author: Nicholas, C. J.

text:
    No. 12,139.
    James Ashton vs. Sophie Grucker, His Wife.
    The utterances of a wife to a confidential friend while seeking sympathy and advice and when smarting under what she rea onably considered to be wrongs received at the hands of her husband by neglect of herself and indiscreet, injudicious and excessive, if not criminal, attentions to some other woman will not be held to be “ public defamation.”

      The husband alleging “ public defamation” demauds separation from bed and board; the wife reconvenes and claims a separation on the grounds of abandonmeut. Held: When the husband fails, the demand of the wife in reconvention will also be dismissed; it would be against the policy of the law that the husband should find himself confronted by a judgment of separation from bed and board in favor of his wife on account of abandonment, based upon neglect or refusal to return upon summons made,when the propriety of his own course and the conduct of his wife was at the time being made the subject of judicial investigation.
    The letters of the husband to the wife are admissible in evidence in a suit between the parties for a separation from bed and board. The husband is not, through such letters, made to be either a witness for himself or against his wife. The letters are used in evidence as containing matters emanating from the husband to break down his cause of action.
    Any act of the plaintiff husband or admission made by him which would estop him, throw his demand out of court or show his demand not well founded, the defendant wife is entitled to prove, and she is not cut off from doing so by the circumstance that the fact is shown through a letter written by the plaintiff husband.
    APPEAL from the Civil District Court for the Parish of Orleans. Théard, J.

      Gus A. Breaux and Charles P. Fenner for Plaintiff, Appellee.

      P. F. Hennessey (Benjamin Rice Forman, of Counsel) for Defendant, Appellant.
    Argued and submitted May 22, 1896.
    Opinion handed down June 15, 1896.
    Rehearing refused June 29, 1896.
   The present action is an action for separation from bed and board, instituted in August, 1894, by a husband against his wife, upon an allegation that his living with her is altogether insupportable and impossible. This condition of things is averred to have been brought about by her jealous disposition, which caused her to make his home unbearable, by her repeated, unfounded, irritating and vexatious reproaches against him, and by her constant quarrels and abuse. He averred that six or seven years prior to the institution of the present suit, matters reached such a point as to force him to leave the conjugal domicile, to which, however, he returned on a promise by his wife that she would cease quarreling and worryicg him; that this promise not being kept, he was again forced, for the same causes as the first, in the month of January, 1892, to leave the matrimonial domicile, wishing to avoid public scandal, but that none the less he had provided continuously for his wife; that he had lived apart from her since January, 1892, having no relations with her except to provide subsistence for her from month to month; that since the second separation she had declared publicly to different persons that he was keeping a mistress and living in open adultery, which was absolutely false and untrue, without any foundation in fact; that these statements were made in malice, with the knowledge that if they were believed by his employers it would result in his immediate discharge from employment, and .he was injured by such defamation of character. In a supplemental petition he fixed the dates of these charges as having been made by her at various times in 1893 and 1894, and as having been made to one Gillen and Mrs. Julia Smith and her son, Edward Smith. The defendant met plaintiff’s demand by counter allegations against him, admitting that she and her husband had had numerous quarrels, but charging that they were mostly brought about by his constant, assiduous and improper attentions to and relations with another woman, which were the subject of neighborhood gossip and comment, and had caused her great distress and unhappiness; she charged him also with unreasonable prejudice and dislike to her children by a former marriage. Assuming the position of plaintiff in reconvention she charged that her husband had, for years prior to the bringing of his suit, withdrawn without just or legal cause from the matrimonial domicile. She prayed that he be summoned, according to law, to return; and in the event of his failure so to do, she have judgment in her own favor rejecting his demand, but granting her a separation from bed and board from her husband. Defendant attempted, on the trial, to file an amended answer, in which she alleged that since the dates of the defamation alleged in his petition (the truth of which allegations she denied), plaintiff had repeatedly invited her to his rooms by letters, written from May 1, 1893, to October, 1894, and she complied with the same ¡and resumed their marital relations during said period; wherefore, ;she prayed that plaintiff’s demand be rejected and that she do have judgment against her husband for alimony for an amount not less \thanforty dollars per month.

The court refused to allow the amended answer to be filed on the ground that it was presented too late, and because its averments were in conflict with the allegations of defendant’s answer, wherein she had averred that her husband had, in January, 1892, withdrawn from the matrimonial domicile, and “ that ever since that day he had remained away and had severed his relations with defendant as man and wife.”

During the trial defendant offered to introduce a number of letters from her husband to herself at various dates betwhen May, 1893, and July, 1894, “ to show that he received his wife at that time and took her into his room — to show reconciliation ” — but on plaintiff’s objecting that defendant had averred that there was no reconciliation at that time, and that they were statements of the husband, and, therefore, inadmissible under Art. 2281 of the Civil Code, as amended, they were excluded. We find them, however, in the record, annexed to a bill of exception taken by the defendant to the ruling of the court in regard to the same.

One Adele Armant, the owner or lessee of the house at which plaintiff was residing during the period covered by these letters was permitted over plaintiff’s objections to testify to the fact that during that period defendant had visited plaintiff at his rooms and was there with him several hours on different occasions. The court permitted this fact to be shown, not to prove a reconciliation, but as tending to show the nature of the quarrels between the parties and how serious they were.

The District Court rendered judgment in favor of the plaintiff, decreeing a judgment of separation of bed and board between himself and his wife and rejecting the wife’s reeonventional demand. From that judgment defendant appealed.

The opinion of the court was delivered by

Nicholas, C. J.

We are of the opinion that in so far as plaintiff seeks to have a separation upon the ground that his wife had publicly defamed” him it must fail for several reasons. In the first place whatever statements were made by the defendant in respect to the relations which she asserted existed between her husband and her supposed rival were not in our opinion either wantonly or maliciously made, nor made with the intention of injuring her husband. They were made to Gillen, the brother-in-law of the plaintiff, and to Mrs. Smith and her son, who seemed to have been friends of both parties, and in the course of conversation such as parties holding close relations with each other are apt to have in discussing mutually their family affairs. There is nothing tending to show that it was either expected or desired that these conversations should be repeated to outside parties. Those which took place with the Smiths seem to have been made prior to the date fixed in plaintiff’s pleadings and in the interval between his leaving his home the first time and his return, and to have been made in connection with a request made of Mrs. Smith by the defendant to interpose her good offices toward inducing her husband to return. In Homes vs. Carrier, 16 An. 94, we said that the charge of adultery preferred by the wife against her husband to serve as the basis for a judgment of. divorce does not of itself amount to a defamation upon the failure of the former to sustain the allegation by proof. If the accusation be not wanton or malicious, although unfounded in point of fact, it can not with propriety be said that there was á public defamation.

In Bienvenu vs. Buisson, 14 An. 386, in which a wife claimed a separation from her husband, we said that it was impossible to give a defamatory intention and effect to epithets applied by a husband to his wife when no one was present but the spouses themselves, although such epithets would have had much gravity had they been uttered in the presence of a third person. Plaintiff has called our attention to the latter part of this sentence and deduces from it broader consequences than the expression justifies. Unquestionably a charge of adultery made by a husband against his wife in presence of a third person would present a question of a much graver character than the same charge would have had had it been shown to have been made by the husband to the wife in their bedchamber» but it by no means follows that such difference would consist in leading, up to a right to a separation even by a wife independently of the time, place and circumstances under which the charge was made and independently of the relations toward the parties of the person who might be present on such an occasion and the circumstances under which he was present.

In Cass vs. Cass, 34 An. 614, in which a wife assigned as a ground of complaint against her husband that he had defamed her, the court said that the argument advanced by the husband, that to constitute' defamation within the meaning of the Code the offensive epithets or words must have been uttered in public, did not meet with its sanction. That the charge of adultery against a wife by her husband made in the presence of her servants and of a visitor, or to another person at the latter’s house, as was shown in that record, did eon- ¡ titute a public defamation as contemplated by our law, for which the injured wife was entitled to the protection of the courts. The court was of the opinion that the charge as made in that particular case was under such conditions as to justify the interpositions of the court’s action in favor of the wife. We think there was no necessity to have alluded at all to the subject, as from the standpoint of a “ public defamation,” for the conduct of the husband, even if it were not a “ public defamation,” was evidently of a character such as to cause it to fall under the terms “ outrage of one toward the other ” under the other provisions of the law of separation, and to warrant the judgment in favor of the wife.

We are not inclined to designate as a “ public defamation” the utterances of a wife to a confidential friend while seeking sympathy or advice and when smarting under what she reasonably considered to be wrongs received at the hands of her husband, by neglect of herself, and indiscreet, injudicious and excessive, even if not criminal, attentions to some other woman.

In many such cases the supposed wrongs may have been exaggerated, in others purely imaginary, but we scarcely think that the wife in so acting could be charged in any of them with having “ publicly defamed ” her husband. In the case at bar we think much of the unhappiness between the parties could have been and should have been avoided by the husband by a cessation of the visits and attentions of which his wife complained — if not entirely, at least to within limits which would have restored harmony in the family. There is such a thing as avoidable unhappiness, and we think that where husband or wife appear before the court without having attempted to remove exasperating or irritating causes of dissension which were directly within their power of control, they can scarcely expect that we should relieve them from a situation from which they could easily extricate themselves. An examination'of the testimony in this case leads to the opinion that much of plaintiff’s unhappiness consists in doing what any married man might reasonably expect his wife would do under similar circumstances, and in not only failing to desist when he saw the ' consequences of his actions, but in becoming irritable, as he himself admits, by the repeated reproaches of his wife. We do not mean to intimate that there was anything wrong in the conduct of the plaintiff, but it was undoubtedly calculated, and naturally calculated, to arouse the jealousy of his wife, and to make her miserable and unhappy, and when the plaintiff saw this he should have governed himself accordingly. We think that plaintiff’s complaint of “defamation” of himself by his wife as a special ground of action finds little support under the testimony in the ease. We are of the opinion that the letters of. the plaintiff to defendant, which the latter offered in evidence, taken in connection with the testimony of Adele Armant, establish conclusively the fact that the conversations of the defendant with Gillen and with the Smiths are sought to be made to assume an importance in the case which in no manner belongs to them.

The acts of the plaintiff in writing to his wife and receiving her at his rooms, when living at Adele Armant’s house, are irreconcilable with the conduct of a man under a sense of wrong at having been publicly defamed. The expressions o'f the letters, their whole tenor, is opposed to his attaching any weight or importance to those conversations. The real grounds of complaint are plaintiffs unhappiness produced by continuing quarrels between the spouses, resulting from the jealousy of the wife, and to differences between them in regard to the latter’s children by a first marriage. This latter ground is not assigned in plaintiff’s petition, but is made very prominent in the letters we have referred to. Plaintiff succeeded in having these letters excluded. The conclusions we have reached in the case independently of them make allusions to them unnecessary; but we think they were admissible in connection with Adele Armant’s testimony, to show that plaintiff invited his wife to his rooms long after his alleged defamation by her, and that she visited him there at his solicitation, and through that fact to show (what the testimony of Adele Armant was allowed to be introduced to show) that the grievances of these parties were not of the grave and serious character which they would be taken to be if tested simply by the allegations of the parties. The plaintiff was not through these letters made to be either a witness for himself or against his wife; the letters were not go be used for his wife as containing statements therein in support of a demand made by her against him, but as matters emanating from himself to be used against himself to break down his own cause of action. Any act of the plaintiff or admission by him which would estop him, throw his demand out of court or show his demand not well founded, the defendant is entitled to prove, and she is not cut off from doing so by the circumstance that the fact is shown in or through,a letter written by the plaintiff. Though the letters we speak-of may not show an absolute reconciliation between the parties leading to a complete wiping out of all differences and to a resumption of marital relations at a common domicile, we think they do show that the advancing of “public defamation” as a substantive ground of action was an afterthought, or that it was not at the time of writing those letters considered a matter of grievance — in other words, if it ever had existed as a ground of complaint, that particular stale grievance had passed out or been stricken from the list of grievances — practically it had been forgotten if not forgiven.

- In dealing with this matter of the public defamation of the plaintiff by the defendant we have in reality disposed of the whole case, for we have already expressed the opinion that plaintiff’s conduct was of a character such as naturally to arouse the jealousy of his wife, and that he was (to an extent sufficient to cause him to fail in this action) to blame for the resulting quarrels and his own resulting unhappiness. Plaintiff contends that the wife is not authorized in this suit to claim in reconvention a separation from bed and board based upon abandonment.

The syllabus in Bienvenu vs. Buisson, 14 An. 386, is to the effect that- “ a reconventional demand on the part of defandant for a separation on the ground of abandonment is not admissible. A particular form of procedure is required by the Code for obtaining a decree of separation on that ground, and to that form the defendant must have recourse for relief.” The same matter is referred to in Jolly vs. Weber, 36 An. 678, in which the husband reconvened, praying for a separation of board on the ground of abandonment by the wife and caused, during the pendency of the suit brought by her for a separation, summons to be served upon her to return to the matrimonial domicile. Referring to defendant’s reconventional demand, the court said: “We are at a loss to appreciate the relief which defendant could possibly claim under his wife’s refusal to obey the summons, in the face of the showing that her continued absence was justified in law by the order of the court allowing her another and a different domicile. The production of the judge’s order assigning her a house to live during the pendency of the suit, and which is a matter of record, is unquestionably a sufficient answer and a justifiable showing to the summons of her husband through the court directing her to return to the latter’s domicile. The proceeding, therefore, could not give rise to a judgment sentencing her to comply with her husband’s request, and all matters connected with the alleged abandonment must .be eliminated from the cause.”

We find a decision in France to the same effect: “ Le grief resultant de ce que le mari refuse de recevoir sa femme au domicil conjugal ne serait pas recevable s’il se fondait uniquement sur ce que le mari n’aurait pas tenu compte d’une sommation a lui faite avant la signification de l’arret, qui avait rejeté une demande en separation de corps anterieurement formeé par lui.” Trib. Seine, 27 Mai, 1868, D. P. 72-1, 87-8.

In the Bienvenu case defendant was evidently seeking to obtain-a separation from bed and board on the ground of abandonment of the wife by direct proof of the abandonment administered on the trial, without having had recourse to the various summons and orders to return prescribed by the Code.

The abandonment of this case is that of the husband, and it is alleged to have antedated the bringing of plaintiff’s suit by several years. The various summons to the husband to return were made during the pendency of the present suit, in support of the reconventional demand. Our decision in this ease being a rejection of plaintiff’s demand, carrying with it a conclusion that he was not warranted in withdrawing from the matrimonial domicile, it may be claimed that we could and should now give effect to the summons made during the suit, or reject the plaintiff’s demand and leave the reeonventional demand standing for future summons. We have no right to say that plaintiff would not be willing, upon the rendition of this judgment, to become reconciled to his wife and return to her. It would be against the policy of the law that he should find himself confronted by a judgment of separation from bed and board in favor of his wife on account of abandonment, based upon neglect or refusal to return upon summons made when the propriety of his own course and the conduct of his wife was at the very time being made the subject of judicial investigation. We do uot think he should be placed, finally, in default pending the litigation, but that the summons upon him should be made only after the termination of his own suit, leaving him free to act from that time forward. We think every possible opportunity should be afforded the parties to reconcile their differences on that ground, if no other; we would not be inclined, even if it were allowable, to permit the reconventional demand to stand with a right to make new summons under it after plaintiff’s demand had been rejected. The general rule is that the main demand and that in reeonvention should be disposed of at one and the same time, and it is peculiarly proper that this rule be adhered to in this case, in which we are impressed with the idea that the parties are not really so far apart as they might appear to be.

For the reasons assigned, it is ordered, adjudged and decreed that the judgment appealed from be and the same is hereby annulled, avoided and reversed, and it is now ordered, adjudged and decreed that plaintiff’s demand be rejected. It is further ordered, adjudged and decreed that the demand in reeonvention of the defendant be dismissed as of non-suit.


source: Caselaw Access Project

author: McEnery, J. F. A.

license: Public Domain

text:
    No. 12,174.
    Catherine M. Daughtry vs. The Knights of Pythias.
    Under a contract of life insurance issued by a mutual company, conditioned to be subject to any by-law thereafter to be enacted, the insured is bound by a subsequent by-law, forfeiting such policies when the insured should die by his own hands.
    APPEAL from the First Judicial District Oouri for the Parish of Caddo. Land, J.

      Leonard & Randolph for Plaintiff, Appellee.

      Wise & Herndon and J. Zaeh. Spearing for Defendants, Appellants.
    Argued and submitted June 4, 1896.
    Opinion handed down June 15, 1896.
    Rehearing refused June 30, 1896.
   The opinion of the court was delivered by

McEnery, J. F. A.

Daughtry, the husband of plaintiff, was a mem - ber of the order of the Knights of Pythias, and belonged to the endowment rank.

He was found dead in a cell of the jail at Shreveport, La. The widow instituted this suit for the amount of the insurance on the life of her deceased husband.

The defence is that the deceased took his own life, and that' the policy was forfeited by the laws of the order,

The facts recited in the record show that the deceased took his own life. There is no theory that can be advanced under the facts that could lead to a doubt of death by suicide. There is no basis for a theory that the death of the deceased was caused by accident, or that he met his death at the hands of others.

In Leman vs. Life Insurance Company, 46 An. 1186, we held that “when circumstantial evidence alone is relied on to establish suicide, it is at least within bounds to say the evidence must exclude with reasonable certainty any other cause of death.” The evidence is such that no other conclusion can be arrived at than that the deceased voluntarily took his own life.

The plaintiff contends that if it be found that the husband committed suicide the policy is nevertheless due and payable, because when the certificate of membership of the endowment rank was issued to him it contained no provision against death by .suicide noi* did the laws of the order exclude self-destruction from the risks under the policy of insurance stipulated in the certificate; that the legislation thereafter forfeiting the policy on account of suicide could not affect a policy or certificate of membership issued prior thereto; that such legislation was ex post facto, and finally, that the legislation did not bear on the contract, but only as to the fitness and qualification of membership, and related exclusively to the discipline of the order.

Orders like the defendant association have multiplied in recent years. Tney are organized for the mutual benefit of the members, taking care of the sick and afflicted in life and providing for the family of the deceased member after death. Rules and regulations, a constitution and by-laws are enacted for their government. Every member who joins one of these orders does so with a full knowledge of its laws and usages. He is bound by the constitution and by-laws, and subjects himself to their discipline in order to receive the-benefits conferred by the order. There can be no law or regulation enacted after his membership that would destroy the benefit agreed to be conferred upon him by the laws and regulations in force at the time he joined the order. His contract of insurance could not be abridged or violated without his consent. But provision is made in the constitution for its amendment, and we see no reason why the members of an association of this kind can not, like the body politic, change its laws, enact new ones and discipline its members by police regulations.

In both cases the members, by their vote, participate in the change by the rule of the majority. In neither case can vested rights be destroyed. The vested right that the deceased had was for his family to receive the sum of three thousand dollars, provided he complied with the laws of the order. There was no vested right in selecting the mode and manner of his death. Had there been no subsequent legislation there would have been no prohibition to the payment. But the order had a right, independent of any stipulation or agreement, to say that no member should take his own life and receive for his family the benefit of the life policy. It was a matter of legislation in which each member, through representation, assented. It was a police regulation in the interest of the discipline and welfare of the endowment rank. We understand from the documents accompanying the transcript that payments of policies on account of suicides had become so frequent that the endowment fund was endangered. . Suppose, in the State of Louisiana, persons should insure themselves and commit suicide, in order that the policy should go to the beneficiaries, and it should become so frequent as to endanger society, would any one doubt the wisdom or the validity of a law which should say that no existing policy, or those thereafter issued, should be paid if the policy holder committed suicide? So in this case, the order of the Knights of Pythias applied a remedy, by declaring the forfeiture of existing and future certificates of membership in the endowment. rank on account of the self-destruction of the holder of the certificate.

But in this case, the holder of the certificate was bound by the stipulations in it. When issued to the husband of plaintiff it contained this agreement: “and in consideration of the payment hereafter to said endowment rank of all monthly payments as required and the full compliance with all the laws governing this rank now in force,, or that may hereafter be enacted, and shall be in good standing under said laws,” etc.

In the certificate it is stated that if any of the requirements of the laws in force governing the endowment rank shall be violated, the Supreme Lodge of the order shall not be liable for the amount of the policy.

The certificate covers both the laws which may thereafter be enacted, governing the endowment rank, and the good standing of members under the existing regulations.

After this certificate was issued to F. A. Daughtry, a law was enacted by the proper authority, and approved by the Supreme Lodge, forfeiting the policy on account of suicide. Any law enacted in pursuance of this agreement is the voluntary consent of the members of the order, made for their mutual benefit and by their proper representatives.

In the case of Supreme Commandery Knights Golden Rule vs. Ainsworth, 71 Ala. 436, the facts were almost identical with those in the instant case. The syllabus of the case reads: “ Under a contract of life insurance issued by a mutual company, conditioned to be subject to any law thereafter to be enacted, the insured is bound by a subsequent by-law forfeiting such policies when the insured should die by his own hands, sane or insane.” This case is well supported by sound reasoning and abundant authority, and we accept the doctrine announced.

It is ordered that the jndgment appealed from be annulled, avoided and reversed, and it is now ordered that plaintiff’s demand be rejected with costs.


author: Miller, J.

text:
    No. 12,177.
    H. & C. Newman vs. A. B. Cooper, T. J. Cooper et als., Intervenors.
    The court again affirms that community creditors are entitled to be paid from the community property, and that this right can not be impaired by the mortgage on such property executed by the husband after the death of his wife. Civil Code, Arts. 2402, 2406, 2409; Newman vs. Cooper, 46 An. 1485; Germain vs. Gay, 9 La. 584; Ware et al. vs. Jones, Sr., 19 An. 430; Palmer Dickson et al. vs. H. P. Dickson et als., 37 An. 915, and authorities there cited.
    The court indicates the mode of enforcing such mortgage.
    If in a contest between the father’s creditors and his children, claiming also to be his creditors, he can be required in the adjustment of his account with them to charge for their board, maintenance and education, no such charge can be admitted if the children had revenues derived by the father or under his control applicable to their support. Mercier vs. Canonge, 12 Rob. 385.

      The father, except under exceptional conditions not existing in this case, can not bind his minor children for debts arising for his individual contracts. C. C., Art. 350; Urquhart vs. Scott, 12 An. 67i; Payne vs. Scott, 11 An. 773; A. Miltenberger vs. J. P. Elam, Tutor, et als., 11 An 667.
    APPEAL from the Sixth Judicial District Oourt for the Parish of Richland. Ellis, J.

      J. W. Willis for Plaintiffs, Appellants.

      Gunby & Sholars for Defendant and Intervenors, Appellees.
    Argued and submitted June 5, 1896.
    Opinion handed down June 22, 1896.
   The opinion of the court was delivered by

Miller, J.

This case, a contest between the plaintiff, a creditor of the defendant, and his children the intervenors, claiming the property of the community existing between their father, the defendant, and their deceased mother, the property having been conveyed to the children by the father in payment of paraphernal funds of his wife alleged to have been converted by him, was before us in 1895 (43 An. 485, Newman vs. Cooper). The plaintiff’s debt is secured by a mortgage on the community property executed after the death of his wife. The previous appeal was by the children from the judgment for the plaintiff’s debt, with mortgage on the undivided half of the property. The judgment refused to enforce the title of the children, and if there was an indebtedness of the community for paraphernal funds of their mother, the judgment excluded one-half the community for liability for that indebtedness. We remanded the case with the view of ascertaining the amount of the community debt entitled to be paid, we thought, from the mass of the community, and this debt ascertained, there would be established the share of the defendant in the community, on which, in our view, his mortgage was to operate. Our previous decree construed in its entirety conveys this purpose, consonant as it is with the reasoning of the opinion. But the decree seems to have been misunderstood.

The case now comes back on the plaintiff’s appeal from the judgment for their debt, but denying the mortgage, and in favor of the intervenors for the property. It is manifest the judgment does not conform to the views expressed in our opinion. We affirmed that if the children were community creditors they were entitled to payment from the mass cf the community assets, and that no mortgage by the husband after the death of his wife could defeat that right. The corollary of the proposition was that the plaintiff’s mortgage must be restricted to one-half of the property; the community debt first deducted, or, as it is termed in the decisions, the residuum; the other half of the residuum accruing to the heirs of the deceased spouse. See 45 An. 1485, in which all the authorities are reviewed.

The plaintiffs on this appeal urge on us that the judgment is erro - neous in depriving them of their mortgage operative on the share of the surviving spouse, and because the judgment gives to the children the entire property in satisfaction of the alleged debt for the paraphernal funds of their mother claimed to have been received by their father, and it is further earnestly insisted by plaintiffs that this alleged debt is not established.

On the other hand the intervenors, the children, contend that our previous decree required the settlement of the community; it is claimed that the supplemental petition filed by plaintiff after the case was remanded did not make the requisite parties, nor were any notices given to creditors or other steps taken by the intervenors that our decree required; but, instead, the petition proposed a partition, and hence it is claimed the succession or community is still unsettled, and in view of this alleged non-compliance with the decree it is urged the exceptions to the proceedings should have been sustained. On the merits it is urged that the debt to the children for which the father conveyed to them the community property is proved, and therefore the title of the children is maintained as decided by the lower court.

In remanding the case it was not the purpose to restrict the plaintiffs as to the method of proceeding. Their mortgage operative only on the one-half the property, with the primary deduction or charge on the whole property of such community debt as might be proved to exist, it was indispensable to have determined whether there was that indebtedness. This inquiry for the lower court was our purpose in remanding. A proceeding against the proper parties presenting the issues as to the plaintiffs’ debt, mortgage and its enforcement, and as to tbe indebtedness of the community at the date of the death of the defendant’s wife in 1883, followed by the appropriate judgment fixing the community debt, if any, and the consequent charge on the property, or deduction from its proceeds if sold, would be an adjustment of the rights of the parties or settlement of the community, admitting of consummation by the sale and application of the proceeds directed by the judgment. That application of proceeds should be: first, the payment of the community debt; one-half the residue to the heirs of the deceased spouse; the other half to the surviving spouse, and if, as in this case, he had executed a mortgage on his share, the mortgage to be satisfied out of that share. The mortgages on community property, executed after the death of the wife, when there are community debts outstanding, and the mortgagor has only his share of the residuum of the community after discharging its debts, are apt to give rise to difficult questions when the community creditors call for their rights. In this case, however, where the issue is solely between the children and the plaintiffs, and the community property consists in that mortgaged to plaintiff it seemed to ns, it would not be difficult to adapt the proceeding for the adjustment of the rights of the parties. There is no necessity or basis to demand a partition of the property; plaintiffs are creditors, not owners. But, with that exception, the ■supplemental petition in this case, substantially, presents the issues and admits of the required judgment determining or rejecting the alleged community debt, and thus fixing by that charge or deduction the share of the residuum subject to plaintiff’s mortgage, and on which it should be decreed to operate. We perceive that the intervenors complain that the proper parties were not before the court. They are, in our view, the intervenors, but we find in the record an acceptance and answer for all. If in point of fact the minors are not provided wth representatives that should be remedied. In our, opinion the supplemental petition omitting all relating to a partition and its details, directed against the proper parties followed by the judgment of the character we have indicated, is substantially the requisite proceeding.

We are asked by plaintiff to close this litigation on the testimony in the record. The insistence of the intervenors on the objection to the mode of proceeding, suggests there may not .have been a full exhibition of proof, and we think it best to allow another trial. We will, however, dispose, as far as practicable, of the issues discussed here. The claim of the intervenors is for paraphernal funds of their mother used by their father. It is manifest the debt of the community is restricted to the funds received by the defendant prior to the death of his wife in 1883. It is the status of the community at that date that is the subject of inquiry.

It is urged on behalf of the plaintiffs that this community debt, if established, is to be reduced by the expenses of the board and education of the minors, since the date of their mother’s death. The theory that the father can become the creditor of his children for their subsistance and education, does not commend itself. We can understand that an insolvent tutor is to be deemed a creditor in such cases, to the extent of the revenues of the minor, that is to say, in a contest with his creditors he must charge his children with such expenses, to the extent of the revenues, as was held by this court in an earlier decision in which the subject was fully examined. Mercier vs. Canonge, 12 Robinson, 385. No such case is presented here. We find in the record, too, that the minors owned a plantation that was productive. With these revenues in his hands applicable to the maintenance of four minors, all young when their mother died, living in their father’s house, not of an age then to send to school, and causing but limited increase in expenses, as we read the testimony, we can find no basis for the charge of board and education claimed by plaintiffs in reduction of the community debt. We would reserve this question if, in our opinion, it would serve any purpose; but think it best to remove it from further litigation and speed the case to a determination on the substantial issues.

The plaintiff’s debt is for supplies furnished defendant since 1885 for the plantation. It is insisted by the intervenors the minors owe a portion of that debt because the supplies used for the plantation on which they lived, contributed to their support. It has beens held that the administrator of a succession advancing to a tutor for the necessities of a minor may charge such advances in his account as administrator. That may be, and it leaves the question as to the liability of the minor to be settled on the tutor’s account. When the tutor cultivates the minor’s plantation and obtains necessary supplies, it has been held the minors owe or may be held, so far as the supplies of a strictly necessary character are shown to have enured to the minors’ benefit, and so, too, if the minors’ property is destroyed by fire and must be replaced, the minor has been made liable for the expenditure. To decisions of this character we have been referred. McIntosh, Tutor, vs. R. H. Kelly et al., 31 An. 649; C. V. Lagay, Administrator, vs. Mr. and Mrs. J. S. Marston, 32 An. 170; Succession of Sparrow, 39 An. 706; 40 An. 484; Succession of Sparrow, 44 An. 481. Here the supplies were furnished to the defendant for the community plantation, of which he had the revenues. If, under the circumstances already discussed, his charge for board could not be made, it is not easy to appreciate how the children could be made liable either to their father or to plaintiffs for their supplies. The father was not tutor. If he had been the restriction of the law left him without right to bind the children except in the mode the Code prescribes. Civil Code, Art. 350. Urquhart vs. Scott, 12 An. 674; Payne vs. Scott, 14 An. 773. The plaintiff dealt with the father on his responsibility. The supposed benefit that four children derived from the plantation supplies, if capable of appreciation, we think too slender to be the basis of any judgment. We therefore think this question of liability should be excluded from further consideration.

Our conclusion is to remand the case with the direction to the lower court to ascertain, in conformity with this opinion, the debt of the community to the children at its dissolution in 1883, and this includes the recognition of the credits, if any, to which the community may be entitled other than those we hold not to be credits, i. e., for board, education and maintenance and for plaintiffs’ supplies; the debt thus established as a charge on the entire property, the judgment to direct the sale of the property, and from its proceeds the intervenors to be paid first, the amount of their community debt and one-half the residue, the other half of said residue, or as much, thereof as may be requisite, to be applied on plaintiffs’ mortgage debt, to be recognized as operative to that extent only; for any part of plaintiffs’ debt left unsatisfied by this application of proceeds, the plaintiffs to be recognized as ordinary creditors of defendant.

It is therefore ordered, adjudged and decreed that the judgment of the lower court be avoided and annulled, and this case be remanded for further proceedings, as herein directed, and that appellees pay costs of appeal.


author: Nicholls, C. J.

text:
    No. 12,192.
    State of Louisiana vs. Anthony Lima.
    On a trial for murder tlie court had given a general charge in writing, to which no exception was taken.
    Counsel for accused asked from the judge a special charge, which was refused, the judge stating there was no evidence to show that the deceased drew his revolver to frighten the accused, and if there had been, accused was fully protected by the general charge, since, if he had apparent reason to believe his life was in danger, the law of self-defence would be applicable according to the general charge. Held — The Supreme Court will only examine the general charge in connection with the special charges asked, to see how far the complaint made of their rejection may have been ill or well founded in view of its terms.
    The general charge in a case is directed to the evidence given in the case, and to what would appear to have been conceded as to unquestioned facts which had been elicited on the trial; viewed from a different standpoint, it would be open to serious objection.
    An instruction which, enumerating a certain evidential state of facts, closes by instructing the jury that if they found such a state of facts to have been established beyond a reasonable doubt, the jury must find the accused “guilty,” if allowable, is exceedingly dangerous.
    APPEAL from the Criminal District Court for the Parish of Orleans. Moise, J.

      M. J. Cunningham, Attorney General, John J. Pinney, Assistant District Attorney (Joshua G. Baker of Counsel), for Plaintiff, Appellee.

      Charles H. Luzenberg, Chandler C. Luzenberg and Philip J. Patorno for Defendant, Appellant.
    Submitted on briefs June 6, 1896.
    Opinion handed down June 22, 1896.
    Rehearing refused June 30, 1896.
   The opinion of the court was delivered by

Nicholls, C. J.

Defendant, indicted for murder, was found guilty -of manslaughter and sentenced to the penitentiary for six years. He has appealed. Our attention is directed to five bills of exception. The first four were taken to the action of the District Court in refusing to give to the jury special charges which counsel of accused tendered for that purpose. The fifth was taken to the refusal of the court to grant a new trial on the application of the defendant. The court gave its general charge in writing. The conclusions we have reached renders reference to any but the second bill of exceptions unnecessary.

The second special charge requested was as follows: If you find from all the evidence heard upon this trial that the defendant was attacked by the deceased and his companions, but that their intention was simply to frighten and beat the defendant and not to do him any serious bodily harm, but from the nature of their attack the defendant from all the circumstances surrounding him had reasonable ground to believe that there was a design to destroy his life or to commit a felony on his person, and, so believing, shot and killed one of his assailants, then I charge you that the killing of the assailant by the defendant was excusable homicide, and you must find the defendant not guilty.”

Per curiam, refusing charge. “ There was no evidence to show that Frank Scontrino drew his revolver to frighten the accused, and if there had been accused was fully protected by the charge, since, if he had apparent reason to believe his life was in danger, etc., the law of self-defence would be applicable according to the charge.”

There being no exception to the general charge, we have only examined it in connection with, the special charges asked, to see how far the complaint made of their rejection may have been ill or well founded, in view of its terms. The general charge in this case was evidently directed to the evidence given in the special case, and to what would appear to have been conceded, or to unquestioned facts which had been elicited on the trial. It would be open to serious objection, viewed from a different standpoint.

The portions of the general charge, which the court referred to as establishing the fact that the accused was protected as to the point asked, are we presume the following:

“ If, from the facts of the case, you find that during this altercation between the parties, the prisoner at the bar was suddenly assaulted in a violent manner by several antagonists; that one drew a pistol, and by his acts and the acts of his other assailants, he believed and had good reason to believe, from the character of the attack, that his life was in danger or Ms person in great danger of bodily harm, and while under this real and honest belief he fired the fatal shot in defence of his life, or to protect his person from great bodily harm, then the homicide would be excusable as in self-defence, and you should so find by your verdict.”

In another portion of the charge the court had told the jury:

“ If you find from the facts of the case beyond any reasonable doubt that, during an altercation between the parties, the prisoner at the bar was subjected to a very serious injury, such an injury as would provoke a reasonable man to an ungovernable passion, and while under the influence of this irresistible impulse he killed and slayed the deceased, he would be guilty of manslaughter, and you should so find by your verdict.”

An examination of the general charge as a whole leads us to the conviction that the second special charge asked should have been given, and that the defendant is entitled to a new trial.

We take occasion to say that, in our opinion, an instruction which, enumerating a certain evidential state of facts, closes by instructing the jury that if they found such a state of facts to have been established beyond a reasonable doubt, the jury must find the accused “ Guilty,” if allowable, is exceedingly dangerous.

It is hereby ordered, adjudged and decreed that the verdict of the jury, and the judgment of the court thereon, be and the same is hereby annulled, avoided and reversed, and it is now ordered, adjudged and decreed that this cause be remanded to the Criminal District Court from which it came, for further proceedings according to law.


author: McEnery, J.

text:
    No. 12,146.
    G. W. Sentell & Co. vs. A. M. Rives et als.
    The managing partner o£ a commercial partnership has no authority, without the consent of the other members of the partnership, to assume the debt of a third party, and bind the partnership to its payment.
    APPEAL from the Ninth Judicial District Court for the Parish of De Soto. Land, J., First Judicial District, in place of Hall, J., recused.

      Leonard <& Randolph and E. M. Hudson for Plaintiffs, Appellants.

      Wm. Goss for Defendants, Appellees.

      Lee & Liverman for Intervenors, Appellees.
    Argued and submitted May 19, 1896.
    Opinion banded down June 1, 1896.
    Rehearing refused June 25, 1896.
   The opinion of the court was delivered by

McEnery, J.

The plaintiffs sue the defendants, as commercial partners, doing business in the name of the Traders’ Bank of Mansfield, for balance of a stated account. The plaintiffs did a large business with the bank, which was never legally organized, and as consequence of its failure to organize, the defendants are sought to be made liable as partners.

For the history of the organization of the bank and the reasons given for the liability of the subscribers to its stock as commercial partners, we refer to the case of Williams vs. Hewitt, 47 An. 1077.

The defence is that plaintiffs did business with the bank as an incorporated institution, and are estopped from disputing its legal existence and corporate capacity; that there existed a partnership between the bank and the plaintiffs, and, finally, the want of authority in the president of the bank to assume the indebtedness of a third party to plaintiffs, which assumption is the ground of plaintiffs’ action.

In the case of Williams vs. Hewitt, that part of the defence involving the question of estoppel was elaborately discussed, and we find nothing in this case to distinguish it from that one.

The evidence does not satisfy us that the plaintiffs were in any way interested in the bank further than the interest which springs from the anxiety as to its financial condition and its proper management, because of the extensive dealing plaintiffs had with the bank. The bank was plaintiffs’ agent in distributing money to the concerns for the supply of farmers, and the taking by these latter organizations crop liens, and procuring the shipment of cotton upon which advances had been made to plaintiffs.

There was a limited company known as Hewitt & Co. This company owed the plaintiffs. The bank assumed an indebtedness of this company to plaintiffs, amounting to fifty-five thousand seven hundred dollars and forty-seven cents, for which amount the bank gave a check to the firm of Hewitt & Oo., who forwarded the same to plaintiffs, who charged the bank with the amount. This occurred May 29, 1893. There was no opposition made to this transaction, and it seems to have been acquiesced in by the directors.

At this time the bank seems to have been solvent; at least, no action had been taken by the directors to close it. There seems to be no contention as to this assumpsit, but the contention is to the assumption of the balance of the account of Hewitt & Co., amounting to eight thousand and thirty-three dollars and thirty-three cents. Before the assumption of this balance of account, in consequence of the insolvency of the bank, the directors had ordered the bank closed. The president, J. E. Hewitt, who was also the manager of Hewitt & Co., disregarded the order and kept the bank open and assumed the debt. Plaintiffs approved of this disobedience of the order of the directors.

It is claimed by plaintiffs that the president, Hewitt, had authority to create debts against the bank. This authority is found in the bank’s charter, but its proper interpretation means that he shall “ contract debts, sign checks, and all other obligations,” only in the due and proper course of the legitimate transactions of the bank. It confers no power on him to assume a debt of a third party not connected with the banking business, and for which the bank received no consideration. Besides this, if the charter is to be taken as the measure of defendants’ liability, it must be taken in its entirety.

Another section of the charter says that the stockholders shall not be liable for loss or damage incurred by the corporation beyond the unpaid balance of the stock subscribed by them. The plaintiffs were consulted about the organization of the bank, and this charter was submitted to them and they approved of the same.

But, if we eliminate the charter as the articles of association, and consider defendants’ liability as commercial partners simply, we fail to find any authority that permits one partner to assume the debt of a third party and bind the partnership, without the consent of the other members of the association.

No authority was given to the president of the bank by vote of the stock subscribers to assume this debt. It was purely gratuitous on the part of the president. If this last item be eliminated from the account, the defendants owe the plaintiffs nothing. It is urged that the bank furnished the statement to the plaintiffs, and the balance sued for shows the amount due. But the bank had no authority to furnish such a statement with the item of eight thousand and thirty-three dollars and thirty-three cents, which the bank or the stock ■subscribers, who are sued as partners, did not owe.

There were five commissioners appointed to liquidate the affairs •of the bank. They intervened and sued for balance due the bank by plaintiffs, after striking off of the account the above item. The intervention was dismissed. Although called an intervention it was a distinct and separate suit against the plaintiffs, and could only •serve to complicate the issues between plaintiffs and defendants. The plaintiffs had the right to be sued at their domicile on this demand.

Judgment affirmed.


text:
    No. 12,048.
    Mrs. Blanche Choppin et al. vs. Mrs. Rosa Dauphin et als.
    The tomb owner is without right to cause the removal of the remains of the dead transferred from, tlié places of sepulture first selected by the surviving relatives and deposited by him in the tomb under his assurance, accepted by such relatives and on the faith of which they permitted the transfer, that the remains should rest forever in tne tomb.
    APPEAL from the Oivil District Court for the Parish of Orleans. Ellis, J.

      Benjamin Biee Forman for Plaintiffs, Appellees.

      J. F. Poehé and Clegg & Quintero for Defendants, Appellants.
    Argued and submitted March 25, 1896,
    Opinion handed down April 6, 1896.
    Rehearing granted May 4, 1896.
    Argued and submitted on rehearing May 23, 1896.
    Opinion handed down June 22, 1896.
   The opinion of the court was delivered by

Miller, J.

The plaintiffs, the son of the late Dr. Ohoppin and the widow and children of the late Arthur Ohoppin, sue to enjoin the defendants from disturbing the remains of Dr. Choppin, Arthur Choppin and other members of the Ohoppin family. The petition alleges that the bodies of the deceased members of the family, at the request of the late Dr. Maximillian A. Dauphin, were placed in the tomb constructed by him with the desire on his part, communicated to and accepted by petitioners, that the tomb should be the last resting place of these remains, and averring that the defendant, the widow and legatee of Maximillian Dauphin, threaten, to remove the remains, in violation, it is charged, of his obligation and of her duty as his legatee; the petition, besides the injunction to restrain such removal, prays for judgment decreeing the tomb to be forever dedicated to serve as the burial place of the remains interred therein of the deceased members of the family. The answer of Mrs. Dauphin asserts title to the tomb as legatee of her husband; that he never dedicated it for the purpose stated in the petition, denies that plaintiff ever acquired any right to the tomb or “its occupancy” for the purposes of sepulture, and avers that such occupancy was permitted by M. A. Dauphin from kindness to the Choppins, he having married one of the-family; the answer disavows the threats imputed to respondent of removing the remains; avers the tomb is expensive to keep; that she has built a tomb to which the remains of her husband have been transferred, and, desirous of selling the tomb for which she has no use, the answer alleges she made the offer of such sale to plaintiffs, hence it is alleged the injunction issued wrongfully and the prayer is for its dissolution, reserving respondent’s right to damages. From the judgment maintaining the injunction Che defendant appeals.

Our attention is directed in the briefs for the defendant to the objection to ali the testimony offered by plaintiff to show the statements and acts of Maximillian A. Dauphin, importing the obligation on his part that the tomb should be the permanent sepulchre for the remains of the Choppins. The argument of the counsel for the defendant is, that the plaintiffs, asserting an easement or servitude on the tomb or a title to it, can produce no parol proof to support their pretensions. While the petition claims an easement or servitude on the tomb, we must consider all the allegations on which plaintiffs rely. The substantial issue tendered by the petition is that Mrs. Dauphin, by words and conduct, held outto plaintiffs that the remains of their dead should rest forever in this tomb, on the faith of which plaintiffs consented to the removal of the remains from other sepulcheres Dr. Dauphin after this consent effecting that removal and causing to be carved on the tomb the names of the dead along with his own name. After all this, the plaintiffs contend neither Dr. Dauphin or his legatee can require the removal of the remains. We do hot think the question is one of title, hence is not affected by the rule of proof cited by the plaintiffs, but is to be solved by other tests.

We do not appreciate there is any material contention as to the facts. The friendship between Dr. Ohoppin and Dr. Dauphin; the mode of manifesting that friendship chosen by him, of an imposing tomb and his inscription upon it of the names of his friend and óf the deceased members of his family, with that of Dr. Dauphin; the fact that he caused the remains of the deceased, Dr. Ohoppin having died about three years before the tomb was built, the others years before; the avowal of Dr. Dauphin to plaintiff that the tomb was to be devoted to the uses prompted by his affection for the family, and the reliance upon his assurances evinced by the consent of plaintiffs io the transfer of the remains, and that Mr. Dauphin caused their names to be placed with his own on the tomb, are, we think, placed beyond controversy by the record. There is left the legal question so elaborately argued.

We appreciate that servitudes exist only for the benefit of immovable property, or the profit and advantage of the living. Civil Code, Arts. 709, 753, et seq. We do not perceive any basis to sustain any right of plaintiffs in the nature of a servitude of burial in this tomb. We recognize, too, that the title to immovable property in Louisiana must conform to ownership, and its modifications prescribed by the Code, Arts. 490, 492, 533, 636, et seq.; State vs. McDonogh, 8 An. 351; Succession of McCann, 48 An. 145. The title to burial ground admits of none of the modifications established for the advantage of estates or the uses of individuals. The title to this tomb is in the legatees of Dr. Dauphin, as it was in him in his life. McEnery vs. Pargoud, 10 An. 497; Burke vs. Wall, 29 An. 46. The plaintiffs assert'no title to the property. They demand only the injunction to. restrain the removal of the remains. While we recognize the title of the legatee of Dr. Dauphin, the inquiry is whether, consistently with that title, the plaintiffs by the acts of Dr. Dauphin are not entitled to prevent the removal, the subject of discussion.

The disturbance of the remains of the dead except for lawful necessary purposes, is not encouraged. With due regard to the sentiment on that subject as well as public policy, courts have enjoined disinterments and even denied the enforcement of a mortgage upon burial ground. 33 Pennsylvania, 422; 8 Abbott (N. Y.), 159, cited in 12 U. S. Digest, No. 124, and other similar types of authority are to be found in the decisions of the courts of other States. It is needless to dwell on the assurances of Mr. Dauphin and their acceptance by plaintiffs under which their dead were removed by Mr. Dauphin and deposited in his tomb. There was by his words and still more by his conduct, the manifestation of his purpose that the remains of the Ohoppins should have a final resting place in this tomb, and on the faith of that purpose so distinctly avowed, these plaintiffs permitte'd the transfer of the remains of their dead. In our view, after all this Dr. Dauphin could never have made the demand so violative of good faith and repulsive in all respects, as that which this suit supposes was advanced by his legatee. The principle of estoppel so often applied in controversies involving pecuniary rights, will not permit the withdrawal of promises or engagements on which another has acted. It seems to us that the principle can well be applied to this controversy. To disturb the mortal remains of those endeared to us in life sometimes becomes the sad duty of the living. But except in cases of necessity, or for laudable purposes, the sanctity of the grave should be maintained, and the preventive aid of the courts may be invoked for that object. The remains contained in the tomb, the subject of this controversy, having been laid away under the assurances of final repose, shown by this record given by the tomb owner, must, in our opinion, hold good against his heir, as they would have been maintained against the owner in life. While the title to the tomb is in the heir, she is, in our view, concluded by the acts and conduct of Mr. Dauphin from disputing the plaintiffs’ right to require that the tomb shall remain now as designed by him, the sepulchre for the remains now in it of the deceased members of the Ohoppin family.

It is claimed plaintiffs had no right to enjoin. The letter from Dr. Dauphin’s legatee, that caused the injunction, announced her purpose to sell the tomb, offering it first to plaintiffs. The letter implied the exclusive power of the legatee over the tomb, and to sell involved, as the plaintiffs understood and appreciated, the removal of the remains. We think that appreciation was natural. The petition for the injunction asserting the right to the tomb as the supulchre for the remains was met by the answer, not disclaiming the purpose attributed to the heir in the petition, but denying the right asserted by plaintiffs, and insisting that the remains placed in the tomb by the kindness of Dr. Dauphin were there only by sufferance. If, as we maintain, it was competent for the plaintiffs to require that the remains should continue in the tomb, they had the right to enjoin the removal, and, however intended, the letter sent them, in our view, authorized their apprehension of that removal. The issues and discussion of the controversy have required from us a decision of the question on the theory that the removal of the remains was proposed on the one hand and resisted on the other. While we are required by the pleadings and discussion to deal with the case as exhibiting this complexion, it is proper to say that no purpose of this removal was ever entertained by Dr. Dauphin, and any such purpose on the part of his heir has been disclaimed in the argument. We think, however, that the plaintiffs, placing a reasonable interpretation on the letter of the heir, were entitled to the injunction.

It is therefore ordered, adjudged and decreed that the judgment of the lower court be affirmed with costs.

On Application for Rehearing.

The original opinion in this case maintained that cemetery lots did not part with the character of immovable property, because devoted to burial purposes. Under our law whatever its uses, land is immovable. The Oode completely effaces the distinction of “ things holy, sacred and religious.” Civil Code, 452, 456; McEnery vs. Pargoud, 10 An. 497; Burke vs. Wall, 29 An. 46. The opinion, therefore, necessarily recognizes the title of Mrs. Dauphin, the legatee of her husband, to the lots bought by him and left at his death to her.

The opinion affirmed, of course, there could be no servitude, usufruct or other modification of ownership of burial lots. There is no servitude, in the legal sense, established on property for the interment of the dead, and the usufructs of the Oode are for the profit and advantage of the living. There was also the recognition in the opinion of the prohibition in the Oode enforced in our jurisprudence of every species of tenure of property except ownership in its fullest significance, and its modifications carefully prescribed by the Code. Arts. 488, 490 et seq.; 533 et seq.; 646 et seq.; State vs. McDonogh’s Succession, 8 An. 251; Succession of McCann, 48 An. 145.

The court, then, in this case is dealing with lots, title to which is in the defendant with no form of subdivision of ownership vested in plaintiff, or in any, save the defendant. Consistently with her title and the'absolute exclusion by the law of all tenures of property, except those recognized by the Code, the inquiry presented itself how could this court sustain that right the plaintiffs assert to these lots? In what part of the Code is that to find a place? If admitted to the extent asserted, must it not be deemed simply and only of our creation? It is the claim of plaintiffs that Dr. Dauphin, under whose will his widow, the defendant, inherits these lots, by words, letters and conduct quite as expressive as language promised that the tomb he erected on the property should be the final resting place for the remains of his friend, Dr. Choppin, and the remains of the deceased members of the family, as well as for the remains of other members of the connection .when their turn came to die. This right asserted at present and for the-future, is to subsist alongside of the title the Code recognizes to the property. If admitted, the right is purely of judicial creation. The asserted right carries the use of ownership applied to burial lots, but is entirely foreign to our system.

We were therefore thus confronted in our consideration of this case, with the legal title to this property in the defendant, and another species of interest or form of title, claimed to have been brought into existence by the declarations and conduct of Dr. Dauphin in his lifetime, but not within the recognition of the Code. We reached and adhere to the conclusion that.the right, at least to the extent asserted, could not be allowed.

But we found there was a basis consistent with our law on which the plaintiff was entitled to part of the relief sought. In the lifetime of Dr. Dauphin the remains of Dr. Choppin and of the deceased members of the family had been placed in the tomb under the promise on Dr. Dauphin’s part they should remain there. In our view, wholly irrespective of any issue of title, neither Dauphin in life or his legatee after his death could recall that promise and require the removal of remains deposited on the faith of this pledge of final sepulture. The petition attributed to defendant the design of removal of the remains, a purpose never contemplated by Dr. Dauphin and disavowed for his widow in the argument in this court. Still, the plaintiff had issued the injunction on the belief of its necessity, not without reasonable cause, as it appeared to plaintiff. Our purpose was to confine the relief to maintaining the injunction against removing the remains. The decree of the lower court affirmed by us goes beyond the relief proposed in our opinion, and on this re - hearing we are asked to make the decree conform to the opinion. After the additional argument on this application and on the maturest reflection we remain of the conviction that perpetuating the injunction against disturbing the remains now in the tomb must be the limit of the decree.

It is therefore ordered, adjudged and decreed that our former judgment in this case be set aside and annulled, and it is now ordered, adjudged and decreed that the judgment of the lower court, in so far as it enjoins and prohibits the removal from the tomb of the remains of Dr. Ohoppin, Mrs. Eliza Ohoppin, Arthur V. Ohoppin and Amedee Ohoppin, now in the tomb, be affirmed and the injunction decreed to be perpetuated, to that extent: it is further ordered and adjudged that in all other respects the judgment of the lower court be and is hereby avoided, annulled and reversed, and that appellees pay costs of appeal; those of the lower court to be borne by the appellants.


author: Breaux, J.

text:
    No. 12,176.
    The H. B. Claflin Company vs. I. H. Davis.
    Issues decided in a case, unless manifestly erroneous, must control all the subsequent steps in the case.
    A PPEAL from the Second Judicial District Court for the Parish of Bienville. Watkins, J.

      L. K. Watkins, A. H. Leonard and F. O. Thatcher for Plaintiffs, Appellants.

      B. P. Edwards and I. A. Dormon for Defendant, Appellee.

      Argued aud submitted June 5, 1896.
    Opinion handed down June 22, 1896.
    Rehearing refused June 30, 1896.
   The opinion of the court was delivered by

Breaux, J.

The plaintiff, a day after two of defendant’s creditors had obtained writs of attachment, sued out a writ of attachment against defendant, and caused to be re-attached, and to be seized and sold a stock of goods and other property of the defendant.

The attachments were issued under Art. 240, C. P., fourth and fifth clauses.

In one of the first cases of attachment, that is, the case of Winter vs. Davis, the plaintiffs, here, intervened, alleging substantially that Winter’s attachment was fraudulent and collusive, and sued out with the consent and connivance of Davis, aud that the effect was to give an unfair and unjust preference to the former, Winter. The intervenors also denied that Davis was indebted to Winter.

The intervenors asked for a judgment in their petition, avoiding, annulling and setting aside the writ of attachment sued out by the plaintiff Winter, against the defendant, Davis.

Each, Winter and Davis, in a separate answer denied the charge preferred. The defendant in the case (viz., the case of Winter vs. Davis) filed motions to dissolve, on the ground that the affidavit was untrue.

When this motion was taken up for trial, by consent; all the attachment cases were consolidated.

Evidence was heard contradictorily with all the interested parties.

The District Court dissolved the attachment.

The plaintiff in the case of Winter vs. Davis and the plaintiff in the case here took an appeal to this court. The former furnished bond and prosecuted his appeal to this court.

On appeal the judgment of the District Court was affirmed. 48 An. 160.

After it had been affirmed the plaintiff in the case now under consideration obtained another order of appeal, furnished bond and is before this court as appellant.

Here the appellee filed a motion setting forth that the issues involved in this ease were involved in the case of Winter vs. Davis; that the evidence is the same; that as consolidated cases the transcript of the Winter-Davis case, now in the clerk’s office of the court, should be considered as before the court in the present case.

The facts as relate to the attachment being as alleged in this motion, there can be no reasonable objecti m to the motion.

The two transcripts are before us and constitute the complete record of the case.

We pass to the grounds urged by the plaintiff here in support of its attachment. The first is that defendant’s connection with Winter, under the circumstances presented by the record, made strong grounds of themselves for the attachment.

The issue was raised in the decided case of Winter vs. Davis, by the intervention of the plaintiff here; evidence was admitted to prove the alleged collusion between Winter and Davis.

The point was not directly decided in the lower court; it was decided that the other facts appearing of record were not of such a character as to enable the plaintiff to sustain an attachment.

In the case here the judgment of the District Oourt disposed of that issue in that court, and held that the charge of collusion and fraud was unfounded.

The issue raised, although not decided by us, received some attention in our previous opinion.

The evidence did not impress us in the Winter-Davis case as proving the corruption and fraud charged between the attaching creditor and the debtor.

A second examination, after having heard argument in the present case, has not convinced us that the conclusion reached heretofore, but not expressed, on this point, for there was no necessity, was erroneous.

The plaintiff held defendant’s notes for the amount of his claim. The purpose of the advance represented by these notes was stated; not a fact of record suggests the unreality of the transaction; all the evidence sustained the claim. There is no basis supporting the pre-sumption suggested by the plaintiff.

We leave this point (not decided in the Winter case) and take up the other questions.

It devolves upon us first to determine whether they should again be reviewed and whether they should be reversed as erroneous.

It may be that the defendant transgressed business rules in the management of his business. He was a young man when he went into business on his own account. It was his first business venture.

He had, when he opened his store, about four thousand dollars. With this limited amount as a basis he undertook to carry on a large business. The approaching day of payment may have caused uneasiness, followed by some trepidation to save something from the financial misfortune threatening.

To us it seemed that he was actuated by a desire to save the business. The sales were made in due course of trade, and the amounts realized were reinvested in his business. Impressed by these facts we affirmed the judgment of the District Court. The same parties can not be allowed to contest the same matters in another suit.

It has often been announced, and is now well settled, that questions decided on appeal should govern the case in the same court; through all the subsequent phases of the proceedings.

It will seldom be reconsidered or reversed. Wells, res judicata, p. 569. This conclusion is reached; although strictly considered, res judicata is not pleaded.

Not the debtors only, who are inspired by a desire to deliver all their property (the unselfish capable of ceasing to have themselves in mind and even sacrificing themselves in order to meet, as far as possible, all just demands) are free from the process of attachment. These qualities are highly desirable in everything. But are not the only standard. The test is more particularly fraud on the part of the debtor, or the intention to defraud (not found against defendant in our previous decision). We add, that too hasty action on the part of creditors will not always prevent fraud and encourage good faith. If there was any fraud in his case it was concealed, and not brought to light in the first trial.

Here, after having considered only the evidence admitted in the case (contradictorily with the defendant in the former trial), we have found no reason to change the conclusion previously reached.

The attachment having been dissolved, upon final hearing, the defendant claimed damages.

The amounts allowed, $250 fee of attorney and $60 portion of ' wages paid clerks and book-keeper during the time of seizure under the attachment, to operate as credit on principal demand, are reasonable and fair compensation.

This disposes of all the issues. We are firm in the conviction that the judgment should be affirmed.

Judgment affirmed.


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    No. 12,123.
    G. Pascal & Co. vs. C. Numa Folse et als.
    After a decree of separation of property if the husband disposes of and converts to his own use the separate property of his wife, she has a legal mortgage against the property of the husband for reimbursement.
    Where authority has been given to the wife to borrow money by the judge, and she does so and it reaches its proper destination, she will be liable for the amount, notwitstanding no note or mortgage was given to secure the amount.
    A PPEAL from the Twentieth Judicial District Oourt for the Parish of Assumption. Guión, J.

      L. F. Suthon for Plaintiffs, Appellees.

      Howell & Martin for Defendants, Appellants.
    Argued and submitted May 21, 1896.
    Opinion handed down June 1, 1896.
    Judgment amended and rehearing refused June 25, 1896.
   The opinion of the court was delivered by

McEnery, J.

The defendant and her husband owned in indivisión the Pothier plantation, in Assumption parish. They were separate in property. The husband cultivated the plantation on his own account until the year 1890, when he became indebted to the plaintiff in a sum, in round numbers, of five thousand dollars. They declined to give further advances without security. In 1890 the wife was authorized, strictly in accordance with law, to borrow two thousand five hundred dollars to cultivate her half of the plantation. The permission was for her to borrow the money for the purpose of cultivating alone her half, and to grant the necessary mortgage to secure the amount of the advances. It is urged that the mortgage was granted through marital coercion. The testimony does not justify the assertion. The accounts for the whole plantation, which was supplied by plaintiffs, were kept against the husband, as plaintiffs state, as the managing partner or agent of the joint venture of husband and wife. The accounts against the plantation show that the crops of- 1890 were in excess of the advances, and there was to the credit of the plantation the sum of one thousand six hundred and twenty-four dollars and fifteen cents. The note was thus paid and the mortgage given to secure it, of course, satisfied.

In 1891 the wife again appeared before the District Judge to be allowed to borrow money, and to execute the required mortgage to secure the same on her one-half interest in the plantation for that year. Pascal & Co., the plaintiffs, made the advances, but instead of signing a new note and mortgage, the note which had been paid was extended and the mortgage was attempted, by the endorsement, to be kept in force. The note has been paid and satisfied and the mortgage extinguished. It could not thus be revived by the wife, and made to serve the purpose of a new note and a new mortgage under the last order given by the District Judge. There is no analogy in this case to that of Levy vs. Ford, 41 An. 878, and the cases referred to therein. In the latter, the note secured by mortgage had been given as collateral security for a debt which had never been extinguished to the knowledge of the holder, as in the instant case. Here the debt for which the note and mortgage were executed was extinguished.

But there was the authority of the judge for the wife to borrow the money, and if, under this authority, it was borrowed, it matters little whether or not the creditor availed himself of the order, granted to secure the debt by mortgage. It would only be against him in the case of a conflict with other debts secured by mortgage. The evidence shows that supplies were furnished under the authority to borrow, and that they reached their proper destination.

In the year 1886 the husband mortgaged to his wife his half of the Pothier plantation to secure the sum of one thousand eight hundred and forty dollars, the proceeds of certain immovable property belonging to his wife, which he appropriated to his own use. The entire transaction is detailed and set forth in the mortgage. As a conventional obligation between husband, and wife it was null and void, but as a legal mortgage it is valid, if the legal mortgage can exist after a separation of property against the husband in favor of the wife for the appropriation of her separate funds. C. C. 3349. Delesdernier vs. Delesdernier, 45 An. 1365; Burns vs. Thompson, 39 An. 377.

Proceedings were commenced by plaintiffs to foreclose their mortgage on the plantation.

In the case of Ratcliff vs. Folse the plantation was sold under a first mortgage. It realized seven thousand and thirty dollars, and, after paying the debt and costs, there was left in the hands of the sheriff for distribution three thousand four hundred and fifty-six dollars and seventeen cents The second mortgage creditors are now contending for the distribution of this fund.

' Pascal & Oo. claim the entire amount, because of the indebtedness of the husband to them for supplies for his undivided half and for supplies furnished his wife, under and by virtue of the authorization of the judge. For the amount due by the husband the wife claims that her legal mortgage is superior to the mortgage of Pascal & Oo. on his half of the plantation, and that she should be credited with one-half of the amount credited to the place for the crops of 1890.

In case of Succession of Gayle, 27 An. 550, it was held that after a decree of separation of property, which had been executed, no legal mortgage could be created by the conversion by the husband of the wife’s separate property, and that she must look to him as her agent in the management of her property, and that his responsibility springs alone from this capacity. There is no authority cited for the doctrine announced by the court, and we are constrained to say that it is in conflict with the textual provisions of the Code and the policy of our jurisprudence. Art. 3319, Sec. 3, gives a legal mortgage in behalf of the wife for the restitution or reimbursement of her paraphernal property. There is no exception stated. It is granted in unequivocal language, and makes no distinction as to whether there is or not a separation of property. We see no reason why there should be a distinction or difference. The mortgage is given to the wife, because being under the power and dominion of her husband, and her incapacity to contract without his intervention. The mortgage springs from the fact that she is the wife, not because she has had restored to her the administration of her paraphernal effects. This administration she can resume at any time without a judgment of separation, yet it will not be contended, because she has resumed this administration of her separate property, she would lose her mortgage in case the husband should dispose of these effects. The legal mortgage of the wife springs from the same source as the tacit mortgage in favor of minors and interdicts, and this source is their incapacity.

In the marriage contract it can be stipulated that there shall be a separation of property, yet we find that the wife has a legal mortgage on the immovables and a privilege on the movables for the restitution of her dowry, as well as for the replacing of her dotal effects which she .brought at the time of her marriage, and which were alienated by her husband, and this from the time of the celebration of the marriage, and for the restitution of dotal effects acquired during the marriage. C. C. 2376.

The separation of property and dissolution of the community is intended to place the wife in possession of her separate estate so as to rescue from the imprudent management of the husband, and to enable her by judgment to enforce her claims against the husband. It in no-way diminishes the incapacity of the wife, or gives her any of the prileges of a femme sole. She can not alienate hér separate property without the authority of the husband, or that of the judge.

In 1892 the plantation owed plaintiffs seven thousand and seventy-five dollars and twenty-six cents, but of this amount Mrs. Folse owes seven hundred and seventy-four dollars and eighty-five cents, which is obtained by deducting the amount of five thousand one hundred and ten dollars and ninety-nine cents, and four hundred and fourteen dollars and fifty-six cents interest on same individually due by the husband to plaintiffs.

Her half is to be charged with this amount. The husband’s half is to be charged with the amount of her legal mortgage.

The judgment is amended in accordance with this statement, and in other respects affirmed, appellees to pay costs of appeal.


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    No. 12,218.
    State ex rel. Joseph Kennedy vs. Wm. E. Uniacke, Criminal Sheriff for the Parish of Orleans, et al.
    Where a party has been indicted and his counsel suggests his insanity before trial, and a commission is appointed to inquire into his mental condition and reports him to be insane, and the jury returns a verdict accordingly, and the judge of the Criminal District Court remands him to the parish prison, without a commitment to the insane asylum, the judge of the Civil District Court has authority, under Sec. 1768, R. S,, to inquire into the facts and circumstances of the case, and if, in his opinion, he is dangerous to the citizens and the peace of the State, to commit him to the insane asylum of the State.
    jpETITION for Writs of Prohibition and Certiorari.

      James J. McCann for Relator.

      J. Q. Flynn for Respondent.
    Submitted on briefs June 29, 1896.
    Opinion handed down June 30, 1896.
   The opinion of the court was delivered by

McEnery, J.

The relator was under two indictments in the Criminal District Court. Before the causes were fixed .for trial, relator’s counsel filed a motion suggesting the insanity of the accused.

A commission was appointed by the judge of said court to inquire into his mental condition. This commission reported that he was insane. The question of his insanity was submitted to a jury, and they returned a verdict that he was insane, after which he was remanded to the parish prison.

Application w¡as then made to the judge of the Criminal Court, by the person upon whom the accused had made a murderous assault, and for which he was indicted, under Sec. 1768, R. S., to examine into his mental condition, and that if found insane, to commit him to the insane asylum. To this proceeding the relator’s connsel filed a plea to the jurisdiction of the court, and he was again remanded to the parish prison. Application was then made to the Civil District Court, under the same section of the Revised Statutes, for the interdiction of the accused, to which proceeding relator’s counsel again filed a plea to the jurisdiction of the court, which was overruled. A judgment of' interdiction was rendered, and the accused ordered to be caken to the insane asylum.

The relator, through his counsel, applied to this court for writs of certiorari and prohibition, the object of the proceeding being to annul the order of the judge of the Civil District Court.

It is contended by relator that under Sec. 1778, Revised Statutes, the judge of the Criminal District Court was authorized to commit the accused to the insane asylum when he had been acquitted by a jury, or there had been a failure to indict him by the grand jury and he had been discharged and was dangerous to the safety of the citizens or to the peace of the State, and that the Civil District Court has no jurisdiction to make inquiry as to the sanity of the accused, because it would be divesting the Criminal District Court of its jurisdiction over the indictments against the accused. The record does not show that a plea of insanity was entered averring that the accused was insane when he committed the crimes for which he was indicted. In such a case, Sec. 1780, Revised Statutes, would apply. The Criminal District Court does not, under the facts as stated, lose its jurisdiction over the indictments against the accused. If he recovers from the insanity, and if it be a case where the insanity developed after the crimes were committed, the cases against the accused are to be continued until after his recovery, when he can be brought to trial.

The facts, as stated, bring this case directly under the Sec. 1768, Revised Statutes, which says: Whenever it shall be made know to the judge of the District or Parish Court by the petition and oath of any individual that any lunatic or insane person within his district ought to be sent to or confined in the insane asylum of this State, it shall be the duty of said district or parish judge to issue a warrant to bring before him, in chambers, said lunatic or insane person, and after proper inquiry into all the facts and circumstances of the case,” to commit him, if, in his opinion, he ought to be sent to the insane asylum.

The relator’s counsel pleaded his insanity, but objects to his being sent to the insane asylum, urging a want of jurisdiction in both courts to inquire into his insanity for this purpose. Both courts had jurisdiction, and the Criminal District Court having failed to make the necessary commitment, the Civil District Court found a lunatic within its jurisdiction who was dangerous to the community and to the peace of the State, unprovided for, and it was its duty to commit him to the asylum.

The relief prayed for is denied and the rule granted herein dis - charged at relator’s costs.