author: Bermudez, C. J. Breaux, J.

text:
    No. 1409.
    Richard Keough vs. J. Meyers & Co.
    ' Whatever be the name given to an act, its character, when necessary, may be ascertained by inquiry into the nature of the transaction and the intent of the par- * ties to it.
    An act, ostensibly a sale, the purpose of which was to extinguish a real indebtedness, is nol? a mortgage, but a dation en paiement.. s Such act, for an adequate price, containing a stipulation of the right of redemption n favor of the transferrer, within a limited time, is valid.

      The failure of the transferrer to pay the price for the redemption, seasonably, divests him of all his rights to reacquire, and the ownership accrues absolutely to the transferee.
    A sale will not be annulled on the ground of lesion beyond moiety, in the absence of clear proof of the injury.
    APPEAL from the Thirteenth District Court, Parish of St. Landry. Lewis, J.

      Kenneth Baillio for Plaintiff and Appellant:
    1. The contract must not be confounded with the instrument in writing by which it is witnessed. C. 0.1762, lien. Big 1000, No. 1, and eases cited.
    2. In contracts, the essence, rather than the form, is to be looked to. C. C. 1761.
    '$.• Where it is evident that a contract executed in the form of a sale was intended to be a mortgage, or security-contract, effect will be given to it as such.
    i. A sale it, rciHCVG, where the vendor remains in possession and where the price stated is much less than the real value of the properly, will bo treated as a mere mortgage. 16 An. 11; 5 An. 99; .31 An. .318; 23 An. 665, 201; 38 An. 891; Iff An, 307.
    ). The debtor controls the imputation of payments made. O. O. 2163.
    f». In the absence ot express imputation, the payment will be imputed to the most onerous debt. O. C. 2168.
    7. No presumption of imputation arises from the imputation carried on an account by the creditor, without the knowledge of the debtor.
    b. Open accounts arc prescribed by three years. O. O. 3538.
    An account which has never been rendered to the debtor, though closed on the creditor’s hooks, can not he considered un compte arrété, and is prescribed by three years. O. G. 3511, 3518.
    10. A defendant can not resort to a sequestration, nor use it as a means of ousting a plaintiff in a real action, while such a real action is pending, and such a pro-feeding is an abuse and perversion of the functions of the writ. O. 1\ 269, 271.
    11. On the dissolution of a sequestration improperly sued out, not only actual, but punitory damages will be allowed, wlrere it is shown that the writ was issued maliciously, and without cause.
    12. The estimate of damages is a moderate and sober one. This court has always held that sequestration is a harsh remedy, and if issued without cause, the party whose property is unlawfully taken from him should have summary redress. 2 An. S26; 1 An. 152; 7 An. 581; 5 N. 545 ; .37 An. 552.
    13. In regard to the standard of damages, it has been decided that defendants’ probable loss in being deprived of the free use and disposal of his property is the true test, and that he should be placed as nearly as possible in the situation he would have been in, had the-writ not issued. 11 R. 115; 6 L. 270; 5 An. 713.
    11. Counsel fees for defending the sequestration proceedings will also be allowed as damages. 5 An. 718; 10 An. 10; 11 An. 321; 15A n. 501.
    15. Where a party proceeds in bad faith, and the circumstances show that the purpose was to oppress and injure, and that the party knew he had no just cause of action, exemplary damages will be allowed. 6 An. .37.3; 1.3 An. 211; 9 An. 219.
    16, Sequestration'(other than judicial sequestration proper) can only be issued by

      ¡I plaintiff. O. P. 269, 274, 276 , 277, 278, 279, 280, 282.
    17. Evidence in possession of a party must be produced or its absence accounted for, otherwise the presumptions will be against him. 11 M. 4,194; 3 L. 534; 10 An. 6B9; 13 An. 397; 14 An. 207.

      Estilette & Dwpré for Defendants and Appellees:
    Defendant may bring in his answer an incidental demand. C. l\, Arts. 328,322,374.
    Sequestration may be ordered at the request of one of the parties in a suit when one claims the ownership or the possession of real property, and lias good ground to apprehend that the defendant may make use of his possession to dilapidate or to waste the fruits or revenues produced by such property, or convert them to his own use. O.P., Art. 275, Par. 3. ^
    A written contract is the best evidence of the intentions of the contracting parties. To vitiate or change its character for fraud or error, the clearest and most convincing evidence is required.
    A contract of sale will not he considered or intended for a mortgage, when the purchaser already had a mortgage and vendor’s privilege on the property. He can not be presumed to have done a useless thing.
    ISO lesion can he predicated of a mere adventure, when there was no deceit and the parties were'equally apprised of the facts. 7 An. 478.
    'The value of the property at the time of the sale is the rule to ascertain the lesion. If the value be not fixed within a certain range by the evidence, the lesion is a matter of conjecture and must be considered as not proved. C. C. 2590; 7 An. 607; 8 An. 483; 37 An. 22.
    When the property sold is left with vendor to enjoy its use as a residence and the fruits and products thereof, the value of the rent is apart of the price and consideration of the sale. 37 An. 25.
    He who seeks to avoid and annul a contract of sale for legal cause, must restore the full price. If this be in notes past due, he must pay the money.
    Actual possession, as in all contracts of pledge, is of the essence of an antichresis. O. O. 3152; 7 An. 526.
    Plaintiff must not only make out a probable case; he must make it reasonably certain, to be entitled to a judgment. «
   The opinion of the court was delivered by

Bermudez, C. J.

The object of this suit is to have an act of sale ■ of real estate declared to be an act of mortgage,, or, if not such, to be a nullity for lesion beyond moiety, and, if neithei’, to be an antichresis.

The defense is, that the transaction between the parties was a sale, with the pact of redemption; that, by the failure of the vendor to pay the price agreed on, seasonably, he has ceased to have any title to the property, and that the ownership has vested absolutely in the purchasers.

From a judgment rejecting the plaintiff’s demand, this appeal was taken.

The petition is elaborate and enters into extensive details, which it would be unprofitable to announce. As much, perhaps, may be said of the answer.

The stubborn facts of the case may well be stated to be the follow” ing:

It appears that the plaintiff, being indebted unto defendants in the sum of $1583, gave them in payment for this debt, under the form of a sale, certain property belonging to him, and that, subsequently, the purchasers sold to the vendor the same property for the sum of $1700, for notes at one and two years, secured by vendor’s-privilege and special mortgage.

Fearing that he would be unable to pay the notes at maturity, the' plaintiff retroceded in advance of the maturity the property to his; vendors, the defendants, also under the guise of a sale, on the surrender to him of the two notes cancelled, with the stipulation of his right of redemption within a delay specified, on payment of the sum of $1700. The vendor was allowed to remain in possession with-r • out charge until the 1st of January, 1890.

The vendor, who is the plaintiff, enjoyed the property during'that' time, failed to pay the amount stipulated within the fixed period,, offering in place to return the notes, not the amount of the same, and-to restore the status in quo; a proposition which was declined by the purchasers. The vendor continued in possession, time taking its course.

In the apprehension of an ejectment, the vendor, Keough, brought-' the present suit to have his sale to Meyers & Co. declared to have been: intended by the parties as a mere mortgage to secure his indebtedness to them. ,

Apprehending a failure in this attempt, he charged that the sale should be annulled for lesion beyond moiety, because the price was not $1750, the amount of the notes as stipulated, but $1107194, which was the sum at which the notes had been reduced, by partial payments and credits, and the property was worth at the date $3841.50,, more than three times the consideration truly received.

I.

It may well be, that the act of January 3, 1889, which is ostensibly a sale by Keough to Meyers & Co., the consideration of which was the return to him of his two notes of $875 each, aggregating $1750, was not in reality a sale, as there was really no price paid, or to be paid; but this would not make it to be a mortgage under any circumstance, for the very obvious reason, that there existed no sensible reason for a transaction between the parties under that form, inasmuch as the debt which could have been thus secured was at that time guaranteed by a vendor’s privilege and a special mortgage on the same property. ■

The transaction was rather a dation in payment of the property by ■Keough to Meyers & Co., in consequence of which his liability to them on the two notes was extinguished,- which were cancelled and returned to him.

II.

The next complaint, somewhat inconsistent and antipodal, is that, if the transaction was not a mortgage but a sale, it should be annulled for lesion beyond moiety.

On this score the plaintiff contends that the real consideration was §1167.94, and that the property was worth §3841.50.

It is unnecessary to stop to consider whether the plaintiff is or not entitled to the credits which he claims on the notes, and it shortens investigation to accept his own figures.

On the trial' he offered testimony to show the value of the property. Two of his witnesses appraised it at §2500, and a third one at between §1200 and §1400; while the three witnesses heard on behalf of the defendants, equally reliable, estimated it from §1100 to §1300, which would give an average of §1600, at the most §1700.

Now, if the consideration was §1167 and the worth of the property was §1600, or even §1700, how can it be seriously claimed that there was lesion beyond moiety?

During the trial the property was offered by Meyer to Keough for §2000, in which were, probably, included the §1700 and the value of the occupancy and enjoyment by Keough, §300. The offer was not accepted.

It would seem, besides, that Keough should be, to some extent, estopped from claiming that the property was sold for less than half of its value, for the reason that it appears that on April 24, 1884, he gave it in payment to Meyers & Oo. of the sum of §1583, which he acknowledged then owing them, and they, on the same day, sold it, apparently to him, for §1750, for which he issued the two notes already mentioned. No material subsequent enhancement has been shown.

III.

The pretension that the transaction was in the nature of an antichresis is abandoned.

The District Judge made a correct appreciation qf both facts and law. k

' We concur with him that the act was not a mortgage, but a sale; that the property was transferred for an adequate and just consideration ; that the failure of Keough to redeem the property within the time limited has stripped him of all claim to the ownership, which has thereby absolutely vested in Meyers & Oo., who must be quieted therein.

Judgment affirmed.

On Application for Rehearing.

Breaux, J.

Plaintiff, in his petition for a rehearing, urges that his alternative plea has not been especially referred to in the opinion.

The fact is, that we did not refer, in term, to a difference of $532.06. It is also averred that we did not decide by special reference to the legality, vel non, of the writ of sequestration sued out by the defendant, as plaintiff in reconvention.

Our opinion leads inevitably to one conclusion:

If $1700 was the purchase price at which the property claimed was transferred by act of 3d January, 1889, it included the $532.06; special mention of the fact was of no importance, as it was made evident by the decision that it is included in summing the consideration of the transfer. The title of the defendant to the property having been recognized, for the same reason the writ of sequestration and the motion for its dissolution were not referred to specially; the writ was maintained by the conclusion reached.

We will reconsider plaintiff’s propositions -and write down the grounds of our conclusions.

In plaintiff’s petition, the correctness of the settlement of April 24, 1884, in so far as relates to the debit side of the account, is admitted.

The balance was $1750, for which plaintiff executed his two notes of $875 each.

Plaintiff alleges that on the 18th day of November, 1884, he delivered to defendants four bales of cotton, charged at $171; on the 2d December, 1884, $15 was paid.

Plaintiff charges that $18 were overlooked in 1880.

Petitioner represents that these several sums were intended by him as payments on the note first falling due.

On the 3d of January, 1889, he sold to defendants one of the tracts he bohght in 1884 for $800 cash, and he avers that this amount was to be credited on defendant’s claim. .

On the same day another tract was sold by them to him for $1700. The vendor was given until the 1st day of January, 1890, to redeem the land on payment of this amount, which he in the deed solemnly admitted to be due.

The deed before mentioned recites that in case the vendor shall well and truly pay to the purchasers * * * the sum of $1700.” The plaintiff contends that there was error in that declaration; a •contention he has failed to prove. He testifies that he believed when he signed the act of January, 1889, he had been credited by -the defendants, and that he remained indebted in amount expressed by the last mentioned balance; that some time afterward he discovered that proper credit had not been given.

These deeds contain his declarations solemnly made with reference to the amount due.

The defendant testifies directly and positively that the recitals of the deeds are all correct.

He produces his accounts.

These show the balances set forth in the deeds. The plaintiff’s positive denial is the only testimony to set aside the deed as incorrect. The plaintiff swears that $1167.94 is the amount. The defendant testifies it is $1700. The conflicting testimony can lead but to one conclusion, that the declaration in the deed is correct.

They are the deed3 of the plaintiff as well as those of the defendants. We only enforce their terms and conditions and leave the plaintiff where he deliberately and solemnly chose to place himself.

With reference to the demand for the dissolution of the writ'of sequestration, it does not present insuperable difficulties. Plaintiff’s able and energetic counsel will admit that a pleader becomes a plaintiff in a demand by him in reconvention.

As- plaintiff in reconvention, the owner of an immovable property can- have it sequestered under Act 275, of the O. P.

The demand that the act of January 3,1889, be treated as a mortgage and not a sale; that, if treated as a sale, it be annulled for lesion beyond moiety, has been reconsidered.

With the evidence before us, we have risen from the consideration convinced that these transactions between the plaintiff, debtor, and the defendants can not in law bo changed or annulled.

The condition was that if plaintiff did not pay the $1700 on January, 1890, the place sold would be by him delivered to the defendants.

The amount is proven as correct, and the delivery was but in compliance with plaintiff’s obligation as vendor.

Rehearing refused.


source: Caselaw Access Project

author: Fenner, J.

license: Public Domain

text:
    No. 1405.
    A. G. Barnard, Sheriff and Tax Collector, vs. Gall & Pharr.
    1. The Legislature has the right to exempt any business or occupation from license tax, and no license can be.exacted not imposed by the terms of the law.
    2. The General License Act of 1890 was designed to formulate complete and exclusive regulations for license taxation for 1891 and succeeding years, and operated the supersession and repeal of the prior Act of 1886, so far as relates to common subject matter.
    3. Courts may take judicial cognizance of the official journals of the houses of the General Assembly in order to aid them in ascertaining the true legislative purpose and intent when the same is doubtful.
    1. When the legislative intent is clear, the court should enforce it, and not resort to artful construction in order to defeat it.
    APPEAL from the Twenty-first District Court, Parish of Iberia. Mouton, J.

      Edward, WeeJes for Plaintiff and Appellant:
    1. Section 3 of Act No. 150 of session of 1890, imposes a license on all manufactories not expressly exempted by Articles 206 and 207 of the State Constitution. Sawmills are manufactories (35 An. 998; 38 An. 398; 41 An. 996 ; 42 An. 1119), but are not exempted by the Constitution. Hence they are liable to license under Section 3 of Act 150, of 1890.
    3. Where an act expressly declares that it repeals only such portions of existing laws as conflict with it, this expression must govern; and such portions of existing laws as do not conflict with it continue in full force and effect. Sutherland on Statutory Construction, Sees. 155, 327,147,288; 39 An. 441; Saunders on Taxation, 246 ; 23 An. 140; 16 An. 379; 20 An. 140, and authorities.
    -3. Courts will not take judicial cognizance of legislative journals. Lottery Mandamus Suit, 43 An. —; 23 An. 376; 42 An. 1006; 33 An. 963; 28 An. 415.

      Walter J. Burke for Defendants and Appellees:

      In an act imposing a license tax for a particular year “ and for each subseejticnt year upon each person, association of persons or business firms pursuing any trade, vocation, calling or business except those expressly exempt by Articles . 206, 207 of the Constitution,” when the Legislature has failed to name specifically any particular avocation, etc., among those to be subject to a license tax,, the inference is that it was not intended to have been subjected to the license tax. 22 An. 561, State vs. Hearsay & Dupre; 85 An. 825, Forman vs. Board of Assessors; 85 An. 1154, N. O. Cotton Exchange vs. Board of Assessors; Cooley on Taxation, p. 102; Sutherland on Statutory Construction, p. 457, etseq.

    When necessary, the court may refor to the journal of the House of Representatives- and of ,the Senate when seeking the intent of the lawmaker. Sutherland on-Statutory Construction, Sec. 800; Wharton on Kv., Sec. 296; Sedgwick on Stat..
    , Const., 2d Ed., 54; Gardner vs. Wall, 6 Wall., 508; South Ottawa vs. Perkins, Otto. IV.
    The power granted to the Legislature to levy a license tax is discretionary and not mandatory. The State may abstain from imposing a license tax on any occupation, etc. 88 An. 826, City vs. Mulo; 82 An. 82, 2s. O. vs. Bank; 42An.5GO„ State vs. Dupre & Hearsay.
    If two statutes relate to the same subject matter, though not in terms repugnant or inconsistent, if the latter one is plainly intended to prescribe the only rule that shall govern, it will repeal the earlier. Sedgwick on Const, of Stat., pp. 104, 154; 12 An. 482; Sutherland on Statutes, 104; King vs. Cornell, LOG ti. S. Itep., p. 895; Murdock vs. Memphis, 106 U. S. Rep. 601.
   The opinion of the court was delivered by

Fenner, J.

The parties are agreed as to all the facts, and the sole question presented for our determination is one of law, to-wit: Whether or not the existing law of the State subjects the business of conducting a saw-mill to license taxation.

It is fully settled by prior decisions that the power granted to the Legislature to levy license taxes is discretionary and not mandatory, and that the Legislature may exempt or abstain from taxing, by way of license, any particular business or occupation. City vs. Mule, 3S An. 826; City vs. Bank, 82 An. 82; State vs. Dupre, 42 An. 560.

The existing general License Act was passed in 1890. The act in. force prior thereto was the Act of 1886.

These two acts bear similar titles, cover the same general subject matter, pursue the same order, and adopt the-same sub-divisions of the subjects of taxation. Indeed, it requires close study to diseovei* the few differences between them. Under the head “Miscellaneous,” the 9th section of each act provides for licensing of a large number of businesses therein enumerated. After a very close scrutiny we discover these sections of the two acts to be identical in every respect, with the single exception that the Act of 1886 embraces the-word “saw-mills,” in its enumeration of the businesses taxed, whereas the Act of 1890 omits it.

Out of this difference arises the controversy.

The tax collector, in support of his demand for license, contends, that the omission of “ saw-mills ” from the enumeration in the Act of 1890, is of non-effect, because the act contains no general repealing clause, but only provides “ that all laws or parts of laws in conflict with this act are hereby repealed.” He contends that- there is. no conflict between the Section of the Act of 1886, which expressly taxes the business of saw-mills, and that of 1890, which simply omits, to tax it, and, therefore, that this provision of the Act of 1886 is unrepealed and remains in force. We can not approve this view. It seems to us perfectly clear that the Act of 1890 was designed to-formulate complete and exclusive regulations for the license taxes to-be imposed for the year 1891 and subsequent years, “ on all persons,, associations of persons, or business firms and corporations, pursuing any trade, profession, vocation, calling or business,” as declared in its title. It is not a question of consistency or inconsistency of the two acts; it is a question of the supersession of the former by the later act. The rule is well settled, as declared by Mr. Sedgwick,, that even though the two statutes be not repugnant or inconsistent, yet if they relate to the same subject matter, and the later statute-was clearly intended to prescribe the only rule that shall govern, it will repeal the former act. Sedgwick, Stat. Const, pp. 100, 104.

Our view is expressed in the very words of the United States. Supreme Court in an analogous case: “A careful comparison of these* two sections can leave no doubt that it was the Legislative intention, by the latter statute, to revise the enfire matter to which they both had reference, to make such changes in the law as it stood, as they thought best, and to substitute their will in that regard, entirely, for the old law on that subject. We are of opinion that it was their intention to make it a new law, and that law, embracing all that was intended to be preserved of the old, omitting-what was not so intended, became. complete in itself and repealed -all other laws on the subject embraced within it.” Murdock vs. Memphis, 106 U. S. 601; King vs. Cornell, 106 U. S. 395.

We are also referred to the official journal of the House of Representatives, showing that the Act of 1890, as originally presented,, contained the word “saw-mills,” and that an express amendment, to strike it out was offered and adopted.

Strenuous objection is made to our considering this reference, on the ground that the journal was not offered in evidence on the trial. Authorities are quoted to the effect that private statutes will not receive judicial cognizance unless offered in evidence; but these authorities do not cover the present point.

The official journals to be kept by the houses of the General Assembly are prescribed and regulated by the Constitution. They ■constitute official records and import presumptive verity. High authorities maintain the right of courts to refer to them, in order to ■ ascertain the purpose and intent of the statute when not clearly expressed. Cooley Const. Lim. (4 Ed.), p. 164; Sutherland on Stat., Sec. 300; “Wharton on Ev., Secs. 269, 290; Sedgwick Stat. Const., 54; Gardiner vs. Wall, 6 Wall. 508.

This court has frequently taken cognizance of such journals. Jones vs. Sheriff, 35 An. 999; Planting Company vs. Tax Collector, 39 An. 461.

This amendment establishes very clearly the legislative intent to •exclude the business of saw-mills from license taxation.

It is claimed, however, that saw-mills are covered by Par. 1 of Sec. 3 of the Act of 1890, which imposes a license tax on “ each business of manufacturing not expressly exempt by Arts. 206 and 207 of the Constitution,” This clause is copied from the prior Act of 1886. It did not, in that act, embrace saw-mills, because they were expressly provided for in Section 9. It would be a very strained and unreasonable construction to extend the meaning of the same clause in the Act of 1890 so as to embrace saw- mills, when the Legislature had .just manifested its purpose to exempt saw-mills by striking them out of the enumeration in Section 9. This would be to defeat, instead of enforcing, the manifest legislative intent.

We think the court below did not err in rejecting the tax collector’s demand.

Judgment affirmed.


text:
    No. 1410.
    Charles H. Brown, Tutor, et al. vs. Edmonia Broussard, Wife, et al.
    1. Ambiguity or obscurity in the description of the thing sold is to be construed against the seller. C. O. 2*174.

      2. A sale for a gross piece of land described by meter and bound, is asalejper arersionem.

    a. All parts of the act of sale arc to be construed together, and obscurity in the description of one boundary may bo removed by other recitals in the deed showing the nature and extent of the thing sold, aided by evidence of the acts of the parties in delivering and receiving the possession.
    4. Kven if defendant’s title were doubtful, her plea of ten years’ prescription would be fatal to plaintiff’s demand.
    A PPEAL from the Thirteenth District Court, Parish St. Landry. -l jl Leiois, J.

      W. S. Frcizee and Thos. H. Lewis for Plaintiffs and Appellees:
    To support the plea of prescription of ton years for the acquisition of an immovable, the possessor must hold for that period a just title. O. O. 8474.
    His possession must be continuous and uninterrupted, peaceable, public and unequivocal. C. O. 8487.
    A just title is one derived from one whom the vendee honestly believed to be the rea owner; it must also be a title such as to transfer the ownership of the property. O. O. 3484. The possessor must have the positive belief that he is the true owner. If he doubts the validity of his title, hispossession can not be the basis of the prescription of ten years. Louke’s Digest, page 561, No. 2. And one shown to be a purchaser in bad faith can not sustain the prescription of ten years.
    A possessor in bad faith is accountable for rents and revenues. O. C. 3453. O. O. 502-3.
    One selling so many arpentsfront by a depth of forty, conveys the superficial quantity wb ieh results from multiplying the front by the depth, unless the contrary
    be expressed. GTJ.S. 700; 7 TT. S. 120; 12 La. 139; 18 La. 103.

      Kenneth Baillio for Defendants and Plaintiffs:
    There can be neither increase nor diminution of price on account of disagreement in measure, when the object is designated by adjoining tenements,and sold l'rom boundary to boundary. C. C. 2495.
    A sale in which specified boundaries are given is a sale per aversionem, or a sale from one fixed boundary to another, which includes all the groundbetween the points mentioned, whether the measure be correctly staled or not, the calls for a boundary controlling the enumeration of quantity. 16 La. 333; 18 La. 526; 19 La. 422; 1R. 34; 2 R. 357; 9 R, 30; 15 An. 76; 1G An. 11G.
    In a sale per arersionem, nothing is conveyed but what is contained between the giveiijboundaries; and deficiency in the quantity does not entitle the purchaser to demand a recession of the sale or diminution of the price. C. O. 854,2495 ; 3 La. 91; 14 La. 497; 2 An. 808.
    Tn a sale per arersionem, if there be error as to quantity but none as to boundary, the vendor can not claim any excess over the quantity specified. 5 N. S. 243; 8 N. S. 160; 2 La. 502; 7 La. 457.
    Where land well known to the purchaser, is sold by specific boundaries, not as designating the situation of the property, but as indicating the bounds within which a vendor sells, It is a sale per arersionem. 8 La. 91.

      A sale for a gross sum of land described as bounded on one side by tlie limits of A,, and on tlie other by the limits of B, where the land has been cultivated as a plantation and fenced on each side, is a sale per av ersionem. 4 Ba. 536.
    Good faith is always presumed. C. C. 3581.
    He who acquires an immovable in good faith, and by a just title, prescribes for it in ton years. O. O. 3478.
    The ownership of movables is prescribed for by thirty years without any need of-title or possession in good faith. C. O. 3499.
    All parties interested in a contract must be made parties to an action to annul it. 26 An. 388, 467; 28 An. 454.
    An agent can not disclose confidential communications without the consent of his. client. Greenleaf, Vol. 1, par. 239.
    In a petitory action plaintiff must make his claim to the property legally certain, both as to title and identity. 12 R. 46; 10 M. 293; 15 An. 410; 23 An. 274 ; 22 An. 59.
    As against defendant in possession, plaintiff must show a title as good as any outstanding title. 3 R. 206; 10 R. 505; 11 R. 233; 35 An. 609.
   The opinion of the court was delivered by

Fenner, J.

This is a petitory action brought by the heirs of Antoine Ynogosa to recover from the defendant a certain tract of land in possession of defendants which they aver was the property of their ancestor and has never been alienated by him.

The defendant claims as owner under a chain of titles running-back to Ynogosa, and also pleads the prescriptions of thirty and of. ten years.

Ynogosa acquired the land by purchase from th3 estate of Widow Jean Savoie in 1829 by a deed which describes the land as follows:

• “ A tract of land situated, lying and being in the afpresaid parish on the Bayou Caranero, bounded on one side by land of Augustin Guidry. and on the other side by land of John H. H. Smith, having seven arpents front by forty arpents in depth — together with the dwelling house and yard fence thereon, reserving all other improvements thereon, being'the same tract of land on which the said deceased last resided.
“ And also sixty arpents of woodland, that is to'say three arpents front by twenty in depth, bounded on one side by land of Widow David Guidry and on the other side and on one end by land of Jean Savoie.”

In 1848, Ynogosa sold to Joseph and Neville Boudreau by the following description which we translate from its original French: “ A certain tract of land established as a plantation, situated on the-Bayou Carenero, measuring four arpents front by twenty in depth,. being the northwest side of said bayou on the T. 8. S. of R. 4. E., described on a plan made by John Denismore, dated April 14, 1811, and delivered by said vendor to the said Boudreau, and bounded on one side by the plantation of John H. H. Smith, and on the other by the public domain, together with all the buildings thereunto appertaining, and also a certain piece of woodland situated and lying on the same bayou containing thirty superficial arpents bounded on the east by Raphael Richard, on the north by Achille Savoie, on the ■south by J. A. Guidry, on the west by land of the vendor, being the •same lands acquired by the vendor at the auction of Widow Jean Savoie about the year 1830.”

The price was the- gross sum of $2500. The first question that presents itself is whether this was a sale per aversionem or a sale of so many acres.

Plaintiffs claim that it simply transferred four arpents front out of the seven arpents front owned by Ynogosa, and that the remaining three arpents front by forty in depth were hot conveyed, but remained the property of their said ancestor.

The defendant claims that it was a sale per aversionem of the whole tract purchased by Ynogosa from the estate of Savoie as declared in the act, which, as a whole, was “ established as a plantation,” as also declared in the act.

The description of the thing sold is obscure and ambiguous. The Code, Article 2474, declares: “The seller is bound to explain himself clearly respecting the extent of his obligations; any obscure or ambiguous clause is construed against him.”

Upon its face the sale was intended to be per aversionem. It is made for a gross sum and is described by specific boundaries. Johnston vs. Quarles, 3 La. 91; Curator vs. Wells, 4 La. 536.

If the porthern boundary had been correctly stated as being bounded by lands of Guidry, there would have been no room for dispute. The erroneous statement of the number of arpents front could, in that case, have made no difference. The only difficulty arises from the statement of the northern boundary as being “the public domain.” But that statement is totally inconsistent with the theory of plaintiffs that the sale embraced only four arpents next to the southern line of John H. H. Smith, because, in that case, necessarily the northern boundary would have been by land of the vendor.

In truth, it is quite evident that the variances in description, both as to the number of arpents front and as to the northern boundary, arose from the fact that the notary who drew the act did not have before him the precedent deed from Savoie to Ynogosa. This appears from the reference to that title as having been acquired “about •the year 1830,” whereas the true date, as appearing on-its face, was March 13, 1829. We think the true meaning of the act is controlled by the recitals that the sale was of an “established plantation,’^ and that the land conveyed was “ the same lands acquired by the vendor at the auction of Widow Jean Savoie,” without making any reservation therefrom.

The evidence is conclusive that the entire tract was embraced in •the plantation; that the cultivated land was included between fences on the northern and southern boundaries, and that several of the plantation buildings were located on the northern three arpents front now claimed by plaintiffs.

It is further shown that Ynogosa pointed out the boundaries to. the purchaser, Boudreau, and delivered to him the whole tract; that he asked permission to remain for a time after the sale in the house,, which, according to the preponderance of testimony, was on the land now claimed by plaintiffs; that the permission was granted, and that he was taken ill and died there. There have been numerous translations of title, and all the purchasers have possessed and, used the entire tract as one undivided plantation; have maintained • fences on the northern boundary, and have continuously cultivated-parts of the land claimed by plaintiff. A large number of witnesses from the neighborhood testify to these facts, and all agree-that the whole tract had been always regarded as one plantation and as belonging to one owner.

We are thoroughly satisfied the sale by Ynogosa was intended to. be a sale per aversionem of the entire tract, as one established plantation, for a gross price in no manner relating to the number of arpents, ahd that it operated a complete divestiture of Ynogosa’s title.

The youngest of the minor plaintiffs attained majority in 1869, and much more than ten years had elapsed before this suit was brought or any claim set up on this land.

We think the defendant and her authors possessed all the elements of possessors as owners in good faith under a just title as defined in Articles 3473, 3478, 3451 and 503 of the Oivil Oode, and her plea ofi prescription of ten years, if necessary to sustain her title, would unquestionably be good. The attempt to impugn the good faith of defendant by bringing home to her knowledge of any defect in the ■title is not successful. She never doubted her title, nor do we.

Equally futile is the assault upon the possession. It was complete,, continuous and uninterrupted.

The verdict and judgment appealed from were manifestly erroneous.

It is, therefore, ordered and decreed that the verdict and judg-ment appealed from be annulled and set aside, and it is now decreed that' there be judgment in favor of defendant, and rejecting the-demand of plaintiffs at their cost in both courts.


author: Watkins, J.

text:
    No. 1411.
    Francois Savoie vs. Michael Scanlan.
    1. A statement, made in a public place, in the presence and hearing o£ persons there congregated, that a certain individual named, who resides in the vicinity, is a damned rascal, or a rogue, and that he had stolen all the property he possessed, is, if untrue, a slander per se.

      2. Tn the absence of proof of malice, the use of such opprobious epithets, implies malice, and it suffices to maintain an action for the recovery of damages without special injury being proved.
    3. Both malice and injury may be inferred from the nature and falsity of the words, and from the circumstances under which they were uttered, without the necessity of special proof.
    4. ICvcry person has a right to enjoy that degree of respect, good-will, and social or business distinction to which his own acts and his social or business habits-entitle him, and any one who unlawfully interferes with this right, by circulat ing slanderous reports, renders himself liable for the consequent damages.
    5. tender the law and jurisprudence of this court appertaining to libel and slander, tliesoare mixed questions of law and fact, of which courts are better judges than jurors are.
    APPEAL from the Thirteenth District Court, Parish of Acadia. Lewis, J.

      Kenneth Baillio and C. W. DuRoy for Plaintiff and Appellant:
    1. JCvery act whatever of man, that causes damages to another, obliges him b> whose fault it happened to repair it. C. t.’. 2315.
    2. In an action of slander the only possible defenses are: either a denial or a justification, or a confession under'mitigating circumstances. R. S. 3640; 14 An. 406; 15 An. 166; 36 An. 469; 38 An. 162. -

      •3. There is no such tiling in law as a half way justification. Townsend, Libel and Slander, Par. 212, and note.
    4. An answer which both denies and justifies, equivocates and is inconsistent. 10 An, 231; 28 An. 238.
    •3. Charging plaintiff with being “ a rogue,” is slanderous and actionable, as tending to his infamy, discredit and disgrace. Starke on Slander, Vol. 1, Par. 12, IB, 14,15,16,17; C. C. 2315, 2316; 15L.389; Miller vs. Holstein, 12 An. 894; 23 An.280; 36 An. 469; 38 An. 162; 6 An. 779.

      «). The use of opprobious epithets implies malice, where they arc slanderous per se. Starke on Slander, Vol. 1, Preliminary Discourse, Par. 33,14,15,16, 17; 11 An. 206; 33 An. 914; 38 An. 162.
    7. Maiicc implied in the use of opprobrious charges do not mean a spite against the individual, but mains animus, a wanton disposition grossly negligent of the rights of others, 11 An. 206; 36 An. 469.
    *8. Malice is an imputation of the law from the false and slanderous nature of the charge. Legal malice need not be proved. 3 L. 207; 2 R. 365; 5 R.116; 811 51; 25 An. 170; 36 An. 467.
    :9 The maliciously calling a man a rogue is actionable. Starke, Vol. 1, Par. 12 to 17; 6 An. 779; 16 L. 389. Where the law implies malice — i. e., where the words are slanderous^cr se, damages are recoverable without proof of special injury. 14L. 198; 16L. 3S9; 12 An. 894; 23 An.280; 25 An.175; 27 An. 219; 29 An.172; 36 An. 469; 38 An.162; Sedgwick, Measure of Damages, Par. 39; 34 An. 914; G.G.1934.
    40. Malice is implied from the circumstances of the case; from the conduct of defendant; from the nature and falsity of the charges; from the injury necessarily consequent thereon. Both malice and injury may be inferred from the nature and falsity of the words, and from the doing of the wrongful act without lawful justification or excuse, and from want of probable cause. Starke, Par. 212,213,214 and cases cited; 40 An. 423; 27 An. 214; 11 An. 206; 16 L. 389; 3 An. 69.
    11. Intemperance, or drunkenness, is not a defense to an action of slander. Townsend, Libel and Slander, p. 249; Ogders on Libel and Slander, p. 169; 5 111. 30; 25 Iowa, 87; 38 An. 163.
    12. In an action for slander, other words than those charged, spoken at other times and places, may be proved to show malice. 6 X. S. 501.
    •13. Where a party circulates defamatory charges on mere rumor he can not screen himself by proof of such rumors. 15 An. 492.
    .14. Kvery person lias a right to enjoy that degree of respect, good-will, and social and business distinction to which his own acts and his social and business habits entitle him, and anyone who lawfully interferes with this right by circulating scandalous reports renders himself liable for consequent damage. Starke on Slander, p. 99, Xo. 2.
    45. Injuries to the feelings and to one’s social standing are not susceptible of precise adjustment, but such injuries are recognized as a legitimate ground of action for reasonable indemnity. 17 An. 64; 19 An. 322; 23 An. 280; 38 An. 162.
    46. This court has granted the following sums, as reasonable compensation, in the following oases of slander or libel, viz.: $450 for a charge of forgery in 14 L. 198; $500 for a charge of being a rascal, and false swearing in 16 L. 198; $400 for a charge of stealing in 6 An. 779; $1000 for malicious words in 19 An. 322; $1000 for slanderous epithets in 17 Am 64; $500 for slanderous words in 38 Am 162
    47. Iftihus in uno falsus in omnibus.

      John N. Ogden and E. P. Veazie for Defendant and Appellee:
    'The use of opprobious epithetá in a moment of irritation, no injury resulting from sneli transient expression of angry feeling made in an unreflecting moment, is not actionable. Rouques’ Digest, p. 376, No. 10 ; citing 15 An. p. 48; Artieta vs. Artieta.
    In an action for slander, plaintiff must prove malicious intent. Rouques’ Digest, p. 376, No. 15; citing 21 An. p. 308; Toy vs. McMahon.
    Words uttered without malice and under circumstances from which no malice is in law implied, carry with them no pecuniary responsibility. Hennen’s Digest, p. S14, No. 24; citing S An. p. 130; Gilbert vs. Palmer.
    The verdict of a jury will not be disturbed unless manifestly erroneous. 17 An. pp. 30 and 50; 20 An. pp. 455 and 458; 6R. pp. 31 and 492 ; 22 An. p. 31; 31 An. p. 430 .
    Questions involving the credibility of witnesses are peculiarly within the province of the jury. 9 R. 300; 21 An. 182; Brown vs. Saddler.
   The opinion of the court was delivered by

Watkins, J.

Plaintiff is appellant from an adverse judgment based on the verdict of a jury, rejecting his demand against the de-, fendant of $5000 damages for slander and defamation of character.

The charge made in the petition is, that at the store of one Mc-Clelland, in the parish of St. Landry, on the 20th of October, 1888, same being a public place, the defendant, Michael Seanlan, in a public manner, and in the presence and hearing of the bystanders who had congregated there, “maliciously, wickedly, slanderously, libel - ously, and with the malicious and wicked intention to defame and slander, publicly called [him] a scoundrel, or in the vernacular [of the] public said that [he] was ‘ a rascal,1 ‘ a damned rascal,’ and ‘that the property he owned he had stolen, and that (Seanlan) could prove these accusations from the public records.’ ”

Petitioner avers that he is, and has always been, a citizen of the parish of Acadia, where he has always borne a good name for fair dealing and honesty, and is engaged- in farming and mercantile pursuits. He avers that his good reputation is due to his uniform good conduct as an honest man, and that he has thereby attained a position as an honorable citizen and a just man; and that his ‘ ‘ good name and fame have acquired [for] him credit in the commercial world, and a position for himself and family in society.”

He further avers that the aforesaid “ accusations are false, libelous and slanderous, and [that they] involve great moral turpitude, and were wickedly and maliciously uttered by the defendant, with the unlawful and malicious intent to injure and defame him. That these defamations seriously damaged [him] in feeling and reputation, and,' that he has thereby suffered great mental agony and humiliation. ”- He further avers that he has never given the defendant any “cause or excuse for the utterance of (said) false, malicious and wicked slanders, and that said Seanlan was prompted to so.utter, them through sheer malice, and with intent to defame and, injure him.”

He places his damages at $5000, and prays for judgment accordingly.

In his answer, the defendant avers, “ that if he used any remarks whatever regarding the plaintiff, of an injurious character, that the words used were (so) used by him in a moment of temporary irritar tion, caused by remarks made by the plaintiff derogatory to the Farmers’ Alliance, of which defendant is a member. That no words used by him on that occasion were premeditated, or intended to -injure the plaintiff, or to damage him, even in the remotest degree'. That any transient expression of angry feelings on (his)-part, without- malice, was made at a small store, in which there were but few persons, and that no currency or circulation was given to said statements by (him), either before or after said meeting at the store.

“ That if any currency or circulation has been given to said words,, it was done by the plaintiff, and by his son-in-law, Joseph McClelland,, who was one of the parties present at the store.”

He charges that plaintiff is actuated by avaricious and unworthy motives in bringing this suit, and is also governed by a desire to. harrass and annoy him thereby; and he avers that his action is causeless, vexatious and annoying, and has caused him damage in loss of time, vexation, trouble and attorney fees, in the sum of $300, for which he prays judgment in reconvention.

We have reproduced all of the salient points of the petition and answer, as the most appropriate and effective method of stating the case as it was stated to and tried by the jury; and therefrom it will appear, that slander is charged distinctly in the former, and not denied, but on the contrary, tacitly admitted in the latter; and that with a guarded admission is coupled a plea of justification and excuse.

On these pleadings, evidence pro et con was introduced, and it may be fairly summarized as follows, viz.:

That on the date, at the place and under the circumstances given in plaintiff’s petition, and in the course of a conversation had and held by and between the defendant and Boone and McClelland, on a business matter, the defendant stated that the plaintiff, “ Savoie, was a rogue, and that he had stolen everything that he owned, and that he could prove that he was a rogue by the records at Crowley” —i. e., the site of the court house of the parish of Acadia, where plaintiff lives.

Those two witnesses recite, circumstantially, the origin and history of the conversation in which the foregoing statement was made; and they affirm that nothing was said or done on that day to irritate the defendant, and that the plaintiff was not present at all. They state that, on the contrary, defendant was a little excited, but did not present the appearance of being angry, though he spoke in a loud tone of voice.

Notwithstanding the defendant and his son (who was in company with him on the occasion) were interrogated as witnesses on the former’s behalf, neither of them denied the truthfulness of the testimony of the plaintiff’s witnesses; but, during the course of the trial, one of the jurors propounded to the defendant this question, viz.:

“ Q. Was the rumor current in the neighborhood concerning what Mr. Savoie had said or done to the members, and those that wished to join the order, that aroused your feelings [and caused you] to use the language charged in the pleadings? ”
“Ans. Yes.”

This is a confession of the defendant on oath, under circumstances of alleged mitigation; but the plaintiff emphatically denies the statement he is alleged to have made concerning the Farmers’ Alliance, which are referred to in the above interrogatory; and McClelland affirms the truth of plaintiff’s statement to that effect. In addition to this, an intimate friend of the defendant testifies that the defendant made the following statement to him, after the suit -had been filed, viz.:

“ I do not recollect if I said these remarks about Mr. Savoie, but if I did, be Jesus I will prove them on him by his kinfolks.”

Each of the plaintiff’s witnesses admits having repeated to others the charges defendant had made against the plaintiff, and, amongst others, one of them repeated them to the plaintiff himself, on the day after they were made.

The proof shows that the plaintiff is a gentleman of good standing in the community in which he lives; and that he is a planter and merchant, and gins cotton for the farmers of the neighborhood. It also shows that the plaintiff’s family consists of a wife and nine children; that he is over fifty years of age, and that he was born in the parish of St. Landry, and always resided therein until Che new parish of Acadia was formed and his property was therein incorporated.

It appears, also, that the defendant is a man of family,-fifty-four years old, and a farmer by occupation, and that he is respected and Avell thought of in the neighborhood.

The testimony clearly establishes all of the averments made in the plaintiff’s petition, and that the slanderous utterances of the defendant are libelous and untrue; and that he had not the slightest ground or excuse therefor. The statement, publicly and seriously made, that a reputable citizen is “a rogue, and that he had stolen everything he owned,” and that these charges could be proven by simple reference to the parochial archives, constitutes a slander per se. They are shown to have been made altogether without provocation on the part of the complainant, who was at his home, nine miles away, at the time. They were made with great apparent deliberation, and not, as is stated in the defendant’s answer, “in a moment of temporary irritation.”

Considering the defendant’s station in life, his occupation, age and family, it is easily perceived that he was much grieved and annoyed, and felt injured in reputation and feeling by these ignominious and slanderous epithets and libelous charges.

In the course of the plaintiff’s interrogation as a witness, the following occurred, viz.:

“ Q. Have you not been damaged by these statements, made by Scanlan, as proved here to-day?”
“ A. Í have.”
“ Q. In what manner — please state to-the jury?”
“A. In the first place, I feel that I am hurt, to have to carry such a name through the public. In the next place, my feelings have been hurt, as these things have been repeated to my wife and children by the public, and fearing that the public would believe them, I would be ashamed to go out in their company. This thing has caused me a great deal of worry of mind, to try and try and vindicate myself to the public in which I live; and it has caused me some mortification.”
“ Q. What has been your reputation among your fellow men?”
“ A. So far as I know, it has always been good.!’
Q. What has been your social position in the parish?”
“A. Always good.”
“ Q. Have you ever held official position in St. Landry parish, before its division; if so, what?”
“ A. Only a member of the police jury, and president of that body.”
“ Q. Considering the injury to your feelings, mental anxiety, mortification, and injuries which you say these accusations have caused you, [at] what do you estimate your damages, in dollars and cents?”
“A. For what [the] petition calls, as my name is better than money.”

We do not cite this testimony as particularly affecting the quantum of damages, but merely for the purpose of characterizing the act, and its injurious effects, in respect to the plaintiff.- With due deference to, and with proper regard for the verdict of the jury rejecting the plaintiff’s demands, we think he is clearly entitled to some compensation for the damage and injury he has sustained through the effect of the slander which the defendant maliciously propagated against him.

It is true' that there is no direct proof of malice on the part of the defendant.in giving utterance to the slander; but, on the contrary, the defendant states, as a witness, that he entertained neither malice nor ill will against the plaintiff atthe time it.was uttered; yet, in such case the law imputes malice to the act on account of its character.

For, the use of opprobious epithets implies malice, when they are slanderous per se. It suffices to maintain an action to recover damages without proving special injury to the party defamed. Williams vs. McManus, 38 An. 161; 14 La. 198; 13 An. 894; 23 An. 280; 38 An. 469; Miller vs. Holstein, 16 La. 389; Ferdy vs. Foote, 12 An. 894.

And it was recently ruled by this court in Sportorno vs. Fourchion, 43 An. 423, that both the damage or injury, and the malice, may be inferred from the nature and falsity of the words, and from the circumstances under which they were uttered, without the necessity of special proof.” Miller vs. Holstien, 16 La. 380; Daly vs. Van Benthuysen, 3 An. 69; Fush vs. Maddox, 11 An. 206; Cass vs. New Orleans Times, 27 An. 214.

The case of Weil vs. Israel, 42 An. 955, states a similar doctrine in an analogous ca'se.

With regard to the injurious effects of slanderous utterances, the doctrine of the common law has become a precept of our jurisprudence, viz., “that every person has a right to enjoy that degree of respect, good will, and social or business distinction to which his own acts, and his social or business habits entitle him, and anyone who unlawfully interferes with this right by circulating slanderous reports, renders himself liable for consequent damages.” Williams vs. McManus, 38 An. 161; Staub vs. Van Benthuysen, 30 An. 467; Perret vs. New Orleans Times, 25 An. 170; Folkard’s Stackis on Libel and Slander, p. 99.

It is just this sort of unwarrantable interference with the plaintiff’s rights and privileges that defendant has been guilty of, and for the consequences of which he has become responsible thereby.

In this, as in all cases of this character, the proper measure of damages is difficult to determine, and, consequently, reliance must be placed upon precedent, as imputed by the circumstances cf the case.

In Green vs. Harvey, 14 La. 202, the compensation allowed plaintiff for the slanderous charge of forgery, was $450; that awarded to the plaintiff in 16 La. 198, for the charge of being a rascal and of false swearing, was $500; that allowed the plaintiff in Oook vs. Tardos, 6 An. 779, for being called a thief, was $400; the amount awarded to the plaintiff in Williams vs. McManus, 38 An. 161, for being called a damned whore, was $500; the amount allowed the plaintiff in Sportorno vs. Fourchion; 40 An. 423, for the circulation of the slanderous report that he was a negro, was $500; the amount awarded plaintiff in Morhenan vs. Ohse, 17 An. 64, for having been denounced as a damned thief, was $1000; the amount allowed plaintiff in Bonum vs. Elliott, 19 An. 322, for slanderous and defamatory words, was $1000.

The slanderous epithets of which the plaintiff complains are not less serious and injurious in character than those employed in either case mentioned.

It is the duty of courts of justice, in proper cases, to punish, and therebj1' repress the use of such slanderous and defamatory epithets, "to the end that the good name and fair fame of the citizen may be properly protected; and taking into consideration the good character, age and circumstances of the plaintiff, as well as of the defendant, we are of opinion that the sum of $300 would be a reasonable ■and just allowance to plaintiff, and at the same time not too oppressive on the defendant.

. In rejecting the plaintiff’s demands, the jury doubtless gave too •great credence and effect to the defendant’s disavowal of malice, ■and plaintiff’s failure to prove specific damages; but we have the ■less reluctance in revising the verdict, as under the law and jurisprudence appertaining to slander and libel these are mixed questions •of law and fact, of which the courts are moye competent to judge 'than juries are. For the foregoing reasons the judgment appealed from must be reversed.

It is therefore ordered, adjudged and decreed that the verdict of the jury, and the judgment of the court thereon based, be, and the •same is, hereby annulled and reversed; and it is now ordered and decreed that there be judgment in plaintiff’s favor and against the defendant for the sum of three hundred dollars ($300), with legal interest from judicial demand, and all costs of both courts.


author: Breaux, J.

text:
    No. 1408.
    In the Matter of the Succession of Faustin Bernard Romero.
    The administratrix applies for a judgment homologating* a final account.
    The administration of the whole estate will be affected by the decree.
    Payments of debts made without an order of court will be considered in deciding the question of jurisdiction.
    The amount involved being more than $2000, the motion to dismiss is rejected.
    Evidence will be admitted to prove the signature of an attesting witness to a mark or signature of an administratrix to an acknowledgment of a debt*
    Tt not having been shown that the subscribing* witness to the signature or mark had the least interest, or that he could have had any motive whatever in falsely attesting a signature.
    The acknowledgment having been accepted’and treated by the holder of the note as genuine.
    It having remained unquestioned more than twelve years.
    Tt is accepted as genuine, and the administratrix’s plea of prescription, based upon its alleged falsity, is rejected.
    APPEAL from the Twenty-first District Court, Parish of St. Martin. Simony Special Judge.

      Robert Martin for the Administratrix, Appellant.

      C. H. Mouton and Raphael DeBlane, contra.

   The opinion of the court was delivered by

Breaux, J.

The opponents move to dismiss this appeal on the- . ground that this court has not jurisdiction, ratione materise.

On the 27th day of April, 1872, acting under legal order, theadministratrix caused the property of the succession to be sold at public auction.

The total of the sale amounted to $8618.25. The administratrix alleges that she rendered an account, paid the debts, and partitioned and settled with her emancipated brother.

The petitioner and her brother are the only heirs of the late Bernard Romero.

The succession record can not be found.

It has not been recorded in the succession record boofcs, of the-clerk’s office.

At the sale of the property one tract of land was sold for $550,. another for $300, on credit.

The purchasers were unable to pay, and, therefore, retroceded the property to her in satisfaction of the purchase price and interest.

She shows this property to be the only remaining asset of the succession; prays to be authorized to deliver it to the heirs, and to be-finally discharged as administratrix.

The above mentioned facts, as set forth in her petition, are proven to be correct.

The opponents in their petition allege that they are the owners of a promissory note for thirteen hundred dollars ($1300), dated in 1871, payable in 1872, of which the late Bernard Romero was the maker, and which has been acknowledged by the administratrix, who promised to pay in due course of administration.

They oppose the application to place the heirs in possession, also the homologation of the account, and pray that it be amended by placing therein their claim as creditors.

The administratrix answered this opposition and denied her indebtedness.

The method adopted to finally settle the succession has reduced 'the issues seemingly to an amount less than $2000.

The administratrix has chosen to allege a complete settlement, made heretofore; but no final settlement has been made.

The distribution of the property has not received legal recognition; the payment of the debts were made without any order of court and the property was delivered to the heirs extra-judicially; except the two tracts, heretofore mentioned, she now proposes to deliver.

This court has decided that where there was a final judgment homolgating an account of administration, and authorizing partial distribution, so that the funds remaining for distribution were reduced to an amount less than $2000, it has not jurisdiction. Sue. of I. M. Duran, 34 An. 585; Sue. of Emma McDowell, 35 An. 102.

In these cases there had been a distribution judicially made. The-judgments were res adjudioata.

In the present ease the condition is different.

The administratrix applies for a judgment that will settle the-legality of all her acts and place at rest all questions that may have-arisen in the course of the administration.

It will effect the whole administration.

In a case decided recently, it was held that successive accounts filed by a syndic, distributing the fractional part of a fund exceeding $2000, will not divest court of jurisdiction. Theo. Brierre vs. Their Creditors, 43 An. ’ -

By distributing property of a succession, without an account, the administrator will not divest the court of jurisdiction.

The motion is overruled.

Bills op Exceptions.

Two bills of exceptions were taken to the court’s ruling.

In one, the ground set forth is that the acknowledgment was offe claim in amount more than $500, and that as same purports to have been signed by the affixing of a mark, it requires moi;e than one witness to prove its genuineness when denied.

The acknowledgment of an administrator is not the instrument in writing to which Act 2278, O. C., applies.

This acknowledgment had been reduced to writing.

The evidence was admissible. Its sufficiency vel non will be considered.

In the other bill the ground is that the court erred in not permitting the administratrix to prove the carelessness and want of probity of the attesting witness to the mark.

The bill sets fcrth that the purpose “was to contradict the evidence established by the signature.”

This witness died more than ten years ago.

When a witness is examined and attempt is made ,to impeach his testimony, he is protected against surprise and given the opportunity to prove the verity of his testimony.

The court will not remand the ease to prove charges of a general character against a witness long since deceased, charges which, if proven, would not establish the offence of falsifying a mark or signature.

On The Merits.

The note held by opponents is secured as to its payment by a mortgage on lands described in opponent’s petition.

There is an acknowledgment and promise to pay in due course of administration written on this note dated June 16, 1876, and which bears the administratrix mark as her signature.

The administratrix pleads the prescription of five and ten years in bar of recovery on this note.

She denies having acknowledged its correctness; avers that she never made her mark or signature on the same, and that the mark was affixed without her knowledge; that the indorsement is a fraud.

She testifies to the correctness of her averments, and further, that she was acquainted with the attorney, who charges her with having committed the offence; that he notified her if she did not pay she would be sued.

The great probability is that a suit would have followed refusal to acknowledge the claim.

* It is in evidence that the attesting witness did not have the least interest in the note, and it is not even shown that he had it for collection.

The motive for falsely and criminally writing down said acknowledgment is entirely wanting.

This note many years ago was placed in the hands of the attorneys for the succession.

It was handed to them, together with other papers.

' They testify that they were not aware that it was in their possession.

When the fact became known to them it was returned by them to one of the opponents.

It is evident that the written .promise to pay was indorsed on this note sometime prior to the date it was handed, as before mentioned, to the attorneys of the succession.

The opponent to whom it was handed by these attorneys testifies that prior to the date of the acknowledgment, he had a conversation with the attesting witness to the mark, respecting the necessity of obtaining the acknowledgment to prevent prescription.

He also testifies that he knew that it was in the possession of the attorneys by whom it was returned to him.

The testimony establishes the genuineness of the handwriting of the attesting witness to the mark of the administratrix, also of his signature.

The fraud charged is the remaining question.

The administratrix, as a witness, positively denies all knowledge of this promise to pay in due course of administration.

There can be no question of the sincerity of her averment.

The fact remains that the holder of this note died some six years after the acknowledgment; that the party who is charged with the alleged wrong also lived a number of years afterward, and that there never was heard a whisper against the genuineness of the acknowledgment before 1889. It may be that this administratrix has forgotten that she made her mark on this note in 1876.

She forgot who was security on her bond as administratrix, she admitted, in answer to a question propounded to test her memory.

Is it unreasonable to conclude that' she may also have forgotten all about her mark or signature?

The least inattention, the least haste, circumstances the most trivial, may occasion forgetfulness.

The possibility of forgetting readily suggests itself when it is charged, after these many years, that the act showing acknowledgment is not genuine.

This note was owned by Judge Alcibiades DeBlanc.

About the time he was promoted to the bench, the papers in his possession, with the note, were handed to the attorneys, who succeeded as attorneys of the administratrix.

His former partner, Z. T. Fournet, obtained the endorsement and • attested her signature.

The note is not prescribed.

The acknowledgment defeats the pleaded prescription. Succession of Raphael Romero, 29 An. 493.

Thé decree appealed from recognized the mortgage with which the said note is identified, and by which it is secured.

Judgment affirmed at appellant’s costs.


text:
    No. 1413.
    Jules Boutte vs. John Emmer.
    An officer will not be held responsible personally in damages unless it be proven that ho has acted arbitrarily, in violation of law, and without regard to the functions with which he is entrusted.
    Being himself at fault, plaintiff will not be allowed damages.
    A PPEAL from the Twenty-first District Court, Parish of Iberia. Mouton, J.

      Edward Simon for Plaintiff and Appellant.

      L. O. Hacker for Defendant and Appellee.
   The opinion of the court was delivered by

Breaux, J.

Plaintiff sues to recover $10,000 exemplary damages from the defendant, who is the Mayor of the town of New Iberia.

On the 24th of December, 1889, defendant had him arrested and imprisoned, from about 5 o’clock in the evening to about 8 a. m. of the day following. Plaintiff complains of injury in that he was arrested without any process of law and placed in jail, maliciously and without probable cause. That just preceding his arrest the defendant made an assault on him.

The plaintiff is a constable.

He had arrested two negroes and had taken them before a magistrate to answer to the charge of fighting and disturbing the peace.

Without formal examination into the accusation, they were ordered to be released and to pay one dollar each to the constable for-having made the arrest.

He left the office of the justice of the peace, with the negroes, without collecting the two dollars, and threatening incarceration if the amount was not found.

He was with'these men some time in the street; his conduct, a witness testifies, was not orderly. Pour witnesses testify that he was at the time under the influence of intoxicants.

An officer himself, he should have been sober.

The defendant met the plaintiff and spoke to him, at first remon•stratingly, is the testimony of certain witnesses.

Under an ordinance of the council, the Mayor is vested with authority to punish disorderly persons by imprisonment for a short time, or the imposition of a fine, or both. In discharging the functions of his office he has certain discretion. Unless he acts arbitrarily and beyond the pale of his office, he can not be made to pay ■damages. .

The plaintiff’s first grievance, upon which he bases some right of action, is that he was arrésted without a warrant.

This ground does not commend itself; for a warrant need not issue pribr to arresting a person who openly commits a breach of the peace, such as plaintiff is charged with having committed and such as the preponderance of evidence sustains. With reference to the imprisonment, the peace and good order of the community require it, and frequently one intoxicated is only improved by the experience and restored to a sober condition.

The attempt made to sever the .defendant, for the purposes of this suit, from his office, and hold him responsible personally, must fail.

An officer will not be held responsible personally, unless it be clearly proven that he has acted arbitrarily and in violation of law.

The violation and arbitrariness are not proven.

Judgment affirmed at appellant’s costs.


author: McEnery, J.

text:
    No. 1412.
    Jacob U. Payne et al. vs. Morgan’s Louisiana and Texas Railroad and Steamship Company.
    See. 12 of tlie charter of the Morgan Louisiana and Texas Railroad and Steamship Company exempts it from suit outside of the City of Now Orleans, except in eases of trespass.

      Where a railroad enters upon the land of another, in the course of construction, and builds its road and roadbed, without opposition upon the samo, and the party makes no objection for several years, his act will be construed into a waiver. His claim against the road must be for compensation at the domicile of the company. He does not abandon his claim for compensation by the tacit waiver.
    APPEAL from the Thirteenth District Court, Parish of St. Landry. Lewis, J.

      Kenneth Baillio for Plaintiffs and Appellants.

      Leovy & Blair, H. L. Garland and Laurent Dupré for Defendant and Appellee.
   The opinion of the court was delivered by

McEnery, J.

The plaintiffs sue the defendant for the reco yery of land now occupied by it as a railroad embankment in excess of what is necessary for railroad purposes.

They also sue for the value of the strip of land occupied by the railroad embankment. They aver that by the construction of the railroad embankment, the natural drains and ditches on their property have been obstructed and the flow of water retarded, damaging them to the amount of $2000. Suitable crossings, cattle guards, culverts, etc., are demanded to be constructed by plaintiffs of the defendant company.

The defendant company filed an exception to the jurisdiction of the court, as follows:

“ That under Section 12 of its charter, suits can not be brought against it outside the parish of Orleans, except in cases of trespass. That the present suit is not one for trespass, and hence the District Court is without jurisdiction to try the. same.”

The exception was sustained and the suit dismissed. From this judgment plaintiffs have appealed.

From the face of the papers it will be perceived that the gravamen of plaintiffs’ petition is: (1) That the defendant company has taken possession of and holds 22 and 72-100 acres belonging to them, and is using same as a railroad track, on which it is running its passenger and freight trains — the one-half of 'which plaintiffs demand shall be restored to them in kind, and for the other half they claim a personal judgment for its value; (2) that the-defendant company has, by its said embankment, entirely obstructed the drainage of the place, and they ask that said company be ordered to remove the said obstructions to drainage, and make the necessary openings in its track; (8) that said company has not constructed the necessary crossings and cattle guards on its embankment, and it is asked that said company be required and ordered to make them at once.

It does not appear from the allegations in plaintiff’s petition that the defendant company committed a trespass upon that property by entering upon it unlawfully.

The following averments in the petition negative any idea of a trespass having been committed by the defendant company on the-lands of the plaintiffs:

Plaintiffs allege “that some time in -the year 1882 the Morgan, Louisiana and Texas Railroad and Steamship Company, a corporation duly organized under the laws of this State, having its domicile in the City of New Orleans, and owning and operating railroads in other sections of the State, at that time,-entered upon, took possession of, and now has possession of same, certain tracts of land originally forming part of a plantation situated on Bayou Bceuf in St. Landry Parish, about three miles above the town of Washington, known and called the ‘ Webb’ or ‘ Calligher’ place, and built and. constructed upon the said land so entered upon by them a railroad embankment or ‘ dump,’ and placed on said embankment cross-ties, and steel rails, "over which said company has, ever since the year 1882, been running locomotives and passenger and freight trains,, whereon they have carried passengers and freight for hire, and have been operating same as a regular railroad ever since.”

The obstruction of the drains and ditches, the failure to construct cattle guards, to make crossings, are merely incidental to the taking possession of plaintiffs’ property, which was lawful and legal, or at least was made so by plaintiffs, who permitted the railroad company to go on the property and construct its road therein without' remonstrance or complaint. The acquiescence of the plaintiffs in the construction of the road over their property, under circumstances which made it imperative upon them to resist or to remonstrate, will be construed into a waiver of any objections to the construction of the roadbed over their property. State ex rel. Morgan’s Company vs. Judge, 33 An. 955; St. Julien vs. Morgan’s Louisiana and Texas Railroad Company, 85 An. p. 924.

The taking possession of the land of plaintiffs was not accomplished by violence, nor through the commission of a wrong, tort or illegal act. The plaintiffs made no resistance to the entry of defendant, but acquiesced in it by long continued non-action. St. Julien vs. Railroad Company, 39 An. 1064.

In the case of Oaldwell vs. Railroad Company, 40 An. p. 755, we said that this court had distinctly announced the doctrine that in case the owner of land permits its use and occupancy by a railroad company, and the construction upon it of a quasi public building without resistance or complaint, he can not'thereafter require the demolition of the work nor prevent its use by the company. * * *

He eaa not treat such entry as tortious and sue the corporation as a trespasser at the place where the injury is alleged to have been sustained.

The plaintiffs are entitled to bring their suit at the domicile of the company for compensatory damages, and land in excess of what is required for railroad purposes, etc., which right is reserved to them.

Sec. 12 of the company’s charter exempts it from suit out of New Orleans, except m cases of trespass.

In this case no trespass was committed by the defendant com-, pany.

Judgment affirmed.

Fenner, J., recuses himself on the ground of affinity to plaintiff.


author: McEnery, J. Breaux, J., recuses himself.

text:
    No. 1417.
    Jacob McWilliams vs. Justinien Michel et als.
    When an appellant, applies for and obtains an order of appeal to a court having' no jurisdiction of the matter in dispute, the order is a nullity. He is not estopped from presenting bis appeal in a court of competent jurisdiction.
    An actual assessment of property, and notice required by Article 210 of tbe Constitution, are essential to a valid tax sale of the property. There is no actual assessment of the property as contemplated by law when it is not assessed to the owner and is confusedly assessed with other property.
    Where the State sells public land and issues a patent for it, the Land Cilice at Baton Rouge-is the projfor placo from which information should be obtained in order to assess it correctly. R. S. 2922.
    When the State sells public land and the assessor places it on the assessment rolls to a person not the owner', the State can not take advantage of this defective assessment, and at tax sale have the property adjudicated to her.

      A PPEAL from the Twenty-first District Court, Parish of St. Martin. Mouton, J.

      E. JV. Sims and G. H. Mouton for Plaintiff and Appellant:
    1. Plaintiff's title to the lands in controversy is complete and perfect; they were patented and sold by the State to Thomas Mille in 1860; after his death his heirs went into possession, and at the partition sale made by the sheriff of Iberville, in 1S77, they were acquired by the plaintiff, who has since held and possessed them.

      '■2. The tax sale of these lands in 1872, with the lands adjudicated to Wilbert at the same partition sale in 1877, in the name of Eugene Garandi, was an absolute nullity. Garandi had disappeared many years before, and had never owned a particle of interest in the property. The lands stood at the time in the registry office of the Land Department of the State in the name of Thomas Mille. The assessment in the name of Garandi was therefore a nullity, and could not form the basis of a valid tax sale. Saunders on Taxation, 802; 26 An. 509; 30 An. 176; 32 An. 926; 34 An. 107; 35 An. 1086.
    3. The adjudication to Breaux and Duperier in 1873 being a nullity, they acquired no title. They never claimed title, never acted as owners, and never desired or attempted to talco, or be placed in, possession. The paper title evidencing the adjudication produced no effect, and could not form a basis for prescription. Breaux vs. ISTegrotto, Jr.,43 An.; 32 An. 237.
    4. The nullity of the adjudication to Breaux and Duperier in 1S73 involved the nullity of tlie assessment in fchoirname in 1835, and, as a necessary consequence, the nullity of the adjudication to the State in their name in 1886 Besides, they were never notified to pay any taxes on the property, which notice was a con•dition precedent to a Valid adjudication. Const. Art. 210: Breaux vs. ISegrotto, Jr., 43 An. The State never attempted to take possession under the adjudication of 1886, and there being no adverse possession,prescription does not apply. Breaux vs. Xegrotto, 43 An ; 32 An. 237.
    5. The lands assessed in the name of Breaux and Duperier in 1885 had been separately assessed to their respective owners, plaintiff, and the Wilberts, from 1881 to 18S4, both inclusive. The assessment of both pieces of property confusedly to Breaux and Duperier constituted an additional nullity, which vitiated the adjudication based upon it. Act Xo. 96 of 1882, See. 18; Saunders on Tax. 108; Weltis on Assessments, Sec. 112; 86 Me. 435; 63 Me. 382; 34 An. 126; Blackwell, 160 and 346; Cooley on Tax.295; Burroughs, 212-301; 51 Mo.63; 6 Kan, 540; 32 An. 228; 42 An. 853.
    6. In Frederick Wilbert et al. vs. Juslinien Michel, 42 An. S58, this court annulled and set asic-le the adjudication to the State in 1886, and that to the defendant in 1889. Those adjudications stand annulled for all purposes and as to all persons. They can not be null in part and valid in part. The tax claimed was indivisible, and the adjudication in each instance was an indivisible act. Saunders on Tax. 305; 34 An. 123; Burroughs, p. 301; 51 Mo. 63; 6 Ivan. 540; Blackwell on Taxation, pp, 180 and 181; 55 Miss. 26; 44 Mich. 561; Cooley, Const. Dim., p. 368.
    '•7. On the question of registry of titles, {¡he advantage is with the •olaintiff. The state could not ignore the title of Mille, which was extant upon her records. It was the duty of the State officers to follow up that title, and after the death of Mr. Mille to assess the property in 1871 and 1872 in the name of his estate or of his heirs or their assigns, if known. The State officers could not by a fictitious assessment create a title for the purpose of future assessments, legally binding on the heirs of Mille or their vendees. 11. S. 2922. The State could not plead want of registry of the Mille title in the parish of St, Martin, and the defendant is in no better position than the State would be. See cases cited under No. 9, Act No. 96 of 18S2, Sec. 18.
    8. Plaintiff had a perfect legal right to obtain a certificate of redemption from the Auditor on the 2d of May, 1890. The adjudication to the State in his name in 1883 had never been filed for record or recorded in the recorder’s ofiice of St. Martin, and had not up to that day been filed or recorded in the Auditor’s ofiice. The act of redemption did not and does not concern the defendant. It shows, however, in connection with the testimony of the Auditor, that plaintiff does not owe the State one cent of taxes on the property in controversy. Statutes which give the right of redemption are to be regarded favorably and construed with liberality. Act No. 96 of 1882; Cooley on Taxation, p. 363; 33 Penn. 94-97; 10 Wall. 464; 16 Wis. 594; 1 Rob. 421. On the other hand, the formalities which the-law prescribes in the interest of the taxpayer or purchaser subsequent to the sale must be strictly complied with. Cooley on Taxation, p. 365; Burroughs, p 312; 9 Mo. 878.
    It is error to suppose that a certificate of redemption by the State constitutes a sale. The only* effect is to replace the property in the position it was before the tax adjudication. Saunders on Taxation, p. 295. The application to redeem must be made within a year from the recordation of the adjudication to the State. Saunders on Tax., p. 206.
    9. The State having acquired no title under the adjudication in 1886, by reason of the antecedent radical defects in the proceedings, it is pexTcetly well settled that she could convey no title to the defendant under the sale made in 1889, in pursuance of AVt No. 80 of 1888. 32 An. 926.

      Edward Simon and Felix Voorhies for Defendants and Appellees:
    1. One who obtains from the Auditor a redemption act for lands adjudicated to-the State, at tax sales, even when this obtention is after the time for redeeming has passed, is thereby estopped from contesting the assessment and the State’s title.
    2. Assessors arc not bound to look beyond the recorded titles to property. See Palmer vs. Board of Assessors, 42 An.
    3. The assessment being in the name of tlio only owners known, in the records, is sufficient and legal. See Gee vs. Clark, 42 An.
    4. Under such an assessment, when taxes have not been paid, the title derived from tax sale is good and valid. See Wilberts vs. Michel, 42 An.
    5. In this case, the State holding under two adjudications, at different periods, the titles acquired under both titles inure to the benefit of the State’s adjiulieatee.
    6. The claimant must he strictly limited to the causes of nullity alleged in his petition and pleadings.
    7. Notice required by Article 210 of the State Constitution is applicable only to tax'sales of property of delinquents, and not to a sale of property of the State made under Act No. 80 of 1888.
    S. An action to invalidate a tax sale, made under a law of the State, is barred by the prescription of three years. Sec 9 An. 403 and 1005; 7 Sou. Reporter, 731. •

      9. Parties sold out as delinquents can not redeem tlieir property, except within the year the deed was given.
    10. Phe purchaser of lands from one who has bought at tax sales in good faith, will be maintained in his purchase,'after ten years of peaceable possession, and that possession gives an indefeasible title. See Geo vs. Clark, 42 An.
   The opinion of the court was delivered by

McEnery, J.

The defendants move to dismiss this appeal on the ground of want of jurisdiction rations materias, and that the plaintiff had applied for and obtained in open court an order of appeal to the Court of Appeals for the Third Circuit.

The amount in dispute is over two thousand dollars. This is apparent from the admission of defendants in their application to bond in the injunction proceeding. The order of appeal to the Court of Appeals was a nullity. The error of plaintiff in applying for and Obtaining an order of appeal to that court can not estop him from prosecuting his appeal and lodging it in the court having jurisdiction of the matters involved.

The motion to dismiss the appeal is denied.

On the Merits.

The plaintiff alleging that he is the lawful owner of sections or lots Nos. 10,11,12, 13,14,15, 17, T. 8, S. R. 8 E., in the S. E. Laud District, brought this suit to set aside a tax deed of said property made to the defendant under the provisions of Act 80 of 1888, on the 1st of June, 1889, for an adjudication to the State on the 1st of May, 1886, for unpaid taxes of the year 1885, assessed to Breaux and Duperier.

The defendant was put into possession of the property. The plaintiff obtained an injunction restraining the defendant from committing waste on the property. There was judgment for the defendant maintaining his title to the property under the tax deeds and dissolving the injunction with $400 damages. The plaintiff has appealed.

In 1871 and 1872 the property in controversy was assessed to Eugene Garandi. Garandi held certain “floating” land scrip or warrants. He assigned the same to Thomas Mille, who located it on the property in suit. Patent No. 9197 was issued to him for this and other lots or sections in 1860. Garandi never owned the property, and was dead when the assessment was made to him. The land office at Baton Rouge was the proper place for the assessor to get information of the description and ownership of the property which had been sold by the State to Mille. R. S. 2922.

The State had notice of the title of the property in Thomas Mille. She can not ignore this fact and assess the property to a person not the owner, sell it and acquire title to it.

Under this assessment the property was adjudicated to Breaux and Duperier. The assessment was null and void, and could not form the basis of a valid tax sale. 26 An. 509; 30 An. 176; 32 An. 926; 34 An. 107; 35 An. 1086.

Judge Breaux, in his testimony, states that, happening to be in St. Martinsville, he had the property adjudicated to him and Duperier, in order to pay the taxes thereon, as their owners were interested in the property. No adjudication or forfeiture of the property was ever made to the State under this assessment. The property was never assessed under this tax deed before 1885 to Breaux and Duperier. The plaintiff claims title on this tax deed of 1873 made to Breaux and Duperier. As he claims through the State, he must show title in the State. Judge Breaux disclaims title to the property. If there is any ownership of the land under this tax sale, it must be in Breaux and Duperier. They have sold their interest in the property. In the partition proceedings of the succession of Mille, they joined with their wives in a sale of the property in controversy to the present plaintiff.

From 1873 to 1881 the property was not assessed. From 1881 to 1884, inclusive, it was assessed to the plaintiff. In 1885, without the knowledge of Breaux and Duperier, it was assessed to them. The lands of Wilbert & Son, which were also purchased at the same time in the partition proceedings in the Succession of Mille, were assessed and sold confusedly with plaintiff’s property for the unpaid taxes for the year 1885, assessed to Breaux and Duperier. It was under this assessment that the adjudication was made to the State in May, 1886, which resulted in the tax sale June 1, 1889, under Act 80 of 1888, and the adjudication and tax deed to the defendant Michel.

In case of Wilbert vs. Michel, 42 An. p. 856, we said: “ The validity of the title acquired from the State depends on the validity on the adjudication forfeiture. If that was not valid, the State acquired no title, and can transfer none.”

In re Douglas, 41 An. 776, in enumerating the essentials for a valid sale of property, under tax proceeding, the assessment of the property was named as one of them. And in Breaux vs. Negrotto, 43 An., p. —, that the notice required by Article 210 of the Constitution should also be served on the tax debtor.

It does not appear in the record, and it is not alleged in the pleadings, that there was any change in the title to the property after the assessment to the plaintiff, Jacob McWilliams, in 1884, in which year he paid the taxes for the year previous. No reason is assigned for placing the property again on the rolls in the names of Breaux and Duperier, except that there was a recorded tax deed to them in 1873. This adjudication being null and void, because of the defective assessment, as stated above, the continuation of the property on the rolls in their names was also null and void. There was, in fact, no assessment of the property in 1885 upon which the adjudication to the State in May, 1886, was based. There was no notice served on the tax debtor as required by Article 210 of the Constitution. The tax deed made to the defendant, 1st June, 1889, shows that the notice was served on Breaux and Duperier. But as a fact it was not even served on them. The adjudication, therefore, to the State, in 1886, and the proceedings in the sale of the property thereafter, under Act 80, 1888, were null and void. The State having acquired no title, she could transfer none.

For the tax of 1882, assessed to the plaintiff, the property was adjudicated to the State in 1883. She never took possession of the property, and seems to have abandoned all claim to it under the adjudication, as it was assessed to Breaux and Duperier afterward, and again adjudicated to the State under this assessment. But the defendant can not set up this adjudication as the basis of his title under the tax deed to him, June 1, 1889, as it was sold to him under Act 80 of 1888, as having been adjudicated to the State for the unpaid taxes of 1885, assessed to Breaux and Duperier.

From this statement of the case it is very clear that the prescription of one, three and ten years, pleaded by defendant, can have no application. Breaux vs. Negrotto, 43 An.

It is therefore ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and reversed, and it is now ordered that there be judgment in favor of the plaintiff, decreeing the adjudication of the property described in his petition to the State on 1st May, 1886, for the tax of 1885, assessed to Breaux and Duperier, to be null and void, and of no effect, and that the adjudication and tax deed made to the defendant, Juiien Michel, of said property on June 1, 1889, under Act 80 of 1888, be declared null and void, and it is further ordered that the plaintiff be declared the true and lawful owner of said property, and that he be placed in peaceable possession of the same, and that the injunction herein be perpetuated. Defendant to pay all costs. ‘

Breaux, J., recuses himself.

On Application for Rehearing.

The defendant counsel failed to call our attention in his brief and argument to the fact which led to the error in the decree, and which is now. urged as a reason for granting a rehearing.

It will not be necessary to reopen the case to correct the error.

There was no controversy or dispute as to the description of the property. The case was argued and submitted on the assumption that McWilliams, the plaintiff, had acquired title to lots 10, 11, 12, 18, 14, 15, 17, from the Succession of Mille. These lots were assessed to McWilliams from 1881 to 1884, inclusive.'

Defendant now calls attention to the fact that lots 10, 16, 17, were not adjudicated to the plaintiff in the sale of the property in said succession to effect a partition.

An examination of the succession proceedings shows that he is correct. Plaintiff, however, does not claim lot 16. Lot 10 was not sold to the defendant at tax sale June 1, 1889. Lot 17 is the only part of the description of the property about which there can be any controversy between plaintiff and defendant. Lot 10 was assessed to the plaintiff by the State and adjudicated to her in 1888. It was never sold to the defendant. He has, therefore, no interest in it.

The decree in this case is, therefore, amended so as to strike out lot 17 from the description of the property in the decree. In all other respects it is to remain undisturbed.

The hearing refused.