author: CARVER, J.

text:
    No. 1898
    Second Circuit Appeal
    JACK McDONALD ET AL. v. J. WARREN BURNS
    (March 30, 1925, Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Laws—Par. 103.
    Act 161 of 1920, amending Article 3478 of the Civil Code, does not have a retroactive effect, not having run against minors before it took effect in 1920.
    2. Louisiana Digest — Pleading—Par. 54, 72.
    Article 333 of the Code of Practice prevails over Article 336, thus making it. necessary to file an exception of want of capacity of plaintiff to sue in limine.
    3. Louisiana Digest — Taxation—Par. 316.
    A tax title abandoned by the tax purchaser for twenty years and only filed for record after suit was brought is only inchoate and subject to redemption.
    On appeal from Second Judicial District Court of Louisiana, Parish of Webster, Hon. Robert Roberts, Jr., Judge.
    This is a suit to recover title to land. There was judgment for plaintiffs and defendants appealed.
    Judgment as to plaintiff, Mrs. Margaret Wallace, reversed on plea of prescription of ten years, sustained.
    Judgment as to other plaintiffs affirmed.
    Drew & Drew, of Minden, attorneys for plaintiffs, appellees.
    Lee & Lindsey, of Minden, attorneys for defendant, appellant.
   CARVER, J.

The plaintiffs, being four of the eight children, issue of the marriage between W. M. McDonald and his wife, sue defendant for the recovery of a one-fourth interest in a tract of land, being NE¼ of SE¼ of Section 23 Township 23 North Range 11 West.

They allege that the property was bought during the existence of the marriage between their father and their mother and that their father sold it after their mother’s death.

The defendant, in this court, argues that the suit, as to Wash McDonald, should be dismissed because the petition alleges that he is an emancipated minor and that although the allegations of the petition were denied in defendant’s answer he failed to prove that he was emancipated.

We think defendant could not challenge plaintiff’s capacity to sue in this manner but that it had to be done in limine.

Articles 333 and 336 of the Code of Practice read as follows:

“333. Must be specially pleaded before issue joined or default. It is a rule which governs in all cases of exceptions, except in such as relate to the absolute incompentency of the judge before whom the suit is brought, that they must be pleaded specially in limine litis, before issue joined, otherwise they shall not be admitted.”
“Hereafter no dilatory exceptions shall be allowed in any case after a judgment by default has been taken; and in every • case they must be pleaded in limine litis: nor shall such exceptions hereafter be allowed in any. answer in any cause.” ■
“336. Time of plea of declinatory exception. Declinatory exceptions may be pleaded in the defendant’s answer, previous to his answering to the merits; but, except as relates to the declinatory exceptions, the defendant- must plead in his answer all dilatory or peremptory exceptions on which he intends to rely, or which he is bound to plead expressly and specially pursuant to the provisions of this Code.”

In the case of Chaffe vs. Ludeling, 34 La. Ann. 966, the conflict between these two articles was discussed by the Supreme Court and it was held, for reasons given therein, that Article 333 must prevail over Article 336.

Judgment by default was taken in this case on September 28, 1922, and the answer was not filed until October 6, 1922.

On the merits, defendant pleads that he bought the property in good faith and by just title and has had actual possession for over ten years and pleads the prescription of ten years acquirienda causa.

He further pleads an outstanding title, to wit; a tax sale to the Bodcaw Lumber Co. in the year 1899 for the taxes of 1898.

In this court, besides the defenses thus pleaded, he urges that plaintiffs having introduced in evidence the deed from their father to Holland and the deed from Holland to Mrs. Smith and the deed from Mrs. Smith to the defendant without restriction, are bound by same, such introduction constituting he says, an admission of the validity of the title conveyed in these deeds.

On this question he cites no authority and his reasoning does not appeal to us as sound. The deeds merely show that the respective vendors did sell the land; they do not and cannot prove that they had a right to sell it.

Defendant also urges that inasmuch as plaintiff introduced by reference a patent from the United States to the entr-yman Carruth and as the Clerk of the District Court certifies that no patent to the land has ever been filed in his office, this shows an outstanding title in the United States of which defendant can avail himself and being better than plaintiff’s title is sufficient to defeat their action.

If this were really an outstanding title, it is doubtful that defendant’ could plead either it or the tax sale to defeat plaintiffs’ action, because to do so would be an attack on his own title as well as that of plaintiffs. In a sense they have a common author — both claiming under a purchase made by W. M. McDonald. Besides this, though, we do not think the situation does show an outstanding title in the Government. The extract from the Government entry book, introduced in evidence shows that the land was purchased from the United States on January 2, 1860, a Receiver’s certificate being issued to the purchaser. This would be sufficient to make Carruth the owner even if no patent had ever been issued unless the entry, by subsequent proceedings, had been cancelled. As a matter of fact though the extract from the Government entry book shows that a patent was issued and its date, and the volume and page where recorded in the Land Office are given. The certificate of the Clerk of the District Court merely shows that this patent was not recorded in his office, but registry is not necessary as to government patents.

The defendant correctly argues that a defendant in a petitory action can defeat plaintiff’s suit by showing a better title in some one else, but for this principle to be applicable the title so plead must be a valid, subsisting title.

2 Hennen, page 1115.

We do not think the tax title in favor of Bodeaw Lumber Company is such a title. It has evidently been abandoned the tax purchaser having permitted the former owner and his successors in title to remain in possession for over twenty years.

Again, it was not filed for record until nearly a month after this suit was brought and therefore was only inchoate and subject to redemption.

State ex rel. vs. Ross, 144 La. 898, 81 South. 386.

Gonzales vs. Saux, 119 La. 662, 44 South. 332.

Moore vs. Boagni, 111 La. 490, 35 So. 716.

Besides, the tax sale was void because made under an assessment to W. F. McDonald. when W. M. McDonald was the owner.

The real defense in the case is the prescription of ten years.

Defendant bought the property on October 4, 1911.

He testifies that he took possession on November 15, 1911, and has had possession ever since. There is nothing to impugn his good faith.

Service of citation was made in this case on September 11, 1922.

Having enjoyed possession in good faith for more than ten years and the deed being a just title, his plea of prescription would be good unless interrupted or suspended. The plaintiffs claim that it was suspended during their minority and was also interrupted in April, 1922, by defendant having acknowledged their title.

The testimony of one of the plaintiffs shows the dates .of their birth to have been as follows:

As we appreciate the evidence, though, we do not think that his offer to buy their claim was such an acknowledgment of their title as to operate an interruption of prescription. It was rather an offer to compromise their claims without acknowledging their validity and mainly in order to enable him to lease the lands to an oil company.

Mrs. Margaret Wallace, born May 20, 1891. Mrs. Lucinda Adams, born February 20, 1895. Jack McDonald, born June 20, 1898. Wash McDonald, born January 12, 1902.

Their ages on September 11, 1922, the date service of citation was made, was, therefore, as follows:

Mrs. Wallace, 31 years 3 months 22 days. Mrs. Adams, 27 years 6 months 22 days. Jack McDonald, 24 years 2 months 22 days. Wash McDonald, 20. years 7 months 26 days.

More than ten years having elapsed between the time Mrs. Wallace became of age and the time that citation was served, we think that, as against her, the plea of prescription must be sustained. As to the other three, it is clear that it cannot be sustained unless Act 161 of 1920 amending Article 3478 of the Civil Code is given a retroactive effect, and interpreted to mean not only that prescription shall run against minors after the time at which the Act is to take effect but that it shall be construed as having run against minors before that time.

The Act is not clear and we shall not undertake to state precisely what we think it does mean. It seems clear to us, though, that it does not mean that the prescription of ten years shall be regarded as having run against minors previous to. the time the Act becomes effective. The language is “this prescription shall run”, etc. This clearly looks to the future. The suggestion that the operation of the Act was postponed for seventeen months after its passage indicates legislative intent that the Act should be retroactive is quite persuasive but cannot, in our opinion, overcome the clear language of the law that prescription shall run, which clearly relates only to the future.

The principle that the legislature has authority to change the laws of prescription, provided a reasonable time is allowed claimants, to assert their rights, is sound and we do not question the right of the legislature to make the change which we think it did do by this Act; but, as said above, we do not think that when it declared that the prescription of ten years shall run, etc., it meant that it shall be regarded as having already run.

It is decreed that the judgment of the lower court be reversed as to Mrs. Margaret Wallace and the plea of prescription sustained as to her.

It is further decreed that, as to the other plaintiffs, the judgment of the lower court be affirmed.


source: Caselaw Access Project

author: BELL, J.

license: Public Domain

text:
    No. 8798.
    Orleans Appeal.
    JOHN BONURA & CO., INC., v. SOUTHERN PACIFIC COMPANY.
    (March 30, 1925, Opinion and Decree.)

      (Syllabus by the Court.)

    1. Louisiana Digest — Carriers of Passengers and Goods — Par. 131, • 141; Prescription — Par. 63.
    In an action by consignee against carrier for damages to shipment of fruit while in transit, a clause in the bill of lading limiting time within which such' suit may be brought, to six months, is not unreasonable nor contrary to law nor against public policy. An exception of no cause of action, based upon such stipulation, is Well founded and properly maintained.
    (Civil Code, Art. 3237. Editor’s note.)
    Appeal from the Civil District Court for the Parish of Orleans, Division “A”, Hon. Hugh C. Cage, Judge.
    This is ’ an action for damages to shipment in transit on steamship. On excepción no cause of action based on a plea of prescription was sustained.
    Plaintiff appealed.
    Judgment affirmed.
    Chas. Rosen, attorney for plaintiff and appellant.
    Denegre, Leovy & Chaffe, attorneys for defendant and appellee.
   BELL, J.

This is a suit brought by John Bonura & Company, Inc., against the Southern Pacific Company, the petition having been filed on April 27, 1921, and citation served on May 2, 1921. The action is for damages growing out of a shipment of 173 crates of alligator pears, shipped from Havana, Cuba, to New Orleans, Louisiana, on August 9, 1920, on defendant’s steamship “Excelsior”, by Kingsbury & Co., and consigned to John Bonura & Company. The petition alleges that the fruit was damaged while in transit and because of defendant’s negligence and want of proper care in the transportation and handling thereof.

Defendant filed exceptions of no cause of action and prescription, based upon the provision in the bill of lading that “unless suit is commenced within six months after delivery of the goods to the carrier the lapse of such period shall be deemed a complete bar to recovery in any suit or proceeding not sooner commenced.”

The trial court maintained the exception and dismissed the suit. From this judgment, plaintiff has appealed.

We find in the record the contract of shipment or bill of lading between the parties, and note particularly the following clause, which is pleaded in bar of the action now brought, and which reads as follows:

“The. carrier or vessel shall not, in any event, be liable for any claim or demand arising hereunder or in respect of the goods, unless notice of the claim be presented in writing to the carrier within thirty days after delivery of the goods to the carrier, nor unless suit therefor is commenced within six months after delivery of the goods to the carrier, and the lapse of such period shall be deemed a complete bar to recovery in any such suit or proceeding not sooner commenced, notwithstanding the carrier may be a non-resident or a foreign corporation.”

This court on two occasions has decided the exact question now presented and has held that such a stipulation in a .bill of lading as is above quoted is reasonable and not contrary to law nor to public policy. Our former rulings on this subject need not be further elaborated. The cases in which this question has previously arisen are Bordelon vs. Louisiana Ry. & Nav. Co., 12 Court of Appeal, 405; American Trading Company vs. United Fruit Company, No. 8821 Court of Appeal. See also Railway Co. vs. Harriman, 227 U. S. 652; Texas & Pacific R. R. Co. vs. Leatherwood, 250 U. S. 478, 481.

Upon the foregoing authorities, the judgment appealed from is affirmed, at plain-' tiff’s costs in both courts.


author: WESTERFIELD, J.

text:
    No. 8812.
    Orleans Appeal.
    W. H. COPENHAVER, Appellant, v. JOHN BONURA & CO., INC.
    (March 30, 1925, Opinion and Decree.)
    (April 27, 1925, Rehearing Refused.)

      (Syllabus by the Court.)

    1. Louisiana Digest — Sales—Par. 228.
    A purchaser of two carloads of cabbage F. O. B. Wytheville, Va., is justified in refusing delivery upon arrival of cars in New Orleans when it is shown that the cabbage on arrival was in bad condition due to its having been cut or' loaded in Wytheville in the rain, caus- • ing it to heat en route and prematurely decay.
    Appeal from Civil District Court for the Parish of Orleans, Division “B”, Hon. Fred. D. King, Judge.
    This is a suit for damages growing out of the alleged breach of a contract of sale of two carloads of cabbage by the purchaser.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Hall, Monroe & Lemann, W. J. Suthon, Jr., attorneys for plaintiff and appellant.
    Chas. Rosen, attorney for defendant and appellee.
   WESTERFIELD, J.

This is a suit for damages growing out of the alleged breach of a contract of sale of two carloads of cabbage by the purchaser.

Plaintiff, a produce dealer of Wytheville, Va., through Mallard & Ebel, a brokerage firm in this city, sold and shipped to Bonura & Co., Inc., defendant herein, two carloads of “medium" cabbage”. When the cabbage arrived in New Orleans, it was rejected by defendant upon the ground that it' was in bad condition and after some correspondence by wire, the cabbage was sold to other parties at a considerable loss, and this suit is for the difference between the purchase price at which it was sold to defendant and the sum realized at a subsequent sale.

The sale was made F. O. B. Wytheville and while there is some effort to show that the general rule to the effect that under such circumstances the risk in transit is that of purchaser, does not apply, we are of opinion that this case presents no exceptional features in this regard. The question of whether defendant was justified in rejecting the shipment must, therefore, be determined by the condition of the cabbage when it was delivered to the carrier in Wytheville for transportation to New Orleans consigned to defendant.

It is agreed that the cabbage was damaged upon its arrival in New Orleans and the controversy arises over the extent of the damage and the cause.

There is in evidence the statement of one of the witnesses familiar with the custom of the trade that in the case of cabbage a decay of not more than 5% of a carload shipment is not unusual and not regarded as a proper ground for rejection of the shipment.

John Bonura, president of the defendant corporation, testified that the decay was in excess of five per cent, and that in his opinion, the decay was due to the cutting or loading of the cabbage in the rain.

Ebel, of Marshall & Ebel, who sold the cabbage for plaintiff to defendant, testified, that he examined the cabbage with Bonura and found it in very bad condition; that it appeared to have been loaded in the rain and was wet and “as you picked the leaves off, you could see the water in it. The cabbage was evidently cut while it was raining”. He was' asked whether the condition of the cabbage was such as in the trade would justify a rejection and replied in the affirmative. A telegram sent by Ebel to his principal is in evidence. It reads as follows:

“TWENTY SIX SIX SIXTY AND TWENTY SIX FOUR EIGHTY EIGHT ARRIVED VERY BAD CONDITION BONURA REFUSE FORMER NUMBER AND 'OFFERS TWENTY DOLLARS TON DELIVERED LATTER RELEASE TWO SIX SIX SIXTY TO US WILL SELL BEST ADVANTAGE ADVISE IF GOVERNMENT INSPECTION WANTED RUSH ANSWER COMPETITORS QUOTING EIGHT DOLLARS FOB.”

Two other witnesses, Chris Reuter and Albert Chalona, men of much experience in the produce business, testify that cabbage which is picked or loaded in the'rain will heat in transit and' rot prematurely.

It was raining in Wytheville on the day that the cabbage was delivered to the carrier as appears by the certificate of the U. S. Weather Bureau and there is a telegram in evidence sent by plaintiff to Marshall & Ebel under date of August 12, 1920, reading as follows:

“REFRIGERATOR F. G. E. 26660 BULK CABBAGE YOUR ORDER BONURA WENT FORWARD TODAY RAIN PREVENTED GETTING OTHER CAR OFF IT WILL BE SHIPPED TOMORROW IF WEATHER WILL PERMIT.”

Plaintiff and ten farmers from whom the cabbage was purchased by plaintiff have testified by deposition that the cabbage was not cut or loaded in the rain. Plaintiff’s testimony, however, is qualified, for he says: “Even if it did rain on those days (the days on which the cabbage was shipped) the cabbage were not according to my construction of the phrase loaded in the rain.”

Defendant offered the certificate of the Food Products Inspector of the U. S. Department of Agriculture showing the result of this official’s examination of the car upon its arrival here. This report shows that the cars were properly iced and that “approximately ¾ of heads (cabbage) pale green to green color, firm and compact, balance white and somewhat soft and loose”. “Over top of load throughout to a depth of about one foot 10% of heads badly decayed in stems, an occasional white head completely decayed.” “Throughout rest of load practically no decay.” “Of the top 2 to 4 layers heads in all parts of car about ¾ wilted and very yellow on 2 to 5 outer leaves. Practically no other defects.”

There is no evidence of improper handling in transit, in fact, the cars were shown to be properly iced on leaving Wytheville according to plaintiff himself and in a similar condition in New Orleans.

Our conclusion is that the cabbage was not in proper condition when loaded, either because loaded in the rain, as seems probable, or for some other reason.

For the reasons assigned, the judgment appealed from is affirmed.


author: CLAIBORNE, J.

text:
    No. 8858.
    Orleans Appeal.
    UNITED PANTS MFG. CO. v. AMERICAN RY. EXPRESS CO., Appellant.
    (March 30, 1925, Opinion and Decree.)

      (Syllabus by the Court.)

    1. Louisiana Digest — Carriers of Pas sengers and Goods — Par. 115 (129), 137
    A consignee has no right to refuse to acr cept goods on the ground of delay in delivery; his duty is to receive the goods and to sue for such damages as he has suffered by reason of the delay.
    Appeal from Civil - District Court, Hon. Wynne Rogers, Judge.
    This is a suit for the recovery of $120, value of 12 men’s suits shipped by plaintiff to Wells & Co. at Rayville, La., through the defendant company, and not delivered.
    Judgment for plaintiff. Defendant appealed.
    Judgment reversed.
    Gabriel Fernandez, Jr., attorney for plaintiff and appellee.
    A. A. Moreno, attorney for defendant and appellant.
   CLAIBORNE, J.

This is a suit for the recovery of $120 value of 12 men’s suits shipped by plaintiff to Wells & Co., at Rayville, La., through the defendant company, and not delivered.

The defendant admitted the receipt of the suits; it admitted that they were not delivered because the consignee refused to accept them; it alleged a tender of the same to the consignee.

There was judgment for plaintiff and defendant has appealed.

The evidence is that the plaintiff first ascertained about January 16, 1919, that the consignee had not accepted the shipment; the defendant did not notify the plaintiff of this until March 6, 1919; the plaintiff then refused to accept the goods on account of the delay and because they were out of season, and asked for payment of their value, which the defendant refused; hence this suit.

-The defendant argues that the plaintiff had no right to refuse to accept the goods and to abandon them to the Express Company as in case of failure to deliver or practically to sell them to the defendant; that it was the duty of the plaintiff to have received the goods in order to minimize the loss, and to have sued the defendant for any loss.

They rely upon the two cases of Corso vs. RRD, 48 La. Ann. 1286, 20 South. 752; and Silverman vs. St. Louis RRD., 51 La. Ann. 1785, 26 South. 447.

In the first case the Court said in reference to damaged freight:

“It was the duty of the consignee to have received it and tested the liability of the defendant for the damage, if any had been sustained, as the acceptance of the goods would not have affected the question. * * * It would be an extreme case which would justify a refusal by a consignee to receive freight when notified.”

In the second case also of damaged goods, the Court rested its opinion upon the case of Henderson vs. Ship, 12 La. Ann. 352 in which the Court said:

“The measure of damages is the difference between the value of the goods in their damaged state, and their value at the port of destination had they been delivered in good order. Rathborn vs. Neal, 4 La. Ann. 566. That difference in value should have been ascertained by a public sale to the highest bidders. 10 La. Ann. 796. The doctrine of abandonment for a constructive total loss has never been applied that we are aware of to the contract of affreightments.” Affirmed in Elkin vs. N. Y. & N. O. Steamship Co., 14 La. Ann. 647; Harris vs. Stubenrauch, 18 La. Ann. 724; see also 12 Ct. App. 158, 6 Cyc. 529.

The same doctrine applies in cases of delay in delivery.

5 Am. and Eng. Enc. Law, p. 220 (2nd Ed.), S. 8:

“A failure by the carrier to deliver goods within a. reasonable time does not constitute a conversion, but a mere breach of contract, and the consignee cannot refuse to accept the goods on the ground of the delay and recover their full value unless the delay destroys the value of the goods entirely or causes what is equivalent to a total loss.”
“It is only in extreme cases that the .consignee is warranted in refusing a shipment on account of a depreciation in its value resulting from a mere delay -in its delivery; upon notice of its arrival, whether early or late, he should receive the goods and dispose of them for such price as they will command, and the difference between such price and the amount he would have realized had the delivery been prompt is the measure of damages he is entitled to recover.” 6 Cyc. 449 (h), 10 C. J. 307, S. 444; 6 Cyc. 450 IV.
“In general, depreciation in value due to delay may be recovered; that is, the person entitled to recover on account of delay may have the difference between the market value at the time and place where the goods should have been delivered, and their market value at the time and place of actual delivery if there has been a depreciation.” 10 C. J. 309, S. 445.

It has been held “that the carrier is not bound to give the consignee notice of refusal of the consignee to accept.” 6 Cyc. 474, S. 5.

It is therefore ordered that the judgment appealed from be reversed and set aside, and that there be judgment in favor of defendant rejecting plaintiff’s demand at his cost.


text:
    No. 8861.
    Orleans Appeal.
    M. E. FERRAND v. WALTER VAN BENTHUYSEN.
    (March 30, 1925, Opinion and Decree.)

      (Syllabus by the Court.)

    1. Louisiana Digest — Builders and Buildings — Par. 3, 13.
    Where it is stipulated in specifications made part of a building contract that "should any dispute arise as to the quality or fitness of the materials or workmanship, the decision shall rest strictly with the architect”, and where such decision forms the basis of a suit between the parties to such stipulation, the architect’s findings as against doubtful and conflicting evidence is rightly upheld by the court a qua, whose judgment will not be disturbed on appeal.
    Appeal from the Civil District Court for the Parish of Orleans, Division “D”, Hon. Porter Parker, Judge.
    This is a suit for balance due for demolition and reconstruction of a building.

      There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Geo. Montgomery, attorney for plaintiff and appellee.
    Spencer, Gidiere, Phelps & Dunbar, attorneys for defendant and appellant.
   BELL, J.

Plaintiff, a contractor, sues for $584.71, a balance alleged to be due for certain work involving the demolition and reconstruction of a building belonging to defendant. The petition sets up a written contract, with specifications, signed by plaintiff as contractor and defendant as owner. It is alleged that the entire work was to be done for $4,473.00; that after the building had been entirely demolished from one site and its foundations had been reconstructed on another site, and after the first certificate for partial payment of the contract had been issued and approved by the architect and had been partially paid by defendant, that defendant stopped all work under the contract, leaving as a balance due for brick, labor and services rendered the amount now claimed, to-wit: $584.71. It is further alleged in the petition that differences had arisen between plaintiff and defendant, the latter having made demands upon plaintiff which were unjust, unreasonable and contrary to the terms of the building contract, particularly in that defendant had demanded that plaintiff should demolish the work already completed, although same had been approved by the architect in charge; that plaintiff offered, within the provisions of the contract, to submit these differences to arbitration, but that defendant, without reason, refused so to do.

Defendant answered, admitting the contract alleged by plaintiff, except that the price should have been $4,673.00 instead of $4,773.00. He also admitted that the work was to be done under the direction of R. Spencer Soule, architect, whose powers were fixed in the contract and specifications. He also admitted that the specifications provided that any dispute arising as to quality or fitness of material or workmanship should be decided strictly by the architect, and that payments under the contract as it progressed were to be made as alleged in the petition. Defendant denied that plaintiff performed the work and furnished the material in accordance with the contract and specifications -and denied that the necessary certificate from the architect had been obtained; but he admitted that a certificate for $600.00 was obtained from the architect and paid by him. Defendant further denied that any itemized statement verified by the architect, was furnished, but admitted that he received an unverified statement showing a balance as now claimed by plaintiff, and at the same time he received an itemized statement from his architect showing the amount of work done by the contractor and upon this latter statement or certificate he paid the sum of $600.00. He denied owing the balance now claimed, but admitted that differences had arisen between him and plaintiff and that he had demanded that plaintiff should demolish the work already reconstructed at the new site because the foundations there had been constructed out of line and out of level, and that the bricks were laid without any cement in the mortar. Admitting that he refused to arbitrate, defendant averred that the contract did not provide for arbitration of such matters, but he admitted that amicable demand had been made upon him and that the architect did approve of the work done by the plaintiff and did issue the Certificate No. One which covered the work on the foundations and which he had paid before he saw the work. He then alleged he visited the work six days later and found that the foundations were out of line and out of level and the mortar useless and not up to specifications, and he averred further that the approval of the work by the architect was in violation of ■ the contract, not binding upon him, and that he had paid the $600.00 on the first certificate issued in ignorance of the character of the work. Assuming the position .of plaintiff in reconvention, defendant alleged that the work done by plaintiff was of a value not exceeding $300.00 and that defendant had, therefore, been overpaid, and further that he called on plaintiff to demolish the work and reconstruct the foundations, and that plaintiff having failed to do so, he had the work done by another contractor at an additional cost of $100.00, and that this latter amount, together with the overpaid amount of $300.00, he was entitled to recover against plaintiff, and so prayed in reconvention.

Pending this suit, the plaintiff became a bankrupt, and his trustee was interpleaded, and after trial had on the issues here involved, there was judgment in favor of plaintiff’s trustee and against defendant for the amount sued upon and defendant’s re-conventional demand was dismissed. Prom this judgment defendant has appealed.

The important question in this case is one founded wholly upon issues of fact and is to be determined upon the evidence of six witnesses, three for plaintiff and three for the defendant. The trial judge, under these conditions, has rendered judgment in favor of the plaintiff. We are disposed to believe that our learned brother of the District Court, after hearing the evidence of witnesses divided in number, as just noted, was influenced in his final determination by the building contract and stipulations made part of that contract. Defendant admits that he signed the contract and the specifications, and that the .latter specifically provided that should any dispute arise as to the quality and fitness .of the material or workmanship, the decision should rest strictly with the architect. We find such a stipulation in the specifications and conclude, therefore, that unless the decision of the architect as rendered in.this case under the dispute which has arisen between the litigants is shown to be arbitrary and plainly contrary to the evidence, that such decision should be maintained.

We find from the evidence that the defendant paid the first certificate issued by the architect approving the work done up to the time that said certificate was issued. Defendant admits that he paid this certificate without examining the work and relied upon the certification made by his architect, who was of his own choosing. Defendant testifies that six days after making this payment, he went to the site at which the building was to be reconstructed, and found the foundations badly constructed, as set forth in his answer to this suit. It appears that in the early part of August, almost two months- after payment of this first certificate, and' after he had found the work unsatisfactory, he called upon Dr. Metz, a chemist, and Mr. Devereaux O’Reilly, an engineer and contractor, to examine the work as then constructed and to report their findings to him.- It appears that prior to calling upon these experts for their opinion, defendant instructed the architect and he in turn directed the plaintiff to cease all further work under the contract. We find from the report of the chemist and of the engineer employed by the defendant, that these gentlemen did find some defects in the work. Dr. Metz, however, who made the chemical examination as to the proportions of lime, sand and cement which should have been in compliance with the specifications in respect to the mortar to be furnished, declares that he found the mortar itself apparently without any adhesive qualities and that he could flake a good deal of it with a penknife as when lifting the top of a cardboard box. This witness, however, failed to testify that there was no cement in the mortar, which seems to have been the main complaint made by defendant as to the mortar. On the contrary, this witness swears that neither he nor anyone else could say exactly what the proportion of cement was to lime and sand in the mortar as used in this work. Mr. O’Reilly undertakes to testify that there was no cement whatever in the mortar, although his functions were to determine the lines and levels established in the construction of the foundation, and he is not shown to have made any chemical examination of the mortar. His letter addressed to the defendant containing his report, as well as his sketch accompanying the letter, does show the foundation to have been from one to three-quarters, of an inch out and in one place as much as five-eighths of an inch out of center, but the architect himself has testified that these variations are quite frequent and customary and are easily overcome when brick foundations are stuccoed and when the cross beams laid thereon are leveled by slate slipped between the bottom of the sill and the top of the brick foundation, so as to make the sill level.

Mr. Bowers, a bricklayer and contractor of twenty years’ experience, who testified for the plaintiff, says that he was asked to look at the mortar and that it was reasonably good mortar, and that he knows there was cement in the mortar, although he cannot tell what its proportions were by the examination made. He also testifies that when he examined it, there had been very heavy rains which had washed the mortar some, and, of course, the work did not look exactly as it would have looked had it not been rained on. He says finally that the mortar between the bricks was good mo.rtar and that he took off the bricks in order to examine the mortar between them arid that the work seemed to be good. Mr. Soule, the architect, swears that when' complaint came to him from the defendant-about the work done on the foundation and' material furnished, particularly the condition of the mortar, he made an examination himself and wrote defendant that in-his opinion the work, was according to plans- and specifications. His testimony is, in part, as follows:

“Q. Now, in your opinion, Mr. Soule, were the plans and specifications complied with by Mr. Ferrand?
“A. In my opinion, they were, and I so certified, and I have not' changed my opinion.”

Our examination of the record in this case would not justify us in finding that the conclusions of the trial judge are er-, roneous or contrary to the weight of evidence which he has given to the testimony-of the witnesses whom he saw and heard.

The law of the contract between these parties is written in the specifications and should obtain, unless the evidence is of a preponderating nature against the justice of the conclusions which the architect has rendered in the matter. We do not consider that his decision is contrary to the expert testimony which is before us or that the work and material furnished: was of such nature as would justify the defendant in rejecting the report or decision of his architect.

In the case of Dugue vs. Levy, 114 La. 21, 37 South. 995, while the court refused to uphold the arbitrary refusal of the architect to issue a certificate for work done, it nevertheless announced the doctrine that a strong case must in each instance be made out to induce the courts to overrule decisions of supervising architects. In the instant case, it was nominated in the contract between the parties that the decision of. the architect as to the quality or fitness of material or work should rest strictly with the architect, and we think, under the circumstances of this case, that the findings of the trial judge, consistent with that decision, should not be disturbed.

It is, therefore, ordered that the judgment herein appealed from be and the same is hereby affirmed at defendant’s costs in both courts.


text:
    No. 1806
    Second Circuit Appeal
    GEORGE ARTHUR GAINES v. JESSIE TIDWELL AND HUSBAND
    (March 30, 1925, Opinion and Decree)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Evidence—Par. 256.
    It is well settled that parol evidence is admissible to show error in the descriptio loci et descriptio personae in the data contained in an act concerning real estate, namely, to show that the instrument was not made the actual depository of the intention of the parties. If such was not the rule of law, no erroneous description of real estate acquired or sold could ever be established and rectified as against an author or purchaser in bad faith, or against his representatives, in the event of his death.
    2. Louisiana Digest — Estoppel—Par. 30, 38, 51.
    Where plaintiff in an action for ownership and possession of land failed to claim a tract east of the line stepped off, leaving that particular tract in possession of his vendor and also failed to put improvements on that part or object to his vendor’s putting improvements thereon; he is estopped from claiming that tract, even though the deed erroneously shows plaintiff as the record owner.
    Appeal from the Second Judicial District Court of Louisiana, Parish of Webster, Hon. Robert Roberts, Judge.
    This is a suit claiming ownership of land coupled with an injunction enjoining defendants from interferring with his ownership. There was judgment dismissing plaintiff’s suit and dissolving .injunction.
    Plaintiff appealed.
    Judgment affirmed and recast.
    L. K. Watkins, of Minden, attorney for plaintiff, appellant.
    Stewart & Stewart, of Minden, attorneys for defendant, appellee.
   CARVER, J.

On October 15, 1918, Prank Fleeks executed in favor of plaintiff a notarial act conveying to him a certain tract of land described in the deed as:

“All that part of the SW¼ of SW¼ of Section 33, Township 19 North, Range 10 West, south of the Shreveport Branch of the Louisiana & Arkansas Railway in Webster parish, Louisiana, containing 18.00 acres, more or less.”

The vendor at some time; not exactly shown by the evidence, stepped off a line' dividing the tract. into two nearly equal parts and placed, or had placed, iron stobs at the north and south ends of the line so stepped off.

There was on the east side of the tract a little patch of an acre or an acre and a half under fence and in cultivation.

Plaintiff built a house on the west side of the tract and fenced up some of it. Some time thereafter he moved his fence,' or built a new one at' or near the line stepped off by Fleeks. The ' little patch on the east side of the tract remained in possession of Fleeks, under whose authority it was cultivated by Jessie Tidwell during the years' 1919, 1920 and • 1921, and to the time of Fleeks’ death on February 25, 1922. Plaintiff never sought to dispossess Fleeks or Tidwell of this little patch during the lifetime of Fleeks, nor does the evidence show that he ever exercised any dominion over this patch or any of the land east of the line stepped off or asserted any claim thereto, except that he exécuted a mortgage on February 10, 1919, in favor of S. T. Anders and J. F. Baker on the entire tract, describing it precisely as it was described in his deed from Fleeks.

At some time after plaintiff bought, Jessie Tidwell built a fence also near and to' the east of the line stepped off, and afterwards built a house on the little patch above mentioned. The fence built by Tidwell did not run across the entire tract but ran part of the way and, as we understand the evidence, a line of posts was erected continuous with the fence and extending further and perhaps entirely across the tract.

On April 24, 1922, about two months after the death of Fleeks, plaintiff brings this suit, claiming ownership of all that part of the forty above described lying south of the railway and alleging that Jessie Tidwell and her husband had disturbed his ownership and possession thereof by erecting a house, cutting timber and claiming to own the land. He sued out a writ of injunction enjoining them from interfering with his possession and use of the property and from further acts of trespass thereon.

Defendants allege in their answer that the deed from Fleeks to plaintiff contained an error in describing the land intended to be conveyed; that according to the intention of both the vendor and vendee only the west eighteen acres was mutually intended to be sold and bought. They further allege that Fleeks donated the "east thirteen acres of the tract south of the railway to Jessie Tidwell during his lifetime and also willed it to her at his death and that Jessie, under the donation, took possession of the land and erected a house thereon and cultivated same with the knowledge and acquiescence of plaintiff. They allege, further, that plaintiff agreed with them on a division line between the two properties. These acts they plead as an estoppel against plaintiff.

It is clear that the deed by its terms conveys not merely eighteen acres of the forty in question but all that part of the forty lying south of the Shreveport Branch of the Louisiana & Arkansas Railway; but under the allegation that the deed is erroneous in describing the property intended to be conveyed, we think the defendants had a right to show by parol what was so intended, and the ruling of the District' Judge permitting parol testimony of plaintiff’s declarations and con duct going to show his intention was in our opinion correct.

III Louisiana Digest, 223. Also Levy vs. Ward, 33 La. Ann. 1035, in which the court says:

“It is well settled that parol evidence is admissible to show error in the descrlptlo loci ef descriptio personae in the date contained in an act concerning real estate, namely, to show that the instrument was not made the actual depository of the intention of the parties. If such was not the rule of law, no erroneous description of real estate acquired or sold could ever be established and rectified as against an author or purchaser in bad faith, or against his representatives, in the event of his death.”

Citing many authorities.

E. L. Stewart says (page 19):

“Q. Do you know how long Jessie Tidwell and husband had been in possession of the east half of the southwest quarter of southwest quarter ?
“A. No, sir, I do not know; I know for quite a good while, and George Gaines had often told me that he owned the west •eighteen acres of that tract. I have seen him plowing in there. He never did claim the east side until after old man Frank died. I know that absolutely, to me.”

U. O. Ashby (page 28):

“A. No, sir, George Gaines just told me that he bought eighteen acres from Frank Fleeks, that adjoined his.”

Gaines owned the . southeast quarter of the southeast quarter of Section 32, lying immediately west of the southwest quarter of southwest quarter of Section 33.

Plaintiff made two oil leases of the west eighteen acres but did not include the east part of the forty. He gives a false explanation of his reason for not including the whole tract. He states (page 8):

“Q. You leased ‘him eighteen acres?
“A. Yes, sir, and the reason was I did not want to lease all, did not want them to interfere with my house, that is the reason I did not lease the whole piece.”

The truth is that the eighteen acres leased is the very land on which his house is situated.

He gives the same explanation again on page 60 as follows:

“Q. How much land did you lease to Jimmie Busbey?
“A. I leased like Mr. Crowson, leased in front of the house, not to bother around the house.”

Jessie Tidwell swears that plaintiff, himself, made the land between their properties; that he never objected to her building the house; and that he asked her to sell him the tract claimed by her and also asked her to lease it to him. He denied all this, but gives no satisfactory reason why he permitted her to erect the fence or house; and we are satisfied that he made no real objection to her doing so, if any at all.

After having stated that there was no lane at all between the properties, and then having modified that to the extent of admitting that there was a lane part way, he states as follows:

“Q. Now, what kind of a place these witnesses call a lane, what is that?
“A.' Just post there, what I call a lane, is where there are two fences, some .posts there, nothing but posts.
“Q. What did you have to do with putting this fence there, that is, these posts?
“A. I did not put them there, But Tidwell put them there or Jessie Tidwell.
“Q. How far does the lane run, to the back of the land or just a little ways?
“A. The posts run the back side of the line where they drove the stob.
“Q. You had nothing to do with that .at all?
“A. No, sir.
“Q. What objection did you make?
“A. I told them not to do so.
“Q. Did you have a fuss with her about it?
“A. No, sir, I did not raise a fuss.
“Q. How came you to let her build a house on the land?
“A. I could not help it without a fuss.
“Q. Did you object?
“A. Yes, sir, I objected and told Mr. S. T. Anders that he was furnishing the lumber for my land and I. would not pay , for it, that, it was on my land.”

He had previously stated (page 7):

“Q. You saw her stakes, you saw the iron stakes dividing the property up?
“A. No, sir, I seen Jessie drive stobs.
“Q. Did you see her drive them?
“A. Yes, sir, I seen her with witnesses.
“Q. Who all were there?
“A. Myself, my wife and Steve Fleeks and my mother-in-law.
$ $ :K $
“Q. What did you do when you saw her driving the stobs?
“A. I objected, told her not to do so.
“Q. Now was that before or after Frank Fleeks died? When she drove the stobs?
“A. After he died.
“Q. When she was cultivating this property in 1920, and you saw her, why didn’t you stop her?
“A. Well, I will tell you why, when the property was sold there was a patch of about an acre that Frank Fleeks always worked and he told her if she would finish it out he would let her have half of it.”

Neither his wife nor his mother-in-law testified in the case, and Steve Fleeks, though a witness and a very willing one, was not asked about this particular matter. The S. T. Anders mentioned was also a witness, but he whs not asked about any objection made by plaintiff. In view of his subsequent willingness to take drastic action against defendants in court by way of injunction and out of court by way of going into her enclosure, plowing up the land therein and nailing the gates up, as he admits himself (page 61), we cannot think the reason he gives for not more strenuously objecting to her making the improvements a candid one. In fact, we believe her testimony that he did not object.

We think the plaintiff’s failure to claim the tract east of the line stepped off and leaving it in possession of his vendor, in apparently confining his claim to the west part, as shown by his leases; the untrue explanation he gives of his so confining it; his failure to object to her putting in the improvements, and the unsatisfactory reasons he gives for such failure, are all inconsistent with the theory that he intended to buy all of the forty south of the railway, and consistent only with the theory that he only intended to buy the west eighteen acres.

The District Judge, over plaintiff’s objection, also allowed parol testimony to prove declarations of Fleeks. We think this was error.

These declarations were hearsay. But Fleeks’ remaining in possession of that part of the land east of the line he stepped off, and staked, and his giving and afterw'ard willing it to Jessie show that his intention was to sell plaintiff only the west eighteen acres.

But aside from this, we think the plaintiff’s act in permitting defendants to make valuable improvements on the property east of the dividing line under a claim of right and without objection from him, estops him from claiming it.

21 Cyc. 1160, paragraph 163, verbo Estoppel, lays down the following rule:

“One who with knowledge of the fact and without objection suffers another to make improvements or expenditures on or in connection with his property or in derogation of his rights under a claim of title or right will be estopped to deny such title or right to the prejudice of that other who has acted in reliance on and been misled by his conduct, and a fortiorari is applicable where the party against whom the estoppel is claimed not only makes no objection but assists in making the improvements.”

Plaintiff objected to. proof of the verbal donation and also to proof of the will. Of course a verbal donation is not sufficient to transfer property and is not admissible to prove title. Of course, too, a will cannot transfer property sold by the decedent during his lifetime.

But the issue in this case is not Whether defendants have a valid title or any title at all.

The question is, has plaintiff a title which he can urge against defendants. If not, it is no concern of his what sort of title defendants have, or whether they have any.

His deed, on its face, of course, covers the property, but under all the proof in the record we are satisfied it was not intended to cover it and therefore must be regarded as not' covering it; and furthermore, he is estopped from claiming any more than the eighteen acres.

The judgment of the District Court simply dismissed plaintiff’s suit and dissolved the injunction. Inasmuch as plaintiff claims, in his petition, the ownership of all that part of the forty lying south of the railway, this judgment might possibly be construed as meaning that plaintiff had no title to any of it. For the sake of greater clarity, therefore, we will recast the judgment so as to leave his title clear to the west . eighteen acres which was intended to be bought and sold. As to this eighteen acres, though, there is no proof that defendant ever claimed it and there was no necessity, therefore, for the injunction or the suit. We are also satisfied that the judgment was not intended to reject his claim to that eighteen acres. The recasting of tlje judgment, therefore, should not entitle appellant to the costs of the suit or even those of the appeal.

It is decreed that the judgment of the lower court be recast so as to read as follows:

It is decreed that there be judgment in favor of the defendants, Jessie Tidwell and B. Tidwell, and against the plaintiff, George Arthur Gaines, decreeing that the deed from Frank Fleeks to said Gaines of date October 15, 1918, was intended to cover and is therefore held to cover only the west eighteen acres of that part of southwest quarter of southwest quarter of Section 33, Township 19 north, Range 10 west, south of the Shreveport Branch of the Louisiana and Arkansas Railway in Webster parish, Louisiana, and that the demands of the plaintiff, so far as the rest of said tract is concerned, be and the same are hereby rejected and disallowed; and the injunction herein sued out is dissolved. Plaintiff to pay the costs of both courts.


text:
    No. 1940
    Second Circuit Appeal
    D. C. NICHOLS v. WILLIAM BELL AND E. M. RACHAL
    (March 30, 1925, Opinion and Decree.)

      (Syllabus by the Editor.)
    1.Louisiana Digest — Execution—Par. 74, 76.
    Where the constable did not and could not take corporeal possession of an undivided half interest in the land and the seizure consequently was effected merely by notifying the defendant in execution that the seizure had been made, that the sort of seizure could not be abandoned by the constable against the protest of the judgment creditor.
    2. Louisiana Digest — Execution—Par. 175, 70.
    It is well settled that, having made a seizure, the sheriff was not bound to return the w^jt unless required by the plaintiff, but might proceed to sell under the seizure notwithstanding the expiration of the return of the writ, the failure to sell not having been attributed to the plaintiff.
    3. Louisiana Digest — Sales—Par. 205, 207.
    If knowledge of a deed which actually conveys land is not equivalent to registry then for the greater reason knowledge of a deed that does not convey but was merely intended to do so is not equivalent.
    4. Louisiana Digest — Fraud—Par. 6, 10.
    Where the corrective deed had to be obtained in any event, whether a partition was amicably come to or not, fraud cannot be ascribed to a party to the suit because he tried to arrive at an agreement for an amicable partition.
    5. Louisiana Digest — Costs and Fees— Par. 61.
    In view of Article 890 of the Code of Practice a motion to amend asking for damages, filed by defendant on the day set for judgment, is filed too late.
    Appeal from the Eleventh Judicial District Court of Louisiana, Parish of Natchitoches. Hon. J. W. Jones, Jr., Judge.
    This is an injunction suit which involves the right of the defendant, Bell, to sell, under execution, an undivided half interest in forty acres of land seized as the property of his judgment debtor, Kerry.
    There was judgment for defendant dissolving the injunction.
    Plaintiff appealed.
    Judgment affirmed.

      J. D. Rusca, of Natchitoches, attorney for plaintiff, appellant.
    M. L. Dismukes, of Natchitoches, attorney for defendant, appellee.
   CARVER, J.

This suit involves the right of the defendant Bell to sell, under execution, an undivided half interest in forty acres of land seized as the property of his judgment debtor, Kerry.

The facts leading up to the suit are as follows:

On October 24, 1921, Kerry sold to plaintiff an undivided half interest in one hundred and twenty acres of land intending to include the half interest he owned in the SW¼ of SW¼ of Section 12 Township 5 North Range 6 West but, by error, described it as the SE¼ of SW¼ of that Section.

On November 21, 1921, Bell brought suit in the Justice-of-the-Peace’s court against Kerry for $100.00. The Justice-of-the-Peace decided against Bell and he appealed to the District Court which reversed the judgment of the lower court and gave Bell judgment for $55.00; which judgment was rendered on March 1, 1922, and recorded the same day in the mortgage book of Natchitoches parish.

On March 8, 1922, the Justice-of-the-Peace issued an execution on this judgment and the Constable seized a half interest in SW¼ of SW¼ of Section 12 Township 5 North Range 6 West; serving on Kerry notice of the seizure in writing.

The writ under which the seizure was made directed the Constable to make return in thirty days.

The Constable advertised the property to be sold on April 29, 1922, but before the day of sale declared he had released the seizure - and- announced his attention of not . making the sale.

Thereupon Bell brought ; a mandamus suit against the Constable, seeking to compel him to proceed with the sale. In this mandamus suit he alleged that he had given bond for $500.00 to indemnify the Constable in any damage he might suffer by reason of his proceeding with the sale.

Judgment was rendered making the mandamus peremptory and ordering Rachal, the Constable, to proceed with the sale; this judgment being signed April 15, 1922.

The writ, issued March '8, 1922, brought up with the record, does not show that any return was made thereon, and we gather from the averments of the petition in the mandamus suit, to which this. writ was annexed, that it was forwarded after the seizure was made to ■ the Sheriff with instructions to turn same over to Bell’s attorney. Since the filing of the mandamus suit the writ has evidently remained in the office of the Clerk of the District Court, of Natchitoches parish as a part of the archives of his office.

On April' 17, 1922, Bell’s attorney filed up two blank writs of fi. fa., leaving one of them blank and tyewriting the Justice’s name in the other and writing thereon in the left hand corner the words “A true copy”. He gave this to the Constable, directing him to get the Justice to sign the one left unsigned and for him, as Constable, to sign under the words “A true copy” on the other one. The Justice did sign .the original and the Constable certified the copy.

On this original the Constable made return on the 23rd of May, 1922, stating that he had received the within alias writ on the 17th day of April, 1922, the original having issued on March 8, 1922, and not having sold the property seized makes this return, retaining the copy in his hands.

In January, 1922, plaintiff brought suit against Bell’s wife for partition of the land a half interest in which he had bought from Kerry,. thinking that Bell’s wife owned the whole of the other half interest. Bell was joined to authorize his wife.

Within a few days after this suit was filed Bell brought the papers to Natchitoches and gave them to his attorney, Mr. Dismukes. Dismukes invited plaintiff’s attorney, Mr. Rusca, to come to his office where a conference was had between Bell, Dismukes and Rusca. During this conference Rusca’s attention was called to the fact that the petition in the partition suit did not describe the land correctly. He was also told that Mrs. Bell did not own the whole of the other half interest but that Bell himself owned part of that interest. He was also told or inferred that the description in his client’s deed from Kerry as well as the description in the partition suit was wrong. Rusca suggested that, in the - interest of saving costs, therby benefiting all parties, an effort be made to partition the land amicably, which Bell agreed to do; Rusca stating that he would take no further steps in the partition suit.

It Seems that Bell did not himself know of the error in the deed until the day of the conference, but whether before or after the conference the record does not show.

Rusca wrote to Nichols informing him of the conference and suggesting a meeting with Bell in an effort to partition the property amicably. Bell and Nichols met but no agreement was reached, Bell declining to either buy or sell and declining to partition except in a particular way to which Nichols would not agree. The date of this meeting is not shown by the record, except that it was before the trial in the District Court of the suit of Bell against Kerry. Perhaps it was as early as the latter part of January, 1922.

Dismukes says that shortly after the conference in his office Bell reported to him that it was impossible for him and Nichols to agree and that he so informed Mr. Rusca about the same time.

On March 16, 1922, a corrective deed was passed between Kerry and Nichols, stating that the intention of the October sale was to sell a half interest in the SW¼ of SW¼ of Section 12 instead of SE¼ of SW¼. This deed was filed for record March 18, 1922.

Pursuant to the mandamus ordering him to do so, the Constable readvertised the property. He had not made any other seizure of it or served any notice of seizure except the seizure and notice made an d given under the writ of March 8, 1922.

Upon his so readvertising it, plaintiff brought this suit to enjoin the sale, alleging that there was no valid seizure of the property at that time, the Constable having released the seizure made under the writ of March 8, 1922 and that writ having expired thirty days after its date, and further, that Bell was guilty of fraud, the alleged fraud consisting of inducing plaintiff to delay getting a correction deed from Kerry by the pretence that he, Bell, would endeavor to come to an agreement for an amicable partition of the land with Nichols, pending which plaintiff’s attorney was to take no action in the partition suit.

Plaintiff further alleged that Bell could take no advantage of the error in the deed-from Kerry to Nichols because he knew of such error and that Kerry’s intention was to sell his half interest in the SW¼ of SW¼.

Defendant Bell answered the -injunction suit, denying the alleged fraud and pleading reliance upon the public records.

Both plaintiff and defendant Bell claimed damages.

The District Judge rendered judgment dissolving the injunction- and- held that Bell had a right to sell the land under his judgment.

Plaintiff appealed, and in this court Bell asks amendment of the judgment so as to give him damages.

Plaintiff relies for a reversal on the following points.

I.

That the seizure made by the Constable under the writ of March 8. 1922, was released by him and no new seizure was ever made either under that writ or the writ of April 17, and that not having the property. under seizure the Constable could not sell it.

II.

That if the release made by the Constable was not effective, the writ itself expired thirty days after its issuance, namely, April 8, 1922, and this released the seizure.

III.

That the original deed from Kerry to Nichols was sufficient to divest Kerry of his title quo ad Bell because Bell knew it was the intention of Nichols to buy and Kerry to sell the interest in question.

IV.

That Bell’s conduct in pretending to try to make an amicable partition and thus getting delay so that he could get and record his judgment was for the purpose of inducing plaintiff to defer getting a corrective deed and therefore a fraud on plaintiff’s rights.

We do think that the act of the Constable in declaring the seizure released and refusing to go ahead with the sale, over the protest of the judgment creditor, did amount to a release in this case. Perhaps where an officer seizes property by taking corporeal possession of the same a release of such a seizure might be effected by redelivery of the property corporeally to the defendant in execution, especially as regards intervening rights of third persons. In this case, though, the Constable did not and could not take corporeal possession of an undivided half interest in the land and the seizure consequently was effected merely by notifying the defendant in execution that the seizure had been made; that sort of seizure could not be abandoned by the Constable against the protest of the judgment creditor.

Plaintiff’s counsel, on this branch of the case, relies on the case of State, ex rel. etc., vs. Fontenot, 152 La. 912, 94 South. 441.

In our opinion this decision does not sustain the claim.

In that case the sheriff was willing to hold the seizure if the judgment creditor gave an indemnity bond. Here the judgment creditor offered an indemnity bond. There the Sheriff knew of his own knowledge that Dalby owned the property, he having, himself, as Sheriff, in a previous mortgage foreclosure suit, seized and sold and delivered it to Dalby who had been in possession of it some considerable length of time; seeing that the adjudication at Sheriff’s sale itself vests title and that the Sheriff’s deed is merely evidence of it; the Sheriff who made the sale and gave an erroneous deed but could perhaps thereafter correct his own error. It further appeared, according to the Sheriff’s allegation, that the relator had recognized the sale to Dalby by suing to have it set aside on the alleged ground of fraud. In this case, though, the Constable had nothing to do with the sale from Kerry to Nichols and had no right, if he did know it, to decide that a sale which was intended to but did not describe certain land had the effect of transferring the property. Further, the court in that case did not hold that the error could be corrected. (Though we think under the circumstances, being a Sheriff’s sale where the adjudication vests title, it could be.) The court remanded the case to try the question. whether a judgment setting the question of issue had been rendered and become final. If so, of course the judgment was res judicata ' and right or wrong had to stand. In that case the exercise of discretion by the Sheriff was proper, but we think it was hot by the Constable in this case and that his declaration that the seizure was released over the protest of the judgment creditor was ineffective to release it.

2.

Our first impression was that the expiration of a writ of fi. fa. without returning it into, court and keeping a copy for future proceedings operated a release of the seizure, but we find a long line of jurisprudence settling the matter the other way.

In Aubrey vs. Buhler, 3 Mar. (N. S.) 493, Justice Porter in a well reasoned opinion, decided as follows:

“If a ' levy be made before the return day, a sale may be made after.”

In Rowley vs. Kemp, 2 La. Ann. 361, the court says:

“It is well settled that having made a seizure the sheriff was not bound to return the writ unless required by the plaintiff, but might proceed to sell under the seizure notwithstanding the expiration of the return day of the writ, the failure to sell not having been attributable to the plaintiff.”

Citing authorities.

In Dorsey vs. Carrollton Bank, 5 La. Ann. 237, the court approvingly cites the above quotation from Rowley vs. Kemp.

In Widow Briant vs. Hebert, 30 La. Ann. 1128, the court reaffirms the doctrine of Rowley vs. Kemp, which it cites approvingly.

In .the Briant case, the writ expired on August 8th. On the 11th of August it was returned to the Clerk’s office, the sheriff having kept a copy.

The Briant case is expressely reaffirmed in the case of Smith vs. Sanders-Lenahan Lumber Co., 139 La. 902, 72 South. 445.

3.

We do not think Bell’s knowledge that Kerry intended to sell the land made that intention effective as against him to divest Kerry of the property and place it beyond reach of his execution.

Since McDuffie vs. Walker, 125 La. 154, 51 South. 100, the court has not, we believe, varied from the principle that actual knowledge in matters of real estate is not equivalent to registry and that parties have a right to rely on the public records in dealing with real estate.

The case of Van Arsdale vs. Miller, 156 La. 1, 99 South. 889, cited by plaintiff’s counsel, is not opposed to this view. There the party pleading want of registry was not only a member of the firm who gave the counter-letter to Van Arsdale but was the very member of the firm who wrote, executed and signed it. Being a party to the act, registry was not as to him necessary. But Bell was not a party to the deed from Kerry to Nichols.

If knowledge of a deed which actually conveys land is not equivalent to registry then for the greater reason knowledge of a deed that does not convey but was merely intended to do so is not equivalent.

4.

We do not think the proof Sustains the charge of fraud. Neither Bell nor Dismukes made any promise to Rusca, except that Bell was to try to arrive at an agreement with Nichols for an amicable partition of the land.

Plaintiff need not have waited on this partition to obtain a corrective deed. Bell was not a necessary party to the corrective deed nor was Kerry a necessary party to the partition, except that the corrective deed had to be made before this part of the land could be partitioned.

The corrective deed had to be obtained in any event, whether a partition was amicably come to or not.

Moreover, negotiations for an amicable partition were broken off certainly before March 1, 1922, and 'probably as early as the latter part of January. Nichols knew there was no further hope of an amicable partition and Dismukes says he so notified Nichols’ attorney.

The corrective deed was not obtained until March 16th.

Nichols knew that Bell was suing Kerry for a money judgment.

Bell or his attorney first made disclosure of the error to plaintiff’s attorney in the conference held in Dismukes’ office some time before January, 1921.

THE CLAIM' POR DAMAGES.

We hardly think this a case for the allowance of damages, but even if we did we could not allow them. Defendant did not file his motion to amend until March 4, 1925, the day set for the argument.

Article 890 of the Code of Practice declares:

“* * * but if he (meaning the appellee) demand a reversal of any part or damages against the appellant he shall file his answer at least three days before that fixed for the argument, otherwise it shall not be received.”

The judgment of the lower court is . affirmed.


text:
    No. 1988
    Second Circuit Appeal
    ALONZO L. HARPER v. POLICE JURY OF BIENVILLE PARISH, ET AL.
    (March 30, 1925, Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Trespass—Par. 1, 2, 19.
    Where the owner of land was unwilling to . allow the contractors who were constructing a gravel road to use ¡his land for a passageway, the act of the contractors in forcibly tearing down the owner’s gates and using his' land to haul gravel, damaged his property and entitled the plaintiff land owner to judgment for the amount of the damage done.
    2. Louisiana Digest — Parishes—Par. 47.
    The police jury of a parish in its governmental functions in granting a contract to build a gravel road cannot be held liable for the damages done to land owners by the contractors in the construction of this road.
    (Civil Code, Art. 2315. Editor’s note.).
    Appeal from Third Judicial District Court of Louisiana, Parish of Bienville, ‘ Hon. J. E. Reynolds, Judge.
    This is a suit for damages arising out of the illegal trespass on land ' brought by the landowner.
    There was judgment for plaintiff' against the contractors but not against the police jury. Defendant contractors appealed.
    Judgment affirmed and increased.
    P. E. Brown, of Arcadia, attorney for plaintiff, appellee.
    H. D. Goff, J. Rush Wimberley, of Arcadia, attorneys for defendants, appellants.
   CARVER, J.

Plaintiff sues the Police Jury of Bienville parish W. H. Smith, Jr., and Dave McDermott for damages for illegally trespassing on his enclosed premises by using the same as a passage way to haul gravel and damaging the same by ruining grass and skinning up fruit trees and making deep ruts on the premises.

Smith denies doing the things charged.

McDermott admits the hauling but claims that he did so as subcontractor under Smith and also by authority of the Police Jury which, he says, fixed a public highway through plaintiff’s property, and also by permission of plaintiff. He also claims there was a pubic road there already.

From a judgment in favor of plaintiff and against Smith and McDermott all three appeal.

Plaintiff’s counsel argued the case before us orally and also submitted a brief. Defendant’s counsel did neither.

The lower court rejected plaintiff’s demand as against the Police Jury, which, we think, was proper. In taking the action it did, as hereinafter mentioned, it acted in its governmental capacity and was not, we think, responsible in damages.

The testimony shows that Smith had a contract with the Police Jury of Bienville parish and the State Highway Commission to build a good road, McDermott being subcontractor under Smith. Wishing to haul gravel through plaintiff’s premises, enclosed orchard and pasture near his house — an effort was made to obtain his consent but an agreement could not be reached, as to compensation to be' paid him therefore. Thereupon the Police Jury passed an ordinance declaring—

“That the owner of the land upon and over which said road passes may maintain in good order gates on his property with the rights of the public to pass through same.”

' Thereupon plaintiff brought suit against the Police Jury and Smith Brothers, alleged to be a. partnership composed of J. B. Smith and W. H. Smith, Jr., enjoining enforcement of this ordinance on various grounds. • This suit has never yet come to trial. The Police Jury, though, obtained an order to bond the same but it appears never to have given bond.

Notwithstanding the injunction and failure'to bond, McDermott tore down plaintiff’s gates and for several months hauled gravel across his premises, cutting up the land considerably, ruining some of the grass,, killing some fruit trees and skinning up others, and strewing considerable gravel over . the ground.

I.

The ordinance of the Police Jury of course was a nullity; the plaintiff’s property could not be taken or damaged by ordinance appropriating same, but the method pointed out by Revised Statutes 3369 should have been followed. The ordinance therefore was no protection to defendants.

II.

Effort was made to show that the road had been formerly used as a public road, but we think the proof shows that it was merely a private road for the convenience of plaintiff himself and those of his neighbors to whom he chose to grant permission to use it.

III.

The testimony of McDermott shows that his arrangement with plaintiff for a camping ground did not include the right of hauling over plaintiff’s premises.

IV.

McDermott testified that when it came to hauling, he got his orders from Smith. This makes Smith responsible for the trespass but does not relieve McDermott from liability therefore. Equal trespassers are liable in solido.

We think plaintiff entitled to an increase in the amount of the judgment The act of defendant McDermott seems to us to have been a flagrant trespass on plaintiff’s right to say nothing of its being an act in contempt of the injunction sued out by him to which Smith or at least the partnership of which he was a member was a party. The proof shows that plaintiff was not willing for defendants to use a 16-foot right of way through his premises for less than $100.00. They went through, though, without his consent and over his protest, tore down his gates, ruined some and damaged some more of his property and used a roadway averaging very much more than 16 feet wide.

It is decreed that the amount of the judgment of the lower court he amended by increasing the amount of damages allowed to $200.00 with five per cent per annum interest from this date, and as thus amended that it be affirmed.

Reynolds, Judge, being recused, took no part in the decision.


author: REYNOLDS, J.

text:
    No. 1937
    Second Circuit Appeal
    J. B. SMITH v. B. F. TIMON
    (March 30, 1925, Opinion and Decree)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Trespass—Par. 19.
    In an action for trespass on real property attorney’s fees cannot be recovered by plaintiff as an element of damages.
    2. Louisiana Digest — Trespass—Par. 19. 22.
    Where one acting in good faith, and without malice, damaged another by cutting, removing and deadening timber on his land, the injured party cap recover actual damages but cannot recover punitive damages.
    (Civil Code, Art. 2315. Editor’s note.)
    Appeal from Eleventh Judicial District Court of Louisiana, Parish of Natchitoches. Hon. J. W. Jones, Jr., Judge.'
    This is a suit to recover damages for wrongful cutting, removing and deadening timber.
    There was judgment for plaintiff and plaintiff appealed.
    Judgment affirmed.
    Breazeale & Breazeale, of Natchitoches, attorneys for plaintiff, appellant.
    D. C. Scarborough, of Natchitoches, attorney for defendant, appellee.
   REYNOLDS, J.

In this case, plaintiff sues for $952.00, damages that he alleges defendant caused him by cutting, removing and deadening the timber on 17.36 acres of land, and selling tie timber from said land for which the defendant received $56.80; $300.00 for vindictive damages, and. $200.00 for attorney’s fees.

There was judgment in the lower court in favor of plaintiff for $175.00,' and plaintiff appealed.

The evidence convinces us that the defendant, in perfect good faith, went upon the 17.36 acres belonging to plaintiff, believing the same to be his own property, and deadened the timber thereon as the first step towards putting the same in a state of cultivation.

Finding, as we do, that defendant acted in perfect good faith and without malice, he can only be held liable in damages for the actual injury caused plaintiff.

Plaintiff’s demand for $300.00 punitive damages must be denied.

Perrin vs. Planchard, 15 La. Ann. 133.

Vincent vs. M. L. & T. R. & S. Co., 140 La. 1027, 74 South. 541.

Carrell vs. Municipality No. 2, 7 La. Ann. 632.

Plaintiff’s demand for $200.00, attorney’s fees, must be denied.

In an action for trespass on real property attorney’s fees cannot be recovered by plaintiff as an element of damages.

Knott vs. Gough, 10 La. Ann. 562.

Chapuis vs. Waterman, 34 La. Ann. 58.

Plaintiff’s claim for $952.00 damages for cutting, removing and damaging 595 hackberry trees, 289 oak trees, 17 elm trees and 51 locust trees can only be allowed for the amount that the evidence introduced in the case shows them to have been worth.

Defendant and his witnesses, H. T. Timón, P. W. Williams and Horace Merritt, are strong in their opinion that the deadening of the timber on the 17.36 acres of land by defendant was a great benefit to plaintiff and in no sense a detriment or damage to him.

In 7 Orleans App. 31, Lindner vs. Stock, the court says:

“The measure of damages for injury to property by tort depends upon the peculiar circumstances of each case, and where, after restoring or repairing the property injured its value or efficiency is substantially increased beyond what it was previous to the injury, the court in fixing the amount of recovery for the injury will ex equo et bono take into consideration the benefit derived by the party injured through this increase in the value or efficiency of his property.”

Under this authority the evidence of the above named witnesses is relevant and entitled to great weight.

Plaintiff in his evidence does not pretend to give the commercial or real value of the timber cut and removed or deadened. His contention is for what he thinks the timber might be worth to him.

In our opinion the true measure of plaintiff’s damages is to be determined, in. view of defendant’s perfect good faith, at the commercial or real value of the timber cut, removed or deadened.

The Supreme Court said in Yarbrough vs. Nettles, 7 La. Ann. 116:

“The measure of. damages for cutting and carrying away of timber is the value of the timber.”

In Schlater vs. Gay, 28 La. Ann. 340, it is said that:

“The criterion of damages is the value of the timber at the time it was cut.”

In Stoner vs. Texas & Pac. Ry. Co., 45 La. Ann. 115, 11 South. 875, the court says:

“The measure of damages for the destruction of fruit trees is the value of the trees when they were destroyed.”

The judgment rendered by the lower court, in favor of plaintiff for $175.00 was, we think, in accordance with the law and the evidence.

It is therefore ordered, adjudged and decreed that the judgment appealed from be affirmed at plaintiff’s cost.


author: ODOM, J.

text:
    No. 1943
    Second Circuit Appeal
    PRIMUS SMITH ET AL. v. A. B. WILLIAMS
    (March 30, 1925, Opinion and Decree)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Pleading—Par. 114.
    Where allegations are made that at the time of filing of suit in which defendants were represented by a curator ad hoc they were non-residents of the parish where suit was filed and that they had no knowledge of the issuance of the fi. fa. or the advertisement or sale of their property, and that they were not notified of the suit or proceedings by the curator ad hoc, these allegations are sufficient pleading to enable them to prove that less than one year has elapsed since they were notified of the proceedings.
    (Code, of Practice, Art. 613. Editor's note.)
    2. Louisiana Digest — Pleading—Par. 63, •114.
    A plea of prescription filed against a petition asking that a judgment be declared null will not be sustained, even though the petition does not state the exact date the fraud was discovered, if it states' sufficient to enable plaintiff to prove that date on the trial.
    (Code of Practice, Art. 613. Editor's note.)
    3." Louisiana Digest — Pleading—Par. 63; Judgment — Par. 167.
    A plea of res adjudicata will not be sustained where the judgment which is plead is a nullity.
    4. Louisiana Digest — Pleading—Par. 62.
    An exception no cause of action will not be sustained where allegations of peti- , tion show sufficient to prove the exact time of notification, although that time is not stated in the petition.

      I Appeal .from Eleventh. Judicial District Coúrt of Louisiana, Parish of Natchitoches, Hon. J. W. Jones, Jr., Judge.
    -■ This is a suit to annul a judgment.
    There was judgment for defendant and plaintiff appealed.
    Judgment reversed.
    Rusca & Cunningham, of Natchitoches, attorneys for plaintiffs, appellants.
    M. L. Dismuskes, of Natchitoches, attorney. for defendant, appellee.
   ODOM, J.

Plaintiffs brought this suit to annul a judgment rendered in the Eleventh Judicial District Court of Louisiana for the parish of Natchitoches on July 16, 1921. The present suit was filed in the same court on July 27, 1922, and service was made on defendant through a curator ad hoc on the following day — one year and twplve days after the signing of the said judgment.

Plaintiffs’ suit sets up, in substance, that they are defendants in the suit entitled A. B. Wiliams versus A. B. Smith, et al. No. 16600 on the docket of the Eleventh Judicial District Court of Louisiana for the parish of Natchitoches, and that on the 16th day of -July, 1921, a judgment was rendered against them and their father, A. B. Smith, for certain sums of money fully set out in the judgment which is copied in the petition; and they aver that said judgment should be annulled on the following grounds:

1. That said suit was a preceeding in personal action against absent defendants and minor, all of whom were represented by a curator ad hoc unaccompanied by attachment of their property.

2. That the plaintiff in that suit, A. B. Williams, was not the holder or owner of the note sued on; that he was a relative of the defendant and advanced to them, as a loan, the sum of $135.00 and that other relatives advanced enough additional to pay the debt which was made the basis of said suit; and that the note evidencing, said debt was paid.

3. That .a house and lot which was owned by defendant in that suit was turned over to said A. B. Williams, the plaintiff therein, in order that he might collect rents and revenues therefrom sufficient to repay the amount which he had loaned them, and that he did collect more than $270.00 in rent, and in addition thereto took possession of certain personal property, all of which he appropriated to his own use and benefit long .before he filed said suit.

4. That the said proceedings were fraudulent and that the acts done by the said A. B. Williams, plaintiff in that suit, were done in fraud of their rights and for the purpose of defrauding them of their inheritanse.

And they especially allege that they were not notified of the said suit by the curator ad hoc, or any one else and that they were ignorant of the said suit, said judgment and of the writ of fi. fa. and the advertisement and sale of their house and lot and of the personal property.

Defendant tendered an exception of no cause and no right of action on November 4, 1922, and on the same day filed a plea of res adjudicata.

In this court he files a plea of prescription of one year to the action to- annul.

The lower court sustained the exception of no cause of action and no right of action as well as the plea of res adjudicata and dismissed plaintiffs’ suit; from which judgment they appeal.

OPINION.

Article 607 of the Code of Practice provides that a definitive judgment may be annulled in all cases where it appears that it has been obtained through fraud or other ill-practices on the part of the party, in whose favor it was rendered.

We think plaintiffs’ petition sets ’ out a cause of action. If the plaintiff in the suit of Williams versus Smith, in which judgment the judgment against the defendants, plaintiffs in this suit, did what he is alleged to have done in order to obtain that judgment, it is unthinkable that he should now be permitted to profit thereby!

It is alleged that he is a kinsman of the plaintiffs and that when their ancestor became embarrassed financially he with other relatives contributed money as a loan to pay the note which he later claimed to own and which was made the basis of the suit; and not only that, they allege that he took over the property which they own and collected rents far in excess of the sum which he had loaned them to pay the note, and that he took over a lot of personal property all of which he appropriated to his own use and benefit without accounting to them therefor. In other words, that the debt alleged to be the basis of the suit had been paid. All of which, petitioners allege, was done in fraud and with intent to defraud them of their enheritance. If proof of such conduct on the part of the plaintiff in that suit had been made on the trial of the case, it is needless to say that his demand would have been rejected, but the court was not informed of those conditions which according to the allegations of plaintiffs’ petition existed. The court’s attention is now called to them by the plaintiffs in an application to annul the judgment, and unless the plaintiffs are cut off by some law or equitable rule of property their complaint should and will of course be heard.

Our brother of the District Court did not commit his reasons for judgment to writing and we are not informed as to his reasons for sustaining the exception of no cause of action; but counsel for defendant in his brief says:

“In actions for nullity of judgment on ground of fraud, plaintiff must negative prescription of one year as is provided by Article, 613 of the Code of Practice.”
“He must allege when he discovered the fraud, what it was, how it was .made, and why it was not made sooner.”

And he cites in support of this assertion:

Succession of Dauphin, 112 La. 137-143, 36 South. 287.

Article 613 of the Code of Practice provides that when a judgment has been obtained through fraud on the part of the plaintiff the action for annulling such judgment must be brought within one year after the fraud has been discovered.

The suit to annul in this case was filed one year and eleven days after the signing of the judgment sought to be annulled; and if it be assumed that the plaintiffs had knowledge' thereof on the day the judgment was rendered, their action to annul is barred if they are all residents of this state.

It is defendant’s contention, as we understand it, and we think probably the Judge of the lower court must have been of that •view, that the pleader should have set forth the date on which knowledge of the judgment came to them and why the suit was not filed sooner; and counsel cites succession of Dauphin, supra, where the court siad:

“The right of action to annul a judgment for fraud is not unconditional or perpetual; it is subordinated to the condition that the action ‘must be brought within the year after the fraud has been discovered. Code Practice Art. 613. And the burden of proof is on the plaintiffs in nullity to show when the knowledge of the fraud was acquired. Expressly so held in Farrar vs. Peyroux, 7 Rob. 92; Wheat vs. Union Bank, 7 Rob.. 94. And such information as ought to put the plaintiff on inquiry will suffice to start the course of the prescription.”

On this subject of the duty of the plaintiff in nullity to allege and prove the time and circumstances of the discovery of the fraud complained of, the following somewhat extended excerpt from the decision of the Supreme Court of the United States in the case of Wood vs. Carpenter, 101 U. S., 135; 25 L. Ed. 807, furnishes a full and satisfactory statement of the law. And it is of safe application in this state, since, in administering relief from fraud, our courts exercise the same jurisdiction as ordinary courts of equity, and, in the absence of special statutory regulations, ought to be guided by the same principles; and we have no special statutory regulations on the subject, the Code of Practice contenting itself with giving the action and limiting it to one year from the discovery of the fraud. And our court has made use of the following quotation taken from page 140 of the decision of the United States Supreme Court cited supra.

“In this class of cases the plaintiff is held to stringent rules of pleading and evidence, and especially must there ‘be distinct averments as to the time when the fraud, mistake, concealment, or misrepresentation was discovered, and what the discovery is, so that the court may clearly see whether, by ordinary diligence, the discovery might not have been before made’.”

Counsel for defendant relies upon this decision as authority for the proposition which he makes that it is necessary for the pleader under the rules of practice and pleading prevailing in this state to allege the time of the discovery of the fraud. In other words, to' negative prescription.

But a careful reading of this case shows that it is fatal to his contention, and that the point which is stressed by the court is not that the plaintiff must allege the time when he became acquainted with the fact of the judgment and the reason why the suit was not brought sooner but that such facts must be proven on the trial of the case, the burden of which proof rests upon the plaintiff. For on page 142 our court says:

“Thus it is seen that the burden of proof is on the plaintiffs in nullity to show at what date the discovery of the fraud was made; and it is seen also that such information as ought to put the plaintiff on inquiry is sufficient to start the running of the prescripition; and it is seen further that in this class of cases the plaintiff is held to ‘stringent rules of pleading and evidence’.”

This stringency as to pleading does not obtain under .our system of practice. Under our loose system of pleading, the mere negativing in general terms of the presumption which would otherwise arise from a comparision of dates — of the date of the judgment sought to be annulled and of the date of the filing of the suit in nullity — would be sufficient. But there is no reason why the same stringency as to evidence should not obtain in our courts as in ordinary courts of equity; or in the courts of law, which, like ours, administer equitable relief against fraud; and therefore, when it comes to the evidence, to borrow the language of the court in this case of Wood vs. Carpenter, “a general allegation of ignorance at one time and of knowledge at another is of no effect. If the plaintiff made any particular discovery, it should be stated when it was made, what it was, how it was made, and why it was not made sooner”.

A careful reading of this decision will disclose that it is not authority for holding that it is incumbent upon the plaintiff to negative prescription, but it is unquestionably authority for holding that the burden is upon the plaintiff in order to make out his case to establish the facts that knowledge of the fraud' was made known to him within a year previous to the bringing of the action.

The petition in this case does not set forth that the plaintiffs were made acquainted with the facts which they use as a basis for their suit to set aside this judgment within a year previous to the filing of the suit, but it is perfectly evident from a reading of the petition that they could not have known of the suit and the rendition of the judgment within the year. It is alleged, for instance, that at the time of the filing of the suit and of the rendition of the judgment one of the present plaintiffs was a minor in the city of New Orleans; that two of them were residents of the state of Louisiana in a parish other than Natchitoches and that they were at that time temporarily absent from the state ' of Louisiana; and that one of the plaintiffs was an absentee in the state of Oklahoma and that another was an absentee living in the state of Virginia. And it is further alleged that they had no knowledge of the issuance of the fi. fa. or the advertisement or sale of the property which they claim to own; and they further allege that the curator ad hoc appointed to represent them and on whom service was made did not notify them of any of the proceedings.

It would therefore seem that the idea that these plaintiffs could have obtained knowledge of the rendition of this judgment within eleven days after it was signed is negatived in the strongest manner possible. In other words, while it is true that there is no direct allegation that the plaintiffs did not have knowledge of the facts which they now set up in their petition within a year from the rendition of the judgment, yet a reading of the petition necessarily leads to the conclusion that they could not have had such knowledge.

"We. do not think it necessary under the circumstances of this case, taking the pleadings as a whole, to negative prescription.

“It is a general principle that a pleading need not and should not by its averments anticipate a defence thereto and negative or avoid it.”

31 Cyc. 109.

See, also, Lafourche Transportation Co. vs. Pugh, 52 La. Ann. 1517, 27 South. 958.

Mathews vs. Pascal, 13 La. 47; West vs. McConnell, 5 La. 424.

The defendant also tendered a plea of res acljudicata, which was sustained by the lower court.

According to the view which we take, this plea should not have been sustained, because of the judgment which is plead as res adjudicata is a nullity, and it may be, certainly it cannot be made the basis of this plea. We think that this plea should be referred to the merits on the trial of the case.

The defendant, as stated, had interposed a plea of prescription of one year in this court and in support of the same he sets out that the facts which are made the basis of plaintiffs’ suit to annul the judgment were known to them long prior to the institution of the original suit by Williams against them. There is no way that the court can know that the pleader’s assertion to .that effect is true. Under our view, any plea of prescription which defendant desires to interpose in' this case should be filed in the lower court and referred to the merits so that all the facts in connection with the matter may be inquired into.

Under these views it is unnecessary for us to pass upon the question as to whether judgment could be obtained against the defendants by substituted service as in this case.

For the reasons assigned, it is therefore ordered, adjudged and decreed -that the judgment appealed from be avoided, and reversed; that the exception of nó cause of action be overruled; that the plea of res adjudicata be referred to the merits in the District Court; that the plea of' preicription filed- in -this-coiirt be overruled; and . that;this,-case be reinstated on the docket .of,. the Tenth Judicial District Court of Louisiana, formerly the Eleventh Judicial .District Court, for the parish of Natchitoches to be there proceeded with according to law.