text:
    No. 3306
    Second Circuit
    KEITH v. LEE
    (March 24, 1930. Opinion and Decree.)

      Craig, Bolin & Magee, of Mansfield, attorneys for plaintiff, appellee.
    Lee & Williams, of Mansfield, attorneys for defendant, appellant.
   DREW, J.

Sharpey Pouncey died intestate on or about March 7, 1922, his wife having died in the year 1915. He left, as his sole and only heirs, Mary Starks, John Henry Pouncey, Sallie Pouncey, Rosa Lee Graham, Sharpey Pouncey, Jr., Tom Pouncey, Charity Williams, Arilla Brown, Caroline Pouncey, and Julia Pouncey, the last two being minors, all residents of DeSoto parish, La.

At the time of his death Sharpey Pouncey owned 80 acres of land described as the east half of the southwest quarter of section twenty-two, township fifteen north, range fourteen west, DeSoto parish, Louisiana.

At the time of his death, two of his children, namely, Tom Pouncey and Sallie Pouncey, were living with him, and continued to live on the place, being the 80 acres in question, until an administration was had, and during that time they continued to farm the place the same as they had during the lifetime of their father. The other children and heirs were not living with Sharpey Pouncey at the time of his death, and did not thereafter at any time live on the place or have anything to do with working it.

On February 25, 1925, nearly three years after the death of Sharpey Pouncey, a brother of the deceased, by the name of Tom Pouncey, alleging himself to be a creditor of the decedent, initiated administration proceedings which resulted in his appointment as administrator of the succession of Sharpey Pouncey, No. 11525 on the docket of the Eleventh Judicial District Court for De Soto parish, La. His appointment was made without any opposition having been made thereto.

On March 19, 1925, on the application of the said administrator, a commission was issued to sell the 80 acres of land to pay the debts of the succession and charges of administration. The property was advertised for sale by the sheriff of De Soto parish; the sale to take place on May 2, 1925.

On the very day the property was to have been sold, John Henry Pouncey filed suit to enjoin the sale, and attacking the capacity of the administrator. He alleged that he was not informed of the real purpose of the sale until that day. A temporary restraining order was granted, preventing the sale. After trial of the said suit, an exception of no cause of action was sustained to that part of the petition attacking the administrator and asking for his removal, but maintaining and perpetuating the injunction; the commission under which the property was advertised having issued prematurely. This judgment was rendered May 16, 1925.

Under date of June 4, 1925, another commission to sell was issued in the same matter, and the property advertised to sell on July 18, 1925. On the very day of sale, five of the heirs, being the same five who are co-defendants with E. P. Lee in the present suit, presented to the court a petition seeking to enjoin the sale, alleging that the petitioners did not ascertain until the day before that the said property was being advertised for sale, and asked for a restraining order; they also asked for the removal of Tom Pouncey as administrator for various grounds therein alleged. The court refused to sign the restraining order, giving the following reasons:

“The above petition was presented to me with request for the signing of the order therein prayed for on Friday night, July 17th, 1925, and after considering same, and being of the opinion that the petition was presented too late, as the administrator had been qualified after no opposition was filed by the parties who lived in the parish, and the further reason that by a judgment in another proceeding this court had rejected the demand of one of the parties to this petition to annul the appointment of the administrator on other grounds.”

On July 18, 1925, the day of the sale of said property, a mortgage was executed by five of the defendants, in favor of any future holder, for $300, covering a one-half interest in the 80 acres of land to be sold. This mortgage was filed for record at 11 o’clock a. m., the very hour of sale. It was passed before L. H. Bell, Jr., notary public, Mr. Bell being at that time a law partner of Mr. E. P. Lee, one of the defendants in this suit, and the firm of lawyers that had represented the five Pouncey heirs in the attempt to secure a restraining order.

The 80 acres of land was sold during the legal sale hours on that day and adjudicated to W. H. Keith and a proces verbal was filed accordingly by the sheriff.

On September 30, 1925, Tom Pouncey and Sallie Pouncey, the two heirs who had remained on the place since their father’s death, signed a lease contract in favor of W. H. Keith for rent of the 80 acres of land for the year 1926.

On October 22, 1925, W. H. Keith deeded the 80 acres of land to his father, Perry P. Keith, the plaintiff in this suit, and it is shown that W. H. Keith was really acting for his father in buying the land and the transfer was made accordingly.

Tom Pouncey and Sallie Pouncey paid the rent on the place for the year 1926, and Tom Pouncey moved away from the place. Sallie remained on the place, and although she entered into no rent or lease contract, did pay the rent for the year 1927.

On March 26, 1927, Elmo P. Lee, one of the defendants herein, addressed a letter to Perry P. Keith, Sr., demanding of him to pay the said $300 note held by E. P. Lee or surrender the property, stating that the five Pouncey heirs who had made the note had refused to pay same. In part, the letter reads as follows:

“The property described in said act of mortgage and hereinabove described, is now owned by you, and I hereby demand of you, as third possessor of said property, the payment of said note, together with interest and all costs, as above set forth, or the surrender of the aforesaid property to satisfy said note, interest and all costs, as the said John H. Pouncey, Tom Pouncey, Sallie Pouncey, Mary Starks and Rosa Lee Graham refused to pay same.
“This demand is made upon you as required by law, and you are hereby notified that more than thirty days have elapsed since amicable demand was made upon John H. Pouncey, Tom Pouncey, Sallie Pouncey, Mary Starks and Rosa Lee Graham, and that if said note, interest and costs, as secured by the said mortgage herein referred to, is not paid by you within. ten days, from service of this notice upon you, I will institute legal proceedings against you, as third possessor in the manner provided by law.”

On May 25, 1927, Elmo P. Lee, one of the defendants in the present suit, filed against the five heirs who had signed the $300 mortgage, executory process, attempting to foreclose the said mortgage. Order of seizure and sale was issued and the property advertised for sale by the sheriff for August 6, 1927.

On July 19, 1927, Perry P. Keith, the plaintiff herein, filed this suit against Elmo P. Lee, the holder of said mortgage note, and the five heirs of Sharpey Pouncey who executed the said mortgage, namely, John Henry Pouncey, Tom Pouncey, Sallie Pouncey, Mary Starks, and Rosa Lee Graham. Plaintiff alleges that he is the true and lawful owner and in possession of the 80 acres of land against which the mortgage was executed, and that the defendant Elmo P. Lee is slandering his title to the said property by claiming to be the holder and owner of the certain purported special mortgage, and that the remaining five defendants are slandering the plaintiff’s title by having executed and permitted to remain on record the said mortgage purporting to operate against the said eighty acres of land. He alleges damages to the amount of $250 in attorney's fees for bringing this suit and loss of time in attending court and other expenses in connection with the suit. He further alleges that a sale of the property under the writ of seizure and sale would cause him irreparable injury and that an injunction should issue to prevent it.

He prays for a rule nisi upon the defendants Lee and the sheriff commanding them to show cause why a preliminary injunction should not issue restraining the sale of the property, and further prays for judgment canceling the inscription of the said mortgage hereinabove described as registered on the mortgage records of De Soto parish, La., and condemning the defendants to pay him the full sum of $250 as damages.

The preliminary injunction was granted as prayed for on trial of the rule nisi of date July 30, 1927.

Defendants answered denying the title of plaintiff and setting up title in Sharpey Pouncey’s heirs, alleging the nullity of the administration proceedings and alleging that the mortgage was a valid mortgage.

The real defense is set up in articles 16, 17, 18, 19, 20 and 21 of defendant’s answer, from which we will quote:

“16. Respondents further show that immediately following the death of the said Sharpey Pouncey, Sr., on May 7th, 1922, respondents, who are heirs at law of said decedent, and the other heirs at law of said Sharpey Pouncey, Sr., deceased, named in article 9 hereof, to the actual knowledge of all of the creditors of the said decedent, Sharpey Pouncey, Sr., including said Keith & Sons Company, Ltd., and without objection by any of such creditors of the said decedent, went into the actual corporeal possession of the estate of said decedent, Sharpey Pouncey, Sr., both real and personal, including the real estate described in article one of plaintiff’s petition, and remained in such actual corporeal possession to a date subsequent to August 1st, 1925, cultivating the said property in the' crops customary to that locality, leasing said land for oil, gas and mineral development, and otherwise _ using and exercising the rights of ownership and possession thereof.
“17. Respondents further show that the acts of the heirs'at law of the said Sharpey Pouncey, Sr., deceased, named in article nine hereof, in taking actual corporeal possession of the said estate, real and personal, of their said deceased father, was both an express and tacit unconditional acceptance of his succession, such as make such heirs liable pro rata, each for his virile share, for the debts of said Sharpey Pouncey, Sr.
“18. Respondents further show that under the laws of this state, and especially articles 1011 and 1456 of the Revised Civil Code, it was optional with the creditors of said succession, if there were any such creditors, within three (3) months from the said express or tacit unconditional acceptance of said succession by the heirs of said decedent, as alleged in paragraphs 16 and 17 hereof, to compel such heirs to make an inventory of the property of said succession and to give security in the same manner as in the case of acceptance under benefit of inventory, or in default of such security to compel the appointment of an administrator to administer the succession.
“19. Respondents further show that the creditors of said succession, if any there were, and especially the said Tom Pouncey and Keith & Sons Company, Ltd., having full knowledge of said unconditional acceptance of said succession of the said decedent, Sharpey Pouncey, Sr., by the heirs at law of said Sharpey Pouncey, Sr., deceased, named in article nine hereof, and of the actual corporeal .possession by such heihs at law of said succession and the property belonging thereto, and especially the real estate described in article one of plaintiff’s petition, and having failed in said three months period to take advantage of the provisions of the law as above alleged, were, after such three months’ period, without right in law to provoke an administration of said succession, and that the alleged appointment of the said Tom Pouncey as administrator of the succession of the decedent Sharpey Pouncey, was an utter nullity and wholly without effect, and especially as against the said heirs at law of said decedent named in article nine hereof, in possession of the property of said succession under and by virtue of their unconditional acceptance thereof, for the reason that said succession was ended and closed by such acceptance and possession thereof by your petitioners, and, therefore, there was no succession to which an administrator could be appointed.
“20. Respondents further show that the remedy of the creditors, if any, both privileged and ordinary, of said succession, and especially the said Tom Pouncey and Keith & Sons Company, Ltd., subsequent to said three (3) months period, was limited solely to two (2) causes of action first defined in article 1421 of the Revised Civil Code of the state of Louisiana, made a part hereof by reference.
“21. Respondents further show that the pretended sale and pretended deed, executed in conformity thereto of the real-estate described in article one of plaintiff’s petition as forming a part of the succession and estate of the said decedent, Sharpey Pouncey, which said succession, long prior to said pretended sale, had been ended and closed, as alleged in articles 16 and 17 hereof, was illegal, without authority of law, and was an utter and absolute nullity, and if permitted to stand, will operate to deprive petitioners of their property without due process of law.”

They pray for the sale from the succession of Sharpey Pouncey to W. H. Keith to be declared utterly null and void and of no effect and to order the same canceled from the record, recognizing respondents, except Elmo P. Lee, as the owners and entitled to the possession of an undivided one-half interest in the property described in article 1 of plaintiff’s petition and the respondent Elmo P. Lee as the owner of a valid mortgage thereon.

On trial of the case in the lower court the plaintiff interposed a plea of estoppel as to Elmo P. Lee, alleging that the said Lee was estopped to deny the ownership of plaintiff and estopped to assert that he is the holder of the mortgage claimed by him, by the formal letter written by him to Perry P. Keith, the plaintiff herein, under date of March 26, 1925; and he also interposed a plea of estoppel as to Tom Pouncey and Sallie Pouncey, for the reason that these two defendants executed a lease contract with W. H. Keith for the lease of the eighty acres in controversy, and paid rent on said land for the years 1926 and 1927, thereby recognizing the said Keith as owner.

He also entered a plea of res adjudicata as to all defendants, except Elmo P. Lee, on the ground and for the reason that in the suit No. 11599 on the docket ■ of the district court in De Soto parish, La., the status of Tom Pouncey, as administrator of the succession of Sharpey Pouncey, was recognized when the court sustained an exception of no cause of action filed on behalf of the administrator, in which the court found that Tom Pouncey was properly appointed administrator and refused to remove him as administrator of the succession. This judgment was rendered in suit No. 11599, on the exception of no cause of action, and which judgment was dated May 16, 1925, and no appeal was taken therefrom and has now become final as to these parties, and therefore the question of Tom Pouncey’s administration, whether he was or was not properly the administrator of the succession, has been determined and cannot be raised again by the defendants herein.

The lower court’s ruling was that it would consider the pleas when looking over the various documents when deciding the case, reserving to plaintiff a bill of exception to his ruling.

The judgment of the lower court was in favor of the plaintiff and against all of the defendants, declaring as null and void and of no effect the special mortgage covering the 80 acres of land in question, being the mortgage the defendant Lee was attempting to foreclose on, and ordering the inscription of the same canceled from the mortgage records of De Soto parish, La., and perpetuating the preliminary injunction issued herein.

The defendant has appealed to this court. The plaintiff has not appealed from the judgment of the lower court, nor has he answered the appeal.

The judge of the lower court did not sustain either the plea of estoppel or the plea of res adjudicata, and we are therefore powerless to pass on them.

“Where a distinct issue raised by way of defence has been categorically disposed of adversely to the defendants by means of a final judgment which maintaining another defence dismisses the suit, and the plaintiff alone appeals, whilst the defendants neither join in the appeal or answer it, the issue thus decided is eliminated, so far as the appeal is concerned, since the ruling thereon cannot be reversed without amending the judgment appealed from, and the judgment cannot be amended to the prejudice of the appellant and for the benefit of the appellee, who has not asked for such amendment in the manner provided by law.” Cusachs vs. Columbian National Fire Insurance Co., Orleans No. 7448, unreported (see Louisiana and Southern Digest); Sarpey vs. Hymel, 40 La. Ann. 425, 4 So. 439; Texala O. & G. Co. vs. Caddo M. L. Co., 152 La. 549, 93 So. 788; Bank of Eudora vs. Crowe, 2 La. App. 669; Fisher vs. Johnson, 11 La. App. 314, 123 So. 433.
“The lower court did not sustain the plea of estoppel as.to the property claimed in the alternative demand, although the Choate Company had alleged in its first suit that the same was covered by the mortgage, but rejected it upon the merits. Defendants have neither appealed from that ruling, nor answered the appeal, and hence we can make no change in the judgment in their favor based upon estoppel.” Choate Oil Corporation vs. Glassell, 153 La. 722, 96 So. 543, 545.
“Defendant’s appeal from judgment rejecting demand in reconvention, held not to raise question of prescription pleaded to plaintiff’s claim, but not ruled on.” Culbertson vs. Cousin, 167 La. 520, 119 So. 535; Id., 9 La. App. 198, 119 So. 548.
“Where defendant did not appeal _ and filed no answer in appellate court to judgment of lower court overruling exception no cause of action the exception is not before the appellate court for review and judgment of lower court cannot be amended.” Code of Practice, arts. 592, 888; Bogue-Chitto G. Co. vs. Police Jury, 11 La. App. 246, 122 So. 505; Nelson vs. Allen, 152 La. 753, 94 So. 379; Chopin vs. Freeman, 145 La. 972, 83 So. 210; Alfred Hiller Co. vs. Hotel Grunewald Co., 147 La. 129, 84 So. 520; Nurdin vs. Bouanchaud, Sheriff, 152 La. 853, 94 So. 420; Siragusa vs. Ill. Cent. R. R. Co., 152 La. 745, 94 So. 376; Fisher vs. K. C., S. & G. R. Co., 160 La. 449, 107 So. 302.

After the case was argued in this court and submitted to the court, on the following day defendants filed a plea of estoppel, alleging that plaintiff is estopped to deny that defendants were in possession as owners, basing said plea upon the testimony of W. H. Keith and P. P. Keith given on the trial of this case.

Plaintiff filed an objection to the plea of estoppel on the ground that it came after the cause had been tried and submitted to the court and was therefore too late.

We think the exception well taken and that the plea was filed too late. O’Hara vs. City of New Orleans, 30 La. Ann. 152; State vs. City of Alexandria, 164 La. 624, 114 So. 491; Moroney vs. Canal Bank & Trust Co., Orleans No. 7120, unreported (see Louisiana and Southern Digest).

Defendant contends that Tom Pouncey and Sallie Pouncey, by their acts in remaining on the place left by their father, where they had resided before his death and at the time of his death, constituted a tacit acceptance of the succession of their deceased father and that their tacit acceptance was binding on the other heirs who have by their acts done nothing; that acceptance by one heir is necessarily acceptance for all the heirs, for the reason that a succession is indivisible and that when one heir accepts a succession unconditionally an administration of the succession cannot be had for the reason there is no longer a succession.

We cannot agree with this contention. The settled rule of law in this state is that the acceptance of one heir does not bind the other heirs; and no one can be compelled to accept a succession.

When several heirs in the same degree are called to a succession, some may accept unconditionally, other under the benefit of inventory, or any of them may renounce the succession. And the faculty of accepting or renouncing a succession becomes barred by the lapse of time required for the longest prescription perio.d of the rights of immovables. Succession of Waters, 12 La. Ann. 97; Succession of Bulliard, 111 La. 186, 35 So. 508; Schreiber vs. Beer’s Widow & Heirs, 150 La. 676, 91 So. 149, 155.

The law of one co-owner in ordinary partnership binding other co-owners is an entirely different thing from one co-heir binding another co-heir in regard to successions. The law relative to co-owners or co-partners is not applicable to co-heirs where all the heirs have not accepted the succession.

‘‘A succession must be administered, when it owes debts notwithstanding the unconditional or simple acceptance of one of the heirs, when the creditors of the heirs, accepting with the benefit of inventory, demand an administration.” Civil Code, art. 1047; Code of Practice, art. 976; Succession of Clark, 30 La. Ann. 801; Succession of Damico, 155 La. 1041, 99 So. 862.

There are two minor heirs in this case, and the law accepts the succession for them with the benefit of inventory. They cannot accept without the benefit of inventory. The remaining six heirs, all of whom are of age, are not presumed to have accepted the succession merely by their silence. Griffin vs. Burris, 109 La. 216, 33 So. 201.

In the case of Schreiber vs. Beer’s Widow & Heirs, supra, the court said:

“Articles 940, 941, 942 and 1014 of the Civil Code, declaring, substantially, that an heir, being invested with seizin or the right of possession of the estate by the mere operation of law immediately at the death of the ancestor, is considered the heir so long as he has not renounced the succession, must be read in connection with article 946, declaring that, although the succession is acquired by the heir at the moment of the death of his ancestor, the heir’s right, nevertheless, remains in suspense until he decides whether he will accept or renounce the succession. In other words, so long as the heir has not renounced the succession, he is considered the heir for the purpose of being cited and of standing in judgment in a suit against the succession, as such, if there is no administrator or other such representative of the succession; and the heir who has neither accepted nor renounced the succession is likewise considered the heir for the purpose of being cited in an action to compel him to declare whether he will accept or renounce the succession, under article 1055 of the Civil Code and articles 977 and 979 of the Code of Practice. But an heir is not deemed liable personally for the debts of the succession, merely because he has not formally renounced, until his ^ability is fixed by the prescription established in article 1030 of the Civil Code.”

It is clear that the succession could only be accepted by the two minors with the benefit of inventory, and the law does that for them. It is equally as clear that the other heirs, with the exception of Tom Pouncey and Sallie Pouncey,' had not accepted the succession at the time of appointing the administrator.

At the time of the death of Sharpey Pouncey, Keith & Sons, Limited, had a recorded mortgage against the 80 acres of land owned by the deceased, as well as an open account. Assuming that two of the heirs had tacitly accepted the succession unconditionally, by remaining on the place after their father’s death, we still think that an administration was necessary and could have been had.

“The question as to whether a succession shall be placed under administration is to a very considerable extent submitted to the sound discretion of the trial judge, to be exercised * * * for the benefit of parties advancing claims against the succession.” Succession of Theriot, 116 La. 25, 40 So. 519; Succession of Helmke, 133 La. 93, 62 So. 487; Succession of Romero, 42 La. Ann. 894, 8 So. 632; Succession of Story, 3 La. Ann. 502.
“It is not necessary that one who claims the necessity of an administration of a succession should make full proof of his claim as a creditor; a prima facie case is sufficient.” Succession of Helmke, supra; Succession of Theriot, supra; Succession of Sarrazin, 34 La. Ann. 1168.
“When a succession is accepted under benefit of inventory, the estate must be administered and liquidated — even though the beneficiary heir himself should be the administrator. — for the benefit of the creditors primarily; the rights of the beneficiary heir being only residuary.” R. C. C. arts. 1039 to 1070; Sevier v. Gordon, 29 La. Ann. 442; Berry vs. Wagner, 151 La. 473, 91 So. 837, 843.

In Succession of Bulliard, supra, the court said:

“Hence the case presented by the record is that of a succession which owes debts, and some of the heirs are minors. As to the minor heirs, the law accepts the succession for them with benefit of inventory. Civ. Code, art. 977. The major heirs, present or represented, have the unquestioned right to accept the succession with benefit of inventory. Id. art. 1038. Such an acceptance necessarily involves an administration of a succession which owes debts. An administration is necessary when one of the major heirs demands it or there is a minor heir.” Blake vs. Kearney, 30 La. Ann. 388.

In the case of Succession of Comeau, 158 La. 370, 104 So. 119, the court affirmed the appointment of a testamentary executor where there were three heirs, two of whom accepted the succession unconditionally and the third refused to accept it. The lower court was held not to have abused its discretion, although the court said it was regrettable that all three heirs did not accept unconditionally as the succession was so well off financially.

Defendant further contends that the heirs became seized immediately upon the death of their father, and that the creditors having failed to demand security or an administration within three months thereafter, the ownership of the property became absolute in the heirs, and the succession, which was opened by the death of the heirs’ father, ceased to exist.

Defendants cite, in support of this contention, article 1456 of the Civil Code, which reads as follows:

“The suit of separation of patrimony must be instituted within three months from the express or tacit acceptance of the heirs; after the expiration of this term, it is not admitted.”

The three months’ period begins to run, not from the death of the father, as argued by counsel, but from the date of acceptance, either express or tacit, by the heirs, the prescriptive period of which is 30 years.

When an administration is had, there is no necessity for an action of separation of patrimony; the patrimony having been separated by the appointment of an administrator. Succession of Hart, 52 La. Ann. 373, 27 So. 69; Koche & Sons vs. Armbruster, Orleans No. 5062, unreported (see Louisiana and Southern Digests).

None of the heirs had accepted the succession at the time of the appointment of the administrator, unless it was Tom Pouncey and Sallie Pouncey, and we think it immaterial to the case whether they had or had not. However, the court has announced, in Mumford vs. Bowman, 26 La. Ann. 413, very rigid rules for determining whether any particular writing or conduct on the part of an heir should be construed as an acceptance of the succession, viz:

“The acceptance of a succession is express, when in an authentic or private instrument, or in some judicial proceeding, the purpose of the heir is declared in terms so clear and distinct that no doubt can exist of his intention to accept under the responsibilities that result from an acceptance pure and simple. To incur the liability arising from an acceptance pure and simple, something more than styling himself heir in some written act, authentic or judicial, must appear in the instrument, in order to bind the party absolutely to pay all the debts of the succession out of his own means.
“Both in the express and tacit acceptance it must be made clear, that it was the intention of the party assuming the quality of heir to abide the disadvantages, if any should arise, of accepting simply and purely, as well as to enjoy the benefits that might accrue from it. In the one case, the intention is to be found in a fair interpretation of the terms and expressions of written instruments; in the other, it is to be inferred from acts, the motives of which can not be ascribed to any other purpose.”

These two heirs were living on the place and working it at the time their father died, and they remained on the place, working it, the same as they did during the lifetime of their father. It is not shown that they disposed of anything belonging to the succession; they did not mortgage the property, nor partition it, and, in fact, did nothing they were not doing during their father’s lifetime. It is true they did not move off the place and neither did they ask for an administration. They did exactly as ninety-nine out of every hundred negroes would have done. It had been their home, and they continued to live there. When the application for administration was filed and advertised, they filed no opposition; neither did any of the heirs. After the property was sold and the final account was filed, showing the distribution of the funds among the creditors, they filed no opposition, and neither did the other heirs, and the final account was approved and homologated by the court. After the property was sold at succession sale, they immediately leased it from Mr. Keith.

It is certainly not clear that it was the intention of Tom Pouncey or Sallie Pouncey to abide the disadvantages of accepting the succession purely and simply, and such could not be inferred from their acts.

Therefore there was no unconditional acceptance by any of the heirs, and no need or reason for a suit for separation of patrimony after such acceptance. The appointment of an administrator had the effect of separating the patrimony and dispensed with the creditors of the succession complying with the formalities prescribed by articles 1444 to 1464 and 3275 of the Revised Civil Code. Roche vs. Armbruster, supra.

The question as to whether a succession should be placed under administration, or not, is to a very considerable extent submitted to the sound discretion of the trial judge, exercised for the benefit of all parties in interest, and especially for the protection of parties advancing claims against the succession. We do not think he has abused that discretion in this case.

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

Cost of appeal to be paid by appellant.


source: Caselaw Access Project

author: JANVIER, J.

license: Public Domain

text:
    No. 11,602
    Orleans
    VOISIN v. MORALES
    (January 13, 1930. Opinion and Decree.)
    (February 17, 1930. Rehearing Refused.)
    (March 31, 1930. Writ of Certiorari and Review Refused by Supreme Court.)

      Henry L. Rhodes and Jose A. Morales and Brian & Brian, of New Orleans, attorneys for defendant, appellant.
   JANVIER, J.

Plaintiff seeks to recover $990.70, alleging that that amount represents interest paid to defendant on money loaned for the purchase of a lot and the construction of a house thereon. She alleges that as a result of the transaction she has paid to defendant interest at the rate of .0912 per annum and that since that rate is in excess of the legal rate she is entitled, under R. C. C. art. 2924, as amended by Act 68 of 1908, to recover the total amount of interest paid.

Defendant denied that he had charged interest in excess of the legal rate, and, alleging by reconventional demand that plaintiff owed him for services and for expenditures more than she had paid, claimed the sum of $265.03.

The trial court held that the defendant had, in fact, charged interest in excess of the legal rate and rendered judgment as prayed for in the main demand.

The facts are rather involved, but, after a careful study of the record, we have reached the conclusion that they are substantially as follows:

Defendant Morales agreed to obtain for plaintiff a loan which she was to repay on an installment basis. Plaintiff made many payments but did not comply fully with her obligation and it became necessary to find some one else with whom the loan could be placed. On January 14, 1923, the loan which, according to both parties had been reduced to $2,555.40, was placed with other parties with the understanding that plaintiff would continue making payments to Morales and that he would, from time to time, as these payments accumulated, devote them to the reduction of the note.

In February, 1927, the improvements on the property were destroyed by fire. It then developed that there were in existence two policies of insurance, one for $3,000 and one for $2,000, and, as in each policy there was a provision vitiating it in the event of other insurance being in existence on the same property, the insurers resisted payment. Morales, however, was able to prevail upon the adjusters to settle on a replacement basis, and, as the expert builder, selected by the adjusters, reported that the property could be restored for $3,830, that amount was paid to Morales, as the agent and attorney for plaintiff.

Thereupon it was determined that the proceeds of the insurance settlement should be used to liquidate the indebtedness on the property, and that the balance remaining should be turned over to plaintiff.

Morales, through his clerk, rendered to Mrs. Voisin, plaintiff, a statement in which it appeared that the interest amounted to the sum of $990.70 and that this amount had been deducted in making settlement.

It is conceded by both parties that the correct amount of interest at 8 per cent would have been $860.83. It thus appears that, according to the statement, there was charged as interest $121.87 more than Is permitted by the codal article and statute referred to.

According to the only evidence in the record, when defendant discovered that his clerk or bookkeeper had overcharged plaintiff in the matter of interest, he attempted to rectify the error and then discovered that, in making the statement, plaintiff had not been charged for certain expenditures made for her account as follows:

Expert builder employed in insurance adjustment____________ $50.00

Premium on insurance policy 18.00

Notarial fee and expenses in arranging loan________________________ 22.50

Balance due on interest paid to former mortgage creditor and erroneously omitted in former adjustment 96.40 --$186.90

Defendant contends that since this amount exceeds the sum overcharged as interest, the overcharge should be deducted, which would leave a balance due him amounting to $65.03. He claims this in reconvention, and he also contends that he is entitled to a fee of $200 for representing the interests of plaintiff throughout the transaction. We find in the record no evidence whatever except that of defendant and his witnesses, and therefore nothing to contradict defendant’s statement that he actually expended the amounts mentioned for the account of plaintiff, except for one item of $75 included in the figure .$96.40, and which item we will later discuss, and except the statement rendered by defendant’s clerk showing the overcharge of interest. In view of the absence of eontravailing proof we find ourselves unable to do other than accept the testimony of defendant and his witnesses as correct.

The various expenditures were, according to defendant, necessary for1 the protection of plaintiff’s interest, and, since defendant seems to have handled all details of the transaction for account of plaintiff, we feel that he was entitled to be reimbursed for such items as the uncontradicted evidence shows he expended.

The fact that his statement showed a figure which in itself is indicative of an interest overcharge is not conclusive in view of his uncontradicted testimony to the effect that the excessive interest charge was not actually received, but that the additional amounts which were retained by him, instead of representing interest, really represented expenditures made for account of plaintiff.

Whatever may have been defendant’s motive, even if he intended to charge usurious interest, the actual fact seems to be that the only interest which he received was actually within the legal rate and that the overplus was not interest at all.

However, his testimony as to the item of $96.40 is not conclusive so far as $75 thereof is concerned. He admits having omitted from his accounts, credits for $75 paid to him by plaintiff, and in explanation thereof says:

“ * * * The question of the difference of $75 must have been to me. I am almost sure that they were made on account of taxes due by her on the property.”

This explanation, in view of the uncertainty of defendant, is not convincing, and we feel that he has failed to substantiate his defense to the extent of the $75 referred to. Nor do we believe that he is entitled to attorney’s fees. He has made his profit on the investment of his funds, and, in the absence of an express agreement to pay fees, we do not feel that, under the circumstances presented here, plaintiff should be compelled to pay them.

Since according to the figures plaintiff owes defendant $65.03, but since defendant has overcharged her $75, the net balance in plaintiff’s favor is $9.97, for which plaintiff should obtain judgment.

It is therefore ordered, adjudged, and decreed that the judgment appealed from be, and it is, amended by reducing the amount thereof to $9.97, with interest from judicial demand, and, as thus amended, affirmed.


author: LeBLANC, J.

text:
    No. 539
    First Circuit
    AMERICAN SNUFF CO. v. STANTON ET AL.
    (April 14, 1930. Opinion and Decree.)
    S. I. Foster, of Leesville, attorney for plaintiff, appellant.
    P. L. Ferguson and L. D. Woosley, of Leesville, attorneys for defendants, appellees.
   LeBLANC, J.

In a former suit, the American Snuff Company had endeavored to obtain a judgment against these same defendants. It had sued the Vernon Grocery Company, Inc., and was seeking to hold the present defendants liable as incorporators under that provision of section 12 of Act 267 of 1914 which makes every subscriber to the capital stock of a corporation, though not a holder, personally liable to the creditors of the corporation to an amount equal to the unpaid balance on the stock for which he has subscribed. The defense in that suit, as it is in this, was an attack on the legality of the incorporation of the Vernon Grocery Co., Inc. The lower court in that case rendered judgment against the company and against the present defendants, maintaining the validity and legality of the corporation and holding these defendants liable under the section of the act just referred to.

On appeal to this court, that judgment was set aside and an exception of no cause of action on behalf of the defendants in this suit was sustained. American Snuff Co. vs. Vernon Grocery Co., Inc., et als., 8 La. App. 488. That exception had been based on the failure of the petition to have alleged a compliance with the provisions of section 13 of Act 267 of 1914 which made it a condition precedent in suing stockholders that judgment should first have been obtained against the corporation and execution returned unsatisfied in whole or in part.

Plaintiff in this suit having complied with that condition, it now prosecutes this action against the defendants.

It is urged again on the part of these defendants that they be relieved from liability on the ground that they have never paid the amounts of their subscriptions, and that they had withdrawn as stockholders with the consent and approval of the president of the corporation. This very defense was passed on by this court in the former case where it was rejected. Now the. defendants further plead the illegality of the corporation on the ground that when the secretary of state issued the certificate of incorporation he had not been furnished with the proof by affidavit of two incorporators that 50 per cent of the stock had been subscribed, and, further, that 50 per cent of the stock had not been paid for. The trial judge in this case reversed his ruling in the former suit, held that the corporation had never been legally organized, and rendered judgment in favor of the defendants, dismissing plaintiff’s suit.

Act No. 267 of 1914, the corporation law in existence at the time is the law which governs this case. Under its . provisions (section 2) the certificate of incorporation issued by the secretary of State was to “be received in evidence in all courts of this State and” was to be “prima facie proof of the legal creation and existence of such corporation.” The certificate in this .case was issued in proper form, and on its face presents a perfectly valid and legal certificate. The requirements for its issuance by the secretary of state had been substantially complied with. The act of incorporation itself, executed before a notary public, in valid form, with the certificate of the clerk of court that it had been duly recorded, showed that 50 per cent of the capital stock had been subscribed. Whether 50 per cent of the stock had been paid for was not a requirement which addressed itself to the secretary of state. All fees and costs must have been paid, as a letter from the secretary of state acknowledges a receipt for same. The mere omission to send that official an affidavit by two incorporators that 50 per cent of the stock had been subscribed cannot have the effect of rendering null and void his certificate, when the articles of incorporation themselves signed by five incorporators supply the very proof that was intended by such affidavit. There is no evidence to overcome the presumption of the legal creation and existence of the corporation produced by the certificate of the secretary of state.

In the case of Chronos Land Co., Inc., vs. Crichton, 150 La. 963, 91 So. 408, in stressing the importance of the certificate of the secretary of state as furnishing prima facie proof of the legal existence of the corporation, the Supreme Court says, at page 968 of the reported decision, 91 So. 408, 410:

“Beyond this, there is attached to the charter of incorporation the certificate of the Secretary of State, required by section 2 of Act 267 of 1914, which, as provided by that section, is prima facie proof that the corporation has been legally organized and has existence as such. Therefore whatever right defendants may have to make the attack they have made in this case on plaintiff’s corporate existence, the evidence, in support of that attack, is overcome by the presumption of its legal corporate existence flowing from the certificate of the Secretary of State.”

Other irregularities shown in matters of internal administration of its affairs cannot vitiate the legal existence of the corporation, and certainly cannot affect the rights of third parties who have dealt with it under the impression that it was legally and validly organized.

We conclude, therefore, that the district judge erred in holding that the corporation whose legal existence was attacked in this case was not a legal corporation, and therefore its stock subscribers who had not paid the amounts of their subscriptions were not liable to the plaintiff who had brought this action against them. It being admitted that they have not paid for their subscriptions, and the accounts sued on having been reduced to judgment against the corporation and execution returned unsatisfied, they are liable under section 12 of Act 267 of 1914, and plaintiff is entitled to recover judgment against them as prayed for.

It is therefore ordered that the judgment appealed from rejecting plaintiff’s demand and dismissing its suit be, and it is hereby, reversed, and set aside; and,

It is now ordered that the defendants herein, W. L. Stanton and R. A. Dailey, be condemned, in solido, to pay to the plaintiff herein, American Snuff Company, the sum of $349.77, With legal interest from June 3, 1928, until paid, and the further sum of $40.72 as costs in the former suit of American Snuff Co. vs. Vernon Gorcery Co., Inc., et al., and all costs of this proceeding.


author: DREW, J.

text:
    No. 3636
    Second Circuit
    HATHORN v. HUNDLEY ET AL.
    (January 31, 1930. Opinion and Decree.)
    (March 24, 1930. Rehearing Refused.)
    (May 5, 1930. Writ of Certiorari and Review Refused by Supreme Court.)

      T. A. Carter, of Alexandria, attorney for plaintiff, appellant. -
    K. Hundley and White, Holloman & White, of Alexandria, attorneys for defendants, appellees.
   DREW, J.

Plaintiff sues A1 Hundley, former clerk of court of Rapides parish, La., and his bondsman, Standard Accident Insurance Company, for $285, and interest, itemized as $250 on a mortgage note given by J. L. Brister, $25 attorney’s fees, $10 costs in his suit against Brister, and 8 per cent, per annum interest on $250 from January 16, 1928, until paid.

He alleges that he was in the loan business, and that Brister applied to him for a loan on certain property; that he applied for and secured, on December 20, 1927, a certificate of mortgages, which failed to show a mortgage given by Brister to J. E. Oliver; that, relying on this certificate, he made a loan to Brister of $250 on January 16, 1928; that thereafter Oliver foreclosed his prior mortgage, and sold the property to satisfy the same; that the property did not bring sufficient to satisfy any part of his (plaintiff’s) claim; that plaintiff afterwards secured judgment against Brister, and that his writ was returned nulla bona; and consequently he claims damages of the clerk and ex officio recorder and of his bondsman, in solido.

Both defendants answered and denied that plaintiff made his loan to Brister on the faith of the certificate of mortgages, and averred that plaintiff was informed of the Oliver loan, and was told that it existed, and was put upon inquiry; that he took a chance, believing the property worth enough to satisfy both loans; and that be was estopped to claim anything of the clerk because of the error in the certificate of mortgages.

The lower court found for defendants, and rejected plaintiff’s demands.

The questions to be decided are:

Did plaintiff have knowledge of the existence of the Oliver mortgage?

Did he have knowledge that the Oliver mortgage was recorded?

Would knowledge of either or both be a bar to his recovery against the defendants?

Both Brister and Oliver told the plaintiff that the mortgage from Brister to Oliver existed, and we are sure that it would have been final if the certificate of mortgages had not been secured; but, when plaintiff received the certificate of mortgages, it failed to show this mortgage, and this undoubtedly raised in his mind a doubt about the existence of such a mortgage, for he called Oliver and told him he did not have a mortgage on Brister’s property, that he (plaintiff) had a mortgage certificate, and it did not show his mortgage. Oliver undoubtedly thought there was some mistake, for he replied that he would see about it, and did call up Mr. Grove Stafford more than one time, insisting that he find out about this mortgage, and Mr. Stafford visited the clerk’s office to make an investigation and see if there was such a mortgage, and he testifies that he found the mortgage recorded, but that the index to the mortgage was not J. L. Brister to J. E. Oliver, but J. P. Brister to J. E. Oliver. This error in the index was no doubt responsible for the •deputy clerk’s error in the certificate of mortgages. Plaintiff may not have thought that the Oliver mortgage was in existence on this identical property, but as a prudent business man, as he was shown to be, he was certainly put on inquiry.

There is no positive testimony that plaintiff knew the Oliver mortgage was recorded. Oliver testified that he told plaintiff that Grove Stafford fixed it up, and that he supposed he placed it of record; that he had several conversations with plaintiff afterwards, but would not swear positively they.were before the loan was made by plaintiff or after it was made.

Mr. Grove Stafford, after examining the record, had a talk with plaintiff, and told him the mortgage of Oliver was of record, but he would not positively say it was after the loan was made or before; he thought it was before, but would not be positive.

Plaintiff testifies that he made the loan on the day he first called ujp Mr. Oliver, and told him he had no mortgage on the property of Brister, and before any conversation with Mr. Stafford, and that he relied on the certificate of mortgages.

We are convinced that plaintiff did not have knowledge that the Oliver mortgage was recorded, and that relying on the certificate of mortgages furnished by the clerk of court thought he was securing a first mortgage on the Brister property. This conclusion is supported by the fact that plaintiff did not make the loan when Brister first requested it, and not until after he had secured the certificate of mortgages. The only way plaintiff had to contradict the certificate issued by the clerk of court under his seal of office, was to examine the record itself, or have it done by an attorney, and, if this was necessary, then a certificate of mortgages would be worthless, and an unnecessary expenditure of money to secure it. And in this particular case one might have searched the record, as the clerk did, and not find the Oliver mortgage, for the reason that it was improperly indexed.

When a clerk of court furnishes a certificate of mortgages, it is his duty to show every mortgage of whatsoever kind resting against the property, and, if his failure to do so causes damage to one relying on said certificate, the clerk of court is liable for all loss occasioned thereby.

Plaintiff testified that in all instances where he took a second mortgage on a piece of property he made an examination of the premises to ascertain the value, and that in this case, after securing the certificate from the clerk, he made the loan without seeing the property, and had never seen it since.

The first mortgage recorded, without regard to the date of its execution, is the first mortgage on the property, insofar as third persons are concerned. This doctrine was forever settled in this state in the case of McDuffie vs. Walker, 125 La. 152, 51 So. 100, 105. The language of the court is as follows:

“It is evident that whether a person acquires an interest in real estate to the extent of its value or part of its value as a mortgagee or as a vendee the principle involved in the application of the law of registry is the same; and hence if it he true that one may acquire a valid first mortgage, though he know at the time that as between the mortgagor and another there already exists an unrecorded mortgage upon the same property, it must also be true that one may acquire a valid title to such property, though he know that as between his vendor and another an unrecorded title has already been passed. The law makes no distinction between mortgages and sales or between eredicors and vendees or mortgagees; nor does it discriminate between those who acquire property with knowledge of unrecorded contracts and those who acquire without such knowledge. Its purpose is to establish and enforce as a matter of public policy upon the subject of the most important property right with which it deals the rule that unrecorded contracts affecting immovable property ‘shall be utterly null and void, except between the parties thereto.’ ”

The doctrine laid down in the McDuffie vs. Walker case has been followed without variance by the Supreme Court of Louisiana down to the present day. See Washington Bank & Trust Co. vs. Cowan-Kerr Lumber Co., 155 La. 1076, 99 So. 881; Cole vs. Richmond, 156 La. 263, 100 So. 419; Dalbey vs. Continental Supply Co., 155 La. 113, 98 So. 859; Howard vs. Coyle, 163 La. 257, 111 So. 697; Vaughn vs. Kemp, 4 La. App. 682; D. C. Nichols vs. Bell & Rachal, 2 La. App. 16.

Defendants have cited numerous cases holding that knowledge of an unrecorded sale necessarily constitutes bad faith, all of which are in direct conflict with the present jurisprudence of this state; and every case relied on by defendants was an earlier case than the McDuffie vs. Walker case.

Defendants cite in support of their contention the case of Swan vs. Moore, 14 La. Ann. 833, and quote freely from it. However, this case was specifically overruled in the case of Harang vs. Plattsmier, 21 La. Ann. 426.

It therefore follows that, if plaintiff did know, or have reason to know, there was an outstanding mortgage on the property owned by Brister, and was led to believe by the certificate of mortgages furnished by the clerk that it was not recorded, and acted relying on said certificate, then any damage occasioned by the erroneous mortgage certificate would be recoverable against the clerk of court and his bondsman. R. C. C. arts. 3393, 3394; Fox vs. Thibault, 33 La. Ann. 32.

Defendants cite the case of Citizens’ Bank & Trust Co. vs. Walker, 9 La. App. 143, 119 So. 487, in support of their contention; but it is not in point. That case was decided on an exception of no cause of action, which was sustained for the reason that the petition did not allege that the plaintiff had exhausted its remedies against the vendor of the note held by plaintiff and the original mortgagor.

Other eases cited by defendants are where the plaintiff was purchaser from the vendee at sheriff’s sale, and was not the original .vendee at the sheriff’s sale, wherein the certificate of mortgages failed to disclose a recorded mortgage; the court holding that such an action against the clerk of court is not a real action, following the property, but is a personal action, which arose from the acts which preceded the sale, and entered into his motives for becoming the purchaser. And in that manner distinguished from this case.

Defendant Standard Accident Insurance Company, has prayed, in event of judgment for plaintiff, that its rights under its plea of discussion be reserved, which rights it is entitled to.

It is therefore ordered, adjudged, and decreed that the judgment of the lower court be reversed and annulled, and that there be judgment in favor of the plaintiff, W. Richard Hathorn, and against the defendants A1 Hundley and the Standard Accident Insurance Company, in solido, in the full sum of $250, with 8 per cent, per annum interest thereon from January 16, 1928, until paid, and 10 per cent, attorney’s fees, on principal and interest, and for the further sum of $10, court costs in the case of W. Richard Hathorn vs. J. L. Brister, and for all costs of this action, in both courts.

It is further ordered, adjudged, 'and decreed that the right of the defendant Standard Accident Insurance Company to point out property of its principal, A1 Hundley, to be seized in satisfaction of this judgment, and to advance the costs of discussing same is hereby reserved to it.


text:
    No. 13,101
    Orleans
    TAYLOR v. LOEB ET AL.
    (April 7, 1930. Opinion and Decree.)
    (May 5, 1930. Rehearing Refused.)
    A. Melville Wolfson and Robert Ewing, Jr., of New Orleans, attorneys for plaintiff, appellee.
    Rosen, Kammer, Wolfe & Farrar and Louis L. Rosen, of New Orleans, attorneys for defendant, appellant.
   JANVIER, J.

Plaintiff, a registered trained nurse, seeks to hold the two defendants, Harry B. Loeb and the estate of Ernest M. Loeb, solidarily liable for a balance claimed to be due her for board, lodging, and personal attention rendered to a sister of defendants. The record discloses the fact that the sister in question was mentally incapable of taking care of herself and that the two defendants called upon plaintiff, at her residence, and arranged with her for the furnishing of board and lodging and the rendering of such personal attention as might be necessary or requisite to the comfort of their sister. For some time the cost thereof seems to have been paid with reasonable regularity, but the balance now claimed has admittedly not been paid and this suit is the result.

The defense is that, when the two defendants called upon Miss Taylor, they at no time promised to be responsible for the payment of the bills, and in the alternative that, if there is any liability, it is joint and not solidary.

The trial court found that Miss Taylor was justified in believing that the two defendants intended to be responsible for the necessary expenses of their sister, and we believe that the evidence fully justifies this finding. It is true that there is a sharp dispute as to whether or not the defendants actually stated that they would pay the bills, but we have no difficulty in reaching a conclusion that, whether or not, in definite words, either one of them so agreed, the whole tenor of the conversation justified Miss Taylor in believing that that was their intention.

It cannot be said that, in thus undertaking to be responsible for their sister’s expenses they were agreeing to pay the debt of a third person, for several reasons; primarily, because the debt had not yet accrued and because their conversation, made in advance of the accrual of the debt, constituted the debt their own obligation.

So far as the effect of the conversation is concerned, we are unable to find that there is anything in the record to justify us in disregarding the judgment of the trial court on a question of fact.

We are of the opinion, however, that the district court erred in holding the defendants solidarily liable. According to the testimony of Miss Taylor herself, there was no specific agreement which could be interpreted to amount to a stipulation for solidary liability. In the absence of such stipulation, no such liability can be written into their contract. In other words, solidary liability is not presumed. Article 2093, R. C.G., provides:

“An obligation in solido is not presumed; it must be expressly stipulated.”

The conversation testified to by Miss Taylor amounts to no more than that the defendants, in effect, told her “we promise to pay the monthly bills.” Such language has been many times held to create only joint liability. Mayor vs. Ripley, 5 La. 120, 25 Am. Dec. 175; Oxnard vs. Locke, 13 La. 447; Teutonia Bank vs. Wagner, 33 La. Ann. 732. It is true that plaintiff is not a business woman and unquestionably knew nothing about the difference between a joint and a solidary obligation and may have been fully warranted in believing that the two gentlemen with whom she was dealing would each be responsible for the whole debt, but, regardless of what the parties knew with reference to the law applicable to their transaction, the law must be written into their agreement; and, since that agreement did not expressly or by necessary implication contain a stipulation for solidary liability, we cannot presume that all of the parties understood it as Miss Taylor states she did.

The balance due is $628. Believing, as we do, that the obligation of the two brothers in question was joint and not solidary, the judgment must be reduced against the defendant, Harry B. Loeb, to one-half of $628.

We find no appeal on behalf of the estate of Ernest M. Loeb and, therefore, are not authorized to correct the judgment as to that estate.

It is therefore ordered, adjudged, and decreed that the judgment appealed from be, and it is, amended so as to reduce the amount thereof as against Harry B. Loeb to the sum of three hundred fourteen dollars ($314.00), with legal interest from judicial demand, and, as thus amended, the judgment is affirmed.


author: ELLIOTT, J.

text:
    No. 623
    First Circuit
    YORK v. BATON ROUGE ELECTRIC CO. WILLIAM EBERHART, Intervener
    (April 14, 1930. Opinion and Decree.)
    (May 6, 1930. Rehearing Refused.)
    Taylor & Parker, of Baton Rouge, attorneys for plaintiff, appellant.
    Breazeale & Sachse, of Baton Rouge, attorneys for intervener, appellee.
    Taylor, Porter, Loret & Brooks, of Baton Rouge, attorneys for defendant, appellee.
   ELLIOTT, J.

A guy wire, while being handled by James York, employee of William Eberhart, came into contact with a high voltage wire of the Baton Rouge Electric Company, with the result that said York was killed. The guy wire was being attached to and was for the purpose of bracing a derrick which the said Eberhart was erecting preparatory to putting down a deep well for the East Louisiana Hospital on the grounds of the said hospital at Jackson, La.

The plaintiff is the widow, and the children, all of whom are minors, are the issue of her marriage with said York. The plaintiff is the natural tutrix of her children.

She brought suit individually and as tutrix against the Baton Rouge Electric Co. for $15,000 damages on account of the death of her husband, the father of her children. She alleges that said guy wire, while being handled by her husband for said purpose, came into contact with an uninsulated high voltage wire of the said electric company, containing upwards of 23,000 volts, with the result that he was thereby instantly killed. William Eberhart, by whom the decedent was employed, was permitted to intervene in the suit. He alleges, as the basis of his right to intervene, that, in compliance with his liability to the plaintiff, as the employer of her husband, he has paid to her, under the Employers’ Liability Act of Louisiana (Act No. 20 of 1914, as amended), the sum of $2,500 in full settlement of her claim against him on account of her husband’s death.

That he is therefore entitled to be reimbursed the said sum which he had paid. He joined the plaintiff and prays that there be judgment in her favor against the defendant, and that he be paid out of the proceeds the sum of $2,500.

The defendant put at issue the demand of the plaintiff, as well as that of the intervener. It denies the negligence alleged against it by plaintiff and intervener, denies liability to them on account of the death of said York, and alleges that said York came to his death as a result of his own negligence. That said York had been warned not to permit the guy wire he was handling to come into contact with defendant’s said high voltage wire, but he negligently permitted it to do so. Contributory negligence on the part of the said York was also alternatively urged.

The case was tried before a jury. A verdict was rendered in favor of the defendant and judgment entered up in the lower court in conformity therewith.

The defendant has filed a motion to dismiss the appeal of William Eberhart, intervener, alleging:

1st. That though the said appeal was made returnable on the 28th of February, 1929, the complete transcript of said appeal was not filed in this court until 'January 29, 1930, at which time the note of evidence was filed in the lower court, and also in this court. The mover further alleges that the transcript does not contain any statement of facts; no special verdict; that no error of law appears on the face of the record; and that appellant has not filed in this court any paper stating any errors alleged by him.

2d. That the failure of the plaintiff to file an appeal bond carries with it the dismissal of the appeal of William Eberhart, intervener. The dismissal of the appeal of William Eberhart is prayed for, and it is prayed in the alternative, and, in case said appeal is not dismissed, that the note of evidence be expunged from the transcript, etc.

The record shows that judgment was signed February 8, 1929. The minutes of the lower court, under date of February 11, 1929, shows the granting of an order of appeal in favor of the plaintiff, in which the appeal was returnable to this court on February 28, 1929. The minutes further show a like order in favor of Eberhart, intervener, under date of February 15, 1929, returnable on February 28, 1929. The record contains an appeal bond filed by Eberhart on February 27, 1929, but none on the part of the plaintiff. As the plaintiff has not filed an appeal bond, the plaintiff cannot be said to be an appellant before the court. It is well settled that an order of appeal is not effective, unless it is followed by an appeal bond, and, until the bond is filed, appellate jurisdiction does not attach nor take effect. Bank of America vs. Fortier, 27 La. Ann. 243; People’s Bank vs. Arceneaux, 134 La. 292, 64 So. 116; Hyman vs. Veith, 142 La. 933, 77 So. 854; Lafayette vs. Farr, 162 La. 385, 110 So. 624; Allen vs. Allen, 165 La. 437, 115 So. 648; Succession of Dahm, 166 La. 774, 117 So. 826. The defendant takes the position in its motion that the plaintiff is not before the court, and we find that the position is correct. Such being the case, no judgment can be rendered in favor of the plaintiff and against the defendant on this appeal. The situation in that respect is not reviewable.

As for William Eberhart, intervener, it appears to us that, the plaintiff not having appealed, Eberhart, intervener, cannot, under his pleading, have the judgment of the lower court reviewed in behalf of the plaintiff. The prayer of his intervention is that “there be judgment herein in favor of plaintiff and against the defendant, and that petitioner be paid out of the proceeds of said judgment the full and true sum of $2500.00 with interest, etc., and for all necessary orders and general and equitable relief in the premises.” His pleading and the prayer of his petition does not entitle him to any judgment against the defendant in favor of himself, and, as none can be rendered on this appeal in favor of the plaintiff against the defendant, it follows that he, the intervener, even though he filed an appeal bond, has no standing to have the judgment of the lower court reviewed. If he had asserted in his intervention an interest in the suit under which he was entitled to a judgment against defendant on! account of the death of said York then he could have prosecuted same on appeal. But not having done so, the appeal bond which he gave cannot bring up and have reviewed on appeal the demand of the plaintiff against the defendant, and unless that could be done, it is futile to consider on appeal his demand against the plaintiff. Walmsley vs. Whitfield, 24 La. Ann. 258; Barron vs. Jacobs, 38 La. Ann. 370; Meyers & Co. vs. Birotte, 41 La. Ann. 745, 6 So. 607; Gorman vs. Gorman, 158 La. 274, 103 So. 766; Erskine vs. Gardiner, 162 La. 84, 110 So. 97; and St. Bernard Trappers’ Ass’n vs. Michel, 162 La. 254, 110 So. 341, are authorities applicable to the situation.

Intervener resists the motion to dismiss on the above ground, and contends that the failure of the plaintiff to appeal cannot divest him of his rights. That an intervention being an incidental demand, Code Prac. arts. 153, 389, etc., he has a constitutional right to appeal, Const. 1921, art. 7, sec. 1. The right of an intervener to appeal, where he has an independent interest is conceded.

In Schlieder vs. Martinez (Rexach, Intervener) 38 La. Ann. 847, and McMichael vs. Thomas (Henderson, Intervener) 164 La. 233, 113 So. 828, the right of an intervener to appeal was recognized, even though the plaintiff did not desire or choose to do so. But in these cases the intervener had alleged an independent interest in the controversy, not one as in this case, in which he merely joins the plaintiff in praying that there be judgment in favor of the plaintiff and against the defendant, and in which he prays for no judgment in his own right against the defendant, except that he be paid $2,500 out of the proceeds of the judgment which he prays be rendered in favor of the plaintiff and against the defendant.

The relief prayed for by intervener is entirely dependent, and in fact contingent on the success of the plaintiff. The situation in the present case is therefore not the same as in the cases last cited. Intervener also cites White vs. Fifth Regular Baptist Church, 31 La. Ann. 521; Theus vs. Kemp, 49 La. Ann. 1651, 22 So. 962; and Hardie & Co. vs. Colvin (Tatum, Intervener) 43 La. Ann. 851, 9 So. 745; but they do not appear to be appropriate to the present situation.

We think the motion to dismiss must prevail, for the reasons stated.

The record discloses that the note of testimony is again absent from the record, notwithstanding averments in defendant’s motion to dismiss that it has been filed. Its absence is merely noted, not acted on. The further grounds for dismissing the appeal are not considered.


author: MOUTON, J.

text:
    No. 558
    First Circuit
    POLICE JURY OF VERMILION PARISH v. MARCEAUX
    (March 5, 1930. Opinion and Decree.)
    (April 14, 1930. Rehearing Refused.)
    (June 2, 1930. Writ of Certiorari and Review Refused by Supreme Court.)
    W. P. Edwards and J. I. Boudreaux, of Abbeville, attorneys for plaintiff, appellee.
    L. A. Goudeaux, of Lake Charles, attorney for defendant, appellant.
   MOUTON, J.

In 1912, defendant made a donation to Vermilion parish of a strip of land for a public road running along the southern boundary of his property which is situated in section 31, township 12, south of range 1 east. Defendant claims that an old road which has been used for many years by the public along the southern line of his land takes in the strip he has donated to the parish.

The police jury, plaintiff herein, contends, on the other hand, that the strip which was donated by defendant lies north of the present old road, some 240 feet on the east end and 365 on the west end. The only issue involved in this case is therefore as to the correct location of the southern line of section 31, township 12 south, range 1 east. To determine that question, three surveys were made, by Tanner, Letz, and Broussard, and many witnesses were examined in connection therewith.

A survey of the land was made in 1876, by John P. Parson, D. S., who in reference to the south boundary line of section 31, of township 12 says in his field notes: “Set stake for temp. % Sec. Cor. August. Mar-so’s house, etc.” (meaning Marceaux). Preceding that statement Parson uses these words: “On random line on south boundary of section 31.”

The house referred to by Parson was built by Auguste Marceaux a few years before Parson surveyed the land, as was shown by a number of witnesses. Since the survey, the record shows it was blown down, thereafter was converted into a barn, and is still standing within a few feet from where it was at the time of Parson’s survey, in 1876. After ascertaining that it was about at the same spot, Broussard, surveyor, took the house or barn for his starting point and based his survey on the Parson survey.

Arvenne Marceaux, a brother of Auguste Marceaux, now deceased, testified that he was present when Parson made the survey. He says Parson placed some stakes along the present roadway.

Defendant also testified that three stakes had been placed there by Parson; that one had floated away, and the others had disappeared, though they were cypress posts.

Slatzman, who built a fence, about nine years after the Parson survey, for Auguste Marceaux, the original owner, along the line in question, testifies that he saw no stakes anywhere near the fence he erected. Obviously, Broussard found no remnants or evidences of these stakes and began his survey from the Marceaux house referred to in Parson’s survey which he took as his guide. As a result of his work, Broussard fixed the south boundary line where the present old road runs along the land of the defendant, where defendant claims it should run.

The land in question was patented by the state of Louisiana to Auguste Marceaux, author of defendant, in September, 1876, according to the official plat of the survey of said land in the state land office. The grant of the land to Auguste Marceaux by patent was doubtless made in accordance with the official plat of survey turned in by Parson in 1876.

The principle is well settled, as contended for by counsel for defendant in the citations hereinafter noted, that the official plat of survey becomes a part of the grant or deed, and controls as to notes, lines, descriptions, and landmarks. Cragin vs. Powell, 128 U. S. 691, 9 S. Ct. 203, 32 L. Ed. 566; Houston Ice & Brewing Co. vs. Murray Oil Co., 149 La. 228, 88 So. 802; Opdenwyer vs. Brown, 155 La. 617, 99 So. 482.

If the line indicated in the Parson’s survey starting from the corner of the Marceaux house established the true south boundary line of section 31, the present roadway would be as claimed by defendant on the south boundary line of his property, and as is shown in Broussard’s survey. The contention of the plaintiff, on this vital point in the contest, is that this line so drawn from the Marceaux house was merely of a temporary character and at random, as it is indicated in Parson’s survey.

In making their surveys, Letz and Tanner did not take the house as their starting point. They proceeded by surveying all of section 31, from its four corners, also adjoining and more distant section and township lines.

Letz isays he tried to locate the south boundary line of section 31, and could find no one that knew of any old corner. The only corner he could find was the northwest corner of section 31, where he found a grate iron bar corner, and which had been known to be there for over fifty years. He proceeded in accordance with distances of the government map south from the northwest corner to the southwest corner of section 31, but could find there no corner, nor on the southeast or northeast gorner of that section. He says that in running those lines he followed Parson’s survey from the northwest corner of section 31, his starting point. He says he did not start from Marceaux’s house because it is not usual or customary in making a survey “to tie in from any house”; that if he had surveyed "from the house his line would not have “checked with anything within four miles,” north, south, east or west. He says, he ran up three miles from the northwest corner and found that his survey checked within sixteen feet of the section lines running there east and west. He also ran south a mile and a quarter and found that his line checked in with other surveys.

Tanner’s survey agrees with Letz’s survey in every essential particular. The fact is they came practically to the same conclusion in fixing the true south boundary line of section 31.

Map P. 6, in the record, shows the south boundary line of several sections which runs east and west and continues without deviation into the south boundary line of section 31, in question. As this south boundary line of these various sections leaves the western boundary line of section 31, it runs directly in a straight line into the south boundary line of section 36, which adjoins section 31, to the west. The line claimed by defendant, where the old roadway is, runs, according to Letz’s map, at the east end, 240 feet, and at the west end, 365 feet, south of the boundary line of section 31.

The adoption of the line claimed by defendant would cause a deflection in all of the southern boundary lines of these sections east and west, by a distance between 240 and 365 feet. If the line contended for is correct, all of these sectional lines are incorrect, and would have to yield to a survey which designated a house in 1876 as being the starting point for a survey on a temporary and random line.

The Supreme Court of the United States in White vs. Luning, 93 U. S. 514, 23 L. Ed. page 938, said:

“As a general rule monuments, natural or artificial, referred to in a deed control its construction, rather than courses and distances; but this rule is not inflexible; it yields whenever taking all the particulars of the deed together it would be absurd to apply it. If monuments are inconsistent with the calls for other monuments, and it is apparent from all the other particulars in the deed that they were inadvertently inserted, they will be rejected.”

Here, as the survey becomes part of the grant, and has a controlling effect, it may be subjected to the reasoning of the court above quoted in applying that rule to a deed. In the present case the house mentioned in the Parson survey is the monument which defendant relies upon as being the only starting point which could have been accepted in re-surveying the line in contest. It is apparent, as we read the evidence, that from all the other particulars appearing in the surveys made by Letz and Tanner that the usual rule which recognized the control of artificial monuments in the survey of lands, must yield to the demands of the situation here presented.

Prank Emmerson Clark, of the Minnesota bar on surveying and boundaries, p. 61, section 23, in a discussion of the question of “Harmonizing Calls,” has this to say:

“Usually fixed monuments control courses and distances, though instances are cited in this work where the Court, owing to the extraordinary situation, preferred the course and distance over the fixed monument.”

Here, it 'will be noted, that the artificial monument referred to is a house, which Letz, surveyor, took occasion to say, is not usually taken as a starting point in a survey. This, we think a sensible rule because it is not a monument of a character to give any certainty of permanency that a monument ought to have to perpetuate a survey of lands. We do not think that this case really presents any “extraordinary situation” to which the rule above quoted refers. It presents, however, a situation which justifies us in concluding that the survey made by Letz establishes the true southern line of section 31.

The lower court therefore properly issued the mandatory injunction asked by plaintiff ordering defendant to remove the obstructions he had placed across that line; also, correctly overruled the pleas of estoppel and prescription filed by defendant which have no merit.

LECHE, J., not participating.


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    No. 556
    First Circuit
    BEAUMONT BLDG. MATERIAL CO. v. BARBE
    (April 14, 1930. Opinion and Decree.)
    (May 6, 1930. Rehearing Refused.)
    Moss & Siess, of Lake Charles, attorneys for plaintiff, appellee.
    Paul J. Barbe, of Lake Charles, attorney for defendant, appellant.
   MOUTON, J.

Plaintiff company sues defendant for $190.47 balance on account for building materials sold defendant by the Lake Charles Building Material Company, then a subsidiary of plaintiff company. Its assets were purchased by the Beaumont Building Material Company, plaintiff. The Lake Charles Building Material Company had been organized to carry on the business of plaintiff company in Lake Charles and vicinity.

B. F. Mitchell) was the manager of the Lake Charles Company and Carroll Allen its bookkeeper.

Mitchell rented a house from Barbe, defendant, who was in debt to plaintiff company. The rent was at $35 per month. Barbe contends that, under the instructions of Mitchell to Allen, bookkeeper, the reut was credited on the account he had with plaintiff. He claims the rental thus due him by Mitchell during five months amounted in the aggregate to the sum of $105, which was credited on his account by Allen. He paid $84.76 to the attorneys of the plaintiff who had the claim of plaintiff for collection. His contention is that the balance of $105 was credited to his account, which constitutes, with the sum he paid the attorneys, a payment in full to plaintiff.

The record shows that Mitchell, the manager for plaintiff, had the authority to sell materials in the vicinity of' Lake Charles, and was not invested with other functions'. It is therefore apparent that he could not bind the Lake Charles Building Material Company by having the rent account he was incurring towards Barbe credited to the debt Barbe owed the company, as such an act was clearly beyond Mitchell’s authority.

The contention of the defendant is that the amount of $105, tlius credited to his account with the Lake Charles Building’ Material Company, was approved or ratified by the Beaumont Building Material Company, plaintiff.

The record shows that the two companies were owned by the same stockholders, and that the stock was prorated according to the stock held by the stockholders in the Beaumont Company. The fact is that the Lake Charles Company had been organized to carry on the business of the Beaumont Company in that locality, and was a mere subsidiary. It therefore follows from the relations which existed between the two companies that, though Mitchell could not bind plaintiff company by crediting Barbe’s account, as before stated, still, if Mitchell’s act was subsequently approved or sanctioned by plaintiff, it would be bound by ratification.

The solution of that question presents the sole issue in the case.

Allen, bookkeeper for the Lake Charles Company, says he credited defendant’s account with Mitchell’s rent, as he had been instructed by Mitchell. He says regular monthly reports of-the accounts were mailed to the office at Beaumont. He testifies that Tubre, bookkeeper at Beaumont, examined these accounts, but that he could not say if he examined the personal account of Mitchell with the Lake Charles Company. There is likewise no testimony from Allen to show that the personal account of defendant, Barbe, came under Tubre’s observation.

Tubre, on the other hand, testifies that the credits on defendant’s account were first called to his attention after the business of the Lake Charles Company had been “closed out”. Defendant refers to a statement, page 16 of the record, where this credit of $105 was charged to Mitchell’s account. Tubre explains that this statement and other like statements were embodied in a circular letter sent out to the customers of the company, and had been taken as they stood on the books or records of the company at that time. It does not therefore appear from the foregoing facts that plaintiff company, through Tubre, had full knowledge of all the circumstances which led Allen, bookkeeper at Lake Charles, to make these credit allowances in favor of defendant. There is much less to show that plaintiff company, from the facts to which we have hereinabove referred, evinced clearly and unequivocally that it intended to adopt the act of Mitchell, the manager at Lake Charles, in having its claim against defendant credited with his personal debt from which ratification on the part of plaintiff company might be inferred.

It therefore appears from the facts above referred to that there is a lack of the proof necessary to establish ratification by a principal of the acts of an agent who has gone beyond the limits of his procuration. C. C. art. 3010; Ward vs. Warfield, 3 La. Ann. 468; Copeland vs. Mickie, 17 La. 286; Rivas’ Heirs vs. Bernard, 13 La. 159; Noble vs. Plouf, 154 La. 429, 97 So. 599.

It is also well settled that ratification may be inferred from the silence of the principal if he is apprised of the act of his agent done without or beyond his authority, and does not within a reasonable time express his dissent, but no such inference of ratification will be drawn, as is well said in Guimbillot vs. Abat, 6 Rob. 284:

“Where the act was not done in the name of the principal, nor apparently for his benefit, and the circumstances of the case sufficiently account for the silence of the principal without construing it as an acquiescence in the act.”

Here, Mitchell, in having the bookkeeper at Lake Charles enter these credits on defendant’s account, was certainly acting for his own advantage, and not for the benefit of his principal. His duty was to act in the interest of his principal, and not for his personal advantage.

The circumstances of this case, as was said in Guimbillot vs. Abat, 6 Rob. 284:

“Sufficiently account for the silence of the principal without construing it as an acquiescence in the act.’’

It was further said in that case that, when such a ratification is sought to be established by a third person, “it must clearly appear that he has been misled thereby, or induced to forego some advantage he would otherwise have enjoyed.’’

In the instant case, defendant, a third person, is attempting to establish the ratification without anything to show that he has been misled, or that he was induced to forego any advantage he would have otherwise been entitled to.

The judgment for the balance of account due by defendant is therefore correct, and is affirmed for the reasons aforesaid, with cost.


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    No. 547
    First Circuit
    OPELOUSAS-ST. LANDRY BANK & TRUST CO. ET AL. v. BRUNER
    (December 30, 1929. Opinion and Decree.)

      W. J. Carmouche,' of Crowley, attorney for plaintiffs, appellants.
    Medlenka, Bruner & Chambers and Pugh & Buatt, of Crowley, attorneys for defendant, appellee.
   MOUTON, J.

The Opelousas-St. Landry Bank & Trust Company and the Steam Scheely Manufacturing Company, judgment creditors of Elmo L. • Bruner on a joint demand, filed a petition, alleging that on October 26, 1903, Elmo L. Bruner, then a resident of Acadia, had in partnership with his brother, Hal Bruner, bought an 85-acre tract of land situated in the parish of Acadia; that Elmo Bruner had, under the deed from Henry L. Garland, the vendor, now deceased, acquired one-half interest in the land, and his brother, Hal Bruner; the other half; that Elmo Bruner had remained and was the owner of record when the judgments of petitioners were duly recorded, and has never transferred his title in the land to any one, and is still the owner of record.

Petitioners further aver that Hal Bruner, the owner of only one-half interest in the land, as aforesaid, by act of sale on May 10, 1924, sold and transferred the 85 acres, or the whole tract, to Walter S. Bruner, defendant, of Acadia parish'; that he could not transfer more than his half interest in the land to the .defendant; and that Elmo L. Bruner is still the owner of a one-half interest therein. They pray for judgment ordering that Walter S. Bruner, vendee of Hal Bruner, pay their judgments, with interest and costs, or surrender a one-half interest in the property, and, in default thereof, their judgments he made executory, and that an undivided one-half interest be seized and sold to satisfy the claim of the petitioners.

Exceptions of misjoinder, of -no cause of action, were filed hy defendant, and, we find, were properly overruled.

In- answer to article 4 of plaintiffs’ petition, defendant, Walter S. Bruner, denies that Elmo Bruner ever acquired any interest in the land, and, after answering the other articles of the petition, avers in substance as follows, and which presents the defense to the suit;

That in the act of sale from Henry L. Garland it is set forth that the transfer was made to Hal Bruner and Elmo Bruner, said Hal Bruner acting for himself and his brother; that Hal Bruner acted on his own initiative, without consultation with Elmo, without his authority or consent for the purchase, and without authorization in writing from Elmo Bruner; that he signed the deed “Hal Bruner for Self and Brother”; also executed, without the consent"or authority of Elmo, ten promissory notes, each for $200 for the purchase price of the property, paying annually, and signed the notes “Hal Bruner for Self and Brother,” and, in the absence of his brother, Elmo, who when subsequently informed, repudiated the transaction, refusing to confirm or ratify the acts of said Hal Bruner; that thereupon Hal Bruner treated the property as his own, and from the year 1903 assessed it in his own name, paid all taxes from the time of the purchase, collected all the revenues produced by it, and paid all the notes representing the purchase price; that Elmo Bruner at no time made any claim against the property, attempted to exercise or exercised any rights to or over the property, or ever held himself as owner of any part thereof, but always recognized the full title in Hal Bruner; that the property never belonged to Elmo Bruner; that its full ownership vested in Hal Bruner, and therefore it is now the property of defendant, Walter S. Bruner.

Hal Bruner, vendor of defendant, was called in warranty by the latter, and adopted the defenses set up by respondent. Judgment was rendered, rejecting the demand of the plaintiffs, from which they appeal.

When the law requires a contract to be in writing (which is required for the purchase of real estate), the power to execute such a contract must also be in writing. Miller vs. New Orleans Canal & Banking Co., 8 Rob. 236; McKenzie vs. Bacon, 40 La. Ann. 157, 4 So. 65. The power to buy or draw promissory notes must also be express and special. C. C. art. 2997.

In the deed from Garland, executed October 26, 1903, it is declared that the sale is made to Hal Bruner and Elmo Bruner, and it is signed by Hal Bruner for self and brother. The 10 notes for the purchase price are signed in the same manner. There is no expression whatsoever in the deed referring to any procuration, mandate, or power of attorney from Elmo Bruner, authorizing Hal Bruner to buy the property for cash or otherwise, or sign notes or other obligations for Elmo. The fact is there is nothing in the record'to show such authority from Elmo Bruner, either in writing or by implication. As a matter of fact, Elmo was absent, being in Acadia or elsewhere when the sale was executed in Opelousas between Garland and Hal Bruner. As Elmo Bruner was not present, and had conferred no power on his brother, Hal, to buy the land or an undivided interest therein, it is clear that he acquired no ownership in the property by virtue of the sale, as “those only are parties to a contract, who have given their consent to it, either expressly or by implication.” C. C. art. 1780.

It will be observed that Hal Bruner was a self-constituted agent, and could not go beyond the limit of a procuration' which he did not have, and could not possibly exceed the powers of any mandate or agency to which article 3010 of the Civil Code refers. It is doubtful if Elmo Bruner was called upon to ratify or confirm the acts of his brother, Hal, who was not in any sense his agent or representative.

We will, however, discuss the issues under article 3010, C. C., which comes under the heading of mandate, and deals with cases presupposing a procuration, where the agent has exceeded his powers, and the principal is subsequently bound by the confirmation or ratification of his acts.

Our courts in a number of decisions have held that the principal should disavow or repudiate the acts of his agent so soon as he is informed thereof, and if he allows any length of time to pass, in silence, he will.be considered as having ratified same. This rule has been applied, it seems, where the contract has been made for another by a party, whether his agent or not, at the time. Flower vs. Jones, 7 Mart. (N. S.) 143; Pitts vs. Shubert, 11 La. 288, 30 Am. Dec. 718; Bonneau vs. Poydras, 2 Rob. 20; Ward vs. Warfield, 3 La. Ann. 468; Ball vs. Bender, 22 La. Ann. 496; Oliver vs. Johnson, 24 La. Ann. 462.

Counsel for plaintiff contends that this suit involves exclusively an attempt to vest title in Hal Bruner to an undivided half in 85 acres of land, when it stands on the record in the name of Elmo Bruner. In their petition plaintiffs allege that Elmo acquired a half interest in the land by the sale from Garland in October, 1903. The prayer is for the surrender of the property by defendant, Walter S. Bruner, and, upon failure of such surrender; for the seizure and sale of the undivided one-half interest in the land.

In this case plaintiffs are proceeding on their judicial mortgages against what they allege to be the property of Elmo Bruner, their judgment debtor. The plaintiffs’ judgments, after registry, evidently bore as judicial mortgages on the immovables which Elmo owned at the time, or such as he might have subsequently acquired, C. C. art. 3328. The demand of the plaintiffs for the enforcement of these judicial mortgages against half of the property had the effect of forcing the issue as to whether the property belonged to Elmo, as a judicial mortgage is enforceable against the immovables the debtor actually owns. C. C. art. 3328. This presents the -vital issue in the case, because, if it is not the property of Elmo, and never was, it could not be affected by any judicial mortgage resulting from judgments rendered against Elmo, judgment debtor of plaintiffs.

The defendant, a third party, had the right to show that Elmo Bruner had never ratified the sale from Garland, expressly or impliedly, by his conduct, acquiescence, or otherwise; also, that Elmo had, upon being informed of the purchase in his name by Hal, his brother, immediately, or within a reasonable time, disavowed or repudiated the contract, to establish the fact that he is not the owner of the property against which plaintiffs are seeking to enforce their judicial mortgages. The disavowal of title could be effectively established by the acts or conduct of Elmo after the sale by Garland, and by verbal proof of his actual repudiation. The proof shows that, when Elmo was told of the purchase by Hal, he immediately repudiated it; that Hal took exclusive possession following the sale, had the property assessed in his name from the year 1906, always paid the taxes, took all the revenues of the entire property up to its sale to defendant, also that he paid the 10 notes which had been given to represent the purchase price. The half interest in question was certainly not in Elmo, in whom its ownership could not be forced, without his authority and against his will or consent.

The acts of an agent beyond the limit of his procuration are null, and, unless ratified by the principal, are binding on the agent in his individual capacity. C. C. art. 3010.

In Lyons vs. Lawrence, 118 La. 461, 466, 43 So. 51, a third party was permitted to prove by parol that a father had bought a lot of ground for his minor daughter without authority, and it therefore followed, said the court, that he “bought for himself.” Even if, in this case, the real issue is not one involving a disclaimer of title, under the ruling in 118 La., above referred to, parol evidence was admissible to show the total lack of authority in Hal Bruner to buy for Elmo, and as the legal result of his unauthorized act, he must be held as having bought the entire property for himself.

Particularly should it be so held where it abundantly appears that the agent has personally paid the full purchase price to the vendor for the property, and had up to his sale to Walter S. Bruner, defendant, exercised all the acts of ownership to which it was susceptible. We. are therefore of the opinion that the undivided interest in the land in dispute is not the property of Elmo Bruner, judgment debtor of the plaintiffs, and, according to the ruling in 118 La., belonged to Hal Bruner when it was transferred to defendant. In that case parol evidence was declared admissible to show that the lot, though bought by the insolvent father in the name of his minor, was not her property. It had the effect of directly contradicting or varying a written contract of sale.

In the instant case the mere failure of Elmo Bruner to disavow or repudiate the sale within a reasonable time would have had the effect of vesting ownership in him. His repudiation did not contradict the terms of the act, but merely fixed the title in Hal Bruner, because he had bought without authority, and, as a result, bound himself in his individual capacity. C. C. art. 3010. This disavowal or repudiation herein could be shown by parol, with less objection to its admissibility than could have been advanced in 118 La. 461, 43 So. 51.

By the effect of the repudiation, the title remained in Hal Bruner, the unauthorized self-constituted agent, and the property could not be affected by the judicial mortgages resulting from the judgments against Elmo Bruner, plaintiffs’ judgment debtor, who never owned the property, and it could not be made executory against Walter S. Bruner, defendant, who had bought it from Hal Bruner, free of the judicial mortgages.

The demand was correctly rejected.