author: Fenner, J.

text:
    No. 11,221.
    Norman J. Thompson vs. W. H. Ratcliff. Rumble, Wentzel & Co., Intervenors.
    1. As against a third possessor, a'seizuro under a mortgage against the owner taking place during the pendency of a plantation lease forthe entire year, payable in kind out of the crops when gathered, only covers the proportion of rents due for the unexpired term after its date.
    2. The transferee of a lease made by the owner prior to seizure has all the rights of a third possessor, so far as the rents under the lease are concerned.
    3. Other questions decided on grounds of fact.
    APPEAL from the Eighth District Oourt, Parish of Concordia. Young, J.

      J. N. Luce, and Farrar, Jonas & Kruttschnitt for Plaintiff and Appellant:
    1. The seizure by the mortgage creditor under a mortgage act containing a pact de non alienando carries with it the seizure of all the rents and revenues of the mortgage property, due and exigible, subsequent to the seizure; any alienation thereof by the mortgage debtor being without effect against the seizing mortgage creditor with the mortgage act containing the pact de non alienando.

    2. The assignment of rentals was not accepted, and notice of the assignment was not sufficient. 17 La. 472 ; 4 An. 358; 17 An. 258 ; 40 An. 276.
    3. The contract for the sale of mules hawing been made in Mississippi, the question whether the intervenors have the privilege upon, the mules sold for the unpaid purchase price thereof is regulated by the laws of Mississippi.
    4. Under the laws of Mississippi, the vendor has no privilege or lien as against the seizing creditor. 65 Miss. 171.

      S. L. Elam and John Dale contra.

   The opinion óf the court was delivered by

Fenner, J.

The plaintiff, being a creditor of defendant, "secured by mortgage on his Deer Park plantation, obtained a writ of sequestration, under which, on December 8, 1891, he seized the plantation, its rents and revenues, a number of mules, some picked cotton and cotton in the field, and other property on the plantation. Subsequently heissued a writ of seizure and sale, under which the property was sold.

At date of seizure the plantation was under lease for the year 1891 to various squads of laborers on the place at a rent for the year of eighty pounds of lint cotton per acre, payable out of the first picking.

Long prior to the seizure defendant had assigned this lease with all his rights, liens and privileges against the tenants to the intervenors, who furnished supplies to the tenants. The evidence satisfies us that this assignment was perfected by notice to the tenants, who recognized intervenors as practically their lessors.

The issues in the case are entirely between the plaintiff and the intervenors. The first question is as to the distribution of the rents. The plaintiff claims that the seizure under a mortgage with the pact de non alienando entitles him to take all rents and revenues becoming due and exigible after its date, and that all the rent cotton which had not been gathered and paid over prior to the seizure enured to the benefit of the seizing creditor.

The case on this point can not be distinguished from that of Bank vs. Miller, 44 An. 199, in which we held: Where a seizure (under a mortgage containing the pact) takes place during the pendency of a ¡plantation lease for the entire year, payable in kind out of the crops when gathered, the seizure only covers the proportion of rents due for the unexpired term after its date.”

Plaintiff’s counsel seeks to evade the force of this decision by saying that it only applied to the case of a third possessor; and that is true. Of course if the rent, due or not due, belonged to the debtor it would be subject to seizure for his debt. But evidently, so far as the rights under this lease are concerned, intervenors are third possessors.

Defendant was the owner of this property and was entitled to its use and to its rents and revenues up to the moment of seizure by his mortgage creditor. He had the same power to transfer these rights as he had to transfer the property itself, and in either case the transferee is entitled to the full benefit thereof up to the date of seizure. The seizure only vests the mortgage creditor with the right to that portion of the rent which is attributable to the part of the year running after the seizure. In the present case the rent, whenever due or collected, was for the whole year of the lease, and as the seizing creditor had no rights thereon except from the date of his seizure, justice dictates that he should only take the proportion attributable to that unexpired term.

The judge a quo rightly so held.

The next question is as to the ownership of four mules' seized on the plantation and claimed by the intervenors.

The evidence on the point is brief and confined to two witnesses, a member of intervenors’ firm and the defendant, Ratcliff. We have read it carefully. Their statements substantially agree and there is no opposing testimony. We agree with the district judge that intervenors have fully established ownership of three of these mules. As to the fourth the evidence is not so clear, and the judge a quo forcibly says:

“I am doubtful whether the mule, Roxie, was purchased by intervenors from Hendricks, or whether the mule was sold to Ratcliff by Hendricks and the intervenors advanced the money to pay for same. As the testimony of Rumble and Hendricks would be decisive on this point, and has not been taken, the judgment will be one of non-suit as to this mule.”

On the whole we think the judgment appealed from has done justice according to the law and the evidence.

Judgment affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    No. 11,213.
    W. J. Kellar, President, vs. Victoria Lumber Company. John R. Jones & Co., Intervenors.
    1. Verbal precision is not exacted, and technicalities are not favored in our system of pleading. Regard is paid to the general force andmeaning of the allegations considered altogether, and when, thus considered, they present a cause of action, they should be given effect.
    2. A petition alleging that property sued for is on the premises of the defendant corporation, that it is there hold under a written aohnowl'edgment given by an officer of the corporation, and that the corporation refuses to deliver, presents a sufficient charge of possession in defendant to sustain an action for restoration of the property.
    APPEAL from the Tenth District Court for the Parish of Natchitoches. Andrews, J.

      Cunningham & lucker for Plaintiff and Appellant.

      Scarborough & Oar ver contra:

    1. Plaintiffs petition does not set forth a cause of action against defendant company, as he does not allege defendant to be in possession of the property sued for.
    2. The document annexed to and madepartof thelpetition shows that the defendant is not in possession of it and has no control over it, wherefore it is clear that he has no cause against defendant company.
    3. The exception of no cause of action being- well founded, the suit was properly dismissed. Jt can not be circumvented and its efficiency destroyed in any case by offering an amended petition. 34 An. 823 ; 35 An. 281; 41 An. 228; 41 An. 282.
    4. If such an amendment could be allowed, .where the plaintiff had a cause of action and simply failed originally to set it forth, yet it surely can not be done in this case where plaintiff s original petition showed affirmatively that lie-had no cause of action against defendant. Same authorities.
    5. The law holds parties to their allegations of record. They can not play fast and loose, and deny what they have solemnly averred to be the truth. C. O. 2291; 31 An. 158; 40 An. 186; 42 An. 522; 37 An. 106; 42 An. 496.
    6. The amendment besides being inconsistent with the original petition altered the substance of the demand, or rather created a demand where none existed before, and hence was properly disallowed. 41 An. 22S; 41 An. 282; 35 An. 694.
    7. Besides, the original petition was sworn to and the amendment did not allege error and was not sworn to. The suit being a sequestration suit must stand or fall on the state of facts existing and alleged to exist at the time the suit was filed.
   The opinion of the court was delivered by

Fenner, J.

This case is before us on an appeal from a judgment sustaining an exception of no cause of action.

The petition alleges that plaintiff is the owner of a certain lot of lumber which is stated to be “ on the yard of the Victoria Lumber Company,” defendant; that “William Flournoy, its book-keeper, gave annexed receipt, or acknowledgment, that petitioner’s lumber was on its yards,” and “that said company now refuses, without any excuse or justification, to deliver said lumber to petitioner.”

Under these allegations plaintiff obtained a sequestration of the lumber and prayed for judgment recognizing its ownership and restoring the property.

The petition was met with an exception of no cause of action, the sole ground of which is that the petition “ does not allege defendant to be in possession of the property sued for.”

The ingenious argument of defendant’s counsel, even though approved by the learned district judge, fails to produce on our minds the slightest impression in favor of the validity of his exception. The petition alleges that the property is on the premises of defendant; that it is there under a written acknowledgment given by defendant’s book-keeper, which declares that he holds it there as plaintiff’s property and subject to the orders and instructions of plaintiff’s agent, and that defendant refuses to deliver it. These allegations may not be true, but for the purposes of this exception they must be taken as true; and to hold that they do not plainly import that defendant possesses and unlawfully withholds the property would require us to shut our eyes to the clear meaning of the language employed. The fact that the document attached is signed by Flournoy, individually, loses all significance in presence of the allegation that it was given by “ William Flournoy, its (defendants’) book-keeper,” which can only mean that it was so given by him as defendants’ book-keeper and agent, and makes the truth or falsity of that allegation an issue on the merits of the case.

Yerbal precision is not exacted and technicalities are not favored in our system of pleading. Regard is paid to the general force and meaning of the allegations, considering them all together, and when, thus considered, they present a cause of action, they should be given full effect.

It is therefore adjudged and decreed that the judgment appealed from he avoided and reversed; that the exception of no cause of action be now overruled, and that the case be now remanded to the lower court to be there proceeded with according to law, appellee to pay cost of appeal.

Judgment reversed and exception of no cause of action overruled.


author: Watkins, J. Watkins, J.

text:
    No. 11,198.
    C. M. Barrow et al. vs. J. H. Clack.
    A necessary party to an appeal, either as appellee or appellant is not competent to sign an appeal bond as surety.
    Once an appeal bond lias been filed the jurisdiction of the lower court ceases and that of this court attaches, and the former is without jurisdiction or authority to permit a supplemental bond to be filed.
    A PPEAL from the Thirteenth District Court, Parish of West' L\ _ ,. . _ , 1 JL Feliciana. Brame, J.

      Samuel X Powell and Cross & Cross for Plaintiffs and Appellants:
    1. Defendant can fcalce nothing by his motion because it is too vague. The court can not notice any grounds beyond those clearly and distinctly stated. 1 An. ill; 29 An. 829 ; 36 An. 516; 37 An. 701. Wo can only guess what may being objections to the bond.
    2. The judge below must of necessity pass on the solvency and sufficiency of the surety. 17 L. 133; i An. 236; 10 An. 318,185; li An. 61; 29An.597; 81 An. 21, 93; 35 An. 521. This court can not take judiciai cognizance of the parties to the bond, nor fix their identity. Moreover, Act 15 of 1890 specifically fixes this method of objecting to the surety.
    3. The bond is sufficient. If the sureties are the same as those who signed the petition, they are merely nominal parties; and they are not necessary parties to the appeal. 2 R. 235; li An. 61; 22 An. 262 ; 27 An. 231218; 32 An. 718; 39 An. 1097.
    1. An appeal will be dismissed only where appellee shows himself clearly entitled to that relief. In eases of doubt, the interpretation will be liberal in favor of appellant. 11 L. 380; 1 An. ill; 2 An. 387; i An. 531; 10 An. 236; 19 An. 81.

      Montgomery & Lawrason and N. W. Leake for Defendant and Appellee.
   On Motion to Dismiss Appeal.

The opinion of the court was delivered by

Watkins, J.

The defendant and appellee moves to dismiss the appeal, on the ground that the plaintiff and appellant, C. M. Barrow, has not furnished a legal bond of appeal, for the reason that A. Teutsch and Wm. Hartson are his co-plaintiffs in this suit, against whom the judgment appealed from was rendered for costs, and, also, appellees in this court, and incompetent as sureties thereon.

The two persors who are designated as sureties on the plaintiff’s appeal bond are joined in the petition as plaintiffs, the opening averment of which is that “ the petition of Charles M. Barrow * * * and of Wm. Hartson and A. Teutsch * * * citizens of said parish, respectfully represent;” and the concluding averment is that “wherefore they contest the election of said Clack, defendant, and ask for citation on him.” And their prayer is for “ judgment declaring that said Charles M. Barrow was lawfully elected sheriff of said parish at said general election, and that commission issue as such to him, and that said John H. Clack pay all costs,” etc. — the signatures of the parties named, and those of many others being appended thereto.

The judgment appealed from runs in favor of the defendant, declaring him legally elected sheriff, and adjudging plaintiffs, collectively, to pay the costs of suit.

From that judgment Barrow alone appeals, but, under .the law, the parties named as plaintiffs who did not join in the appeal become appellees, or in other words parties to the appeal, and for that reason they are absolutely incompetent to sign Barrow’s appeal bond as sureties.

In Leeds vs. Yeatman, 12 La. 383, it was held that the surety on an injunction bond was a competent surety on an appeal bond, “ unless he has been, by the judgment appealed from, condemned as a party,” etc.

In Wood vs. Harrell, 14 An. 61, it was held that nothing prevented a warrantor, against whom no judgment had been rendered, from becoming a surety on the defendant’s appeal bond.

In Funch vs. Davidson, 32 An. 718, it was held that a surety on a bond given for the release of property from seizure under an attachment is competent to become surety on an appeal bond.

The theory of those cases seems to be that being a party to the original suit and, condemned by the judgment therein rendered is the cause of the surety’s incompetency.

But in Grenier vs. Pendergrast, 2 R. 235, the proposition is differently stated to be that “it is true that if both the principal and surety, against whom damages had been given on the dissolution of an injunction, had joined in the appeal, they would have been bound to give one solvent surety, although they were both admitted to be sufficiently solvent to remove all idea of danger on that score; the reason would be that the law expressly requires surety on the grant of any appeal” — the theory appearing to be that the test of the surety’s competency is that he is or not an appellant.

This ruling was followed in State ex rel. Wilson vs. Judge, 22 An. 262, in State ex rel. Coleman vs. Judge, 27 An. 234; but in Bowman vs. Kaufman, 30 An. 1021, the foregoing cases were reviewed and the same were held to be inapplicable since the enactment of the statute requiring appeal, bonds to be made payable to the clerk of the court — constituting, as it does, all parties appellees who are not appellants.

The statement of the court on the subject being that “ since those decisions were made, important and radical alterations have been made in the law governing appeals. Now, when an appeal has been taken by motion in open court, all parties who are not appellants are declared [to be] appellees, and the bond in favor of the clerk is for the benefit of each and every one of the appellees, and may be sued on accordingly.

“ When the plaintiff took her appeal in open court and filed her bond, the surety, who had been condemned with her solidarily for damages, became eo instanti a party to the appeal as appellee. When that surety then became again surety on the appeal bond, he occupied the double and inconsistent positions of an appellee, whose interest was a maintenance of the judgment, and a surety to pay the judgment on appeal in case the appellant did not pay.

“Under these changes in the law governing appeals, and because of them, we hold that in all cases where a party is necessarily appellee, if he is not appellant, the surety on an injunction bond is incompetent to be a surety on a bond for an appeal from the judgment dissolving the injunction and for damages against principal and surety in solido. And it was so held by us at the last term. Dumas vs. Mary, 29 An. 809.”

And in the case of Bauer vs. Locht & Cordez, 30 An. 685, the two foregoing decisions were quoted approvingly “ on the ground that the surety on an injunction bond being a necessary party, either as appellant or appellee, could not be surety on the appeal bond.”

There has since been neither statutory change in the law applicable to appeals or in the decisions of the court governing them, and we may therefore accept the cases quoted as having definitely settled the question that a necessary party, either appellee or appellant, is not competent to sign an appeal bond as surety, and upon this theory the sureties on the appeal bond of C. M. Barrow, appellant, are incompetent, the bond illegal and the appeal must be dismissed.

It is true that the plaintiff subsequently filed another appeal bond, on the 10th day of October, long after the term of court whereat the judgment appealed from had been rendered and signed, to-wit: on the 28th day of July, 1892; but it is the settled jurisprudence of this court that its jurisdiction attaches as soon as the appeal bond is filed, and thereafter the lower court has no authority to take any steps except to transmit the record. Pink vs. Martin, 10 R. 147; Cary vs. Richardson, 32 An. 1170.

Consequently this second bond is altogether unavailing to save the appeal, notwithstanding it is undeniably a judicial confession of the incompetency of the sureties tendered on the first one — those on the second being different.

The motion is therefore maintained and the appeal dismissed.

On Application for Rehearing.

Watkins, J.

Counsel for appellants insist that as it was decided in Pasley vs. McConnell, 39 An. 1097 — only inferentially, however— that a security on the bond of appeal is not disqualified by reason of his being a surety for the costs of suit, therefore a surety who has been adjudged solidarity with a party to the suit to pay the costs is not disqualified from becoming a surety' on the appeal bond of his co-judgment-debtor.

That is a non sequiter; the principle on which the cases controlling our opinion proceeds, being that the surety adjudged to pay costs becomes an appellee, if not, an appellant, and, therefore, when he again becomes surety on an appeal bond he occupies, necessarily, the double and inconsistent positions of an appellee whose interest is to maintain the judgment and a suret3? who is condemned to pay the judgment; but a mere surety for the costs of a pending suit is only conventually bonded and liable to be sued in the future, and is not in any sense a party to the judgment or appeal.

Counsel further complain that in 4 R. 259 it was expressly held that after an insufficient bond for a suspensive appeal was executed, the lower court has jurisdiction to grant a devolutive appeal, and that in Glover vs. Taylor, 38 An. 634, the court say: “It was submitted to and filed by the clerk in time, as same was done prior to the return day fixed in the order of appeal.”

There is no question of the correctness of that ruling, but it does not militate against the force of the views expressed in our opinion, because the record discloses that there was but one order of appeal granted, and it was in open court, and it only grants “an appeal” in general terms without specifying either a suspensive or devolutive appeal or fixing any amount of bond for either.

The bond first filed is couched in such general terms that we are not able to say whether it is intended to be a suspensive or devolutive bond, the controlling recital being that “whereas the above bounden Charles M. Barrow has obtained an order of appeal from a final judgment,” etc.

The bond last filed is an exact duplicate of the first one, mutatis mutandi.

Had the first bond been a defective suspensive appeal bond, and the second a correct and formal devolutive appeal bond, prepared in conformity to an order of appeal granting both a suspensive and devolutive appeal, the ruling in Glover vs. Taylor would have been applicable and the appeal maintained.

Additional objection is urged to the effect that we erroneously entertained appellee’s motion to dismiss for the reason that the competency of a surety on an appeal bond is matter of original jurisdiction for the District Court to determine, and which must be first passed upon by it, otherwise it can not be entertained and decided by this court.

The most effectual answer to that proposition is that in each of the following cases the question of the legal competency of a surety upon an appeal bond arose in this court on a motion to dismiss an appeal, and of which this court had complete and exclusive jurisdiction. Leeds vs. Yeatman, 12 La. 383; Bowman vs. Kaufman, 30 An. 1021; Bauer vs. Locht & Cordez, 30 An. 685.

And it is upon those decisions that our opinion is based, thus making it apparent that the question thus raised and decided was founded on the pleadings and judgment in the record, and which exclusively appertains to the appeal and constitutes it one of law for the determination of this court.

Counsel have cited us quite a number of decisions which he insists are conclusively in their favor and support the proposition they announced. We have examined them all with the following result:

• In Edwards vs. Edwards, 29 An. 597, the question was the insufficiency of the surety, and the court said:

“ As to the sufficiency of the surety on the appeal bond, this court can not notice the objection, because it has appellate jurisdiction only. No objection to the sufficiency of the surety on the appeal bond was made or tried in the court below.”

The same rule was maintained in each of the following cases: Surget vs. Stanton, 10 An. 318; Littleton vs. Pratt, 10 An. 487; Tanner vs. King, 10 An. 485; Wood vs. Harrell, 14 An. 61; Francis vs. Lavine, 26 An. 311; Lafon’s Exe’rs vs. Lafon, 2 N. S. 571; State vs. Judge, 2 R. 449; State vs. Judge, 17 La. 433; State ex rel. Gill vs. Judge, 34 An. 91; Baker vs. Schultz, 35 An. 524.

In those cases the court employed different modes of expression, such as “the sufficiency of the surety,” “the sufficiency of the security ” and the like, clearly indicating that a question of fact was involved which necessitated the administration of proof, and, therefore, one for the court of first instance, and not one of law for the decision of the Supreme Court. In the ease of Oharmbury’s succession, 34 An. 21, the dismissal of the appeal was refused mainly for the reason that “the motion was not filed within three days” of the filing of the transcript; consequently the remainder of the opinion is not controlling.

Upon reason and authority we are of opinion that this court has complete jurisdiction to determine the legal eapaeity of a surety on an appeal bond, in any case where the record before us furnishes all the facts that are requisite for decision, and no necessity exists for the administration of further proof, and such is the jurisprudence on the question.

Rehearing refused.


author: Watkins, J.

text:
    No. 11,214.
    Caroline Prudhomme vs. R. B. Williams. Isaac McMills, Warrantor.
    Same as in Russ & Hollingsworth vs. Their Creditors, this day decided.
    APPEAL from the Eleventh District Court, Parish of Natchitoches. Pierson, J.

      Cunningham & Tucker and Omer Villeré for Plaintiff and Appellant.

      Scarborough & Carver for Defendant and Appellee.

      C. F. Dranquet for Warrantor and Appellee.
   The opinion of the court was delivered by

Watkins, J.

The defendant and appellee moves to dismiss the appeal on the ground that the appeal bond is wanting in two essential requisites, to-wit: First, in not containing the stipulation of the Code of Practice that appellant shall prosecute her appeal; and, second, in not specifying the amount for which the sureties are bound.

The first of the two foregoing objections was made and sustained in Russ & Hollingsworth vs. Their Creditors, No. 11,189 of the docket of this court, decided this day, and on that ground the appeal was dismissed.

Without expressing any opinion upon the second objection, it is sufficient to say that for the reasons therein assigned the motion of the defendant and appellee in this case must be likewise sustained, and the appeal dismissed; and it is so ordered.

Rehearing refused.


text:
    No. 11,202.
    E. T. Robinson vs. T. J. Williams.
    1. It appearing that in previous years the property had not been assessed to any one, and not being able to obtain from the conveyance records of the parish wherein the same is situated, or by inquiry of the adjacent property owners, who is the proprietor thereof, it is permissible forthe assessor to list it as that of an unknown owner. Such an assessment is not absolutely void and is sufficient basis for a tax title that will support the prescription of three years under the act of 1874.
    2. ATant of thirty clear days* advertisement is an informality that is prescribed by five years.
    APPEAL from the Ninth District Court, Parish of Red River. J.

      Pugh & Wilkinson and Clegg & Thorpe for Plaintiff and Appellant:
    1. The assessment is the foundation of all that follows in a tax sale.
    2. As the assessment stands in lieu of a judgment, and as if there be no assessment or judgment against the true owner, there can be no valid sale. 29 An. 509.
    3. An assessment in the name of one not the true owner is not only an irregularity and informality, but is absolutely null and void. 32 An. 912; 15 An. 15; 19 An. 185; 26 An. 730; 28 An. 537; 8 An. 19.
    4. The assessment is the very basis or foundation of tlie proceedings relating to tax sales, and has been very properly likened to a judgment, which must precede a sheriff’s sale; and a proper and legal assessment is just as essential to the validity of the one as the existence of the judgment is to the validity of the other. 32 An. 925; 30 An. 176; 38 An. 400; 40 An. 455.
    5. Where a vendor sells only his right or interest, shows what it is, and declines to warrant generally, this brings home to the vendee a knowledge of his title. 3 R. 220; 10 L. 284.
    6. “A sale without warranty,” says Marcado, “ is not properly the sale of the thing itself,but merely the pretensions and claims which the vendor may have upon the thing.” 34 An. 651.
    7. So, if the plaintiff could recover as against Lee, it is clear that he could recover as against the defendant.
    8. The pleas of prescription of three and five years do not apply as a bar to an action to annul a tax sale, where the gravest irregularities and absolute nullities are propounded. 32 An. 912; 34 An. 409-707; 35 An. 1087; 29 An. 510; 43 An. 441; 38 An. 400; 40 An. 455; 4 So. Rep. 50G.
    9.A judge who should render a judgment without citation or hearing could hardly be permitted to hold property acquired in execution of said judgment. The same rule applies with greater force to an assessor.
    10. “The general rule,” says the Supreme Court of the United States, “stands upon the great moral obligation to refrain from placing ourselves in situations which ordinarily excite a conflict between seif-interest and integrity.” 4 How. 555.
    11. A title absolutely null can not be the basis of prescription. 10 U. 552; 7 At. 379-406; 3 R. 223; 4R. 201; 4 N. S. 224.

      J. G. Egan & Son for Defendant and Appellee:
    1. The only grounds o£ nullity and irregularity specially alleged in the petition, and which can be passed upon by this court under the pleadings, are want of advertisement for the time required by law and irregular assessment. 14 An. 778-9.
    2. Want of advertisement for thirty clear days of property advertised to be sold for taxes is a relative nullity and sueli defect is cured by prescription of three and five years. HR. 537; 10 R. 398; 1 An. 777; Act of 1834 (re-enaeted in 1855); . 2 So. Rep. 809; O. C. 3543 ; 39 An. 1005; 3 So. Rep. 273.
    3. The Constitution divides property into known and unknown owners. Advertisement is the mode of notice provided for unknown owners. There is no contention that this notice was not given in this way. But plaintiff contends the advertisement under which the sale was made was insufficient because the property was not advertised for thirty clear days.
    4. An assessment containing a description sufficient to identify the property and not mislead the owner is all that the law requires. Cooley on Taxation, pp. 282-3; Blackwell on Tax Titles, p. 150, Sec. 136; 41 An. 769.]
    5. It was the assessor’s duty to assess the land to an unknown owner when he could not And out by an examination of the records and by inquiry to whom the land belonged. Act No. 77 of 1882, See. 17.
    6. A sworn oAicer is always presumed to have done his duty. 1 Hen., p. 490, See. 17. *
    7. When one by his silence, acts and conduct induces another to believe in a state of facts and to act thereon, he is estopped from enforcing any advantage thereby acquired. tcQui tacit consentiré videtwr, qui potest et debit veetnr jubet, si nonvetat." Story Bquity Jurisprudence, Sec. 389; Cross on Pleadings, p. 76; 5 An. 108, 367.
    8. A possessor in good faith is entitled to be reimbursed for the enhanced value of the property resulting from the improvements made by him and is not accountable for .fruits. C. 0 . 508; 1 N. S. 408 ; 8N. S. 609; 2L. 104; 3 L. 534; 6R. 192; 2 An. 259, 376; C. N. 555; 16 An. 85, 91, 243; 23 An. 138.
    9. Good faith is always presumed in matters of prescription, and he who alleges bad faith in the possessor must prove it. O. C. 3481.
   The opinion of the coart was delivered by

Watkins, J.

Plaintiff’s action is one for the revocation of a tax sale, on the ground that same is absolutely null and void in several respects — the defendant disavowing the badges of nullity assigned, averring his good faith, acquisition of the property, and supporting his title by the pleas of three and five years’ prescription. In the alternative the defendant makes claim for the enhanced value given to the soil by reason of certain improvements he had placed thereon since his purchase, it having been in a State of nature at that time.

On the trial there was judgment in favor of the defendant, quieting him in his title, and the plaintiff has appealed.

The land in dispute is the northwest quarter of Section Eight (8), Township Twelve (12), North of Range Ten (10) West, containing one hundred and sixty (160) acres; and the plaintiff acquired it by inheritance from his deceased father, who had become the owner of it many years ago, and which, with other lands, composed what has since been known as the Willow Point plantation.

The contention of the plaintiff in respect to the alleged nullity of the sale of the land for taxes is that all the land that he inherited was duly and regularly assessed to his tutor, B. S. Dickson, and the taxes thereon regularly paid for all years prior to 1882, when the land in controversy “was assessed to an unknown owner; whereas, the judicial records, former assessments and maps of said parish indicated and showed your petitioner to have been the legal owner of said property.” That at the time of said assessment, and long afterward, he was a minor and entirely ignorant of his- property having been thus assessed. That on the 8th of May, 1883, the tax collector made a pretended sale thereof in satisfaction of said taxes, and adjudicated it to P. A. Lee and G. W. Oawthon — the former being the person who was the assessor, and made the assessment in 1882— and they executed a conveyance thereof to the defendant on the 16th of April, 1884, for the nominal price of one dollar per acre. That the sale of May 8, 1883, was not advertised for thirty clear days as the law requires.

Plaintiff’s case must necessarily depend upon the solution of the two propositions: (1) the want of thirty days’ advertisement of sale, and (2) the illegal assessment of Ms property as that of an unknown owner.

As affecting the question of rents and improvements, plaintiff avers that the defendant, Williams, was, at the time of his purchase from the adjudicatees, and had been for many years previously, well aware that said land belonged to petitioner, and of the nature and origin of his title, and of the absolute nullity of the tax sale; and, notwithstanding said facts, he purchased same without warranty and within the year allowed by law for its redemption, and, consequently is a purchaser in bad faith, and liable for rents and revenues from the commencement of his possession.

Per contra defendant’s contention is, that he purchased the property in good faith, for a fair price, and without any knowledge of defects, if such there were, in his vendors’ title, averring himself to have been in actual occupancy and possession thereof since date of his acquisition to the full knowledge of the plaintiff.

Representing that, notwithstanding the fact of plaintiff being fully aware of his open, peaceable, public and unequivocal possession, and of his having cleared, fenced and cultivated the greater portion of the tract during the time that has intervened since the sale, he did not inform him of any claim or pretension of his own, but, on the contrary, remained silent and concealed the same, and thus induced him to incur heavy outlay and expense in making the aforesaid improvements; therefore defendant insists that he is equitably estopped from instituting or maintaining this action.

In respect to the nullity of the assessment, the representations of the defendant are to the effect that the assessment rolls of 1880 to 1885 show that the land in question was not carried upon the tax rolls as property of the plaintiff, and that in the judicial proceedings appertaining to the plaintiff’s emancipation, and placing him in possession of his inheritance, same is not described as constituting a part thereof. That the assessment was correct and honest; but if it be in any respect erroneous, the fault is directly attributable to the plaintiff’s tutor, who, in making a sworn statement of his ward’s property in 1882, to serve as the basis of an assessment of that year, omitted therefrom any reference to the land in dispute.

The evidence abundantly shows that a tax title in due form was executed by the tax collector in favor of the adjudicatees on the 8th of May, 1888, to the property in dispute in satisfaction of the taxes due thereon for the year 1882, under an assessment to an unknown owner. That said title was duly recorded soon after in the proper book of conveyance records of the parish in which the property is situated. That the purchasers conveyed the property to the defendant by notarial act of date April 16, 1884, in consideration of $160 in cash, the deed expressly stipulating that the sale was made with only such warranty or guarantee of title as they acquired under the tax sale of May, 1883. That at time of sale the property was in a state of nature, wholly unimproved, but soon after defendant’s purchase he went into actual possession and made thereon extensive and valuable improvements, having reduced the greater part of it to cultivation at date suit was brought in January, 1891. That, notwithstanding plaintiff’s minority at date of assessment, he became fully emancipated and entered into possession of his inheritance in 1884; and, in 1885, became aware that the disputed property was his, and in defendant’s possession, but made neither protest or complaint prior to the institution of suit.

It further shows that the reason plaintiff, as a witness, assigned for not objecting to the defendant’s possession was that the Citizens Bank held a large debt on his father’s estate, and he did not care to become personally liable therefor; and inasmuch as that mortgage covered the land in dispute, such would have been the inevitable result of such a suit as this one, and hence he postponed acting until he could effect a compromise. The compromise with the bank was effected on December 15, 1890, only a few days prior to the institution of this suit — the mortgage indebtedness of plaintiff’s father largely exceeding the value of the property in controversy.

It is upon this state of facts that the defendant urges his pleas of three and five years’ prescription under the statute of 1874 in bar of plaintiff’s action; and to which the plaintiff opposes the alleged nullity of the assessment, insisting that, inasmuch as an assessment stands in lieu of a judgment, there can be no valid sale in the absence of a valid assessment against the true owner of the property.

With reference to the assessment of 1882 the record discloses the following facts substantially, viz.:

That Major B. S. Dickson, tutor for the plaintiff, made out and furnished the assessor a list of the property of his ward for assessment, and thereto appended his oath. That the assessor placed upon the assessment roll of that year the exact description of the minor’s property that was given to him by his tutor. That, in his opinion, said assessment was honest and correct to the best of his knowledge. And that when this assessment was made he had no knowledge of the plaintiff having any claim to the land in dispute.

That at that time there was no parish map showing the original land entries, or the names of the owners of land in the parish.

That the statements of Major Dickson were the only lights he had before him at the time of making the assessment of the property of the plaintiff. That he referred to back tax rolls to see if the list given in by Major Dickson compared with the back tax lists.

The assessor further states that it was his habit, in case of unknown owners, to search the records diligently, but that the records were in such a condition at that time in the parish of Red River that it was almost impossible to tell anything about them. That he knows that he searched the records in the present case, and made inquiries and tried to find out to whom the property in dispute belonged. That he made inquiries of parties who lived in the vicinity where the land was situated in order to find out to whom the same belonged.

Reference to back tax lists of former years discloses that the land in dispute appears upon an assessment of land in the name of B. S. Dickson, Agent. Likewise in 1878.

It is not included in the assessment of B. S. Dickson, Tutor, for either of the years 1880 to 1885 inclusive.

It is not included in the statement of property that was furnished as the basis of proceedings for plaintiff’s emancipation in December, 1884, but it is included in the description of the property that was mortgaged by the plaintiff’s father to the Citizens Bank in March, 1841 — some ten years prior to his death.

This is the sum and substance of the evidence touching the validity of the assessment, of which complaint is made that it is and was an absolute nullity, because it was assessed to an unknown owner, instead of having been assessed to the plaintiff or his tutor.

Ic can not be readily perceived what more the assessor should have done or could have done under existing circumstances.

True it is that a description of this land appears in some of the ancient land titles of his father, and those of his authors, which appear of record in books of conveyances of the various properties that were taken from the adjoining parishes in the formation of the parish of Red River; but doubt has existed until recently as to whether same were efficacious evidences of title — this court having maintained the affirmative view in ParishBoard, etc., vs. Edwington, 40 An. 633, the purport of which is that duly recorded titles can not be affected prejudicially by the transfer of the property from one parish to another.

But the mere fact of the registry of such titles in the new parish being questionable is sufficient to relieve him of the charge of wrongdoing in failing to consult the records at his command — not taking into consideration the bad condition of even those records at the time of making the assessment.

Taken all in all, the facts make out a proper case for the prescription of three years, if they do not make out an absolutely perfect assessment and sale.

For it appears that in making the assessment of the property in dispute, the assessing officer had recourse in vain to the sources of information plaintiff mentions in his petition as exhibiting his title.

That, not being satisfied with not finding it assessed in the name of any one, he did not assess it to an unknown owner until after he had made diligent examination of the tax rolls of previous years and proper inquiry of adjacent property owners as to who was the proprietor, without avail.

That, notwithstanding the assessments of the plaintiff’s property was made in 1882, as well as in prior and subsequent years, by the plaintiff’s tutor, under oath, there is no trace of the land in dispute to be found thereon.

In addition to these salient facts, it further appears that, notwithstanding the plaintiff’s minority at date of assessment, and the subsequent tax sale thereunder, he was fully emancipated shortly afterward and entered into possession and enjoyment of his inheritance; and subsequently became aware of the defendant’s occupancy and improvement of the property in dispute, and thereafter continued to refrain from taking any steps looking to his divestiture of title or possession until he had succeeded in effecting a compromise settlement of the interfering Citizens Bank mortgage — his greater interest in protecting himself from the mortgage transcending his lesserjnterest in revoking defendant’s title, thus clearly manifesting acquiescence for the full prescriptible period of three years..

The single circumstance of one joint purchaser at tax sale made in May, 1883, having been the person who made the assessment in 1882, presents no serious obstacle to the primary validity of the assessment or sale, for the reason that long prior to date of sale he had ceased to be assessor, and was not such officer at the time of adjudication.

The underlying principle contended for by the plaintiff being that “ the policy of the law will not permit an officer to put himself, in a situation in which his duty and interest must necessarily conflict and be at variance.”

Mr. Justice Cooley puts the proposition thus:

“ No provision of law, it is assumed, would ever be made which would subject official integrity to the trial Of such conflicts between interest and duty as would be sure to arise if the officer were allowed to bid at a sale when his duty would be to obtain the highest practicable bid in the interest of another. To put himself in that position is regarded as a fraud in the officer upon the law; and upon general principles of public policy, the sale which he makes to himself is void.’’’ Cooley on Taxation, p. 341.

Lee was assessor in 1882, but not in 1883. He made the assessment but not the sale. There is no proof in the record to that effect, and, in the absence of proof, we can not assume that at the time of the assessment the assessor contemplated becoming a purchaser at the sale that might be made in the future.

We have had occasion frequently to examine pleas of three years’ prescription arising under the act of 1874, as applicable to actions for the annulment of tax sales, and an examination of the cases adjudicated will show that it has not been favorably considered or maintained in any case disclosing radical nullities in either assessment or sale. Vide Persons vs. O’Neal, 32 An. 228; Logue vs. Boagni, 32 An. 914; Davenport vs. Knox, 34 An. 409; Wederstrandt vs. Freyhm, 34 An. 705; Heckman vs. Dawson, 35 An. 1087; Surgett vs. Newman, 42 An. 777; Breaux vs. Negrotto, 43 An. 426; Prescott vs. Payne, 44 An. 650.

In each of the foregoing cases this court refused to maintain the plea, because of the existence of radical defects in either assessment or sale.

But on account of the absence of such defects it was maintained in Barrow vs. Wilson, 39 An. 403; in McDougal vs. Montlezun, 39 An. 1005, and in Smith vs. City, 43 An. 726.

This is evidently a proper case for the application of the principles announced in the cases last cited, and the district judge properly maintained defendant’s plea of three years’ prescription.

The prescription or five years is likewise good as to the want of full thirty days’ advertisement — a mere irregularity, and not an absolute nullity of sale.

Judgment affirmed.


author: McEnery, J.

text:
    No. 11,222.
    Citizens Bank of Louisiana vs. W. T. Miller et al. Opposition of J. K. Obbr et al. and Sells & Co.
    Property mortgaged with tlie pact de non alienando stipulated in the act of mortgage, and then sold and the vendee mortgages it, and while in his possession as third possessor he puts improvements on it which enhances the value of the property, the second mortgage creditor, tlie mortgagee of the third possessor, is entitled to the benefit of this enhanced value to satisfy his mortgage debt.
    In a pending suit, where a judgment creditor of the plaintiff seizes all his right, title and interest in the suit, to which seizure no opposition is made, and the suit is prosecuted to final judgment, the seizing creditor is alone interested in it, and the suit is prosecuted tor liis benefit. He is therefore bound by the decree and can not afterward set up rights adverse to the property in whose favor the decree was rendered.
    APPEAL from the Eighth District Court, Parish of Concordia. Thompson, Judge ad hoc.

      S. L. Elam for Appellants.

      J. N. Luce for Appellees.
   The opinion of the court was delivered by

McEnery, J.

The Citizens Bank owned a stock mortgage on Point Pleasant plantation in Concordia parish, placed on it by David E. Miller, owner, in 1838. In 1879, O. N. Wilds and A. G. Ober sold this plantation to the Excelsior Planting and Manufacturing Company, which corporation executed a mortgage in favor of the vendors. The property went into the possession of the corporation with the bank’s mortgage resting upon it. Tne Citizens Bank foreclosed its mortgage. The Excelsior Planting and Manufacturing Company as third possessors of said property filed a third opposition claiming a portion of the proceeds of the sale of said plantation on account of the enhanced value given to the plantation by the improvements made and put upon said plantation by said corporation. »

Sells & Co., while said opposition was pending in the lower court, issued execution on a judgment they held against said corporation and seized all the right, title and interest that the corporation had in and to the suit styled the Citizens Bank of Louisiana vs. Miller et al., opposition of the Excelsior Planting and Manufacturing Company, No. 1612, on the docket of the Ninth District Oourt of Concordia parish, and all the right, title and interest of said Excelsior Planting and Manufacturing Company in and to any judgment that may be declared in their favor in said suit, and all right, title and interest of said company in and to any claim and debt that may be due by the Citizens Bank of New Orleans, La., to said company.”

After this seizure was made the second mortgage creditors of the Excelsior Planting and Manufacturing Company, represented by J. K. Ober et al., intervened by way of opposition, claiming the proceeds of these improvements on account of their mortgage on the Point Pleasant plantation.

On the trial of these oppositions, the District Court rendered a judgment “in favor of said Excelsior Planting and Manufacturing Company on its third opposition, and enhanced value of lands by reason of improvements in the sum of $1183.33, being two-thirds of the enhanced value of said plantation by reason of said improvements, less $150 and costs of this opposition, and that the mortgage of J. K. and Gustave Ober et al., on such demand for improvements be recognized and the same be paid to such mortgage creditors with the costs of their intervention.”

On appeal to this court this judgment was affirmed. 44 An. 119.

The issues involved in this case are fully discussed and decided in that case.

The 'Citizens Bank opposed the claim of the second mortgage creditors on several grounds, one of which was that “ a purchaser of property subject to a mortgage containing the pact de non alienando stands in the shoes of the original mortgage debtor, and can not, any more than that debtor himself, claim reimbursement on account of improvements made on the property; in other words, that he is not in the eyes of the law a third possessor, and is not therefore entitled to the protection of the Article 3407, Revised Oivil Code.”

This court in that case decided that the pact de non alienando did not prevent the alienation of the mortgaged property, its effects only being to permit the mortgage creditor to seize the property in the hands of a third possessor by proceedings directed against the original mortgagor without notice to third possessors or other preliminary proceedings required in the ordinary hypothecation, and that a purchaser of property containing this pact was a third possessor within the purview of Article 3407, and entitled to claim compenssfcion for his improvements to the extent they have enhanced the value of the mortgage security. Therefore the Excelsior Planting and Manufacturing Company was held to be a third possessor, entitled to the benefits of the provisions of Article 3407 of the Civil Code.

But as between the Excelsior Planting and Manufacturing Company and J. K. Ober et al.,the former was not a third possessor. As to them the company or corporation was the original mortgage debtor, and as such owed Ober et al. the amount due for the enhanced value of the plantation on account of the improvements. There is no argument necessary to show that the mortgagee can not have his debt diminished on account of improvements placed on the mortgaged property. Whatever improvements are placed thereon necessarily fall under the operation of the mortgage, and the mortgage creditor is entitled to the benefit of the enhanced value of the property, and this enhanced value can in no way be separated from the mortgaged property between mortgagor and mortgagee, so as to become wliat counsel for Sells & Oo. denominate an incorporeal right, and therefore incapable of being subjected to the mortgage of Ober et al.

The plantation, with its prospective value from whatever source, was subject to the mortgage of J. K. Ober et al. The proceeds of tho sale represent the property in its entirety, and there is no means of separating the enhanced value from it.

There was no reason then why Ober et al. should have made a separate seizure of it to preserve their right uponit, as contended for by counsel for Sells & Oo.

There was, after the final determination of the suit of Citizens Bank vs. Miller, and oppositions thereto, no interest .of the Planting and Manufacturing Company which Sells & Co.’s seizure could affect.

In fact they had no interest in the enhanced value of the place, as the decree had vested this in the opponents, Ober et al., as the immediate mortgage creditor of the original mortgagor, the Excelsior Planting and Manufacturing Company.

The seizure of Sells & Oo. fell to the ground under the effects of that decree. The seizure depended upon the contingency of that decree. After the seizure the Excelsior Planting and Manufacturing Company had no interest in the result of the suit, as they made no opposition or defence to the seizure.

If prosecuted by them, it was for the benefit of Sells & Co. They were really the parties in interest, and although technically not before the court on the appeal they are concluded and bound by its decree.

They seized the interest of their debtor in a pending suit. It was decided adversely to their debtor. After the decree, on what grounds can they assert a privilege by virtue of their seizure on the thing seized, the ownership of which was at issue in the suit ?

This is the position assumed by Sells & Co. in this suit. "We can find no possible reason to sustain their pretensions. .

The defendants claim damages for arresting the fund in the hands of the sheriff.

Under these proceedings there is no law warranting us in awarding damages.

It is therefore ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and reversed, and the opposition of Sells & Co. to the distribution of the fund in the sheriff’s hands be dismissed, and it is further ordered that the opposition of J. K. Ober et al. on said fund be maintained, and the sheriff of Concordia pay to them .the amount due them in accordance with the decree heretofore rendered in case of Citizens Bank vs. Miller, Excelsior Planting and Manufacturing Company, fntervenors (No. 11,009), opponents Sells & Co. to pay all costs.


text:
    No. 11,230.
    The State of Louisiana vs. Mace Crenshaw.
    The indictment prepared by the district attorney is the formal presentation of the finding of the grand jury, and the omission of his signature can be remedied at any time in accordance with Sec. 1064, Revised Statutes.
    The omission of the signature of the district attorney being a formal defect only, it must be taken advantage of before trial by demurrer or motion to quash the indictment.
    In an indictment charging the defendant in two counts with burglary and larceny, growing out of the same transaction, a verdict of “ guilty as charged in the indictment” is a sufficient basis for a sentence for the burglary.
    Evidence intended solely to impeach the credibility of witnesses who testified on the trial is not sufficient ground for a motion for a new trial.
    PPEAL from the Ninth District Court, Parish of DeSoto. fíctíí, J>

      M. J. Cunningham, Attorney General, and J. B. Lee, District Attorney, for the St*ate, Appellee:
    1. To enable the Court of Errors and Appeal to review the decision of the court below upon matters resting in its sound discretion, a case must be presented by a bill of exceptions, as to disclose ali that is necessary to manifest the supposed error, unless it be apparent on the face of the records. In absence of a bill of exceptions the Supreme Court will not review points made in the trial court on a motion for new trial, which can not be assigned as error. Act No. 3 of 1843; 8 R. 529, 562, 571; 10 An. 456.
    2. A new trial will not be granted on account of newly discovered evidence, when such testimony is merely cumulative. 7 An. 284; 35 An. 9; 36 An. 709; 37 An. 43; 39 An. 234; Whart. Or. PI. and Pr , Secs. 854, 866.
    3. Newly discovered evidence, the effect of which is to impeach the credit of a witness for the State who has testified on the trial, is not grounds for a new trial. 27 An. 481; 30 An. 305; 32 An. 1227; Whart. Or. PL, See. 869.
    4. The finding of a grand jury and the signature of the foreman of same, and its presentment into open court, gives to a “ bill of indictment ” its validity. The signature of a prosecuting attorney may be attached at anytime, in fact the same is not essential to the validity of a “ true bill.” 8 R. 562; Wharton Or. Law, p. 243, Secs. 354, 355, et seq.; Bish. Or. Pl. and Pr., p. 428, Secs. 697, 698, 700 and 702; Arch., p. 76.

      George E. Head and Pierson & Elam for Defendant and Appellant:
    After the plea and empaneling and swearing of the jury the district attorney will not be permitted to affix his official signature to the bill of indictment; and on motion in arrest, because of the fact that the bill was not signed by the district attorney before plea and swearing and empaneling of jury, the verdict should be set aside. Rev. Stat. 1063; 32 An. 1178.
    Where the district attorney places on bill of indictment only the names of witnesses upon the testimony of whom no conviction could be had, and upon trial produces witnesses whose names were not upon the bill, and upon whose testimony the defendant is convicted, the production of said witnesses and their testimony taking the defendant by surprise, a new trial should be granted.
    Where burglary and larceny are charged as separate distinct offences in same bill in separate counts, a general verdict of “guilty ” is not responsive, and no lega sentence can be based thereon; and sentence imposed on such a verdict will be set aside. 30 An. 1162; Bishop Or. Procedure, I, 1297, 1325, 1326; 34 An. 1136; Proifat on Jury Trials, See. 426 ; 37 An. 779; Bishop Or. Procedure, Sec. 1005, Yol. 1; 35 Mo. App. 551; 106 Mo. 635; 20 Neb. 138; 7 Wis. 219; 59 Cal. 342 ; 97 111. 32.
   The opinion of the court was delivered by

McEnery, J.

The defendant was charged in the indictment with burglary.and larceny in two counts, the two offences originating in the same act. The jury returned a verdict of “ guilty as charged in the indictment,” and the judge sentenced him, as “having been convicted of the crime of burglary and larceny to the penitentiary at hard labor for a period of three years.”

The indictment was not signed by the district attorney until the case was called for trial and the trial commenced, when, with the permission of the court, he affixed his signature t<- it.

The defendant complains that the conviction was illegal, as the iudictment being without the signature of the district attorney when returned into court had no validity, and could not be the basis of a judgment, and that the indictment charged two separate and distinct offences, independent of each other, and that the verdict returned did not indicate or charge of which offence the defendant had been convicted. •

1. There is no law in this State requiring the district attorney to sign a bill of indictment. His signature to it is not essential, as it is not his presentation of a crime but the accusation of a grand jury. The argument that the trial was interrupted by the signature being affixed during the course of the trial, and the minds of the jury distracted, has no bearing whatever on the case. A suspension of the trial momentarily to perform some duty incident to it, when there is nc separation or improper influences brought to bear upon the jury, can in no way disturb their minds as to the facts which they are to consider. Whether the indictment was properly framed or not did not concern the jurors, and after its amendment under the direction of the court it was to all intents and purposes to them a valid and legal indictment. There was no fact in connection with the amending of the indictment that could possibly influence the verdict.

In some jurisdictions it has been held that the signature of the prosecuting officer was essential to the indictment when it left his hands and went to the grand jury.

In others the contrary doctrine has been held.

Under the law of this State, Section 2140, Revised Statutes, the grand jury can originate a prosecution. It is not essential that a crime be brought to its attention, either through examinations by committing magistrates or information through the district attorney. Section 2140 makes it the duty of a member of the grand jury to inform it of any violation of the criminal law of the State, or of any crime committed within the parish for which he is impaneled as a grand juror, since the sitting of the last grand jury, which may have come . to his personal knowledge or of which he may have been informed.

The indictment prepared by the district attorney is therefore only a formal presentation of the finding of the grand jury. It is the act of the grand jury, and not that of the district attorney. The omission of the signature even if necessary to the indictment was a formal defect, patent on its face, to be taken advantage of by demurrer or motion to quash before the jury shall be sworn.

2. In the ease of State vs. Nicholls, 37 An. 779, we held that the verdict of guilty of “ burglary and larceny ” responded to the indictment, charging both in one count, and; was equivalent to a verdict of “ guilty as charged in the indictment',” and the sentence for burglary only was sustained.

This decree was in accordance with, paragraph 3048, 3 Wharton Criminal Law, which is as follows:

“ Where the indictment charges in one count the breaking and entering of a building with intent to' steal, and in another count a stealing in the same building on the same day, and defendant is found guilty generally, the sentence, whether that which is proper for burglary only, or for burglary and larceny also, can not be reversed for error, because the record does not show whether one offence only or two were proved on the trial; and as this must be known by the judge who tried the case, the sentence will be held to have been according to the law that was applicable to the facts proved.
“Where there is a general verdict of- guilty upon several counts relating to the same transaction the practice is to pass judgment on the count charging the highest grade of.offence.”

The sentence imposed by the trial judge was in accordance with law, as laid down in the above quotation, and in the case of State vs. Nicholls, 37 An. 779.

The defendant filed a motion for a new trial. In the record there is the affidavit accompanying the motion of the defendant, and of other parties alleging that two witnesses swore falsely, upon whose testimony the conviction was had, and that they were of notorious bad character and unworthy of belief.

As this evidence is intended to impeach the testimony of witnesses on the trial it is not a legal ground for a motion for a new trial as newly discovered evidence. State vs. Williams, 38 An. 361; State vs. Gauthreaux, 38 An. 608; State vs. Burt et al., 41 An. 787; State vs. Garig, 43 An. 365; State vs. Chambers, 43 An. 1108.

Judgment affirmed.


author: Breaux, J.

text:
    No. 11,232.
    The State of Louisiana vs. Charles A. Hendrix.
    The object in applying for a new trial, on the ground of newly discovered evidence, was to impeach the credit o£ a witness.
    The newly discovered evidence is cumulative, and if the new trial were granted, it would not lilcely produce a different result.
    APPEAL from the Second District Oourt, Parish of Bossier. Watkins, J.

      M. J. Ounningham, Attorney General,-and A. J. Murff, District Attorney, for the State, Appellee.

      J. A. W. Lowrey and J. II. Shepherd for Defendant and Appellant.
   The opinion of the court was delivered by

Breaux, J.

The defendant in this case was found guilty of shooting with intent to kill.

Prom a sentence and judgment condemning him to serve eighteen months at hard labor in the penitentiary he appeals.

The defendant moved for a new trial on the ground of newly discovered evidence.

In his motion for a new trial he averred that he had since the trial discovered material and competent evidence which he could not have discovered with due diligence prior to the trial.

That the witness he desired to have examined was within reach of the process of the court; that this witness was, at the time of the difficulty, in the immediate vicinity of the shooting and was an eye witness to the difficulty; and he sets forth the facts, to which he alleges this witness will testify, in support of the defence that he was not the aggressor, but acted in self-defence.

The trial judge incorporated his statement in the bill that the evidence claimed to have been newly discovered is of an impeaching character; that a continuance was obtained by the defendant at a preceding term on the ground that the defendant could make out his case by a witness who was present at the difficulty.

That this witness was not sworn at the trial.

The judge adds: The testimony of an eye witness for the State; the wounds on the body of the prosecuting witness; the threats made by the defendant against him by five reputable witnesses and not disproved, concur in disproving the new witness or his ex parte affidavit. . „

The reasons of the trial judge for refusing a new trial when the motion is based on newly discovered' evidence is entitled to great weight.

The refusal of the new trial by the district judge on the ground urged is largely discretionary, and unless the discretion is abused the refusal will not be disturbed.

In reference to impeaching evidence, and in so far as that was the object, in applying for the new trial, it has repeatedly been held that the discovery of new evidence as would'impeach the evidence of a witness on a former trial is not sufficient ground for a new trial. State vs. Williams, 38 An. 362; State vs. Fahey, 35 An. 9; State vs. Diskin, 38 An. 46.

In so far as the evidence is cumulative it is equally as well settled that new trial will not be granted to enable an accused to introduce newly discovered evidence that is cumulative. “The expected evidence would be cumulative only.” State vs. Banks, 39 An. 236; State vs. Lamothe, 37 An. 43; State vs. Hyland, 36 An. 710.

The records disclose that the evidence would corroborate that of the.accused in his own behalf, and that it would be in that respect cumulative. The affidavit of the accused does not show that it is not cumulative.

From the statement of the trial judge set forth in the bill of exception, the conclusion is unavoidable that the newly discovered evidence is not such as would justify a jury in reaching another verdict than that returned.

Newly discovered evidence which would not be likely to produce a different result is not ground for a new trial. State vs. Washington, 33 An. 898; State vs. Tessier, 32 An. 1228; State vs. Johnson, 30 An. 306.

None of the grounds for a new trial are sufficient to reverse the ruling refusing the new trial.

The verdict of the jury and the judgment appealed from are therefore affirmed.


author: Nicholls, O. J.

text:
    NO. 11,220.
    Mary E. Clark et al. vs. John Comford et al.
    1. An exception to a petition addressed “ To the 18th Judicial District Court of the State of Louisiana, bolding sessions in and for the parish of Livingston,” on the ground that the number of the district was erroneously stated was properly overruled — the mistakenvas an immaterial clerical error.
    2. When a former suit between the parties has been discontinued by the plaintiff after a new trial had been granted him on his application, defendant can not successfully plead Ms pendens by reason of his having filed in the first suit a re-conventional demand for the value of improvements made on a tract of land, and for taxes paid by him when judgment is only asked in his behalf, in the event plaintiff should obtain judgment against him on the question of title to tholand. When plaintiff’s demand was discontinued, defendant’s claim — merely contingently advanced — fell.
    3. An agreement whereby “the party of the first part agrees to sell” to the party of the second part a certain tract of land known as the Governor’s Bluff tract, in the parish of Livingston, “ said to contain 1278 80-100 acres.”
    “Theparty of the second part agreeing to pay to the party of the first part $2 per acre, on terms as follows: Dive hundred dollars cash, on the 1st day of September, 1872, and the remainder in two equal payments, payable on the 1st day of .May, 1878, and 1st day of May, 1874, with interest at the rate of S per cent, per annum from date until paid ”— in respect to which agreement the party of the second part pleaded that under l he terms thereof “lie was to pay $2 per acre for said land, and notarial title, was to be given when the title of the. party of the first part could be completed;” held to be a promise of sale and not a sale, when the testimony shows that at the time of said agreement the title thereto had not been confirmed by the government, and that under a conviction that the same, would soon bo confirmed, the party of the second part went into immediate, possession of the land by consent — under the obvious understanding that in the interval lie should have all the rights of ownership short of ownership itself, but with a liability to pay interest on the purchase price from the date of the agreement.
    The agreement contained the elements upon which both the “ thing sold” and the price to be paid might ultimately be fixed, but the number of acres to be purchased was uncertain, dependent upon a subsequent confirmation of the tract and a survey of the same, and the object of the sale being uncertain, the price also was uncertain, being fixed at $2 for each acre.
    4. A person wlio with the consent of the owner of a tract enters into possession of the same under a promise of sale, and on contemplation of the consummation thereof, with the obvious understanding that he was to have all rights of ownership short of ownership itself, but under the obligation to pay interest on the purchase price from the date of the agreement, is not a possessor in bad faith, but his possession is not of such a character as to enable him to acquire the property under the prescription of ten years — he did not enter on the land under a title translative of property and he can not change the character of his possession.
    5. A party in an agreement to selL land when his title is completed, who does not allege that lie has as yet a confirmation of the land, made a survey, or done any act whatsoever in furtherance of the execution of the agreement, can not ask that the same be set aside until he shall have done so, and the other party is in default. In the meantime the parties must remain in the position in which they were originally placed by consent — the proposed purchaser in possession with the qualilied right conveyed 'at the time of entry, but with the obligation to pay interest from date of the agreement and with eventual rights of both left open.
    APPEAL from the Sixteenth District Oourfc, Parish of Livingston, Reid, J.

      I. L. Bradford and Calhoun Flulcer for Defendants and Appellants.

      Cross & Cross for Defendants and Appellees.
   The opinion of the court was delivered by

Nicholls, O. J.

The plaintiffs, as the instituted heirs and universal legatees in various proportions of the late Virginia Wilson Burbridge allege that they are the joint owners and, entitled to the possession and enjoyment of a certain tract of land, together with the buildings and improvements thereon, in the parish of Livingston, known as the “ Governor’s Bluff Tract,” and known upon the approved township maps of the United States as Section 66 in township No. 7 South, of range No. 2 East, Section No. 45 in township No. 7 South, of range No. 3 East, and Section No. 50 in township No. 8 South, of range No. 3 East, all aggregating 1278 30-100 acres.

That said tract of land was acquired by"Mrs. Virginia Wilson Bur-bridge, as widow in community and universal legatee of James W. Burbridge.

That under and by virtue of a promise or agreement in writing, signed by J. W. Burbridge and dated the 10th day of April, 1872, to sell and convey the said tract of land to -him on certain terms and conditions, one John Comford in conjunction with one E. Thomas Cockerhan, who pretends to have purchased a portion of said land from Comford, have in bad faith taken possession of said land, and pretend to hold the same as owners, adversely to the title of petitioners, whose rights they deny, refuse" to give up possession to them, refuse to allow them to enjoy the said land, and have done so for a number of years without paying but refusing to pay rent for the same, cutting and removing and selling to others the right to cut and remove from the same large quantities of valuable timber and wood, and in other ways committing acts of trespass and damage to said land and the buildings and fences and other improvements upon the same, all to the great damage and injury of petitioners.

That said John Comford has in no wise or particular ever complied in anyway with said promise or agreement to buy said land by paying the purchase price therein mentioned or otherwise complying with any of the terms, conditions or stipulations of the same, all of which is and was well known to said Cockerhan at the date of his said pretended purchase, and that the same should be annulled and set aside.

That notwithstanding the failure of said Comford to comply with the terms and conditions of said agreement he and said Cockerhan continue in bad faith to use the same as a color of title or subterfuge or excuse for their tortious and illegal depredations upon said lands, and as a bar to the payment of yearly rents for their use and occupancy of the same.

That said land is worth the sum of $3 per acre, or the total sum of $3835.90.

That said defendants owe petitioners rent at the rate of $200 per year from the time they shall appear on the trial to have possessed the same, and also the sum of $1000 for cord wood used or sold by them and taken from said land; $2000 for trees and timber cut and removed or destroyed by them or by others with their consent, or either of them, and $750 for staves and pieux and barrel heads also cut and removed from the same by the defendants or by others with their permission. They pray that the said parties be cited and that plaintiffs have judgment against defendants decreeing plaintiffs to be the owners of said lands and entitled to the possession of the same, and annulling and setting aside said agreement of sale, and annulling and setting aside the sale of any portion of said land from Comford to Cockerhan, and for judgment against Comford and Oockerhan in solido for the sum of $400 per year rent for each year they have possessed the same and detained it; and for the sums of $1000, $200 and $750 for cord wood, timber, staves, etc., as stated. Defendant filed two exceptions, which were overruled by the court. These exceptions will be referred to more particularly hereafter. On the 12th November, 1891, the defendants were allowed by the court until the first day of the next jury term to file an answer. Before that day arrived Comford died, and his surviving wife, Julia Ryan, as executrix of his last will and testament, and as sole heir and universal legatee, made herself a party-defendant.

In November, 1892, the defendants answered, first pleading the general issue.

They then alleged that John Oomfofd bought the said tract of land from said Burbridge as per private title annexed and made part of the answer, under which he has been in -actual possession ever since the date thereof. That if for any reason the estate of Oomford is evicted, they aver that Oomford spent in improving property: $3000 in cleaning the channel of Amite river so as to make a public landing at said place; $5000 in clearing, fencing and ditching 200 acres of land; $1200 in erecting a dwelling house and cabins on the same, and $500 paid for taxes, for which he prayed judgment. They pleaded the prescription of ten years to any claim of title, and the prescription of one, three and .ten years against claims for timber.

The case went to trial and resulted in a judgment in favor of the defendant and against the plaintiffs, rejecting their demand. Prom this judgment only one of the plaintiffs, Nathaniel Ewing, has appealed.

The exceptions overruled in the District Court were:

1. That the petition was addressed to the Eighteenth Judicial District Court, which under the Act of 1890 is without jurisdiction over the parish of Livingston.

The petition was addressed to and the proceedings have been carried on in the judicial district of the State of Louisiana in and for the parish of Livingston. The designation of the district as the eighteenth district was an immaterial clerical error.

2. That in the suit of Burbridge vs. Comford in the United States Court, Baton Rouge, on the same cause of action, respondent therein set up a plea in reconvention which is still pending, and issue having been joined on said reconvention and a trial had, plaintiff can not dismiss and seek another jurisdiction without the consent of respondent; wherefore, he pleaded lis pendens.

As the answer alluded to in this exception has to be considered in determining whether the action of the District Court thereon was correct or not, and as it has also a bearing upon the merits of the case, it is necessary to refer to the suit itself and to copy a portion of the answer.

In December, 1889, the plaintiffs instituted in the Circuit Court of the United States for the Fifth Circuit and Eastern District of Louisiana a petitory action against John Comford on allegations substantially those of the petition in this suit.

The defendant filed an answer, in which he declared that he bought the tract of land on the 10th day of April, 1872, from J. W. Bur-bridge, deceased; that a private title was drawn up and witnessed by one Harris, book-keeper of J. W. Burbridge & Co., and by Branch King, Esq., one of the employés of said firm. That under the terms of said sale he was to pay $2 per acre for said land, and notarial title was to be given when the title of said Burbridge could be completed. That said private title was deposited in the safe of said firm of J. W. Burbridge & Co., and he has reason to believe is among the papers of said firm now in possession of plaintiff. That the purchase price was fully paid by him. That on the day of said sale he received from the hands of J. W. Burbridge two instruments in writing annexed and made part of the answer wherein he recognized him to be the owner of said tract of land. That he permitted him to pay the taxes then due by him and the taxes afterward accruing up to his death, and also stood by and saw him making valuable and extensive improvements which he knew respondent would not have put on the place except in the honest belief that he was the owner of said place; and that by virtue of his conduct, active and passive, Burbridge (and his heir and widow in community) is estopped from assailing the title thus recognized in writing and acquiesced in for nearly eighteen years. That said private instruments marked “A” and “B” (last two copied) in themselves constitute a title. That although no price was mentioned therein the existence of an adequate consideration would be shown aliunde on the trial of the cause. That he has possessed openly and notoriously as owner from April 10,1872, under the written title left in the hands of J. W. Burbridge & Co., and the private memorandum of title, and he therefore pleaded the prescription of ten years. Alleging that respondent had put up extensive and valuable improvements and paid taxes, which are detailed, the answer prayed for judgment against the plaintiff for the amount and value thereof in the event he should be evicted.

The case in the United States Court was tried before a jury, which, under a charge from the court, rendered a verdict in favor of defendant. A new trial having been granted on application of plaintiff, she subsequently discontinued the suit.

Plaintiff then brought the present suit, in which defendants filed, as we have before stated, two exceptions, which were overruled.

The first of these exceptions we have disposed of. The court correctly overruled the second exception. A reference to the answer will show that the claim set up by defendant for improvements and taxes paid by him was only advanced by him contingently so as to meet a possible judgment, adverse to him upon the question of title.

When plaintiff discontinued, the defendant’s claim necessarily fell.

Before proceeding to a consideration of the merits we will transcribe the instrument in writing which the parties refer to in their pleadings.

On the 10th of April, 1872, Burbridge and Oomford signed the following paper, which being signed, was left in the possession of the former, and there remained until, at. the instance of Oomford, produced after the commencement of the litigation between them:

Articles of agreement made in New Orleans on this 10th day of April, 1872, between James W. Burbridge, merchant of New Orleans, of the first part, and John Oomford, of New Orleans, of the second part. Witnesseth: , _.

The party of the first part agrees to sell to the party of the second, part a certain tract of land known as the Governor’s Bluff or Gurley tract (purchased by the party of the first part of T. R. Hutchinson, in the Greensburg district, in township No. 788, now parish of Livington, State of Louisiana, said iso contain 1278 30-100 acres).

The party of the second part agreeing to pay to the party of the first part $2 per acre on terms as follows:

Five hundred ($500) dollars cash on the 1st day of September, 1872, and the remainder in two equal payments, payable on the 1st day of May, 1873, and 1st day of May, 1874, with interest at the rate of 8 per cent, per annum from date until paid.

Witnesses: James W. Burbridge.

T. D. Harris. John Oomford.

Branch M. King.

On’the same day Burbridge wrote and delivered to Oomford two papers to the following effect:

New Orleans, April 10, 1872.

To any State official of the parish bf Livingston, La., who maybe legally authorized to dispossess or eject any person who may have squatted or settled on the property of another without authority:

Have this day sold to John Comford a tract of land known as the Governor’s Bluff Tract — will have the authority to dispossess or eject any one he may ñnd on the property, as they will be there without authority.

Jambs W. Burbridge.

Mr. John Comford:

If you should find it necessary to go to Springfield and remove squatters on the property sold juju, you can call on John W. Addison or Daniel T. Setton, who will render such assistance as you may need. New Orleans April 10, 1872.

James W. Burbridge.

We have been greatly embarrassed in reaching a conclusion as to the real relations of the parties to each other and to the property, from their acts and declarations outside of the act of 10th April, 1872. Each party has weakened his own pretensions and strengthened those of his adversary. Independently of the letter addressed to “Any State official of the parish of Livingston,” in which Bur-bridge makes the statement he had that day “sold” the property, ,and the letter of the same date to Comford, in which he refers to squatters “ on the property sold to you ” — he in several other letters wrote to Comford of the land as “the land I let you have,” and as “ your place.”

Comford on the other hand wrote several times to Burbridge giving him advice as to his (Burbridge’s) renting various parts of the property, warning him against selling a portion of it to a person who he said wanted “ to get a soft bargain out of him,” and complaining of his having given “ a right of way” through his cultivated field. He also in several of these letters referred to the price of the land as unpaid.. These various letters are merely facts to be made use of in arriving at a decision upon the character of the agreement^of the 10th of April, 1872, for it is upon that act that the rights of the parties depend.

The defendant contends that these three papers evidence a sale fully completed on the 10th of April, 1872. That he became the absolute vendee as of that date, and thereafter simply owed the price of the property, which obligation to pay the price he has fully complied with. That he went immediately into possession of the property, then wild and uncultivated land — cleared, ditched and fenced a large part of it, built a dwelling and cabins upon it at great expense, deepened the channel of the Amite river so as to give a public landing at the place, paid the annual taxes and made crops as owner upon it, which he shipped to Burbridge and which were disposed of by him as such. That this long continued possession on his part coupled with' the knowledge of Burbridge of his actions and doings in the premises show unmistakably that Burbridge himself regarded the act of 10th of April, 1872, as a sale, and that in addition to this, his repeated admissions of defendant’s ownership in various ways estop and conclude him.

The plaintiffs on the other hand assert that the act of 10th of April, 1872, was a mere promise of sale; that Comford has never complied or attempted to comply with it in any manner;, that he went upon the place and has cultivated it for years without paying rent; that he has cut and disposed of large quantities of valuable timber and appropriated the proceeds to his own use and benefit; that he was a poor man in constant need of money and assistance, which Burbridge furnished him; that he has acknowledged the latter’s ownership since the act of April 10 in various ways and acknowledged that he has paid no price for the property. Defendant further contends that in view of Comford’s utter inability to comply with the provisions of the act of promise of sale, it has been practically abandoned for years, and that defendant has a right to have it set aside, and that Oomford’s possession being in bad faith she has the right to claim rent from him and to hold him to an accountability for the wood and timber cut and disposed of. The district judge held the act of April 10, 1872, to be a sale, and likewise intimated that he considered the property to have been paid for. In reaching his conclusions he placed great stress upon the fact that in the agreement it was stipulated that interest at 8 per cent, should run from date, which fact he deemed'inconsistent with any idea other than that of ownership in Comford.

We have finally reached the conclusion that the act of 10th of April, 1872, was not a sale, but a mere promise of sale, which both parties contemplated with absolute certainty would soon be consummated ; that the conviction was so fixed that in anticipation of that fact Burbridge consented to Comford’s taking, and Comford’» consenting to take immediate possession and to acting as owner, with all the advantages of ownership, but without actual ownership, in the interval between the date of the agreement and its consummation; that it was intended when the sale was really effected that the intervening acts of ownership of Comford should enure to his benefit, to be compensated to Burbridge by the interest on the unpaid price from the date of the agreement.

The agreement on its face is an agreement “to sell,” an agreement “to pay,” and although nothing is said in the act itself about any act of sale or title to be subsequently passed, Coraford’s allegation in the suit, in the Baton Rouge suit, that “ he was to pay $2 per acre for said land and notarial title was to be given when the title of said Burbridge could be completed,” must be read into it, and when so read into the agreement, it places Comford and Burbridge almost into the position of the parties in the case of Broadwell vs. Lane, 34 An., where Lane went into possession under a promise of sale.

If it had not been for this allegation of Comford’s, coupled with a statement in a paper found among the papers of Burbridge at his death, to which we have given a very limited effect, we would have been utterly in the dark about the reasons why the act of sale was not at once passed on the 10th of April, 1872. The two together furnish us, as we think, a key to the situation.

In this paper, introduced without inspection, and left apparently as a memorandum of advice for his executor or heir, and dated May 4, 1876, he says: “It will be seen by an article of agreement between John Comford and me, on the 10th day of April, 1862, I sold him a tract of land known as the Governor’s Bluff tract, in the parish of Livingston, Louisiana, at two dollars per acre, $500 to be paid in cash before making the deed. Owing to Oomford’s being-unable to make any payment under the agreement, no deed has been made. In the fall of 1875 the court house of Livingston parish was burned, with .all the parish papers and records. The deed to the property being destroyed can be restored by one that is in the hands of R. H. & J. L. Bradford, attorneys at law, who are engaged to get a federal confirmation of title to a part of the tract, say 872 22-100 acres. * * * “J. W. Burbridge.

May 4, 1876.

“ Four hundred acres of the tract has a confirmation title.”

If we now go back to the act of 10th April, 1872, which defendant claims to be an absolute sale, we will find that in one important particular, outside of its phraseology, it bears upon its face a reason for our conclusions that something more was to be done before the contract as a sale became absolute, and a reason why we are of the opinion that no price has been paid.

Art. 2466 of the Civil Code says: “The sale is considered to be perfect between the parties and the property is of right acquired to the purchaser with regard to the seller as soon as there exists an agreement for the object and for the price thereof, although the object has not yet been delivered nor the price paid.”

Art. 2464: “ The price of the sale must be certain — that is to say, fixed and determined by the parties.”

In the case at bar whilst there are elements upon which both the “thing sold ” and the “ price to be paid” might ultimately be fixed, yet at the date of the agreement neither the one nor the other was in point of fact certain. Whilst $2 per acre was agreed upon to be paid, yet the number of acres which were to be object of the purchase was uncertain — only ascertainable upon some fact to be afterward established — a survey of the premises and a completion of Bur-bridge’s title by the confirmation of the government.

The “thing sold ” being uncertain, the price of the same, being predicated upon the number of acres in the tract, necessarily became uncertain. It was evidently in view of this uncertainty as to object and price that the sale was postponed as to its completion.

We are satisfied that both parties stand to-day quoad the title as they stood on the 10th of April, 1872, with an agreement on the part of Burbridge to sell and an agreement on the part of Oomford to buy, with the right of possession ia Oomford, and to act as owner for all practical purposes (short of ownership) until the proposed act of sale shall be passed, but with the obligation on his part to pay interest under the terms of the agreement.

Plaintiffs’ contention that defendant under the circumstances is a possessor in bad faith is utterly without foundation. He went into possession in view of the proposed sale. The rights and obligations of both sides were and are such as we have stated.

The plaintiffs have not alleged, still less proved, that they have a completed title to the land — that they have made any survey or in any manner fixed the rights and obligations of both parties as to object and price. They do not aver, still less prove, that they have made any tender of a title such as the defendant had the right to demand and the plaintiffs bound to furnish. They are therefore not in a position to ask the setting aside of the promise to sell.

If defendant’s plea of prescription of ten years is intended to be a prescription of ten years acquirendi causa it must fail. If she has a title from plaintiff as she claims she must rest upon it, and prescription is not a question in the case; if she has not a title, but rests upon her possession, it has not been of sufficient length to justify any claim of ownership. Oomford did not enter into possession under a title translative of ownership, but by indulgence and consent under a mere promise of sale. The defendant could not change the character of the possession by her own act. It has had some advantages; it must also have its disadvantages. We are of the opinion that the judgment of the District Court in so far as it affects the appellant, Nathaniel Ewing, is erroneous, but we are also of the opinion that the judgment can not be changed in his behalf so as to render judgment in his favor, but that the judgment should be reversed as to him, and that there be judgment in favor of the defendant as against the appellant simply of non-snit, leaving all questions open between appellant and defendant which are involved in this litigation.

For the reasons herein assigned it is hereby ordered, adjudged and decreed that the judgment of the District Court in so far as it affects the appellant, Nathaniel Ewing, be and the same is hereby annulled, arrested and reversed, and it is now ordered, adjudged and decreed that there be judgment in favor of the defendants against the plaintiff, Nathaniel Ewing, dismissing his demand as in case of non-suit.

Rehearing refused.