text:
    No. 1,213.
    Tutorship of the Minor Kate L. Jones, Minor Heir of L. C. Jones.
    In a contest involving tho correctness of an account of tutorship the test of appellate jurisdiction is m the amount of the fund to be distributed, ancl not in the amount of the matter in dispute. '
    I'ruits banging by the root on the separate estate of the husband, at tlie dissolution of tlie marriage by his death, fall in the community, and are to bo equally divided between his wife and his heirs. C. C. 2407.
    The shares accruing to the children are subject to the imperfect usufruct in favor of tho mother, who must account for the same at the expiration of the usufruct.
    APPEAL from tlie Third District Court, Parish of Lincoln. MeOlendon, Special J.

      F. W. Price for Opponent, and Appellant:
    1. The fruits hanging by the roots on the lands belonging separately to either the husband or the wife at the time of the dissolution of the marriage, are equally divided between tlie husband and the wife or their heirs. It is the same with respect to the young of cattle yet in gestation, etc. Civil Code, Art. 2407; 9 Ann. 347 and 398; 12 Ann. 549; 16 Ann. 107,170.
    2. All kinds of fruits, natural, cultivated or civil, produced during the existence of the usufruct, by the things subject to it, belong to the usufructuary. C. C. Art. 544.
    3. The father is, during the marriage, administrator of the estate of his minor children. lie is accountable both for the property and revenues of the estates, the use of which he ie not entitled to by law, and for the property only of the estate, tho usufruct of which ths law gives him, etc., C. C. Arts. 221, 223, 540; 12 H. 172.
    4. In all cases, when the predeceased husband or wife shall have left issue of the marriage with the survivor, and shall not have disposed by last will and testament of his or her share in the community property, the survivor shall hold a usufruct during his or her natural life, so much of the share of the deceased in such community property as may be inherited by such issue. This usufruct shall cease, however, whonever the survivor shall enter into a second marriage. C. C. Art. 916.
    5. The usufructuary is the party who eujoys the right of the use of property, tho ownership of which is vested in another.
    6. -This usufruct is an onerous charge or burden upon the property of another, and must be construed stricti juris. There is no law that gives to the surviving si>ouse the usufruct of the separate property belonging to tho estate of the deceased spouse, lieired by the issue of tho marriage, hence the separate property must be accounted for, together with tho revenues.

      JBJ. M. Graham, contra.

    1. The Supreme Court has appellate jurisdiction, only when the matter in dispute, or the fund to be distributed, exceeds two thousand dollars. See Constitution of 1879, Art. 81, and amendment thereto.

      2. Usufruct is the right of enjoying a thing, the property of which is vested in another. C. C. 533.
    3. An imperfect usufruct is of things which would be useless to the usufructary, if not permitted to use or consume them; such as money, crops, etc. C. C. 534.
    4. Crops hanging by the roots, at the time when the usufruct is opened, belong to the.usufructuary. C. C. 546.
    5. The surviving spouse is entitled to the usufruct, both of the community and the separate property. Revised Statutes, Sec. 1711; C. C. 223 to 225 inclusive.
   Motion to Dismiss.

The opinion of the court was delivered by

Poché, J.

This litigation involves a discussion of the relative rights of the surviving wife and child of L. C. Jones in his succession.

Tlie provisional account of tutorship of the minor was opposed by the undertutor who urged numerous objections thereto, with a view to an increase of the account accruing to the minor.

By means of a supplemental account the tutrix corrected tlie greater part of the errors charged by the undertutor, and this appeal is taken from the judgment homologating the account as thus amended. It brings up but two points for discussion: the .contested right of the surviving widow to the proceeds of a crop hanging by the roots, on lands belonging to the community, and to the separate estate of tlie husband, at the time of his death, and her right to a credit for expenses incurred in the maintenance and education of the minor.

The motion to dismiss is grounded on the contention that after the filing of the supplemental account by the tutrix, making corrections which were accepted by the opponent by special written agreement of his counsel, the only matters remaining in contest or dispute for judicial investigation, did not reach an amount equal to the lower limit of our jurisdiction. But a reference to the pleadings shows that in this case the test of jurisdiction is not in the matter in dispute, but must be regulated by the amount of the fund to be distributed.

The account presented by the trutrix contains a statement of the proceeds of the sale of community and of separate property, of other succession and community assets, and of the debts paid by her, and it is, therefore, properly an account of administration of the succession and of the community, which she administered in her capacity of natural tutrix. Now as the amount of the fund which she thereby proposes to distribute exceeds the sum of two thousand dollars, this court is vested with jurisdiction' irrespective of tlie pecuniary amount of the matter really in dispute, after tlie amendment of tlie account of tlie tutrix. The motion to dismiss is therefore overruled.

On the Merits.

It appears that at the death of Jones, in August, 1884, he had in cultivation a crop of cotton and of corn lying partly on lands belonging to the community and partly on lands belonging to himself separately.

It further appears that after filing her account, which- was in December, 1887, and before the latter part of September, 1888, the tutrix contracted a second marriage.

The judgment appealed from enforced the claim of the widow and tutrix to the ownership as -usufructuary of the crops hanging by the root both on the separate and community lands.

As to the crops raised on the community lands the judgment is manifestly correct and unassailable, but it is as clearly erroneous in its disposition of the crops made on the separate lands of the deceased.

The legislation which regulates the usufruct of the surviving spouse of the shares accruing to his or her issue of the marriage, has no application to the separate property of either spouse after the dissolution of the marriage, either by the death of one of the spouses or otherwise, except as to the fruits hanging by the root as hereinafter stated. No more have the provisions of Articles 221 and 223 of our code, which regulate the rights of the parents touching the property of their children, during the marriage, have any bearing on, or reference to, the subject now under discussion.

The rights of the parties in this case must be determined by the provisions of Article 2407 of the Civil Code, which reads:

. The fruits hanging by the roots on the lanas belonging separately to either the husband or the wife, at the time of the dissolution of the marriage, are equally divided between the husband and the wife of their heirs.” * * *

Under that law, the proceeds of the crop hanging by the root in August, 1884, on the separate lands of L. C. Jones, after deducting-necessary expenses, were to be equally divided between the widow and her child.

According to the interpretation given to the article in our jurisprudence, the fruits of that crop fell into the community, and the share accruing to the minor went into the hands of the surviving partner in community, but as sbe did not have tbe usufruct of tbe lands which produced the crop, the half of the proceeds accruing to the minor could not and did not become the absolute and unqualified property of the mother. Wilcox vs. Henderson, 9 Ann. 347; Harrel vs. Harrel, 12 Ann. 549; Chapman vs. Woodward, 16 Ann. 167.

Now as representing the share accruing to the minor from the.community, the funds thus received by the tutrix became subject to her usufruct. C. C. 916.

As the funds were useless to the usufructuary without expending the same, the usufruct was of the imperfect kind, and the obligation of the usufructuary was to accountd'or them at the expiration of the usufruct. C. C. 534, 536, 549; Succession of Hayes, 33 Ann. 1141.

It therefore follows that at the date of the second marriage, the usufruct of those funds in the widow terminated, and from that date she has become the debtor of her minor child for the half of the nett proceeds of the crops aforesaid which accrued to said minor, with legal interest. Cochran vs. Violet, 38 Ann. 525.

She must therefore be held liable to account for the same.

The credit of $750 allowed to the tutrix by the district judge for the maintenance and education of the minor is predicated on the proceedings of a family meeting which empowered the tutrix to spend $375 annually for the purposes herein stated. But there was no proof that the amount thus allowed was actually disbursed by the tutrix, hence it was error to allow the credit in the absence of such proof.

It is, therefore, ordered that the judgment appealed from be amended as follows:

By holding the widow liable to account to the minor for one-half of the nett proceeds of the crop raised in 1884 on the separate lands of the deceased, with legal interest from the date of her second marriage. By rejecting the credit of $750 allowed to the tutrix for the maintenance and education of the minor, with the reservation of her right to recover actual disbursements made by her on that score.

And it is now ordered, adjudged and decreed that said judgment, as thus amended, be affirmed at appellee’s costs on appeal.


source: Caselaw Access Project

author: Fenner, J.

license: Public Domain

text:
    No. 1217.
    John Caldwell vs. Vicksburg, Shreveport and Pacific Railroad Company.
    1. In building a bridge at tlio crossing of its track over a public street, a railroad company is bound to construct it of such material and in such manner and to maintain it in such condition as to make and keep it sale for public travel; and in case of fault or lack of care in the performance of such duties, it is responsible for injury occasioned thereby to a traveler.
    2. While rarely finding occasion to increase verdicts of juries in this class of cases, yet, having jurisdiction and being bound to pass on the facts as well as the law, we must do justice when the verdict of the jury has oloarly failed to do it.
    APPEAL from tlie Fifth District Court, Parish of Ouachita. Bichardson, J.

      G. J. & J. S. Boatner for Plaintiff and Appellant:
    Whore the injury is partly due to the negligence of the injured and partly by failure of the company to provide proper and suitable apparatus, the negligence of the injured party will not exonerate the company from the consequences of its own default. Grand Trunk E. It. Co. vs. Cummings, 100 D. S. 700; Ellis vs. E. E. Co., 95 E. Y. 546; Townes vs. E. E. Co., 37 Ann. 632.
    Tho Supremo Court has the x>ower, and it is its duty to disregard the verdict of a jury where it is palpably erroneous in allowing only nominal damages, and to give judgment for the amount it may think will meet the ends of jnstiee. Sedgwick on Damages, 2d Yol. 661,; 5th Bing. E. C. 424 ; 22d Conn. 74; 19th Bast. 2sr. Y. 461; 18th L. 110, and cases there cited; 26th Ann. 313, 33; 33d Ann. 397, 29, 223 ; 34th Ann. 1107.

      Stubbs Bussell for Defendant and Appellee.
   Tho opinion of the Court was delivered by

Fenner, J.

In December, 1886, as the plaintiff was passing on horseback over a bridge constructed by tho defendant company at the crossing of its railroad track over a public street of the city of Shreveport, the foot of his horse broke through one of the iilanks of the bridge causing the auimal to fall, inflicting injuries on his rider, for which this suit for $10,000 damages is prosecuted.

The suit was first brought in Shreveport and resulted in a verdict aud judgment for plaintiff for $3000; hut on appeal to this court, an exception to the jurisdiction of the Shreveport court was sustained,-and, on that ground, the judgment was reversed. 40 Ann. 753.

Thereafter the present suit was brought resulting in a verdict aud judgment in favor of plaintiff for $1000, from which both parties appeal.

It is admitted that the defendant was bound to construct, and did construct the bridge, .and was bound to build it of such material and in manner, and to maintain it in such condition as to make and keep it safe for public travel; and that for any fault or lack of care in the performance of these duties, it is responsible. •

It is also admitted, in the language of the brief of defendant’s counsel, that, in crossing this bridge, plaintiff’s “horse with one foot broke through one of the planks covering the ditch, and fell with him, spraining his ankle and inflicting other injuries.”

The preponderance of the evidence is very decided that the bridge was constructed of inferior lumber, of insufficient thickness, and in an improper 'manner, and that the attention of the defendant had been called to these defects, and that they had been only partially remedied.

The fact that the weight of a single horse and rider was sufficient to break through the bridge is conclusive evidence of its defectiveness, and taken with the proof that the plank was of inferior quality and too thin for the purpose, and that defendant had been notified of these defects, clearly establishes the fault of defendant.

The evidence that tire defendant’s horse was a stumbler is not only contradicted, but in absence of the slightest proof that he stumbled on this occasion, and in presence of positive proof that his fall was occasioned by the breaking of his foot through the bridge, it seems to us totally irrelevant.

The evidence clearly establishes the fault of defendant; two juries have so found; and wo are bound to approve their finding in this respect.

Then the only remaining question is as to the quantum of damages.

The testimony shows that plaintiff was an enterprising business man, engaged in multifarious business, such as the keeping of a livery-stable, the management of three plantations and other occasional enterprises, sxxch as railroad contractor, etc.; and that he gave his personal supervision to his affairs, loading a very active and busy life, passing almost his entire time, as he says, either walking or on horseback in the prosocxition of his business.

The horse fell upoxi him inflicting severe injuries, spraining both his ankle and his wrist and contusing his shoulders and chest. lie was confined to his bed for several days, was then compelled to walk on crutches for a long time, and has over sixice been compelled to xxse a stick in walking.

The xixedical evidence is that such a sprain as his ankle received is more serious thaxi a broken bone and that the probability is he will never recover from it. He is not able to staxid continuously or to walk much; cannot mount Ms horse without using a chair or elevation of some kind, and can only ride short distances. The lack of exorcise and change in his former active habits have occasioned great increase of flesh, to the extent of sixty or seventy pounds since the accident.

Owing to his own disability, he has been compelled to employ a foreman in his stable at a considerable salary, to perform duties which he was formerly able to perform himself.

He has not been a sound man since his accident. His injured wrist has not recovered its full strength; he complains of internal pains resulting from the bodily contusion; his ankle pains him when excessively used and in sudden changes of weather.

He has been under frequent medical treatment ever since Ms injury, and, though more than two years have elapsed between the date of the injury and the present trial, the evil effects of the injury still continue.

Some attempt is made to show that the permanent effect of the injury is attributable to his imprudence in using his ankle too soon in disregard of his physician’s advice, but this is not established by the testimony. He did go out against the advice of his physician, but lie shows that his business and general health required it; his exertion was slight and it does not appear that it resulted in actual injury.

We rarely find occasion to increase the verdict of a jury in this class of cases; yet, as we recently said: “With all our indisposition to increase verdicts for damages rendered by juries, who rarely underestimate them, yet it is a matter within our jurisdiction on which wo are bound to pass, and we must do justice when clearly satisfied that the jury has failed to do it.” Sullivan vs. R. R. Co., 39 Ann. 803. Citing numerous other cases.

We cannot avoid the conclusion that the present verdict does not do justice. Considering the expenses-and trouble incurred by the defendant for medical attendance and in the necessary prosecution of his legal right, the sum allowed would leave him no compensation for his suffering and injury at all commensurate with their serious character.

We think we exorcise all duo caution and give full weight to every consideration in favor of defendant, in increasing the verdict to two thousand dollars.

It is, therefore, adjudged and decreed that the judgment appealed from be amended by increasing the amount thereof from one thousand, to two thousand dollars, and that as thus amended the same be affirmed, defendant to pay costs of appeal.

Judgment amended by increasing- amount from $1000 to $2000.


author: Watkins, J. Watkins, J.

text:
    No. 1,151.
    Heirs of Burney vs. John T. Ludeling et al.
    1. That is not a consent decree which is rendered by the court on its own motion. Chaffe vs. Hayuer, 31 Aim. 594; Wooten vs. LeBlanc, 32 Ann. 692.
    2. It is not a good objection for a defendant to urge against a suit by an heir for the recovery of an interest in the property thereof that his ancestor’s succession has not been fully administered.
    3. Nor is it a good objection for him to urge that all the heirs have not been joined.
    4. In such a suit, previous tender is not a condition precedent to its institution. All that equity requires is that defendant be permitted to sot up his demands in reconvention.
    5. All of theparties to a sale are necessary parties to a suit to annul it.
    APPEAL from tlie Fifth District Court, Parish of Ouachita. Richardson, J.

      O. J. é J. 8. Boatner ancl Stone & Murphy for Plaintiffs and Appellants.

      Budding cD Stillman and Stubbs & Russell for Defendants and Appellees.
   I.

On Motion to Dismiss.

The opinion of the Court was delivered by

Watkins, J.

The defendants request that the plaintiffs’ appeal be dismissed on the ground that the judgment appealed from was rendered at the request and with the consent of the plaintiffs,” and as justifying it, they cite us to an entry that appears in the minutes of the lower court.

It is as follows, viz : “On motion of plaintiffs' counsel the judgment heretofore rendered, dismissing this suit, is set aside, and the court now renders a judgment dismissing the suit. See decree.’'

The decree referred to is in the following form, viz.: In this cause it is ordered that the judgment rendered sustaining the exceptions filed by defendants, with leave to amend, is set aside, and it is now ordered, adjudged and decreed that said exceptions be sustained, and plaintiffs’ suit dismissed at their cost.”

This judgment bears the same date as that of the entry on the minutes quoted. At the same time the appeal was granted in open court.

These facts, taken chronologically, clearly indicate that, while it was upon the motion of plaintiffs’ counsel that the judgment first rendered was set aside, it was upon the order of the court that the suit was dismissed. Wootan vs. Leblanc, 32 Ann. 692; Chaffe vs. Hayner, 31 Ann. 594.

The motion is denied.

II.

On tiie Merits

On tiie 18th of December, 1885, this suit whs fded. The recitals of the petition necessary to he noticed at this stage of the proceedings are the following, viz.:

Anna and Missouri Burney, assisted l>y their husbands, show that they are heirs at law of R. W. Burney and Fredonia Burney, who died in the parish of Madison in 1866, and who left, in addition to themselves, as their surviving heirs, Tilly M., Matilda, Amelia, and Mary Burney, tin last of whom died in 3878 without issue, Amelia, having left, minor children at her death, there being six heirs in all.

Their mother was qualified and confirmed as natural tutrix for her minor children, and E. B. Towne was qualified as under-tutor; and in that capacity the surviving widow undertook the administration of the succession of her deceased husband, the whole of the property being community, and which consisted of lands embraced in Section 18, T. 14, R. 15, and Sections 37, 18, 27 and 28 in T. 15, R. 14, = 2,200 acres, and 120 acres in Section 32, same township and range»,. Also fractional sections 31, 14 and 15, T. 16, R. 15 — 1,092.49 acres, the whole of which lands being worth, at the date of their father’s death, the sum of $45,-242 50, for the entire interest.

Soon after the death of their mother, E. B. Towne, under-tutor, provoked the convocation of a family meeting to recommend the appointment of another tutor; hut that said meeting, when assembled, advised that no tutor be appointed, but suggested the appointment of an administrator, in stead; and that he be authorized to accept a proposition, which had been made by John J. Garrard, to receive in payment of a claim he preferred against their father’s estate, a sufficient part of the plantation known as the Burney (old) Home place, at a fair valuation, to liquidate said account.

E. B. Towne became the adjudicate©, at sheriff’s sale, made on the 6th of October, 1866, under a writ of seizure and sale, in certain executory proceedings entitled Frank O. Woodman vs. James Tickel, executor of O. O. Woodman, of Sections 11 and 15, being a part of the property above described, and situated nearly opposite the city of Vicksburg, Miss., at the eastern terminus of what was then known as the North Louisiana and Texas railway, for the ostensible‘price of $1,000.

E. B. Towne qualified as administrator on tlic 19tliof December, 1866, and furnished bond, predicated upon the inventory Mrs. Burney had previously taken.

On the 20th of February, 1867, E. B. Towne, as administrator of the estate of R. W. Burney, transferred to James J. Garrard, by an act under private signature, an undivided half interest in Sections 11 and 15, T. 16, R. 15, equal to about 364 as., for a price of about $50 per acre, and aggregating $18,200, consisting in “ a giving in payment to the extent of any indebtedness due said Garrard, either individually, or as the member of any firm, by R. W. Burney, or his estate, and the balance of said purchase price at said rate, to be paid to said Towne within twelve months from that date.”

On the 25th of November, 1868, J. J. Garrard conveyed his interest to Mrs. L. V. S. Ames.

In the year 1868, E. B. Towne caused a survey to be made of Sections 11, 14 and 15, T. 16, R. 15, and the same to be laid off into town lots, with streets and squares.

On the 1st of May, 1869, in consideration of $1,000 and the promise to establish a railway terminus thereon, E. B. Towne conveyed to John T. Ludeling his one-lndf interest in the railroad square; the town lots designated by odd numbers ; the right of way through Section 15 ; the undivided portion of Section 15 not laid off into town lots and squares, and, referring to same as being the land acquired by him at sheriff’s sale under the executory proceedings named, and said sale by Towne to. Ludeling was made in pursuance of an agreement previously entered into between them and Mrs. L. Y. S. Ames.

On the 13th of May, 1869, E. B. Towne, in his capacity of administrator of the estate of It. W. Burney, presented a petition to the probate court, representing that the succession was embarrassed with debt, which it was impossible to pay without a sale of real estate. That J. J. Garrqrd & Co., claiming to be large, creditors of the estate, for a sum of over $20,000, had submitted a proposition to the representative of the estate, offering to take land from the estate in payment, at a fair price.

“That, a family meeting called to consult upon the interest of the ■minor children of said R. W. Burney, advised the acceptance of the proposition; and the proceedings of said family meeting had been duly homologated on the 30th of November, 1866.” Petitioner suggested and recommended the sale of Sections 11, 14 and 15 in T. 16, R. 15, to pay said debt., and prayed for and obtained an order for the sale accordingly, same having been signed by the district judge; said E. B. Towne, acting ¿is the q>arisli judge, at the time, having recused himself; and, under tills order, a writ of sale issued under which said property was advertised and sold on the 24th of June, 1869, and adjudicated to John T. Ludeling for the ostensible sum of $18,054 60, and aproees verdal of sale was executed and recorded.

“ In so far as it was alleged jn said petition that there was necessity for the sale of property to pay debts, and that the proceeding was sanctioned by a family meeting, same was false and fraudulent; because the object of same was to cover patent and radical nullities existing in the titles, by which the said Ludeling and others hold, and claimed to own the said property; and in order to carry out a previous agreement in reference to the acquisition of same, and the division thereof; and that, if same had been sold upon its merits, it would have realized four times in actual cash the amounts pretended to have been paid, and said proceedings and sale Were a fraud upon the law, and the prostitution of the forms of law, to carry out an illegal agreement,” etc.

On the 9th of November, 1870, John T, Ludeling caused to be filed in the recorder’s office in Madison parish a map, showing the-part of the land that had been laid off in lots and squares, and in -which he called same the town of Delta, and designated the interests therein of himself and associates, as well as the interest of E. B. Towne and Mrs. L. V. S. Ames.

In an act executed by John T. Ludeling before the recorder of Madison parish, he declared that the following named persons are his associates, and interested with himself in said prbperties, viz: Wm. E. Gordon, Prank P. Stubbs, John W. Klein, George C. Waddell, John Eay, W. J. Q. Baker, Oaks Ames, Joseph P. McGuire and Henry M. Bry, who joined said Ludeling in said act, and in which act was declared the respective shares, or interests of each in the whole of said property, and which are in the possession of said persons respectively — a tabular statement of which is annexed.

It is charged that “ said pretended succession sale was made for the purpose of consummating the previously formed agreement, whereby the aforesaid parties divided petitioner’s property' among themselves,” E. B. Towne claiming one-fourth, Mrs. L. V. S. Ames one-fourth, and Ludeling and his associates one-half, “without any consideration whatever.”

Said parties have sold portions of said property and received therefor $49,822 72, besides large donations therefrom to the N. L. & T. E. E. Co., worth $10,000 in addition.

“Now your petitioners show that all the aforesaid transactions were the attempted consummation of a fraudulent scheme, devised by said E. B. Towne, the said J. J. Garrard and his assigns, and the said John T. Ludeling and his associates * * to acquire the aforesaid valuable property of the estate of R. W. Bruney and Mrs. Eredonia Bruney, without paying any price therefor.”

Under suitable allegations each and every one of the various sales, alienations and judicial proceedings are charged to have been illegal, without price, or consideration, and absolutely null, and the parties bound in solido as co-tresspassers “for the restitution of the proceeds thus received, by each one of them, with five per cent per annum interest from the date of the respective sales and donations, as shown by the abstract of sales filed herewith.”

E. P. Stubbs, John T. Ludeling, Mrs. Kate E. Gordon, administratrix of the estate of W. R. Gordon, deceased, and F. P. Stubbs, administrator of the succession of Henry M. Bry, deceased, were alone cited by the two plaintiffs who claim two undivided fifths of the sums of money received, and of the lands remaining unsold, and their prayer conforms thereto.

Without pleading to the merits, the defendants, Katie E. Whitted, née Gordon, and John T. Ludeling, filed exceptions in limine, in substance as follows, viz:

1. That all the necessary parties have not been cited, viz: The parties to the various sales, and proceedings attacked, enumerating them; and that they are indispensable parties to the suit.

2. That the demands of plaintiffs’ petition are inconsistent — they sue to have the several sales and acts declared null and void, and also for a part of the price thereof; and they require plaintiffs to elect which demand they will imrsue.

3. That the petition shows that there ivas an open and incompleted administration of the estate of R. W. Burnoy, and that there were debts against the said succession and it is unaccepted by them.

That no tender or offer to return the price of sales has been made.

They pray that suit be dismissed.

F. P. Stubbs, individually, and as administrator of the succession of of H. M. Bry, likewise excepts on the following grounds:

1. That plaintiffs are without any right or authority to sue or stand in judgment, they claiming as part of the heirs of R. W. Burney, without alleging that the succession is closed, or that they have unconditionally accepted his succession; and there has been no settlement, and plaintiffs’ interest is not yet ascertainable, and their action is premature.

2. That as a condition precedent to their right to bring this suit a tender of the amount of $18,000, paid by Ludeling at succession sale should have been made.

Third and fourth exceptions are quite similar to exceptions I and 2, urged by the other defendants.

IT.

Por the purposes of this trial, these exceptions may be considered together.

They must be considered each with reference to the statement of facts we have taken pains to collate from the elaborate petition of the plaintiffs.

1. Of the objection that the two plaintiffs cannot sue for an undivided tivo-fifths interest in the property, without citing their co-heirs. This proposition is not supported by authority. 33 Ann. 586, Glasscock vs. Clark; 34 Ann., Carroll vs. Scherer; 5 La. 430; 40 S. 472; 3 La. 134; 2 La. 300.

2. The fact of the succession of the plaintiff's father and mother not having been fully administered, and the shares of the heirs ascertained and liquidated, is no ground of exception. This is not an open question. 32 Ann. 849, Tugwell vs. Tugwell; 33 Ann. 585, Glasscock vs Clark.

This suit is itself an unconditional acceptance thereof.

3. In quite a similar case this court said of a like exception ¡is to the want of a tender as a condition precedent to the institution of suit. “In a suit by the heirs for the recovery of property thus bought by the administrator, the tender of the price of sale, is not necessary as a condition precedent.

“ All that equity requires in such cases is to permit the administrator to claim the amount in voconvolition.” 33 Ann. 744, Heirs of Wood vs. Nicholls.

This case presents many quite similar, if not exactly like features, and we regard that doctrine applicable here.

It would not be equitable to allow plaintiffs to recover the property of their ancestors without making restitution of their proportionate share of whatever sum of money may have been actually realized from its sale and applied to the payment of the debts of the deceased. 30 Ann. 891, Sharkey vs. Bankston; 21 Ann. 385, Connell vs. Well; 23 Ann. 354-540.

On the other grounds of exception we agree with the district judge. The parties to the sales sought to be annulled should have been made parties to the suit in order that the relief demanded be available. 10 R. 387, Hyde vs. Craddock; 32 Ann. 106, Stockmeyer vs. Winder; 32 Ann. 92, Fickel vs. Guinault; 27 Ann. 365, Succession of Ricard.

We are likewise of the opinion that the defendants had the light to require the plaintiffs to elect which of their demands they would pursue— tlmt for the recovery of the property, or the price. The judgment appealed from is therefore annulled, avoided and reversed, and it is now ordered that this cause be remanded, and reinstated for further proceedings in conformity herewith, and that the defendants pay cost of appeal.

On Application eor Rehearing.

Watkins, J.

The plaintiffs, as two of the five heirs of R. W. Burney, deceased, claim two undivided fifths of certain lands now in possession of the defendants, and two-fifths of the proceeds of others, which they have already disposed of.

Of 3500 acres, alleged to belong to the succession of their ancestor, only about 1000 are involved in this suit, and they are situated in fractional sections eleven, fourteen and fifteen, of township 16, range 15.

Under certain executory proceedings against the succession of O. O. "Woodman, one. E. B. Towne became the purchaser of fractional sections eleven and fifteen. He subsequently conveyed to one J. J. Garrard, one-half interest, and he conveyed it to Mrs. L. V. 8. Ames. After-wards, Towne conveyed to John T. Ludeling his remaining one-half interest — the whole of the three fractional lots having been, in the meanwhile, divided into town lots and squares.

Acting as the administrator of the succession of Barney, Towne, subsequently caused the' whole of this property to be advertised and sold, and at the sale it was adjudicated .to J. T. Ludeling.

It thus appears, that there is in J. T. Ludeling an outstanding title to one-half of fractional sections eleven and fifteen, derived from E. B. Towne; and an outstanding title to the other one-half in Mrs. Ames, derived from Towne — Towne haying derived the whole from O. O. Woodman’s succession.

By certain succession proceedings, subsequent in date to all the sales just enumerated, Ludeling acquired a title from Burney’s estate, to the three fractional sections named.

Neither Towne, Garrard, nor Mrs. Ames make any pretensions to section fourteen under the conveyances named.

Ludeling, nor his associates, were parties to the sheriff’s sale to Towne, nor to Towne’s sale to Garrard, nor to Garrard’s sale to Aimes. Neither of the latter were parties to the probate sale to Ludeling, eo nomine.

Tu this suit, neither Garrard, Towne personally, or as administrator, .Mrs. Amos,' nor many of Ludeling’s associates, are cited, or made parties to this suit; and all those parties are parties to the titles enumerated.

The xdaintiffs charge that “ saidx>retended succession sale was made for the purpose of consummating a previously formed agreement, whereby the aforesaid parties divided petitioner’s property among themselves— E. B. Towne claiming one-fourtli, Mrs. L. Y. S. Ames one-fourth, and Ludeling and associates one-half, without any consideration whatever.”

They further allege that “ all of the aforesaid transactions were the attempted consummation of a fraudulent scheme, devised by said E. B. Towne, the said J. J. Garrard and his assigns, and the said John T. Ludeling and his associates, to acquire the aforesaid valuable property of the estate of R. W. Burney, without paying any price therefor.”

The prayer of their petition is “that on final hearing hereof, all of the proceedings hereinbefore set forth, to wit: the several purchases by Towne, J. J. Garrard, and J. T. Ludeling, be decreed absolute nullities, in so far as same purport to divest the title of the estate of R. W. Burney, to the aforesaid property; and your petitioners decreed owners of' two-fifths interest in such of said properties as now stand in the names of the said defendants.”

How can we examine into, and decide the effect of the alleged agreement made and entered into, between Towne, Garrard and Ludeling, in the absence of two of these parties thereto ? How can we examine into, and pass upon the alleged fraudulent scheme entered into, by and between Towne, Garrard, Mrs. Aimes and Ludeling and his several associates, in the absence of all the parties, save two of them ?

How can we determine the responsibility 'of the parties before the court, for the proceeds of that part of the property that has been disposed of, or the validity vel non of the titles to the portion now in their possession, without going into the question of the validity of the title of O. O. Woodman’s succession, as contra-distinguished from that of R. W. Burney; and without determiuin g the validity of the probate sale to Ludeling ?

It is elementary that every party who may bo affected by a decree must bo made a party to a suit, because no one should be condemned without a hearing.

This principle is sanctioned in numerous decisions of this court.

The opinion of our predecessors in Hyde vs. Craddock, 10 R. 387, cited in our opinion — was based upon allegations similar to those we have quoted from plaintiffs’ petition.

In that case, the court said : “ The object of this action being to annuli and sot aside all the different conveyances which stand in the way of the plaintiffs’ rights in their debtor’s property, it is obvious that the annulling of Craddock’s title alone, would not, so long as the other sales should be permitted to have effect, attain the ends of the plaintiffs. * *

“ We tliink that, under the allegations and prayer of the petition, all the intermediate vendors of the property should have been made parties to the suit. * * * Fraud is alleged against them, as being in collusion with the debtor — must they not have an opportunity of rebutting these allegations?

“They are treated as a gang of conspirators, whose object in transferring the property from one to another, was to defraud the plaintiffs— shall they be declared to be so, without being allowed to deny the charge, and to show, not only the falsity of the allegation, but, also, the nature, legality and legitimacy of the transaction ?

“ Shall they be condemned without a hearing? Certainly not.”

That is precisely the state of facts we have to deal with in this case.

Counsel, in their brief, states that if defendants stood on the titles they acquired from Towne, and by him from the Woodman sale, “ and liad we, in the assertion of our rights, found it necessary to attack the validity of these two conveyances, we would have been obliged to make the parties in interest, parties to the suit.

“If likewise, Mrs. Aimes had rested her title on the sale from Towne to Garrard, and from the latter to her, and had we assailed them as being an illegal divestiture of our title, the parties thereto would have been interested in maintaining the same, and, therefore, necessary parties to the suit. But, according to our allegations, which are not denied, these trxnsactions do not even purport to divest our title, but are absolute nullities, on the face of the papers.

“ The succession sale is the only divestiture of our title, and it is the nullity of this, only, which is necessary to be decreed in granting us the relief prayed for. In so far as the other transactions are ashed to be decreed null, the prayer is useless.

“ The allegations and prayer substantially ask that the court treat them as absolute nullities, in reaching the nullity of the only transaction by which the plaintiffs are injured.”

But we must, for the purposes of defendants’ exceptions, take the plaintiff’s allegations and prayer as they are quoted above; and so taking them, we must recognize the rights of the defendants to set up in their answer, when it is filed, the reality and validity of any one, or all of the titles enumerated. We are not warranted in assuming that any one of them are absolute nullities, simply because it is so averred. It is true that these averments are not denied, but the defendants have not been called on, as yet, to answer; and wlien they do answer, it is quite likely they will deny them all.

In passing upon this motion we must anticipate the joinder of issue, by the defendants, -on the plaintiffs’ averments, and decide whether the issues thns presented could be determined with the parties before the court.

This is a petitory action, coupled with one for the revendication of the real property in controversy. Its solution will depend upon the proof of the simulation, or reality of the contracts, and sales under consideration. How can that be done without the parties who executed them, and through whom the property passed to the parties defendant?

We have made a careful examination of the authorities bearing upon this question, and have collected the following as pertinent:

In Vandine vs. Ehrman & Lecanu, 26 Ann. 388, the court said:

The object of this suit is to sot aside, as simulated and fraudulent, a sale of certain property * * and, as the petition discloses other parties in interest, besides those who are made defendants, who were not made parties, we think the exceptions of the defendants should have been sustained.”

In Succession of Ricard, 27 Ann. 335, it was said:

“ It would be improper to decide anything in regard to the title to this property * * as the vendee is not before the court.”

In Zimmerman vs. Fitch, 28 Ann. 454, it was held to be clear that the plaintiff does not occupy a position which enables her to institute this suit. * * The alleged fraudulent vendor, or transferor, '* * is not made a party.”

In Miltenberger vs. Weem’s Heirs, 31 Ann. 259, the court decided that not only the holders of the title, but the debtors are necessary parties to a revocatory action.”

In Johnson vs. Mayer, 30 Ann. 1203, it was said that au exception of misjoinder “ was manifestly not well taken so far as Mrs. Mayer, the vendor, was concerned. She. was necessarily joined with the vendor, as defendant.”

In Fécel, Administrator, vs. Guinault, 32 Ann. 93, this language was employed, viz.:

“ We may as well eliminate here one branch of this case, to-wit: that relative to the sale from Paragean to Rodi. * * Parageau, the vendor, has not been made a party to this suit, and we cannot, in his absence, pass upon its validity.”

In Stockmeyer vs. Widner, 32 Ann. 106, the court reiterated the same principle, saying:

“ We think it is necessary to have Jacob Widner as a party; and that tlie rescission of the transaction with him was a necessary incident to the enforcement of plaintiff’s demands against Daniel Widner. That, while the transaction with Jacob remained nnrevolccd, no enforcement could be had of the note by, and for the plaintiffs.”

We have collated the foregoing as illustrating what was the jurisprudence on this question, as established by our predecessors, and for the purpose of showing that our opinion, presently under review, is consonant therewith.

The same doctrine has been announced by us, in at least two -well considered cases which have been decided since this motion was filed.

In Block vs. Bordelon, 38 Ann. 696, we said on this question :

“That all parties in interest should be joined in a suit, and made parties thereto, when that interest was directly involved, would seem axiomatic. Especially would we be impressed with the truth of this proposition, in a case where it was charged that a contract to which there were two or more parties, was null because they were guilty of fraud in making it. It would seem highly unjust, if not impossible, to investigate and determine the fraud charged, and even to annul the contract— the subject of it — when only one of the alleged wrong-doers was before the court, and the other not heard at all, and no opportunity given him to be heard. So far from this seeming requirement being observed in the case before us, we find that those who are not charged as participants in the fraud complained of, and in no light to be viewed other than mere innocent benificiaries of the same, are alone sued, whilst the one who is accused of planning and consummating the fraud, and inaugurated and conducted the proceedings by which the purpose was accomplished, is left entirely of the case, neither sued nor cited.”

In the more recent case of Trounstine vs. Ware & Munn, 39 Ann. 942, we employed this language, viz.:

“The effect of the judgment * * dissolving plaintiff’s attachment, and dismissing their suit as to Munu, was to discharge him from the suit, and to eliminate therefrom the question of simulation rcl non, as this issue could not be tried with Ware, alone. Munn was a necessary party to the suit, in this respect.”

In view of these authorities we think the various parties to the sales and contracts enumerated should, be cited and made parties defendant, because, in their absence, no decree could be rendered affecting them.

On the other branch of the case, the contention aud^ exception of the defendants are that the demands of the' plaintiffs are inconsistent, in tliat they sue to have the several sales and acts annulled, and for a part of the price thereof, and they should be required to elect which demand they ¡will pursue. Our opinion required them to make an election. In their petition the plaintiffs concede that defendants have disposed of parts of the land they claim, to other persons, who bought in good faith, and have thus placed them beyond their reach, and hence they demand of them two-fifths of the proceeds thereof. If their allegations be true, they certainly have stated a cause of action, which would be good in a separate suit; and, under the settled jurisprudence in reference to alternative pleading, they have a standing in court for the price of such portions of the land as have been placed beyond their reach, as admitted in their petition.

Winter vs. Zacharie, 6 R. 467, was a suit in which plaintiff claimed land and slaves, $15,000 a year as the revenues thereof, and “$10,000 as damages for illegally, and forcibly taking possession of his property.”

To this suit the defendant tendered an exception to the effect that the plaintiff had no right to cumulate with his petitory action a personal one against the defendant, whether founded on a claim for damages, or for remuneration for fruits and revenues, or for hire, or otherwise, etc.”

This exception was overruled by the distriet judge, and his action was approved by our predecessors, in the following language, to-wit:

“ The district judge correctly overruled the exception taken by the defendant. This action is a mixed one, as defined by Article 7 of the Code of Practice, in which the claim for the fruits, or their value, is an incident to the main action to recover the property.”

In Williams vs. Close, 12 Ann. 873, the defendants urged an exception to the inconsistency of plaintiff’s demands, and the court said :

“ There is a bill of exceptions to the refusal of the court to rule the plaintiff to elect to proceed in one form of action, or the other, either for a slander of title, or in a petitory form, defendants alleging therein that both forms of action could not be tried at the same time. We are of the opinion that a party may institute a petitory action for one tract of land, and, in the same petition, sue the same defendant for slander of title of another and different tract; for he would be only enforcing his several rights against the same parties; but he could not, in the same suit, sue for a tract of land in the petitory form, and, also, sue for slander of title of the same tract.”

So, in this case, the plaintiffs have not sued for the land and its price, but for the enforcement of their several rights against the same parties, as growing out of the same transaction.

In Badillo vs. Tio, 6 Ann. 129, there was judgment against the defendant for the property of the succession in his possession, and for the value of the portion which he had alienated.

On the faith of these authorities we think our decree requiring the plaintiffs to elect, is erroneous, but in other respects it is correct. But as this case is still with us, and the question one of law, a rehearing is unnecessary.

It is therefore ordered and decreed that, in so far as our previous opinion and decree directs and requires the plaintiffs to make an election, the same is annulled and set aside, and the exception of defendants to that effect overruled; and it is further ordered and decreed that in all other respects same remain undisturbed.

Rehearing refused.


author: McEnery, J.

text:
    No. 1,220.
    V. & A. Meyer & Co. vs. Vicksburg, Shreveport and Pacific Railroad Company.
    Wlien a railroad company equips its engines with the most effective modern and piriictical appliances to prevent the escape of fire, the burden of proof is on the party alleging damage by fire from the escape of sparks, and to render the company liable the proof of negligence must he positive, strong and convincing.
    Where a railroad company erects a platform for the purpose of shipping cotton, and its course of business is such that induces parties to store cotton on it under a promise to ship by by the next freight train, and it passes and neglects to take on said cotton, and it is destroyed by fire by the company’s passing train, after the freight which ought to liavo taken it on has passed, the company is liable for the value of the cotton.
    A PPEAL from the Fifth District Court, Parisli of Ouachita. '* Richardson, J.

      G. J. & J. S. Roatner for Plaintiffs and Appellees.

      Stubbs & Russell for Defendant and Appellant.
   The opinion of the Court was delivered by

McEnery, J.

V. & A. Meyer, a commercial firm domiciled in the city of New Orleans, sue the defendant company for $2536 97, with 5 per cent, interest thereon from legal demand, and the value of fifty-four bales of cotton wliich had been placed upon defendants’ platform at a flag station for shipment, and which was destroyed by fire while awaiting shipment.

Plaintiffs allege tlie cotton was destroyed, by sparks omitted from one of the. engines of the defendant company; that said company was grossly negligent in failing to use on its engines the necessary appliances to prevent sparks from escaping, and that the engine which passed the platform on which the cotton was placed was not supplied with a spark arrester and improved appliances to prevent the escape of lire. And that said company was also grossly negligent as a common carrier in allowing the cotton to remain on the platform for several days, exposed to lire from passing trains, after having been notified of its storage on the platform for the purpose of shipment by the defendant company.

The defendant company denies each and every allegation of the plaintiff; denies the delivery of said cotton to respondent’s agent, or that it had received it in its care or custody; denies that said cotton was lmrnod through any fault or negligence of the company, and affirms that its engines are furnished with improved appliances and operated by experienced, skilled and careful men.

There was judgment for the plaintiff for the amount claimed and the defendant company has appealed.

There is, as is usual when questions of fact involving liability are at issue, conflicting testimony.

According to the various impressions of witnesses on the day and at the time when the train passed, which it is alleged set fire to the cotton, the wind was from the north or the south, the day was cool, clear and dry, or it was damp, murky and misty. But the cotton was piled and stored on the south of the railroad track, and it took fire and burned, notwithstanding the wind blew towards the north, and it was rapidly consumed, although it was a damp day. It took fire almost immediately after the train passed, and upon no hypotliesis can the fire bo explained from facts in the record except that it took fire from sparks emitted from the passing locomotive drawing the passenger train.

The engine was provided with a spark arrester of the most improved kind. With an engine so equipped with effective appliances to prevent the escape of fire, although the authorities are conflicting in the jurisprudence of this country as to the company’s liability, we think tlie weight of authority is that where such equipments are applied to engines, the burden of proof is shifted upon the plaintiff, and the testimony must he very positive, strong and convincing to establish the fact of negligence on the part of the company. Without stating the testimony of the witnesses on this point, its effect is to show that the, employees of the roacl used every precaution to prevent the escape of fire while passing the platform where the cotton was stored.

On the second point presented by plaintiffs that the defendant company had negligently allowed their cotton which liad been placed upon the platform for shipment to remain there an unreasonable length cf time, which occasioned its destruction and loss by fire, wo are of the opinion that the following facts axe established by the testimony: that the platform upon -which the cotton was placed was located at a flag-station, which had been erected for the convenience of shipping cotton from the King place, upon which the cotton was raised; that the course of business here adopted by the company was the same as at other flag-stations. That the cotton is placed on the platform, the agent is notified, and the train is flagged to take it on, and at this particular station the agent of plaintiffs would notify the railroad agent in Monroe when a shipment of cotton was to be made, who would cause the train to stop there and take it. He notified the conductor of the next freight train to stop at the station and receive the cotton from the person wlio had charge of it, to whom the conductor would receipt for the same and from whom he would receive shipping directions. The plaintiffs’ agent and manager of the King plantation, which they had leased, notified the railroad agent at Monroe in waiting of his intention to ship the cotton when it was at the platform, partly on it and a portion on the ground. He sent also a verbal message which was delivered to the company’s agent by one of the company’s conductors of a local freight train on Tuesday morning, the day preceding the fire of the cotton being at the flag station ready for shipment. It remained on the platform for at least twenty-eight hours. The plaintiffs had a man at the flag station to flag the train and to give necessary shipping instructions.

On Tuesday night a freight train passed, and although flagged, failed to stop. No satisfactory explanation is given of this failure to stop and take the cotton, except that it was a through train which passes at night and does not stop at the flag- stations.

Defendant’s agent, however, swears, and it is not contradicted, that he usually shipped at night. It is not shown that it was not in the power of the defendant company to transport the cotton from the time it was stored until destroyed. Plaintiffs’ gin house was only a short distance from the station, and it is not reasonable to suppose that they would have risked their cotton from a place where it was insured to or e where it was not without reasonable grounds for believing that it would be immediately placed on defendant’s car. The defendant company by the course of business inaugurated by it and the special inducements offered to plaintiffs, invited plaintiffs to put tlieir cotton on the platform at the time they did, and it was the duty of the company not to depart from its usual course of business and neglect to take the cotton on the next freight train.

The defendant company alleges that there was no delivery of the cotton to them and there was no liability on its part either as ware-housemen or carriers.

The company built the platform and provided its own arrangement for the care and protection of freight. It had no agent there, it is true, but the agent at Monroe was constructively present, whenever he was notified that cotton was placed on the platform for shipment, under the course of business adopted by the company, for the purpose of shipment by the next train. The liability of the company to plaintiffs in the present case, rests solely on their failure to ship at the proper time. If they had complied with their obligations, the cotton would have escaped destruction.

There were three bales of the fifty-four damaged bj the fire. The plaintiffs had a right to abandon them to the conppany. These throe bales were brought to Monroe and tendered to the company’s agent, who refused to receive them. The company is liable for their full value, as they have not been accounted for since they were tendered.

Judgment affirmed.


author: Poché, J.

text:
    No. 1216.
    Mrs. A. L. Buford vs. W. A. Collins.
    A contract by which one party, unmarried and having no forced heirs, conveys an immovable to another for the consideration of an annual stipulated rent during the lifetime of the party conveying the property, in which the advantages, if any, of the vendee, are not immensely disproportionate, is not in contravention of the laws of Louisiana.
    Hence such a contract will be enforced by the courts.

      APPEAL from the Sixth District Court, Parish of Morehouse. Baird, J.
    (?. ,ZT. Bilis for Plaintiff and Appellant.

      Newton & Gasón and J. P. Madison for Defendant and Appellee.
   The opinion of the Court was delivered by

Poché, J.

A statement of facts is necessary to a proper understanding of the issues involved in this case.

In November, 1833, William J. Buford, who was then unmarried and without forced heirs, ceded and conveyed by authentic act, a tract of land and improvements thereon, to the defendant herein, in consideration of rents in the sum of $800, payable annually, on the first of December, to secure the payment of which, Collins specially mortgaged the property thus conveyed and other property of his situated in the same parish. And it was further covenanted that:

“ The above stipulation, agreements and contract, both as to the payment of said notes and the security therefor, shall remain in force and effect during the life time of said Buford, and at the death of said Buford, the title to said property is to remain in said Collins, his heirs and assigns forever, unincumbered with any rent charge to any one whomsoever, and all the property herein described is to be free from said mortgage and hypothecation.”

• Collins was reserved the right to relieve himself from paying said annual rents, by paying the value of the property thus ceded, under the provisions of Article 2788 of the Civil Code, provided such right be not enforced till thirty years have passed from the date of the contract.

Buford married sometime thereafter, and died on the 23rd of December, 1885, leaving a widow and a posthumus child born a few months after his death, and which died soon after birth.

This suit is brought by his widow by right of representation of her deceased child; and its object is to annul and set aside the contract herein above mentioned on account of lesion beyond moiety, and this appeal is brought up by her from an adverse judgment.

Defendant filed an exception of no cause of action, which was referred to the merits, but which was sustained after full trial.

Another exception was filed, which, under the views which we have taken of the case, need not be noticed.

An intervention was filed by a creditor of Buford, who took the position that the rents were due in perpetuity, that the stipulation limiting the rents to the lifetime of Buford was null as reprobated by law, and that Collins should be held liable for the payment of three years arrear rents, out of which he prayed for judgment for the amount of his claim, amounting to $758 20.

The district judge, holding that the contract was legal and binding in all its parts and stipulations, and dismissing the main action for that reason, considered that the intervention fell with it, and dismissed it also.

Appellee’s motion to dismiss the appeal taken by the intervenor, on tlic ground that his demand was not within our jurisdiction, is well /founded. Hence, intervenor’s appeal must be and it is dismissed.

/ The issue is thus restricted between plaintiff and defendant, and it i. involves exclusively the alleged nullity of the contract on the ground of \lesion beyond moiety. Under plaintiff’s pleadings she is entitled to no relief at our hands, except a decree annulling the contract as an cntiretjr, and' she is at present estopped from asking any judgment looking to the enforcement of annual rents in perpetuity.

In brief her counsel argues as follows :

“Strike from this contract the stipulation in Collins’favor, in which the rents should cease or pass to Collins and his heirs at Buford’s death, and we have as binding a contract of rent as it is possible to make under our laws.” C. C. Articles 2779 et seq.

He therefore concedes that without the clause in question the contract would be legal.

Now is there any law which forbids the stipulation contained in that clause? Wo know of none, and counsel has failed to refer us to any provision of our laws having such a purport or effect.

/ The introduction of that clause in the contract relieves it of the char-J acter of a contract of rent of lands, and injects into it a feature of the aleatory contract defined in oiir Code, as a “mutual agreement of which the effects, with respect both to the advantages and losses, whether to all the parties or to one or more of them, depend on an uncertain \pvent.” Article 2982.

The preponderance of the evidence shows that the property conveyed was worth from $4000 to $5000, and that its rental value at the date of the transfer was about $600 per annum. As we read the contract, the chances in favor of Buford, who was neither old nor infirm at the time, appear to be, in case he lived ton or more years, to secure a fixed income in excess of the rental value of the property, and which would, in the aggregate, largely exceed the real value of the property; an din case he should live for thirty years, up to the time when Collins could redeem the rents, would have amounted to $24,000. As to Collins, his chances were to acquire the property by light or easy annual instalments, and at a reduced price, in case Buford should not live more than five years.

The validity of such contracts, whether they be denominated, aleatory contracts, or sales for a rente viagere, or onerous donations inter vivos, has been uniformly recognized as legal and binding in our jurisdiction as well as in France, whence we derive our system of laws, and it isjwcll settled that they will not be disturbed,by Jhe courts^ unless the advantages to tlie .vendee. he Jmmensely disproportionate. Dopler vs. Feigel, 40 Ann. 848; Landry vs. Landry 40 Ann. 229; Morr vs. Marbet, 39 Ann. 1068; Parker vs. Talbott, 37 Ann. 22; Pugh vs. Cantey, 33 Ann. 790; Succession of Fortin, 10 Ann. 739; Merlin Répetoire verbo Lesion Sect. 1, No. 8 Marcedé, vol. 6, pp. 313 and 314.

Under our construction of tlie contract, and considering the position of Buford at the time, the condition of the property, his failure to cultivate it profitably, it does not appear to have been disadvantageous to him, but that on. tlie contrary it was a wise and provident contract for him to make. His loss and that of his heir is due simply to the premature happening of tlie uncertain event on which depended the advantages or losses of which lie took the risk. We, therefore, conclude that the contract has successfully withstood the test of plaintiff’s attack.

Judgment affirmed.


text:
    No. 1214.
    V. & A. Meyer & Co. vs. B. F. Pleasant, Sheriff and Tax Collector.
    1. An injunction against tlio sale of property for taxes, on tlie ground tliat the property is not subject to assessment and taxation in the parish whore the assessment has been made, presents a contestation as to the legality of the tax sought to be enforced and is without jurisdiction of this court.
    2. Debts have their situs at the domicil of the creditor, and they do not lose the situs because reduced to judgment at the domicil of the debtor.
    Being located at the domicil of the creditor, a debt, though evidence by a judgment, is not assessable or taxable elsewhere.
    APPEAL from the Third District Court, Parish of Union. Earksdale, J.

      Everett cl; Everett for Plaintiffs and Appellees :
    The domicile of tlio owner is the situs of a judgment.
    Tlie assessment of a judgment for State and Parish taxes must ho made at the domicile of the owner, and an assessment at any other place is illogal and not collectible. Saunders on Taxation, pp. 68, 69 and 70; Cooley on Taxation, pp. 269 and 270, and also Noto 1 on page 270.
    A dual assessment cannot bo collected.
    The illegality of the assessment, noticos, mode or time of collection does not give this court jurisdiction regardless of the amount involved. The illegality or unconstitutionality of the tax gives jurisdiction. 36 Ann. 286; 37 Ann. 507, 898; 38 Ann. 99; 39 Ann. 342.

      E. M. MeOlendon, District Attorney, for Defendant and Appellant.
   Tlie opinion of tlie Court was delivered by

Fenner, J.

The plaintiff, a commercial firm domiciled in tlie City of New Orleans, enjoin tlie tax collector of Union parish from the sale of a certain judgment rendered in the district court of Union parish in their favor and against their debtor, D. Stein & Co., which had been listed and assessed in Union parish.

They base their injunction on various grounds, of which it is only necessary to consider one, viz: That said judgment is not subject to assessment and taxation in Union parish, but can only be assessed and taxed at the domicil of the owners, to-wit: in the Parish of Orleans, and, therefore, that the tax for which the property is about to be sold is illegal.

I.

A motion is made by the plaintiffs to dismiss the appeal on the ground that this court is without jurisdiction ratione materia}.

If the property is not subject to assessment and taxation in Union parish, then the tax sought to be enforced against it under an assessment made in said parish is undoubtedly unauthorized by law, and, therefore illegal.

This is not a dispute about the quantum or manner of assessment. The claim is, that the property is not subject to assessment or taxation, in Union parish, in any amount or manner.

This clearly involves a contestation as to tlie legality of the tax, of which this court has jurisdiction without regard to the amount involved. Maguire vs. Vogh, 36 Ann. 812; Gillis vs. Clayton, 33 Ann. 286.

The tax collector affirms the validity of the tax on the ground that section of Act 98 of 1886, directs that movable property shall be assessed in the parish where it is located. This applies to tangible movables, but not to incorporeal rights generally, which follow the person of the owner and are not susceptible of physical location. It is well settled that the situs of a debt as property is at the domicil of the creditor. Murray vs. Charleston, U. S.; Kirtland vs. Hodgkins, 100 U. S. 496; State tax on foreign held bonds, 15 Wall 300; Cooley on Taxation, p. 15.

A judgment is merely the highest form of evidence of a debt. The Supreme Court of the United States has held that debts owing to foreign creditors are not subject to taxation by a State, because such a debt is a right, personal to the creditor where he resides, and the residence of his debtor is immaterial. The fact that a foreign creditor has reduced his debt to a judgment by proceeding necessarily, at the debtor’s domicil, could not subject the debt to taxation. The same principle applies to the instant case. Before judgment it is admitted that the debt due by Stein to Meyer & Co. would not have been taxable in Union parish, although it would have been legally demandable and enforcible only at Stein’s domicil in that parish.

The case is not altered by the mere change in form of the debt.

The judge á quo gives an apt reduetio ad absurdum when he says that if the doctrine of the tax collector were correct, a judgment rendered by the District Court of Ouachita parish, held in the City of Monroe, would be liable, not only to the State and parish taxes, but also to the municipal tax of Monroe. We hold, therefore, that the debt represented by this judgment is not located in the Parish of Union, but has the same situs after, as before the judgment, viz: at the domicil of the creditor.

It is assessable and taxable only in the Parish of Orleans, and as it forms part of the capital and assets of the firm of V. & A. Meyer & Co., it has presumably been assessed and taxed there.

Whether it would lie within the power of the Legislature to direct specifically, that judgments belonging to resident creditors should be assessed and taxed in the parish where they are rendered, is a question not before us. The statute simply directs that movables shall be assessed where they are located, and in absence of legislative provision to the contrary, judgments like other debts, have their situs at the domicil oí the creditor.

Judgment affirmed.


text:
    No. 1,221.
    H. Ware vs. A. M. Morris.
    On a motion to dismiss an appeal on grounds of abandonment of former appeal and acquiescence in and. voluntary execution of judgment, this court will not determine the question on ex pm'te affidavits filed first in this court in absence of admission of their truth by the appellant, but will remand to the lower court in order that evidence may be there taken contradictorily on the question and a record thereof returned to this court for its final action thereon.
    APPEAL from the Sixth District Court, Parish of Morehouse. Bilis, J.

      Bussey & Waff for Plaintiff and Appellee.

      G. J. & J. 8. Boatner for Defendant and Appellant.
   On Motion to Dismiss.

Tlic opinion of the Court was delivered by

Fenner, J.

A motion is made to dismiss tliis appeal on the ground that appellant, N. S. Greenwood, has acquiesced in, and voluntarity executed the judgment appealed from. C. P. 567.

The motion is supplemented by affidavits to the effect that, after the rendition of the judgment in May, 1887, the then attorney of appellant applied for and obtained an order of appeal; that he advised appellant of the judgment and inquired whether the appeal should be prosecuted; that he received a reply in writing, leaving the matter entirely to him, and saying: “ If you think there is a chance to reverse, of course I want to go up — if not, let her slide;” that the attorney, believing there was no chance to reverse, abandoned the appeal; that the agent, representing the appellant in the management of the property recovered by plaintiff under the judgment, being advised by appellant’s attorney that the judgment was final and the litigation ended, turned the property over to plaintiff and directed the tenants to pay to him, which they have since done; that appellant has not since called for rents or complained at not receiving them; and that, subsequently, xilaintiff, thus advised and believing that the appeal was abandoned, and the judgment acquiesced in, had sold and delivered the property to a third person who is now in possession.

Unless these affidavits can be rebutted or conclusively explained away, it seems clear that appellant’s right of appeal is lost.

While no contrary affidavits are presented in behalf of appellant, yet as he is a non-resident of the State, we cannot treat his silence as admitting the truth of those filed, and we must follow the usual rule in such cases by remanding the case in order that the questions of abandonment and acquiescence vel non may be tried contradictorily between the partios. N. O. City R. R. Co. vs. C. C. R. R. Co., 33 Ann. 1278, and authorities there cited.

It is, therefore, ordered that the case be remanded to the lower court with instructions to the judge to hear evidence on the questions of abandonment and acquiescence and to send up the record thereof' according to law.


author: Watkins, J.

text:
    No. 1204.
    S. S. Montgomery, Guardian, vs. Mrs. Mary F. Whitfield.
    1. When, through the mediation of certain tax proceedings and salo, a delinquent tax-payor is apparently divested of title to realty, and by a subsequent conveyance, for a price of about the same amount as the taxes paid, she is apparently re-invested with a new title, a fair presumption is raised of the tax-debtor’s intention to clear the land of some encumbrance thereon. In such case these proceedings* and sale only have the effect of a payment of the taxes, and an acquittance for the same, and they leave the title where it was at their ineipiency.
    2. If the title under which an acquisition has been made, he null in itself, from defect of form, or discloses facts which show that the person from whom it is acquired has no title, it cannot form the basis of proscription. It is not sufficient to deprive the person of the right of pleading proscription that he might by enquiry and careful examination, discover his vendor had no title. If nothing appears on the face of tlio deed which is defective, the knowledge of the want of right, in the person who sold, is not brought homo to the vendee, and his error is one of fact, and not of law.
    3. If the title under which the defendant claims is what the law denominates a just title, the possessor thereunder must be considered in good faith, unless there is some reference in the deed of salo, to the title under which the conveyance is made, which destroys that good faith.
    4. But after a possessor animo acquirendi has purchased in good faith, it may he terminated, and of right ceases from the moment the defects of his title are made known to him by extraneous evidence, or by suit instituted for the recovery of the property by the true proprietor.
    APPEAL from tlie Twenty-seventh District Court, Parish of Bichland. Williams, J.

      Wells & Toler and. Olinton & Garrett for Plaintiff and Appellee.

      Bernard Titehe for Defendant and Appellant:
    1.
    1. Informalities connected with or growing out of any public sale are prescribed against in five years, whether against minors, married women or interdicted persons. R. O. C. 3543.
    2. Tax sales are public sales within the meaning of this statute. Saunders on Taxation, p. 318; Roberts vs. Zansler, 34 Ann. 205 ; Giddens vs. Mobley, 37 Ann. 419, bottom.
    3. Tax titles are, and under Act 47 of 1873 were prima, facie valid sales. Constitution of 1868, Article 118; Constitution of 1879, Article 210.
    4. A tax collector’s deed, regular in its form and recitals, is presumed to convey title. The holder need not establish its validity or compliance- by the officers with the law regarding assessment, advertisement, etc. The person attacking the title assumes the burden of proving irregularities sufficient to annul it, and if ho fails, the tax title will he maintained. GidcLens vs. Mobley, 37 Ann. 419; Eishel vs. Mercior, 32 Ann. 707.
    II.
    1. Good faith is always presumed. C. C. Art. 3481.
    2. The possessor in good faith is liable for rents only from judicial demand, and is entitled to reimbursement for taxes paid, expenses of preserving the property, and the payment of enhanced value for tlie property resulting from improvements put upon it C. C. 3453.
    3. He is in good faith who possesses as owner by virtue of an act sufficient in terms to transfer property, the defects of which he was ignorant. C. C. 503.
    Which he supposes to belong to the person selling. C. C. Art. 3451.
    Where the title is free from defects of form and the property is not transferred from want of title in the party making it, a purchaser (ignorant of the want of title) is in good faith. Frique vs. Hopkins, 4 H. S. 224; Morris vs. Covington, 2 Ann. 259; Dufillio vs. Mayer, 27 Ann. 398.
    irr.
    1. A purchaser at a tax sale who holds by a title not defective in form is a possessor in good faith. Giddens vs. Mobley, 37 Ann. 417, and authorities there cited.
    2. Even though the assessment- he absolutely null, and equivalent to no assessment at all. Hickman vs. Dawson, 35 Ann. 1086.
    3. Even where the sheriff was absolutely without authority to sell. Fldridge vs. Tibbcts, 5 Ann. 380.
    4. This doctrine has been’carried so far that this Court in a recent case held that the purchasei is in good faith, though the sheriff in making tlie sale was acting in violation of a prohibitory law. Wederstrandt vs. Frelian, 34 Ann. 705.
   The opinion of- the Court was delivered by

Watkins, J.

The petitioner sues, as the Mississippi guardian of the minor children, issue of the marriage of Harrison P. Montgomery with Minerva L. Harrington, citizens of this State, now deceased, for the recovery of an undivided one-lialf interest in a certain tract of land, in Richland parish, known as the Eureka plantation, and for tlie revenues thereof, from January 1, 1876, which are placed at $500 per annum. He avers that II. P. Montgomery married the mother of Ms wards in 1862, and purchased this property on the 14th of July, 1869, and that in the month of January, 1873, she died and they inherited their mother’s onelialf interest therein, said land being community property. It is alleged that the defendant is a possessor in bad faith.

Since the institution of this suit, one of the minors has attained the age of majority, and has made himself a party plaintiff, joining the guardian in the prosecution of this suit.

Tlie defendant sets up title in herself under a donation en paiement from H. P. Montgomery — to whom she was married after the demise of, his first wife — in payment and satisfaction of certain paraphernal claims of hers against him. She also claims title to the land sued for, by virtue of a tax sale executed by tlie sheriff and tax collector, to Maugham and Yarborough, and by them conveyed to her.

In tlie alternative she alleges, that if the full ownership of the property is not in her, she is a possessor in good faith under the original conveyance from her husband, and by virtue of the tax title, and, as such, entitled to reimbursement for the enhanced value of the plantation resulting from the improvements put upon it, and is liable for rents and revenues only from judicial demand.

There was judgment in favor of the plaintiffs for the half-interest in the land claimed, compensating their demands for rents with those of defendant for improvements and taxes, and rejecting defendant’s claim of title as to the other half under both deeds.

From this decree the defendant appeals, and the plaintiffs file an answer and pray that the judg nent appealed from be affirmed.

I.

The principal facts were agreed upon by counsel, and they have been supplemented-by other evidence, the whole of which leaves but two questions for us to determine and decide. They are: 1. Whether the defendant ^acquired title to the half-interest in the property that is claimed by the plaintiffs through the mediation of the tax proceedings and sale, and subsequent conveyances• to her; and, 2, whether she occupies the position of a good faith possessor under either the elation, or tax sale.

Plaintiffs’ counsel concede that the value of the land has been enhanced since the defendant’s acquisition under title from her husband, to the extent of $2000.

II.

The deed of the tax collector was executed, on the 12th of December, 1876, to Mangham and Yarborough, the property in question having-been adjudicated to them, in joint ownership, on the 9th of that month, for the aggregate price of $356 22.

■It recites that said land had been seized and sold “ for the payment of taxes due by Mrs. H. P. Montgomery as owner thereof, according to the tableau and assessment rolls, for the years 1872, 1873, 1874 and 1875.” The assessment roll of 1875 shows that this property was assessed in the ■defendant’s name. The date of the elation en peeiemont to her bears date the 2d day of April, 1875. The act of confirmation by the Auditor to the purchasers bears the date of 2oth of June, 1877, and it contains this recital, to-wit:

Whereas, the said W. T. Oliver, tax collector, did * * execute and sign a deed or act of sale, transferring unto the said Wiley P. Mangham and Miss M. F. Yarborough * * all of the right, title and interest of said Mrs. H. P. Montgomery, in and to the aforesaid property, etc., * * I do hereby ratify and confirm said sale, with full and complete title,” unto said Mangham and Yarborough, etc.

Oil the 13th of June previously, Miss Yarborough conveyed her half-interest to .her co-owner, Mangham, for the price of $303 56 in cash, the deed reciting that the same was “the amount of her undivided one-half-interest, or half of the price paid at said tax sale, and for which amount the said Mrs. Oliver (Yarborough) “ grants full acquittance to said property, so far as she is concerned, or her heirs and assigns, etc.”

On the 31st of July following, W. P. Mangham conveyed to Mrs. M. P. Montgomery, the defendant, the whole of said property, without warranty, except as to his own acts, and specifying his title to be only such as he acquired at tax sale. The price stated is $450; in cash $300, and in time notes $150.. But in addition to that sum, the act provides that the rents of the years 1877 and 1878, are subrogated and assigned to the vendor, to the extent of $75 for each of those years, and aggregating $150. So it appears that the cash, time notes and rents aggregate $600, or a fraction less than double the amount he paid Miss Yarborough for her one-half interest. This seeming disparity in the figures representing the prices mentioned in those different acts of sale, is easily reconciled, when the items and amounts of taxes specified in the tax sale are examined; for they aggregate the sum of $607 12. Hence $600 is the price mentioned in the act of sale from Mangham to the defendant; and $607 12 is doubtless the price that Mangham and Yarborough paid, .at the tax sale, notwithstanding it is stated to have been $356 22; because this last sum is the exact amount of the principal of the State taxes alone, omitting the items of parish taxes and cost.

The whole of these transactions appear somewhat inscrutable and irregular, but it is clear to our minds that the defendant was tacitly consenting to all that was done, and that all that was done inured to her benefit. That through the tax proceedings and subsequent sales, she was apparently divested of her title to fifteen hundred acres of land for which she paid $2950 only two years before; and thereby she was reinvested with an apparently ímuo title for the vile price of $600, that sum being the exact amount she owed the State and parish in taxes; and on account of her default in the payment of which, the land was sent to sale. To our thinking the purpose of the defendant was to procure a clear title to the land, and these tax proceedings were expected to accomplish that result.

Under such a state of facts they did not effectuate her purpose, but only served to discharge the taxes she owed and left the title where it was at their incipiency. Beltram vs. Villere, 40th Annual unreported. Southern Reporter, p. —

Such a deed did not convey to the purchasers at the tax sale, nor from them to the defendant, “an adverse right” to that of the plaintiffs in the land. School Directors vs. Edrington 40 Ann. 636.

They did not have the effect of investing her with a now title. In this respect we think the judgment of the lower court is correct, rejecting defendant’s, and sustaining the plaintiffs’ demands.

III.

On the question of good faith the controlling articles of the code are the following, viz:

“ The possessor in good faith is lie who has just reason to believe himself the master of thing which lie possesses, although he may not bo in fact; as happens to him who buys a thing which he supposes to belong to the person -selling it to him, but which, in fact belongs to another.” E. C. C. 3451 (3414).
“ He is a bona fide possessor, who possesses as owner, by virtue ot an act sufficient in terms to transfer property, the defects of which he was ignorant of. He ceases to be a bona fide possessor from the moment these defects are made known to him, or are declared by a suit instituted for the recovery of the thing by the proprietor.” E. C. C. 503 (495).

The determinative factors in the good faith of a purchaser are: 1. His having just reason to believe himself the master of thing which lie possesses;” and, second, his possessing “as owner, by virtue of an act sufficient in terms to transfer property, the defects of which he was ignorant.”

The article first cited furnishes an example of what is considered by the law-giver as a “just reason,” and it is, such a reason ás a purchaser entertains “ who buys a thing he supposes to belong to the person selling it to him.” The next article quoted indicates the basis on which the supposition must rest, by stating that a “ bona fide possessor is one “who possesses as owner by virtue of an act sufficient in terms to transfer property.”

In making the purchase of property the purchaser is not bound to examine extraneous sources for information in regard to possible defects in the title of his author, in order to be considered a good faith possessor, from the commencement of his possession.

The code says “it is sufficient if the possession has commenced in good faith.” E. C. C. 3482 (3448).

The second paragraph of Article E. C. C. 503 (495) treats of the manner in which good faith is terminated, and says it “ ceases *' * from the moment those defects are made known to him, or are declared to him by a suit.”

It does not convey, and was not intended to convey tlie idea, that the defects of title might he “made known to him” from extraneous sources previous to his acquisition of the property, and thus deprive him of his good faith at the commencement of his possession. Any one holding a just title and who possesses animo aequirendi., is a good faith possessor, because his “just title” gives Mm “just reason to believe himself the master of the tiling.” Such a just title is one of the elements of a title by prescription. Possession of a just title is if continued for a period of ton years another.

Possession under a just title from the commencement, gives to the purchaser that good faith which is the third element. These'three concuring, the possessor becomes absolute owner. The whole question of title by prescription rests upon the purchaser’s good faith at the commencement of his possession.

And why should not a possessor be considered in good faith, if lie pays a sound price and receives a just title&emdash;that is to say, one “which by its nature, is sufficient to transfer property?” R. C. C. 3485.

In the case of Frique vs. Hopkins, 4 N. S. 221, the rule was formulated thus: ,

“ The correct doctrine, we think, is this: that if the title, under which the acquisition, is made, be null in itself, from defect of form, or discloses facts which show the person from whom it was acquired has no title, it cannot form the basis of this prescription.
* * * * * * * * * *
“ The sale to him i's perfect, in point of form, and discloses no fact which shows the title to be defective. It is not sufficient to deprive the possessor of the right of pleading prescription, that he might by enquiry and careful examination, discover his vendor had no title. If it were, then the law would have no effect, which says the want of title in him who transfers, shall not prevent the party to whom the transfer is made from pleading prescription.”

In Dufour vs. Camfranc, 11 O. S. 715, the law applicable to this question was thus very clearly defined and lucidly explained, viz :

“ The title presented him is perfect as it respects forih; it pursues the very words of the statute; the defect is a want of right or authority in the sheriff to make such a conveyance, not a defect in the manner he made it. As nothing, therefore, appears on the face of the deed wjiioh is defective, the knowledge of the want of right, in the person who sold, is not brought home to the vendee, and his error was one of fact and not of law.” Italics ours. •

In tlie case of Fletcher vs. Cavelier, 4 La. 277, this doctrine was concisely stated thus:

The titles under which the defendants claim are what the law denominates just titles, and the possessors must be considered in good faith, unless the reference in the deeds of sale, to the title under which the conveyance is made, destroys that good faith.” Italics ours.

The decision of this court in Giddens vs. Mobley, 37 Ann. 418, rests on these, and other like decisions, and our opinion formulates the rule in this language, viz :

There cannot be any doubt that the defendants possessed in good faith. The Code defines such possessor to be one who has just reason to. believe himself master of the thing which he possesses, although he may not be in fact, R. C. C. 3451; and good faith purifies a title of its defects and causes the possessor under a just title to be preferred to the true proprietor, who has remained so long silent and neglectful of his rights.” McCloskey vs. Webb, 4 R. 205; Hickman vs. Dawson, 35 Ann. 1086; Eldridge vs. Tibbets, 5 Ann. 380.

In Carroll vs. Cabaret, 7 O. S. 406, the court said: There is ne defect stamped on the face of the deed, and that is what this court said was meant by valid form in a deed which would enable a holder under it, to prescribe.” 37 Ann. 419.

Oriol vs. Moss. 38 Ann. 772, and Hutchinson vs. Jamison, 38 Ann. 153, are to the sanie effect.

Also Pattison vs. Malony, 38 Ann. 888.

In confirmation of all that has been said on the subject, the Code provides that the possessor in bad faith is he who possesses as master, but who assumes that quality when he well lenows that he has no title to the thing, or that his title is vicious or defective.” R. C. C. 3452. (3415:)-

Then we have these two propositions to consider, in determining the good faith of the defendant, Mrs. Montgomery, under the dation en paiement from her husband, to wit: First, whether she supposed the property to belong to her husband, at the time he'made the title to her ; and second, whether she assumed the quality of owner, when she well knew that she had no title, or that the title he gave her was vicious and defective.

Her title does not appear to be either vicious or defective, and there is no evidence in the record, even tending to show that she had, at the time of her acquisition, any knowledge of the title of her husband. She says as a witness, that when she' accexrted the title she "thought it was perfect, and, prior to .that time, never heard its validity questioned. As an evidence of the bona fules of her purchase, she set herself to work at once, to rehabilitate the plantation, by placing thereon, various valuable and expensive improvements, whereby the intrinsic value of same was, admittedly, enhanced to the amount of $2000. Another circumstance of her good faith is, that she accepted title, among other considerations, in satisfaction of her husband’s indebtedness to her for a large sum she had loaned him, with which to pay his vendors a part of the purchase of the property, and which was secured by a vendor’s lien and mortgage thereon, and which was'an obligation of the community, and of the plaintiffs as the simple heirs of their mother.

Counsel for the plaintiffs placed strong reliance on our recent opinion in Heirs of Dohan vs. Murdock, 41 Ann. 494, as supporting his theory of the defendant’s legal bad faith. That opinion, although not at hand, may be fairly stated as having decided that the defendant, Murdock, was in bad faith, because the defects in the title of his author wore actually made known to him before ho acquiree, title to the property. That theory is easily and perfectly reconciled with the one herein expressed by reference to the case of Fletcher vs. Cavalier, cited, supra.

We are of the opinion that the defendant’s possession commenced in good faith under the ilaiion from her husband in April, 1875 ; but, from what we have already said of the tax proceedings and sale, which wore inaugurated and consummated in December, 1876, she was in bad faith thereafter, because the defects in her title had then been made known to her, and from that date she ceased to possess in good faith, and from that date she is liable for rents, which may be safely fixed at $350 per annum, and aggregating the sum of $4550, one-half of which she owes the plaintiffs. But she is entitled on her reconventional demand for the enhanced value of the soil $2000, one-half of which plaintiffs are duo her. She is also entitled to be reimbursed one-half the amount of taxes she paid subsequent to her purchase and all she paid in discharge of those duo at the date of her acquisition, and whereby the property was encumbered. They amount to $872 50. The subjoined statement gives the several allowances to the parties respectively :

One-half of $4,550 00 rents to plaintiffs.......... $2,275 00

Cr.

One-half of $3,745 00 taxes to defendant.........$ 872 50

One-half of $2,000 00 value of improvements..... 1,000 00— 1,872 50

Balance in favor of plaintiffs................................$ 402 50

But during the progress of the argument, counsel for plaintiffs conceded that the judgment was perfectly correct in compensating plaintiffs’ demands for rents, witii those of defendant for improvements and taxes, and filed an answer praying its affirmance, hence his clients are precluded from asserting any claim to the difference.

This judgment does substantial justice between tho parties, and it is therefore affirmed.