text:
    Arnauld et al. v. Delachaise.
    Where a proprietor who had divided a part of a tract of land into lots, leaving a space between those nearest the river and the public road, as well as the batture, and the remainder of the tract in the rear beyond the lots, undivided and vacant, sells the lots in conformity with a prospectus which recites that “ the portion of the front, of the batture, of the pasture, and of the cypress swamp corresponding with the lots offered for sale, is abandon■ed in perpetuity in favor of the purchasers, to be by them enjoyed in common, with this sole condition that the said purchasers shall not send in the common pasture but three head of animals for each lot, and shall out wood in the swamp for their private use only, and not for sale,” the interest of the purchasers in the front, batture, pasture and cypress swamp, is not a mere right of use, or usufruct, but the vendor will be considered as having completely divested himself of all light to the property, the term abcmdomrnenl excluding any reservation as to the title as positively as the term perpetuity excludes any limitation of time. The conditions as to the use of the pasture land and wood, is intended merely to regulate the use among the purchasers, and does not conflict with, but is in furtherance of, the avowed objects of the sale.
    If the terms used would, in a testament or donation, transfer the property, they will have the same effect in a contract of sale.
    from the District Court of Lafayette, Clarke, J.

      Maurian, for the plaintiffs.
    The purchasers from Wiltz acquired only a usufruct or right of use to the vacant space in front, to the batture, pasture and cypress swamp. They acquired only a right to enjoy, and not to dispose of it. Code of 1808, p. 100, art. 34; p. 102, art, 1; p. 110 art. 1; p. 124, art. 63. Civil Code, 479, 483, 525, 621. Code Nap. 544, 578, and Rogron’s Comm, on those arts, and on art. 625. Lacroix, Clef des Lois Romaines, verbo Usage, Rodriguez de Fonseca, vol. 3, p. 416, no. 3; p. 404, proeme Law 1. The right of use or usufruct has been forfeited in this case by: 1, non-user; 2, abuse ; 3, by the expiration of the term for .which it was granted.

      Lambert and Mazureau, on the same side.

      Le Gardcur, for the defendant, appellant.
    1. It was not a right of use which the defendant acquired under the abandonment in the Prospectus.

      The right of use, as defined by the Code, is that given to any one to make a gratuitous use of a thing belonging to another, or to exact such a portion of the fruits it produces as is necessary for his personal wants and that of his ■ family. Art. 621. The dominium, of a thing is composed of three different attributes corresponding to as many partial rights, to wit: the usus or use, the enjoyment or fructus, and ihe right of disposing or abusus. We also know that the usus, when granted separately from the other attributes, constitutes a right of use, and the fructus or enjoyment, which also includes the usus, what is called in law a right of usufruct. Ducaurroy, (Institutes expliquées, vol. I, •no. 438) says: “ En comparant l’usufruit et I’usage, on appelle ce dernier nudus usus, pour indiquer l’usage séparé de la jouissance, i’usage sans fruits, nudus usus, id est, sine fr.uctu, de méme qu’on appelle nue-propriété celle dont .on a séparé la jouissance, Effectivement, l’usager: uti potest, frui non potest, tandis que l’usufruitier a le double droit d’user et de jouir.” It is, therefore, plain that the title which expressly grants the enjoyment, that is, the fructus of a thing, constitutes on behalf of the grantee a right of usufruct and not a right of use. Now, by referring to the prospectus, we see that the batture, devanture, savane and cypriére are abandoned in perpetuity to the purchasers, not to be used, but to be enjoyed, by them in common; and the consequence is that if the ownership did not pass under this abandonment, it created at least a right of usufruct, but most certainly not a right of use.
    2. The abandonment in the prospectus did not create a right of usufruct.
    A usufruct is a personal servitude which attaches to the person for whose benefit it is established and terminates with his life. La. Code, art. 642. “ Les servitudes personnelles,” says Mackeldey, (Droit remain, p. 153, § 278,) “ ont toutes ce caractére commun, qu’elles sont des droits essentiellement personnels, que parlá elles ne peuvent étre séparéesde la personne qui y a droit, et s’eteignent par sa mort, si elles n’ont été expressément concédées pour elle et pour ses héritiers. Le droit romain range parmi les servitudes personnelles, l’usufruit, l’usage et l’habitation.” Proudhon (Droits d’Usufruit, vol. 1, p. 4, no. 9, 2d paragraph) lays down the rule that: “L’usufruit est, pour l'usu-fruitier, un droit purement personnel, parce qu’il consiste dans la faculté de jouir; faculté essentiellement corrélative á la personne qui en use; et de lá il résulte (no. 12) que, quoique, en these générale, on soit censé stipuler tant pour ses héritiers que poúr soi-méme, néanraoins, lorsqu’il s’agit d’un droiü d’usufruit établi paracte entre-vifs, il n’esttoujours acquis qu’au profit de celui pourlequel il a été nominativement stipulé, et ne peut s’étendre á ses successeurs sans une stipulation oxpresse á cet égard.” Voet (ad Pandectas, vol. 1, p. 600, no. 2) says: “Personales servitutes pracipué tres sunt, ususfructus, usus et habitatio. Quamvis enim haud videatur eundum infidas, quin esc quac naturá suá reales sunt, ex volúntate constituentium in personales degenerare queant, tamen cúm haj tres ita personales sint, utne ex conventione quidem specificá fieri reales possint, usufructu et usu personam desiderante, cujus ossibus inhsereat, et naturá habitationis vel justa sensum communem regugnante, qué minus prosdio eonstituatur, mentó etiatn solas personalium nomea per ex-cellentiam sortitce sunt.” Ortolan, in his Institutes explained, vol. 1, p. 430, says: “Nous passons aux servitudes personnelles, dans lesquelles le droit détaché de lapropriété n’est point détaché pour augmentar l’agrément ou l’utilité d’un fonds; mais pour l’avantage special d’une personne á laquelle il appartient-” Dalloz (Vo. Servitudes, no. 6) says: “La servitude ne peut exister que sur un fonds et en faveur d’un fonds, et ne peut étre imposée ni á une personne ni en faveur d’une personne ; c’esü le caractére qui le distingue essentiellement, des droits d’usufruit et d’usage, lesquels sont independans, pour celui qui les exerce, de la possession ou propriété d’un fonds.”
    From these laws and authorities it follows, as a necessary consequence, that a. grant does not, nay cannot, create a usufruct, unless it be made to a person by name, on account of that person alone, and without any regard to the grantee being or not in possession of a particular estate. Let us apply this rule to the abandonment by Joseph Wiltz. He says, in the prospectus, that the batture, devanture, &c., are abandoned in perpetuity to the purchasers of the forty-two lots offered for sale. It is plain, therefore, that the abandonment is made to no person by name; that it does not contemplate the personal advantage of the transferees, without regard to their being or not in possession of any estate; but, on the contrary, refers exclusively to such persons only, whoever they may be, that may happen to acquire a particular pioce of property. In other words, the right granted by the abandonment attached to the property to be sold without any reference to the particular person that might purchase it; the object being clearly to enhance the value of the property, by the advantages attached to it. Therefore, under the rule as deduced not only from the authorities above quoted, but also from our own laws, the abandonment being made to no person by name, nor on the exclusive account of any person,but, on the contrary, for the benefit of the property itself, did not, nay could not create a right of usufruct.
    But I am willing to admit, for argument sake, that instead of abandoning the things themselves, to wit: the batture, devanture, &c., as he expressly did, Willz had abandoned only, but in perpetuity, the usufruct of those things.What would the consequence be? Unquestionably, that the abandonment being made in perpetuity and the naked property being in express terms given to' none, nor reserved for the benefit of the vendor, the ownership itself passed to the purchasers. The authorities are positive to that effect. Proudhon, (vol. 1, p. 4, no. 8,) lays down the rule that perpetuity is contrary to the very essence of usufructs, and from that rule, draws the following consequences, viz: “ Si1 la jouissance intégrale d’un fonds avait été expressément léguée á perpétuitó au profit d’une commune, le droit légué n’aurait d’usufruit que le nom, et ce serait véritablement la propriété quiaurait été léguée.” Dalloz (verbo Usufruit, no. 1,) fully concurs in the opinion of Proudhon on this question. Roland de1 Vilargues also concurs in the opinion of Proudhon. He says (Vo. Usufruit, no. 8): “Remarquez que l’usufruit ne peut étre que temporaire; ear s’il pouvait étre perpétuel dans sa durée, le droit de propriété ne serait plus rien. Aussi lorsqu’il est établi au profit d’un établissement public destiné á durer toujours, la loi, dans le silence de 1’homme, lui assigns elle-méme un terme. D’ou Ton doit conclure que si un usufruit avait été légué á perpétuité au profit d’une commune, ce serait véritablement la propriété qui aurait été donnée.” Favard de Langlade (Vo. Usufruit, § 4, no. 1,) says: “ Si l’usufruit no s’éteignait point, le droit du propriétaire serait complétement illusoire, et l’utile, la véritable propriété serait dans les mains de l’usufruit'ier. Aussi Ia¡ Cour de Cassation n’a-t-elle point hésité á reconnaitre un droit réel de propriété dans un usufruit perpétuel.”
    The decision referred to by Favard de Langlade was rendered by the Court of Cassation on the 29th June, 1813, in the case of Parré v. D'Avrancke D’Hangeranville. Merlin, upon whose conclusions it was rendered, makes the following remarks, viz:
    “Parl’acte, Guillaume de Montmorency (the original grantor) céde et transporte aux preneurs, moyennant deux rentes fonciéres, annuelles et perpfituelíes, en grains et en quotité de fruits, non pas la simple jouissance, non pas l’usufruit, mais le corps méme, et par conséquent la propriété de deux pieces de terre, l’une de trois cents arpents, formant le gros du fief des Edrolles ; 1’autre, de deux cents arpents, formant le gros-du fief de Lys. Il déclare méme littéralsment céder le fonds propre et domains de ces deux fiefs ; il oblige de I’un et de l’autre á lui en payer les redevances convenues, á peine de confiscation et de rentrée en icelles terres, confiscation et rentrée qui supposent certainement une expropriation actuelle; enfin, il se réserve sur ces memes terres toute justice, travel’s, chasse et seigneurie.
    “ Si ce n’est pas la un acte translatif de propriété, nous le disons hautement, il faut renoncer á l’esperance de trouver nulle partun acte de cette nature; il faut refuser aux termes qui y sont employés le sens qu’on leur a attaché dans tous les temps ; il faut nier qu’il fait jour en plein midi.”
    In the act by which Guillaume de Montmorency ceded the five hundred arpents of land, he subjected the transferees to the payment of an annual and perpetual rent under penalty of forfeiture, and expressly reserved to himself the right of seigneurie. In the transfer by Joseph Wiltz, he abandoned in perpetuity the batture, devanture, savane and cypriere, but subjected the transferees to no obligation towards him and made no reservation whatever for his benefit. The case before the Court of Cassation was, then, much stronger than that now under consideration, and yet that court,concurring in the opinion of Merlin, disagreed with the appellate Court of Amiens which had decided that the usufruct only of the five hundred arpents had been granted by MonU morency, and decreed that the ownership itself had been conceded, and that the obligation of paying the rents was extinguished by prescription, and the transferees dispensed from complying with that obligation.

      8. It Was the ownership itself that passed to the defendant nnder the abandonment in the prospectus.
    The language of the prospectus is clear. But admitting for argument’s sake, that the language and intention of Wiltz were not as clear as I conceive them to be, then we must endeavor to ascertain them by the ordinary rules of construction.
    Proudhon (Droit d’Usufruit, vol. 1, no. 497,) lays down the rule that when a grant is expressly intended to be perpetual, it does not create a mere right of usufruct, but conveys the ownership of the thing itself. He says; “De quelque locution que le testateur se soit servi, l’impropriété des termes doit fléchir devant ¡’expression de sa volonté sur les efl'ets qu’il a entendu attacher á sa disposition: or l’usufruit étant essentiellement temporaire, si done le donnteur a voulu au contraire que l’objetde sa libéralité fut perpétuel, et qu’il l’ait clairement exprimé, il est nécessaire d’en conclure que ce n’est pas un droit d’usu-fruit qu’il a légué. C’est le droit de propriété qui aura été légué sous une fausse denomination quelconque, si la jouissance du legataire doit s’etendre á> tous les produits et emolumens du fonds, parce qu’ayant toute l’utilité du domaine, et l’ayant a perpetuité, il sera necessairement proprietaire.” Now, in this ease, the grant is intended to be perpetual and all the “ produits et émolumens” of the thing, so far as the grantor is concerned, are conveyed to the grantees. The consequence, therefore, is that the ownership itself was granted.
    The same author (vol. 1, nos. 499 and 500,) holds that the usufruct is conveyed, only when the separation of the right of enjoyment from the right of ownership is clearly expressed in the act; and he comments upon that rule in the following manner, to wit: “ Cette régle est fondée sur ce que, sous quelque dénomination qu’une chose soit comprise dans un legs ou une donation, le dómame entire est censé aliéné s’il ne parait pas évident que c’est seulementl’usufruit qui en été détaché, ou que c’est seulement la nue propriété qu’on a voulu aliéner en se réservant l’usufruit; attendu qu’il est contraire á l’ordre natureldes chosesque le propriétaire n’ait pas le droit de jouir de ce qui lui appartient, et qu’en eonséquence il faut que la dérogation á cet ordre résulle’ formellemenl; de l’acte de donation. C’est par suite de ce principe que lesauteurs qui ont écrit sur cette maniére,' enseignent, d’aprés le texte des Jois romaines: Que le legs d’une maison pour l’habiter, celui d’un fonds pour en jouir, celui d’un domaine pour que le légataire ait de quoi vivre, comprend aussi la propriété entiere de la maison, du fonds, ou du domaine, parce qu’autre chose1 est d’exprimeyainsi le motif ou la cause de la disposition, autre chose est de ne léguer qu’un simple droit de jouissance: Illam autem adjectionem, ut habeant unde pascant, magis ad causam prielegandi, quám ad usumfructum constituendum pertineré.”
    In this case, the batture, devanture, savane and cypriére are included in the grant, and it is far from being evident that the usufruct thereof was alone intended to be conveyed. Besides, as in the case cited by Proudhon, they are' abandoned in perpetuity to the purchasers, pour en jouir. The conclusion, therefore, cannot be resisted that the ownership, and not the usufruct, was conveyed by the abandonment in the prospectus.
    The case of Pontalba v. The City of New Orleans, 3 An., 660, is decisive of this.
    But should it be held that there is no analogy between the two cases, I contend, upon the authority of Merlin, that the grant in this caséis not even, a grant sub modo. Merlin (Vo. Mode, no. 1,) says: “ On confond quelquefois le mode avec la condition; il y a méme des textes du droit romain qui donnent á l’uu le nom de l’autre. Il y a cependantune différenee entre le mode et la condition, et elle consiste tant dans la maniére de les exprimer que dans les effets qui en résultentrespectivement. La loi 80, D. de conditionibus et demonstration^ bus, nous apprend en quoi la formule caractéristique de la condition différe de celle qui désigne le mode. Nee enim, dit-elle, parem dicimus cum cui ita datum est, si monumentum- fecerit, c’est la condition; et eum cui datum est ut monumentum faciat, c’est le mode. On voit par lá que la particule si forme la condition, et que les mots pour, afin que, á la charge, earactérisent le mode,. Mais, pour que ces mots ferment une disposition vraiinent modale, il faut qu’ils ne se rapportent pas uniquement á l’intérét du donataire ou légataire. Ainsi' dans le legs fait á quelqu’un pour ótudier, pour se mettre en métier, ou pour l’aider áse marier, il n’y a point de mode, mais seulement une cause impulsive, dont le défaut d’accomplissement n’empéche pas le légataire de recueillir la libéralité du testateur, il moins que celui-ci n’ait manifesté une intention contraire, La loi 71, D. de conditionibus et demonstrationibus, porte que, ‘ s’il a été légué á Titius cent ecus pour s’acheter un fonds de terre. on ne doit pas lui demander caution pour l’exéeution de cette clause, parce que elle ne concerne que son intérét.’ ” Now, under the distinction drawn by Merlin between a condition and a modus, it cannot be contested that the grant in this case would clearly be a grant sub-modo, had the disposition been intended for the benefit of the grantor or some other person not party to the lict. But as that disposition was unquestionably intended for the sole and exclusive benefit of the grantees, then, as Merlin teaches, there is no modus, but a mere “cause impulsive,” the non-compliance with which does not, nay, cannot destroy the grant. Under these circumstances then, as the disposition attached to the perpetual abandonment of the devanture, batlure, &c., is not a modus, but simply an impulsive cause, the failure of which is not fatal to the grantees, the abandonment was intended to be, and therefore is, unconditional and absolute. That this abandonment, uncoupled with any modus or condition, does transfer the ownership of the things abandoned, cannot reasonably be denied.

      Roselius, on the same side.
    In this examination it is to be borne in mind that the seller is bound to explain himself clearly respecting the extent of his obligations; any obscure or ambiguous clause is consfrued against him, (C. C, 2449.) .This rule is fundamental, and as old as the law itself. Papinian, the prince of roman jurists, lays it down as follows: “Veteribus placet pactionem obscuram vel ambiguam venditori etei qui locavit nocere, in quarum fuit potestate legem apertius conscribere.”. L. 39, De Pactis. See Troplong, De la Vente, vol. I, p. 347, no. 256. Hence it follows that, if the language used by the vendor in the present case be susceptible of different interpretations, that most favorable to the purchasers must be adopted.
    In the prospectus it is stated, in the most explicit terms that the land in question, “is forever abandoned by the vendor in favor of the purchasers oi the forty-two lots, to be enjoyed in common by them, with this sole condition, that the said purchasers shall send upon the pasture land in common not more than three head of cattle for each lot, and they shall cut and make wood in the cypress swamp for their own individal use, and not for the purpose of trade.”
    It is too clear to admit of serious controversy, that the expression “abandoned forever,” as used in the prospectus as well as in the deeds of sale is synonimous to transfer or convey. They are words clearly indicative of an intention to alienate the thing itself; and utterly inconsistent with the idea of the grant of the mere usufruct or use of it. The well known axiom is, “nulli enim res suaservit jure servitutis.” Dig. b. 8, I, 2.
    But it is urged that the meaning of the words which we are considering are modified, or rather entirely changed, by the succeeding branch of the same sentence, which is as follows : “ to be enjoyed in common by them.” It is said that these expressions clearly show that the enjoyment only, and not the thing itself, was intended to be conveyed. With what color of reason can it be pretended, for a single moment, that this useless direction given by the vendor to the purchasers, can destroy the absolute and perpetual abandonment of the property which he had just made 1 I say useless, for no one will deny that if these words had been omitted, the enjoyment in common would have been a necessary consequence from the fact that the abandonment had been made to them in common. Could there be any other enjoyment except in common by the proprietors, until a partition had taken place ? It appears, therefore, quite plain, that the clause in the prospectus “to be enjoyed in common by them,” can neither control nor modify the preceding clause translative of the title of the property. Thus it is manifest that so far at least as the devanture and batture are concerned, there is no foundation whatever, even for a plausible argm ment in support of the interpretation which the learned counsel for the plaintiffs endeavor to give to the prospectus and deeds of sale emanating from Willz.

    This brings us to the question, what is the legal operation of the concluding clause of the prospectus ? It is clear that these directions in relation to the common enjoyment of the common property, were inserted in favor of, and for the benefit of the purchasers; and it is equally clear that this is a matter in which the heirs of the vendor have no interest whatever.
    In what manner has this contract been executed by the parties themselves ? How did they interpret it at the time of its date, and for upwards of forty years afterwards? There is not the slightest evidence that either Wittz hinrself, or his heirs had set up any claim to this property until this suit was instituted. On the contrary, in 1824, one of his heirs, Mrs. Arnauld. in the sale to Pierre Foucher, expressly recognized the alienation which her father had made of this property. One of the safest rules of interpretation of a contract is the manner in which it has been- executed by the parties themselves.
    Lastly, what was the object which JosephWiltz had in-view in abandoning ther front and rear of his property in favor of the purchasers of the forty-two lots which he was- about to sell 1 Evidently the enhancement of the priee for which he would be able to sell these lots.
    The counsel seem to rely with much confidence- on the fact that the right of disposing of the property abandoned is not given in express words. The first answer to this argument is that the right of alienation is of the very nature of ownership, and need not be expressly conferred on the purchaser by the vendor; and in-the second place, that property is sometimes so situated that it can-only be alienated together with and as an accessory or appendage to other property. Such for instance, as a common alley, or the commons belonging to a eity, town, village, or hamlet; these things cannot even be divided except by the unanimous consent of all the parties interested. Toullier, Des Servitudes ou Services Fouciéres, p. 204, no. 469 bis. Pandects, b. 10, tit. 3, law 19, § 1. “ De vestíbulo communi binarum aedium- arbiter communi dividundo invito utrolibet dari non debet: quia qui de vestíbulo liceri cogitur, necesse habet inlerdúm totarum aedium pretium faeere, si aliás aditum non habet.” Which I translate as follows : “ The judge cannot order the partition of a common entry or alley to two houses without the consent of both proprietors; because he who is compelled to submit to the adjudication of the common alley to liiscoproprietor may thereby sustain the loss of his whole house, on the supposition that he cannot obtain another entry into his house.” What is the diffefernce in principle, between the case of a common entry or alley, put by Pau-lus in the text just cited, and that before the court?
    The distinction between a servitude and such rights as the purchasers of the forty-two lots acquired to the property in dispute, is established with much force and clearness by Toullier, vol. 3, p. 332, no. 479.
    Proudhon, Traité des Droits d’Usufruit, d’Usage, &c., no. 8, lays down the same doctrine. Indeed, there is no diversity of opinion on the subject, for Merlin, (who, it was asserted, contradicted Proudhon,) recognises the same distinction. Merlin, Repertoire, verbo Communes.

    The next inquiry is, in whose favor was the sole condition established? who was to be benefited by it—the vendor or the purchasers ? We contend that the land in front and in the rear was regularly conveyed to the purchasers of the forty-two lots, as an accessary; and was set apart as the commons of the inhabitants of the Quartier de Piaisance. These commons were transferred and dedicated by the founder of the village or hamlet to the perpetual use and benefit of its inhabitants. The modus or sole condition as it is termed, was imposed to- establish a just and equitable rule by which the common enjoyment was to be regulated. This rule was laid down by the grantor for the benefit and protection of the grantees; and it is equally clear that the rule can be abrogated by the unanimous consent of those in whose favor it was established. No one has any legal interest in- this property except the purchasers of the forty-two lots and their heirs or assigns; who then can object to its partition among those to whom it belongs. See Merlin, Rep. verbis Communaux and Communes. Favard de Langlade, verbo Communes. The authority cited by the counsel-for the plaintiffs from the 3d vol. of the “Jurisprudence Encyclopedic,” verbo Communes, p. 77, is to the same effect.
    As Joseph ttiltz has divested himself of all title to the property, his heirs cannot maintain any action for its recovery; nor have they any interest to contest the l-ight of the defendants to make a partition of it. While v. City of Cincinnati, 6 Peters, 431. Barclay v. HarveWs Lessee, 6 Peters, 498. City of New Orleans v. United States, 12 Peters, 662. City of Lafayette v. Holland, 18 La. 286.

      H. A. and H. B. Bullard, on the same side.
    The only question in this case which the courtis called on to decide is, what title or right did the purchasers ot the. forty-two lots acquire to or in the front lands, the pasture grounds and the cypress swamp, by their contract with Joseph Wiltz. On the part of the dofondunt, it is contended that each became, by purchase, the separate owner of -a lot as designated on tlie plan, and that, after all the lots had been sold, the purchasers acquired a right lo the perpetual use and enjoyment of the other portions of the land as proprietors in common; and that the price they paid was equally the consideration for the separate property and for that portion which they were to hold in common. In other words, that the whole was a sale for a specific price, of the whole tract qf.four arpents front.
    Let it be remarked, en passant, that the sole condition set forth in the prospectus, related only to the common use of the pasture ground and the wood land. The front portion or devan ture is not alluded to. That condition as it is called, is, in truth, a mere restriction upon the use of the pasture land and the cypress swamp, and was evidently intended to regulate their enjoyment by the purchasers, inter se. It is neither asserted, nor intimated, that there has been any violation of that restriction; that any proprietor has sent more than three head of cattle on the pasture, or made a commerce of fire-wood or timber. The violation of that condition is no where declared to involve any forfeiture to the grantors, of any rights acquired by the purchasers; and after Wiltz had parted with his whole property by a sale of the lots and the abandonment in perpetuity of the out lands, it is difficult to perceive what right he could have, or his heirs after him, to interfere with the purchasers. It appears then clear, that this was not a condition, properly speaking, upon which the title of the purchasers depended. It was not, in fact, a condition at all; it presents a clear case of modus, as distinguished from a condition; that is to say, a modification or restriction of the use or destination of the property, in other words, a sale sub modo.

    Mackeldey, after stating wThat a modus is, goes on to say, that “ it may exist as well in contracts or acts of beneficence, as in those of an onerous character; but it is to be remarked that, in the first (donations), the donor has a right, in case of non-execution of the mode, either to bring his action to compel performance, or for the restitution of the thing given ; while in the second, (i. e. onerous contracts,) his action is limited to demand the execution or performance of the mode; but nothing obliges him who is bound to execute the inode, when he alone has an interest in it.” Mackeldey, french translation, p. 102. In support of this doctrine, the author cites several'authorities from tho digest, to which I refer the court. Fr. 41, pr. D. 18, 1; Fr. 17, § 2, pr. 44 D. 40, 4; Fr. 13. ■§ 2, D. 24, 1. See Pontalba v. Neto Orleans, in which the court recognizes this distinction. To apply this doctrine to-the present case, if the contract between the parties was an onerous one, as appears quite clear, then the only action on the part of Wiltz or his heirs would be to compel the performance of the condition or modus, and not to rescind the contract, but in order to maintain such an action the plaintiff must show an interest in himself. Now, after all the lots had been disposed of, the purchasers alone had any interest in the manner in which the property should be used and enjoyed. Wiltz had no sort of interest iu the matter. The purchasers for whose exclusivo benefit that restriction was inserted, might dispense with or modify it to suit their own convenience. It never could injure Wiltz or his heirs, who even in the case of noncompliance with the condition, could at most compel a specific performance, while they had any interest in doing so, but in no event could claim restitution of the property.
    It is not, however, under the pretence that this sole condition has been violated, that the plaintiffs hope to recover. They have not set up in their petitiou any specific ground upon which they base their pretensions, but merely seek to avail themselves of the original title of their ancestor, as if he had either never been divested of title, or had been so only for a limited period, which lias' expired, and that they have the right to resume the property.
    In argument it is distinctly avowed as the ground on which they expect to recover back the property, that the contract between Wiltz and the purchasers of the forty-two lots, gave to the latter only a right of usufruct in the out lands, and that, in consequence of an abuse of the use thus conferred, the grantors have a right to re-enter into possession as proprietors. The question thus presented, is one simply of interpretation of the contract between the parties. Was that contract one of sale of the whole tract, of the .building lots as separate property of the purchasers respectively, and of the devanture, ballure, savane and cypriere, as common and undivided property? Or was it a sale only as it relates to the separate building lots, and the establishment of a limited use and enjoyment of the remainder ? On our part, we .contend, that it was a sale of the whole, and the court has only to choose between the two hypotheses.
    Let us again look at the the terms of the contract; for the intention of the parties is to be sought in the whole context of the act. In the prospectus it is said that the proprietor offers for sale the forty-two lots, and “ abandons in perpetuity, in favor of the purchasers, to be enjoyed by them in common, the portion of devanture, batture, pasture ground, and cypriére, corresponding to the forty-two lots, and conformably to the title of the vendor. The acts of sale state a price paid for each lot, and for the perpetual use in common, of the out lands.' The price applies as well to the out lands, as to the lots. The words of conveyance apply to both. In one of the acts, the two are coupled together as above stated: “ Ensemble tous les droits de savaue, batture et cypriére attachés á ces mémes terrains, eoDformémeut au prospectus,” &c. These rights are treated as appurtenances of the lots [attaches.] It cannot be supposed that any of the purchasers would have bought, at least for the same price, a single lot, without an interest in the out lands which were abandoned'to the purchasers, to be enjoyed in common. The whole contract was entire, and the whole land formed the object of it. If the plaintiffs now recover back the out lands, the purchasers will no longer have what they bought and paid for, but merely each his building lot, without the right attached to it by the contract. The contract of sale requires no sacramental form of words; it is enough if it contains the essentials of consent, price and object. The word abandon is used, but to abandon forever a thing for a price, is essentially as much a sale, as if the contract were clothed in all the verbiage of a Spanish notary, and conveyed the property “con todos sus entradas y salidas, usos y servidumbres.” These principles are elementary, and I will not trifle with the court by citing any authorities in support of them.
    In the prospectus itself, this portion of land not included in the lots, is treated as “ correspondíante aux quaranle deux terrains.” I know of no proper translation of that clause which does not convey the idea—-that of appertaining to, or appurtenant to the lots. The word correspond, applied to things, implies that one belongs to the other. Such were the expressions used by the Spanish fiscals during the time of the Intendency, when they certified that the tract of land solicited, “corresponde al dominio de S. M." The devanture, the batture, the pasture ground and the cypress swamp, formed a part of the four arpents belonging to Wiltz, and which he disposed of by the various acts of of sale, referring to the prospectus. If the word correspondante has not that meaning, it has none.
    It is an obvious and leading rule for the interpretation of contracts or conventions, that we are to seek for the common intent of the parties; and if there be any obscurity in any part of the act, it is to be construed with reference to the nature of the contracts—“secundum naturam negotii.” Now, this purports to be a sale, and the whole partakes of the character of a sale. The word sale, may not be used in reference to the out lands, but the expression is that they are abandoned in perpetuity. “ In conventionibus, contrahentium voluntatem, potius quam verba, spectari placuit.” That the abandonment was in favor of the purchasers of the forty-two lots, is clearly expressed. That the grantor intended to part with his interest in the property forever, is equally manifest. The words in perpetuity, cannot be rejected as surplusage. Whether the contract be regarded as wholly onerous, or as partly gratuitous, (or a donation,) that expression stands in the way of the plaintiffs’ recovery. Their ancestor parted with the whole property forever, and unless some new rule of interpretation be invented by the fruitful imagination of the counsel, the purchasers must be deemed to have acquired, in full separate property, the lots themselves, and a.common property in the out-lands.
    It is also a rujo of interpretation that, obscure or doubtful expressions used by the author of an act, are to be explained according to his probable intention, which is to be sought in the language, the circumstances and the relation of the parties. Such doubtful expressions should be so interpreted as to depart the least possible from the nature of the contract, and against him who invokes or claims a right contrary to the nature of the contract, when he ought to have ■explained himself more clearly. “Contra eum quiclarius loqui potuisset, ot ■debuissot.”
    The prospectus emanated from Wiltz alone; it was his sole work. If there be expressions in it which leave the least doubt, as to his iutentiou, the construction should be against him and his heirs. They now pretend that he gave to the purchasers of the forty-two lots only a limited or restricted right in the mere use of the out-lands, and that during a limited period, which period they say has expired. If that had been the intention of Willz, he might easily have used expressions which would clearly have conveyed that idea. He might have said he reserved some reversion to himself or his heirs—he might have suppressed the expressions d perpéluité, and made it expressly a limited interest or use. How could the purchaser of a particular lot imagine, from the terms of the prospectus, that he was acquiring a mere right to use for a limited period of time, those out-lands which Willz declared he hbandoned in perpetuity? That a right which, whatever it may be, to or in the lands, was expressly declared perpetual and common to the purchasers, was intended by him to be limited to the lifetime of the purchaser? Agreements are tobe construed, according to the doctrine of Paley, in such a way as the promissor had a right to suppose, from the language used, that his promise was understood by the other party.
    But, it is contended on the part of the plaintiffs, if I understand the argument, that the purchasers of the lots were not invested with the dominium in the out-lands, because the jus disponendi did not pass by the abandonment. To that I answer, that although the jus disponendi is of the essence of full and perfect property, yet it does not follow that every contract by which the property in things is transferred should contain an express declaration to that effect. If A sells a slave to B, for a price, although nothing may be said as to the right of B to enjoy the fruits of his labor, and to dispose of him at his discretion, yet B acquires such full property by legal inference, and as the effect of the contract itself. “Une propriété,” says Pothier, “est pleine et parfaite, lorsqu’élle est perpétuelle, et que la chose n’cst pas chargée de droits réels, envers d’autres personnes que le propriétaire. Au contraire elle est imparfaite, lorsqu’elle doitse résoudre au boutd’un certain temps, et par l’évenement d’une certaine condition.
    Le droit de propriété considéré par rapport a ses effets, doit se definirle droit de disposer í\ son gré d’une chose, sans donner neanmoins atteinte au droit d’autrui niauxlois—-jus de re liberé disponendi, vel jus utendi et abutendi.” Dom. deProp. 4, 8 et seq.

    To construe the words, “ pour par eux en jouir en commun” so as to restrict the interest conveyed to amere temporary use of the thing, is either a begging of the question or a violation of every rule of construction. It supposes, that the absolute abandonment forever to the purchasers, is to be qualified by an expression as to the manner in which the property is to be enjoyed by them, to wit, in common and perpetually.
    Nor can the expressions justify the pretence, that these out-lands became a commune in any legal sense of the word. On the contrary, they are to be enjoyed by the purchasers not by the public. All these authorities which have been referred to in relation to the division of communes have no application to the present case. The property is destined to the exclusive perpetual use of the purchasers, and even the grantor reserves no right whatever to or in them.
    Every usufruct or use is essentially limited in time, because the very constitution of it is a dismemberment of property. It is limited either by the actor contract by which it is created, or by law. In relation to legal usufructs, such as the father’s in the separate property of his children, the law itself, which establishes them, limits their duration. An usufruct in favor of a corporation, though unlimited by the terms of the grant, is restricted to thirty years by the existing law. An usufruct given in terms to an individual, if not otherwise limited, would terminate with his life. But it cannot be pretended that the forty-two individuals, who separately and at different periods purchased parts of this tract of land, and whose number by various sales, transfers and arrangements had been reduced to seven or eight at the time the partition took place, ever constituted a corporation or a community. They never composed when united together, one moral person. No voluntary connexion in interest of any number of individuals, without any sanction by law, can be treated as a corporation or community. A grant to them therefore must be regarded as a grant to individuals and not to a corporation; and consequently the legal restriction to a term of years does not apply. And indeed, how could the law in such a case be invoked to get rid of that fatal stumbling block iu the way of the plaintiffs, resulting from the express declaration that the abandonment is made to the purchasers, separately and individually in perpetuity?
    In conclusion, I will simply say, that the manner in which the parties themselves carried out this contract, shows what their common interpretation of it was, at the time. Wiliz never required any security from the purchasers to insure their administration of the property, as bound by law, a right which he unquestionably had, if this be an usufruct or use. Such security is of the nature of the contract, though not of its essence, and may in all eases be required, . when not expressly dispensed with by the contract by which the usufruct is constituted or by law. On the contrary, neither he nor his heirs ever interfered for nearly forty years. In the meantime various separate sales had taken place, reiterating the same conditions and terms.

      Jourdan, for the town of Freeport, intervenors, appellants.
   The judgment of the court -{Rost, J. absent,) was pronounced by

Eustis, C. J.

In the year 1807, the late Joseph Wiltz, the ancestor of the plaintiffs, laid out a part of his plantation in the present parish of Jefferson, into lots, and sold them to different persons according to a plan. The tract of land thus disposed of was four arpents front on the river, by forty in depth. The plan exhibits an avenue in the middle of the tract of one hundred and ten feet, and a row of lots on each side fronting on the avenue, making forty-two in number. Between the lots nearest to the river and the road a space was left undivided and vacant, as well as the batture in front; the remainder of the tract beyond the forty-two lots in the rear was in the same condition. There is written on the plan a prospectus, as it is called, which we thus translate :

“ Quartier de Plaisauce : Plan of the plantation of Mr. Joseph Wiltz, two and a half miles above the city, divided into lots sufficiently spacious to establish country houses, taverns, gardens, etc.

Note: The lots numbered and colored in red are the only ones for sale at present. New Orleans, 22d June, 1807. Drawn by H. Laclotte, architect.

.(Signed) J. Wiltz.”

Prospectus.

The .portion of the front, of the batture, of the pasture and of the cypress swamp, corresponding with the forty-two lots offered for sale at this time, and in conformity with the titles of the vendor, is abandoned in perpetuity in favor of the purchasers, to be by them enjoyed in common, with this sole condition, that the said purchasers shall not send in the common pasture but three head ■of animals for each lot, and shall cut wood in the swamp for their private use only and not for sale.” Provision is then made that the trees in the avenues shall be planted, and the ditches and roads shall be made by the purchasers.

The whole of the forty-two lots were sold to different persons in accordance with this plan, and under the conditions of this prospectus. In January, 1838, the proprietors made a partition of the front, the batture, and the rear of the tract, which they held under their several purchases of lots. The present suit is brought by the plaintiffs, the heirs of the original vendor, against the defendant,who holds under the sales made in conformity with the plan and prospectus, to recover those portions of the original tract, on the ground that the right of property was not transferred by their ancestor by the sales of 1807, but a right of use only, and that the right of use hns terminated by reason of the acts of the defendant. In the District court the plaintiffs recovered judgment for all that portion of the tract to which the district judge held the right of use only to extend, to wit; the batture, the space left in front, and the land in the rear of the forty-two lots. From this judgment the defendant has appealed.

The first question to be determined, and upon which all the others presented in argument, depend, is the title acquired by the original purchasers of the lots laid out and sold by the plaintiffs’ ancestor.

It is conceded that the defendant is the owner of some twenty-two of the forty-two lots, which she holds by divers conveyances under the original title from Joseph Wiltz, given under the plan and prospectus before mentioned ; and that the plaintiffs are not at present owners of any portion of the forty-two lots, and were not at the time of the partition spoken of in 1838. The position of the defendant is, that the plaintiffs have no right, title, nor interest in the land sued for, to wit: the front, the batture, the pasture land and the cypress swamp, the same having been sold by the plaintiffs’ ancestor with the forty-two lots, the whole forming the plantation divided into the Quartier de Piaisance-.

If we consider the language made use of by the vendor in disposing of this property, it certainly has the appearance of doing violence to- its obvious sense, to insist that he intended to reserve, or did reserve, any title or interest adversely to the purchasers. Terms more absolute, definite, or comprehensive, could scarcely be used to indicate a complete divestiture of all right in the property on his part. He abandons inperpeiwity, in favor of the purchasers, the land i» front and in the rear of the lots. The term abandonment excludes any reservation as to the title, as positively as the term perpetuity excludes any limitation of time. Indeed, the terms used appear to express fully the obligation of the vendor under the roman law—preestare emptori rem habere licere.

But it is contended by the counsel for the plaintiffs that the condition, that the purchasers of the lots shall only be allowed to send to the common pasture three head of animals, and to cut wood for their own private wants, creates an use merely in the purchasers, and that the only interest conveyed to them was-the right of use or at most a right of usufruct. The most formidable objection to this construction is that presented by the contract itself, which is strengthened by the sense which both parties have acted upon up to the time of the institution of this suit,

In ascertaining the meaning of the terms used, and whether an usufruct only has been created by them, the diligence of counsel has brought to our aid the opinions of several authors who have treated the subject of usufruct in the language in which the contract under consideration is written.

Proudhon considers that perpetuity is contrary to the very essence of usufruct, and if the entire enjoyment of an estate has been expressly bequeathed in perpetuity to a community, the right bequeathed would have only the name of usufruct, and the property itself would pass by the description. He lays it down as a rule that, when in a testamentary disposition the gift is expressly intended to be perpetual* it does not create a mere right of usufruct, but conveys the ownership itself. The usufruct being essentially temporary, it is necessarily excluded by the perpetuity which the testator has established. It appears that the usufruct only is conveyed in cases in which the separation of the right of enjoyment from the right of ownership is clearly expressed in the act. In this view the authors who have written on the subject hold, according to the texts of the roman law, that the legacy of a house to inhabit it, that of an estate to enjoy it, that of a domain in order that the legatee may have wherewith to live, comprehends also the entire property of the house, the estate, and the domain, because it is one thing to express the motive or the cause of the bequest, and another to bequeath only the simple right of enjoyment.

Proudhon, Traite d’Usufruit, loe. cit.

We think the opinions of this author on this subject are in accordance with others of authority cited by the counsel for the defendants. In the case of Pontalba v. The Municipality, recently decided by this court (3 An. p. 660), we held the property itself to pass to the donee under a donation, the effect of which was far less clear ns to its vesting the property than the sale under consideration appears to us to be. Under this interpretation we cannot say that Wiltz retained the property in dispute, and conveyed merely the usufruct of it to the purchasers of the lots. If, in a testament or donation, the terms made use of would transfer the property, we.-see no reason why they should not be held to the same meaning in the contract of sale, where every thing embraced in it formed a constituent part of the price.

But if no usufruct was created, it is urged by the counsel for the plaintiffs) tbat the purchasers of lots acquired in the batture, front, pasture ground and cypress swamp, no other right than aright of use.

The abandonment in perpetuity of these objects, as we have seen, was made in favor of the purchasers of the lots to be by them enjoyed in common, with this sole condition, that the purchasers shall not send into the common pasture ground more than three head of animals for each lot, and they have only the right to cut wood in the cypress swamp for their own use and not for sale.

It seems to us that the question presented by this position of counsel is already determined by the conclusion which we have adopted, that the right of property was not reserved to Wiltz, but passed, by the sale, to the purchasers of the lots. This right of use was confined to the pasture ground and the cypress swamp, and did not extend in its terms beyond them. The condition' evidently was intended to regulate the use of them among the purchasers, and purported nothing else. It was a regulation considered advantageous in order to enable each one to use the common property without detriment to it, or annoyance to each other. There is nothing unusual in it, nor does it conflict with any of the avowed objects of the sale, but is in furtherance of them all.

If there were any doubt concerning the extent and meaning of the terms made use of in this contract, the law would oblige us to construe them against the seller. The vendor is bound to explain himself clearly as to the extent of his obligations, and an obscure or an ambiguous clause must be interpreted against him. C. C. 2449.

We think the plaintiffs are without any right, title, or interest in the land which is the subject of the present suit.

The corporation of the borough of Freeport, within which the land in dispute is situated, has appealed from the judgment of the District Court in favor of the plaintiff's, and has appeared by counsel, who has presented an argument in writing in behalf of said corporation. The corporation claims the property in dispute as public, on the ground oí its having been dedicated to public use by the prospectus, plan, and sales aforesaid, all of which were recorded in the office of a notary public.

The evidence in this case does not establish a dedication of this kind to public use, and the corporation of Freeport has no interest whatever in this suit. Neither party has moved to dismiss this appeal; the party is before the court, but has adduced nothing which affects the rights of the defendant.

The judgment of the Dislrict Court is, therefore, reversed, and judgment rendered for the defendant, with costs in both courts.


source: Caselaw Access Project

author: Slidell, J.

license: Public Domain

text:
    The First Municipality v. Bell et al.
    A creditor for money loaned to a contractor for the .erection of building» is not within tha Etat. of 18 March, 1844. No privilege is conferred on such a creditor hy that statute.
    The stat. of 18 March, 1844, confers on mechanics, laborers, and furnishers of materials a privilege on the amount due by the proprietor, and a privilege on the building. If the contractor has not secured himself a privilege upon the building hy recording his contract, he must rank as an ordinary creditor of the proprietor, and the mechanics &c- cannot be subrogated to a privilege which does not exist; but this does not efiicct their privilege on what the proprietor owes.
    Decision in Allen v. Wills, ante p. 97 as to costs affirmed.
    from the Fifth District Court of New Orleans, Buchanan, J.

      Preaux, for the appellants.

      Roselius, Latour, J. and II. II. Straiobridge, Bradford, Collens, and Halsey, for different defendants.
   The judgment of the court (Rosl, J. absent,) was pronounced by

Slidell, J.

The present complicated controversy grew out of contracts made by the plaintiff with Bell, for the erection of certain water works. The contractor neglected to pay the workmen and persons who furnished materials, and they notified their claims to the municipality, under the act of 1844. The municipality, on the other hand, disputed the claims of the contractor. Suits were brought by the workmen &c.. against the contractor: and then this suit was instituted by the municipality against Bell and the creditors who had given notices, with which suit the other actions were consolidated. The municipality stated what it considered the amouut of its indebtedness, and called upon the creditors to litigate inter se as to its distribution.

The district judge correctly stated the whole liability of the plaintiffs to the contracter at $525,260. A portion of this was allowed for extra work, nor comprehended by the specifications. This branch of the cause was submitted to experts, and the court adopted their report. No sufficient reason has been presented for setting aside the report. But the plaintiffs resist that portion, of the claim upon the ground that it was not embraced by the original contracts, and specifications, which were formally signed by the mayor, by virtue of proper resolutions of 'the council. The absence of a formal antecedent authorization by the council is cured by what subsequently occurred. It is satisfactorily shown that the works, which were of a complicated nature, were not fully provided for by the original specifications. Changes were found to be necessary, during the progress of the work, in the arrangement and adaptation of the machinery &c. These changes resulted in an increased, expenditure, which, however, was attended with beneficial consequences. The water works, in consequence of these changes, became more efficient than they would have been according to the original specifications ; and the object of the undertaking was more fully accomplished. The work was carried on under the supervision of the municipal surveyor, and at length was received by the municipality, as its ordinances show, and has been for sometime used by it. Under such circumstances to refuse to pay for the contractor’s labor is inadmissible. The public has been benefitted, and the subsequent municipal ratification is as binding ns an original authorization.

The amounts of the claims of the various creditors of the contractor, in whose favor the court below gave judgment, are not disputed by the plaintiffs, who are appellants in this cause. But the plaintiff's contend that the amount for Which they are made liable to them is too large. The controversy in this respect turns upon the question whether certain payments made to the contractor were anticipated. We find no error in the opinion of the district judge on this point. When the payments in question were made, the disputed instalments were not due under the contract.

All the notices were delivered before the 24th May, 1847, except one, which was delivered on tho 4th June. It does not appear that, even at that date, the works were completed. In a resolution of the council, on the 24th May, 1847, it was expressly acknowledged that the works were then incomplete, and had not been accepted by the surveyor. See the case of Allen v. Wills, et al. ante p. 97.

Only one of the creditors of Bell, whose claims were rejected by the district judge, has appealed. Juclson’s claim was not for labor or materials ; but arose from a loan of money to the contractor. He obtained a judgment against Bell, and made a seizure under fieri facias in the hands of the plaintiff, in February, 1848. His claim is not within the statute of 1844. He had no right against the plaintitf by reason of the nature of his debt. The anticipated payments are valid against him. He could only acquire such privilege as results from a seizure under execution; and as the entire fund due to his debtor was absorbed by the claims of creditors who were within this statute, his pretensions to participate in the fund were properly rejected.

Judson argues that the workmen &c., acquired no privilege upon the fund, because the contracts were not recorded. The argument confounds the privilege upon the amount due by the proprietor with the privilege upon the building. The provision for the benefit of that class of creditors is twofold; a right of preference upon the amount due for the work, and a privilege upon the building. If the contractor has not secured himself a privilege upon the building by recording of his contract, he must rank as an ordinary creditor of the proprietor, and the workmen &c., cannot be subrogated to a privilege which does not exist. But this does not effect the privilege of the workmen &c., upon what the proprietor owes. The rights are obviously distinct. The one enables the workmen to take rank over the creditors of the proprietor, the other over the creditors of the contractor. The lattor privilege may exist without the former.

Considering the unliquidated nature of the plaintiffs liability to the contract- or, and the peculiar circumstances of this litigation, we do not recognize the right of the creditors to interest, except from the date of the decree establishing the amount due for the work and the rights of the claimants.

Under the ruling in Allen v. Wills, the plaintiffs must pay the costs of the present suit.

It is, therefore, decreed that the judgment be so amended as to allow the said Dana, McGiniss, McCabe, Drummond, and Leeds Sf Co., against the said plaintiffs, interest on the respective amounts decreed to be paid to them by the plaintiffs, from the date of the judgment in the court below until paid, together with the costs of this suit in the court below, and one half of the costs of this appeal. It is further decreed that, the plaintiffs do recover from the said Bell, such other sums as the said plaintiffs shall pay for interest to said creditors underthis decree, with right of execution against said Bell, when the same shall 0 ° be paid. It is further decreed that, the costs of the other suits, accrued before this consolidation with this suit, be paid by said Bell,.except those of the suit of the said Bell v. the said Municipality. It is further decreed that, the judgment as to said Judson be affirmed, and thathe pay one half of the costs of this appeal. It is further decreed that the judgment of the District Court as now amended, be affirmed.


author: Kink, J.

text:
    McComas, Tutrix v. Ronquillo, Administrator.
    It is no objection to the right of a tutrix of the minor heirs to sne for the removal of tho adjninistrator for neglect of bis duties, that the plaintiff, although an order had been made for her appointment as tutrix, bad not famished the bond and security required by law. Art. 332 C. C., the objecS.of which is to prevent die tutor from assuming the administration of the minor's estate before furnishing the required security, .does not apply to an action for the removal of an administrator. Proceedings for that purpose are governed by art. 1018 C. P., which authorizes an heir,.creditor, or other person.eoncornod, to pray for the removal of an administrator.
    Technical objections opposed to investigations into the.condnct of administrators are entitled to little favor.
    from the District Court of Plaquemines, Rousseau, J.

      Frost, for the appellant.

      Lambert, for the defendant.
   'The of the court was pronounced .by

Kink, J.

The plaintiff, representing herself ;to be, the tutrix of the minor children and heirs of James and Eliza Lee, instituted this action to remove the defendant front the administratorship of the succession of the deceased, alleging that the defendant had been guilty of gross neglect of his duties. The defendant excepted to the capacity of the plaintiff to maintain the action, averring that she had not been appointed the tutrix«f the minors, and was without authority to interfere in the administration. The district judge sustained the exception, on the ground that the plaintiff had not furnished the bond .and security required by la.w as tutrix, and that letters of tutorship had not been delivered to her, although an order for her appointment had be.en made. The petition was dismissed, and the plaintiff has appealed. . .

The defendant relies on the -332d article of the Code, which provides that, until letters of tutorship shall have been delivered to the tutor, he shall not interfere with the administration of the property of the minor, except for the the purpose of preserving it in .cases which admit of no delay. The object of this article is to prohibit the tutor from assuming personally the administration of the minor’s estate, previous to furnishing the required security. It has no application to .controversies for the removal of .administrators for alleged misconduct. Proceedings of this kind are governed by the 1018th article of the. Code of Practice, which authorizes an heir, creditor, or other person concerned, to pray for tho removal of an administrator.

The plaintiff is the grand mother of the minors; she is entitled to the tutorship, which she has claimed, and an .order for her appointment has been made, and she has actually taken the required oath, although no bond has as yet been given.

She is concerned in the proper administration of the succession which has devolved upon the minors, and it is her duty to protect their interests. The spirit of our legislation is to lend every facility to examine info the conduct of administrators, and we may observe that technical objections opposed to such investigations are entitled to little favor. 2 La. 266. 19 La. 32. C. P. 1016. C, C.1151.

But it is contended that, if the plaintiff can interfere, her authority is limited to informing the judge of the facts which rendered the removal of the administrator necessary; that farther proceedings can only be prosecuted upon the direction of the judge, and that no order to that effect lias been granted. C. P. 1016.

This exception was not taken in the court below, and the proceedings were not permitted to reach the point when it could have been urged. It is made by Jaw the duty of the judge to direct proceedings to be instituted against an administrator, or receiving information of his misconduct, and it is to be presumed that the requisite order would have been made if the judge had not been met at the threshold with an objection, which he supposed to be valid, to the right of the plaintiff to interfere, for any purpose. The exception, in our opinion, should have been overruled.

The judgment of the District Court is therefore reversed, and the cause remanded to be proceeded with according to law; the defendant paying the costs of this appeal.


text:
    Brown v. Glathary.
    By the law of Kentucky where, under an absolute bill of sale of a slave, possession remains in the vendor, such possession is not merely prima facie evidence of fraud, but renders the sale fraudulent per sc. and inoperative against creditors of the vendor who had no notice at ¿he time of trusting the seller.. But when possession is taken by the vendeo before third persons have acquired any rights, the fact of the anterior continued possession would not be regarded as any thing more than a suspicious circumstance, to be considered in oppreciatingthe subsequent conduct of the parties. And, supposing the sale to have been real and in good faith, where the vendee, some time after the sale, takes possession of the property and holds it ior several months, the rcacquisition of possession by the vendor under a lease would not subject the property, in Kentucky, to the pursuit of creditors of the vendor who became such alter the lease; nor would the purchaser lose his rights, as against the creditors of the lessee, by permitting the lessee to bring the property into this State, although the possession and declaration of the lessee, that he was owner, may have induced them to trust him.
    from the District Court of Carroll, Selby, J.

      Dupuy, for the plaintiff.

      Short and Thomas, for-the appellant.
   The judgment of the court was pronounced by

Slidell, J.

In 1838, William Craig married, in Kentucky, Eliza Brown, the sister of the. plaintiff; and became, according to the law of that State, the owner of a slave called Fanny, then belonging to his wife. In 1842, Craig sold the slave and her child Ellen to the plaintiff, by a written bill of sale, acknowledging the receipt of the price, <$450. The execution of this instrument, and the payment of the money attho time, is proved by the subscribing witness.

In the latter part of 1846, Brown hired to Craig, Fanny, and her two children born after the purchase. Craig was then going to Louisiana to do certain work as a carpenter, and took the slave Fanny with him as a cook, it being understood that he should bring her back on his return. The child, Ellen, remained with the plaintiff.

Craig, on his arrival in Louisiana, in 1847, held himself out as the owner of Fanny and her children. He fell in debt here to the person with whom he had contracted to build a house and to other persons. He also, on his departure in the summer of 1847, hired the slaves to Qlathary. The Louisiana creditors brought suit against him by attachment, and seized the slaves. They were also seized on fieri facias, and sold to Glalhary by the sheriff.

There is no doubt, under the evidence, of the execution of the bill of sale and the payment of the money; but the difficulty arises from the fact of the continued possession of Craig, the vendor. -It is not shown that the slaves were actually delivered at the time of the sale. It is proved that they were in Craig's possession down to 1845. The plaintiff alleges that in was under a contract of hire, but this is not satisfactorily proved. It appears, however, that Brown was in possession of them in 1845, and held possession eight or nine months, when they were hired by Brown to .Craig as above stated, and brought by him to Louisiana.

From the evidence offered at the trial it would seem that, according to the existing jurisprudence in Kentucky, the doctrine is more stern than formerly prevailed there ; and that when, under an absolute bill of sale, possession remains in the vendor, such possession is not merely prima facie evidence of fraud, but so contaminates the transaction that it is deemed fraudulent per se, and inoperative against creditors of the vendor who had no notice at the time they trusted the seller.

If the doctrine, however, be concoded in the fullest extent to which the testimony carries it, it seems to us not to cover a case where the creditor trusts after the possession is changed. The policy of the law is to protect third persons from being deceived and injured by the false aspect in which the vendor is permitted to present himself before the public. When the possession is taken by the vendee before the rights of third persons intervene, the fact of the anterior continued possession would not be regarded at most as more than a suspicious .circumstance, to be considered in appreciating the subsequent conduct of the parties.

Having taken possession of the property in 1845, and continued in possession for several months, the reacquisition of possession by Craig under a lease would not have subjected the property in Kentucky to the pursuit of his creditors, who became such after the execution of the lease, always supposing that the sale was real and in good faith.

If such would have been the rights of the plaintiff in Kentucky, has he lost them by permitting the lessee to bring the property into this State ? We think not; for our law permits slaves to be leased, and the proprietor would not lose his rights in favor of the lessee’s creditors, although the lessee’s possession and his declarations might have induced them to trust him.

We have considered this case upon the assumption that the sale by Craig to Brown was real and fair. 1 This was the conviction of the district judge, and, under the testimony adduced by the plaintiff, we cannot say it was unauthorized. We have said that it is not satisfactorily proved that Craig hired the slaves immediately after the sale in 1842. The testimony on that point is at best vague; but even without a hiring, the near relationship existing between Brown and Craig’s wife, who once owned them, was a circumstance which may, in connection with the other evidence, have relieved the case in the opinion of the district judge fiom suspicion on that score. We cannot reverse his opinion without discrediting two witnesses whom he believed, and whose testimony was not impeached at the trial.

Judgment affirmed.


author: Kino, J.

text:
    Graves v. Routh, Administrator.
    Claims of creditors which have been presented to the administrator bat have not been ad. mitted to be due, and which have not been prosecuted by sixit, afford no ground for withholding from the heir money in the hands of the administrator (stat. of 25 March, 1828, $ 16); nor are such creditors entitled to notice of the demand of the heir to be put in possession.
    A note not payable to order or bearer, is not prescribed by five years. C. C. 3505.
    from the District Court of Concordia, Farrar, J.
    McWhorter, Thomas and for the
    and for the pellant.
   The judgment of the court was pronounced by

Kino, J.

The plaintiff, Sarah Graves, has instituted this action, as the sole beneficiary heir of Disharoon, to compel the defendant to render an account as administrator of the succession which has devolved upon her, and to pay over to her the'balance appearing to be in his hands, together with the remaining assets of the succession, The defendant rendered his account, exhibiting demands of the succession still uncollected, and debts to a large amount unpaid; and, in his answer denied the right of the plaintiff to be put in possession, until the succession shall have been fully administered. Several oppositions were filed, and among the number was that of .the administrator of Duchcr's succession, who claimed to be a creditor for a large sum, and prayed judgment for the amount, to be paid in due course of administration. He also opposed the delivery of possession to the plaintiff, pending the litigation upon his claim.

Ballard also opposed the account, alleging that he was a creditor for the amount of two promissory notes, both of which had been recognized by the administrator to be due. To these notes the prescription of five years was opposed. The plaintiff having made no offer to furnish bond and security for the sums claimed by creditors which were still in suit, the district judge decreed that the administrator should retain in his hands a sum sufficient to pay the claims then pending upon oppositions, and to await the result of the litigation in relation to them. He also rendered a judgment in favor of Ballard for the amount of his notes, with interest computed at eight per cent, from the dates of their respective maturity.

The administrator has appealed. He contends that the plaintiff is not entitled to possession, in as much as there remain numerous claims of creditors unpaid. These claims have been presented to the administrator, and a list of them has been appended to his account, but they have hot been acknowledged by him, nor been ordered to be paid, nor have suits been brought upon them. It is also contended that these alleged creditors should have been notified of the heir’s demand to be put in possession, that they might have claimed security before the delivery, and that no" such notice has been given.

The statute of 1828 (Acts, p. 156, § 15), provides that the heir shall not be permitted to have actual delivery of any property of the succession claimed which may be in suit, or to receive the proceeds of any monies of the succession, when there shall be claims thereon pending in court, unless he previously gives good and sufficient security, if the plaintiffs in such suits require it.

The claims of creditors which have been presented to the administrator, but not admitted to be due, and which have never been prosecuted, can in no sense be considered as in suit, or as pending in court, merely because the administrator reports, in his account, the fact of their presentation, and can afford no ground for withholding from the heir raonies¿,n the hands of the administrator. If any creditors be entitled to notice of the^Jemand of the heir, it certainly cannot be those who have acquiesced for years in the refusal of the administrator to admit the justice of their claims, and have, manifested no intention to prosecute them. Those creditors have not appeared, and the administrator has no authority to interfere in their behalf. See Succession of Fisk, 3 Ann. 705.

But the plaintiff and defendant have asked that the judgment of the inferior court be amended, by rejecting one of the notes held by Ballard, which it is contended is extinguished by prescription. The note is not payable either to order or bearer, and is not subject to the prescription of five years. C. C. art. 3505. It is not pretended that any other prescription is applicable.

Judgment affirmed.


author: Rost, J.

text:
    Woodruff et al. v. Roberts et al.
    One who purchases from the government a certain number of acres of public land on which there was at the time wood cut and corded, has no claim to the wood, which had been separated from the land and was moveable at the date of the purchase. The rights of the government were not transferred to the purchaser. C. C. 454, 456, 457, 4S9.
    from the District Court of Carroll, Selby, J.

      Mathewson and Browder, for the appellants.

      Walker, for the defendants.
   The judgment of the court was pronounced by

Rost, J.

This is a petitory action, in which the plaintiffs allege that they purchased the land claimed from the government of the United States, iu March and April, 1845. They further claim six or seven hundred cords of wood which had been cut from the timber upon the land, and were found thereon at the time of the purchase. The defendants filed a general denial, and farther alleged that they purchased the land in controversy about the 1st February, 1844, from the plaintiff. Philander Woodruff, by a verbal sale for the sum of $150; that the plaintiffs are bound in warranty to pay them back the price, and also the value of their improvements. They further answer that the wood claimed does not belong to the plaintiffs, because it was cut before the purchase of the land by them, and that, if they recover said wood, they should be made to pay the defendants its value. The title of the plaintiffs to the land is not seriously contested, and the only question before us is in relation to the ownership of the cord-wood. The case was tried before two juries, who both gave the wood to the defendants, and the plaintiffs have appealed from the judgment rendered on the last verdict.

The title adduced by the plaintiff is a receipt of the receiver of the land office for the sum of SS206 91, being in full for the lot or fractional quarter of section no. 23, island no. 92, in township north 23, of range no. 13 east, containing one hundred and sixty-five 53-100 acres, at $1 25 per acre.

This is a sale of land, and nothing passed under it but the land and the things found upon it, which were immovable by their destination or by the object to which they were applied. C. C. 454, 456, 457, 459.

In the case of Nimmo v. Allen et al., 2 Annual, 451, in which a similar question came before the court, we held that the purchasers under a judicial sale of land had acquix’ed no title to siives, pickets, boards and cypress logs which were upon the land at the time ilrxvas sold. That case cannot be distinguished from the present. The cord-wood claimed by the plaintiffs had been separated from the land, and was moveable at the date of the plaintiffs purchase. The rights which the United States may have had upon it were not transferred to them. Judgment affirmed.