author: Monroe, J. Blanchard, J.

text:
    No. 13,327.
    New Orleans Pacific Railway Company vs. Kelly, Bernstein & Company et als.
    Syllabus.
    1. When lands granted to a railway company within “indemnity limits,” are required by law to be selected by the grantee “under the direction of the Secretary of the Interior,” and the selection has been made, according to law, the lands so selected became subject to State taxation, without further aclion by the Secretary of the Interior, and without being patented, and may be sold for the recovery of taxes properly assessed in the name of the grantee, subject to such liens and claims as the United States government may have, as contemplated by the act oí Congress, approved July 10, 1886.
    2. When lands are legally assessed, and payment of taxes is demanded of the apparent owner, who disclaims title, and refuses to pay; and said lands are thereafter sold, for the recovery of the taxes due, the fact that the officer, by whom the assessment was made, is a member of a Arm to whom such property is adjudicated will not, of itself, invalidate the sale. Nor will such sale be annulled, because it appears upon the trial that five years after it was made, the officer by whom it was made acquired an Interest in such property, from the adjudicatees, there being neither allegation nor proof of fraud as against sucn officer.
    APPEAL from the Fourth Judicial District, Parish of Winn— Machen, J.

      Howe, Spencer & Coche (William C. Roberts of Counsel), for Plain- ■ tiff, Appellant.

      [Robert Emmett Milling, Henry Bernstein and J. T. Wallace, Attorneys and in Person, Defendants, Appellees.
    On application for rehearing by Blanchard, J.,
   The opinion fo the court was delivered by

Monroe, J.

This is a petitory action for the recovery of 2860 acres of land, more or less, situated in the parish of Winn, to which the plaintiff claims title, under patents from the United States Government, and of which defendants claim to be the 'owners, in possession, under a tax title from the State of Louisiana.

The allegations of the petition are, substantially, as follows, to-wit:

That, by the Act of Congress of March 3, 1871, and the act supplementary thereto, of May 2, 1872, the Government of the United States granted to the New Orleans, Baton Rouge and Vicksburg R. R. Co., ten alternate sections of land, on each side of the road, which was to be built by said company, when said land had not been sold, reserved, preempted, or otherwise disposed of, at the date of the definite location of such road; and that said statutes provided that, in case any of the land so granted should have been sold, reserved, etc., other lands should be selected by the grantee, in place thereof, under the direction of the Secretary of the Interior, in alternate sections, designated by odd numbers, not more than ten miles beyond the limits of the land originally granted. That the plaintiff is the assignee of the rights of said New Orleans, Baton Rouge & Vicksburg R. R. Co., and that the rights acquired by assignment were confirmed by Congress, by an act of February 8, 1887.

That certain of the lands originally granted, as aforesaid, were found, at the date of the definite location of the road, to have been sold, reserved, or otherwise disposed of, and that the plaintiff pfoceeded to select others, in lieu thereof, as provided by the statute, and that the selections so made were finally approved by the Secretary of the Interior, and patents issued for the lands so selected, in 1895. But it is further alleged that, long before said selections were thus approved, and before the issuance of said patents, to-wit; in 1889, James L. Wallace, State Assessor for the parish of Winn, illegally and fraudulently assessed said lands to petitioner, as owner thereof; and that, although petitioner denied such ownership, and refused to pay the taxes based on such assessment, John F. DeLoach, the sheriff and ex-officio tax collecter .for said parish, upon April 26, 1890, pursuant to said assessment, exposed the lands for sale at public auction, and adjudicated them to the firm of Kelly, Bernstein & Co., for the amount of the State and parish taxes for said year, 1889.

It is further alleged that Kelley, Bernstein & Co. was composed of Geo. A. Kelley, R. E. Milling, Henry Bernstein, and James T. Wallace, and that said Wallace is the same person who made the assessment under which the sale was made, and that he and his partners knew that said assessment was illegal, but, nevertheless, entered upon, and hold possession of said lands, and that they are therefore, acting in fraud and bad faith. The petition sets forth certain conveyances, by the adjudicatees, of interests in the land in question, and, among others, the conveyance of an undivided one-fifth interest, in 1895, to J. E. DeLoach, and a conveyance, by Kelley and DeLoach, to one J. H. Williams, so that the tax title is now said to be vested in Milling, Bernstein and Williams.

The prayer of the petition is, that the titles set up by the defendants be decreed null, and that plaintiff be adjudged the owner of the land.' ,

The defendants filed exceptions in the lower court (which were referred to the merits) to the effect- that plaintiff is estopped to deny that it was the owner of the lands in controversy, at the date of the assessment. complained of, for the reasons:

1. That said property was assessed in the same way for the year 1888, and that plaintiff paid the taxes based on said assessment and had the inscription thereof cancelled from the books of the mortgage office. 2. That, in 1894, when the Secretary of the Interior requested plaintiff to amend its list of indemnity selections in certain particulars, plaintiff protested against any action or amendment which would affect its title to the lands already selected; ’and that said proceeding was judicial in character, and plaintiff is bound by its averments therein made. For answer, the defendants say that the lands in question became the property of the plaintiff December 28, 1883, when they were selected by its agent, such selection having been approved by the local officers of the land office and1 by the Secretary of the Interior; that a patent for a portion of said land was issued before the assessment, which is here complained of; that the whole of said land was, from the date of said selection, held as plaintiff’s property, and all 'applications for homesteads thereon were rejected for that reason; and that plaintiff’s interest in said land was an assessable asset, under the laws of the State, and was liable to seizure and sale for taxes. They set up the validity of the title under which they hold, and, in this court, plead the prescription of three and five years. And they further aver that they have paid the taxes on said land for the years 1890 to 1898, inclusive, and should be allowed to recover them in case of a judgment against them on the question of title.

The judgment in the court a qua was for the defendants, and the plaintiff has appealed, and has filed an .'assignment of errors, which discloses the legal propositions upon which it relies, and which may be stated in substance as follows, to-wit:

That the title to the indemnity lands did not vest in the grantee at the date, or. by reason, of the selection of such lands by the grantee, but only upon the approval of such selection by the Secretary of the Interior; up to which time they remained part and parcel of the public domain, not liable to State taxation. That the Secretary of the Interior did not approve the selection of the land^; in controversy until 1895, and hence, that the assessment and sale thereof, for taxes, in 1889, was unauthorized, and that it was error to hold otherwise. It is also said that the court a qua erred in giving judgment for the defendants, in that the assessor, who assessed the tax for which the lands were sold, was a member of the firm which bought said lands at said sale, and that the tax collector, by whom the sale was made, was interested therein, and received a fifth interest in the property. It is also said that the court erred in holding that the act of Congress of July 10, 1886, supports the contention, of the defendants as to the liability of the lands in controversy to taxation.

It is undisputed that, after the definite location of the plaintiff’s road, and the ascertainment of the lands granted, within the place limits, which were, at that time, reserved, or had been otherwise disposed of, plaintiff made selections of lands within the indemnity limits in lieu of those within the place limits which it was unable to obtain. A list of the selections thus made was filed in the land office at New Orleans, December 28, 1883, and was duly approved by the Register and Receiver, respectively. And there, so far as the lands here in controversy are concerned, the plaintiff appears to have allowed the matter to rest for a period of about eleven years; that is to say, until 1894, when a correspondence was begun, between the plaintiff and the land office at Washington, with reference to a revision of the pending indemnity selections, with a view of having the losses which such selections were to replace more specifically identified. In this correspondence, the plaintiff, through its agent, insisted that the revision, or rearrangement, of the lists filed by it, of lands selected, within the indemnity limits, should in no wise affect its title to the lands thus selected, and the point was conceded by the department.

The correspondence appears to have been opened by a letter, of date July 2, 1894, written by Ernest E. Wesche, as agent of the plaintiff, to the Secretary of the Interior, in which the writer, among other things, says: “By referring to the original indemnity list, filed in 1883, being “ No. 3 of the New Orleans district * * it will be observed that “the company fully complied with the regulations then enforced, in “ specifying its losses, by designating the -same, and the ‘indemnity’ “ tract, for tract, as required by circular of November 7, 1879 * * *. “ But in view of the further decision of the department * * * hold- “ ing that the substitution of an¡ amended list of indemnity selections, “ on a specification of losses different from that assigned in the first, “must be treated as an abandonment of the first, and not wishing to “jeopardize the claim of the road to these lands, which were only re- “ cently awarded to the company, after prolonged litigation, by adverse “ claimants, I submit the matter to you for your consideration and de- “ cisión before proceeding further with the rearrangement of the lists.”

To this letter, a favorable answer was received, and the lists were rearranged without “jeopardizing the claim of the road”, to lands which had previously been awarded to it, “after prolonged litigation by adverse claimants.”

The plaintiff has offered in evidence, a copy of the rearranged list No. 3 “with all certificates thereon”, duly certified by the Commissioner of the General Land Office. And, as part of the record thus certified and offered, we find the following, to-wit;

Land Department, New Orleans Pacific Railway Oompnay.

List No. 3 (Indemnity).

“Whereas, the New Orleans, Pacific Railway Oompnay has hereto- “ fore, to-wit: on the 28th day of December, 1883, duly selected, under “ the direction of the Secretary of the Interior, those certain tracts and “ parcels of land particularly set forth and described in ‘New Orleans “ List No. 3’, filed in the United States District Land Office at New Or- “ leans, Louisiana, on the twenty-eighth day of December, 1883, as in- “ demnity for certain tracts and parcels of odd numbered sections of “ land, within the place limits of the grant to said Railway Company, “ which said tracts were reserved, sold, granted, or otherwise appropri- “ ated, or not free from pre-emption or other claims or rights, at the “ time the line of its road was definitely located, in accordance with the “ provisions of the act of Congress, approved March 3, 1871, and Febru- “ ary 8, 1872, respectively, which lands, so selected, ane on, and within, “ thirty miles of the line of the road, as so definitely located; and,

“Whereas, the Secretary of the Interior has, since the filing of said “ above described list, further directed that said list should be rear- “ ranged, so that it shall indicate the specific loss, in lieu of which each “ specific selection has been made;

“Now, therefore, to cqmply with the further requirements of the In- “ terior Department, but not waiving any rights or claims, heretofore " acquired, by virtue of its selections heretofore made under the direc- ” Lion of the Secretary of the Interior, the said New Orleans Pacific “ Railway Company has herein designated the lands heretofore selected a as indemnity in said New Orleans List No. 3, and no other lands, and “ has herein set opposite each specific description of land so selected, the “description of the land lost from its grant, in place and lieu of which “ such indemnity land is selected.

“Moreover, the said rearrangement is made, and this list filed, under “ special authority, conferred by letter of the Commissioner of the Gen- “ eral Land Office “E”, dated August 11, 1894.

“Washington, D. 0., August 14, 1894.

(Signed) “Ernest J. Wescjue, Selecting Agent.”

Beyond this, it appears from the evidence that from the date of the filing of the list No. 3, in December, 1883, all applications for homesteads upon the lands indicated in said list have been rejected, upon the ground that said landd belonged to the plaintiff; it further appears that said lands were assessed to the plaintiff in 1888, and that plaintiff paid the taxes based on said assessment, without objection, and that the inscription of said taxes was thereafter cancelled from the books of the mortgage office. It further appears upon the face of the patents upon which the plaintiff has brought this action, that the lands in question “lie co-terminous with the constructed line of the road”.

Under these circumstances, and even if the plaintiff is not estopped from blowing hot, in the Interior Department, for the purpose of holding on to the lands selected by it “under the direction of the Secretary of the Interior”; and blowing cold, in the courts of this State, in order to escape liability for taxation on those lands, the record which it has made, and has offered in evidence, taken in connection with the other facts which have been mentioned, afford proof sufficient to bring the case within the Act of Congress of July 10, 1886, and within the decisions which authorize the taxation of lands acquired from the Government of the United States, before the issuance of the patents therefor.

The Act of 1886 was adopted for the express purpose of preventing great land-holding- corporations from escaping taxation on their holdings, by merely abstaining from obtaining patents to lands which they nevertheless held so as to exclude all other persons from them, and the language of the statute is at once broad and specific. In so far as it needs to be quoted for the purposes of this case, it reads as follows, to-wit: “That no lands granted to any railroad corporation by any act of Congress shall be exempt from taxation by States, Territories, and municipal corporations, on account of the lien of the United States upon the same for the cost of surveying, selecting the same, or because no patent has been issued therefor; but this provision shall not apply to land unsurveyed.

*******

“Provided further: That this act shall apply only to lands situated opposite to and co-torminous with completed portions of said roads, and in organized counties.”

As has been stated, the patents, upon which the plaintiff sues, declare that the lands covered by them “lie co-terminous with the constructed line of the road”, so that they are not within the proviso — in the act recited above. But, if this were not the case, we are of opinion that this land would have been taxable, without reference to the Act of 1886. .

The learned counsel for the plaintiff say, in their brief: “The defendants made an attempt to prove that the plaintiff acquired title to the lands in December, 1883. There is not a scintilla of legal evidence to support the contention. Certain lists of selections were filed in the local land office at New Orleans by plaintiff in 1883, and these lists were approved by the local officers and have been offered in evidence. But the approval of the local land officers is not the approval required by the granting act of March 3, 1871. That act requires that selections made in the indemnity limits of the grant, shall be made 'under the direction of the Secretary of the Interior.’ Provisions in all respects similar to this, occurring in other Federal grants in aid of railroads, have uniformly been construed as vesting the Secretary of the 'Interior with the power, and imposing upon him the duty, of examining- into and determining- the right of the applicant for indemnity lands, and of finally rejecting or approving the selections.”

“His final action, In approving'or rejecting, isi held to be a judicial act to such an extent that the date of. his formal approval, and not the date of the issue of the patent, is the date on which the donee becomes vested with such a beneficial title as subjects his lands to State taxation. Before such final approval, the land is unsegregated from the public domain and remains the absolute property of the government. Before the date of such approval, the Secretary may do what he pleases with an application and his findings of fact are not reviewable by any tribunal.”

This is not the construction for which the plaintiff contended when, in its correspondence with the Interior Department, in 1894, it insisted upon its rights, with respect to the land in controversy, as based upon the selections made on December 28, 1883. What are we to understand by the following language, in the letter addressed July 23, 1894, by plaintiff’s agent to the Secretary of the Interior, to-wit:

“And not willing to jeopardize the claim of the road to these lands, which were only recently awarded to the company, after prolonged litigation by adverse .claimants” ? And by the language of the statement, or caveat, filed with the rearranged list No. 3, to the effect that the land included in said list had been selected December 28, 1883, “under the direction of the Secretary of the Interior” ? If it be true that the lands in question had, at that time, been awarded to the company, “after prolonged litigation by adverse claimants”, such award must • have been based upon the only title which the plaintiff could then have set up, to-wit: the title which resulted from the selection of lands, according to' the act of Congress, by which they were granted — under the direction df the Secretary of the Interior, and, if that title was good enough to secure such an award, the question suggests itself, why is it not good enough for the purposes of taxation ?

We are unable, however, altogether to agree with the learned counsel that “provisions in all respects similar” to that under consideration have uniformly been construed as vesting the Secretary of the Interior with the power of final approval or rejection of selections previously-made; the point of difference being as to the entire similarity of the provisions which are the subjects of construction.

In the case of Wisconsin Central Railroad Company vs. Price County, 133 U. S., 496, to which we are referred as being decisive of the question, the court was construing an act of Congress of May 5, 1864 (granting lands, to the State of Wisconsin, in aid of railroads), the provisions of which, concerning the selection of indemnity lands, read as follows, to-wit: “It shall be lawful for any agent or agents of said State, appointed by the Governor thereof, to select, subject to the approval of the Secretary of the Interior, from the lands of the United States”, etc., and the question arises; is such a provision “in all respects similar”, to one whereby the selection is to be made “under the direction of the Secretary of the Interior” ? We do not think that this question can fairly be answered in the affirmative. The one provision contemplates no action by the Secretary of the Interior until after the grantee has made the selection, when the approval of the Secretary is required, in order to vest title in the lands thus selected; the other, contemplates that the Secretary shall participate in, and control, the selection, as made, and when made, in which ease his action would be equally effective in vesting the title; and in either case, the grantee would have done all that that law requires, in order to make him the owner of the lands selected.

In the case cited, the law required the approval of the Secretary of the Interior in order to give effect to selections previously made by some one else, and the Secretary, so far from giving his approval, had absolutely refused to do so, on the ground that the Railroad Company had already received about forty thousand acres of land more than it was entitled to, which the Secretary had instructed the Commissioner of the General Land Office to require it to return to the Government.

In the case before us, the law required that the selection should be made under the direction of the Secretary. The averment of the plaintiff’s petition upon that subject is that “petitioner, in accordance with the terms of the said act of Congress upon that subject, proceeded to select, and did select certain others of the public lands, etc.”, and the presumption that the law was complied with is sustained by the other circumstances which have been mentioned. It would clearly have been impracticable for the Secretary, personally, to have supervised and directed the selections contemplated by the statute, but it was not impracticable for him to give directions, with a view to saving, to the government and to the grantee, further trouble, which might have resulted from selections which he could not have approved, and it seems not unreasonable to suppose that such directions as were required were given to the Register and Receiver of the Land Office at New Orleans, since those officers approved the list filed by the plaintiff, although, as far as we are informed, there is nothing in the law which requires such approval, save the provision that the selections should be made under the direction of the Secretary of the Interior.

In Northern Pacific R. R. Co. vs. Meyers, 172 U. S., 596, it appeared that the attention of the government was called to the fact that certain lands, in “place limits,” as we understand it, which were included in the grant to the company, were possibly mineral lands, and it was requested that the government hold its hand in the matter of issuing patents, until the mineral, or non-mineral, character of the lands should have been investigated and adjudicated; and action was accordingly suspended. In that condition of affairs, the State of Montana assessed the lands as the property of the company, and the company filed a bill alleging that at the time of said attempted assessment and tax levies, said lands * * * had not been and are not now certified or patented to said railroad company, and the said lands were not ascertained or determined to be a part of the lands granted to said company, nor were they segregated from the public lands of the United States, and the said railroad company had and has but a potential interest in them”. And it was argued on behalf of the company, that neither the assessor, nor the railway company could place its hand on a single specific parcel and say it belonged to the company or to the United States. It was held, however, that the matter was to be determined upon the basis of the primary effect of the grant, which was to convey the title, even although that effect might be avoided by the result of the investigation then in progress, and the taxation was sustained. In the case before us, if the selections were made as required by the law under which the lands are claimed, they were made by the grantee under the direction of the Secretary of the Interior, and no other form of approval was required. This was all that was required in order to vest in the grantee at least the equitable title to the lands selected. And it is well settled that such a title is all that is necessary for the purposes of taxation. Northern Pacific R. R. Co. vs. Patterson, 154 U. S., 130; Northern Pacific R. R. Co. vs. Meyers, 172 U. S., 596.

The only fraud charged in the petition is based on the averment that the assessor knew that the lands did not belong to the plaintiff, when he assessed them, and that he was a member of the firm to whom said lands were adjudicated, when sold for the taxes assessed by him, and knew that there was no valid assessment.

In view, however, of the undisputed fact, that the lands were assessed to the plaintiff in 1888, and that plaintiff paid the taxes based on said assessment, without objection or protest, and, in view of the conclusion which we have reached, that the assessment, in 1889, was properly made, we cannot concur in this criticism of the assessment. The propriety of an officer so situated being a party to the purchase of property sold under his assessment may admit of some question, but we are unable, in this case, to discover any such radical objection to it as would justify us in annulling the sale. A demand for the payment of the taxes had been made upon the company, and the company disclaimed title, and refused to pay; the property was not sold by the assessor, but by the tax collector, and, if the latter had been a member of the firm to whom it was adjudicated, the ease would be different. That, five years later, the tax collector should have acquired an interest in said property from one of the adjudicatees, is not sufficient, in itself, td justify the conclusion that lie acted in fraud or in violation of any legal obligation which, at that time, rested on him, nor is there any such charge in the petition.

Judgment affirmed.

On Application for Rehearing.

Blanchard, J.

The judgment appealed from rejected the demand of the plaintiff to be decreed the owner of the lands described in its petition. On appeal here by plaintiff this judgment was found to be correct and the decree of this court affirmed the same.

No application for rehearing has been filed on behalf of the plaintiff, who, so far as we are advised, acquiesces in the judgment of this court. But defendants apply for a rehearing complaining- that whereas in their answer to the appeal they had asked that the judgment of the District Court be. amended so as to decree the validity of the tax title under which they hold, the court had not passed upon the same.

They, therefore, pray that the opinion and decree of the court be so revised and amended as to pass upon the demand aforesaid and to sustain the same and to adjudicate the validity of the title set up by them.

This, we think, -jhey are entitled-to.

In their answer filed in the District Court we find that defendants, after praying for thp rejection of the demand of the plaintiff, further prayed that the property described in plaintiff’s petition be decreed to have been subject to taxation for the year 1889 — being the year for which the same was sold for taxes — and that they (defendants), having purchased at said sale, acquired the ownership of the lands. And they asked to be quieted in their possession as owners. The District Court not having- passed specifically upon the demand of ownership set up by defendants, the latter, in their amended answer to the appeal, did pray this court, in deciding the case, to decree that the, property in contestation was acquired by them agreeably to the provisions of the revenue law of the State, to-wit: Act No. 85 of the Acts of Louisiana for the year 1888, and to the provisions of the act of Congress entitled “An Act to provide for taxation of railroad-grant lands and for other purposes”, approved July 10, 1886 (Chapter 764, p. 143, Vol. 24, U. S. Statutes at Large), and that they hold same by a just and valid title.

The identical property assessed to plaintiff company in 1889 — for the taxes of- which year the same was sold and purchased by defendants— had been assessed to it in the preceding year, 1888, and the agent of the company paid the taxes of the latter year without protest, took the tax collector’s receipt and caused the inscription of the tax lien to be erased from the records of the parish of Winn.

Assessed again the following year, plaintiff company failed to pay the taxes due under the assessment and proceedings were taken to enforce payment by sale, resulting in the adjudication of the lands to the defendants.

These lands while in the indemnity limits of plaintiff company’s grant had been duly selected (presumably under the direction of the Score! ary of the Interior, as that was the direction of the statute) by plaintiff’s agent in lieu of an equal quantity of land in the place limits of the grant disposed of prior to the passage of the granting act, and these selections had been approved by the local land officials and thereafter the various tracts covered by the selections were withdrawn from sale or homestead entry.

Having thus secured its rights on the lands and placed the same out of reach of the danger of homestead entries, the company, it seems, permitted more than a decade to pass without pressing its claim to a formal approval of the selections by the Secretary of the Interior.

The selections were made in 1883; their approval by the Secretary' — • a mere formal act following the action of the local land officers — in 1895.

During all this time, while holding on to the lands with one hand, the grantee was waiving off the tax assessor and tax collector with the other.

To the homesteader seeking entry on the land it said ‘the land is mine —you cannot have it’; to the tax assessor and collector it said ‘the land is not mine because the Secretary of the Interior has not acted on my selections, no patent has issued, no segregation from the public domain has taken place’.

It seems to us that just such a ease was intended to be met and remedied by Congress when the act approved July 10, 1886, was enacted.

Eor the reasons assigned in the original opinion, the right and claim of the grantee (plaintiff) in and to the lands in question was an assessable asset and subject to taxation by virtue of the provisions of both the State revenue statute of 1888, and the aforesaid act of Congress, and whatever rights the grantee had therein having passed to defendants by the tax adjudication, the latter are entitled to be recognized as owners thereof and to the benefit of the subsequent perfecting of the title by the approval of the Secretary of the Interior of the selections made and the issuance of the patent covering' the lands selected.

Succession of D. W. Coxe, 15 La. Ann. 514; Crocken vs. Hoag, 25 La Ann. 159; Zuntz vs. Courcelle, 16 La. Ann. 96; C. C. 3144, 3304.

It is, therefore, ordered that the judgment appealed from be amended so as to decree, besides the rejection of the demand of plaintiff with costs, that defendants hold the lands in controversy in this cause by a title, just, valid and sufficient in law, and that they be quieted in (hi' possession and ownership thereof.

It is further ordered, etc.,' that as thus amended the judgment up pealed from be affirmed with costs.

Rehearing denied.


source: Caselaw Access Project

author: Breaux, J.

license: Public Domain

text:
    No. 13,366.
    Succession of Thomas O’Neil; Succession of Mrs. Bridget O’Toole-O’Neil (Consolidated).
    Syllabus.
    While it suffices for a child to sustain his claim to legitimacy to prove, in the absence of a certificate of birth, baptism, or other equivalent evidence, that he has been constantly considered as a child born during the marriage of which he claims to be an issue, that evidence is not conclusive. It may be met and completely rebutted by' sufficient evidence showing that he is not the child of the marriage of which he claims to be the issue.
    The child was brought to this country while it was still in its infancy, and was reared and educated, and the name of the reputed father was given to him. He was loved and respected in the family as a son by the parents, and as a brother by their children, and they sought to protect him from reproach by giving him the family name and holding him up as a son. After the death of the reputed son, in the suit now before us for decision, and in another of an earlier date, it was disclosed by positive testimony that he was not the child of the reputed father and mother, and that he was not related to them.
    APPEAL from the Civil District Court, Parish of Orleans.— King, J.

      Eraste Vidrine, George J. Untereiner and Franh D. Qhretien for Mrs. Mary Ann Jacob, Plaintiff, Appellant.

      John B. Fisher atad Frank McGloin for Defendants, Appellees.
   The opinion of the court was delivered by

Breaux, J.

This is an action brought to annul the judgment rendered in June, 1898, by the Oivil District Court for the Parish of Orleans, recognizing Rev. P. S. O’Neil, Mrs. Mary O’Neil, widow of Bryan J. Berkery, and Rosanna Bridget-O’Neil, widow of Patrick A. Einney, as the sole heirs of the late Thomas O’Neil and Bridget O’Neil, his wife, and placing them in possession, and to have plaintiff in the action, Mrs. Mary Ann Jacobs, recognized as heir to one-fourth of the estate, and placed in possession to that extent. Thomas O’Neil, Sr., died in 1897, his wife dying prior to that time. The late Thomas O’Neil, Jr., was from Tullow, County of Carlow, Ireland, where he was born in December, 1840. While still in Ireland, Thomas O’Neil, Sr., was married to Bridget O’Toole, and the following named children are issue of that marriage, Peter S. O’Neil, who was born to them in 1842, Mary O’Neil, in 1846, and Bridget O’Neil, in 1848. He came to this country in 1850, and his family followed him in the year 1851. The family consisted of Thomas O’Neil, Jr., and the other before named children.

Petitioner avers that her father, Thomas O’Neil, Jr., was the eldest son of Thomas O’Neil, Sr., and Bridget O’Toole, his wife, leaving her, his only child, and that as the grandchild of Thomas O’Neil, Sr., and his wife, Bridget O’Toole, she is entitled to one-fourth of their estate with her co-heirs, the parties before named.

The testimony shows that Thomas O’Neil, Jr., was always known by that name, and that he was always regarded as the child of Thomas O’Neil, Sr., and Bridget O’Toole, and treated as such; that he was sent to school by his reputed father, Thomas O’Neil, Sr., and given as good an education as he was capable of receiving; that he made provision for his maintenance and settlement in life; that he was known as his son, and in the family he was treated as a brother by the other children. When Thomas O’Neil, Jr., was married to plaintiff’s mother, in St. Louis, Mo., he claimed Thomas O’Neil, Sr., and Bridget O’Toole as father and mother, and of this fact a note is inserted in the certificate of marriage.

Upon this state of facts, of which the foregoing is an outline, plaintiff avers that she has shown that she is the grandchild of Thomas O’Neil, Sr., and Bridget O’Toole, and that, as such, she is entitled to be recognized and to inherit.

On the other hand, a witness for the defendant, a resident of this city, who had known the O’Neil family in Ireland, testified that £» Captain Carter was pointed1 out as the father of the child in the town in which he was born. This witness came to' this country many years ago. She said, in substance, that, as a friend of the family, she did not wish to reveal the fact that Thomas O’Neil, Jr., was not'the son of Thomas O’Neil, Sr., and his wife; that the family of O’Neil cared for him as if he had been their child, and that thqy did not wish to divulge the fact that Thomas O’Neil, Jr., was the illegitimate offspring of a natural father, and of a mother, who had deserted him.

In 1886 plaintiff sued Thomas O’Neil, Sr., for a large amount, and alleged in her petition in that suit that she’was the grandchild of the late Thomas O’Neil, Sr. The latter, as a witness in his own behalf, when questioned in that case emphatically denied all paternity of Thomas O’Neil, Jr., and swore that he was not legitimately or illegitimately related to him; that the child was left at his father’s house* and, when he was married to Bridget O’Toole, he took the child with him and helped him all he could. In the case decided in 1886, Mrs. Berkery, a daughtt / of 'Thomas O’Neil, Sr., testified that she was not related to Thos. O’Neil, Jr.; that he was two years old when her father was married to her mother; that when she came to this country to join her father, he was brought along with the other children, and no distinction was ever made between him and the other children; that the good relations continued between them until he died. Another daughter testified in that suit that they always understood that he was not a brother, though they had always treated him as a brother. The first suit, that is the one 'brought in 1886, in which the present plaintiff was plaintiff claiming a large amount alleged to be the proceeds of the firm of Thos. O’Neil & Son, was decided against plaintiff and in favor of Thos. O’Neil, Sr.

It appears by the testimony of these witnesses (Mrs. Einley, Mrs. Berkery and Mrs. Estelle, who were also witnesses in the case decided in 1886) in the ease before us for decision, that Thomas O’Neil, Jr., knew that lie was not the son of Thomas O’Neil, Sr., and that on certain occasions he had regretfully mentioned the fact. The evidence in the pending case discloses that O’Neil, Sr., was honorable and truthful; that his conduct was kindly, and that he had charitably cared for another boy and reared him, however, as to this case, not giving him his own name.

In addition to the evidence given in the first suit, in 1886, there is other evidence of record in the case here such as that he ¡paid the funeral expenses of the late Thomas O’Neil, Jr., and performed other kindly offices for him; that he supported the child and the widow of his marriage, which child was received at O’Neil, Sr.’s house, and treated and looked upon by him as her grandfather.

The judge of the District Court held in the present case, from the facts disclosed, that Thomas O’Neil, Jr., was not the son of Thomas O’Neil, Sr., and Bridget O’Toole; that he was taken by the former, in all probability, out of Christian charity, and, in order not to humiliate him, he gave the boy his own name as a protection. Erom the judgment, rejecting plaintiff’s demand, the plaintiff prosecutes this appeal.

The testimony does not show a register of the birth or baptism of Thomas O’Neil, Jr. The law reads: “It suffices for the child to show that he had been constantly considered as a child bom during marriage.” C. C., 194. That he has been so held is shown. The acts and utterances of all the members of the family held him up to the community in which he had lived as his son. We have before noted in our statement of the facts the extent of the kindness of O’Neil, Sr., to the plaintiff’s father. It would not have been possible for him to have done more for one of his own children. Such kindness and consideration is not usual. These facts of themselves would be sufficient to prove legitimate filiation, if they were not refuted by positive and direct testimony. But in this case the testimony shows, beyond all question, that Thomas O’Neil, Sr., was honest and truthful. Every witness who had anything to say upon the subject was quite pronounced in the statement that he was entirely upright. During many years he worked at an honorable trade, that of builder, accumulated property and was considered a man of good character. This is admitted by plaintiff, who asserts, however, that the old man, O’Neil, Sr., became embittered against her mother because, some time after the death of her father (O’Neil, Jr.), her mother chose to become the wife of one whom O’Neil, Sr., disliked.

We have noted in our statement of the facts of the case that, in 1886, plaintiff, as sole surviving child of Thomas O’Neil, Jr., who died many years before, brought suit against Thomas O’Neil, Sr., for amounts which she charged had been collected by the latter for O’Neil, Jr., and kept by him. The two, the father and the reputed son, worked as partners in the erection of buildings, and held themselves out to the world as the firm of Thomas O’Neil & Son. This gave some basis for the suit in 1886, which plaintiff asserts caused additional anger on the part of Thomas O’Neil, Sr.

Defendant in that suit was put on the stand and his testimony does not disclose that he was angered by it. He, as a witness, in answer to questions of counsel, positively denied that he was the father of plaintiff’s father, or that he was related to him (O’Neil, Jr.,) in any way. The questions of counsel on the subject were very few. There is nothing in the questions and answers denoting surprise of any sort on the part of any one, nor did the witness testify as one-seeking to conceal anything. The following is the testimony:

Q. Was Thomas O’Neil, Jr., your son?
A. No.
Q. Was he any relation of yours?
A. No.
Q. Plow did he come to be with you ?
A. He was left at my father’s house, and when I got married I took him with me.
Q. Where was your father’s house ?
A. In County Carlow, Ireland.
Q. Was he any relation of yours, legitimately or illegitimately?
A. - No, six.
Q. You brought him here and raised him?
A. I brought him here as a child. My intention was to help him if I could.

This testimony, as we have already noted, was corroborated by an old friend of the family, Mrs. Estelle, who knew the boy in Ireland and afterwards in this city. We have seen that it is also corroborated by the daughters of Thomas O’Neil, Sr. In the suit now before us, these daughters, a son, and the friend of the family just referred to, testified corroborating the testimony of the late Thomas O’Neil, Sr., in the first suit. During the intervening years, from 1886, the year the first suit was decided, to November, 1898, when the suit here was tried, nothing, we taire it, was done by plaintiff toward securing copies of the certificate of her father’s birth, or any evidence directly contradicting the testimony of the witnesses, Mrs. Estelle and others for the defendant. She, Mrs. Jacobs, plaintiff, knew the birth place of her father. It was disclosed in the first suit. Presumably, there are living witnesses or traditions of some kind and, it may be, entries in the church records showing- his, O’Neil, Jr.’s., parentage, especially if he was the son of Thomas- O’Neil, Sr.

Plaintiff, after the death of Thomas O’Neil, Sr., instead of seeking other evidence, based her suit solely upon the fact that Thomas O’Neil, Jr., was treated and considered as his son, as made quite manifest in the first suit. Thomas O’Neil, Jr., unquestionably exercised all the rights and privileges of a son and unquestionably the relationship between the parties, to all intents and purposes was the same as usually exist between father and son. Every act and utterance gives rise to the implication of respect and love for plaintiff’s father on the part of Thomas O’Neil, Sr. If all this stood alone and uncontradicted, it would be more than enough to sustain plaintiff’s demand. But, with the other uncontradicted testimony before us, we must decline to believe that one who had the character which O’Neil, Sr., had, would have gone so far as to deny his first born, because, a considerable time after his death, his widow chose to marry against his wishes, one whom he disliked (a reason given by one of the witnesses as the cause for the beginning of Thomas O’Neil, Sr.’s anger). The plaintiff, as a witness, said the cause was that the second husband indulged too freely in strong drinks. Judging from the name of the second husband, O’Donohoe, it may well be inferred that she, Widow O’Neil, Jr., did not marry out of the nationality of the asserted father of her first husband. This marriage could not have given cause for casting off a son, nor do we think that the suit instituted by the plaintiff against him (Thomas O’Neil, Sr.,) in 1886, for an accounting, prompted him to seek to repudiate his own blood and commit one of the worst of crimes. The child, O’Neil, Jr., grew to manhood with the family of his benefactor, O’Neil, Sr. In his early youth he was the school-mate of his real son, now the Rev. Peter O’Neil, and in his early manhood he, O’Neil, Jr., became a builder under the direction of his reputed father. They became partners under the firm name of Thomas O’Neil & Son. Together they made their estimates and drew their plans of buildings which they contracted to build. O’Neil, Sr., and his wife went further than is usual in such cases and gave to him, O’Neil, Jr., their name and sought thereby to protect him from a reproach for which he was not responsible. As .they entertained great regard for him, it was, after all, hut natural. He was always spoken of as a son and brother, except when, in a suit at plaintiff’s instance, brought for a large amount, the direct question was propounded to the reputed father, under oath, and it became necessary to prove that he was not a son. The sympathy of the reputed father and the remaining members of the family was very great and extraordinary, and yet it does not seem entirely impossible.

We do not find that the judge of the District Court erred.

For these reasons, the judgment is affirmed at appellant’s costs.

Rehearing refused.


author: Monroe, J.

text:
    No. 13,374.
    George Denegre vs. Octave A. Fairex.
    Syllabus.
    1. An act of procuration, under private signature, which is attached by the agent, named therein, to an authentic act purporting to have been executed under its authority, is not thereby proved or made authentic.
    2. Civil possession, under a recorded title, for fifteen year's; the fact that during the greater part of that time the property has been subjected to recorded mortgages, imposed by the apparent owner; the testimony of a member of the bar, by whom, acting under a power of attorney under private signature, the sale was made, to the effect that he remitted the proceeds to the vendors, and has heard pf no complaint from them, together with the absence of any claim or pretense of adverse title or possession from the date of the purchase, are cumulative facts which justify the court in holding the title good and such as an adjudicatee is bound to accept.
    APPEAL from the Civil District Oourt, Parish of Orleans.— King, J.

      J. P. Blair, Walter T). Denegre and R. L. Tullís for Plaintiff in Rule, Appellee.

      Benjamin Ory for Salvator Oteri and Santo Oteri, Defendants in Rule, Appellants.
   The opinion of the court was delivered by

Monroe, J.

In this proceeding, certain property, which for convenience, will be designated as squares 4, 5, 6 and 11, was sold under executory process, and a rule, taken upon the adjudieatees to accept title, having been made absolute, they have appealed.

The objection to the title, which is seriously urged, is, that O. A. Fairex, “defendant in executory process, pretends to hold title from the “ heirs of E. A. Collins, by act of purchase before A. V. Philips, notary, “ dated October 15, 1885, in which sale, it is pretended that G. L. Hall “ was their agent, acting for them under power of attorney, when in “ truth, and in fact, said Hall was not their agent, or, if he was, the “ said agency has never legally been proven.”

It is admitted that the property in question was acquired by purchase by E. A. Collins, April 9, 1870; that Collins’ wife died in 1874; and that he died in 1888; that their successions were opened, and that the following- named persons issue .of the marriage, were put in possession of their estates, by judgment, signed March 26, 1884, to-wit: John S.; Elizabeth, wife of James Franklin; Kate L., wife of William F. Cleveland; Eli A., Jr.; and Nettie Collins.

The evidence shows, that, upon August 3, 1885, squares Nos. 4, 5 and 6 were sold for taxes, under Act 82 of 1884, to O. A. Fairex, and that, thereafter, Gilbert L. Hstll, acting as the agent and attorney in fact of said Collins’ heirs, sold said three squares, together with square No. 11, to said Fairex, by act, before A. V. Philips, notary public, of date October 15, 1885. This act recites that said Hall makes the sale by virtue of a special power of attorney, annexed and made part thereof. The instrument thus referred to purports to be a power of attorney, signed by the heirs named, except Nettie Collins, and also signed by a number of witnesses. Nettie Collins appears to have been represented in the matter by John S. Collins, claiming to act under a power of attorney from her, but, whilst the signature of John S. Collins, signing for himself and for Nettie Collins, purports to have been verified by the clerk of the District Court of Douglas County, Nebraska, no power of attorney from Nettie Collins, authorizing him to represent her, appears.

It is claimed that, under the decisions of this court in “Succession of Lehman,” 41 Ann., 987; and “Rouyer vs. Carroll,” 47th Ann., 769, the power of attorney to G. L. Hall became authenticated by having been annexed to the authentic act which purports to have been executed pursuant to its authority. The syllabus in the matter of the Succession of Lehman is broader than the text of the opinion, which latter goes no further than to hold that the acts of procuration there in question had been authenticated “by certain judicial proceedings.” What those proceedings were does not appear, and the opinion affords no support for the proposition now under consideration.

In “Rouyer vs. Carroll,” there was no question of the genuineness (or authenticity, in that sense) of the signature to the act of procuration, which had been acknowledged before the American Consul at Bremen. The objection urged was that the instrument was not an authentic act, in the sense in which that term is used in Article 2234 of the Civil Code, i. e., that it had not been executed before a notary public, or other officer, etc., in the presence of tiuo witnesses. And it was held that the defect in the form of its execution, considering the purpose for which it was used, was cured by reason of its being annexed to an instrument in which such defect did not exist. This view of the matter is no doubt correct, where the authentic act, to which the act under private signature is annexed, or in which it is referred to, is executed by the same person who has signed the other, but it can not be sustained when applied to a case where the authentic act, to which the procuration is attached, is signed by the agent named in, and appointed by, such procuration. The difference between the two propositions is illustrated by the law cited in Rouyer vs. Carroll, and by the decision in Widow Botto vs. Berges et al., 47 Ann., 959.

Thus, Article 2242, C. C. (cited in Rouyer vs. Carroll), reads: “'An act under private signature, acknowledged by the party against whom it is adduced, or legally held to be acknowledged, has, betweep those who have subscribed to it, and their heirs and assigns the same credit as an authentic act.” In the matter of Widow Botto vs. Berges el al., it axDpeared that the heirs of Mrs. William Piles intervened in an authentic act, and that one of them was represented by an agent- acting under a power of attorney executed before a notary, in New York, without witnesses. It was held to be an act under private signature, and, the signature not having been proved on the trial, inadmissible as authentic evidence to prove title.

The plaintiff in rule, however, caused to be examined as a witness, Mr. Gr. L. Hall, formerly a member of the (New Orleans bar, of high standing, who acted as the agent of the heirs of E. A. Collins and wife in making the sale to Eairex, and, whilst that gentleman’s memory, after a lapse of fifteen years, is not perfectly clear as to the manner in which it was done, he testifies positively that he remitted the money received by him, as the price of the property, to said heirs, respectively; that he has heard of no claim or complaint from them, or either of them, since then, and that he would have been likely to have heard, if any complaint had been made. This testimony is, as we think, strongly corroborated by the fact that, in 1893, Nettie Collins, by act, executed before the clerk of the District Court of Douglas County, Nebraska, in the presence of two witnesses, which was duly certified according to the act of Congress and attached to the sale made by SE^id Hall, agent, to Eairex, expressly ratified said sale, so far as concerned her interest. Beyond this, it is admitted that Fairex has had civil possession of the property since his purchase, in 1885; it is proven that, since that time, for fifteen years, he has appeared upon the public records as the owner; that since 1892, said property had been subjected to mortgages, imposed by him, and duly recorded; and it is not suggested that there has been at any time since his said purchase, any claim or pretense of adverse title or possession. Under these circumstances, we are of opinion that title tendered by the plaintiffs in rule is a safe one and should be accepted by the adjudicatees.

The judgment appealed from is accordingly affirmed.


text:
    No. 13,367.
    Mrs. Alice Hall vs. Mrs. Marie E. Toussaint.
    Syllabus.
    1. As to half of lot 125, it fell into the community existing between the father of plaintiff and her step-mother, as the evidence does not show that it was bought with the separate funds of the father (defendant’s husband and plaintiff’s father).
    2. Amount collected on a policy of insurance of which the stepmother was the beneficiary was properly collected by her as her separate property.
    3. Amounts the evidence sustained, were charged, and other amounts the evidence did not sustain, were rejected.
    4. The surviving spouse of a second marriage is not entitled to the usufruct of property inherited by a child of the first marriage.
    APPEAL from the Civil District Court, Parish of Orleans.— Theardj J.

      ■William, J. Hennessey and Benjamin Bice Fot'man for Plaintiff, Appellant.

      Branch K. Miller for Defendant, Appellee.
   The opinion of the court was delivered by

Breaux, J.

Plaintiff sues to be decreed the owner of a lot of ground described in her petition, and for an accounting by her step-mother for all moneys owned by the plaintiff’s deceased father at the time of his death, and a judgment based thereon. She specially claims eight hundred dollars in cash and sixty dollars rental money on property, she, plaintiff, claims to own.

Defendant admits that plaintiff owns two lots of ground designated by the Nos. 21 and 22 of D’Hemecourt’s plan, dated April 10th, 1870. With reference to one of the lots, plaintiff claims, defendant admits that a house situated thereon was destroyed by fire, and that her husband (plaintiff’s father by first marriage with Felice Seguin) received a sum of money on a policy of insurance on the building, but she denies that any part of the sum was used, as alleged by plaintiff, in the purchase of this lot of ground in square (No. 7) bounded by Valette and Olivier streets, and Opelousas and Slidell avenues.

To plaintiff’s allegations in her petition, that in matter of the succession of Louis Adrien Toussaint (plaintiff’s father and defendant’s husband) and Felice Seguin, his wife, by the first marriage, she was placed in possession of property she describes. Defendant answers that the judgment placing her in possession is, as to her, defendant, res inter alios. She further answers that the life of L. A. Toussaint was insured in the Mutual Life Insurance Company for the sum of three thousand dollars in her (defendant’s) favor, and that plaintiff is without right or interest therein. She denies that her late husband left eight hundred dollars in cash, separate funds of his, at his death, and further denies the charge of appropriation of moneys set out in the petition. She admits that she collected mortuary benefits from benevolent associations, but avers that, under the rules of these associations, they were due to her personally, and that she used nearly all the amount so collected in paying the funeral expenses of the deceased, and that the remaining balance was her property.

The judgment of the District Court decreed that plaintiff is the owner of one-half of lot No. 125, square Y, bounded by Yalette and other streets. The judgment further decreed that, at the expiration of the usufruct, the defendant shall be accountable to the plaintiff for the sum of three hundred and fifty dollars, being one-half of the seven hundred dollars in cash left by L. A. Toussaint, as part of the community existing between him and defendant, and which she is entitled to hold as usufructuary as surviving spouse in community. From this judgment, plaintiff prosecutes this appeal.

The record discloses that Louis Adrien Toussaint died January 1st, 189Y; that he married defendant in 1890, and that no children were bom of this marriage.

As there is no dispute about lots 21 and 22, described in plaintiff’s petition, we pass to a consideration of the issues growing out of the claim plaintiff sets up to ownership of property, because, as she alleges, the amount collected on fire insurance on property destroyed on lot 21 was employed in purchasing the property on Yalette street, i. e., lot 125.

The contention is, to state it again in different words, that the property, on lot No. 21, belonged to the first community, and as the insurance money, after the burning of the building thereon, was expended in buying property during the second community, that plaintiff, as the heir of the first community, is entitled to the whole property. This property on Yalette street was bought in the name of defendant’s husband, in November, 1895, for the sum of three hundred and fifty dollars, that is, during the last community of acquets and gains. Property bought by the husband, during the exisence of the community, is presumed to belong to the community. It is presumed, in the absence of proof to the contrary, that the funds with' which the price is paid, are community funds. The evidence does not rebut the presumption favorable to the community. There is nothing on the face of the papers to show that the purchase was made with the separate funds of the husband or from insurance on above property. The evidence does not satisfy us of the husband’s intention of making a separate investment. Where the husband does not, in. the act of purchase, declare that the property is bought with his separate' funds, and it can not be inferred from the expressions contained in the act that it was his intention to make a purchase for his separate account, the property falls into the community, which becomes his debtor for his separate funds. Jeffrion vs. Bordelon, 14th Ann., 628; Durham vs. Williams, 32 Ann., 162; Moore vs. Stancel, 36th Ann., 819. In the last decision, Bass vs. Larche, 7 Ann., 104; Young’s case, 5 Ann., 611, and Hennen’s Digest, pp. 883 and 884, are cited in its support.

Upon the issues presented for the title, we do not feel that we should enter up a decree for the amount which plaintiff asserts was used, as before stated, an account of which she claims title.

Plaintiff’s next claim grows out of the fact that the life of the deceased was insured, and that defendant collected the insurance. She urges that the in’esumption is that all prox>erty is community, and as no evidence on this point was offered, save the unsupported testimony of defendant, the amount should be decreed to belong to the community.

There was no question about the insurance. The policy was issued by a well known company, and plaintiff had it in her power, without the least difficulty, to prove that defendant did not testify truly in testifying that she was the beneficiary. The fact that she chose to submit the case without making the least attempt to rebut the defendant on this point, is, from our point of view, quite conclusive against her. Moreover, xfiaintiff remained silent and made no objection to the defendant’s collecting the policies as beneficiary, a course of conduct she would have avoided, we infer, had she had any right to the policy.

We take up the claim for $800.00 which plaintiff avers was in defendant’s bank box at the time of her father’s death. The testimony relative to this point is conflicting. Our learned brother of the District Court, after having heard the contradictory statements, decided that of this sum, the community should be credited with seven hundred dollars, which was or should have been in the bank box. We do not think that he erred, and, therefore, will not disturb his judgment on this point.

Plaintiff testified that, in addition to the amount before stated, as claimed by her, her father had one thousand dollars belonging to her. This amount is not claimed in xolaintiff’s petition, and the testimony does not impress us as being sufficient to base a judgment thereon. The claim is against a succession, and one who seeks to recover a debt against the estate of a dead man, should make it appear, with certainty, that the amount is due.

With reference to the moneys received from the benevolent associa-. tions, of which defendant’s late husband was a member, we think the plaintiff is entitled to her proportion of the balance after paying the funeral expenses. The amount is small, but, nonetheless, it is due and must be charged. Defendant admits having received $225.00. After paying the funeral expenses, there remains $75.00 to the credit of the community.

In the -next place, plaintiff avers that defendant is not entitled to the usufruct of the property belonging to the community, allowed by the judgment of the District Oourt. It will be borne in mind that the plaintiff is the issue of the first marriage, and that there are no children of the second marriage.

The textual provisions of the law are; that the surviving partner in community has the usufruct of the share of deee'ased spouse who died without leaving ascendants or descendants. Here the deceased left a descendant, viz: plaintiff. ‘The defendant is not entitled to the usufruct of the share which she, as his descendant, inherits from her father. The ascendant and the descendant are especially singled out and excluded from the statute granting usufruct. A similar question was decided in Succession of Lee, 9th Ann., 398. The court held that the “ascendant of the deceased inherits, and the surviving spouse is not entitled to the usufruct.” The question is the same where the descendant of the husband, as in this case, inherits. In substance, the court says in the cited case, usufruct, where there are children of the marriage, may have been to keep the family estate together, and provide a home for the surviving father or mother, who, in the nature of things, use the estate with an eye to the welfare of the children. It is manifest that the impulse is no longer the same between the daughter and the step-mother, and the nature of the law finds nothing to sustain it in such a case.

Moreover, aside from all questions of mutual sympathy between parent and children, the right is derived from the statute, and here, we take it, the statute is plain.

For reasons assigned, the judgment appealed from is amended by increasing the sum to which plaintiff is entitled from three hundred and fifty dollars to three hundred and eighty-seven dollars; and for this amount plaintiff has judgment against defendant. It follows that defendant has no right to the usufrffct of this amount.

The judgment is also amended by striking from it that part allowing to defendant the usufruct of the lot No. 125, square 7, bounded by Vallette and Olivier streets and Opelousas and Slidell avenues, and the plaintiff is decreed to be the owner of the undivided one-half free from any usufruct. In every other respect, the judgment appealed from is affirmed at appellee’s costs.


text:
    No. 13,428.
    Louisiana Molasses Company vs. Louis LeSassier, et al.
    Syllabus.
    Tlie judgment is affirmed at appellee’s costs (for reasons given in the principal decision) except as to the two amendments made in the judgment in the principal suit.

      APPEAL from the Civil District Court, Parish of Orleans' — Ellis, J.

      Andrew H. Wilson for Plaintiff, Appellee.

      Dari & Kernan for Brakenridge Lumber Co., Ltd., and Joseph Sutton & Son, Defendants, Appellants.

      Purnell M. Milner for Fidelity & Deposit Company of Maryland, surety, Appellee.

      Bernard, McQloslcey for Cole Manufacturing Co., La Pierre & Peray, Manion & Co., A. Ledoux, Agent; Salmen Brick & Lumber Co., and William H. Hankins, Defendants, Appellees.

      Saunders & Gurley for Ong-IIiller & Company, Defendants, Appellees.
   The opinion of the court was delivered by

Breaux, J.

The Brackenridge Lumber Company, parties to the proceedings in the case of the Louisiana Molasses Company, Limited, vs. Louis LeSassier ei als., has taken a separate appeal and brings up its claim to this court in a separate transcript of appeal.

The appellant in this appeal insists that a judgment should be rendered against the Louisiana Molasses Company condemning it to increase the fund deposited in court by the amounts of various payments made on the asserted over-estimates of its architect, and that it should be condemned to pay the costs of the proceedings. We have already passed upon the issues presented by the foregoing. Our views in the cited case are the law of the case. The facts and questions being similar, our conclusions must be the same in both cases as relates to the law and the facts found.

It is, therefore, adjudged, ordered and decreed that the judgment appealed from be affirmed at appellants’ costs, save in the respect in which it is amended by our decree in the cited case — at appellees’ costs.

Rehearing refused.