary to the laws of the political society of which they are members.”

By the various charters prior to that of May 4,1871, the mayor and trustees of the town of Monroe were empowered to adopt all rules, ordinances, regulations, and by-laws for the general government, improvement, and police of the town, and prescribe the manner of enforcing them, not contrary to or inconsistent with the constitution and laws of this State and the United States, See acts of 1855, p. 189, sec. seven; acts 1859, p. 215, sec. fifteen; acts 1866, p. 130, sec. nine.

It seems to us clear that where a municipal corporation is vested with ' such powers, and the compactness of its construction would increase the hazard of conflagration, the corporate authorities may fix what is known as a fire district and forbid the erection of wooden buildings therein. No town or city, compactly built, can be said to be well-ordered or well-regulated which neglects precautions of this sort. It is its duty to the public to take such measures as may be practicable to lessen the hazard and danger of ñre. The public good and safety are superior to the individual rights of the inhabitants, and under this principle such regulations are not the divestiture of the individual right of ownership and use, but is only conforming the use of individual property to the necessities, safety, and interests of the public. It is a regulation of its enjoyment.

A similar construction of the powers of such corporations has been adopted in some of our sister States. See 2 Yeates (Penn.), 493; 11 Mich. 425; 7 Cowen (N. Y.), 352; 3 Fairfield (12 Maine), 403.

We think the town of Monroe had authority to enact ordinance No. 19, of October 6,1870, and hence the second proposition falls.

We may add, however, that the want of authority is not, under any correct rules of interpretation, so clear as to make the ordinance an absolute nullity and incapable of confirmation, and the ordinance No. 56, of the third of January, 1872, had such effect if needed.

Third — Does the charter of 1871 confer the power to remove wooden buildings after being erected within the fire district ?

We think this a corollary of the first proposition. The power to prohibit includes the power to undo what is done in contravention of the prohibition. “A satisfactory and lawful regulation may otherwise be defeated and rendered ineffectual. The removal is made to prevent the hazard of the continuance of the combustible matter in a dangerous position, and not with the view to punish the wrong-doer or subject him to loss. If he thereby sustains a loss,- it is the direct consequence of his unlawful act, of which he has no right to complain.” 3 Fairfield, 403.

The objection that the mayor and city council could not, as is done in ordinance No. 56, give permission to build temporary wooden buildings and require their removal at a fixed date has no force.

If they had the power to prohibit entirely,- they had the power to modify the prohibition. The greater includes the less. This is a matter of legislation and not of contract. The prohibition existing, they had the power to suspend it for a limited period for the benefit of the public. Those who built after the passage of said ordinance built with a knowledge of the condition imposed, and, it being a legitimate condition, they were bound by it.

We think the action is maintained.

Judgment affirmed.

On Rehearing.

The opinion of the court was delivered by

Marr, J.

The exceptions filed by defendant in this case depend upon the solution of two questions:

First — Was George B. Hamlét mayor of the city of Monroe?

Second — -Are the plaintiffs capable of standing in judgment in this suit?

First — J. L. Hunsicker, who was mayor of Monroe, died in July, 1873, and the Governor appointed and commissioned Hamlet to fill the vacancy. Defendant maintains that Hamlet was not mayor: First, because he was not a qualified voter of the city of Monroe; and, second, because the office was elective, and the act of incorporation required any vacancy occurring by death or resignation to be filled by election.

By the acts incorporating the town of Monroe — 1855, 1859, 1866— the mayor and trustees were to be elected by the qualified voters of the town or corporation “from among themselves:” and by the act of'1871, by which Monroe was incorporated under the name of “ the Mayor and City Council of Monroe,” the mayor and councilmen were to be elected by the “ qualified voters of said corporation from among themselves,” section two, page 237.

Hamlet registered as a voter in Tensas parish in September, 1872; but he testified that he had not registered in Ouachita parish. It is manifest, therefore, that he had not the requisite'qualification; and that he could not have been legally elected mayor of the city of Monroe.

The several acts incorporating first the town and then the city of Monroe provided for the filling of any vacancy in the office of mayor, etc., by election. By the act of 1859, section twenty-five, page 219, “in case of the death or resignation of the mayor, a new election shall be ordered by the board of trustees within twenty days from such demise or resignation.”

By the act of 1866, section five, pages 130 and 131, in case of a tie vote at the election, or of the death or resignation of the mayor or other municipal officer, the clerk of the district court or his deputy Shall order an election, giving notice for ten entire days; and this mode of filling vacancies is embodied and re-enacted in the act of 1871, sections four and five, page 238.

The act of 1868, page twenty-seven, a general law, authorizes the Governor to fill vacancies in State, parish, and municipal offices. Of course this general law did not repeal the special law, the act of 1866, then in force; nor could it, in any manner, impair the act of 1871 incorporating the city of Monroe and providing specially for filling all vacancies in the municipal offices.

It is manifest that Hamlet was not lawfully mayor of Monroe, because he had not the requisite qualifications, and because the Governor had no power to appoint him mayor. This appointment was merely one of the long series of usurpations to which the people of Louisiana have been compelled to submit; and it was in flagrant violation of the express terms of the several statutes incorporating first the town and then the city of Monroe.

The Legislature saw fit, by act of 1874, page seventy-five, to amend section five of the act of 1871 so as to authorize the Governor to fill the vacancies which the act of 1871 required to be filled by election; but this act of 1874, of course, had no retroactive effect; and it could neither legalize nor excuse the unwarranted assumption of power by which the inhabitants of Monroe were deprived of their chartered right and franchise of electing their mayor; and were compelled to accept for that responsible office a colored adventurer from the State of Ohio, who, according to his own testimony, had been in the parish of Ouachita but five months and was less than twenty-three years of age at the date of his commission.

This question has been pressed upon us, and we have felt, compelled to notice in some way the wrong to which the people of Monroe were subjected by this appointment in violation of the organic law of the city, the act of incorporation. But Hamlet was mayor in fact; no other person claimed the office; and his commission gave him a color of title. We think that the authority of one who assumes the powers and functions of an office, under a commission appointing him to that office, can not be questioned, judicially, otherwise than in a direct proceeding to oust him.

Second — The act of 1871, page 238, section eight, gave to “ the mayor and city council of Monroe ” perpetual succession, with authority to sue and be sued under the title of “the mayor and city council of Monroe.” This suit was brought in the name of “ the mayor and city council of Monroe,” and the mayor and councilmen are mentioned by name, without necessity. This may be rejected as surplusage. It was the suit of the corporation by its corporate name; and it continues to be the suit of the corporation, without regard to any changes that may have since occurred in the personnel of the municipal officers.

Third — The answer of the defendant requires us to decide whether the corporation had the power to establish a fire district and to prohibit the erection of wooden buildings within that district.

On the sixth of October, 1870, the ordinance No. 19 was adopted, by which it was declared that none but fire-proof buildings should be erected within certain defined limits. At that time no express authority had been granted to the corporation to enact any such ordinance, and it was not expressly granted until 1871. There has been great 'diversity of opinion as to the power of municipal corporations to restrict the right of property, by forbidding the owner to put up such buildings as he may choose, that is, of such materials as his taste or convenience may induce him to prefer; but we have no hesitation in saying that such regulations, applicable to cities and towns compactly built, fall within'the police power of municipal corporations; and the maxim sic uiere tuo id alienum non Icedas forbids the owner-so to use his property as to imperil that of his neighbors, or to endanger their lives or their health. We think a municipal corporation might, without a special legislative grant of power to that effect, prohibit the erection of works and factories, and the pursuit of industries within the corporate limits, which would be injurious to the public health and destructive of the comfort of the inhabitants, by subjecting them, in the crowded streets, to nauseous smells and sickening odors; and the right to prohibit the erection of structures of wood and other combustible materials in the compactly-built parts of a city or town, by which the property of the other inhabitants would be subjected to constant risk of ñre, falls within the same general police powers, and exists and must exist, ex necessitate, without special legislative authority.

By the act of 1871 the Legislature specially granted certain enumerated powers to the mayor and city council of Monroe, among others the power “ to determine in what part of the city wooden buildings should not be allowed to be erected.” P. 240, sec. nine.

On the thirty-first of December, 1871, a fire occurred by which the greater part of the business houses, the most valuable buildings in Monroe, were destroyed. On the third of January, 1872, the mayor and council met, and in accordance with the wishes of the inhabitants, as expressed at a mass-meeting of the day before, passed an ordinance, No. 56, by which the ordinance No. 19, of the sixth of October, 1870, was suspended as to its operation and effect until the first of November, 1873; and all persons desiring to erect temporary wooden buildings within the burnt district were permitted to do so; the buildings not to exceed the cost and value of one thousand dollars, the owners to give bond in the penal sum of five hundred dollars in favor of the mayor and- city council to remove such buildings on or before the first of November, 1873.

We attach no importance to mass-meetings as a sanction or source of legislative power, whether State or municipal; but the action of the citizens and the proceedings of the municipal government may serve to show the popular opinion that the ordinance No. 19 was a proper and legitimate restriction of the right of property, which they did not desire to abrogate, but simply wished to have suspended in view of the necessity of supplying by temporary structures the buildings destroyed by fire; and the ordinance No. 56 was, in effect, a re-enactment of ordinance No. 19, with a postponement of its operation until a fixed date at which it should be enforced.

On the twentieth of October, 1873, the mayor and city council passed an ordinance authorizing the removal by the police force of the temporary wooden structures thus erected in the burnt district, and also requiring the city attorney to bring suits to compel the removal. This ordinance also authorized the city attorney to grant a stay of execution until August, 1874, in favor of such persons as might confess judgment in these suits.

We think this was in every respect proper; and we do not appreciate the argument of defendant’s counsel that this was a partial law and not uniform in its operation. All who might choose to confess judgment would have a stay of execution until August, 1874; and those who might choose to litigate, and to compel the corporation to establish its right and enforce its authority by suit, could not complain of the terms granted to those who confessed at once that right and authority.

Defendant was bound by the ordinance to remove his structure on or before the first of November, 1873. This suit was brought on the twenty-fourth of .February, 1874, and by the suspensive appeal taken by the defendant he has prevented the execution of the judgment against him for nearly three years beyond the term granted to those who confessed judgment.

Defendant having refused to remove his wooden building, erected under ordinance No. 56, of the third of January, 1872, nothing was left to the corporation but to enforce the removal by suit, which was brought more than three months after tho expiration of the delay granted by the ordinance.

The judgment of the court below was in favor of plaintiff and in accordance with tho prayer of the petition; and it was affirmed by our predecessors. We concur in their conclusions, and shall not disturb their decree.

The judgment appealed from is therefore affirmed with costs.


author: DbBlanc, J.

text:
    No. 742.
    State ex rel. H. W. Kneeland vs. the City of Shreveport.
    A mandamus will not lie'to compel the mayor of a city to perform a duty which belongs solely to its common council.
    ■The service of the writ of mandamus must be on the special officer, or officers of the municipal corporation, who are legally required to do the thing demanded.
    APPEAL from tho Tenth Judicial District Court, parish of Caddo. Looney, J.

      Land & Taylor, for relator and appellee.

      T. Alexander, City Attorney, for defendant.
   The opinion of the court was delivered by

DbBlanc, J.

On the twenty-first of August, 1872, plaintiff sold, to the city of Shreveport, three lots of ground, with the improvements thereon. That purchase was made under an ordinance adopted by the council and approved by the inhabitants of that city, at an election held to ascertain their will in regard to the intended acquisition. The price of that sale constitutes a debt, which, now, can not be successfully contested by the council. That is admitted.

As a corporation, that city is nearly insolvent. The assessed value of the property of its inhabitants is of a little -more than two millions of dollars, its liabilities exceed two hundred thousand dollars. Including the interest on its outstanding bonds, the detailed estimate of its expenditures for 1877 is within a fraction of forty-seven thousand dollars. Exclusive of interest and costs, the judgments already rendered against it amount to more than fifty thousand dollars.

To its creditors and its inhabitants, the financial condition of Shreveport ought to be a just cause of anxiety and alarm, and they should have realized that there are circumstances and situations, in presence of which the law itself and the decrees of courts are powerless, and which they can not change. The debtors should not attempt to conceal to themselves the sacrifices, the losses, the troubles which a judgment may entail upon them; the creditors should not forget that many a writ has been returned unsatisfied, and lay in many a file, silent witness of a barren effort to recover a claim.

In this case, what is the parties’ attitude ? What is demanded and what denied ? The creditor stands before us, with a judgment in his hand, and prays that a mandamus issue commanding the payment of that judgment. The debtor answers, I acknowledge your claim, but my treasury is empty, and, under the law, I can only impose and collect an amount of taxes indispensable to my existence as a corporation.

Under the judgment, the rights of plaintiff are fixed, irrevocable, undisputed. How shall his judgment be executed ? How shall his rights be enforced ? So far as concerns the validity of the claim, it is evident we can not look behind the judgment; but, as it does not provide for its ■own execution, it is as evident, to supply that omission, we must refer to the parties’ contract, to the ordinance which authorized that contract.

The ordinance which relates to the mode of payment of plaintiff’s •claim, is as follows:

“ Be it further ordained that, in order to carry out the provisions of this ordinance, city bonds — such as are authorized by the city charter, be issued and negotiated for the purchase of said property.

“Be it further ordained that a tax for such amount as may be necessary, be levied annually, on all property of every kind in Shreveport, in order to pay the interest on said bonds, and to provide a sinking fund for their redemption.”

By the charter, the common council was empowered to issue “bonds of the city, running forty years, with interest coupons attached, and bearing interest at the rate of, and not exceeeding ten per cent, etc.” These are the bonds alluded to in the ordinance which authorized the purchase by the city of the lots of ground belonging to plaintiff. That ordinance and the section of the charter which empowered the council to issue the forty-years bonds, are inseparable from, and constitute an important part of the contract of the twenty-first of August, 1872.

Under that contract, how did the taxpayers of Shreveport bind themselves to pay to plaintiff the price of his property ? By the negotiation and with the proceeds of the forty-years bonds. The price of the sale was six thousand dollars, one-half of which was paid by draft, on the day the act of sale was passed; the balance is represented by two notes of each fifteen hundred dollars, due one in sixty, the other in ninety days from their date, with interest. These terms do not appear to be those of the ordinance of the twenty-sixth of June, and, nevertheless, that ordinance is specially referred to in the act of sale, as the instrument from which the mayor derived the authority to represent the city in said act.

We entertain no doubt that plaintiff was aware of the nature and extent of the authority delegated under and by the ordinance, and he could not, legally, even with the consent of the mayor and council, have changed the mode of payment previously fixed between him and the taxpayers of Shreveport. The relator was to be paid with the proceeds of bonds, and as soon as those proceeds would be realized.

As then contemplated, have the bonds been issued ? If they have, were they negotiated ? If negotiated, what proceeds were realized and how were they applied ? The time within which the price of the property was to be paid has certainly arrived, and it was for the city to show what became of the means provided for the payment of the stipulated price. An appropriation was made to settle for the interest on bonds,, but on what bonds ? We are left to infer.

Defendant pleads that the relator’s action is- premature, that plea can not prevail. To sustain it, we would have to disregard the parties’' intention, their contract, and the facts disclosed on the trial. At the date of the sale, neither the vendor nor the vendee’s agent thought, and much less did they agree, that the payment of the price fixed between them, could have been postponed until 1877. In their estimation, the term of the promised payment was the space of time required to preparo and negotiate the bonds.

That term was fixed at ninety days from the date of the sale. That delay has long since expired. The draft representing the cash payment of three thousand dollars, acknowledged by plaintiff in the act of transfer, was protested and returned to him, and, of the price stipulated, ho has received but the proceeds of the seizure and sale of his property. The balance he has demanded in vain. The sheriff’s return on the last execution issued on Kneeland’s judgment clearly indicates that another demand, another execution would bo as barren, as useless as the first.

Is he entitled to the writ of mandamus ?

His counsel contends that, now, there is no limitation to the city’s power of taxation to pay its debts; that the law of 1874 contained an express amendment of section eleven of the act of 1871, which fixed at one and three quarters per cent the rate of taxation in the city of Shreve- . port. That the law of 1874 was repealed by an act of 187C, and that, under the present legislation, the council can levy a tax equal to the indebtedness of the city.

The act of 1874 did not repeal the act of 1871. The sixteenth section of the first of said acts reads as follows: “ And it is furthermore enacted that wherein any provision of section eight of act No. 98 of 1871, to the contrary notwithstanding, which is hereby repealed, so far as it may conflict with the provisions of this act.” The seventeenth section provides “ that all laws or parts of laws in conflict with this act bo and the same are hereby repealed, so far as they are in conflict.”

Section eight of the act of 1871 fixes the date when the administrators of the city departments shall make their report, what salary they shall receive, when their offices shall be opened for the transaction of business. Section thirteen of the act of 1874, far from repealing, ro-affirms section eleven of the act of 1871, which limits the rate of taxation to one and three quarters per cent; it reads thus: “ That the city council, after the adoption of the estimate in accordance with section eleven of the act of 1871, shall proceed to levy the annual tax, etc.”

The fourteenth section of the act of 1874 declares not applicable to the city of Shreveport the general law of the State limiting the power of -taxation by towns, parishes and corporations. The main object oí that law was to authorize and empower the council to levy an additional tax, for the purpose of defraying the police expenses of 1874; but it did not remove the limitation to the rate of taxation. .

Plaintiff sold his property to the city of Shreveport, with the full knowledge that, under its charter, the rate of taxation which it could not ■exceed, was one dollar and seventy-five cents on every hundred dollars of the valuation of the property of its inhabitants. He knew that bonds were to be issued and negotiated to pay him, and should have foreseen that, if the bonds were not discounted, or their proceeds misapplied, his ■only recourse would be against that fraction of the tax levied at the-Aforesaid rate to pay the debts of. the city.

He conceives that we may amend the judgment of the lower court and order the levy of a special tax to satisfy the whole of his claim. As Against an ordinary debtor, and under 'a proper contract, his demand would not be extravagant or unjust; but, as against á corporation and under the express and tacit stipulations of his contract, that demand can not be allowed. The charter limitation is neither directly nor impliedly repealed by the special authority to buy for, and bind the municipality for the purchase price, unless the intention to ignore and exceed the limitation be clearly expressed in an ordinance, and that ordinance submitted -to and ratified by the taxpayers.

In this case, the vendor was to be paid from the proceeds of bonds; 'but, as to the taxpayers, their obligation was that the bonds, from the ■negotiation of which the price of the sale was to come, would be redeemed and satisfied by them in but one way: by taxation, and under -the limitation, then or to be hereafter fixed in and by the charter. That price, as to the vendor, was to be made in not more than ninety days;the term of the taxpayers’ obligation was and remains the term stipulated for the redemption of their bonds.

Conceding, says defendant’s counsel, that the city has not already exhausted its powers of taxation, then the issue is here directly presented And broadly made, that, there is no law of this State under which an ordinary judgment creditor of a municipal corporation can compel, by mandamus, or otherwise, the municipal authorities to levy and collect a special tax to pay his judgment.

Were it so, when positive law is silent, an appeal must be made to natural law and reason; but it is not so. “ When the creditor’s claim is reduced to judgment, the duty to provide for its payment becomes perfect, and if it can be paid in no other way, it must be done by the levy and collection of a tax for that purpose, and this duty will be enforced by .mandamus.” Dillon on Corp., p. 780, and note to p. 776; C. R. 830.

“ The power of municipal corporations to make contracts and to create liabilities has been already considered, and this authority imposes the-duty of providing for the payment of those liabilities in the special mode prescribed by law; and if no such mode is prescribed, then by the levy and collection qf taxes under the provisions of the charter or other legislative act. Whether the duty to provide for the payment of the liabilities of the corporation be specially enjoined, or whether it results from the general powers and nature of the corporation, it may, in all proper-cases, be enforced by mandamus.” Dillon on Corp., No. 685 and note.

Is this a proper case ? It is, but not to the extent claimed by plaintiff. In the detailed estimate of the city’s liabilities, his judgment is not included. In the detailed estimate of appropriations, the existence of his judgment is again and willfully omitted. This is wrong. His rights are fixed by a decree, and he should have been classed as one of the acknowledged creditors of the city. As such, he is entitled to and should be allowed a proportionate share in any and every surplus of funds which may remain in the treasury, after payment of the expenditures indispensable to the government of the city.

Plaintiff’s remedy is by mandamus, but to whom should the writ be directed? Is it to the mayor? He has no power to levy or order the levy of any taxes; that power, by the charter, is vested in exclusively,, the city council. The mayor alone is before us; not a member of the council has been cited. To grant the writ against the mayor, to command him to fulfill a duty not attached to his office, and expressly attached to the council’s office, would be to command a violation of the law. Acts of 1871, p. 222, sections ten and eleven; R. C. C. 438; C. P. 119, 112.

In suits against the corporation of cities, the services of the citation must be made on the mayor, or any officer exercising' similar functions; but the mandamus can be addressed to only those who have failed or refused to perform a duty, and who alone can comply toith the order of the court. C. P. 834.

“If a joint act is to be performed by two or more, the writ must be directed to all.” “ In some cases, there is an option to direct the writ either to that part of the corporation which has the power to execute it,, and on which alone that particular duty rests, or to the whole corporation by its corporate name or title.

“ The writ, as we have seen, must be directed to those who are to execute it, or do the thing required, and it must be delivered to, or served upon those who are to make the return. Whether the writ be directed to the corporation or the council, the service ought to be made upon the officers who, under the law, have the power to do the act commanded,, and against whom an attachment may issue to enforce obedience.” Dillon on Corp., No. 699, 703, 704.

Whatever may be the rights of the plaintiff, the parties against whom alone they may be exercised and enforced are not before us.

It is therefore ordered, adjudged and decreed that the judgment of the lower court be and it is hereby annulled, avoided and reversed. It is further ordered, adjudged and decreed that plaintiff’s action be and it is hereby dismissed as in case of nonsuit, and at his costs in both courts.

Behearing refused.


author: DeBlano, J.

text:
    No. 751.
    W. W. Bennett vs. J. W. Fuller.
    After the dissolution of the community, the husband, as its former head, has no power to sell, and can convey title to no greater part of the community property than his undivided half-interest in it.
    An agreement to sell property for a certain price, on a certain future day, and convey a clear title to it, is not a sale, but a promise to sell; and if the one who so promises fails to fulfill his agreement, he releases the other party to the agreement, and becomes liable for whatever damages his breach of compact has caused the latter.
    The tender by one party to a commutative contract to perform his part of it, made long after the time fixed for its performance, is too late to put the other party in default.
    APPEAL from the Tenth Judicial District Court, parish of Caddo. Looney, J.

      Nutt & Leonard, for plaintiff and appellee.

      Hicks & Hicks, for defendant.
   The opinion of the court was delivered by

DeBlano, J.

In November, 1872, plaintiff and defendant entered into the following agreement:

“ The undersigned, J. W. Fuller, of Caddo parish, and W. W. Bennett, of Claiborne parish, Louisiana, have this day agreed as follows: Said Fuller agrees to sell to said Bennett and convey by formal title, free from all incumbrances, the dwelling, out-buildings, and improvements, and. the grounds whereon they are situated, known as the Graham Place, onFairfield Avenue Bailroad, in the city of Shreveport, fronting upon the avenue and railroad one hundred feet and running back to the east end of said property, of same width perpendicularly to the back line, for which said Bennett agrees to pay on the first of January, 1873, four thousand dollars, on execution of the title.

“(Signed) J. W. FULLEB,

W. W. BENNETT.”

To what, by this agreement, was defendant bound ? To convey to plaintiff, free from all incumbrances, a lot of ground and the improve-merits thereon. When was said property to be so conveyed ? On the first of January, 1873.

These were the obligations of defendant’s contract. What were those of plaintiff?

To accept and complete the promised sale, and to pay to defendant, • on the first of January, 1873, four thousand dollars, the price stipulated between them.

Thus, as to both parties, the term fixed for the performance of their contract was the first of January, 1873.

On that day J. W. Fuller was to execute and tender to ~W. W. Bennett a title free from all incumbrances. Did he comply with his obligation?

On the same day W. W. Bennett was to pay to J. W. Fuller four thousand dollars. Did he pay, and, if he did not, why ?

On the first of January, 1873, no title was executed by defendant, no title was tendered by him to plaintiff. He only offered to give what he considered as a good one, and to warrant its validity by personal .security.

This did not amount to a compliance with his obligation. Could he,, then, have complied with it, and can he now do so ?

On the first of January, 1873, there was, and there is now, on the property hereinbefore described, in favor of one Lester, a conventional mortgage amounting, in principal, to $5637 20; and then, as now, the minor, Mary S. Buckner, was and continues to be, by inheritance from her mother, the owner of one undivided half of said property.

That mortgage and that adverse title, were the causes, the obstacles', which prevented defendant from complying with his obligation. He could not and did not, on the first of January, 1873, do what he had bound himself to do on that day. His failure to comply with his written promise, constitutes, in law and in fact, a violation of his contract.

With the consent of defendant, indispensable repairs were made to the buildings on the lot, under the instructions and at the costs of plaintiff, and this suit is brought by the latter to compel the former to reimburse the amount of those costs, with legal interest.

The district court allowed plaintiff’s demand, and defendant has appealed.

If we had under consideration, instead of a promise to sell and to buy, a sale transmitting a title, or even translative of a title, the argument of defendant’s counsel would be unanswerable; but a conditional promise to sell, transfers neither the property nor . its possession, but only gives, when the condition is fulfilled, á right of action for its performance or for damages. 10 An. 160; 13 An. 361.

It has been held that one who 'acquired from a vendor without title, has just reason to fear that he shall be disquieted, and may'suspend the payment of the price, unless, before the sale, he was informed of the danger of eviction. It would have been a grave iniquity to hold otherwise, as, here and elsewhere, the sale of property belonging to another is a nullity.

We have been referred to the decision of this co.urt in the case of Julia Williams and husband against J. W. Fuller, reported in the 27 An. p. 634,.in which it was maintained that the surviving husband, as head of the community, may sell its property, after the death of the wife. This is not correct; at the dissolution of the marriage the effects composing the community of gains, are divided into two equal portions, .between the husband and the wife, or between their heirs. R. C. C. 2406.

In the case of Broussard vs. Bernard et al. this court said: “ That a community of acquests and gains, as such, continues after the death of one of the partners, with all the legal effects resulting from such a relation, with authority in the husband, if he should survive, to be still regarded as the head of the community, with power to bind the common property by his contracts, and to alienate it without) restraint, is a proposition so repugnant to all our notions of a community, and so subversive of first principles, that it can not be for a moment admitted. Each party is seized of one undivided half of the property composing the mass, and the surviving party can not validly alienate the share not belonging to him.” 7 L. R. 222.

In the case of German vs. Gay, this court reaffirmed the plain and indisputable doctrine previously e ssertcd: “ The pretensions of the husband-rest upon the supposition, that he has in law a right to settle and liquidate the community, and that the rights of the wife depend upon such settlement and liquidation, which must be done by and with him alone. If from this he infers that he can sell any of the property, composing the mass of gains of the community, we know not on what law he bases such a pretension. His authority, as head of the community, ceases on the dissolution of the marriage. The right of the heirs of the deceased then attaches,” etc. 9 L. R. 584; 1 R R. 149, 378; 10 R. R 18; 3 An. 562.

Heirs, we admit, should not be permitted to enrich themselves, at the expense of those whose money has or may have contributed to the payment of debts for which they were partly liable. This, for more than thirty years, has been again and again decided by this court.

In the case of Calvit et al. vs. Mulhollon et al, it said: “ Where plaintiffs claim, as heirs of their mother, one half of certain community property sold by the husband after the death of the wife, and the vendee proves that the price of the property was applied to the payment of the debts of the community, he .will be entitled to the reimbursement of the amount so paid for its benefit, in proportion to plaintiffs’ interest in . the community.” 12 R. R. p. 266.

The decision rendered by our predecessors and reported in the twenty-seventh Annual is based, not only on the ground that the husband may sell community property, after the death of his wife; but on the additional ground that, under such a sale, the purchaser has no right to suspend the payment of the price and rescind the contract, unless actually disturbed in his possession or threatened with eviction. In that construction of the law we do not concur. Where there is no title, there ever was, there is, there hangs a perpetual danger of eviction.

When to one’s possession, instead of a presumption of ownership, there is linked the confessed certainty that you are not the owner; that, when transferred by him, the transferred title was not in the vendor, but that it was and still is in another, a different person, what, as to such a vendee, is the value of his possession ? Under those circumstances, can the mind be bent to the extravagant credulity, that he has no just reason to fear that he shall be disquieted? Would he be so imprudent as to build a home on land held and detained under such a transfer ? If he did, he or his children, after him, might well expect to be expelled from that home.

In 1829, this court was called upon to determine a controversy, which, in only one aspect, differs from this one; it had to consider the effects, not of a promise of sale, but of a sale. The facts are thus stated by Mr. Justice Porter: “ The property was purchased by the husband during the life of his wife, and made, of course, a part of the community estate. After her death, he sold it as belonging to himself. The plaintiff insists the one half was owned by the minor children, and the sale by their father, without the formalities of law, did not transfer their title.”

“We think the buyer has just reason to fear being disquieted, when he has acquired by a defective title, which does not vest in him a legal right to the property purchased, and that when the title is clearly defective» ho has nothing to do with the considerations that may or may not induce others to sue him. No man would wish to acquire property, or hold it under such contingencies. It is sufficient for the buyer to claim the protection of the law, that he holds at the will of others. It was urged that the vendor was insolvent at the death of his wife, and that the children could not hereafter claim the land without becoming responsible for their mother’s share of the debts. Admitting this to be true, who can tell what value the property may acquire before the time of prescription will run against the children ?” 7 N. S. 94, 95.

Defendant’s counsel contends that plaintiff has accepted delivery, and should be considered as in possession-of the premises. This assertion contradicts the contract. Title, delivery, and possession were to be given at the date fixed in the contract, and that was the first of January, 1873.

Plaintiff was allowed to enter the premises before that date and to take only the possession required to make, or cause to be made the repairs which he thought necessary; but he did not move on the place a single article of his furniture, he did not occupy for a day, a moment, any part of the residence. That possession was limited to a specified purpose, and resulted, not from any clause of the contract, but from the consent of defendant. It lasted until the first of January.

The counsel argue that plaintiff has made no tender of the property, and that, without it, the contract can not be rescinded. There no longer remains a contract to rescind; that which existed between the parties expired on the day it was violated, and plaintiff could not have been expected or compelled to return to defendant that which, legally, never was out of defendant’s possession.

His counsel invoke a reasonable presumption; they remind us that Mrs. Buckner married and died during the war; that the husband was rich, the wife poor, and that it is difficult to conclude that the price of the property, twelve thousand five hundred dollars, was acquired during the marriage. There is a higher presumption than that invoked by them. In the sale to Buckner, there is no mention that he bought for -him alone and with his own funds; he bought during the marriage, and the acquired title passed to the community.

In deference to counsel, we have carefully examined every authority, every proposition on which they have rested a hope and built their expectations. We now return to the parties, to their contract, their mutual obligations, their written promises, and, by the light of their expressed intentions, we will construe and enforce their contract.

It was violated; of this there is no doubt. By whom was it violated? Plaintiff charges that it was by defendant; defendant charges that it was by plaintiff. Who is wrong, and who is right ?

In the document by which their agreement is evidenced, we read: “ Said Fuller agrees to sell to said Bennett, and convey by formal title, free from all incumbrances,” the lot and buildings. That document was not itself the intended sale, the formal title therein referred to; otherwise, how explain that declaration: “ I agree to sell, to convey by formal title ?” Would he have bound himself to do what was already done, to give what he had already given? That can not be; that construction can not be imprisoned in that declaration.

There was to be a sale, the title was to be transferred; that was to be done; the agreement was not self-acting; there was to be another, a second act, to carry the first into execution. The first contract contained two codditional obligations: one to sell, the other to buy. When was the second act to be passed, the obligation to be executed ? On the first. of January, 1873.

On that day, Bennett went to Fuller, asked him for the promised title, a title free from all incumbrances; on that day Fuller had but a fraction of that title, and that fraction was subject to a mortgage in favor of Lester, amounting, without the stipulated interest, .to more than fifty-six hundred dollars, more than the price fixed by himself for the whole of the property he had bound himself to transfer free from all incumbrances.

The tender of the price by plaintiff was irregular, but useless; the first obligation to be executed was that of defendant. Unless the latter presented such a title as had been agreed upon between them, no price was due, none had to be offered by Bennett. On the seventh of May, 1877, Fuller tendered him, in open court, an act translative of the property herein referred to, with the written consent of Lester that he would release his mortgage on said property, if the price fixed in the promise of sale, four thousand dollars, were paid in court for his own use and benefit.

It was too late; more than four years had elapsed since the day fixed for the execution of the title, and the land was still mortgaged; but had said mortgage been erased on the first of January, 1873, that fact alone would have been insufficient to bind the plaintiff. Fuller could not then, nor can he now, transfer what he and Bennett know to belong to the minor Buckner.

Fuller offered to give security to protect Bennett against the danger of the apprehended eviction. This Bennett refused. It was his right. Fuller was to be, but was not a vendor, and he could not compel one who had not accepted an intended sale, to accept any security, as a protection against the troubles, the disturbance, the losses invariably entailed by the acceptance of a defective title, or of one which has no existence.

This was not one of the. conditions of their contract; and, as no condition of that contract was repugnant to law, it became the law of the parties. Reduced to its true proportions, what was the agreement ? I bind myself, said Fuller to Bennett, to give you, on the first of January, a title free from all incumbrances. If you do, answered Bennett, I shall, on the same day, accept your title, and then pay you four thousand dollars.

The promised title was not, could not have been given at the date agreed upon, and the violated promise did not grow into a contract of-sale.

From November, 1872, to the first of January, with Fuller’s consent, Bennett, relying on the performance of Fuller’s obligation, improved and repaired the uninhabitable premises which he was to buy. He claims, from defendant, not a cent more than he disbursed, and, as those improvements and repairs remain to Fuller and have enhanced the value of his property, he is undoubtedly liable to Bennett for an amount equal to their cost.

Plaintiffs demand is not only a strictly legal, but also a reasonable demand.

It is, therefore, ordered, adjudged and decreed that the judgment appealed from be affirmed with costs.

Mr. Justice Egan recused himself in this case.


author: DeBlanc, J. Mark, J. Manning, O. J.

text:
    No. 726.
    Succession of H. T. Cottingham. Opposition of the Widow.
    The profoi-encs on the proceeds ol his debtor’s property, which a creditor has acquired by procuring the cancellation of a fraudulent mortgage on that property. is inferior in rank to the widow’s claim under tho homestead law.
    REPEAL from the Probate Court, parish of Caldwell. Barry, J.

      George Wear, for Mrs. Bettio Cottingham, appellee.

      8. M. Brian, for Jules Rose & Co., appellants.
   Tho opinion of the court was delivered by

DeBlanc, J.

On the tenth of March 1877, the administrator of the succession of Thomas T. Cottingham, filed a provisional account, in which he acknowledges having received, for said succession, the sum of one thousand fifty-two'dollars and fifty cents, and having paid or classed to be paid, as privileges, twenty-four claims, amounting, in the aggregate, to §1703 70.

This account is opposed by the' firm of Rose & Co. and by Mrs. Cottingham, the widow of the deceased. That firm have alleged and proved that, by its efforts and vigilance, these fraudulent acts of the said Thos. H. Cottingham have been annulled and revoked, and the property described in said acts subjected, by a decree of this court, to the payment of their claim against the succession of their deceased debtor. They now claim, by preference, the proceeds of the sale of the property which was effected by a conventional mortgage revoked at their suit.

The widow complained in the lower court that, though under the provisions of the Code, her claim under the homestead law, should be paid in preference to all other debts, except those specially mentioned in the law, the administrator had classed it as the last privilege to be paid.

The opposition, of the widow was sustained, that of Rose & Co. dismissed. From the judgment of the lower court, the latter alone have appealed. They alone still urge their opposition to the administrator’s account, and, from the oral and printed argument of their counsel, that opposition is now limited to the preference allowed to the widow’s claim.

The creditor has an action to annul any contract made in fraud of his rights. In that action, what should be the judgment of the court? That all the property or money fraudulently taken from the debtor’s estate, be applied to the payment of the claim of the successful creditor.

The words “ taken from the debtor’s estate,” indicate that the lawgiver had reference to a case where there has been, apparently at least, a change in the possession of the property, and when, by the creditor’s diligence, by the exercise of his action, the asserted contract is partly or absolutely canceled. R. C. C. 1970, 1977.

By that action, a mortgage, as well as a sale, may be avoided; but a mortgage does not divest the title, does not change the possession, and though its cancellation entitles the suing creditor to a preference on the proceeds of the property described in the avoided contract, that preference does not, can not exclude any of the rights which, even if the mortgage had not been annulled, would have outranked the claim secured by that mortgage. The revocation of a mortgage gives to the creditor, at whose instance it was revoked, a preference over all the other creditors, with whom, otherwise, he would have been on a footing of equality. It converts into a superior right, that which, before the revocation and without it, was and would have remained a concurrent right. It gives, it creates a priority, but does not supersede or destroy an already existing priority.

It has been invariably held, by this court, that the privilege conferred on the widow and children in necessitous circumstances is superior to all other privileges, except that of the vendor and those incurred in selling the property.

Our Code has been revised, and, of the law which confers that extraordinary privilege, not a syllable has been changed.

When the succession amounts to one thousand dollars, the widow may take, less a fraction, the whole of the succession. R. C. C. 3252; 26 An. 166; 27 An. 560.

The fraudulent mortgage did not, could not, affect the priority of the widow’s claim, and the success of the creditor’s action against it, did not add to her right, did not regain, for her, an advantage which, otherwise, she might have lost. The rank and extent of her claim are fixed by law, and no mortgage, real or simulated, except the vendor’s, could or can change the rank, or reduce the amount of that claim.

In this case, and so far as concerns the revocation of the mortgage, the creditor’s diligence can not be rewarded.

The law is clear, imperative, and, as our predecessors, we must apply the law as we find it written. The widow’s claim surpasses, in legal dignity, not only conventional mortgages, but even the privilege securing the payment of the expenses of the last illness and of the funeral charges. When, as in this instance, she takes the whole of the succession, she must, out of the bounty allowed her, pay these expenses and charges. This, on her part, is more than a duty, it is an obligation.

By whom, generally, are such debts contracted ? Is it exclusively, by one chained to his bed by a mortal disease ? Is it by one whose lips are sealed and voiceless ? Is it by the future, the unnamed administrator ? Who sends for the physician ? Who orders the coffin ? Eor those debts, by whomsoever they may be contracted, the wife and the children are liable. Otherwise, many a parent and husband would die for want of proper assistance, and a few might have to be buried without a coffin.

In this case, it would be a strange injustice to compel the administrator, who has paid some debts contracted by the wife, or for which she alone is liable, to deliver to that wife the entire succession of the husband, without deducting therefrom what he has paid for her.

When the husband is alive and has no property, no means, the wife is bound to provide for the household expenses; when he departs this life, and she takes ah that he leaves, she is, morally and legally, bound to .pay for the last services rendered by their physician, the clothes in which he was buried, his coffin and his grave.

There is no error in the decree of the lower court, and that decree is hereby affirmed; the costs of the appeal to be paid by Rose & Co.

Mark, J.

I content myself now with simply concurring in the decree of the court, reserving the right to assign my reasons separately hereafter, if I think proper to do so.

Dissenting Opinion.

Manning, O. J.

I cannot assent to the doctrine that the widow’s portion under the act of 1852 ranks the burial expenses, and those for settling the succession, nor am I aware that it has been thus invariably held by this court.

The question was first presented in Eoulkes’ succession, 12 Annual, 537. when the court held the contrary doctrine. The language then used was — “ our construction of this law is, that the destitute widow’s portion primes all privileges created previous to the death of the party and subsequently to the passage of the act of 1852, except that of a vendor, but that it yields to funeral expenses, the expenses of last illness, and law-charges growing out of the administration and settlement of the succession.” A dissenting opinion was read in that case in which it was argued that by the terms of the act of 1852, the widow's portion must rank everything but the vendor’s privilege and the expenses of selling the property, but it was an argument against the decision of the court.

In Bouvet’s case 25 Annual, 431. the point before the court was, whether the widow’s portion should prevail against the lessor’s privilege, and in Cooley’s case, 26 Annual, 166. it was whether the minor’s portion under same act of 1852 primed that of the vendor of' movables, and these decisions are authority on those points alone. All else is obiter dicta. In Rawls’ case, 27 Annual, 560. it does not appear, nor can it be reasonably inferred from the language of the court, that the contest there was between the widow for her portion, and the funeral expenses and necessary law charges, but the doctrine is announced, and much too broadly, that the portion of the widow under the act of 1852 is superior to all other privileges, except those of the vendor and those to secure the payment of expenses in selling the property.

So far then from this court- uniformly holding this doctrine, the Reports shew that it has never been held until the last published volume,if wo may indeed so interpret that decision. I prefer to follow the dictum in the 14th Annual.

So far as I can perceive from the reports of the decisions, the question of rank between the widow and the succession privileges, necessarily created after the death of the decedent, has never been broadly presented since the Foulkes case until now. This case presents it squarely. The assets of the succession are one thousand and fifty-two dollars. The widow claims nearly all of it. The administrator had the dead man buried, paid for his grave, for decent apparel in which to bury him, paid the court charges and law expenses, confessedly necessary to properly and legally settle the succession, and presented his account with proper vouchers. He is entitled to the credits which he claims for payment of these items. Frequent decision of this question, contrary to so equit- ’ able a judgment as that, and a long and unquestioned construction of the statute in accordance with it, in cases where the question was directly involved, might induce me to adopt such construction, in deference to the principle stare decisis, which all courts recognize as a salutary rule. But I do not discover that the point was ever presented except in the Foulkes case and in the present-, and I think the decision here should follow the decision in that case. And I prefer to rest the judgment upon that ground, rather than upon the one adopted by my brethren.