author: "Watkins, J.

text:
    No. 9766.
    Henry Singer vs. Carondelet Canal and Navigation Company and Bertrand Saloy.
    The Carondelet Canal and Navigation Company have, and its predecessors had, a perfect - right to use, appropriate and enjoy the property adjacent to Bayou St. John and Canal Carondelet, on either side, for tlie purpose of facilitating their operations in the improvement of navigation therein, as contemplated in their several charters.
    Among their chartered rights are the construction and maintenance of roads on either side and collection of tolls thereon ; to take and receive from each passing vessel toll, according to her tonnage,- to prevent any person from using the same in any injuriously to them, or embarrassing to commerce.
    No one can derive any adverse right of possession or ownership to any property adjacent to said bayou or canal from the State, by a title subsequent in date to the Navigation Campan j’s charter; because the State, in such case, would be the common author.
    Having the exclusive right, under its charter, to the use of the banks or shores of the Bayou St. John and Canal Carondelet, for its operation for the purpose of navigation, no one has the right to establish a ferry, for the conveyance of passengers, across the' same without xiermission of the defendants; and when such permission is given by them, on the condition that it shall not impede navigation thereon, it may be recalled when ascertained to be inconvenient and a hindrance to vessels.
    A PPEAL from the Civil District Court for the Parish of Orleans. A, Tissot, J.

      J. Duviyneaud and .Posey <& Ker for Plaintiff and Appellee.

      H. D. Of/den for Defendants and Appellants.
   The opinion of the Court was delivered by

"Watkins, J.

The plaintiff claims to be the owner and proprietor of the establishment called “ Over-the-Rhine,” situated on the right hank or shore of Bayou St. John, opposite Spanish Port, near its entrance into Lake Pontchart.rain : and lie also claims to be the owner. in possession, of the laud upon which those improvements were erected, down to the water’s edge.

Ho represents that, in order to afford his patrons facilities for visiting his place of refreshment and public resort, and thereby to make his business more profitable, he is lawfully using aud running over and across said bayou, in front of his said establishment, a flat propeller by means of a small rope; which flat he and his predecessors have been thus using and propelling, legally, publicly and peaceably lor a longtime, with great profit and advantage to his and their said business.

He avers “ that said Bayou St. John is a “ natural navigable stream ; free to the use of the inhabitants of the country, and not the private property of any individual, or set of individuals, and that, in using if, as aforesaid, he has never, at any time, or in any manner, interferred with the rights of any other person, or the public in general, to the enjoyment or use of said bayou or its banks.”

He further shows that Bertrand Saloy, acting as the president of the Carondelet Canal and Navigation Company, lias, without any warrant of law, or color of chartered right, undertaken to prevent him from running aud using said flat; and has, by force and violence prevented him from so using and operating the same, to his great and irreparable injury and damage; and that he has illegally blocked up said bayou with logs, so as to prevent, the crossing of said flat.

He further represents that said company, through its said president, has unlawfully appropriated to its own use, and is actually using a part of his land as a wood-yard, and has theu-on erected one or two small buildings, dedicated to the uses of said company, without his consent or authority, and to his great, injury aud inconvenience.

He claims that by reason of defendant’s illegal and tortious acts he has suffered $2500 damages, for which he prays judgment.

He also prays judgment perpetuating his injunction against their continuance, and to compel defendants to remove, the obstructions complained of as interfering with his ferry rights and privileges.

Defendant company excepted to the insufficiency of the averments of the petition to support the judgment prayed for ; that the plaintiff disclosed no right in himself to establish a ferry, to be operated by means of a rope stretched across Bayou St. John; that his petition does not. set out the description of the land lie claims; that, at the time ho claims to have acquired certain property from Otto Touche, there was a similar suit, the.u ponding between Touche and themselves, involving Ms right to operate said ferry, and that judgment was rendered therein shortly after, dismissing' it in so far as they were concerned, and that said suit and judgment forms a complete bar against plaintiff’s demand therefor.

These exceptions having been overruled, the defendant company answered as follows:

That by virtue of the several legislative charters granted to it and its predecessors in 1805,1857 and 1858, it has and had full authority to take possession and control of Bayou St. John, and has had full, entire and complete management and control of navigation therein, since said charters were granted.

That it has power and authority to make rules aud regulations for the government and control of same; to direct where vessels and other crafts shall land, and to prevent and remove any obstructions that may impede, injure or interfere with their navigation thereof.

That plaintiff is, and was without right or authority to stretch a rope across the bayou, and to use it as he has done; and that its said use is an obstruction to the navigation thereof, occasioning hindrances, delays and accidents to vessels and other water-craft.

That plaintiff is not the owner, aud is not entitled to the use of the land to the water’s edge, but that by its aforesaid charters it is entitled to, and is the owner of, the banks of said bayou, and twenty feet additional, specially granted it, on either side, for the construction and maintenance of public roads.

That for over forty years it has kept enclosed, by means of a fence running parallel with the bayou — and at a distance of sixty feet therefrom — the land between said fence and the bayou.

That, at their own expense, the company has erected and maintained a bulkhead in the edge of the water, and have filled the intervening space between it and the top of the banks, whereby a new and permanent bank of some fifteen feet in width has been formed and is now in use.

That since 1805, it and its predecessors have been in the peaceable, open and undisputed possession and enjoyment of said land, and they plead the prescription of ten and thirty years.

That plaintiffs’ action aud injunction were causeless and without the color of legal right, and $500 is due them on the score of attorneys’ fees.

Bertrand Saloy denies any individual liability, and joins in the company’s answer and demands.

I.

In order to a proper understanding of the issues involved, it will be necessary that a brief history be first given of the Navigation Company and its chartered rights and privileges.

In the latter part of the eighteenth century, Bayou St. John was quite a small stream. At the point of its confluence with Lake Pontchartrain there was formed a sand-bar, and the water was so shallow at times that a canoe could nor pass its mouth.

During the administration of Baron Carondelet in 1790, the opening' of a canal through Bayou St. John, from the lake to the city, was first undertaken; but it was not completed under the Spanish regime.

After the cession of Louisiana and the establishment of the Territory of Orleans, provision was made by the Legislature for its completion; and the “Orleans Navigation Company” was organized under an act for the purpose of improving the inland navigation of the territory, which was approved on July 8, 1805.

Power was conferred upon that corporation to “(inter into and upon, all and singular, the land, and lands covered with water, where they shall deem it proper to carry the canals and navigation herein before particularly assigned, with or without the consent of the owners thereof; and to lay out such routes and tracks as shall be most practicable for effecting navigable canals,” etc.

It further provided for the expropriation of private property adjacent to the proposed canals, “not to extend more than one hundred and eiglicy feet therefrom;” declaring that said corporation, and its successors, on paying the award therefor, “shall be immediately vested with a good and indefeasible title to the said lands and tenements,” etc.

The corporation was authorized to have and recover from every passing vessel, inward or outward bound, one dollar per ton of such vessel’s admeasured burthen, as soon as it should so improve the navigation of Bayou St. John as to admit, at low tides, vessels drawing three feet of water ; and when it was further improved, so as to permit such vessels to xiass from said bayou by the Canal Carondelet to the bayou terminating the same at the city, it should be entitled to receive from such vessels one additional dollar per ton, etc.

Tl>e act further declared that if any one should break, or throw down any embankment, or other work erected by said corporation ; or should forcibly pass through any of said canals, such person, besides repairing all damage occasioned thereby, should forfeit and pay the sum of $100, and in addition to toll.

The company was authorized to lay out and construct, from the bridge at the Bayou Settlement — now Spanish Fort — a road or highway on each side of the bayou; and, if same was constructed of shells, sand, or other hard material, and of at least twenty-five feet in width, it was entitled to charge toll, the rate of which was fixed.

In 1821 suit was brought by the Attorney General to determine the constitutionality of the company’s charter, and after full discussion and careful consideration its validity was maintained. 11 O. S. 309, State vs. Orleans Navigation Company.

This coloration continued operations under its charter until 1852, when suit was again instituted in behalf of the State, for the forfeiture and revocation of its charter, on the ground that it had become insolvent, and through neglect and mismanagement of its affairs, the navigation of the Bayou St. John and Canal Carondelet had become dangerous and hazardous.

This suit prevailed, and its charter was revoked and forfeited for a violation of the conditions of the act of incorporation.” 7 Ann. 679, State vs. Orleans Navigation Company.

During the pendency of that litigation the Legislature of 1852 enacted a statute authorizing, in the event of its successful termination, the liquidation of the company’s affairs; the sale of “all its property, real and personal, in block, at public auction, to the highest bidder.” There was made in it a condition that if the purchasers should organize themselves into a corporation, under the laws of the State, for a term of twenty-five years, for the purpose of carrying out and effecting the improvements originally contemplated, and the construction of a new basin, at the junction of Canal Carondelet and Bayou St. John, said corporation should he entitled to receive and exact all such tolls and revenues for the use of said canal, bayou and roads as the Orleans Navigation Company was entitled to under its charter.

Thereunder a sale was made on tire 28th of June, 1852, to James Currie and others, of all the rights, privileges, franchises and property of the Orleans Navigation Company^ to, in, or upon Bayou St. John and Canal Carqndelet, together with all of its dependencies and accessories of any and every kind, especially including all those acquired by said company under various acts of Congress.

Subsequently there was duly organized the New Orleans Canal and Navigation Company, which acceded to all the rights of said purchasers, under the aforesaid legislative enactment; and they entered into immediate possession and control, and continued, uninterruptedly, in possession and control, and full enjoyment of their rights until 1857, when same were transferred to the Carondelet Canal and Navigation Company, defendant herein, which was incorporated by the Legislature of that year. It was, by the terms of its charter, expressly empowered to complete the work of improvement theretofore begun on Canal Carondelet and Bayou St. John, by its predecessors ; to take possession of same, and to receive, possess, hold and enjoy all and singular, the rights, franchises, privileges, powers and authority, which were,'at any time, granted to, received, possessed, enjoyed or exercised by the late Orleans Navigation Company,” etc.

In 1877 the right of the defendant company was resisted on the ground that Bayou St. John is a natural navigable stream, emptying its waters into Lake Pontchartrain and connected with the Gulf of Mexico, and is, therefore, public, and free to all persons wliomsover, to navigate it at pleasure, with their vessels, and to moor them to its hank; but the Court decided differently, and held that it was not a “ natural ncwigable stream,” hut had been rendered navigable by the labor, skill and capital of the defendant company, and its predecessors. 29 Ann. 430, Carondelet Canal and Navigation Company vs. Parker.

In this manner, the defendant company traces — through the various charters, deeds and legislative enactments recited — its title and franchises to and upon the land, bayou, roads and canal, in controversy, hack to the original incorporation of the Orleans Navigation Company in 1805.

There appears to he no broken link in the chain. All of its rights and titles descended to it directly from the Territorial and State governments. No part of the property ever passed under parochial or municipal control. The defendant company acquired, and is the owner of all the rights of its predecessors, whatever they were — the right of use or property — in the hanks of Bayou St. John to the extent of 180 feet, on either side. If they did not acquire an absolute title to the laud, at the date of the grant — because the fee was, at that date, in the United States government — the title vested in the corporation, by the acts of 1852 and 1857. If these he regarded as questionable, it is certainly true that the State could not thereafter dispose of any part of the territory traversed by the canal, bayou and roads, to am other, and free it from the claims of the corporation, under its charter.

II.

The record shows that plaintiff acquired February 3, 1885, an apparent title, at sheriff’s sale, under execution against one Otto Touche, to all his right, title and interest in and to fractional section ten, of township twelve, range eleven, south, containing four and sixty-seven one hundredths acres.

Otto Touché acquired from J. R. Bres on February 3, 1884.

Bres obtained a patent from the State on the 23d of November, 1882.

This land was selected and reported to the Surveyor General of the State as swamp and overflowed land, on the 18th of April, 1850.

The fee simple was in the State in 1852, when the sale to Currie and associates was made, and when the New Orleans Canal and Navigation Company was organized.

The record further discloses that on the 9th of March, 1880, Otto Touche accepted a written lease from the defendant company, of a certain piece of ground, measuring 100 to 120 feet front on Bayou St. John, for the purpose of erecting a house thereon, to have a front of 100 feet and a depth of 18 feet. This lease was for a period of one year from the 1st of April, 1880, with the privilege of another year, and at the rate of $25 per month.

There was an express stipulation in the lease that at the expiration thereof the buildings thus erected should revert, with the property of the lessors, without any reservation or additional consideration.

Soon after this lease was executed Bertrand Saloy, acting for the company, granted his lessee permission to make use of ferryboats in transferring persons across Bayou St. John' by means of a rope stretched from bank to bank, upon the expressed condition that it should not hinder nor impede the navigation of that stream.

On the 6th of June, 1881, Touche wrote a letter to the defendant, company in which he requested them to release him from his obligation to pay for the ferry privilege. He says: Being a lessee of yours, idease take into consideration that T have paid you $5 per month for the privilege of the ferry, when boats of twice the size., charging fare, are only paying $2 to $2.50 per month.”

On the 23d of August, 1884, the defendant company gave Otto Touche written notice that the privilege granted him to run a flat, across the bayou, or any other craft upon its waters, was withdrawn.

He denies having received the letter, but a witness swears positively that he handed it to him, and we are inclined to believe his statement, as he is without interest in the suit.

This lease had not expired when Otto Touche acquired a title from' Bres, February 8, 1884, and he could not in that manner dispossess his lessor, for whom he occupied as agent and lessee; and in direct violation of his contract, he could not acquire the ownership of the buildings, and the improvements that reverted to the company at its expiration.

The record ft rther discloses that in September, 1884 -about six months subsequent to his reputed purchase from Bres, and within a few days after the company had revoked his ferry privilege --Otto Touché instituted a suit, quite, similar to the instant one, against same defendants; and it was pending at the time the plaintiff, Singer, caused a, seizure to be made of the property in question, and it was dismissed by a judgment of the court only a few days prior to his purchase. Under the circumstances, he could acquire no better or higher right than Ms judgment debtor had, at date of seimre of the property, as his.

It further appears from the evidence, that Otto Touché has never yielded the actual possession of the property to Singer, who resides in the city; and Touché continues the'control and management of the business as before, to all appearances, though he claims to represent Singer at a salary of $100 per month.

The following quotations from his evidence illustrates the character of his continued occupancy of the premises :

“ Question. Did you draw out of the receipts in the bar-room?

‘'Answer. Yes, sir.

“ Q. Did you keep an account of those receipts ?

“A. None, particularly.

“Q. Did you keep any account to show how much you have taken out of the receipts of Mr. Singer?

“A. No, sir.

“ Q. You have no books or papers showing that?

“A. No, sir.

“ Q- No papers of any kind, or accounts between you ?

“A. None, particularly.

“ Q. Do you know of Mr. Singer keeping any account of your transactions with him ?

“A. I don’t know that he does.

“ Q. Did you ever render him any account of your transactions with him?

“A. No, sir; not particularly.”

Mr. Singer, though present in court during the trial, did not offer his evidence, and favored us with no explanation of this unsatisfactory situation.

Immediately previous to the institution of this suit, Otto Touché made considerable repairs on the buildings, for which he claims to have expended quite a sum of money.

Whatever rights may have been transferred from Bres to Touché, or which subsequently passed to the plaintiff, are here presented in such questionable shape as to entitle them to small consideration.

III.

From the evidence we have gathered the following facts, which serve to show the manner in which the defendant company and its predecessors dealt with the franchise and properties with which same was connected during a series of years.

One witness states that he has known the lands in controversy for forty years. That in 1852 he worked for the company, and hauled shells and put them on the bayou road. He says that, at that time, the company had a blacksmith shop and wood-yard on the premises in question, and there was a fence running along the bayou, and of about the average distance of sixty feet from it. The company occupied the intervening space between the fence and another bayou, then and since. Says that he owns land in its immediate vicinity, and that it is low, swampy land. That the land where the establishment called “Over the Rhine,” is situated, was, at one timé, low and swampy; but that has been raised by the compa/ny. That its mean width, from the bayou to the swamp), is about 60 to 65 feet. Before this land was raised the water from the lake washed across it, at high tide — often being submerged thereby. This land was raised by dirt taken from the bed of the bayou by dredging. The work was done in 1845 or 1846, though it was not .entirely filled in 1852.

The company once had a warehouse on the premises, but it was burned down in 1846. Others say that the wood yard, of which the pilaintifif complains as a nuisance, is one that has been kept by the company for many years past, as a wooding-place for steamboats. Near it is a small cabin belonging to the company, and which is occupned by officers of the vessels leading through the canal.

Many years prior to the establishment of the improvements Over-the-Rhine, the defendant company had built a break-water in the edge of the water, in front of those premises, and had filled in the space between it and the bank with earth, whereby the bank was elevated, and extended out a distance of about fifteen feet. This was done about 1880; and it was established on or very near the line of the old break-water. The pilings were driven down in i.he edge of the water, and planks nailed to them, and the- dirt was filled in between it and the bank, somewhat after the style of a levee.

There can be no doubt that the defendant company and its predecessors had a perfect and compílete light to use, appropriate and enjoy the property adjacent to the Bayou St. John and Canal Oarondelet, as they did, and that plaintiff has acquired no right, under his title, which can exclude defendants from the enjoyment of it.

IY.

With regard to the plaintiff’s ferry privileges, it is sufficient to say that the only right of that kind, to which defendants ever consented, was "by them expressly withdrawn long before he acquired any color of right in the premises.

The evidence shows, clearly and unmistakably, that the rope that was stretched across the bayou, whereby the flat was propelled from side to side, particularly under the loose management of Otto Touchó, was a great hindrance and impediment to navigation on the bayou, and defendants had a perfect right to discontinue it. There was a good bridge across the bayou, only a little way from Touche’s place of business, which furnished his customers ample facility of reaching his resort; and the company was under no obligation to increase them gratuitously.

Under the general law of the State, the police juries have the “exclusive privilege of establishing ferries and toll bridges within their respective limits;” and they are required to lease them out at public auction. R. S. secs. 2750, 2758.

But as the locus in question is within the territorial limits of the city of New Orleans, some consent should have been first obtained from her municipal authority, if, indeed, the same was subject to municipal control.

This identical question was under examination by our predecessors in a case cited above — 11 O. S. 324, State vs. Orleans Navigation Compan —in which they held:

“ As a public highway, the river may be freely navigated, up and down, for the convenience and for hire, of persons and property.

“Wot so across, at such points where ferries are established by law, nor within a certain distance above or below them.

The freedom stipulated for by the ordinance is not so absolute as to be inconsistent with submission to the ferriage laivs, securing to the citizens residing within or without the territory the convenience of finding at suitable places, at all times, and for a fixed compensation, the means of crossing.”

The plaintiff is not only subordinated to the ferriage laws, but they are subordinated to defendant’s chartered lights and franchises and exclusive privileges on Bayou St. John and Canal Carondelet, and cannot be permitted to evade the same,- so as to establish a ferry or to maintain the one hitherto established, without their consent first obtained.

It is, therefore, ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and reversed; and it is now ordered, adjudged and decreed that the demands of plaintiff be rejected and his injunction dissolved, and that the demands of defendants for compensation for attorneys’ fees be rejected as nonsuit, and that the costs of both courts be taxed against plaintiff and appellee.


source: Caselaw Access Project

author: Bermudez, C. J.

license: Public Domain

text:
    No. 9808.
    Lawler & Huck vs. Peter Cosgrove.—J. B. Camors, Third Opponent.
    A bona fide sale, with the pact of redemption, ostensibly valid and duly recorded, passes title of ownership, and cannot be attacked collaterally by a creditor of the vendor, wbo inust bo relegated to a direct action.
    Under the charge of simulation, such creditor caimot be permitted to show that the transaction ought to be avoided on other grounds.
    Evidence adduced and received only as going to the effect must be restricted to the issue of simulation.
    A PPEAL from tlie Civil District Court for the Parish of Orleans. jLJL Monroe, J.

      J. O. Nixon. Jr., for Plaintiff and Appellee.

      P. P. Théarñ <& Sons for Third Opponent and Appellant:
    1. A sale with the right of redemption is a sale vúth a resolutory condition, and not a contract of hypothecary or pignorative security. Duranton, Cours de troit, Yol. 16, Secs. 388, 389,390 ; Lahaye’s notes to Napoleon Code, Art. 1659; Dallo» on Sale, No. 825; 23 Ann. 661.
    2. Such a sale does not merely serve to secure the purchaser to the extent of any just claim he may have against his vendor; but vests in him an immediate ownership, which is defeasible only by the happening of the condition, or, in other words, by the exercise of the faculty to redeem. 23 Ann. 661; 32 Ann. 784 ; 35 Ann. 856.
    3. An act of sale, ostensibly valid, in due form of law,’ passed at a time not suspicious, for a valuable consideration, and accompanied by possession as owner, cannot be attacked collaterally, and property conveyed by it cannot be seized by a creditor of the vendor, without resort to a direct action en decimation de simulation. 33 Ann. 1026.
    -1. It is only in cases of pure simulation that a direct seizure is permitted.
    5. By a simulated act is meant one that has no consideration, no existence, no reality, a sham, a myth, without soul or substance. Hence, an act that has a consideration, however inadequate, or even different from that which is expressed in it, is not a simulation. 30 Ann. 966; Renshaw vs. Dowty, not yet reported.
    6. An act of sale, with the right of redemption, even although the consideration be money loaned by tlie vendee, cannot be treated as a simulation by a creditor of the vendor and attacked collaterally. lAnn.432; 28 Ann.29; 30 Ann. 186; 38 Ann. 483.
    7. Plaintiffs, after averring simply that a certain act of sale is a simulation, cannot contend that the same act is in reality a contract of hypothecary or pignorative security, and that property, apparently conveyed by it, may be seized by a creditor of the vendor and sold subject to the hypothecary rights of the ostensible vendee. An averment that an act is simulated is equivalent to saying that there is no contract at all.
    8. If not inconsistent with an averment of simulation, the allegation should at least be specially made that an act, under which title is claimed, is a contract other than what it seems to be.
    9. The true intentions of parties to a written act can be made to appear only by the stipulations of the act itself, by counter-letters or by other written evidence. 32 Ann. 784; 36 Ann. 100; 38 Ann. 154, 271; 23 Ann. 661. Therefore, parol evidence, which has been admitted under an issue ol simulation, should not he considered in ascertaining whether the parties to an act meant to enter into a contract other than the one apparently entered into, unless, perchance, the said evidence has been admitted in a case where the party claiming the benefit of the said act had been put on his guard, by special averment, that the said act was not what it purported to be. but was another contract in disguiso.
    10. The (evidence, both oral and written, establishes that the act under which Oamors claims title is a sale with the right of redemption, and not a contract of pignorative or hypothecary security.
   The opinion of the Court was delivered by

Bermudez, C. J.

The third opponent claims the ownership of the real estate attached, for having acquired it Iona-fide and for a valuable consideration from defendant.

The defense is that the title set up is a simulation, no consideration having passed.

On that issue, the parties went to trial.

The lower court allowed evidence to show the nature of the transaction and considered it as a contract of suretyship, directing payment of opponent’s claim out of the proceeds of sale in preference to all others.

From the judgment thus rendered the opponent appeals.

The opponent introduced in evidence an act purporting to be a sale by defendant to him of the property in question for $2000, in settlement of which he appears to have paid cash $800 and to have assumed payment of a note of $1200 secured on the property.

The act contains a clause or pact reserving to the vendor the privilege of redemption on payment of $2000, to be exercised within two years after the date of the act, (21st November, 1884). It is shown to have been registered in the conveyance office on the following day.

The evidence shows that the $800 said to have been paid cash, were settled for in flour, delivered on the day of sale and that the assumed note was taken up at maturity.

Possession followed the sale: but, by contract, the purchaser leased the premises to the vendor for two years, at $20 per month, which were paid.

The property is shown to be worth more than $2000 — so much so, that it would seem that there was some understanding between the parties as to a division or attribution of the surplus, in case of a sale of the property by the third opponent, within the delay allowed for redemption, to anyone whom the original owner would designate.

When the attaching creditors offered to prove the. real nature of the transaction, the third opponent excepted on the ground that the contract being ostensibly valid and the act evidencing it havingbeen duly and seasonably recorded and the plaintiffs having pleaded simulation only against it, they cannot attack it collaterally on any other ground and must be relegated to a direct action.

The objection was considered as going to the effect and was overruled. A bill was reserved which is insisted upon here.

The evidence was inadmissible for the purpose in view; but it could be received, to be restricted, however, under the pleadings.

The conclusions of the district judge, nevertheless, show that he gave it more effect than it was entitled to, as he does not recognize the third opponent as owner, but merely as a creditor having a claim for which the real estate stands as security and which is to be paid by preference out of the proceeds of sale over all other claims.

In other words, he ignores the transaction as a sale and treats it as one designed to secure a debt due the apparent purchaser.

It is settled, beyond the possibility of a doubt, that a bona fide sale of property for valuable consideration, coupled with the pact of redemption, transfers the ownership to the purchaser, under a condition suspensive as to the vendor, resolutory as to the vendee, and that the creditors of the former cannot, where the sale is duly recorded, treat the transaction as of a different nature, so as to subject the property to their claim without first attacking the sale directly and having it judicially annulled, or modified according to the true intent of the parties. Laurent, vol. 24, No. 388; Baudry Lacantinerie, vol. 2, Nos. 941, 942; vol. 3, Nos. 584, 1045; Duranton, vol. 16, § 388 et seq.; Mourlon, vol. 3, No. 630, p. 255; Marcadé, vol. 6, p. 301; Calderwood, 23 Ann. 661; Guidry, 29 Ann. 4; Theurer, 28 Ann. 29; Bevers, 30 Ann. 186; Brown, Ib. 966; Levy, 32 Ann. 784; Willis, 33 Ann. 1026; Jackson, 35 Ann. 856; McCan, 38 Ann. 483; Ford vs. Douglass, 5 How. 143. Whatever may have been said in Palmer vs. Mangham, 31 Ann. 356, to the contrary must be deemed as overruled.

The evidence introduced by plaintiffs, as far as it may tend to show anything beyond simulation, ought not to have been considered; but, as it shows that a consideration passed and confirms the pretensions of the third opponent to the ownership of the property subject to the pact d réméré, it ought to have been given that effect.

We are at a loss to conceive how the contract could be treated as one of suretyship in the absence of any evidence of any indebtedness of the vendors; nay, in the presence of proof, that the third opponent was not at all a creditor.

As it is possible that the privilege of redemption was exercised within the delay allowed, which expired on the 21st of November, 1886, since the case was decided below, (June) we cannot render a judgment recognizing tire third opponent as absolute owner, for this would be doing perhaps a vain tiling.

We will simply remand the ease.

It is therefore ordered and decreed, that the judgment appealed from he reversed and that the case be remanded to the lower court for further proceedings according to law, and that plaintiffs pay costs of appeal, those of the lower court to abide the result of the suit.


author: Watkins, J.

text:
    No. 9807.
    Mrs. Elizabeth Mack, Wife, vs. Alexander Stuart Handy, Husband.
    A demand for divorce, on the charge of adultery, may be cumulated with a demand for a separation from bed and board.
    Tbe simple confession, by one of the spouses, of adultery, is. of itself, insufficient to authorize the dissolution of the marriage. Additional facts must he shown to justify tbe decree.
    Possession by the accused party, of suspicious mixtures, which were taken by physicians and druggists to have been remedies for some venereal disease, is circumstantial evidence, that may be considered in connection with other facts that are proven in the case; but not sufficient to establish his guilt.
    Proof of intemperance since the filing of the suit may be administered, not to prove a substantive cause, but to show a continuing habit.
    Proof of gambling is admissible in support of the charges of squandering money and debauchery.
    What are habitual intemperance and excesses which render it insupportable for a complaining wife to longer continue marital relations with her husband, is a question for the court, and not the party, to decide.
    Habitual intemperance is the constant indulgence in such stimulants as wine, whisky, or brandy, whereby intoxication is produced.
    Et is not their ordinary use whereby drunkenness may be occasionally produced; but the abuse of them, so long continued that the habit becomes fixed and confirmed.
    The evident object of the separation of husband and wife from bed and board was to afford the offending party ample time and opportunity for reformation; and to the party complaining, to understand the situation and determine the propriety of making a reconciliation.
    The patience and forbearance of the wife during her long endurance of the cruel treatment of her husband, while entertaining hope of his reformation, should not be mistaken for condonation or reconciliation. It serves rather to strengthen than to weaken her cause of action.
    A PPEAL from the Civil District Court for the Parish of Orleans. JTX Houston, J.

      Nicholls and Carroll for Plaintiff and Appellee.
    1. Where a plaintiff, in a suit for divorce, declares upon a double set of allegations, the first of which sets, if proved, would entitle her to a divorce, and the other (without the first) would entitle her to a separation from hod and hoard, prays for an absolute divorce, “ and for all such other and farther relief and decrees in the premises as to law, justice, right and equity will comport, and the nature of the case and the evidence will authorize, and for general relief,” the court can grant either an absolute divorce or a separation from bed and board, as the law and the evidence will justify. The less is included in the greater. 10 Ann. 664, Ledoux vs. Boyd.
    2. Under an allegation by plaintiff, that, the defendant was habitually intemperate, that his habits were Axed and continuing, plaintiff had the light to show the continuance of the habit beyond the date of filing the petition.and up to the day of trial, the object being not to make use of the particular facts shown, as substantive acts for a cause of action, but in aid and corroboration of the allegation of the character of the habit.
    3. Whore a plaintiff, in her allegations, declares that she is unwilling, on account of the indecency of certain facts, to specify them particularly in the petition, but offers to do so if required, and the defendant suffering a judgment by default to be taken, objects to evidence of particular facts on account of generality of averment, and it is shown hy commissions taken out and proceedings had, that the defendant was fully advised of the particular facts which would be proved, and the court and the plaintiff’s counsel offer to grant all time which might be asked, and the defendant asks for no time, and calls for no bill or specification of particulars, the testimony is properly allowed to ho introduced. 6M. 649; 4 :N. S. 277; 7 3ST. S. 354; 17 L. 238; 5 Ann. 531,673; 9 Ann. 119, 254; 10 Ann. 528; 12 Ann. 795; 37 Ann. 800.
    4. The admissions of a husband are not sufficient per seto authorize a divorce or separation, but they are admissible in evidence, and when they are free from suspicion of collusion and corroborated, they are evidence of the highest kind. Matchin vs. Mabchin, 6 Barr, 332, 337; Bishop on Marriage and Divorce, Yol. 2, § 242, and note, §313, et seq.: admissions do not require to be made under oath, nor must they, to be admissible, have "been made prior to the filing of the suit.
    5. A defendant cannot introduce his own letters in evidence, particularly when it is shown that they were written with direct reference to being used in his own behalf in the suit.
    6. There is no necessity for direct evidence of adultery. Et maybe proved by circumstantial evidence, of the weight and force of which the court is to judge. There is n« necessity for proving the particular time, or placo, or person with whom committed ; it is the fact of adultery, not the particulars thereof, which are important. Bishop, §§ 610 et seq., §§ 614, 632, 633, 634-
    7. Special facts may be introduced to prove adultery, and also may be used to evidence in themselves acts properly characterized as outrages and cruel treatment.
    8. Where a defendant in a divorce suit sets up ,l condonation,” he must prove it. Condonation is forgiveness under 11 a conditionEven if condonation were shown, the condonation would cease if the condition were shown to have been violated. The condition is future good conduct and future conjugal kindness. Bishop. Yol. 2, §§ 33, 34 and 53 et seq.

    9. Acts which, in a husband, might he held as a condonation, are not so held in a wife. Bishop, Yol. 2, §§ 44, 49, 51, 52 and notes.
    10. Submission must not be confounded with condonation — “ tho forbearance of a wife and her patience in hearing with the cruel treatment of her husband, in the fond hope of his reform, and of his being restored to her as a kind husband, and to her children as an affectionate father, until at last she sees that all hope is lost, must not be confounded with, or construed as, condonation, or reconciliation, as contemplated in our laws and expounded in our jurisprudence.” 34 Ann. 306, 614; 23 Ann. 422 ; 36 Ann. 679 ; Bishop, Yol. 2, §§ 51 and 52 and notes.
    11. There is no condonation whore the wile has been kept from acting by threats of taking away her children to another State, and from repugnance to the exposure of family matters and the scandal of a divorce suit.

      12. There is no necessity that the acts violative of the condition of a condonation should be ejusdem generis of the act condoned; the violation of the condition sets the whole matter at large, If the act alleged to have been condoned was a good cause for a divorce, it can be used again as a cause of action for a divorce, although the subsequent acts violative <jf the condition would, in themselves and by themselves, have been only cause for separation from bed and board. Dalloz aud Verge, under Art.273, C. N., Nos . 10 and M. Heg, 6, Inin, 1853, I), p. 53. i. 244; Bishop, §§ 53, 54, 55, 56, 57, 58, 59, 60,
    13. The law, in making ‘‘habitual” intemperance a cause for separation, necessarily presupposes the continuance of marital relations for an undefined period. The precise time when these habits become of such a character as to be insupportable must, of course* rest with the powers of endurance of the wife and the facts of the case. She has to determine when she can no longer stand the situation. Bishop, §§ 51, 52.
    14. The evidence in this shows not only habitual intemperance on the part of the defend* . ant for years back, but an almost constant intoxication during the whole of liis last stay in New Orleans, and shows that he left home on that last day (since which time the parties have not met) in a beastly state of intoxication.
    15. Negative testimony amounts to nothing as against positive, overwhelming affirmative, testimony of intemperate habits; partial ‘‘rests” to recover from attacks of sickness resulting from drink, or even partial rests without sickness, amount to nothing. A man whose business causes him to be absent from his wife for several months, and who might conduct himself properly when absent from her, but who should select as the precise periods for continued intemperance tlie only times when himself and his wife are thrown together, could scaioely point to his conduct when away from her as an offset to his had conduct when with her. So far as husband and wife are concerned, the periods of their being together would be the determining periods for his good or bad conduct. It is submitted that the evidence in this case establishes affirmatively, however, continued habits of intemperance long before, up to and down to, the very trial of this case, of character such as to justify the prayer of plaintiff’s petition.

      O. Ilcliae Selph for Defendant and Appellant:
    The prayer of the petition determines the cause of action, and where it is for a divorce from the bonds of matrimony, the allegations of the petition must be of a legal character to support that prayer, and such as to authorize the introduction of proof to support the allegations.
    The charges (allegations) to support the two classes of divorce, viz: from bed and hoard, and from bonds of matrimony, are not only distinct and unconnected charges, but lead to distinct issues and decrees, and it is not proper to join both proceedings in one action. Bishop, voi. 2, §§ 327, 329.
    If the prayer is for an absolute divorce, the further prayer, “ for all suck other and further relief and decrees in the premises as to law. iustice, right and equity will comport, and the nature of the case and the evidence will authorize, and for general relief,” is not such a prayer as will authorize the court to decree a separation from bed and board when the special relief prayed for is for a divorce from the bonds of matrimony.
    Evidence which would support an action for ‘‘separation from bed and board,” is improperly admitted in an action for a divorce from the bonds of matrimony.
    Evidence of actions and conduct of the husband after the filing of apetition for a divorce, is inadmissible.
    Allegations of adultery must be in direct terms. Their forms must, to be adequate, be accompanied by such further description of time, place and circumstances, and the like, as shall apprise the defendant of the particular transaction to which he is to respond. Bishop, vol. 2, §§ 329, 604.
    If defendant answers, without excepting to the vagueness of the allegations, it is no waiver of his right to object to the evidence. The failure to ask for a bill of particulars of the adultery will not supply the defect of a more general allegation. Bishop, vol. 2, §§ 606, 607.
    Reconciliation extinguishes the cause of action. But if a subsequent cause arises, the party can make use of the first in corroboration only. Civil Code, 152.153. And reconciliation is presumed when husband and wife live and cohabit together.
    The subsequent causes must be of the same nature as the first, to enable the plaintiff to make use of the first.
    “The mere acknowledgement of the truth of the facts alleged, made by either party, oven in an authentic act, can never be deemed sufficient foundation for a decree of separation from bod and board, a fortiori, of a divorce.” 16 L. 26.
    The proof of “habitual intemperance” must be sufficient to warrant the court, not the plaintiff, in concluding that the “nature” of the “habitual intemperance is such as to render their living together insupportable.”
   The opinion of the Court was delivered by

Watkins, J.

Plaintiff sues her husband to obtain against him judgment of divorce, and in the alternative a separation from bed and board.

Her petition is elaborate, and the charges and specifications are quite numerous.

They are to the effect that for several years past defendant has been guilty of “habitual intemperance” and “excesses, cruel treatment and outrages towards her; that he has cursed, abused and insulted her without cause, in public and private; and that such habitual intemperance, ill-treatment and excesses are of such a nature as to render their living together insupportable.”

It also charges that defendant has not supported her and her children properly and decently; but that he has spent his means in riotous living, dissipation and debauchery in the company of disreputable associates and lewd and abandoned women.

That his general conduct, habits and manners are of such character that she is, and has been, in constant fear of herself and little children sustaining great bodily harm at his hands.

Slie specially charges that he has been guilty of repeated adulteries.

The defendant pleads the general issue; no cause of action, — because petition shows that whatever causes she may have had have been condoned and extinguished by reconciliation; and finally that plaintiff has been improperly influenced to institute this suit, because he desired to remove to Canton, Miss., where he could better support and take care of them.

I.

In the lower court plaintiff’s demand for a divorce was rejected, but the demand for separation from bed and board was sustained; and the defendant alone appeals. But, in in this Court, the plaintiff has answered the appeal and prayed for an amendment of that decree, to the end that she have judgment of divorce, in this manner all the issues raised in the lower court are presented here for decision.

On the trial defendant excepted to the ruling of the judge a quo permitting the introduction of evidence in support of the charge of adultery, on the ground that the allegations of plaintiff’s petition were too vague and indefinite to admit of proof under them.

An examination of the petition will show that this vagueness and generality of averments, in respect to this charge, was intentional and was actuated by a pure and proper motive, to avoid the recital of painful and disgusting details.

The petition clearly intimates to the defendant and the court, her entire willingness to spread them upon the record, if deemed necessary or desirable.

Before the case came on for ferial, and prior to issue being joined, the plaintiff propounded interrogatories to Dr. Priestly, of Canton, Miss., and a well known druggist of this city, in which the character of the evidence she would rely upon, was clearly indicated; and, conferadictorially with him, obtained a commission to obtain their answers. In addition, the judge a quo in passing upon his objections to the evidence, stated that if he was taken by surprise, he would allow him ample time to procure evidence in rebuttal; but defendant failed to avail himself of the privilege.

We fail to see in what respect the defendant has had injustice done him.

II.

Defendant further objects to any evidence being introduced for the purpose of establishing cruel treatment, habitual intemperance and other charges in support of a decree of separation from bed and board.

1st. Because it is not specifically claimed in Ike prayer of the petition.

2d. Por the reason that a divorce and separation from bed and board cannot be demanded on one and the same suit.

Our predecessors decided both objections in the negative. 10 Ann. 663, Ledoux vs. Her Husband.

In 7 La. 282, Soovi vs. Ignogoso, the Court held that a suit for a separation from bed and board, within the terms and meaning of the law, is an action of divorce. * * *

“ The action of separation from bed and board, in all cases, leads to a divorce a vinculo matrimonii.”

The Code expressly provides that in the cases excepted above, a judgment of divorce maybe granted in same decree, which pronounces the separation from bed and board.” R. C. C. 139.

One of rhe exceptions referred to is adultery.

The objections were properly overruled.

1IL

The defendant farther excepted to the introduction in evidence of certain admissions of his as proof of adultery.

It has been held that in such suit as this “ the law requires more than a simple confession of one of the parties to dissolve the bonds of matrimony between them; facts must be shown, and such facts as will authorize a court of justice to declare that the interference of the law is absolutely necessary.” 16 La. 27, Harmon vs. McLeland.

Courts may, without impropriety, entertain such proof, in corroborai.ion of other proven facts, from which adultery may be inferred, but not as substantive evidence.

Such proof is insufficient of itself to convict the defendant.

IV.

Possession by the defendant of suspicious mixtures, which were, taken, by drug-gists and physicians, to have been a remedy in use for some venereal disease, is circumstantial proof insufficient to make out a case against him. There is a possibility that it may have been prepared and in use for a different purpose or disease. It is not certain that it was his, or in use at any time by him, though the indications point that way. But these are circumstances that are to bo and have been considered, in connection with others, in deciding the points.

The soiled linen may be referred to some other cause or trouble, such as piles, tumors, boils, etc. True it is, that no specific act or fact has been proven with that degree of certainty that the law requires. And there is in the evidence nothing in time, place or circumstance to connect those suspicious indications with the defendant’s confessions. In fact, his statement, taken as a whole, does not admit criminal conversation with any one.

From the evidence it appears that the suspicious indications appeared in 1877 and 1878, and were continued in 1879 and 1880, and again in 1882, from time to time during those several years. But during all these years the plaintiff and defendant resided together and lived as man and wife. In November, 1879, a son was born of their marriage, and in August, 1881, a daughter. They are shown to be perfectly healthy, bright and intelligent children.

It seems quite impossible that defendant could have led the dissolute life attributed to him during these years, and that he should have been so frequently under treatment for venereal ailments, without contributing it to mother or children.

In this particular the judgment rejecting plaintiff’s demand was correct.

Y.

Objection was urged by defendant to the introduction of proof of intemperance since the filing of the suit. The judge a quo permitted it; not to show a substantive cause, but a “confirming habit.” That was correct.

He urged further objection to proof of his gambling, on the ground that there was no allegation justifying it; but the court below permitted it to be introduced in support of the charges of “ squandering money and debauchery.” Tn this, his ruling was correct also.

A careful reading of the evidence in this large transcript, satisfies us that the defendant has been addicted to dissipation and drunkenness during a series of eight or ten years.

The proof shows that he was a traveling salesman, professionally, and that the theatre for his operations was the State of Mississippi. I-Iis parents resided at Canton, Miss., and died there. He has brothers who still reside and are engaged in business in that town.

He married the plaintiff in this city in 1874, and for several years thereafter he represented as drummer several responsible, houses. His business qualifications appear to be fair, and of such a character as to have enabled him, with prudence and economy, to have supported and maintained his wife comfortably; but from the evidence it may be fairly assumed that he spent the most of his means in gambling, dissipation and riotous living.

One of his brothers states that he was known to have been a “drinking man” before his marriage. A sister testifies to his being frequently drunk since his marriage, and that, at such times, he would abuse and mistreat the plaintiff.

Other witnesses who, from the close and intimate relations they held with his family, must have been very intimately acquainted with his habits, state that defendant very frequently came home late at night and very drunk, and on such occasions was boisterous, abusive and often obscene in the presence of his wife and family.

Two witnesses detail numerous acts of defendant’s cruelty and unkindness to the plaintiff; and on some occasions when she was sick, and on one or tw'o occasions soon after her confinement.

The-phrase “habitual intemperance” scarcely requires an interpretation ; it is easily understood. It means the custom or habit of getting drunk. The constant indulgence in such stimulants as wine, brandy and whisky, whereby intoxication is produced. Nob the ordinary use, but the habitual abuse of them.

The habit should be actual and confirmed. It may be intermittent. It need not be continuous, or even of daily occurrence.

Defendant has been habitually intemperate for a great many years.

It seems to have been his habit, on all occasions whilst in this city, and at his home, and with his family. On one occasion he had an attack of delirium, tremens. He frequently staid out all night, without advising his family of his whereabouts •, but when he did return, he gave undoubted evidences of drunkenness and debauchery.

It is quite impossible to give, in detail, even the salient facts adduced on the trial in the court below, in support of the grave and serious charges against defendant. Suffice it to say that, to our minds, they are clear, cogent and conclusive. They were to the judge a quo, and we concur in his conclusions.

The plaintiff is a lady of taste, refinement and culture, and accustomed to the amenities of good society.

The very idea of coercing her to continue her marital relations with the defendant, under the circumstances detailed, is shocking to our sense of justice and morality. We feel no hesitancy in deciding that the habitual intemperance and excessess of defendant, and his ill-treatment of the plaintiff, were such as to render their longer living together as man and wife insupportable to her.

And this is said with due regard for the time-honored rule that courts should not lend their aid to effect the separation of spouses, especially when there is issue of their marriage, except in extreme cases. But in a case like this the dictates of good morals, good breeding and Christian charity require that the tie that binds should be severed. The separation will not be necessarily irrevocable. When a year shall have elapsed, and the plaintiff and defendant have had time and opportunity for reflection, he may have changed his career and become a sober and orderly citizen, and she may feel willing to resume marital relations with the father of her children, condone all past offenses, and unite her efforts with his renewed exertions to achieve the happiness both had so nearly lost.

VI.

The evidence does not establish such reconciliation as the Code contemplates, as extinguishing the cause of action.

The plaintiff was possessed of no means or home of her own.

Her mother had none.

The defendant relied solely upon his own exertions to earn a livelihood for himself and family.

She had no alternative but to remain in Ms homo and endure, as best she could, through all those years, his habitual intemperance and excesses, for the sake of their little children.

This heroic endeavor serves rather to strengthen than weaken her cause of action.

The language of this Court in Terrell vs. Bowman, 34 Ann. 306, is strictly applicable. “The forbearance of a wife and her patience in bearing with the cruel treatment of her husband in the fond hope of his reform and of his being restored to her as a kind husband, and to her children as an affectionate father, until at last she sees that all hope is lost, must not be confounded with or construed as condonation or reconciliation as contemplated in our laws and expounded in our jurisprudence.”

Judgment affirmed.


text:
    No. 9956.
    The State ex rel. J. M. Raymond vs. A. Voorhies, Judge of Civil District Court for the Parish of Orleans.
    A State court can entertain jurisdiction of a suit in personam against the roaster and owners of a vessel, coupled with, a sequestration, to enforce a money claim secured by lien, by a State statute and not created by the maritime law.
    There can be no more objection to the mesne process, the purposo of which is to secure the property to respond to the personal judgment, when rendered, than there can be to subject it to execution after judgment.
    A decision holding that a proceeding is in personmi against one who is the master of a vessel, does not determine that the suit has that character against the O'wners, where the owners are not before the court on an application for a prohibition.
    ^ PPLICATION for Certiorari.

      A. Bernau for the Relator.

      8. 8. Carlisle for the Respondeat.
   The opinion of the Court was delivered by

Bermudez, C. J.

The relator charges that in a suit brought before the Civil District Court for the Parish of Orleans, under Section 2705 of the Revised Statutes, the district judge has exceeded the bounds of his jurisdiction, and that he should be prohibited from all cognizance of the cause, which is one of which a court of admiralty alone has jurisdiction,

Tlie district judge returns that his court has jurisdiction.

The section requires any vessel inward or outward bound, to or from the port of New Orleans, to employ as a pilot a duly licensed branch pilot, when such officer tenders his services.

It declares that such vessel, her captain and owners, in case of refusal, shall forfeit the sum of one hundred dollars, with privilege on said vessel, to be. recovered before any court of competent jurisdiction, in the name of the Charity Hospital, for the benefit of that institution.

Tile suit was brought before the district court by the Charity Hospital, the beneficiary, against J. M. Raymond, master and owners of steamship Anglian, and the petition concludes with a prayer for a personal judgment and a sequestration of the vessel.

An exception filed to the jurisdiction of the district, court, having been overruled, the present proceeding was instituted to prevent that court from taking further cognizance of t.he suit.

The Constitution of the United States'grants to Pederal courts judicial powers in all cases of admiralty and maritime jurisdiction. Art. 3, sec. a.

The judiciary act of September ¿4,1780, vests in the District Courts of the United States jurisdiction in all such cases, exclusive of State courts, “saving to suitors, in all cases, the right to a common law remedy where the common law is competent to give it.”

That act is held to confer an exclusive jurisdiction by proceedings in rem, as well in cases where a right to that process is given either by the general maritime law or by State statutes; so that no State court can issue process in the nature of admiralty procedure to enfoice a lien given by the statute of a State against a vessel in maritime subject. This exclusive jurisdiction is, however, confined to the enforcement of remedies in maritime causes by proceeding in rem against the vessel, or the thing itself.

Suitors, under the saving clause, may proceed, nevertheless, in personam in the State court and, in such proceedings, may attach the interest of the owners in the vessel as in other contracts or cases not maritime, for the reason that the vessel is dealt with as the property of the defendants and not as an actor, as in the case of a proceeding in rem, to enforce a maritime contract or lien.

The. fact that the subject of a suit is one within the admiralty and maritime jurisdiction does not prevent a court of common law from entertaining jurisdiction, provided it be not attempted to be enforced by the admiralty proceeding in rem.

Process in rem is the method of enforcing a jus in re, or proprietary right in the thing itself, conferred by the maritime law or by statute in subjects of a maritime nature, so that a ship, without regard to the personal liability of the owner, maybe condemned for a forfeiture incurred by the master. It is distinct from and cannot always be joined with powers to enforce a personal liability of the owner.

The proceedings in personam, though conclusive as between the parties so far as the property is concerned, are not in rem and do not bind third persons. They affect the title of the defendant only; while a proceeding in rem binds all parties.

In personal actions, jurisdiction can bo, and is, exercised concurrently by courts of admiralty and State courts, when the latter are competent to afford the remedy, and the claim is not conferred by maritime law.

Applying those principles to the cases under consideration, it is manifest that the District Court was competent.

The proceeding is not one- in rem, that is, one against the vessel by-name, as an actor independent of the personal liability of the owners.

It is true that the vessel was seized by mesne process, but that seizure is not equivalent to a process in rem. It is only a subsidiary remedy to secure the property, for a debt said to be due personally by its captain and owners, and for which they we sued personally. The sequestration executed has the same effect as an attachment, in jurisdictions where a creditor is authorized to employ such process to create a lien upon the property of his debtor as a security to respond to his judgment.

In the next place, the proceeding is in personam, to enforce a claim secured by a lien, not created by the maritime law. The plaintiffs complain of John M. Raymond, individually and as master, as also of the owners of the vessel, all liable under the statute, and ask that they be cited to answer, and, after due proceedings, condemned in solido to pay the sum sued for, with lien and privilege on the vessel.

A cardinal principle in matters of this description, is that the presumption is that a cause is not within the jurisdiction, of the United States, unless the contrary appears. This is so for .the reason that process not delegated by the States to the Federal (government, are considered as retained by the States, to be exercised as attributes of their respective sovereignty-. In support of the principles announced, and which are indisputable, we have not deemed it necessary to quote from each particular adjudication recognizing them. We think that reference to the main ones will suffice. See Taylor vs. Carryl, 20 How. 583; The Belfast, 7 Wall., 624; Lion vs. Coleman, 11 Wall., 185; St. Bt. Co. vs. Chase, 16 Wall., 522; The Moses Taylor, 4 Wall. 411; Warring vs. Clarke, 5 How. 441; People’s Ferry, vs. Beers, 20 How. 393; The John Jay, 17 How. 399; The Emily Souder, 17 Wall. 666; Hine vs. Trevor, 4 Wall. 555; The Plymouth, 3 Wall. 20; Ex-parte Phœnix Ins. Co., 118 U. S. 610; Pennywit vs. Eaton, 15 Wall. 382; see, also, 6. R. 192; 7 L. 445; 19 Ann. 384; 23 Ann. 410; 26 Ann. 25; Kent, vol. 1, 419-421.

In the recent case of Johnson vs. Chicago and Pacific Elevator Co. 119 U. S. 388-401, whieh was action for tort, after a review of the authorities, the Court said:

There being no lien on the tug by the maritime law, the State could create such a lien therefor, as it deemed expedient, and could enact reasonable rules for its enforcement, not amounting to a regulation of commerce. Liens under State statutes, enforceable by attachment in suits in personam, are of every day occurrence, and may even extend to liens on vessels, when the proceedings to enforce them do not amount to admiralty proceedings in rem, or otherwise conflict with the Constitution of the United States.

There is no more valid objection to the attachment proceeding to enforce a lien, in a suit in personam, by holding the vessel by mesne process, to be subjected to execution, on the personal judgment, when recovered, than there is in subjecting her to seizure on execution. Both are incidents of a common law remedy, which a court of common law is competent to give.”

We, therefore, conclude that, as the suit is in personam, and not im rem, to enforce a claim secured by a lien, not created by the maritime law, not exclusively cognizable by an admiralty court, and which a State court, having common law jurisdiction, is competent to give, the district judge is not amenable to the charge of transgression of the bounds of his jurisdiction.

Application refused.

On Application for a Rehearing.

The opinion does not purport to say that the proceeding is in personam against the owners.

It simply holds that the proceeding is such against John M. Raymond, who is the only party before us complaining of it.

The Court could not decide any such tiling as against the owners, for the reason that Raymond disclaims any power to represent them, below or here. He, therefore, champions none of their rights, and they do not appear to complain.

Rehearing refused.


author: Poché, J,

text:
    No. 9809.
    J. J. Healey vs. Luke Dillon.
    Plaintiff, as tlie alleged sexton of certain cemeteries, seeks to enjoin the defendant from claiming the same employment, on the ground of the illegality of the attempt to remove him under his alleged employment.
    In the case entitled Healey vs. Rev. P. E. Allen, Ho. 9740 on the docket of this Court, it was held that they could not resist his removal by the writ of injunction; for the same reasons he cannot, by the same means, prevent the appointment of his successor.
    APPEAL from the Civil District Court for the Parish of Orleans. Bightor, J.

      J. Timony and A. J. Murphy for Plaintiff and Appellant.

      J. J. Finney, W. S. Bogers and J. A. Gilmore for Defendant and Appellee.
   The opinion of the Court was delivered by

Poché, J,

Plaintiff sets up a contract with Rev. P. F. Allen, pastor of St. Patrick’s Church, in this city, appointing him sexton of three cemeteries for a term of twenty-five years to be computed from October, 1876, and he complains that, in violation of his said contract, the defendant, Dillon, pretends to have been appointed sexton of the same cemeteries.

Hence he brought tki3 suit, in which he prays for an injunction to restrain the said defendant from disturbing him in his possession and control of the cemeteries aforesaid.

He prosecutes this appeal from a judgment confirming the appointment of Dillon as sexton, and rejecting his (plaintiff’s) demand.

Til at judgment was rendered on May 21, 1886.

Now, it appears from the records of this Court that a judgment was rendered here on the 29th of November, 1886, in the suit entitled J. J. Healey vs. Rev. P. F. Allen et al., No. 9740 (not yet reported) in which the issue involved the proper construction of the very contract which is the subject matter of the present controversy.

It was there held that Healey could not maintain an injunction to restrain Father Allen from discharging him as sexton ; for the reason that the contract there sued on was one of employment for personal services, for the enforcement of which the employee could not in law resort to the remedy of injunction. The practical operation of that judgment was to leave the removal of Healey as sexton judicially undisturbed, and as a consequence thereof to continue in possession of the cemeteries the party who had been appointed as his successor.

As it, was there settled that Healey could not, by injunction, escape the legal effect of his discharge or removal by Father Allen, it follows that he stands on no better ground in his present attempt to disturb his successor in his possession of the cemeteries, under an appointment from competent authority, by the remedy of injunction.

Hence we conclude that plaintiff has been deprived of no legal rights by the judgment appealed from.

Judgment affirmed.


author: Fenner, J.

text:
    No. 9957.
    Robert Hall et al. vs. Mrs. H. M. Curtis.
    Tn an action to recover property real and personal -with rents and revenues, and damages for injury and waste, the whole amounting to only $1710, the addition of a roving claim for $500 additional damages for illegal possession, without any specification of the nature thereof, will he treated as fictitious and not entitled to consideration as part of the amount in dispute giving this Court jurisdiction.
    APPEAL from the Civil District Court for the Parish of Orleans. RigMor, J.

      J. S. & J. T. Whitaker for Plaintiffs and Appellants.

      M. If. Skmner for Defendant and Appellee.
   The opinion of the Court was delivered by

Fenner, J.

A motion is made to dismiss this appeal for lack of jurisdiction thereof, because the amount in dispute does not exceed two thousand dollars.

We think the appeal has no place in our Court.

The action is to recover :

1st. Two lots of ground valued at..........................$1,000

2d. Rents and revenues thereof, valued at.................. 260

3d. Certain personal property or its value, yalued at........ 300

4th. Injury and waste of improvements, valued at........... 150

the whole amounting to......................................$1,710

To this is added a roving allegation that “ by said fraudulent and illegal possession of said property * * petitioners have been damaged in the full sum of five hundred dollars.”

Inasmuch as this allegation is supported by no specification of the nature of the pretended damage, and as every reasonable cause of injury had been set forth in the previous particular claims, we must treat this last claim as merely fictitious and entitled to no consideration as forming part of the real matter in dispute, which is thus below the limit of our jurisdiction.

The appeal is, therefore, dismissed.


author: PochiS, J.

text:
    No. 9842.
    Succession of Theodore Schultz.—On Rule to Compel the Purchaser to Accept Title.
    The effect of a judgment in favor of tlie complaining creditor in a revocatory actioii, is to annul the contract'assailed in so far as its effects concern him. O. O. Art. 1977.
    In case the contract thus avoided be a sale, the effect of the judgment is to subject the property thereby transferred to the execution of the judgment held by the creditor against the vendor. But beyond that, the title of the vendee is not affected or impaired, and it does not revert to the original vendor.
    Hence the succession oí the vendor, whose sale to another has been avoided in a revocatory action, is not thereby reinvested with title to such property, and the adjudicatee at a succession sale of property thus situated cannot be compelled to accept such title.
    PPEAL from tlie Civil District Court for the Parish of Orleans. Houston, J.

      (jus. A. Breaux for Plaintiff and Appellee.

      B. MeOloshey for Defendant and Appellant.
   The opinion of the Court was delivered by

PochiS, J.

George McCloskey appeals from a judgment ordering him to accept title of a piece of immovable property adjudicated to him at the succession sale of the deceased.

His contention is that the succession had no legal title to the property.

The salient facts are that a sale made of said property in January, 1883, by Theodore Schultz to Anne Kraemer, liad been judicially assailed as simulated and fraudulent by William Mackesy, a judgment creditor of the vendor, and the litigation resulted m a judgment which annulled the sale in so far as the complaining creditor was concerned, and subjected the property to execution of his judgment. On appeal that judgment was affirmed by this Court. Mackesy vs. Schultz, 38 Ann. 385. Schultz having died during the pendency of the action, the public administrator, who had taken charge of his succession, was made a party thereto.

After tliis judgment the property was inventoried and was in due course offered for sale and adjudicated, as depending upon the succession of Theodore Schultz.

The queslion presented for solution is whether the judgment rendered in the case of Mackesy vs. Schultz et al. had the legal effect of reinvesting the succession of Schultz with title to the property in question.

Prom the language of the decree rendered therein, as interpreted and affirmed by. this Court, it is quite clear that Mackesy’s suit was characterized and treated as a revocatory action. Hence the effect of the judgment must be tested under the provisions of Article 1977 of the Civil Code, which reads: The judgment in this action, if maintained, shall be that the contract be avoided as to its effects on the complaining creditors and that all the property or money taken from the original debtor’s estate, by virtue thereof, or the value of such property to the amount of the debt, be applied to the payment of the plaintiff.”

It therefore follows that under the effect of the judgment, the title of Anne Kraemer to the property was not disturbed further than to subject it to the execution of Mackesy’s judgment. By paying- that judgment, she would have remained the undisputed owner of the property, with all the rights of ownership and possession which she had acquired under the act of sale by Schultz to her, and no other creditor, and no heir of the latter could have claimed any benefit or advantage against her as a result or consequence of the Mackesy judgment.

It is also clear and equally undeniable that, if Schultz had not died, and an execution had issued in favor of Mackesy, any surplus realized at the sale over and above the amount of the latter’s judgment, would have been the lawful property of Anne Kraemer and not of Schultz.

These views are not only supported by the plain words of the text of the article, but they are in full keeping with our uniform jurisprudence on the subject. Labauve vs. Boudreau, 9 Rob. 28; Lucas vs. Damond, 11 Ann. 169; Loeb and Bloom vs. Arent, 33 Ann. 1085; Zuberbier & Behan vs. Morse, 36 Ann. 970; 1 La. 504, Atwill vs. Belden & Co.

Prom those premises it is therefore safe to conclude that the succession of Schultz had not been reinvested with title to the property, that the same had been erroneously inventoried and offered for sale as property of that succession, and that the title tendered to McCloske5’, the adjudicatee, is a nullity which our law will not compel him to accept.

We note the line of argument followed by appellee’s counsel, who strongly suggests the serious diíñcult3T in the tray of executing Mackesy’s judgment, on the ground that a writ of execution will not issue against a succession, and for the reason that Mackesy holds no moneyed judgment which he can execute against Anne Kraemer, so as to reach the property on whicli he has acquired legal rights.

But these are matters with which we have no concern in the proceeding, and under the restricted issue involving alone the question of the validity of the title tendered to McCloskey.

Under our system of laws there is no right without a remedy, and whenever Mackesy adopts the proper remedy, which does exist, he will find the courts ready to sustain him.

We therefore hold that the judgment which condemns the adjudicatee to accept a title which has no existence in law' or in fact is erroneous.

It is therefore ordered, adjudged and decreed that the judgment appealed from he annulled, avoided and reversed, and that the rule taken against George McCloskey to compel him to accept title to the property described in said rule be discharged and dismissed at appellee’s costs in both courts.


text:
    No. 9958.
    The State ex rel. J. Hug et al. vs. R. C. Davey, Recorder.
    A. suspensive appeal suspends the execution of the judgment complained of, but does not divest the court of jurisdiction over a controversy involving, not the identical, hut a similar matter.
    Iu such a case prohibition does not lie against the court.
    ^PPLICATION for Prohibition.

      Belden & Armbruster for the Relator.
   Tiie opinion of the Court was delivered by

Bermudez, C. J.

This is an application for a prohibition. The relators aver that they were prosecuted before the defendant on the 30th of March, 1887, for violation of ordinance 4798, A. S., prohibiting private markets within six squares of a public market, and that the recorder lias no jurisdiction over the prosecutions, for the reason that they have taken suspensive appeals from judgments in similar prosecutions, which are pending before this Court under No. 9935 of its docket.

The statement of the ground of complaint carries its refutation.

The appeals have suspended the execution of the judgments and cannot divest the recorder of jurisdiction over subsequent similar prosecutions.

Furthermore, the appeals to which reference is made have been decided, the judgments affirmed, and the rehearing asked refused.

Application refused.


author: Poché, J.

text:
    No. 9959.
    The State ex rel. M. M. S. MacKenzie.
    In a proceeding involving a question of jurisdiction rations maferiae. a party will not be allowed to cumulate several judgments so as to create an appealable amount, wbicli is not disclosed by any one of tho judgments in question.
    In a contest betweeu two parties for priority of execution on the same property, against the same defendant, the value of the property seized is not the test of jurisdiction, if neither party claims any privilege thereon.
    A PPLICATION for Certiorari and Mandamus..

      Taylor & Stewart, for the Relator.
   The opinion of the Court was delivered by

Poché, J.

Relator complains of the refusal of the respondent judges to entertain an appeal, which lie brought before them from the District Court, and which they dismissed for want of jurisdiction ratione materlm.

The facts are that relator, as plaintiff in eight judgments, rendered in his favor against the same defendant, in a justice of the peace court, and each, therefore, in a sum less than one hundred dollars, caused execution to issue in each and all of his judgments against the same defendant, under which the constable seized certain property of the defendant of the value of several hundred dollars.

Subsequently, in execution of a judgment rendered by the same justice of the peace court, in favor of another party, against the same defendant, and also in a sum less than one hundred dollars, the same constable levied on the same property, which he had already seized under Relator’s execution, and was proceeding to advertise and to make a sale, under the latter, in advance of the previous seizure. Whereupon Relator sued out an injunction from the District Court, to restrain the constable from proceeding, as he proposed, to execute the writ last issued against the common defendant and debtor, on the ground that his intended course was illegal, and was a result of a scheme to injure Relator and to destroy his rights in the premises. On an exception, among others, that the District Court had no jurisdiction, his injunction proceeding- was dismissed, and his appeal to the. Circuit Court of Appeals was from that judgment. As the lower limit of the jurisdiction of that court is one hundred dollars, the question involved is whether it had jurisdiction over the controversy. Assimilating his proceeding to the revocatory action, relator first contends that the matter in dispute, exceeds one hundred dollars, because the sum total of his eight judgments, added together, exceeded four hundred dollars, exclusive of interests and costs. But he cannot thus cumulate the different amounts of distinct and separate judgments so as to create an appealable interest not disclosed in any one of the judgments in question. This principle was quite recently reaffirmed by this Court in the case of Marshall vs. Holmes, decided on the 7th of March last past, and not yet reported.

But relator also contends that the test of jurisdiction is in the value, of the property seized, which is shown to exceed the sum of five hundred dollars. That argument is also erroneous.

The real matter in dispute is the alleged misconduct of the constable, whose course threatens relator with a loss equal to the amount of the last judgment rendered against the common debtor.

The crucial question involved in the controversy hinges upon the right of the plaintiff in that case, to execute a judgment in a sum less than one hundred dollars on property which had already been seized at the instance of tliis relator. Neither party claims any x»'ivilege on the property of their common debtor in the hands of the constable; and the contest is reduced to a simple struggle for the first proceeds realized from the sale of the property.

In their brief, relator’s counsel say : We do not claim a privilege— that is, a right to be paid by preference out of the proceeds of the sale of the property because we enjoin its sale.” That feature of their case removes it beyond the. domain of the two decisions on which they rest this ground of their contention. Wood et al. vs. Rocchi, 32 Ann. 1120; Meyer, Weiss & Co. vs. Logan, 33 Ann. 1055.

The true test of jurisdiction in the premises is the amount of the judgment, the executiou of which is enjoined — and that is admitted by relator himself to be less than one hundred dollars. Loeb vs. Arent, 33 Ann. 1085; Endom vs. Ludeling, 34 Ann. 1024.

Hence, we conclude that tlie respondent judges correctly held that the case was not within the jurisdiction of their court,

It is therefore ordered that the writs herein applied for he denied, at relator’s costs.


text:
    No. 9851.
    J. M. Seixas, syndic, vs. Patrick King, Jr.
    A court of this State vested with general equity powers, having jurisdiction of the person of a defendant, is competent to decree a conveyance by him of land in another State and to enforce the decree by process against him.
    In an action by a syndic, based on charges of simulation and fraud, to annul transactions made by the insolvent, anterior and posterior to the cessio bonorwn, the transferreo (though the latter’s wife) has an interest at stake and is a necessary party.
    In the absence of such party, an exception of no cause of action filed, the defendant brought into court will not be considered.
    A suit will not be dismissed for want of a necessary party, when it would serve no usoful purpose to do so. The Court will remand.
    APPEAL from the Civil District Court for the Parish of Oileaus. Tissot, J.

      Bayne & Denegre for Plaintiff and Appellant:
    An insolvent, boing about to make a surrender to his creditors, cannot make a transfer of property to his wife without consideration. Such transfer is absolutely null and void, both from tbe incapacity of the parties and because it is a mere simulation, O. C. 1784; 1 Ann. 301; 2 Ann. 484; 15 Ann. 491; 23 Ann. 442; 30 Ann, 225; 3 Martin, 695, 708; 38 Ann. 385.
    If such a transfer could be operative, the property would still be community property and would be subject to debts due by the community under a surrender made by the husband to its creditors would pass to them - O. C. 2402, see. 1791, Be^ ised Statutes ; 2 La. 360; 33 Ann. 478; 34 Ann. 1029 ; 18 Howard. 159 ; J17 W. S. 208.
    Property surrendered by an insolveut and accepted by the court for the benefit of creditors, passes under the control and jurisdiction of the court, and no adverse rights can bo acquired from the insolvent in or upon said property after said cession and acceptance. 20 Howard, 594 ; 24 Howard, 450; 36 Ann. 75; 105 H. S, 72; 2 La, 360.
    This is true of all of the property of the insolvent, whether real or personal, and whether situated within the State of Louisiana or any other State. Cases cited.
    The Civil District Court of the Parish of Orleans, the court which accepted the cession of property and the court which has jurisdiction of all the parties, who are citizens of New Orleans, has jurisdiction to set aside alleged transfers of property mado while it was under administration, and which had passed by the cession to the creditors of the insolvent. 20 How. 549; 36 á.nn. 75.
    The court.has jurisdiction ; all of the parties reside in New Orleans; the transactions between the parties were made here; the property claimed by the syndic had passed to him as the repiesentative of the creditors of Carrier©, and was under administration in the Civil District Court when the alleged transfer was made to defendant. 3 Ann. 2P5 ; 8 Marten, 134; 7 Marten, N. S. 409; 33 Ann. 1161; 12 Bob. 80; 3 Marten, N. S. 652; 4 Allen Bop. 550; 7 Allen Bep. 57.

      The courts of Louisiana are courts of equity as woll as law, and exercise the usual powers of courts of equity. G. G. 21; 1 Ann. 139; 2 Ann. 87.
    Mrs. Garriere, tlie wife of Emile Oarriere, wlio made surrender of all of his property and the property of the community, and which property is now under administration of this court, is not a necessary party. The husband represented the community, and the syndic now represents it and its property.

      J. O. Nixon, Jr., for Defendant and Appellant:
    X. A Louisiana State court, has no j urisdiction to try and determine a cause whore the question to be decided is as to the title to immovable property situated in another State. Mussina vs. Ailing, 11 Ann. 568, particularly pp. 571, 572.
    2. It has been held, where a money judgment can be rendered against a dofendent, the court may inquire into the validity of the title to lands in other States, in order to know whether such judgment for money should be rendered or not. This is doubtfully and guardedly held in McDowell vs. Dead, 3 Ann. 391. (See comments upon this case in Mussina vs. AlliDg. 11 Ann. 168, above cited.) But it has never been held that aLouisiana court can decide a cause where the sole issue is as to ownership of land in another State and where no money judgment is asked.
    3. Where a suit is brought to annul title to immovable property as fraudulent or simulated, and there arc intervening titles between that of the judgment debtor and that of the defendant, all of the intervening titles must be annulled before the plaintiff can recover; and all the holders of intervening titles must be made parties to a suit to annul.
   The opinion of the Court was delivered by

Bermudez, C. J.

The object of this suit is the annullment of apparent transfers of real estate situated in Mississippi, now in the possession of defendant who is domiciled in New Orleans.

The claim is based on cliaiges of simulation and fraud.

It is claimed that Emile Oarriere, a member of the firm of Oarriere & Sons, did, on the 27th of June, 1884, transfer to his wife the property in question; that on the 18th of July following, he and his firm made a cessio bonorum and that subsequently, viz : on March 12, 1885, he and his wife transferred the real estate to the defendant King, by acts which are simulated, fraudulent and injurious.

Exceptions of no cause of action, want of jurisdiction and of proper parties having been sustained and the suit dismissed, plaintiff appealed.

I.

Of those exceptions, that to the jurisdiction, demands to be first considered, for it is only, on the assumption that the court is competent, that the other exceptions can be considered.

That defense rests on the fact that the property in question lies in the State of Mississippi. It is pressed that, as the court has no extra territorial jurisdiction, it is incompetent to pass upon the validity or invalidity of the title of defendant to the property.

It is an important feature of this case that the defendant is not a citizen of Mississippi, but of Louisiana, residing in New Orleans.

However true it may be that a State court cannot, in law or in equity, reach or control the title to lands or the possession of lands, situated within a different State, by any direct action or process against the land itself and cannot decree away the title thereto, or authorize a commissioner to convey the same; yet, it is settled that, if a court of generaoquity jurisdiction obtain jurisdiction of the person of the owner of such lands, in the course of an equity proceeding involving a proper ease for coercion of the title by a direct action of the court, as in case of trust or fraud or even contract, if the lands were within its jurisdiction, then such court may compel a conveyance by order or decree acting directly on the person of such owner, and may enforce the same with all the powers incident to a court of chancery, in case of disobedience. Rorer on Inter-State Laws, p. 211, 2112; McElrath vs. P. & S. R. R. Co., 55 Penn. St., 189, and other authorities in note.

In the case of Muller vs. Dows, the U. S. Supreme Court, 94 U. S. 444 et seq., has emphatically announced that it is undoubtedly a recognized doctrine that a court of equity, sitting in a State and having jurisdiction of the person, may decree a conveyance of land in another State and may enforce the decree by process against the defendant. True it cannot send its process into that other State, nor can"it deliver possession of land in another jurisdiction, but it can command and enforce a transfer of the title. And there seems to be no reason why it cannot, in a proper case, effect the transfer by the agency of trustees, when they are the complainants.

The court referred approvingly to the ruling in the above mentioned case of McElrath, 55 Penn. St. 289.

The inconvenience which would result from the want of jurisdiction in such cases cannot be, tolerated. Lyman vs. Lyman, 2 Paine C. c. 46; Wells on Jurisdiction, p. 112, No. 116.

When such a decree of a court of one State, compelling the conveyance of land situated in another State, comes in question in the courts of the State where the land is situated, it will be entitled to full faith and credit in these latter courts as to what be the real or true equities of the parties thereto, if jurisdiction was obtained of the defendant, by the court rendering the decree. Burnby vs. Stevenson, 24 Onio St. 474; Rorer on Interstate Laws., 212-13.

The ruling in Mussena vs. Alling, 11 Ann. 568, is not in an analogous case, and has no bearing here.

II.

It is clear that this action has for its purpose to have this Court to declare that Mrs. Carriere has never acquired title to the real estate in controversy, and that the transfer which she has ostensibly made of it to the defendant is a nullity; in other words, to strip her of all title to the property, and possibly to subject her thereby to some action by the defendant.

lu suits to annul transfers of property, whether on account of simulation or fraud, or both, it is established that, as well the transferror as the transferree, are necessary parties.

Lawrence vs. Bowman, 6 R. 21. It is likewise settled that, to annul succession sales, all the vendees must be made parties. Hyde vs. Craddick, 10 R. 387.

Mrs. Carriére may have valid defenses to urge in order to be quieted in her title and protected against all actions of the defendant against her. She must therefore be made a party and be. heard.

1IT.

In relation to the plea of no cause of action, we cannot now consider it in the absence of Mrs. Carriére.

Our abstention is based on the consideration that, if we were to give it attention and to overrule it, Mrs. Carriére would find herself in presence of a ruling not binding on her as an adjudication, and would have a right to set up the same defense, with possible success.

IV.

We therefore conclude that the exception to the jurisdiction is not well taken; that the exception to the want of proper parties is well founded, and that the exception of no cause of action is reserved for future consideration.

Tt would serve no useful purpose to dismiss the suit.

It is therefore ordered and decreed that the judgment appealed from be reversed; that the exception to the jurisdiction be overruled ; that the exception for want of proper parties be sustained, so far only as to allow the plaintiff to amend and make Mrs. Carriére a party defendant; that the exception of no cause of action be reserved for future consideration; that this case be remanded to the lower court for further proceedings according to law, the costs of appeal to be paid by the defendant and appellee, those of the lower court to abide the final judgment in the case.