author: Watkins, J. Blanchard, J.,

text:
    No. 13,215.
    Mrs. M. E. Douglass vs. George Douglass, et als.
    Syllabus.
    The proof disclosing that a married woman conveyed real estate to her husband through the Interposition of a third person and without having received any consideration therefor, the transaction is a fraudulent simulation and violative of a prohibitory' provision of the Civil Code.

      In suela a case, a -deed from the wife to a third person and from such third person to the husband, executed on the same day, before the same witnesses, m the same handwriting, and put on record on the same day, must be viewed, as one transaction, the object of which was to divest the title of the wife and vest it in her husband.
    The husband having died possessed of such a title, his heirs have not an Interest therein which is subject to a judicial mortgage; and a creditor holding such mortgage can not enforce same against the property to the prejudice of the-wife’s claim — no visible change of possession or dominion having taken place in the meanwhile.
    ON APPEAL from the Twenty-Third Judicial District Court for the Parish of Tensas. Tullís, J.

      Snyder & Glinton for the Plaintiff and Appellee.

      A. E. Green for George Douglass et als., Defendants and Appellants..

      Young & Young, and Elam & Bale for Chambers, Roy & Co., in Liquidation, also Defendants and Appellants.
    Argued and submitted June 2, 1899.
    Opinion handed down June 19, 1899.
    Rehearing refused June 30, 1899.
   The opinion of the court was delivered by

Watkins, J.

The case presented for our consideration as set forth in the petition, is one of fraudulent simulation, and the charge is that the property was conveyed from plaintiff to her husband through the interposition of a third person, without any price having been paid therefor.

That said transaction was attended with no change of possession, administration or control; and that same is in open and flagrant violation of a prohibitory provision of the law.

The demand of the plaintiff is resisted by the principal defendant, Chambers, Roy & Co., in liquidation, on the ground, that James S. Douglass, acquired the property from J. 33. Guthrie, on the 8th of January, 1881, as appears from an act of sale of that date, duly recorded ; that some years afterward he died possessed of said property, and it was inherited by his heirs, one of whonj. is George Douglass; and that subsequently said defendant obtained a personal judgment-against the aforesaid heir and caused same to- be recorded, so as to operate as a judicial mortgage, upon all his. real property.

The claim urged by said defendant is, that the effect of the aforesaid registry is to bind the undivided share or interest of the said heir' in said property, irrespective of the simulation charged by the plantiff,because it is a third and innocent party not charged with notice of, and not bound by any secret equities, or latent ambiguities in the-transactions between the plaintiff and her husband.

On these issues a trial was had, and a judgment rendered in favor of the plaintiff and against the defendant, and the latter has appealed therefrom.

The judgment, in terms, decreed the sales from the plaintiff to Guthrie and from Guthrie to James S. Douglass, the husband of plaintiff, to have been simulated and absolutely null and void, ab initio; and recognized the plaintiff as owner and in possession of the-property.

A brief statement of plaintiff’s case is as follows, viz:

That she was the wife and now the widow of James S. Douglass, he having died on the 16th of April, 1890, leaving several children as issue of their marriage — there being seven majors, one of whom is George, and three minors.

She represents, that by a proper judicial decree, bearing date November 17th, 1566, she was adjudged separate in property from her husband, and that the community of acquets and gains theretofore existing between them be dissolved — she being, also, decreed the separate-administration of her paraphernal property.

That on the 13th of April, 1868, she purchased from James II. Gillespie, by notarial act, duly recorded, as her separate and paraphernal property, a tract of land situated in the parish of Tensas, known and designated therein as Lake plantation, and containing -nine hundred and fifty-five (955) acres, together with all buildings and improve-ments thereon.

That she entered into possession thereof, and has ever s,ince continr ued in possession of the whole of said plantation and property.

She represents, that, being desirous of disposing of said property,, she caused an investigation to be made of her title thereto, within the last twelve months, and that it disclosed “an apparent cloud upon her title,” which is-fully recited as follows, viz:

That on the 7th of January, 1881, a petition was presented by Messrs. Halsey and Newell to the district judge, in which they represented themselves as her attorneys, praying that she be authorized to sell a portion of the Lake plantation, containing about five hundred and thirty (530) acres; and that said judge granted said order accordingly and endorsed same upon the petition.

That on the day following, the 8th of January, 1881, said attorneys prepared a deed from the petitioner to John B. Guthrie, of Tensas parish, for all of said last described land, for the price of eight hundred dollars ($800.00), in cash; and on the same day, same attorneys prepared a deed to the same land from John B. Guthrie to James S. Douglass, petitioner’s husband, and for a like consideration of eight hundred dollars in cash.

That said deeds are in the same handwriting, attested by the same witnesses, and were simultaneously executed — one immediately after .the other.

That the two deeds were filed for record on the same date, January 10th, 1881.

She then alleges that she was never divested of title to said property thereby, nor of the possession or control of same; but that, on the contrary, “she has remained in the possession, control and management of the same to the present day.”

That she neither employed nor authorized said attorneys to apply to the judge for the alleged authorization to sell said property; and that she had neither knowledge or notice of their employment for her.

“That while petitioner signed the pretended deed to said John B. “Guthrie, she did so in error of its contents, by the exercise of “ marital influence, and under the belief and impression that it appertained to some ordinary transaction incidental to her plantation affairs.” ■

She avers, “that she did not receive the said sum of eight hundred dollars ($800.00) from the said J. B. Guthrie .as the price of the said '“property, nor any consideration whatever;” anid she further- avers that said James S. Douglass did not pay the said Guthrie the said “eight hundred dollars, nor any other sum whatever, for the said “property.”

She represents, that the real value of said property at the time of said pretended sale, and at this time-is ,fully eight thousand dollars.

Hence, she represents that the said two pretended sales — the one from petitioner to J. B. Guthrie, and that from J. B. Guthrie to J. S. Douglass, “are and were absolute nullities, being simulated, and made ■“ for the purpose of transferring the title of her said property to her “ husband, through J. B. Guthrie, as a person interposed.”

“That the transaction was, in fact, a sale from the wife to the “husband not embraced within the exceptions in 0. 0., Art. 2446, re“pugnant and contrary to law, and in contravention of 0. 0., Art. “ 1790.”

She represents that she is desirous of and expects to sell her entire plantation, and that in order to do so, she is obliged to have the afore.said cloud removed from her title.

She represents that Chambers, Roy & Co., in liquidation, is a necessary party to this suit, because of it having caused said judgment ¡against George Douglass for $990.30, to be recorded as a judicial mortgage, upon the theory that he had an undivided interest or share in the .aforesaid plantation, as an heir of his deceased father, James S. Douglass; and further, because said company has instituted, and is now proceeding against petitioner' as third possessor by an hypothecary action for the enforcement of said alleged judicial mortgage on said •supposed interest.

The heirs of James S. Douglass, minors, as well as majors, were made parties defendant, as well as Chambers, Roy & Co., in liquidation, and judgment having gone against them, all have united in one .aiDpeal.

The answer of the heirs is a general denial; that of Chambers, Roy ■ & Co., in liquidation, is, that Janies S. Douglass acquired the aforesaid property by the aforesaid deed, and at his death a fee simple title vested in his heirs, George Douglass, amongst the number; and that by the registry of its judgment it acquired a judicial mortgage thereon. The company urges the deed since made by the major heirs as an -estoppel.

It then pleads the prescription of five years against any demand of the plaintiff to annul said title; and alleges the invalidity of the judgment of separation between the plaintiff and her said husband, and denies that plaintiff acquired said property on her own account as paraphernal property.

In this court the déféndánt pleads the additional prescription of one year against any demand to annul the judgment of the court authoriz-ing Mrs. Douglass to sell the property in contest herein.

Necessarily, the pleas of prescription must be first disposed of.

I.

The plea of prescription of one year can not prevail, as it is not applicable to the case before the court.

The ex parte order of the judge, granting a simple authorization to a married woman to sell her separate property in default of an authorization by the husband, is in no sense a judgment, and there is in the-petition no allegation, and in her prayer no demand for its annulment.

All that is alleged on that score is, that the attorneys by whom the petition was prepared and presented to the judge, were not employed or authorized to represent her.

This plea is untenable.

II.

The defendants’ plea of five years’ prescription is directed against plaintiff’s action as one to annul a sale--James S. Douglass, husband of plaintiff, having died in April, 1891, and her suit having been instituted in the year 1899.

The provision of the law upon which defendants rely is, that an action “for the nullity or recission of contracts,” is prescribed by five years. R. C. C., 3542.

On the other hand, plaintiff’s counsel deny its applicability, because this is essentially a suit to have a simulated sale decreed such, and, therefore, void ah initio, and not in any sense an action to annul a contract.

That this is not a revocatory action, but one en declaration de simulation.

Plaintiff’s counsel cite the case of Brownson vs. Weeks, 47 Ann., 1042, as supporting defendant’s plea of prescription.

It appears from the opinion in that case, that the plaintiff’s attack on defendant’s title was based upon the claim that the note and mortgage which she executed in favor of Mrs. Stouff were null and void, because the debt was not hers, but that of her husband, for whom she had become security, in violation of Revised Civil Code 2398, hut she record disclosed that the defendant, Weeks, was a purchaser in good faith from the plaintiff, at public sale, and he plead the prescription of five years.

In examining and deciding that question the court held, that, the-sale and mortgage were not absolute nullities, citing the case of Lafitte vs. Delogny, 33 Ann,. 665, and then said:

“If the contract has been executed, silence by thq wife after the husband’s death during the prescriptive period, would be an implied ratification.”

It maintained the plea of prescription under Civil Code, 2221, and Mulford vs. Wimbush, 2 Ann., 443. In the principal case, the plaintiff ■executed a note, and secured same by mortgage upon her separate property, and the object of her suit was to have it declared null, on the ground that it was to secure a debt of her husband.

This mortgage note was executed in favor of Mrs. Stouff, and she .transferred it to Mrs. Brownson, who foreclosed the mortgage and purchased the property, and conveyed same to the defendant, Weeks.

The court below sustained the plea of five years’ prescription, and •our opinion affirmed its judgment, on the ground that such contract •was not an absolute nullity.-

. It is sufficient to say that the case of Rouyer vs. Carroll, 47 Ann., 763, cited by counsel for defendant, does not apply to the prescription urged herein, as it related to the “Informalities connected with, or •growing out of any public sale,” which are prescribed against by five years under Revised Civil Code, 3543.

• In our opinion those authorities do not support the defendants’ plea, .and it is, therefore, overruled.

III.

On tiie Merits.

The theory of plaintiff’s suit is two-fold, (1), that the alleged sale from petitioner to Douglass, and from Douglass to her husband, on -the same day, and in the presence of the same witnesses, was, essentially, a sale from petitioner to her husband, and in violation of the prohibitory terms of the Revised Civil Code 2446, which prohibits husband and wife from contracting any sale between them, except in certain specified eases; (2), that the two pretended sales aforesaid having been- made without any consideration, same are simulations .and void per se.

In support of the former proposition, she makes reference to the fact that the pretended sale to her husband did not purport,to be (1) in payment of his rights; (2) that it did not purport to be a sale by fhe husband to his wife at all; (3) and that it does not purport to be a transfer from the wife to the husband in payment'of a sum promised as dowry: and in support of the second proposition, she cites the provisions of the code to the effect that “in all eases where the thing sold remains in the possession of the seller, because he has reserved to himself the usufruct, or retains possession by precarious title, there is reason to presume that the sale is simulated, and with respect to third persons, the parties must produce proof that they are acting in good faith and establish the reality of the sale.” R. C. C., 2430.

At the incipiency of the trial plaintiff offered parol testimony for the purpose of substantiating her averments, and to that offering the-defendants’ counsel made the following objections:

(1) That defendants can not be affected by any evidence as to the deed of plaintiff to J. B. Guthrie, same being duly recorded, the defendants not having knowledge of the alleged nullities, and being third persons to the deed, and that the plaintiff is, therefore, estopped from disputing the correctness of the same; (2) no parol evidence can be admitted to prove simulation, nor can same affect defendant, who are innocent third persons; (3) that parol evidence can not be admitted to show that J. B. Guthrie was an interposed person between the plaintiff and her husband; (4) and no parol evidence can be received to change, vary, alter or contradict the recitals of the aforesaid deeds; (5) that no parol evidence can be introduced to prove ownership to' real estate.

The aforesaid objections were overruled, and the defendants’ counsel reserved a bill of exception.

It was agreed between counsel that the aforesaid objections and exceptions should apply to all parol testimony in the record.

Counsel for the defendant cites in support of his exception, the case of Gaudet vs. Dumoulin, 49 Ann., 984. In that case, the object of the suit was to compel the plaintiff to comply with the terms of a sale at auction, upon the ground that he, and not Theodore Gaudet, was the real adjudieatee of the property — the property having been adjudicated, as a fact, to Theodore Gaudet. The claim was made that Theodore Gaudet simply lent the use of his name to his brother, Dr. 0. A. Gaudet, and that the latter was the undisclosed actual purchaser ; and that fact was attempted to be shown by parol evidence.

Evidence of that character was permitted to be received by the lower court over the defendant’s objection, and that ruling was the subject of controversy in this court.

This court said, in passing on the question: “It is not claimed or pretended here that there were any fiduciary relations between Theodore Gaudet and Mrs. Louise Dumoulin, which would'entitle the latter to take and hold the property herself, as the real adjudieatee. She-does not claim ownership of the property under the adjudication.

“We think the rights of parties in this case are controlled by Hackenburg vs. Gartakamp, 30 Ann., 898; Perrault vs. Perrault, 32 Ann., 636; Heirs of Dohan vs. Dohan, 42nd Ann., 449; Sagory vs. Bouny, 42nd Ann., 618, and Whelage vs. Lotz, 44 Ann., 661.”

On those authqrities we held that parol proof was inadmissible, and reversed the judgment appealed from.

The theory of the cited cases is, that the contract of mandate for the purchase of real estate can not he proved by parol evidence, even when fraud in the alleged agent is set up.

All of those cases dealt with real contracts, and not with simulated , contracts, as the one in controversy is alleged to have been.

In Heirs of Dohan vs. Dohan, 42nd Ann., 449, it was held, that parol proof is not admissible for the purpose of proving that a third person, was interposed to receive title to real estate instead of the intended vendee.

The court say in that case, that the simple claim is, that “Harris bought, as agent of the mother, and took the title in her name, for her benefit.”

The same statement is made of the case of Barbin vs. Gaspard, 15th Ann., 540.

The same is true of Fuselier vs. Fuselier, 5th Ann., 132; and Heiss vs. Cronan, 12th Ann., 213; and Linton vs. Wikoff, 12th Ann., 878. The same doctrine was reiterated in the case of McKenzie vs. Bacon, 40 Ann., 157.

That rule is undoubted, and has been maintained in many cases where real contracts were sought to be avoided by the introduction of parol proof.

Counsel for defendant cites the case of Thomson vs. Whitbeck, 47 Ann., 49, as sustaining his view as to the non-admissibility of parol testimony in support of a wife’s allegation of simulation; but we have carefully examined and considered that case, and failed to find in it any reference to that question. It may have some pertinency to the merits of the case when same are under consideration.

■ In favor of plaintiff’s right to introduce parol evidence in support of .the allegations of 'her petition, her counsel cites and relies upon Vicknair vs. Trosclair, 45 Ann, 373, and therefrom we- make the following ¿quotation, to-wit: - -

■"The wife sued for property which she says was wrongfully sold by 'her husband. There is no attempt made to contradict the fact of the execution of the authentic acts. Their nullity is urged. It is well settled that in suits of this character, the doctrine of estoppel, as usually understood, does not apply to the wife; that she can resort to parol testimony to show the real character of the transaction, and that in attacking authentic acts, she is not confined to counter letters and interrogatories on facts and articles.

“Harrang vs. Blanc, 34 Ann., 632; Moore & Coleman vs. Rash, 30 Ann., 1157; Chaffe vs. Oliver, 33rd Ann., 1010.

“The effect of the attack on the authentic act by the wife is that it destroys the title held adversely to her and restores her to her just Tights; reinstating title in her is the object sought by the exception in her favor. It springs from the necessity of the case, the wife being .under the presumed control and dominion of her husband.

"To deny the exception in her favor would be to deny her the benefit -of the provisions of the law enacted to protect her interest in preventing imposition upon her.”

• In Ohaffe vs. Oliver, 33 Ann., 1008, Mr. Justice Fenner, in speaking for the court, made the following very just observations, with regard to the rule of admissibility of parol evidence in such cases as the instant one, to-wit:

•“It is settled, to epitomize our jurisprudence, that such transactions -can not be sustained; that the wife and her- legal representatives can not be bound thereby; that she may attack and annul them, or may defend against them; that she is not estopped by her own acts in aid of the transactions which are presumed to be done under marital influence; that whatever the form of the contract, its true character may be inquired into and laid bare; and that, in her assault upon even •authentic acts, she is not confined to counter letters and interrogatories on facts and articles, but may resort to- parol evidence to- establish their true nature and purpose. See on these different points, 14 Ann., 169; 16 Ann., 11; 5 Ann., 572; 2 Ann., 756; 12 Ann., 852; 12 Rob., 84; 1 Ann., 429; 4 Rob., 508.”

We consider it entirely unnecessary to carry this investigation further, as we think the doctrine is well settled, that when a controversy involving the question of a simulated sale from a wife to her husband is presented for consideration, parol evidence is undoubtedly admissible, We do not think this is a matter of .serious controversy.

The evidence discloses the following pertinent facts:

That a judgment was rendered on the 11th of November, 1866,. decreeing a separation of property between Mrs. M. B. Douglass, wife, vs. James S. Douglass, husband, and also for a sum of $2000,00 in money; and that said money judgment was regularly executed.

That James M. Gillespie executed to Mrs. M. B. Douglass a deed, bearing date 13th of April, 1868, to the Lake plantation, which was filed and recorded; and it was therein stated that the property was purchased with her separate paraphernal funds, and that the same was to be her paraphernal property.

One witness states that of the 530 acres of land embraced in this suit, about 200 were cleared and in cultivation, and that the whole of the Lake plantation is worth from thirty to forty dollars per acre, and could not be purchased at that price. The testimony discloses that Mrs. Douglass and her husband resided upon the Lake plantation from the time of its acquisition until 1890, when he died. That all of her children were born on that place, and that all lived thereon as one family.

That, during the lifetime of her husband, James S. Douglass, he had the management and superintendence of her business and her plantation; and after his death her son, George Douglass, exercised like control and management for her. That she and her family are residing on said plantation at this time.

It further shows, that neither of the children claimed any interest in the property at any time; that George Douglass states that he is 33 years old, and has always lived upon the plantation with his mother; that he has no interest whatever in the property in controversy; always thought his mother owned it. Says, “he never questioned her title and always thought it good.”

“Was much surprised to learn that there was a flaw in her title.”

That since his father’s death, he has had the management of his mother’s business.

It appears that all parties who figured in these transactions are dead, with the exception of Judge Wade H. Hough, who resides in a parish in the vicinity of Tensas parish; and, that, while the suit was actually filed a few days subsequent to the death of J. D. Newell, a member of the firm of Halsey & Nowell, attorneys, yet it had been prepared some time previous to 'his death.

The petition which said attorneys prepared in the name of the-plaintiff, simply recites, that it was her desire 'to sell a part of her plantation, and that she wished to procure the judge’s authorization, because her husband had declined to authorize the sale.

The order is in these words:

“The foregoing petition considered, it is ordered that Mrs. Mary A. Rollins, wife of James S. Douglass, be authorized to sell the property herein described.

“Done and signed this 7th day of January, 1881.

(Signed)

WADE H. HOUGH,

“Judge Ninth District.”

The deed under private signature from Mary 33. Rollins to J. B. Guthrie bears date, January 8, 1881, and purports to convey the property described in said petition, -for the ostensible price of $800 in cash; and the private signature deed of same date, purports to convey the same property from J. B. Guthrie to James S. Douglass, and for a like consideration.

Both of said deeds were duly recorded soon after their date.

The statement of the plaintiff is, that she had scarcely any acquaintance with Mr. Halsey, of the firm of Halsey & Newell, but was-well acquainted with Mr. Stokes Newell, the other member pf the firm. That she had no knowledge of the petition or the order of the judge,, authorizing her to sell the property, and has no recollection of ever, having seen it.

That she never had any conversation with either Halsey or Newell in reference to it. That if any one gave them authority, it must-have been her husband. He must have conducted all the proceedings leading up to the execution of the documents A, B, and C, in evidence. She states that she has not the slightest recollection of the transaction, or of the execution of the documents. That it must have been at -her-husband’s request; he must have requested her to sign the act. She-states that she certainly would not have, knowingly and intentionally,, sold for $800, property which, at that time, was worth $7,000.00. She,states that at the time of the sale, Dr. Guthrie had only recently moved' to the parish of Tensas, and consequently, her acquaintance with him was limited.

That prior to the sale to Douglass, she had no conversation, negotiation, or transaction with him in reference thereto, and had authorized no one to make any for her. She states that up to the death of her husband, he managed her business for her; and since tiiat time-she has had the exclusive control of her plantation.

That, after the execution of said deeds, no change of the control,, management or administration took place in reference to the property-now in contest.

That the first knowledge she had of these documents, was in 1898,. when she accepted an offer of $25,000 for the property, and had an investigation of title made; then, for the first time, the said deeds were discovered and brought to her attention.

She states that there was no consideration ever paid to her for said property, at any time, nor to any one for her.

Judgment was rendered in the suit of Chambers, Roy & Co., in liquidation, against George Douglass, the defendant, for $990.63, on the 19th day of November, 1897; and same was, at once, recorded as a judicial mortgage.

No witnesses were introduced on the part of the defendants, and' their reliance seems to have been upon cross-interrogatories propounded to the plaintiff and George Douglass. Consequently, we are not advised of the character of the indebtedness upon which the Judgment of Chambers, Roy & Co., in liquidation, was founded.

There is nothing in the record to show that they had any knowledge of the situation of the Lake plantation, or of its management.

There is nothing to show what was the character of the business of Chambers, Roy & Go., in liquidation, nor what their relations with George Douglass were. Hence, we do not know and can not assume-that said indebtedness was contracted upon the faith of George-Douglass having an interest in said property.

The only fact we have before us is, that they recovered the judgment in 1897, and recorded it in the parish of Tensas, whore the property in controversy is situated.

But, we gather from the testimony that Mrs. Douglass desired to obtain a loan of money from some mortgage company upon the-property, and that resulted in an investigation of the title; and this-investigation disclosed the existence of the deed from the plaintiff to-Guthrie, and from Guthrie to her husband, which brought about this litigation.

Whether this discovery superinduced the action of Chambers, Roy & Co., in liquidation, in instituting their suit against George Douglass, we are not prepared to say from the evidence; but it does appear that same immediately followed the discovery being made.

On the evidence related, our conclusion is, that the plaintiff has made out her cash completely, and has established by a clear preponderance of proof, that the deed from herself to Guthrie, and that from Guthrie to her husband, were wholly without consideration.

And not only so, that there was no change of possession, dominion or control of the property afterwards; but that she and her family continued to reside on the plantation and to operate and control the same, just as she had done ever since its acquisition.

There is no proof in the record which in any wise tends to militate against her claim that the Lake plantation was her separate paraphernal property; nor that the judgment of separation of property between herself and husband was either irregular or invalid.

Not one of the seven major heirs of James S. Douglass makes any claim to the property, but, on the contrary, have always regarded their mother’s title as perfect, and disavow any interest in it.

But, notwithstanding all this, the principal question to be decided is, whether Chambers, Roy & Co., in liquidation, have a judicial mortgage on the undivided interest of George Douglass which can be enforced against the property, without regard to the established simulation of the title of their father.

The contention of counsel for Chambers, Roy & Co., in liquidation:, is, that it is a third and innocent party therein, in no way bound or affected by the secret equities and latent ambiguities in the title of James S. Douglass; but that the registry of its judgment, by mere operation of law, operates as a judicial mortgage upon the apparent interest of its debtor therein, notwithstanding the actual simulation of its ancestor’s title thereto.

In support of that proposition he cites the case of Lester vs. Connelly, 46 Ann., 340.

In that case the wife separated in property, sold her property, partly upon terms of credit, represented by negotiable promissory notes secured by mortgage and vendor’s lion thereupon; and our opinion holds that she could not have a nullity of the transaction declared to the prejudice of third and innocent holders of said notes, before maturity.

In support of that proposition, the following cases were cited: Chaffe vs. Oliver, 33 Ann., 1008; Schepp vs. Smith, 33 Ann., 1; Succession of Forstall, 39 Ann., 1052; Bank vs. Flathers, 45 Ann., 75; Vicknair vs. Trosclair, 45 Ann., 373.

In Broussard vs. Broussard, 45 Ann., 1085, it was- held, that if a party purchased property on the faith of the apparent validity of the title placed on record by the plaintiff without knowledge of the real character of the transaction, his title will be protected against the demand of the wife.

It was further held, that there was no distinction in principle between the purchaser of property and the third holder of separate mortgage notes before maturity.

Same rule is well settled in Thompson vs. Whitbeck, 47 Ann., 49, from which we’ make the following extract:

“Nothing is better settled than the validity, as against the real owner, of sales and mortgages by those to whom the owner has conveyed title, if the purchasers and mortgagees are in good faith acquiring their rights on the faith óf the recorded title.

“The principle is extended to sales by married women, notwithstanding all the protection thrown around their contracts.”

In that ease the wife, aided by her husband, sold the property to Eord, and he borrowed money from the plaintiff upon the faith of their notes and mortgage; and our opinion, held, as in other cases, that the wife could not revoke the sale to Eord, on account of the latent defects in the title, to the prejudice of the holder of the mortgage notes before maturity.

In Chaffe vs. Oliver, 33 Ann., 1008, the underlying principle involved was thus stated, to-wit:

“Of course, these doctrines have their limitations, when they involve the rights of innocent third persons, who have acted in good faith upon 'the apparent validity of such transactions.”

But in our opinion, these doctrines have no hearing upon the question now under consideration.

They relate exclusively to contracts of sale or conventional mortgage upon the faith of which some value has been predicated, dr money loaned; in other words, on the faith of which some innocent third person has acted.

Under such circumstances, the law considers it inequitable to allow the rights of such third person to he prejudiced; doubtless,in consideration of the equitable maxim that if one of two innocent persoris .must suffer, the loss must be borne by the one whose act primarily .superinduced it.

In the instant ease, there is no evidence tending to show that Chambers, Roy & Oo. in Liquidation gave to George Douglass credit on account of his supposed interest in the property in suit; nor that the relations between them of creditor and debtor were brought about on account of any such supposed interest therein. Nor that it had any knowledge of his having had any such supposed interest in ft.

Notwithstanding it was duly cited to answer the allegations of fraud .and simulation which the plaintiff preferred against the title of James S. Douglass, and joined all his heirs as its co-defendant therein, George Douglass among the number, not a single witness was interrogated by the company; and not one was interrogated by it under ■commission.

All of the members of the company remained silent, and the statements of George Douglass and his mother remain uneontradicted.

The company could have been easily advised of the actual state of •.the title of George Douglass Before it gave him credit, if in fact it was upon the faith of it it intended to act; or, at least, by having made an investigation of the conveyance records of the parish there ■could have disclosed the state of facts which is presented in the •record before us, and any further trouble or expense obviated.

Not having done so, their alleged equitable estoppel fails them altogether.

In Layman vs. Vicknair, 47 Ann., at page 686, this, court said:

“In looking up titles and mortgages parties are held to examine act by act, mortgage by mortgage, and not to place any blind faith in references to books, numbers and papers, much less to the mere ipse dixit of a notary.

“A copy of the act of sale last mentioned being in the record, we have examined the sale (as it was the duty of all parties relying ex•clusively ‘on the faith of the public records’ as the ground for maintaining their rights to have examined it), and in this "act from Na-quin to the husband we find it declared that, the property then being conveyed was ‘the same property acquired that day before the undersigned notary of Mrs. Felix Lasseigne.’ The record would, therefore, 'have disclosed the fact that upon the same day, before the same notary, and before the same witnesses, 'the property which1 ostensibly passed from the wife to Naquin for cash, ostensibly passed at once from Naquin to the husband.

“A record showing such facts was not of such a character as to form tlio basis of a claim by any one who dealt with the husband or with Trosclair (the vendee from the husband) that he had been deceived into contracting with them through the condition of the public record, and that ‘his mortgage rights could not be defeated by secret equities between the original parties of which neither the act nor the public records afforded any notice or means of information.’

“We are of the opinion that when the records show on their face, as it did in this instance, that the property once belonged to the wife, and that when it passed ostensibly from her it went afterward into the apparent ownership of the husband, any one looking at the acts would have been or should have been, at once placed on his guard as to the reality and good faith of the transactions.”-

In Securities Co. vs. Talbert, 49th Ann., at 1402, this court said:

“We regard the two acts before Ford as parts of one and ttie same transaction and think they should be read and taken together. * * * We think the parties can take nothing by separating the two acts; their connection is visible and their separation was more likely, as we have said, to have led up to the wife being taken at a disadvantage than had one single act been resorted to.”

The provisions of law governing judicial mortgages is important in this connection, as they declare, that “the judicial mortgage may be enforced against all the immovables which the debtor actually owns, or may subsequently acquire.”

Revised Civil Code, 3328 (3296).

In Voorhies vs. DeBlanc 12 Ann., 864, the court in construing the aforesaid article said, that an entire succession, disregarding the elements which enter into its composition, is-not an object susceptible of mortgage.

A judicial mortgage will not attach to an'immovable action as distinguished from the property which is the subject of the action; nor to the interest of the debtor in the movables, slaves and immovables which composed the active mass of the succession falling to him as heir.

“We, therefore, conclude,” say the court, “that ‘an action for the “ recovery of an immovable estate or an entire succession’, although “ by legal intendment considered an incorporeal immovable, is not “ susceptible oí mortgage.

“Still less do we think that an entire succession, disregarding the “ elements which enter into its composition, can be mortgaged.”

The proposition we have under consideration in this case is, that Chambers, Roy & Co., in Liquidation, acquired a judicial mortgage-upon the unliquidated interest of George Douglass in the succession of his father, in contradiction of the statement of the court in that case.

In Broussard vs. Sheriff, 44th Ann., 880, this court expressed the following view upon the identical question under consideration in the following words:

“It is quite true as a matter of equity — and this court has repeatedly “ maintained the principle — that in case a party in possession under “ a recorded title executes a special mortgage thereon in favor of a “ third and innocent mortgagee, who advances money upon it, neither “he nor his vendor can successfully attack and defeat it, on making “proof of secret equities and latent ambiguities in the title; but we “ are not aware of this principle of equity having been extended so as “ to embrace a judicial mortgagee whose rights arise by simple opera- “ tion of law.”

Again:

“But, in any event, this principle is without application when the “ mortgagor is out of possession of the property mortgaged, as in this “case. Hunter vs. Buckner, 29 Ann., 604.”

Applying the principles of that case to the instant one. we consider it exactly appropriate, as the proof in this case discloses that George-Douglass, the alleged judicial mortgagor, was not in possession at tno •time of the registry of the judgment of Chambers, Roy & Co., in Liquidation.

In Mallard vs. Carpenter, 6 Ann., 397, it was held, that a judicial mortgage can not affect slaves which are not attached to the plantation at the time of its registry.

Counsel for the defendant company claim to have found two decided cases in opposition to these views.

One of those is Stockton vs. Craddock, 4th Ann., 232, which was a case of attachment that was resisted on the ground that the debtor had no title, and the court said: ' '

“We think there is no evidence charging the plaintiff with notice of' the character of this title, and the matter is, therefore, reduced to a naked question of law.”

The court then announced the principle that “where a fraudulent “ vendee of slaves, under a title valid in point of form and having the appearance of verity and good faith ou its face, .mortgages them to “ an antecedent creditor, who is ignorant of the fraud, his right will “ not be affected by the fraud between the original parties to the sale.”

Another is Robertson vs. Wood, 5 Ann., 197. In that case, suit was brought to enforce a. judicial mortgage upon a tract of land resulting from the registry of a judgment against one Rowley, who had entered the land in his own name, and thereafter mortgaged same by authentic act, and subsequently sold same to one Wood under whom the other defendants claim.

Under these circumstances, the court held that proof tending show that Wood was a party who had really entered the land, and not: Rowley, was inadmissible to effect the rights of the judicial mortgage creditor.

The foregoing statement of those two cases is sufficient to show their total inapplicability to the question under consideration.

The former case is controlled by the principles announced in Thompson vs. Whitbeck, cited supra and analyzed, as it was predicated upon n conventional mortgage.

TlTe latter case is controlled by the casos of Perrault, 32nd Ann., 636, and Gartskamp, 30 Ann., 898, above cited, which are to the effect that parol testimony is admissible for the purpose of showing that the party to the title was not the real owner in a suit whore there is no charge of simulation or other absolute nullities. The last case cited involved no such question.

The ease of Jones vs. Jones, 51 Ann., 636, 25 So. Rep., 368, is identical iri principle with Thompson vs. Whitbeck — Mrs. Jones having contracted a loan of thirteen thousand dollars in favor of the Union Mortgage Banking and Trust Company, limited — and our opinion said: “It can not he held to have any force or effect as against the mortgage company, .who acted on the faith of the public records which showed title in Mrs. Jones alone.”

In our opinion, the view expressed in the recent case of Succession of Manson, 51 Ann., 130, 25 So. Rep., 689, is conclusive, and comes to the support of the opinion we expressed in Broussard vs. Sheriff, supra.

In that case we said:

“The effect of the mere registry would not ¡have been so potent as to vest in her a mortgage,, when in point of fact the property had never belonged to .the co-tutor; and he not only had never assumed ownership in it, but had ab initio recpgnized the property as belonging to-the bank.”

In Kern vs. Day, 45th Ann., 71, this court held, that an attaching creditor of one who appears upon the books of a corporation as registered owner of shares of stock, can not hold the stock against the true equitable owner who holds the certificate of stock duly endorsed by the debtor; and no estoppel arises to prevent the true owner from asserting his title. His permitting the debtor to appear as holder on the books of the corporation, did not invest the latter with such indicia of ownership as could prejudice third persons.

That ease was decided not to be dissimilar in principle to that maintained in Bank vs. Williams, 43rd Ann., 422, in which case we said of the claim of the creditor of a registered owner of a vessel who had seized it and attempted to hold it against the true and equitable owner, to-wit :

“It is claimed, however, that, as attaching creditors, they have acquired rights superior to those of their debtor, and can maintain his title, though he himself could not.

“This is contrary to the general principles of attachment, which give to the attaching creditor no higher or better right than his debtor had to the property attached.”

Pitot vs. Johnson, 33rd Ann., 1286; Factors’ Insurance vs. Dock Company, 31st Ann., 149; Smith vs. Slaughter House Company, 30 Ann., 1378.

This analysis of authority in our opinion demonstrates the incorrectness of defendant’s supposition that its judicial mortgage holds the property in controversy within its grasp, despite the charge and proof of simulation.

We are of the opinion that its demand in this respect was correctly disposed of in the lower court.

IV.

The remaining question for consideration, is the effect of the act of relinquishment which was executed by George Douglass and his brothers and sisters of age, on the 23rd day of July, 1898, in favor of their mother, the plaintiff.

Defendant’s counsel earnestly press upon our attention, that effect should be given to that instrument as a complete estoppel against the plaintiff. That document is one under private signature, and purports to be in terms a release, quit-claim, or relinquishment of any and all apparent interest that the heirs of James S. Douglass had in and to the property in dispute.

The proof shows that this act was executed upon the motion of the heirs themselves, and, as they supposed, the correct method of obviating any difficulty, and of removing any cloud their father’s deed might cast upon the title of their mother — not doubting, but believing that her title was perfectly good. That instrument was in date long subsequent to that of the registry of the judgment'of Chambers, Roy & Co., as a mortgage, and consequently, could not affect any possible right of theirs upon the property.

To this document, the plaintiff was no party; never signed the act; paid nothing therefor; and never accepted same, or acted under it.

This act recites that, whereas they have discovered that the property in controversy appears in the record to have been acquired by their father, and that the aforesaid deeds operate as a cloud upon the title of their mother thereto, and “being desirous of assisting her to clear " the said title and to relieve and relinquish and forever quit-claim "unto and in favor of their said mother 'x * * any interest they may have as five of said heirs of their said father in said prop- " erty, by virtue of said conveyances, etc.”

George Douglass, a witness, states that said document was prepared by Clinton & Graham, attorneys, at his own request, and that his mother had nothing to do with it, though she had knowledge of it. That she paid nothing whatever therefor.

In our conception this quit-claim, voluntarily executed by the major heirs in favor of their mother, with whom they resided, and whose title they recognized, was but a just and praiseworthy act and done without any intention of injuring any one. It was spontaneously executed after the registry of a judgment of Chambers, Roy & Co., :in Liquidation.

Whatever rights they had, existed long anterior to its execution.

The plea is not good.

Upon due consideration of the evidence, and of the various decisions cited, we have reached the deliberate conclusion that the judge of the lower court properly disposed of the issues presented.

Judgment affirmed.

Blanchard, J.,

dissents, holding that the interest in the property of George Douglass as heir of Jas. S. Douglass, should he adjudged amenable to the judicial mortgage rights of Chambers, Eoy & Co.


source: Caselaw Access Project

author: Watkins, J.

license: Public Domain

text:
    No. 12,884.
    Otto Holmgren vs. Robert Werner and Victor Werner; V. & R. Werner vs. Otto Holmgren; F. Hinderer vs. O. Holmgren et al.; H. F. Lewis & Co. vs. Otto Holmgreen et al.; Ramos Lumber Company vs. Otto Holmgren et als.; Louisiana Glass & Mirror Works, Limited, vs. R. & V. Werner et al.; J. D. Burkhardt vs. Otto Holmgren et al. (Consolidated.)
    Syllabus.
    An objection for the first time urged in argument, that a building contract and the specifications likewise contain a stipulation to the effect that no new or extra work shall be allowed, unless same is evidenced by the written consent of the owners accompanied with a detailed statement, can not be considered as a legitimate defense, in case it is alleged in the contractor's petition that all of the extra work was ordered by the owner and done at his special request with the distinct understanding and agreement between the parties, that the clause referred to should be waived, and said averment is not denied or disavowed in defendants’ answer.
    ON APPEAL from the Civil District. Court for the Parish of Orleans. Theard, J.

      Hubert M. Ansley and Edwin T. Merrick for Otto Holmgren, and H." F. Hinderer and H. F. Lewis & Co., Appellees.

      Albert Voorhies for V. & E. Werner, Appellants.

      Frank N. Butler for the Eamos Lumber & Manufacturing Company, Limited, Appellee.
    Cr. Fernandez, Jr., for E. McWilliams, Appellee.

      Charles F. Claiborne for J. D. Burkhardt, Appellee.

      K. V. Richard and B. McCloshey for August Schabel, Murty Wheat.ly, F. X. Faller, Appellees.

      F. B. Thomas for Louisiana Glass and Mirror Works, Ltd., Appellee.
    Argued and submitted May 20, 1899.
    Opinion handed down June 12, 1899.
    Rehearing refused June 29, 1899.
   The opinion of the court was delivered by

Watkins, J.

In the original case the plaintiff, Holmgren, a builder, instituted suit against Robert Werner and Victor Werner, the owners ■of certain real estate situated on Constance street, in the city of New Orleans, for the erection and construction of two houses, for which he demanded judgment for the sum of $2,534.19, with the recognition of lien and privilege on the buildings and grounds upon which same .are situated.

Plaintiff alleges that said work was done and said houses were constructed under and in pursuance of a contract notarial in form, and bearing date July 2nd, 1896; as well as in conformity with plans and .specifications which were part thereof.

That he. constructed, erected and. equipped said structures, as well as furnished the labor and materials /designated in the contract and plans and specifications; and that for said work he was to receive $6000, of which there is still due him $945.00..

That at the verbal request, and under the instructions of the defendants, he performed certain additional extra work to the amount of $1589.19 — die two items making the sum for which judgment is claimed.

The following statement is then made, viz:

“All of same were ordered by said defendants notwithstanding the “stipulation that no extra work was to be done, unless upon the “written order of the owners, the said (defendants) agreeing with “ petitioner, that said clause in the contract should be abrogated, 'and instructing (him) to proceed as verbally requested, etc.”

The contract, plans and specifications are annexed to the petition.

The defendants excepted to the prematurity of the suit, on the ground, that it was brought within fifteen days from the delivery of the buildings in a state of completion as required by the terms of the-contract; and further on account of vagueness in the allegations as to extra work performed and extra services rendered — no detailed statement thereof having been annexed to the petition.

Eor answer they plead the general issue and aver the truthfulness of their allegations in the suit of Y. & R. Werner vs. 0. Holmgren et al, for damages for non-compliance with and violation of saidbuilding. contract.

Plaintiff filed a supplemental petition in which he claimed an additional sum of $488.24 -on his written agreement; and a further sum of $259.21 for extra work — for all of which he has a lien and privilege on the building and ground.

The claim of plaintiff is then, as follows, viz:

On the building contract................................$1433.24

For extra work.......................................... 1848.40

Total ...............................................$3281.64

The two causes of Holmgren vs. Werner Bros., and Werner Bros, vs. Holmgren, were consolidated; and subsequently the other causes of Hinderer vs. Holmgren; Lewis & Co. vs. Holmgren; Ramos Lumber Co. vs. Holmgren; J. D. Burkhardt vs. Holmgren, and Louisiana Glass and Mirror Works, Limited, vs. Werner Bros., were likewise cumulated therewith, and all were tried and decided as one single litigation — the respective claims being germane to each other.

In V. & R. Werner vs. Holmgren et al. — which was brought within one week after the suit of Holmgren vs. V. & R. Werner was filed— claim is made that Holmgren had violated his contract in several particulars, viz:

1st. That the painting is inferior, the material used of bad quality, and in some cases there were only two coats, whereas three were called for, for which a deduction is claimed of........ $300.00

2nd. For the omission of electric bells.................... 80.00

3rd. For omission of top-bolts on windows................ 25.00

4th. For picture-mouldings in upper stories.............. 20.00

5th. For crooked- eampo-board.........-.................. 750.00'

6th. Bad material in brick work......................... 250.00‘

7th. For unfinished water closets...................... - 50.00

8th. Bad' cement,' etc................................... 30.00

9th. Bad weather-boarding........• ..................... 300.00

10th. Omission of shed, etc.............................. 800.00

11th. Demurrer or liquidated damages.................... 215.00

The whole aggregating......... $2,360.00

They invoke the clause of the building contract which requires Holmgren, as builder and contractor, to. deliver the buildings complete on or before the 1st of October, 1896, and in default of which he was ' obliged to pay five dollars per day as liquidated damages during such period of time as same should remain in an ineompleted condition.

The further allegation is then made that the contractor "'‘made “ it necessary for (them), under the stipulations of the contract, to “take possession of the premises on November 23rd last, (1896), in “ order to protect himself against further damage.”

In Hinderer vs. Holmgren, claim is made for $115.00, for constructing and erecting upon the aforesaid premises fifty feet of iron fence; and having made the Werner Bros, parties, he prays judgment against them and Holmgren. '

In Lewis & Co. vs. Holmgren, claim is made for $123.00 for building a cistern, and he asks for judgment therefor against the Werner Bros, and Holmgren.

In Ramos Lumber Co. vs. Holmgren, claim is made against the Werner Bros, and Holmgren for $590.00, for factory work of different kinds, and materials used in the building and construction of said houses.

In Louisiana Glass and Mirror Works, Limited, vs. V. & R. Werner, claim is made for $113.00 for goods and merchandise sold them, and which were employed and used in said buildings.

In Burkhardt vs. Holmgren, claim is made for a balance of $196.60, for work and materials furnished to and used in said two buildings, and for which he prays a judgment accordingly.

In these consolidated suits, the following judgment was rendered, viz:

1st. In Holmgren vs. Werner Bros., in favor of the plaintiff and against the two defendants jointly, for the sum of $2,362.85.

2nd. In Werner Bros. vs. Holmgren, in "favor of the plaintiff and against the defendant, for the sum of $37.40; and in favor of intervenor, McWilliams, and against Werner Bros, for $52.66.

3rd. In Louisiana Glass and Mirror Works, Limited, vs. Werner Bros., in favor of the plaintiff and against the defendants jointly for $113.00.

4th. In Hinderer vs. Werner Bros., in favor of the plaintiff and against the defendants jointly, in the sum of $115.00.

5th. In Lewis & Co. vs. Werner Bros., in favor of the plaintiffs, and against the defendants jointly, in the sum of $123.00.

6th. In Ramos Lumber Co. vs. Werner Bros., in favor of the plaintiffs and against the defendants jointly, in the sum of $590.00.

7th. In Burkhardt vs. Werner Bros., in favor of the plaintiff and against the defendants jointly, in the sum of $196.60.

Sth. It finally ordered that from the amount of $2,362.85, decreed to be due by V. & R. Werner, that there be first deducted the sum of $37.44, with interest and cost; and that afterwards there shall be deducted the several sums which have been awarded in favor of the various parties enumerated against Y. & R. Werner.

From that judgment Yictor Werner and Robert Werner alone, have appealed; and in this court Holmgren, appellee, has answered the appeal and requested an amendment of the judgment so as to increase the amount thereof to $3,281.60; and that, as thus amended, same be affirmed.

These consolidated cases present a mass of conflicting -testimony with regard to the construction of two new buildings, and the materials employed therein; but the matters which are principally contested are those mentioned in the suit of Werner Bros. vs. Holmgren, in • reference to certain alleged defects of construction and faultiness of materials that are specifically enumerated supra.

After giving attention to the testimony pro and con, as it was detailed by the witnesses, the judge a quo evidenced his want of appro- , ciation of it, by giving them -judgment for only $37.40 upon their demand for $2,360.00.

One of the contentions of counsel for the Werners is that the building contracts, as well as the specifications, contain a stipulation to the effect that no new or extra work shall be allowed, unless evidenced by the written consent or order of the owners, accompanied with a statement of the amount of the cost thereof.

He insists upon a rigid enforcement of that clause, and charges that by the contractor’s non-observance of same “the flood-gates of disous- “ si on are now thrown open.”

But in making that 'statement, counsel has overlooked the averjnent made in Holmgren’s petition, which is to the effect; that' all of the extra work was ordered by the Werners, notwithstanding the stipulation of the contract, that no extra work should be done otherwise than upon the ■written orders of the owners; and that this extra work was done at the request of the owners, and with the distinct understanding that said clause had been waived by said contracting parties by mutual agreement.

That statement is not disavowed or denied in the answer of the Werners to the suit of Holmgren; nor is it disavowed in the suit of Werner vs. Holmgren, which was subsequently filed.

Consequently this undented averment of Holmgren may be considered as admitted, and. therefore not an issue in the case.

In addition, the record discloses that the amount and value of the extra work was the subject of discussion in the lower court, and the 'itemized list of same was submitted to examination by the witnesses; and that its value is shown to be in excess of the specifications, by at least two thousand dollars.

On the list of items of damages is one which relates to the cam-po"board, and the charge is, that the article supplied was crooked and cracked, and the workmanship defective, and on that account the deduction claimed is $750.00.

The testimony shows that the eampo-board is a patented article, which is supposed to subserve the purposes of plastering, and is made 'by only one concern in the United States. One witness states that it is not suited for use in this climate; and another that the article used ■was crooked in many places when delivered.

Rut the testimony of other witnesses shows that a representative of the company controlling the patent, visited New Orleans and exhibited samples to the Werners, and that they accepted them, and inserted a specification for their employment in the building contract.

In other words, the eampo-board was a selection of the Werners, and any fault or imperfection therein is attributable to them, exclusively.

Other items of reduction claimed, were traversed to some extent by testimony, but it is of an unsatisfactory and desultory nature, and but little attention has been given to it in the briefs and oral argument; and same is of a character too unimportant to justify an alteration of the judgment appealed from.

Nor do we think the plaintiff has made good his claim to -an-increase of the award -in his favor. ; .

We think the judge a quo has done full justice to all parties.

Judgment affirmed.


text:
    No. 13,203.
    State of Louisiana ex rel. D. M. Sholars vs. T. J. Duggan, Judge of the First City Criminal Court.
    Syllabus.
    From a judgment rendered by the Criminal District Court of the parish of Or leans, in the exercise of its supervisory jurisdiction over an inferior criminal court of the same parish, there can be no appeal prosecuted to the Supreme Court, as such a right of appeal has not been accorded by the Constitution.
    ON APPEAL from the Criminal District Court for the Parish of Orleans. Moise, J.

    Plaintiff and Appellee in propria persona.

      Henry L. Lazarus, Robert J. Maloney, Branch K. Miller and Bernard McGlosTeey for Defendant, Appellant.
    Argued and submitted June 17, 1899.
    Opinion handed down June 22, 1899.
   On Motion to Dismiss Appeal.

The opinion of the court was delivered by

Watkins, J.

The prosecution of D. J. Hathorn was begun in the-respondent’s court by an affidavit made by the relator, charging the accused with having, within the last year, in the city of New Orleans, bought goods on a credit and disposed of same out of the usual course of business with intent to cheat and defraud his creditors, contrary to the provisions of Act 94 of 1896; and objections having been urged to the sufficiency thereof, same were sustained and the proceedings dismissed.

Thereupon, the relator and affiant made application to the judge of the Criminal District Court for the parish of Orleans, Division B, for writs of mandamus and certiorari, under the supervisory jurisdiction of that court, with the view and for the purpose of compelling the-respondent, judge of the First City Criminal Court, to show cause why the aforesaid affidavit should not he by him accepted, filed and acted upon, and a warrant issued for the apprehension of the accused,, thereunder, conformably to law.

On the issues thus presented, a trial was had and the aforesaid judge of the Criminal District Court made the writ of mandamus-peremptory; and from that, judgment the respondent has prosecuted' this appeal.

The appellee's motion to dismiss is based upon the lack of appellate jurisdiction raiione maieriae of the Supreme Court to entertain and decide the issues raised herein.

The provisions of the statute under which the prosecution against Hathorn was commenced are “that whosoever shall purchase goods,. “ wares, or merchandise on credit and shall sell, hypothecate, pledge or “ otherwise dispose of same out of the usual course of business and “with the intent to cheat or defraud the seller or vendor, shall be “ guilty of a misdemeanor, and on conviction thereof, shall suffer fine- “ in the discretion of the court, and imprisonment not less than six,. “ and more than twelve months.”

Section 2 of Act 94 of 1896.

Consequently, a case arising under that statute would not be appealable to this court, unless, after trial and conviction, a fine of three-hundred dollars should be “actually imposed.” Const, of 1898, Art.. 93.

Such a case is not appealable in character, and this cause did not originate in this court in pursuance of its supervisory jurisdiction-id., Art. 94.

On the contrary, it originated in the Criminal District Court under its supervisory jurisdiction, and from that tribunal was brought here on appeal.

The Constitution gives to the Criminal District Court “appellate jurisdiction in all cases tried before the City Criminal Courts”, and “general and supervisory jurisdiction over all inferior State and municipal criminal courts in the parish of Orleans.” Id., Art. 139.

That jurisdiction is exclusive, and from a judgment rendered by that court in the exercise thereof, no right of appeal to this court has been provided therefrom.

Therefore, the motion is sustained and the appeal is dismissed.


text:
    No. 13,186.
    Louisiana and Western Railroad Company vs. S. Dillard et als.
    Syllabus.
    Au instrument of writing which recites that “we hereby guarantee that the town of Homer will furnish a free right of way to the La. & N. W. R. R. Co. to the Arkansas line — is in terms and in legal effect, an ordinary contract of commercial guaranty, and the parties signing same bind themselves jointly.
    It is in its nature an independent undertaking, and did not require any action on the part of the town of Ilomer as a condition precedent to its perfection; and, being absolute in terms, no formal notification of acceptance on the part of the railroad company to the obligors was necessary to make it binding on them.
    Its terms are equivalent to a guaranty that the municipality would vote a special tax in aid of the construction of the railroad, and that was a good consideration.
    ON APPEAL from the Third Judicial District Court for the Parish of Claiborne. Barksdale, J.

      John A. Richardson for Plaintiff and Appellee.

      McClendon & Seals for Defendants and Appellants.
    Argued and submitted May 31, 1899.
    Opinion handed down June 12, 1899.
    Rehearing refused June 27, 1899.
   The opinion of the court was delivered by

Watkins, J.

Suit is brought oh the following- written instrument, to-wit:

“We hereby guarantee that the town of Homer will furnish a free right of way to the La. & N. W. R. R. Co., to the Arkansas line.”

“April Yth, 189Y.

“(Signed) P. Lowenburg.

“(Signed) A. T. Nelson.

“(Signed) A. K. Klingman.

“(Signed) J. H. Kirkpatrick.

“(Signed) William P: Otts."

And about eighty other persons.

Only five of the signers were cited, and against whom judgment was demanded in solido for the sum of $3,485.27, with legal interest from date of agreement; but a decree was rendered against the five defendants jointly, for the sum of thirty-three and 93-100 dollars, with legal interest from date of same. From that judgment the several defendants have prosecuted separate appeals; and in this court the plaintiff and appellee has filed an answer, and requested that the amount awarded it should he increased by $600.00, and that it be further amended by condemning all the defendants in solido for the entire amount awarded.

The following is an analysis of the petition, substantially:

That certain residents, about eighty in number, of the town of Hower, in the parish of Claiborne, Louisiana — the domicile of the plaintiff company — made and executed the aforesaid written agreement, which is denominated a bond or contract of guarantee. That after said instrument had been signed and delivered to the company in good faith, and relying thereupon, it proceeded with the location and construction of its road, and completed same to the Arkansas State line, “which- it would not have done had not this security been given.”

That the town of Homer failed and refused to obtain for the plaintiff company said promised free right of way, as will more fully appear by reference to the returns of a town election which was held on the 12th of September, 1898, disclosing the fact that a proposal to that effect was defeated at the polls.

That by the aforesaid refusal — the same being the only way in which it could legally act in the premises — the sureties upon said obligation became and were responsible for the sum the plaintiff has paid, and has obligated itself to pay, for said right of way. *

That it became necessary for the company, in order to construct its road, to purchase from and pay to the parties who owned properties along the projected route of its road, for a right of way.

In the petition are enumerated various signers of the agreement who are irresponsible and insolvent, and to whom no citations were issued, and, thereupon, the following allegation is made, to-wit:

“That, under the law, where several persons become sureties for the “ same debt, each of them is individually liable for the whole of the “ debt in case of the insolvency of any of them; therefore it follows, “that the sureties on said annexed obligation, who are responsible, are individually liable for the whole debt.”

To the petition the several defendants excepted that it set forth no •cause of action, and the particulars in which claim is made that no •cause of action is stated are, (1) that the defendants are sued as sureties of the corporation of the town of Homer, without it having been alleged that the town had entered into any contract with the plaintiff for the purpose of furnishing it a right of way, and that, in the absence of such an averment, they can not be held bound as sureties; (2) that the town of Homer is without authority in law to make a contract with a railroad company, and if such a contract were made it would be ultra vires and invalid; and under the law a contract of suretyship can only be given for the performance of a valid .and legal obligation; in other words, that defendants can not be held liable as sureties, or as guarantors, for a contract which the town of Homer was without authority to make; (3) that the plaintiffs failed ■to allege that either the town of Homer or the defendants had been put in default, as a condition precedent to the institution of the suit.

The foregoing exceptions having been overruled, defendants filed .an answer in extenso — first reserving their exceptions as a part .thereof, and, further, pleading a general denial.

(1st.) They deny that the instrument sued on was ever issued, .given out, or delivered, to the plaintiff as a valid or binding obligation, or that it ever accepted it as such; and that if it ever accepted •same at all, it gave no notice of such acceptance to the defendants.

(2nd.) That said instrument is not a contract, and that plaintiff obtained possession of same without the permission or consent of the ■defendants; and that same is without any consideration as to them. .

(3rd.) That if same was given as a guarantee that the town of Homer would vote a special tax in plaintiff’s favor for the purpose of purchasing its right of way, then it is illegal as contrary to public policy.

(4th.) That since said agreement was signed, the plaintiff, by means of a mandamus suit, compelled the town of Homer to order and ■hold a special election for the purpose of procuring the levy of a special tax to pay for said right of way.

On these several exceptions the defendants urge and plead an estoppel against the plaintiff’s demand and right of recovery.

Further answering they aver that said agreement was never intended to represent the consummation of a contract, but was only intended as an initiatory step towards the completion of negotiations ■then pending, “with a view of trying to place the town of Homer in a “position to make a contract with the plaintiff to provide for the “ right of way from the northern limit of the corporation of the town “ of Homer, to the Arkansas line; but that said pending negotiations “ never matured into a comxjleted contract.”

In the alternative, defendants aver that they are not; respectively bound, each, for more than their aliquot part or virile share of the amount claimed; that is to say, each one for one eighty-fourth part thereof, and if bound at all, they are only bound jointly, and not in solido.

That as an inducement to defendants to sign said agreement, the .plaintiff, and its agents and representatives, stated that it had already a right of way through the town of Homer to its northern limits, and only desired to procure a right of way from said northern limits to the Arkansas line, and that they signed same under said promises and representations; but they aver that same were not true and were made in bad faith, and for the purpose of obtaining their signatures upon false and fraudulent devices.

The foregoing analysis will serve all the necessary purposes of a decision of the issues presented for decision, and which are (1) liability vel non of the defendants; (2) and, if at all, whether jointly, or in sólido.

I.

The first exception which attracts our attention, and which should be first decided is, that the defendants were not put in mora. There is jn the petition no allegation, and in the record no proof of any formal default having been made as a condition precedent to the institution of the suit. Livingston vs. Scully, 38th Ann., 781.

But plaintiff’s counsel contend that his petition alleges, substantially, an active violation of the contract by the defendants; and if this be true, a putting in default was unnecessary.

The law declares that “a contract may be violated either actively,. “ or passively, by doing something inconsistent with the obligation it “has proposed, or, passively, by not doing what was covenanted to “be done.”

Rev. Civil Code, 1931.

It further declares that, “when there is an active violation of the “ contract, damages are due from the moment the act of contraven- “ tion has been done, and the creditor is under no obligation to put “ the debtor in default in order to entitle him to his action.”

Rev. Civil--Code, 1932.

His contention is (1) that the action of the electors of the town of Homer in declining to call an election at which the question of levying a special tax should be submitted, and (2) after the said election had been compelled by mandamus proceedings, said electors voted against the proposition, the terms of the contract of guaranty were actively violated — the defendants being citizens and electors of the town of Homer, participating in said proceedings.

In our opinion counsel is correct in that contention.

The language of the contract is, “we hereby guarantee that the “ town of Homer shall furnish a right of way, etc.,” and the action of the town of Homer was in direct opposition thereto. That was an active violation of the contract in the sense of the Code.

Notwithstanding the obligation sued on is an independent one to which the town of Homer is not made party, the consideration thereof was an anticipated benefit accruing to the town of Homer.

It was clearly contemplated by the signers that the town of Homer would “furnish a free right of way” to the Arkansas line, and relying upon that expectation, they executed same.

That action by the town of Homer was a condition precedent to its execution; and when it declined to take action in that direction, the. default of the defendants became complete.

But, even conceding that same is not a formal violation of a. contract in the sense of the article of the Code cited, it was a condition of the agreement on the part of the railroad company that same should be consummated.

The law provides; that, “when an obligation has been contracted on condition that an event shall happen within a limited time, the condition is considered as broken, when the time has expired without the event having taken place. If there be no time fixed, the condition may always be performed, and it is not considered as broken until it becomes certain that the event will not happen.”

Revised Civil Code, 3038.

In this case the obligation was contracted on condition that the town of Homer would furnish a free right of way; but there was no time fixed within which the event would happen, and, therefore, it was considered as broken when the vote of the property taxpayers of the town of Homer declined to authorize the tax to be levied; and this-entitled the railroad company to purchase the right of . way and to-proceed against the defendants for the recovery of the amount expended therefor.

II.

The second exception is, that as suretyship can only be given for the performance of valid contracts, the obligation declared upon can not- be enforced, for the reason that it was given as a guaranty that the town of Homer would vote a special tax in plaintiff’s favor, and is, consequently, illegal and invalid- as contrary to public order and moral conduct.

A sufficient answer to this proposition is, that the Constitution of 1819 declared that the General Assembly has power to enact laws authorizing municipal authorities, “by a vote of the majority of the property taxpayers, in. number and in value, to levy special taxes in aid of public improvements, or railway enterprises.” Article 242. ,

It seems clear to our minds that all parties, in making said engagement, had the aforesaid provisions of the Constitution in view, and it is, therefore, a legal and valid engagement.

III.

Counsel’s further contention is, that the agreement is invalid, as-being, in effect, a w-ager laid that an election shall result in a particular way, and in support of that proposition cite Glover vs. Taylor, 38th Ann., 634; and Davis vs. Holbrook, 1st Ann., 176.

In our conception no such proposition is presented in this case-The defendants entered into a contract of guaranty that the town of Homer, a municipal corporation, would furnish to the plaintiff a free right of way to the Arkansas line, and that was a perfectly legitimate subject of agreement. Railroad Company vs. Jacobs, 44th Ann., 922.

A sufficient answer to this contention of counsel is found in the following quotation from the defendants’ answer, to-wit:

“That the document sued on was never intended to represent the consummation of a contract, but was a mere preliminary step incident to negotiations then being had, with a view of trying to place the town of Homer in a position to make a contract with plaintiff to provide for the right of way from the northern limits of 'the corporation: of the town of Homer to the Arkansas line.”

IV.

The next proposition is, there can be no suretyship without a principal obligation, and that suretyship is an accessory promise by which a person binds himself for another, already bound; and that the agreement declared upon was never delivered to the plaintiff as a valid and binding obligation, and that plaintiff has never accepted it as such.

From the tenor and character of the instrument, we consider it a contract of guaranty, and not one of suretyship. It, in terms, declares that “we hereby guarantee that the town of Homer will furnish a free right of way”; and the parties signing same did not become security for the town of Homer at all.

The contract is an independent one, the motive for which was to secure a free right of way for the plaintiff in order that a railroad should be completed from the town of Homer to the Arkansas line, for the purpose of making a connection with some other railroad, and evidently for their own convenience, and that of the town in which they lived.

Upon this question there is ample evidence in the record.

It is evident that the town of Homer could not sign such an instrument, without some special authorization; and that was not contemplated. The guaranty of the contract was that the town of Homer would do something in the future; that is to say they would vote, at a special election to be held in pursuance of the Constitution, sufficient financial aid to procure said right of way.

With reference to the formal acceptance of the contract of guaranty, and the necessity of notification of said acceptance being given •to the parties signing same, we think the opinion of the Supreme •Court, as expressed in Davis vs. Wells, 104 U. S., 159, conclusive.

In that case it was held that the rule requiring notice by the guarantee of his acceptance of the guaranty, and his intention to act -under it, applies only when the instrument being, in legal effect, -merely an offer or proposal, such an acceptance is necessary to the mutual assent without which there can be no contract.

Hence, the true doctrine is that a guaranty of a future act, which is subject to a condition, must be formally accepted, and notice of such acceptance given by the guarantees; but it has no application to a contract absolute in terms, as the one sued upon is.

Y.

On the Merits.

The theory of the plaintiff is, that after the contract of guaranty liad been furnished, and the town of Homer had failed to vote the necessary aid to procure the right of way for its road, it purchased ■from persons owning property along the projected route and paid for same, or promised to pay for -same, and built its road from the town of Homer to the Arkansas line; and that, consequently, the defendants are responsible therefor, and are hound to reimburse plaintiff for its outlay.

On the trial it was shown that it was necessary for the plaintiff to procure the right of way from the property owners along the proposed route of its road between the town of Homer and the Arkansas line, and either to pay for same, or become responsible therefor; and there was introduced in evidence a compiled statement of the names of those persons from whom the right of way had been obtained, and the several amounts paid therefor — the number of persons being twenty-six, and the aggregate amount paid $8,484.67.

It was admitted by defendants’ counsel that the plaintiff had paid to the persons therein named, the amounts therein stated; and the aggregate amount is the sum judgment was prayed for.

There was introduced in evidence the proceedings of a mass meeting which was held in the courthouse in the town of Homer, on the 7th of April, 1897, from which it appears that a committee was appointed for the purpose of obtaining signatures to the instrument sued on; and it appears to have been signed on the same date.

From an ordinance of the town council, of June 24th, 1897, it appears that a committee was appointed thereby, for the purpose of conferring with the property owners of the town of Homer, with reference to two different proposed routes through the town, “in order to agree on prices of the right of way through the corporation.”

It appears from the evidence that on the 28th of July, 1897, several citizens and property owners of the town of - Homer signed a document to the effect that the company should secure from the property, owners along its proposed route the right of way that is contemplated, in the agreement sued upon, and at the respective prices stated, and of the persons named, and “as agreed on by the property owners and a committee of citizens, etc.,” the sum aggregating $8,400.00.

That agreement was made the basis o£ the special tax which it was proposed the town of Homer should vote in favor of the railroad company, and it was subsequently signed by thirty-six property owners thereof.

But after these proceedings, nothing further was done in the-direction of securing the levy of the proppsed special tax, so far as the record discloses, until the 6th of July, 1898, when the plaintiff filed a mandamus suit against the municipal authorities for the purpose of coercing them to hold an election for that purpose — alleging in its petition that seventy property taxpayers of the town of Homer had previously presented a memorial to that effect.

After issue joined and trial had, a judgment was rendered, making the mandamus peremptory; and subsequently an election was held and the tax defeated — the plaintiff’s road having been, in the meantime, completed.

Some testimony was introduced and some argument made in respeet to the charges of fraud and bád faith on the part of the plaintiff and its agents, officers and representatives, with reference to-certain alleged representations made to the defendants for the purpose of obtaining their signatures to the agreement sued .on; but, in our opinion, the same have not been sustained.

On the contrary, the record furnishes ample evidence of the fact that tho defendants and other signers thereof were actuated exclusively by the desire that tho plaintiff’s road should be extended from the town of Homer, wherein they all lived, to the Arkansas line, with a view of other and advantageous connections.

On this theory and evidence, we- think the defendants are, undoubtedly, bound.

• But the defendants’ counsel urge the additional contention that, in any event, the signers only had in view’ the right of way from the north boundary line; and that, under no condition, can they he held bound for any other right of way;

They contend that the lower judge did not hold defendants for the right of way over the Aubrey property, which is valued at $600.00, “because it was south of the northern terminus of the plaintiff’s road " at the time the document (sued on) was signed.”

On this question many witnesses were interrogated, and their statements are, as usual in such eases, irreconcilable.

Some of the witnesses state that the general manager, and agents of the plaintiff, told them that the route of the road, from its depot on the south side of the town, would pass on the east side of the town; and that the plaintiff either had the right of way, or possessed it virtually.

The statement of J. P. Aubrey is, that they said that the route would begin at the east end of the “Y” and go around the town, as they owned a right of way in that direction, except as to two parties.

Other witnesses state that there was nothing said as to where the road should be built, but that it was to go wherever the best route was attainable.

In the contract nothing is said on this subject, and the only course open was to test the matter by parol evidence; but a fair consideration of it has left our minds in doubt as to the proper solution of the difficulty.

In this situation we feel it to be our duty to rest our decision upon the judgment of the judge of the lower court, who saw and heard the witnesses.

The proof shows, that the value of +he right of way. through the Aubrey property was $600.00; and by deducting that sum from the total amount the plaintiff paid $3,48467, and dividing the residue by 85, the total number of persons who signed the agreement sued upon, and the result produced is $33.93, the exact amount for which judgment was rendered against each of the defendants.

The only remaining question to be considered is the character of the obligation; and as it is written, “w* hereby guarantee, etc.,” our conclusion is that the obligation is joint and not in solido.

The document is, in terms, an ordinary commercial guaranty, and 'to be treated and considered as other commercial instruments of that class. And, indeed, if it bw interpreted in accordance with tne character of the enterprise, our conclusion would not be different.

Judgment affirmed.