text:
    No. 12,857.
    State of Louisiana vs. Justin Cancienne.
    Defendant indicted for the murder of his wife asked the following charge:
    If the jury find from the evidence that the accused discovered his wife in a position with Delatte as to convince any reasonable man that they were in the act of adultery, and that he was so incensed and outraged by the sight that he lost all control of his reason, and actinguncler the overpowering influence produced by the sight of his shame and humiliation, he.then and there* drew his pistol and fired, and after his pistol was empty, he immediately drew a razor and inflicted a wound upon his wife, from which she died, the accused is not responsible for his acts, and the jury must acquit ”
    The court correctly refused this charge, which asked, under the facts stated, not a reduction of the crime from murder to manslaughter, but a “justification” of the husband’s acts entitling him to an “ acquittal.” A husband who, detecting his wife at his own home, in the act of adultery, kills her on the spot, provoked by the wrong, though not guilty of “ murder,” does not stand “ justified” in his act. The homicide is manslaughter.”
    Where a husband, on entering his home and finding his wife in the act of adultery, shoots at the wife’s paramour, or at her, or at both indiscriminately, where-^ upon, the wife, under the evidence, seizes and holds her husband by the arm, informing the paramour that she had done so, andcalliugon him to come and they would kill him, the court should permit the husband to introduce testimony as to tbe relative strength of his wife and himself in order to lay the foundation for a reasonable belief on his part that his life was placed in danger by her act, and for the purpose of justifying as in “ self-defence” his cutting her to detach her hold. The fact that the husband did not stand “ justified” in his origiual act of shooting at the wife and her paramour, did not cut him off under the circumstances stated from invoking the doctrine of “ self-defence,” when in one of the after phases of the difficulty his life became endangered by th« act of the wife. The doctrine of “ aggressorship” in respect generally to that of “ self-defence” should be relaxed in a case of this character.
    When a party seeks to have a principle of law applied in a special charge to the' jury, he must present such a statement of facts, as a predicate, as would make the principle of law invoked legally applicable under the evidence to the particular case.
    APPEAL-from the Eighteenth Judicial District Court for the Parish ' of Lafourche. Caillouet, J.

      M. J. Cunningham, Attorney General, and L. C. Moise, District Attorney, for Plaintiff, Appellee.

      Howell & Martin and Clay Knobloeh & Son for Defendant, Appel lant.
    Submitted on briefs June 13, 1898.
    Opinion handed down June 25, 1898.
   The opinion of the court was delivered by

Nicholls, C. J.

The defendant, indicted for the murder of his wife, was found guilty of manslaughter, and sentenced to imprisonment in the penitentiary for eighteen months.

Third Bill. — In a third bill of exceptions, defendant recites that his counsel offered to prove on cross-examination of Dora Putnam, a witness for the State, that the defendant • and his wife had hada struggle begun by her, the wife, in which she, prior to any aggression or hostile demonstration made against her, had attempted to disarm defendant so as to protect Delatte, who, the evidence showed, had been caught by defendant in defendant’s bedroom near defendant’s wife, with his (Delatte’s) pants unbuttoned and suspenders down, and that it was only after said struggle begun by the wife that he, defendant, cut her with a razor, and thereupon counsel attempted to prove by Dora Putnam that the deceased was much stronger physically than he was, but he was not permitted to make the proof under objections made by the State and sustained by the court.

The court, in reference to this matter, says than it had stated the status of the case on this point in the bill of exceptions taken to the court’s refusal to admit the testimony of the witness Delatte on the. same point, and the reasons therein assigned for the court’s refusal it reiterated with the additional statement that the court did not refuse to allow the witness Putnam to testify as to the struggle or tussle between the defendant and his wife, but on the contrary allowed her evidence on this score to go before the jury, as counsel practically admitted in the statement of facts referred to and annexed to another bill taken on the trial in the presence of aecued and his counsel; that the court did, however, refuse to permit this witness to testify to the superior strength of the wife for the reasons stated in other bills and reiterated, viz.: That a full view of'the case showed the accused to have been the aggressor in the first instance against the witness Delatte, who was in the room with his wife, or against both indiscriminately, and that whatever struggle ensued between him and deceased was but an incident of his original act of aggression, from which he had not desisted in good faith, and for the further reason that at the time of the struggle for the pistol, the firing by the deceased had stopped and the post-mortem examination showed that two bullets had entered the deceased’s body.

Fourth Bill. — In a fourth bill of exceptions it is recited that after evidence had been offered which defendant’s counsel fully believed had abundantly shown that as between defendant and his wife, the wife in the struggle between them which led to the killing was the aggressor, and when counsel were proceeding to prove that the wife was much inore powerful than the husband on the State’s objection that the defence had not laid thé proper foundation for the introduction of proof as to the relative strength of the wife and husband.

Defendant was not permitted to make such proof by reason of the court sustaining the objections made. That thereupon counsel reserved bill of exceptions and asked the court to order that all the evidence just taken on the question as to who was the first aggressor to be taken down in writing, so as to annex said evidence to said bill of exceptions under the provisions of Act No. 113 of 1896, but that the court ruled that said act did not provide for the taking down of evidence, but simply provided for a statement of facts to be taken down, to which ruling of the court defendant reserved a bill of exceptions. »

The addendum of the court to this bill states that the court caused a statement of facts upon which the ruling was made to be then and there taken by the clerk of the court in the presence of the accused and his counsel, and before proceeding any further with the trial, and that the court annexed said statement to the bill of exceptions. The court stated that the testimony given in the statement of facts was in substance that which was given by the witness, Dora Putnam, at the time at issue, and was taken down by the clerk as dictated by the judge in the presence of the jury, the accused and his counsel and the witness on the stand. That the testimony of the witness, Dora Putnam, was the only testimony which was sought to be reduced to writing, and in passing on this issue as to whether a sufficient-foundation had been laid to introduce the proof of superior strength, the court had necessarily to consider the testimony of witnesses preceding her as well as hers.

The statement of fact referred to, after.having recited that counsel for defendant had elicited, on the cross-examination of Dora Putnam, a witness on the stand in behalf of the prosecution, that the accused had shot at Fernand Delatte, who was found in the room with his wife, whereupon the wife had stood between Delatte and the accused in the attitude of protecting Delatte; that she had attempted shoving defendant aside, whereupon a tussle ensued between the husband, and wife; declared that counsel thereupon proposed to prove that the wife was much more powerful than the husband, when the District Attorney objected to such evidence and the court sustained the objection. That the objection was sustained for the reason that, in the opinion of the court, the evidence produced on the trial by the witness on the stand and a prior witness ■ satisfied the court that the accused was the origiaal aggressor, and there was no evidence to show that he had desisted from the fight in good faith; that the accused was the original aggressor as against Fernand Delatte, who was with his wife in the room when the whole difficulty began. That the court considered the tussle between the accused and his wife was a part and incident of the whole difficulty.

Sixth Bill. — The sixth bill was taken to the refusal of the court to give the following requested special charge to the jury:

“ If the jury find from the evidence that the accused had good reason to believe that his life was in danger, or that he was in great danger of serious bodily harm, he had a right to use such force as might have been necessary to protect his life or save himself from great bodily harm, even though to accomplish this it were necessary to slay his wife.”

Counsel recites in the bill that the charge was asked under the following condition of the evidence:

“ That there was a scuffle between the husband and the wife — that the wife had grabbed the hand in which the husband had held his pistol with which he had just fired at Delatte, the party whom he found with his wife in her bedroom with his pants unbuttoned, and that the wife while holding the pistol which accused held in his hand called out Come, Fernand I have got him — he can’t hurt you — we will kill him.’ ”

The court in its statement annexed to this bill says that the evidence was not fully stated by counsel. There was evidence.as stated by counsel, but that was not the whole evidence on the point.

The evidence tended to show that when the' accused entered the room he surprised Delatte and his (accused’s) wife in a compromising attitude (the accused testifying as a witness that he caught them in the very act of adultery) — that accused fired at Delatte (the first shot), that three of four shots were fired according to some witnesses, and one or two shots according to others — accused as a witness being Unable to say how many shots were fired. That Delatte was shot through the arm and the deceased received two bullets in the breast, the accused being the only one who did the shooting.

That the shooting took place in a very small room in which the accused surprised his wife and Delatte — both being in the same room during the shooting.

That accused as a witness on the stand declared that his wife caught his arm and the pistol which he held in his hand, and that after she had so grabbed it, she called out: “ Oome, Fernand, I have got him — he can’t hurt you; we will kill him.” That he then pulled out a razor and cut the deceased, that he did not know how many times, or if he cut her more than once. The court deduced from the testimony of the husband, that the wife had caught his arm after the shots had been fired, and that the struggle between the husband and wife was for possession of the pistol.

The court says that the only witness who testified to the wife’s calling out “ Come, Fernand, I have got him; he can’t hurt you; we will kill him,” was the husband himself. The court said the testimony showed that the wife was cut three times by the razor — a gash in the abdomen, a cut on the wrist or hand, and her throat cut from ear to ear, severing the windpipe. That the witness Dora Putnam testified that the throat had been cut back of the house near a cistern, the deceased having run out of the house and having been pursued by the husband, who overtook her and cut her throat there; but that in justice to the accused, it should be stated that there was some evidence before the jury tending to impeach this witness.

That the court concluded from defendant’s own version of the case that there was no element of self-defence in it, and no reason to charge as to self-defence, even if the requested charge had been good law. That if the court correctly apprehended the law, the accused was not justified in shooting Delatte under the facts of this case; if not justified he was about to commit a felony on him and it was not an assault on the part of the deceased in trying to prevent him from perpetrating his design, which would authorize the accused to resort to it in self-defence.

That according to accused’s own testimony, the deceased grabbed his arm and pistol after he had ceased firing (he could not tell or remember how many times he had fired), and at that time two of his bullets had taken effect in the body of the deceased (whether fired at her or at Delatte, making no difference), and the accused not having desisted from the fray in good faith at. the time the struggle with his wife commenced, he could not claim to have been acting in self-defence.

Seventh Bill. — The seventh bill was taken to the refusal of the court to give to the jury the following requested special charge:

“ If the jury find from the evidence that the accused discovered his wife in such a position with Fernand Delatte as to convince any reasonable man that they were in the act of adultery, and that he was so incensed and outraged by the sight that he lost all control of his reason, and acting under the overpowering influence produced by the sight of his shame and humiliation, he then and there drew his pistol and fired, and after his pistol was empty he immediately drew a razor and inflicted a wound upon his wife from which she died, the accused is not responsible for his acts and the jury must acquit.”

Counsel recites in the bill of exceptions that the charge was request under the following condition of the evidence:

That evidence had .been adduced showing that the husband came upon his wife and one Fernand Delatte sitting on the bed together in his bedroom very close to each other, with Delatte’s- pants unbuttoned and Delatte playing with his wife at the time or just before the husband entered into the room “ playing a play (as expressed by the witness Delatte on cross-examination] different from any he had ever played with the wife in the presence of the husband. That the room was closed at the time of the entrance of the husband, who opened and came through the back door, the wife and Delatte being alone in the room.”

The court stated it refused the charge, because, in its opinion, it was not good law. That it had already charged the jury as to the law applicable to homicide upon the detection in adultery of a wife and her killing by the husband on such discovery and no exception was taken to such charge, except such as might be deemed taken inferentially by the request for the special charge, which was refused.

Opinion.

The immediate and direct cause of the death of appellant’s wife was the razor cut across the throat. Whether the gunshot wounds were themselves of a character to have proved fatal does not appear. Defendant was indicted for and on trial for “murder.’’’ The last special charge (referred to in Che seventh bill of exceptions) asked not for a reduction of the crime to “ manslaughter,’’ but for an absolute “ acquittal.”

In Price vs. The State, 18 Texas Court of Appeals, 474 (5th Criminal Law Reports, page 385), the Supreme Court of Texas, under a special statute of that State, held justified the killing by a husband of a person whom he had discovered with his wife under circumstances such as to cause him to believe upon reasonable appearances that they were either then in the actual commission of adultery, or were about to commit such act, or were still together, the act having just been committed. In the body of its opinion the court said: “We are not aware that a similar statute making such a homicide justifiable can be found in the Codes of any other State, though the principle and precedent from which ours is derived is of most ancient origin. But in most if not in all of the States as at common law a ‘killing under such a circumstances would reduce the homicide from murder to manslaughter.

Blackstone says: “ So if a man takes another in the act of adultery with his wife and kills him directly on the spot, though this was -allowed by the law of Solon, as likewise by the Roman divil law (if the adulterer was found in the husband’s own house), and also among the ancient Goths, yet in England it is not absolutely ranked in the class of justifiable homicide, as in a case of forcible rape, but it is manslaughter. It is, however, the lowest degree of it, and. therefore, in such a case, the court directed the burning in the hand to be ■gently inflicted, because there could not be a greater provocation.” 4 Black. Com. (Chitty), Side P. 191.

Mr. Bishop states the rule as it now obtains thus: If a husband finds his wife committing adultery, and, provoked by the wrong, instantly takes her life, or the adulterer’s * * * the homicide is only manslaughter.”

"We have not in Louisiana a statute corresponding to that in Texas, and we have, therefore, to be controlled by the rules of the common law, which do not “justify” a homicide committed under the circumstances stated, but reduce it to manslaughter. The special charge, as asked for, was properly refused.

The special charge asked and refused by the court, forming the subject matter of the fifth bill, was correctly refused; it was substantially the same charge as that referred to in the seventh bill, altered a little as to phraseology. It assumed as a fact that a husband called to face such a scene as that referred to in the different bills of exception, must be so wrought up by excitement as to make him irresponsible for his acts to the full extent of justification. There is no claim that there was any testimony in the case as to “ insanity.” We have said that a husband,would not be “justified” to the extent of an “ acquittal” for killing a man whom he discovered in actual adultery with his wife; if this be so, he would not be justified in acting under a “ delusion” that such act was being committed..

The complaint which forms the subject-matter of the third bill of exception, has given us much concern.

The theory of defendant’s case, which there was some testimony tending to establish, and which it was for the jury to weigh, was that on his entering his bedroom at his home by a back door (the front door being bolted) he found the blinds closed and one Fernand Delatte on his bed in the act of adultery with his (defendant’s)- wife. That he immediately fired several pistol shots at the parties, two shots taking effect in the wife’s breast and one in Delatte’s arm; that the wife seized her husband’s arm and attempted to wrest his ¡pistol from his hand, calling out: “Oome, Fernand, I have got him; he can’t hurt you; we will kill him;” that a tussle ensued between husband and wife, in the course of which the former drew a razor and cut his wife across the wrist, across the abdomen and across the throat, killing her. Defendant’s theory is that his life was endangered through the action of the wife in seizing his arm and calling ■ on Delatte to advance upon him, and that they would have killed him.

We understand the District Court to hold that the evidence was inadmissible and irrelevant, inasmuch as a homicide committed upon the wife under such circumstances could not be “justified,” but would remain “manslaughter ” even though the husband had good reason to believe that his life was in danger, or that he was in great danger of serious bodily harm and although he had used only such force as might have been necessary (even to the extent of killing his wife) to protect his life or save himself from great bodily harm. We understand him to hold that the original shooting and wounding by the husband, though not “murder,” was none the less illegal and “manslaughter” — that quoad the shooting and fighting. Defendant was the aggressor ab initio, and that this original illegal status was sufficiently retained throughout the subsequent phases of the trouble to prevent his conduct from being held “justified;” that under the circumstances stated he was still “legally” guilty of “manslaughter.” The court applied to the case the rule that the "aggressor in a fight or difficulty can not plead “ self-defence ” in “ justification-” of a homicide unless and until he had withdrawn from or attempted to withdrawfrom it in good faith. It did not trace the trouble as to its origin further back than the husband’s firing the shots, and left the wife and the adulteress as being “ aggressors in any way in the immediate difficulty entirely out of view. We think there is a' difference between the case of a person who, having- originally no immediate cause of provocation himself, should originate a difficulty which, in its after phases, would lead to his killing the person whom he led into it, and that of a man who entering into his own home is there brought to face a scene calculated to throw him into a condition of frenzy, under the influence of which he commits an act which, though not legally excusable, comes near the border line of justification. We think the situation was such as to justify us in referring the origin of the difficulty to the wife and her paramour as the “aggressors,” sufficiently'so to open the door to submisson to a jury of a plea of “ self-defence ” when in one of the after phases of the difficulty the husband’s life had been placed in danger by one of them, and in order to save the same he had killed the party making the killing necessary.

We think the rigor of the rule which the court refers to should be relaxed in a case of this character, and that the matter of self-defence should have been submitted to the jury to be by it passed upon under the whole evidence, and that this excluded testimony could legally have formed part of it. It is true that the jury found the accused guilty of manslaughter, but non constat what their verdict would have been had this testimony gone to it. We must not read the situation from a standpoint of affairs after the verdict and assume that defendant, under a verdict of manslaughter, has been accorded all the relief that the facts and the law entitled him to. We are not informed of all the facts of the case. We do not know were Delatte was or what he was doing at th.e time the wife of the defendant called out to him. Had Delatte advanced upon defendant while he was held by his wife, the situation might well have become critical.

It is possible that appellant had no good substantial ground for believing his life to have been in danger at that time and through his wife’s.conduct, but that was a matter for the jury to determine.'

We think special reference to the fourth bill unnecessary. The fact is obviously conceded on both sid&s that accused shot at Delatte, and at his wife, before the latter made any demonstration against him. The fact being conceded, there was no necessity for testimony on that point to have been taken down by the clerk.

The question of law attempted to be raised in the sixth bill taken to the refusal of the court to give to the jury the special charge therein referred to, has been discussed in our opinion as to the correctness of the court’s ruling, excluding the testimony of Dora Putnam. The charge asked was properly refused, as it did not set forth a given state of facts to serve as a predicate for the same. The principle asked to be announced by the court was clearly unsustainable as an absolnte, general, legal proposition.

For the reasons herein assigned, it is ordered, adjudged and decreed that the verdict of the jury and the judgment thereon be and the same are hereby set aside, and the cause is remanded to the District Court for further proceedings according to law.


source: Caselaw Access Project

author: Nicholls, C. J. Mr. Justice Blanchard:

license: Public Domain

text:
    No. 12,561.
    George F. Patton vs. Thomas Pickles.
    In. a contract for ferriage, safe transportation is not merely an incident of the contract, but it is its very direct object. When the obligor fails to perform that obligation the obligee is entitled to damages just as the obligee is entitled to damages for. inexecution of any other contract unless the obligor can offer just and legal reasons for non-execution.
    He who claims the execution of an obligation must prove it. On the other hand he who contends he is exonerated must.prove the fact which has produced the extinction of the obligation. The very fact itself of the non-execution of a contract carries with it the presumptien of a “ contractual fauit ” from which the obligor has thrown upon him the onus of freeing himself.
    Where a person having paid for a ticket for ferriage has, on invitation of the ' employees of the ferry company, passed out upon an iron bridge leading to the ferry-boat, and while standing thereon it broke, precipitating her into the river, it is not for the passenger to prove that the breaking was due to the negligence of the company, but upon the company to establish affirmatively a state of facts which would release it from responsibility.
    APPEAL from the Civil District Court for the Parish of Orleans. Théard, J.

      O. B. Sansurn for Plaintiff, Appellee.

      Frank E. Bainold, Frank N. Butler and Bernard MoCloskey for Defendants, Appellants.
    Argued and submitted March 11, 1898.
    Opinion handed down April 18, 1898.
   The opinion of the court was delivered by

Nicholls, C. J.

The defendant, Thomas Pickles, has held for many years, under, contract with the city of New Orleans, the franchise for ferrying passengers, wagons, etc., from the foot of Canal street, on the left bank of the Mississippi river, to Algiers, on the opposite side of the same stream, and from Algiers to the city of New Orleans.

Passengers intending to cross from Algiers to Canal street pass first into a large room erected upon the river bank, from which, through a door opening toward the river, they pass upon an inclined iron bridge or gangway leading down from the ferry house to a ponoon bridge below.

This pontoon bridge rises and falls with the rise and fall of ifhe Mississippi river. It Is moored alongside of a line of piling which receives the push or shock of the ferry boat as it lands against the pont.oon. The iron inclined bridge passes between some of the .pil • ings, but its outer edge is not intended to pass beyond the outer edge of the piling. The immediate connection between the iron bridge and the pontoon is by means of an apron which is expected to slide as occasion requires. At the entrance of the ferry house on the shore t side is a turning stile through which passengers pass, one by one, paying their fare as they pass through. It is furnished With a check, which being applied, prevents any one from entering the room.

Wagons and vehicles about to be crossed go through a side gate upon a wagon gangway leading down to the pontoon bridge. There is no connection between this gangway and ,the iron bridge. On the night of the 19th, or the morning of the 20th of October, 1895, a disastrous fire occurred in Algiers, which attracted during that day to the latter place very large crowds, the number being estimated to be between ten and fourteen thousand persons. While numbers returned to the city, a very large number remained on the Algiers side until nearly dark, when they commenced crowding to take passage back upon the ferry boat. Among the persons so returning at. that time were the wife of the plaintiff and her son, a boy about ten or eleven years old. They paid their fare at the turning stile and passing through the ferry room, went out for several feet upon the iron bridge. The lower part of the bridge was then crowded with persons, while others continued to pass out upon the upper portion from behind through the ferry room. The situation was such as to-make it difficult for Mrs. Patton and her child to return. They attempted to do so, but before they could pass into the ferry house, the iron bridge broke at about its middle point ahd precipitated her into the river. '

. She received painful injuries from her fall, and contracted from her wet eíothing a serious attack of bronchitis. Defendant, on appeal, maintains that judgment was erroneously rendered in plaintiff’s favor for damages for her injuries so received.

The syllabus of defendant’s brief is as follows:

1. “ Plaintiff proved that the bridge, belonging to defendant leading from the waiting room of the ferry house to the pontoon or

floating wharf, broke, and she was injured thereby. No negligence of any kind is proved and the court is asked to presume negligence from the mere fact of accident, and likewise to presume that the plaintiff was not guilty of contributory negligence.

2. No such presumption can arise in favor of a person except he is being passively conveyed in the vehicle of a common carrier. While the passenger is on the platform, bridge,' in.the station house, or any other portion of the premises of a common carrier, moving from place to place of his own volition, the carrier occupies toward him the' precise relation of any other owner of real estate toward the customer who comes upon his premises. If he is injured, in order to recover damages he must prove negligence on the part of the carrier and likewise prove that he was free from contributory negligence, Thompson’s Carriers of Passengers, pages 104, 209, 214.

3. The burden of proof is therefore upon the plaintiff to establish negligence, but (ex industria) defendant has proved that he was in no wise negligent. He proved that the bridge which collapsed was built according to plans and specifications which were approved by the City Surveyor; that he was the proper officer to approve the same, being designated as such by the contract. That said plans called for the construction of a bridge calculated to carry one hundred pounds to the square foot with a factor of safety of six, and a bridge of this character is strong enough to sustain the dead weight of all persons who could stand upon it. That it was constructed by bridge builders of national repute, and Anally; when the bridge was completed, it was inspected and approved by the city surveyor as being in accordance with plans and specifications; that it was likeT wise proved that the bridge was only eight years old and had in no manner deteriorated in strength, the bridge being of iron. That in regard to the bridge the defendant exercised all the care and diligence that human foresight and the experience of twenty years as-lessee of the public ferries could suggest; that it was proved that, an extraordinary and unforeseen event caused nearly fourteen thousand people to cross the ferry on that day, three times as many as had ever crossed on a single day. That the crowd in attempting to. get home from Algiers became excited and uncontrollable; that, they rushed into the ferry house, some paying fares and others not; that the attempt of the superintendent to control the mob was futile; that they crowded, pushed and jammed themselves upon the bridge.in their anxiety to'get home before dark, and this crowd, of which plaintiff’s wife was a part, broke the bridge. That the experience ■of defendant for twenty years as lessee of the ferries had not led him to anticipate such a crowd and he had no reason to believe that ithe passengers would behave in so unreasonable a manner.

That every precaution suggested by an extended and practical experience was exercised by the superintendant upon the occasion. That the lessee was himself at the time sick in bed of the disease of which he ultimately died.

4. Ferry companies are not insurers of the absolute safety of passengers, either while coming on board the ferry boats, or while going ashore therefrom, nor are they bound to guard against probable accidents which could not reasonably be foreseen. Their duty is to furnish accommodations for the receiving and landing of passengers, which are reasonably sufficient for their purpose and for the protection of persons using the means provided in a reasonable way. (Blackman vs. London, etc., R. Co., 17 W. B. 769; Riggs vs. Manchester, etc., R. Co., 12 Jur. (N. S.) 525; Cornman vs. Eastern Counties R. Co., 4 H. & N. 781; Crafter vs. Metropolitan R. Co., L. R., 1 C. P. 300; Dougan vs. Chaplain, Tr. Co., 56 N. Y. 1; Crocheran vs. North Shore, etc., Ferry Co., Id. 656; reversing 1 N. Y. Sup. Ct. (T. & C.) 446; Cleveland vs. New Jersey Steamboat Company, 68 N. Y. 306.) It is not enough to make out a case of negligence to suggest that additional precautions would have prevented the acci•dent. Loftus vs. Union Ferry Company, 22 Hun. 33, granting new trial after verdict for plainiiff. Dyer vs. New York, L. E. & W. Ry. Co., 7 Atlantic Reporter, Vol. 7, p. 417; 138 N. Y. Court of Appeals, 647. Amer. and Eng. Encyclopedia of Law, Vol. 2, p. 804; Vol. 7, p. 949, par. 4.”

Defendant quotes the New York Court as saying in Cleveland vs. The New Jersey Steamboat Co. that: “A carrier of passengers is not bound to foresee and provide against casualties never before known and not reasonably to be expected (56 N. Y. 1; 52 N. Y. 32, 656) . Hence his duty is not to be estimated by what, after an accident, then first appears to be a proper precaution against a recurrence of it.” (Bowen vs. N. Y. Central R. R. Co., 18 N. Y. 408.)

He quotes the same court in Loftus vs. Union Ferry Company of Brooklyn, 84 N. Y. 460, in which it said:

“We think this case is governed by the cases of Dougan vs. Chaplain Trans. Co., 56 N. Y. 1; Cochran vs. North Shore Staten Island Ferry Co., Id. 656; and Cleveland vs. New Jersey Ferry Co., 68 N. Y. 306. The defendant was bound “ to provide suitable and safe accommodations for the landing of passengers.” The rule of the strictest, diligence in this respect is the only one consistent with a due regard to the value of human life and with the relation which the defendant assumed to the public. But the rule does not impose upon the defendant the duty of providing for the safety of its passengers, that they shall encounter no probable dangers and meet with no casualty in the use of the appliances provided by it. It was possible for the defendant so to have constructed the guard that such an accident as this could not have happened.”
“If defendant ought to have foreseen that such an accident might happen, or such an accident could reasonably have been anticipated, the omission to provide against it would be actionable negligence. But the facts rebut any inference of negligence on this ground. The company had the experience of years certifying to the efficiency of the guard. That it was possible for a child, or even a man to get through the opening was apparent enough, but that this was likely to occur was negatived by the fact that multitudes of persons had passed over the bridge without the occurrence of such a casualty. If the structure was intrinsically insecure, the fact that it had been used without injury before this would not exempt the company from responsibility when it did occur from its defective condition. We think the exemption of the defendant in this case rests upon the fact which we think clearly appears as an inference from the other facts, that the company had no reason to apprehend an accident like this, and that the arrangements made were such as experience had, up to that tinie, shown to be safe and suitable and sufficient, to meet the requirements of its duty.”
“The line which separates a pure misadventure, resulting in injury for which no one is responsible, from accident creating a responsibility by reason of negligence, is often narrow and difficult to be drawn, but we think the casualty in this case is of the former and not of the latter class.”

He (defendant) further refers to the cases of Race vs. Union Ferry Co. of New York and Brooklyn, 138 N. Y. 647, and Dwyer vs. N. Y., Long Island & Western Railroad Co., in the former of which the court held that “ the ferry company in the management of its business had the right to assume that passengers would take care of themselves, and if it conducted its business with such care and skill as-would make the entrance upon its boats safe for persons of ordinary prudence, it met the requirements of the law. The proof on the part of the defendant showed that all-its ferries were managed in substantially the same way, and that while they carried many millions of- passengers yearly no accident of this kind was ever reported or known; that the plaintiff had the burden to show that the defendant was guilty of culpable negligence and that in that particular case plaintiff had failed to sustain that burden.” And in the second of which cases, it declared that “ if a person on leaving a ferry-boat voluntarily joins a crowd which is so dense as to prevent him from seeing where he treads, and voluntarily proceeds with such crowd and is injured by his foot being caught between the boat and the' dock, such conduct manifests, per se, contributory negligence and he should be non-suited.”

Plaintiff on the other hand insists that Thompson on Carriers of Passengers (p. 210) correctly lays down as a general rule that where an injury happens to a passenger, in consequence of the breaking of the vehicle, roadway or other appliance owned or contracted by the carrier and used by him in making the transit, the person entitled to sue for an injury makes out a prima fade case for damages against the carrier by showing the contract of carriage — that the accident happened in consequence of such breaking or failure and that in consequence of this accident he sustained damages. That when these facts are made to appear it will devolve upon che carrier to excuse this prima fade neglect of duty to show that notwithstanding the accident happened as shown by the plaintiff’s evidence, it happened in spite of the use by himself, his servants and the contractors by whom his roadway appliances and vehicles were built, of the greatest degree of diligence practicable under the circumstances. In other words, he must show in order to rebut this presumption that the accident resulted from circumstances against which human care and foresight could not guard.”

Defendant contends that this rule does not apply where the occasion of the hurt of the passenger was an active, voluntary movement on his part, combined with some alleged' deficiency in the carrier’s means of transportation or accommodation, and the reason is that in such cases it is necessary to consider whether there may not have been contributory negligence on the part of a passenger. That it is only in respect of those accidents which happen to the passenger while he passively trusts himself to the safety of the carrier’s means of transportation, or to the skill, diligence and care of his servants, that the rule applies. That the rule imposing upon the carriers of persons the highest degree of care has this limitation, it applies only to those means and measures of safety which the passenger of necessity trust wholly to the carrier. That in general it is applicable only to the period when the carrier is, in a certain sense, the bailee of the person of the passenger. That where the passenger is injured by reason of certain defects in the buildings or grounds of the carrier’s before the transit has commenced, or after it has ended, the carrier is or is not liable accordingly as he has or has not been guilty of want of ordinary care. That in this respect he occupies toward the passenger the precise relation of any other owner of real estate toward his customers who come upon his premises for the purpose of transacting business.

That though carriers are bound to keep in a safe condition all portions of their platforms and approaches thereto to which the public do or would naturally resort, and all portions of their station grounds, reasonably near to the platforms where passengers, or those who have purchased tickets with a view to take passage on their cars, would naturally or ordinarily be likely to go, the duty of protection to such persons does not go to the extent of a warranty of the safe condition of the premises, neither is the carrier held bound to bestow upon their condition that extraordinary degree of vigilance which the law, from motives of the soundest policy, imposes upon him in regard to the carriage of his passengers. That the passenger, while in actual progress upon his journey, is exposed to countless hazards giving himself in charge of the carrier, and in view of the circumstances of the case the law requires of the carrier the exercise of the greatest possible diligence for the benefit of the passenger and holds him responsible for the slightest negligence, but that the rule ceases with the reason for it; therefore, as a passenger’s entrance to the carrier’s station is characterized by none of the hazard incident to the journey itself, the rigor of the rule is justly relaxed, in that at such a time and place the carrier is bound to exercise only a reasonable degree of care for the protection of his patrons.”

The parties to the present litigation occupied contractual relations to each other. Plaintiff’s wife had paid for a passage across the river from Algiers, and had, after such payment, gone within the approaches to the ferry boat, and was actually making use of the appliances furnished by the defendant for making the trip. The contract between the parties was one which from time immemorial has imposed upon the obligor exceptionally severe obligations. Safe carriage is not merely an incident of the contract, but it is its very direct object. To safely transport is precisely that which the carrier undertakes for a consideration to do. When the obligor fails to perform that obligation the obligee is entitled to damages just as the obligee is entitled to damages for inexecution of any other contract, unless the obligor can offer just and sufficient reasons for non-execution. What the extent of the damages would be in any given case where the non-execution could not be fully justified" would depend upon the circumstances of the case. Art. 2232 of the Civil Code declares that he who claims the execution of an obligation must prove it. On the other hand, he who contends that he is exonerated must. prove the payment or the fact which has produced the extinction of the obligation, and Art. 1926, that “ on the breach of any obligation to do or not to do, the obligee is entitled to damages.” The general rule is modified by the second paragraph of Art. 1923, which declares that “ when, by a fortuitous event or irresistible force, the debtor is hindered from giving or doing what he has contracted to give or do, or is from the same cause compelled to do what the contract bound him not to do, no damages can be recovered for the inexecution of the contract.”

Under Art. 2219, O. Ó., an obligor, under a contract to give, is relieved from his obligation, if he be prevented from executing it by reason of a fortuitous accident, but the article requires him to prove the fortuitous accident- which he alleges. The particular contract which we are considering falls properly under the rules of our Code governing contracts of carriers and watermen. Art. 2754 of the Code under that heading is to,the effect that ‘ ‘ carriers and watermen are liable for the loss or damage of the things entrusted to their care unless they can prove that such loss or damage has been occasioned' by accidental or uncontrollable events.”

It will be seen from this that the general rule as to where lies the-burden of proof for non-execution of a contract is not departed from in the case of a carrier’s contract for transportation, but it is specially reaffirmed and emphasized.

The very fact of the non-execution of the obligations of a contract carries with it of itself the presumption of a 11 contractual ” fault from which obligor has thrown upon him the onus of freeing-himself. 'The French writers classify faults into “fautes contraetuelles” and “fautes delietuelles.” The “faute delictuelle ” is one which characterizes the act resulting from it as an “ offence or as a qwasi-offence.” With respect to the burden of proof when the result of a suit is dependent upon the existence of such a fault having been established the general rule (subject to exceptions) is that the person alleging it must show it either directly or by proof of facts from which its existence could and would logically and fairly-be inferred. Corresponding to “fautes contraetuelles” and “ fautes delietuelles” ■are “obligations contraetuelles ” and “obligations delietuelles,” the first resulting from contracts, the second from the law. We have on several occasions referred to the fact that; obligations as of “tort ” could be superadded to the “ .contractual obligations ” flowing from the contracts of parties (See also 30 N. E. Rep. 1021)..

It is exceedingly difficult sometimes to ascertain whether a particular action as brought for damages is one “ ex contractu” or “ex delicto. ” Our Code in one and the same article (Art. 1934, C. C.) deals as well with the damages resulting from “ offences and quasi - offences” as from “contractual faults” proper, though without referring to matters of evidence in connection with them. It gives much more flexible powers to juries and to courts in fixing the quantum of damages in eases of tort than it does in matters of simple inexecution of contracts. When a suit is brought for damages for non-execution of a contract, the question of the burden o proof as to the character of the fault committed becomes important only when the character or quantum of damages is dependent upon that fact. In the case at bar there is proof positive of a contract f.or the safe transportation of plaintiff’s wife from Algiers to the opposite side of the river over the ferry operated by the defendant, and equally positive proof that this contract was not executed by the defendant. We are of the opinion that the defendant has not shown that this inexecution resulted from accidental and uncontrollable events (0. O. 2754), and that compensatory damages would be due to the plaintiff under Art. 1933, C. 0. for this non-execution viewed from the standpoint of the violation of a contract, independent of any question of the defendant’s having been guilty of an offence or quasi-offence. We have not overlooked the fact that Art. 2764 of the Civil Code, in reference to the responsibility of carriers, refers to the loss or damage to the “ things ” entrusted to their care and makes no mention of “ persons.” It is quite possible and probable that in some particular cases, and for some particular purposes the fact that the contract of transportation, for the inexecution of which damages are claimed in a suit, should be one for the transportation of a “ person,” instead of a “thing” would modify to some extent the responsibilities of the contracting parties, but not to the extent which defendant claims. While we may not be able to declare with certainty to what particular fact the breakihg of the bridge which caused the injuries to plaintiff’s wife should be attributed, we see enough to convince us under the evidence that defendant’s course and conduct did not come up to the standard required of him as a carrier of passengers, and that plaintiff’s wife was guilty of no contributory negligence. In the first place, it was at all times within the power of defendant’s employee in charge of the turning of the stile at which fare was received, by making use of the check attached to the stile, to have,controlled the passing of persons through the ferry house on to the iron bridge, and to prevent that point at least (which was the precise one at which the plaintiff’s wife was exposed,) from becoming a point of danger.. It is very clear to us that he did not do so, but that he continued to-receive fares and to permit persons to pass through the ferry house on to the iron bridge, up to the very moment of the accident, and that the persons standing on the passenger bridge near the ferry house, became involved in the accident as the direct result of being permitted and invited to pass upon it under dangerous conditions. In the next place, it was perfectly feasible for defendant to have prevented the crowd, which made its way to the pontoon by way of the wagon gangway from doing so by closing the gate which led to-it. It was this particular portion of the crowd which defendant evidently refers to in his pleadings as the “ pushing, rushing crowd,”' which went in without paying.

More persons may have crossed over the ferry on the day of the accident than had ever passed over it before, but defendant’s employees had the experience of many “Mardi Gras” crowds (as one-of the witnesses states), and they must have known and should have anticipated that as nightfall approached there would likely be a rush to cross back to the city, and proper precautions should have been taken to guard against the crowding through the wagon-way down to the pontoon, especially as the superintendent was present upon the spot. The defendant urges upon us that the bridge was built by bridge builders of national reputation, that the number of persons upon it on the day of the accident was less than the number which it was constructed to hold, standing head to head. That it was fully as strong the day it broke as it was the day it was placed in position. That it had been in position for eight years with crowds passing over it, and not a single accident had occurred during the whole time.

It is true that the bridge had been in position for a number of years without accident, but this particular argument loses much of its force from the fact that the bridge had been taken from the position which it had originally been placed in, for the purpose of renewing and repairing the wooden piling under and about it and that it was only thrown open for travel over it on the day before the accident. It is more than probable that when replaced in position, its bearings were not properly adjusted or that some of the pilings were either faulty in position, or were otherwise defective. It was certainly imprudent to put its safety to the test under the new and dangerous conditions under which (when tested) it gave way. From the evidence it would appear that when the ferry boat struck the pontoon bridge the blow forced the latter against the line of piling. That at that time the pontoon bridge was loaded with passengers, as was also the iron bridge at its lower end. That as the boat struck the pontoon, a bar which had been thrown across the lower end of the iron bridge (to prevent persons from moving out of it) was withdrawn and the crowd on the wagon gangway, that upon the pontoon, and that upon the passenger bridge, all moved forward rapidly to get upon the boat. That as the boat struck the pontoon the passenger bridge was raised by the concussion and simultaneously the forward movement of the different crowds occurred, followed at once by the breaking of the bridge in the middle.

The handling of the ferry-boat, the construction of the new piling, the replacing of the iron bridge, the crowding of persons upon the wagon-way and upon the iron bridge, particularly upon the latter, were all matters under the direct control of the' defendant. Erom faulty action, as well as faulty inaction of the defendant, in respect to these matters, or some of them, in concurrence, possibly, with a rush on the part of the persons upon the wagon and passenger approaches, the bridge, on which plaintiff’s wife was standing, was caused to break, and defendant became responsible for the same.

It is no anwer in the case to say that defendant had no control over the conduct of the crowd, for, in the first place, they should not have been permitted to be in such numbers upon the gangway, and, in the next place, the parties who were standing on the upper portion of the iron bridge at the time of the accident (and plaintiff’s wife was one of them) would not have been there had the man at the turnstile turned the check upon it as he should have done when danger became apparent to him. A simple suggestion, even, of danger, to a timid woman, would have caused her to desist from entering. She could not be expected to have anticipated or to have realized any sooner than she did, the possibility of danger in view o} the direct invitation of defendant’s employee to her “to pass in,” and his receipt of her fare in so doing. Under plaintiff’s prayer on appeal for an increase of the amount of damage awarded, we have examined carefully the testimony bearing on what should be the quantum of damages to be accorded. It is one of those cases where physical pain andjsuffering constitute the principal factors. While it is quite probable we would have accorded plaintiff heavier damages had we been called upon to pass on this question in the first instance, we do not feel warranted in reversing, on this point, the judgment appealed from.

It is ordered, adjudged and decreed that the judgment appealed from be and the same is hereby affirmed.

Mr. Justice Blanchard:

I concur in the opinion of the majority of the court that plaintiff should have judgment, but dissent as to the mere affirmance of the judgment appealed from, believing the same should be increased to one thousand dollars.


author: Nicholls, C. J.

text:
    No. 12,840.
    Benton & Milliken vs. G. W. Sentell et al.
    Plaintiff in a partition suit, who has cited a number of co-defendants as owning certain designated interests in the property sought to be divided, has no legal reason to complain that one of the defendants, after denying that the Interest of one of her co-defendants was as large as had been stated in the petition, should, under an agreement with that co-defendant, have discontinued (under reservation of her rights) her opposition on that point, and permitted the partition to proceed on the basis alleged. Contestant couid not, thereafter, attack generally the partition, on the ground that that particular party had been assigned too large an interest. The partition as made would stand, though the two parties might have to adjust rights dehors the partition between themselves. If plaintiffs obtain all they are entitled to, they have no legal concern as to how the other parties to the litigation may settle their relative differences.
    A vendor having, by warranty deed uuly recorded, undertaken to sellan undivided fifth interest in a plantation when his real interest was less, any interest therein which the vendor should thereafter acquire, up to the extent of the interest conveyed, would at once, without any act between the parties, enure to the benefit of the vendee. A declaration in the act of sale as to how he had acquired the thing sold would be merely descriptive, and not limit the extent of the thing sold or the warranty.
    A quit-claim deed reaches only to interests actually owned at that time by the party executing it; it is of no effect whatever as to interests already gone.
    A husband uniting with his wife in executing a quit-claim deed is estopped from, attempting thereafter to acquire by seizure (as a creditor of his wife’s succession) rights which she had, with his consent, voluntarily surrendered.
    APPEAL from the Seventh Judicial District Court for the Parish of Carroll. Montgomery, J.

      O. S. Wyly for Plaintiff, Appellant.

      Clifton F. Davis for Mrs. Kate Ellett, Co-defendant, Appellee.
    Argued and submitted June 4, 1898.
    Opinion handed down June 13, 1898.
    Rehearing refused June 29, 1898.
   The opinion of the court was delivered by

Nicholls, C. J.

The plaintiffs in this case alleging themselves to-be each the owner of an undivided one-fifth interest in a plantation in the parish of East Carroll, known as the Glen Mary plantation, brought this suit for a partition -of the same between all the joint owners thereof, setting up incidental demands by reason of improvements which they averred they had put upon the property.

By consent of parties all the issues raised in the lower court, under the pleadings of the different parties, but one were postponed for examination and decision to some future period. The case was taken up and tried on the single question as to the extent of the interests of the different joint owners.

Plaintiffs in their original petition named as joint owners of the plantation with themselves George W. Sentell, of New Orleans; Mrs. Kate Ellett, of Memphis, Tenn., and George M. Fletcher, of New York, declaring that each of said parties owned an undivided one-fifth interest in the plantation. At their instance the parties named were cited. By supplemental petition plaintiffs having alleged the death of George W. Sentell, Mrs. Susie S. Barber, a daughter and heir of the deceased who had acquired his interest in this property in partition proceedings between herself and her co-heirs, was made a defendant in lieu of her father.

All the defendants answered. After George M. Fletcher had done so, the plaintiffs bought out his interest in the property, and alleging that fact increased accordingly their claims as to the extent of their jointj ownership. Mrs. Kate Ellett, in her answer (filed before this purchase of Fletcher’s interest had been made), denied that the interest of the plaintiffs or Mrs. Barber or Fletcher in the property was such as plaintiffs had alleged it to be, and averred that her own interest was larger than had been declared in the petition. . She alleged that the property was susceptible of division in kind, and prayed that the interest of each of the co-owners be set apart to them separately and in full ownership respectively, as follows: To herself, two-fifths; to G. M. Fletcher, three-twentieths; to Mrs. Barber, three-twentieths; to J. 8. Milliken, three-twentieths; to O. D. Benton, three-twentieths.

Upon the filing of this answer of Mrs. Ellett, Mrs. Barber appeared, excepting, that Mrs. Ellett’s attack was unwarranted and unjustifiable; that the effect of the same was to change her (Mrs. Ellett’s) position from a co-defendant with her to that of a plaintiff adverse to her, in a petitory or possessory action; that she could not advance her claims in this collateral manner.

By agreement between these two parties, Mrs. Ellett’s attack upon the extent of Mrs. Barber’s interest was (under reservation of rights) discontinued in spite of the objections made thereto on the part of the plaintiffs. These objections being overruled, plaintiffs reserved a bill of exceptions.

It is conceded on all sides that the Glen Mary plantation belonged, at the time of her death, to a Mrs. Mary Ooleman, widow of William •Stowers. Mrs. Stowers was a daughter of J. B. Ooleman, Sr., and Mrs. Oatherine Coleman. She died childless, leaving surviving her, her father and mother, two brothers (John Ballard Ooleman and Frank Ooleman) and three sisters (Mrs. Kate Ellett, widow of H. T. Ellett; Mrs. Jennie Coleman, wife of George M. Fletcher, and Mrs. Rebecca Coleman, wife of P. Jones Yorke).

Mrs. Rebecca Coleman (Mrs. Yorke) subsequently died, leaving as her heir Miss Catherine Coleman Yorke, who afterward married II. P. Brush.

The father, John C. Coleman, Sr., died in December, 1874.

The mother, Mrs. Catherine Ooleman, died in January, 18B9.

She seems to have been appointed tutrix of one or more of her chil- ■ dren, but of which ones does not appear. What the ages of the •different children were, the record does not disclose.

While tutrix, she as such leased in its entirety a certain store on the 'Qlen Mary Plantation to Benton & Co., a firm then composed of O. D. Benton and James Andrews.

On the 14th of May, 1879, the mother, Mrs. Oatherine Ooleman (then a widow), executed in Tennessee an act before H. L. Claiborne (a notary public in that State, and commissioner for the State ■of Louisiana), in which she declared, “ that in consideration of the sum of three thousand five hundred dollars to her in hand paid by Mrs. Kate Ellett, she did thereby grant, bargain, sell and convey unto the said Mrs. Kate Ellett, her heirs and assigns, all her right, title ■and interest in and to that plantation in the parish of Oarroll, State of Louisiana, fronting on Bunches Bend Lake, or Old River, formerly •belonging to William Stowers, and by him left to his widow, Mary Stow - ers, and by her to her father, John B. Coleman, bounded above (giving the description of the property) to have and to hold the same unto the said Mrs. Kate Ellett, her heirs and assigns forever. But this ■conveyance was made as a security for the payment of the said ■sum of three thousand five hundred dollars, and is to be null and void on the payment of the said sum of money, with interest in two year’s from the date thereof.”

This act was recorded in the mortgage book of the parish of Carroll on the twenty-second day of May, 1879, and reinscribed on the thirteenth day of March, 1889.

On the 1st of April, 1880, by act before Garner, notary public, John Ballard Coleman sold to C. B. Benton under full warranty the. following described property, to-wit:

“ The undivided one-fifth (1-5) interest in and to the following land or plantation situated, etc. (describing the Glen Mary plantation). * * * being the undivided one-fifth interest inherited by the vendor from his father, John B. Coleman.” * * * This act was recorded on April 5, 1880.

On the 21st of May, 1887, the sheriff of East Carroll parish executed a deed to George W. Sentell and W. B. McLean of an undivided one-fifth interest in the Glen Mary plantation, as being the last and highest bidders at a sheriff's sale, made in execution of a judgment obtained by Mrs. Lizzie Coleman against her husband, Frank Coleman, the said one-fifth interest having been seized and sold as the interest of Frank Coleman in said property.

This act was recorded May 26, 1887. On February 14, 1894, W. B. McLean sold the interest so acquired by him to George Sentell, by act which was recorded March 5, 1894.

On the 26th of February, 1896, in a partition between the heirs of George W. Sentell, the property so acquired by Sentell and McLean, and by Sentell from McLean, was set over to Mrs. Susie Sentell, wife of Leonard K. Barber, one of the defendants in the ease. The. act was recorded on the 15th of April, 1896.

On the 17th of June, 1889, John Ballard Coleman executed the following instrument, which was recorded on the 10th of April, 1890:

“ Whereas, on the 14th day of May, 1879, Mrs. Catherine Coleman, of Nashville, Tenn., executed a mortgage upon the real estate hereinafter described, to secure Mrs. Kate Ellett, wife of H. T. Ellett, in the sum of thirty-five hundred dollars, and whereas, said Catherine Cole - man has since died, leaving said debt unpaid; and whereas the same is largely more than the value of the real estate, and it is desirable to rest the title to the same in said Kate Ellett; therefore, this indenture witnesseth that, in consideration of the premises and the sum of five dollars to us in hand paid, we, the undersigned, who besides said Kate Ellett are the only heirs at law of the said Catherine Coleman, do remise, release and forever quit-claim unto her, the said Kate Ellett, her heirs and assigns, all our right, title and interest and estate in and to the real estate so mortgaged, and which is described as follows:

A plantation or tract of land in the parish of Carroll and State of Louisiana, fronting on Bunches Bend Lake, or Old River, formerly-belonging to William Stowers, and by him left to his widow, Mary Stowers, and by her to her father, John B. Coleman, bounded above, etc. (describing the Glen Mary plantation).”

At the time this act was executed, John Ballard Coleman had already disposed of an undivided one-fifth interest in the Glen Mary plantation to C. D. Benton, and that act was then of record.

On the 8th of April, 1889, Miss Catherine Coleman Yorke (afterward Mrs. Brush) sold to C. D. Benton and James S. Milliken, under-full warranty, “ the following described property, to-wit: The undivided one-fifth interest in and to that tract of land or plantation.* situated on Bunches Bend Lake and known as Glen Mary (describing the property) * * the part, parcel, share and interest thereof herein conveyed being the one undivided fifth (1-5).” * * This, act was recorded October 16, 1889.

On the fourteenth day of May, 1889, Frank H. Coleman, John B;. Coleman, Mrs. Jennie C. Fletcher (wife of George M. Fletcher) and Catherine O. Brush (formerly Catherine C. Yorke) executed a quitclaim deed in favor of Mrs. Kate Ellett in words precisely similar to-those used in the quit-claim deed of J. Ballard Oolemgn already copied. George M. Fletcher, husband of Jennie C. Coleman, and H. T. Brush, husband of Catherine C. Yorke, signed this aet. The act seems to have been signed at different times after the 14th of May, 1880.

The act as signed by Frank Coleman, Mrs. Fletcher and Catherine Coleman Yorke (Mrs. Brush), was recorded on the 2d April, 1890;

It will be seen that when this act was executed by Frank Coleman his interest in Glen Mary had been already sold in the suit of his wife against herself, and that Catherine C. Yorke had already sold her interest in Gien Mary on the 8th ef April, 1889, to Bent on and Milliken, and the act to those parties from Miss Yorke was recorded before the quit-claim deed to Mrs. Ellett was recorded.

Mrs. Jennie Coleman Fletcher’s interest in Glen Mary does nob seem to have been alienated or encumbered at the time of her signing the quit-claim deed in favor of Mrs. Ellett.

On September 12, 1894, the sheriff of East Carroll parish executed a deed to George M. Fletcher of an undivided one-fifth interest in the Glen Mary plantation, as being the last and highest bidder at a public sale made in the matter of the succession of his wife, Jennie Ooleman, at which sale the interest of his said wife in said Glen Mary plantation was advertised and sold as being an undivided fifth. This act was recorded November 5, 1894.

On February 19, 1898, after this suit was filed (and after Fletcher had filed an answer in the case) George M. Fletcher sold to O. D. Benton and J. S. Milliken the undivided one-fifth interest which he had purchased in the succession of his wife. The act was recorded March 11, 1898.

Mrs. Bllett’s claim of an ownership of two-fifths in Glen Mary plantation is based upon the theory that at the death of Mrs. Mary Stowers, the property was not willed by her to her father, as declared in the mortgage which Mrs. Catherine Ooleman gave to Mrs. Bllett, in the act from J. Ballard Ooleman to 0. D. Benton, and in the quit•claim deeds signed by Ballard Ooleman, Frank Ooleman, Mrs. Jennie Fletcher and Mrs. Catharine Yorke Brush, on which she declares— but that it descended to her legal heirs, who were her father and ¡mother and brothers and sisters.

That the father inherited a fourth, the mother a fourth, and the 'brothers and sisters (five in number) each a fifth of a half, or a tenth each. That when the father died, each child inherited from him a ¡fifth of a fourth, or one-twentieth.

That when the mother died each child inherited from her a fifth of :a fourth, so that the ultimate interest of each child in the property was one-fifth of one-half, equal to one-tenth, or two-twentieths, plus one-fifth of one-fourth, equal to one-twentieth, plus one-fifth ■of one-fourth, equal to one-twentieth, equaling altogether four-twentieths, or one-fifth.

That subsequently all of the four children relinquished to her their one-twentieth inherited from their mother, so that, adding these four-twentieths (one-fifth) to her own prior interest, she now holds an undivided two-fifths interest in the property. She does not pretend that the parties signing the quit-claim deeds intended to convey to her anything more than their respective interests in the property .that was inherited (on her theory) from their mother.

Though the parties for years all acted upon the theory and belief that Mrs. Mary Stowers bequeathed Glen Mary plantation to her father, no evidence was introduced at all to establish that fact, or that either Mrs. Stowers’ succession or that of J. B. Coleman was ever opened. If such a will was ever made, it was never produced or probated.

Whether Mrs. Ellett denies absolutely that there ever was any such will, or that having never been probated it remained without effect (0. 0. 1644), we do not know.

All the other parties acknowledge, that Mrs. Ellett is entitled to an undivided fifth — that is to say, all parties, but herself, adhere still to the idea that the property passed from Mrs. Stowers to her father.

Mrs. Ellett insists, that even should she be wrong in her legal position, she is entitled to hold that assumed by her for the reason that the plaintiffs by their acts and conduct have estopped themselves from contesting its correctness. She claims that Benton was for years the intimate friend and counselor of her family and of herself — that he has always recognized and dealt with her on the basis of the situation which' she is contending for, and it is too late for him to gainsay it. That Milliken was fully advised of everything done, and is he also estopped, and that Fletcher having himself signed and approved the quit-claim deed granted by his wife, is in no position to go behind it.

The District Judge rendered judgment sustaining Mrs. Ellett’s’ plea of estoppel and decreed Glen Mary plantation to the parties to this suit in the proportions as follows: To Benton and Milliken, nine - twentieths; to Mrs. Kate Ellett, seven-twentieths; to Mrs. S. K. Barber, four-twentieths, and that said interest be set apart in full ownership.

The District Court evidently gave effect to the quit-claim deed of Ballard Coleman — Mrs. Jennie Fletcher and Mrs. Catherine York Brush, to the extent of recognizing that each of those parties conveyed thereby to Mrs. Ellett a one-twentieth interest, which they held as being heirs of their mother and on the theory, that the property passed from Mrs. Stowers’ succession as an intestate succession to her legal heirs. The interest of Mrs. Barber, for the time being, not being contested, was admitted as correct at four-twentieths or one-fiftb.

Plaintiffs appealed.

They maintain that whether or not at the time Ballard Coleman conveyed to C. D. Benton the one-fifth of the Glen Mary plantation, that was in reality the extent of his interest, that fact plays no important part in the litigation, inasmuch as on Mrs. Ellett’s theory of the facts of the case he none the less ultimately acquired as heir of his- father and of his mother an interest sufficient to supplement the interest, which (on that theory) he had before, so as to make good his recorded warranty deed of an undivided fifth interest in the Glen Mary plantation.

That as he acquired these new interests they enured at once to Benton’s benefit. In support of this position they refer to Bonin vs. Eyssaline, 12 M. 187; McGuire vs. Amelung, 12 M. 649; Woods vs. Kimbal, 5 Martin (N. S.), 247; Fenn vs. Rils, 9 La. 99; Stokes vs. Schackleford, 12 La. 170; Lee vs. Perguson, 5 An. 532.

They say there was no intervening obstacle then existing to the operation of the doctrine announced in the decisions quoted. That when once this accretion (if it could be so styled) took place it was beyond the power of Ballard Coleman by a subsequent quitclaim deed to his sister to alter the already fixed existing condition.

They contend that when Catherine Coleman Yorke on the 8th day of April, 1889, conveyed to Benton & Milliken an interest of one undivided fifth in the property, she held that interest in it in point of fact; whether she should be considered as.having inherited it directly from her grandfather alone, or whether she did so through first her mother as one of the legal heirs of Mrs. Stowers, and next as becoming subsequently a legal heir of her grandfather and then her grandmother.

That when she executed her quit-claim deed to Mrs. Ellett she had already disposedof her entire interest in GlenMary toBenton & Milliken, and the deed to the latter was also placed of record before the quit-claim deed was recorded.

The first point to which we direct our attention is the complaint made by the plaintiffs, that the court should have permitted Mrs. Ellett to have discontinued her attack as to the extent of Mrs. Barber’s interest in the property. Plaintiffs had brought Mrs. Barber as a party defendant into the case, and the effect of the discontinuance was not to throw her out. It was out of the power of either Mrs. Barber or Mrs. Ellett, or both, to disconnect the former from the suit. Once in it, she was bound to remain unless she could herself successfully plead some exception having the effect of dismissing her. Mrs. Ellett was perfectly free as between herself and Mrs. Barber to contest or not the latter’s rights, or having contested them, .to discontinue the attack either absolutely or under reservation. We do not see how plaintiffs could be prejudiced in this matter. If they obtain all they are entitled to, they have no interest as to how the oth'er parties may dispose of or settle their own relative differences. If this case goes to judgment, and the rights of parties other than those as between Mrs. Barber and Mrs. Ellett be fixed on the basis of Mrs. Barber’s having an undivided one-fifth interest in the property, Mrs. Ellett could not hereafter renew her attack and have the partition rescinded or modified on the ground that her interest was different from that which is for the present conceded. The attack if made, would have to be directed against the moneys which Mrs. Barber should (if the partition was by licitation) have (as between those two parties exclusively) unduly received beyond her legal share, or exclusively against the property which should have been specially allotted to her in kind. There could be.no general upsetting or rescission of the partition itself.

The District Oourt failed to disclose upon what facts or acts it held Benton, or Benton & Milliken, estopped from claiming the exact rights to which they are legally entitled. We can discover nothing wherein they have violated confidence or fiduciary relations, or led Mrs. Ellett into any course of conduct prejudicial to her. The act of sale from Ballard Ooleman to Benton was at a time when all parties were of the opinion that Glen Mary had been bequeathed to her father, and when as a result of that fact Ballard Ooleman’s interest in it would have been an undivided fifth. There is no reason assigned why he could not and why he should not have undertaken to make the sale he did. If he should make any error in the extent of the interest he conveyed, he would be bound on his warranty.

If it be true, which is by no manner of means certain, that he did really sell more than he was entitled to, the other fact that he should have subsequently become the heir successively of his father and mother by their deaths, and by so becoming had fulfilled his warranty, were legal results flowing out of a condition of affairs to which he did not lead up and of which he was strictly entitled to avail himself. We can see no valid reason why plaintiffs should not have purchased the interest of Catherine Yorke, or subsequently the interest of Eletcher.

We find no ground for holding that Mrs. Ellett had been influenced by Benton to follow the particular course which was adopted, of causing the various parties interested in the Glen Mary plantation to execute quit-claim deeds to her instead of proceeding to foreclose on what is correctly said was at best a mortgage held by Mrs. Ellett. Her son says, on the contrary, that the course followed was under the advice of a commissioner for Louisiana in Tennessee, who claimed to understand Louisiana law. By wbat authority Mrs. Coleman had mortgaged that property to Mrs. Ellett does not appear on the face of the instrument which she signed, she had no ownership in it, for it was therein declared that it had been left by Mrs. Stowers to her father. The parties who signed the quit-claim deeds never acknowledged their direct personal liability on the loan made to their mother, nor her authority to mortgage the plantation, nor acknowledge that their mother had any ownership therein. They had the right if they thought proper, as owners of the property or interested therein, to relinquish any rights they might have therein to anybody (so long as the rights of third parties legally interested were not prejudiced), independently of any question of mortgage, or liability on their part, direct or indirect, to any person when they did so.

This was all they attempted to do, and this was all they could do. It is a mistake to assume that if Mrs. Ellett had undertaken to foreclose on what is referred to throughout as the mortgage to Mrs. Ellett, that she would have occupied to-day any better position than she has now, as it is quite probable that the parties who signed the quit-claim deeds would have resisted a proceeding of that character. Whether she would or not have occupied a better position, we do not see how plaintiffs are accountable for her not holding it. We think that plaintiffs are correct in their position, that if Ballard Coleman having by warranty deed duly, recorded, undertaken to sell to Benton an undivided fifth interest in the plantation, when his real interest was less, should thereafter acquire an interest up to the extent of the interest conveyed, the latter would at once, without any act between the parties, enure to the benefit of Benton. Coleman undertook to sell absolutely that precise interest, and the subsequent declaration in the act as to how he acquired the thing sold was merely descriptive, and did not limit the extent of the thing sold, or the extent of the warranty.

We think that a quit-claim deed reaches only to interests actually owned at that time by the party executing it; that it is of no effect whatever as to interests already gone.

In the very nature of things there is a great difference between an act of sale or donation and a quit-claim deed. It is true that through the latter, interests . in property may be-acquired, for the party quit-claiming is ordinarily estopped from subsequently asserting rights which had been by him relinquished. A person undertaking to sell warrants the existence of and his ownership of the thiug sold, and is bound to make the warranty good; but a party quit-claiming carries out precisely what he undertook to do in simply abstaining from disturbing or questioning the rights of those in whose favor he has renounced.

We think, however, that George M. Fletcher was estopped from purchasing or legally conveying to Benton & Milliken the full undivided one-fifth interest in Glen Mary which he attempted to sell to them. Mrs. Fletcher, with her husband’s consent, quit-claimed to-Mrs. Ellett “ all her right, title and interest in the Glen Mary plantation.” Mrs. Ellett does not. pretend that that relinquishment,, broad as it is, goes further than to surrender her one-twentieth of the property.

No reason has been assigned why*this deed is not valid. There-were then no outstanding rignts upon the property that we have been advised of. The husband claimed afterward to be a creditor-of his wife, but the time for him to have objected, if objections he-had to make, was prior to the signing of the act. The act having; been signed by him and his wife and placed' of record, he was* estopped from attempting to acquire through his wife’s succession, the rights which she, with his consent, had voluntarily surrendered-The plaintiffs, after this suit was brought and the pleadings of alii the parties had fully developed, attempted to purchase this one-twentieth interest which Mr. Fletcher had parted with. Even if under other circumstances they could have acquired it, they certainly could not do so under existing circumstances. .

We are of the opinion that plaintiffs acquired, through Ballard Coleman, an undivided one-fifth interest in the property; from Catharine Coleman Yorke an additional one-fifth interest, and from George M. Fletcher three undivided twentieths — in all, eleven-twentieths; that Mrs. Barber owns four undivided twentieths, and that Mrs. Ellett owns five undivided twentieths.

For the reasons herein assigned, it is ordered, adjudged and decreed that the judgment appealed from be amended by decreeing the Glen Mary plantation to belong to the parties to this suit in the proportion as follows: To Benton & Milliken, eleven-twentieths; to Mrs. Kate Ellett, five-twentieths, and to Mrs. L. K. Barber, four-twentieths.

It is further ordered, adjudged and decreed that the said judgment be further amended by ordering the costs below to be paid by the respective parties according to their respective interests, and that as so amended the judgment appealed from is affirmed. Costs of appeal to be borne by the parties according to their respective interests.