text:
    No. 10,728.
    James Williams vs. Louisiana Electric Light and Power Company.
    1. The driver of a float with a heavy load, above the ordinary height, was not guilty of contributory negligence, in veering from one side of a street to the other to avoid collision with a wagon in front,'although in thus doing his float and load came in contact with an electric light wire suspended over parts of the street, at a distance of fifteen feet from the ground.
    2. The pole which fell and broke plaintiff’s thigh was not of the required diameter, and was deficient in quality; it was partly sap, when it should have been heart timber; the wire suspended from it was an obstruction. Held that the defendant was not free from fault, and damages are allowed. Streets should he ordinarily safe for travel and transportation over them. Verdict of the jury and the judgment thereon are amended and reduced to the amount of $1000. As amended, judgment affirmed.
    APPEAL from the Civil District Court for the Parish of Orleans. Voorhies, J.

      Jos. N. Wolf son and B. R. Forman for Plaintiff and Appellee:
    1. In the use of a franchise to erect and maintain poles and string wires along the public streets, the grantee is bound to comply strictly with its contract obligations, as to size and quality of poles and height of wires, and in method of erection, construction and maintenance; to use every precaution that prudence and foresight could suggest to make the structure safe to the people using the streets, and when its contract, as well as ordinary prudence, require the poles to he of heart sound timber, not less than nine inches square, forty feet long, and the cranes and wires not less than thirty-five feet from the ground, to avoid obstructions to loaded vehicles, it is gross carelessness and shows a criminal disregard of human life to have maintained a sappy pole (never at any time all heart), rotted away to two or three inches in diameter, and bearing a heavy iron crane and lamp at its end, and four or six heavy wires across a popular and much used street, allowing the wire to sag within fourteen feet of the ground. Wilson vs. Telephone Company, 41 An. 1041.
    2. In assessing damages where there is gross negligence and a flagrant breach of public du'ty, it is proper to blend the interests of society and the injured individual, and to allow such damages as would not only fully compensate the injured person for his injuries, his pain and his sufferings, hut also such as would prevent a repetition and serve as a warning. Black vs. R. R. Co., 10 An. 40. Merely compensatory damages allowed in following oases: Ohoppin vs. R. R. Co., 17 An. 19, loss of a leg, $25,000; Summers vs. R. R. Co., 34 An. 139, broken elbow, $7500; Ketchum vs. R. R. Co., 38 An. 777, loss of arm, $10,000; Wardle vs.R. R. Oo., 35 An. 202, shock to spine, $5000; Reniston vs. R. R. Co., 34 An. 778, broken leg, $6000; Barksdell vs. R. R. Co., 23 An. 180, loss of both legs, $15,000; Domingues vs. R. R. Co., 35 An. 751, bruises, $1500; Spring Co. vs. Edgar, 99 U. S. 645, bruises, $6500; City of Panama, 101 U. S. 453, broken arm, $15,000; R. R. Co.-vs. Gladman, 15 Wall. 401, $9000 ;R. R. Co. vs. Stout, 17 Wall. 657, injured foot, $7500; R.R. Co. vs. Herbert, 116 U. S. 642, loss of leg, $10,000; R. R. Co. vs. Mares, 123 U. S. 710, loss of both legs, $20,000; Miller vs. Heroes, 1 Woods 368, broken ribs, $8000; R. R. Co. vs. Drysdale, 51 Ga. 644, broken arm, $3000; Westerville vs. Ereeman, 66 Ind. 255, broken hip, $2000; R. R. Co. vs. Donahue, 70 Pa. 119, loss of toes, $5216.66; Campbell vs. Portland, 62 Maine 552, $9500.

      Farrar, Jonas <& Kruttschnitt for Defendant and Appellant:
    1. Plaintiff, having been injured by the negligence of his fellow-servant, can not recover.
    2. That negligence consisted in-the careless driving of a float, drawn by five mules, hauling a tank fifteen feet high and twelve feet broad, weighing four thousand pounds, against an electric light wire, the dangerous location of which to such a high load was well known to him. <>
    3. He failed to take the ordinary precaution of keeping on the side of the street which he knew to he safe. This precludes recovery.
    4. As he was driving a clumsy vehicle and an extraordinary high load, it was incumbent on him to kee'p a sharp lookout for any overhead obstruction well known to him to exist at that locality. He failed to do this.
    5. When he was crossed by the float at Erato street, he should have stopped and not sheered.off to the known dangerous side of the street.

      6. 'While knowledge of an obstruction to the highway is not conclusive evidence of contributory negligence, it raises a presumption of negligence which must be rebutted by proof. Shearman & Bedfield Neg., Section 376, note 1. There is no such rebuttal proof in this case.
    7. Conceding, for argument sake, that defendant’s-wires were lower than and its poles inferior to those required by the City Ordinance, there was no fault on its part if they were in a reasonably safe and proper place.
    8. A wire fifteen feet six inches from the top of the street is in a reasonably safe and proper place for all ordinary traffic and use of the street; and if a person uses the street with an unusual and extraordinary load, liable to come in con- . tact with such a wire, and knows of the location of such a wire, and that it is too low for him to pass under, it is his duty to take precautions to avoid it, commensurate with the danger.
    9. Three thousand dollars damages for a simple fracture of the fremur, from which a recovery, without bad consequences, takes place in less than two months, is excessive to an old negro drayman over sixty years of age, who was earning $1.25 per diem. Five hundred dollars is ample compensation in such a ease.
   The opinion of the court was delivered by

Breaux, J.

The pleadings disclose that plaintiff, a drayman, sues the defendant for damages to the amount of $20,000.

He avers that the defendant company had at the intersection of Magazine and Erato streets an electric light crane and wire, which obstructed the use of those streets, as they were swung so low as to be dangerous to passengers; that on October 12, 1889, while he was engaged in hauling, although diligent, he came in contact with the electric light crane, and by reason of its defective and negligent construction of this wire and crane, and by reason of the rottenness of the pole supporting them, the crane fell on him; broke his thigh, laming and crippling him for life; caused him great pain and rendered him less able to earn his livelihood.

The defendant in answer pleads that its poles and wires and the lamp and crane under discussion are lawfully upon the streets of.the Oity of New Orleans, in a safe and proper place, for lighting pur-poses;- and that the plaintiff met with an accident by his own gross fault and negligence; that he was hauling with a float along Magazine street a heavy iron tank, fifteen feet high, and that the driver drove his float against the crane, and continued to drive his mules until the tank pulled the crane and pole down upon the plaintiff; that the plaintiff should have taken good care, as he was on the highway, on a float with a heavy load, much above the ordinary heights of float loads; that if this crane and wire were any obstruction to the streets they were only such to this unusual load; that they were clearly visible; that the plaintiff was fully acquainted with the location; he had driven loads several times, up the same street, and had taken ordinary precautions to avoid them, which he had failed to take at the time of the injury.

$ * 5¡í * * }{! #

There was a verdict and judgment for the plaintiff for $3000.. The defendant appeals.

The record discloses the facts of which the following is a statement: On the 12th day of October, 1889, the plaintiff and Henry Simmons, another colored drayman, were employed by John Connelly, a boss drayman.

They had twelve large iron tanks to haul, from the -corner of Thalia and Magazine streets to an oil mill in Gretna.

The most direct route was that taken.

These tanks weighed 4000 pounds each. They were loaded on floats; the load and float were in height sixteen feet.

Three of these tanks had been safely hauled over this street without accident.

One of them had been hauled the morning previons to the collision..

Between one and two o’clock p. M. they were hauling the fourth tank. Simmons was driving and the plaintiff was sitting on the float,, behind the tank, eating his dinner.

The testimony of the witnesses is conflicting as to the side of the street the float was on as it approached Erato street. The side of' the street on which he was, has bearing, for the reason that the wire was higher from the ground on the left than on the right side. The defendant contends that it swung too low on the right hand side of' Magazine for him to pass; that he was aware of this _ and had always previously, because of these wires, crossed Erato street on the left, hand side. Three witnesses, including the driver of the float, testify that the flogt was on the right hand side going up; that he was hindered from continuing in the direction intended, by timber wheels driven by one Foster, coming out Erato street across Magazine, in front of the float. He requested the driver of the timber wheels to-stop, but the latter drove on.

That to avoid the collision he sheered off but did not get over to the left side of the street in time; the tank caught the wire and pulled the pole down.

Other witnesses testify that he was on the left side of the street,', that in veering to avoid the timber wheels he did not return to the; left of the street, despite his attempt, in time to escape the accident.

The driver evidently pulled to the right to let pass the wagon in front and then attempted to pulled back to the left side of the street to avoid the wire, but this brought the top of the tank into contact with the electric wire and by the weight against the wire caused the pole to fall.

This wire and others were suspended near the top of this pole and from this pole upon the right hand side of the street it swagged within fifteen feet of the ground. There was also a heavy crane resting on it, used to suspend an electric light lamp.

The rotten pole, made weak by decay, broke off close to the ground and fell upon the plaintiff and broke his thigh.

Immediately after the driver stopped his mules.

The pole in question was an eight by eight pine pole which had been in the ground about four years.

The lamp had been located by the City Surveyor.

The contract with the city required that the poles should be heart timber, not less than nine inches square at the ground, and that the lamps should be suspended upon cranes, the latter not less than thirty-five feet from the ground.

The pole was of the required height.

# , * * * ¡¡: sfs sf:

It is in place to state, if Simmons, the driver of the float, was. negligent, the plaintiff does not question that he being his fellow-servant, can not recover.

* * * * sfJ if* *

We must now determine whether plaintiff or his fellow-servant was guilty of contributory negligence.

The question is not free from difficulty.

On the left side of the street they had passed a number of times, at the place of the accident and might again on that side have passed without accident.

The driver and the witnesses who testify on the subject, state that he was attempting to return to that side but was prevented.

When near Erato street, suddenly the street was obstructed by timber wheels.

It became necessary for this driver to act promptly.

He had asked the timber wheel man to stop; he did not.

In that difficulty several alternatives presented themselves:

To drive on and collide with the timber wheels and mules and incur great risks.

To stop, or to veer to the right and return to the left.

The first could not be thought of, as between the second and third he selected the latter.

Even if there had been an error of judgment in the emergency of the moment it would not have been carelessness or neglect. In driving to the right there was no rashness, but a desire of avoiding a threatening collision in front.

The counsel for defendant urges that plaintiff had knowledge of ■defects or danger in the highway; that he was not driving an ordinary wagon carrying an ordinary load, but a very clumsy, unwieldy vehicle, pulled by five mules. Had the plaintiff freely chosen to drive under the low swung wire and had negligently driven the tank against it, the principle involved would apply. In the haste of the moment he did that which, possibly, any prudent driver would have done.

*** # * * * *

But the defendant company’s pole and wire were an obstruction. Under its contract with the city, poles of heart timber, not less than nine inches square, were to be put up. The pple in question was not of heart timber, and because of the sap it had badly decayed just above the ground. Its power of resisting was, at least, one-half less than it should have been. •. .

While it is not necessary that all electric wires should swing as high as plaintiff’s counsel contend they should, they should be placed at an elevation more than fifteen feet from the ground, when suspended across a highway.

Ordinary care and diligence should be exercised against decay and weakening of timber from age or the action of the elements.

“Municipal corporations must take notice of the tendency of timber to decay, and whenever the exercise of ordinary care involves the anticipation of defects that are natural and ordinary results of use and climatic influences, and there is neglect on the part of the proper officer to make a sufficiently frequent examination of a particular structure, a city will not be relieved from liability although the defects may not be open and notorious.” Elliott, Roads and Streets, p. 462.

The foregoing, although relating to the diligence required of municipalities, is not entirely without application. With reference to the wires oyer a part of the “ traveler’s path ’.’ in the thoroughfare, we find the applying rule, viz:

“ When a road or street is opened and public travel is invited thereon it must be made reasonably safe for such travel. Ib. p. 455. See also Wilson vs. Telephone and Telegraph Co., 41 An. 1043.

It was proven that this load and float were not exceptional in height.

Cartmen haul at times loads equally as high, even higher.

* sis * * * ¡k s¡s 5{s

The question of damages requires our careful attention. Plaintiff was confined to bed at the' Charity Hospital from the 12th day of October to the '7th of December. On the last mentioned day, on the advice of his physician, he attempted to walk; in the attempt he fell and his leg was fractured at the healing place. He remained in bed two months longer.

Plaintiff’s wages were $1.25 a day.

He is not entirely disabled.

He can perform good many forms of work as well as before.

He is on the decline of life and without the injury his usefulness in doing work requiring strength would be on the wane.

But the unfortunate accident has none the less made a dent in this humble man’s life we can not entirely straighten or completely remedy.

We.flx" the damages at an amount we think will compensate actual loss and in part the suffering endured.

The defendant was at fault, but the negligence was not gross. The carelessness was not great.

We can not agree with the jury insofar as relates to amount of damages.

The amount must be reduced to $1000.

It is therefore ordered adjudged and decreed that the verdict of the jury and the judgment thereon be amended so as to reduce the amount to $1000, with interests as allowed, and that thus amended said judgment be affirmed at appellee’s costs.


source: Caselaw Access Project

author: Bermudez, C. J.

license: Public Domain

text:
    No. 10,785.
    Chas. H. Starns et al. vs. Luella D. Goodwyn et als.
    A judgment by the District Court o£ Rapides parish in a pending ease, wherein the defendant resided in the parish of Grant, rendered after the passage of Act 25, of 1870, divesting it of jurisdiction over suits against defendant, residing in said parish, is an absolute nullity.
    A proceeding to revive a contract of marriage, the original act having been destroyed by fire when the court house was burned in 1864, was a suit and was required to be transferred from the District Court of Rapides to that of Grant parish.
    APPEAL from the Twelfth District Court for the Parish of Rapides. Blackman, J.

      R. I. Bowman for Plaintiffs and Appellees:
    The case of M. R. Starns vs. A. O. Lewis was a cause, an action brought before a court and therefore a suit. 0.1\ 95,147, and commenced by a petition addressed to a competent judge setting forth the cause of action. C. P. 171. It is termed a suit in the Acts of 1866 and 1868.
    “The act of 1870, in our opinion, removed all the causes, suits and successions falling under the conditions mentioned therein from the parish of Rapides, divested the courts of that parish of all further jurisdiction and control over them and substituted the parish of Grant, as to such jurisdiction and control, etc.” 33 An. 1802. <•
    That portion of the Acts of 1866 and 1868 giving jurisdiction to the District Courts of suits against parties in the parish of Grant is a law or parts of a law contrary to the provisions of the act of 1870 and is not only repealed by implication but expressly repealed by that act.
    The evidence is conclusive and undisputed that A. O. Lewis was the sole actor and party in the suit of Starns vs. Lewis.
    It is evident that the suit and judgment were contrary to the interest of Mrs. Lewis and that the confession of judgment by A. C. Lewis is a confession in his own favor, and the judgment rendered on it.

      White & Thornton for Defendants and Appellants:
    Act No. 45, p. 78, Session Acts of 1866; and Act No. 102, p. 129, Session Acts of 1868, were not repealed or changed by the passage of Act No. 82, p. 80, Session Acts of 1869, or by Act No. 25, p. 70, extra Session Acts of 1870. They are not the same “ subject matter.”
    The first two acts refer to the supplying of the lost and destroyed public documents and other records by the burning of the court house of Rapides parish, in May, 1864. They were special and local laws, creating a local and special tribunal fora certain and special class of cases. The powers and authority of this special tribunal expired by limitation on 1st January, 1875, since which time there has been no court to act in these matters.

      This special tribunal had exclusive original jurisdiction in the class of cases specified, whether as against persons residing in or out of the parish of Rapides, and it was authorized, to try those cases in chambers, Sec. 10.
    No other court^or tribunal ever had authority in this class of cases.
    The defendant in all applications to establish any deed or any writing under this special law, had to admit or deny the application or petition partially or wholly; and the denial had to be under oath. He had no other alternative. Sec. 3; 42 An. 369, O. II. Starns et als. vs. Lavina A. 1-Iadnot et als.
    If the application was admitted by the defendant, that was the end of the matter— a finality. If, on the other hand, he denied, under oath, the petition partially or wholly, it was then a suit; whereupon the judge proceeded to the trial without the intervention of a jury. Sec. 8.
    “A suit is a real, personal, or mixed demand, made before a competent judge by which the parties pray to obtain their right, and a decision of their disputes.” O. P., Art. 96. Therefore, when the defendant admitted the application, there was no right denied, and no dispute to try or decide — no suit pending to be “transmitted” to Grant parish, even if that court had jurisdiction, which it had not. “Subsecxuent laws do not repeal former ones by containing different provisions; they must be contrary. A particular law is not repealed by a general law, unless they be so repugnant that both can not stand under any circumstance. Different laws on the same subject if not absolutely inconsistent must be considered and construed as one. Prior will not be repealed by subsequent laws from the mere fact that they differ. A repeal will be implied only when the last statute contains provisions irreconcilable with those of prior laws. A repeal by implication is not favored by law.” Bond vs. Hietand, 20 An. 140, and authorities there cited.
    “These acts are not upon the same ‘subject matter.’ The former is a local law providing a local tribunal for certain specified cases. The latter is a general 'law applicable to the State at large.” State vs. Ivitty, 12 An. 808.
    Succession of Fletcher, 12 An. 498; Douglass vs. Craige, 2 An. 919; The State vs. Lewis, 3 An. B98; 24 An. 155; 22 An. 519; 16 An. 395.
    The decree establishing the marriage contract was acquiesced in by Mrs. Lewis when she divided all her property between her children of her first marriage and second inarriage. Nor was it a consent decree; it was founded on the facts as shown by the testimony of LeGras, the notary before whom the marriage contract was passed. And in obtaining this decree of revival there was no fraud or other ill practice to impeach it. On this point it is res adjudicata. 32 An. 368.
    If the plaintiffs ever had any right to assail the decree reviving the marriage contract of their mother, that right has long sinceprescribed. She died November 22,1376, and they were then all majors. This marriage contract and the decree reviving it has stood, as a monument of title and possession to pi'operty by defendants and their ancestor ever since its execution, in 1856, and the prescription specially pleaded is a bar to the plaintiff’s pretensions here.
    Decision of this court in case of Calhoun and Husband vs. Levy et als., 33 An. 1300-2, is no,t decisive of this case, because the original and the amended act creating Grant parish did not repeal the special acts "of 1866 and 1868, providing for the supplying of the destroyed records of Rapides parish. They did not take away the rights of parties to apply for the revival of those records up to 1875, nor did they give the right to the Grant courts to reestablish. 2 An. 919; 3 An. 398; 12 An. 808; 20 An. 140; 12 An. 498.
   The opinion of the court was delivered by

Bermudez, C. J.

This is a suit to annul a judgment.

In a previous litigation, an attempt having been made to attack it collaterally, this court held that this could not be done and that it must have full force and effect until set aside in a direct action. Starns vs. Hadnot, 42 An. 368.

The plaintiffs and defendants are uterine half brothers and sisters.

The plaintiffs are the children by a first, and the defendants by a second marriage.

Their mother having died in 1876, the plaintiffs at the time claimed that there existed a community between her and her second husband, Lewis, during which property was acquired, which in part, at her death, vested in them.

They therefore brought suit against said half brothers and sisters, in partition of the property said to have accrued to their mother by virtue of that community.

They were met with the defence that there existed no community by express stipulation in the marriage contract between the parties.

To substantiate this averment' the marriage contract should have been produced, but it was not, because the original had been destroyed by fire when the court house of the parish of Rapides was burnt in 1864, and the defendants supplied the loss by introducing in evidence a. judgment rendered by the District Court of that parish reviving the'contract and declaring that it contained the stipulation, that no community would exist between the spouses.

The present action has for its object to annul that judgment.

The grounds of attack are:

That the court which rendered it, namely the District Court of Rapides, had no jurisdiction ratione personarum et m(iterice over the suit.

That the judgment was procured in a proceeding in the name of the wife without her knowledge by the husband who confessed the facts alleged.

In 1864 the court house of Rapides parish, in which the Recorder’s office, with all the archives belonging to it, was kept, was destroyed by fire.

In 1866 and in 1868 as also in 1869 provision was made by the Legislature to revive or reconstruct destroyed records, contracts, etc., creating by the last act the parish of Grant. V. Act 45 of 1866; Act 102 of 1868; Act 82 of 1869. .

The suit to revive the contract was brought in the early part of November, 1868, before the court of Rapides, the defendant acknowledging service and confessing on the 11th of November following.

On December 24, 1870, the District Court for the parish of Rapides rendered judgment reviving the marriage contract.

Mrs. Lewis died in 1876.

After the institution of the suit to revive the contract the Legislature passed Act 25, p. 70, extra session of 1870.

The first section of that act declares, by amending the eighth section of the Act of 1869 creating the parish of Grant, that it shall be-the duty of the clerks of the District Court of the parish of Rapides- and Winn, immediately after the passage of the act, to transmit to the clerk of the District Court for the parish of Grant, all petitions, answers, documents and papers appertaining to suits wherein the defendant or defendants reside within the parish of Grant, and also-all petitions, orders, bonds and other papers relating to successions,if the administrators thereof reside and the property of such sucees - sion is situated in the parish of Grant, and also all papers and matters relating to the tutorship of minors therein when they or a majority of them reside in the parish of Grant, copies of all such suits or papers to be retained in the office of the clerk of the District Courts of. the parishes of Rapides and Winn and the original sent to the parish of Grant. “ All suits, whether judgment be rendered therein or not, are to be transmitted in accordance with this act.”

Section 4 of the same act provides: “That all actions taken and judgments rendered therein after the passage of this act, shall be null and void and consent shall not take away the jurisdiction of the court to try such causes contrary to this act, except when there is an equal number of the heirs and value of the property in each parish, as the case may be, then it shall be settled by the court if the heirs disagree.”

The defences to the suit in nullity are that the act of 1870 did not repeal the previous ones of 1866, 1868 and 1869; that the court of Rapides in 1870, when it rendered the judgment attacked, had jurisdiction of the matter which was not a suit, that the right of action to annul is barred by prescription.

In the absence of any constitutional prohibition the Legislature had the right to confer on the courts, the power to revive lost judicial proceedings, contracts as was done by the acts mentioned, and .after the creation of the parish of Grant in 1869, it was competent to require the transfer to the District Court of that new parish of all judicial proceeding, whether pending or determined before the District Court for the parish of Rapides, and to strip absolutely that court of all jurisdiction previously acquired in the same and to vest it exclusively in the District Court for the parish of Grant.

The jurisdiction of courts fluctuates with the legislative will whenever the organic law is not thereby contravened.

In 1881 in the case of Calhoun vs. Levy, 33 An. 1290, in which the •effects of this very Act of 1870 was inquired into, the present court ■said:

“ The Act of 1870 removed all causes, suits and succession falling under the conditions mentioned therein from the parish of Rapides, divested the court of the parish of all further jurisdiction and control ever them and substituted the parish of Grant as to such jurisdiction .and control in the stead of the parish of Rapides, vesting the former with all the jurisdiction, authority and judicial power which before the passage of that act had attached to the Rapides court.”

This conclusion is grounded on previous ruling on a germane case. Hammett vs. Sprowl, 31 An. 325.

Attempts had been made in those cases to obtain judgments to revive judgments in order to prevent their extinction by prescription.

The word suits used in the Act of 1870 applied to all judicial proceedings before the District Court of Rapides, whether terminated, or not, by judgment, whenever the defendant, or main parties concerned therein, resided in Grant parish.

The requirement of the transfer from the former to the latter court, was so mandatory that the Legislature expressly declared that the jurisdiction would pass and be exercised, the consent of parties to the contrary notwithstanding.

This was a legislation concerning public order, dictated by public policy, from which individuals, by their private or other conventions, were prohibited from derogating.

There is no dispute that at the time of the institution of the suit in 1868, and of its decision in 1870, after the passage of th.e prohibitory law, Mr. and, Mrs. Lewis, the parties to the proceedings, resided in the parish of Grant.

The consequence is that the District Court of the parish of Rapides having been divested, and that for the parish of Grant having been clothed, exclusively, with jurisdiction over the proceeding to revive the marriage contract, the judgment rendered is a nullity, and must be so declared.

The defence that this proceeding to revive the contract was not a suit, and therefore did not come within the legislative purview, is inconsiderate, and entitled to no further notice than a reference to Article-96 of the O. P., which declared in substance that a suit is a judicial demand to obtain a decision on a right asserted. Particularly were such proceedings a suit, as the law required a rendition of a judgment as the only evidence to establish a fact, or right asserted. The words suit, process, and cause are almost synonymous.

The other defence of prescription can not stand. We have been referred to no law justifying the plea. We are dispensed from inquiring into the second ground alleged in nullity. The judgment was absolute nullity on its face; as much so as would be a judgment by a justice of the peace passing on title to real estate in a petitory action. It had no bottom to stand upon, and was not such that any right could be acquired under.

, There is no evidence that the plaintiff’s mother has acquiesced in that judgment so as to bar them from setting up its nullity.

The finding of the District Court amending the judgment assailed is correct, and must .remain undisturbed.

Judgment affirmed.


author: Bermudez, O. J.

text:
    No. 10,802.
    Samuel Parson vs. Joseph Henry.
    A party whose property is seized under execution against him,, who is notified o£ such seizure, who appoints an appraiser who values the property, who resides in the parish in which the judgment is executed, who makes no opposition to the sale, and who subsequently surrenders possession of the property, is estopped from claiming the nullity of the sale of the property.
    Xeitlier is such party, were the sale valid, permitted to claim its proceeds on the ground that the judgment executed had been extinguished by payments prior to the seizure and sale.
    His commissions and omissions oust him from such complaints and claims.

      APPEAL from the Eleventh District Court, Parish of Natchitoches-Pierson, J.

      Cunningham & Tucker for Plaintiff and Appellant:
    Where the demands are brought in the alternative, plaintiff can not be compelled? to elect. 27 An. 98.
    The effect of a certain act as estoppel depends upon “the intent with which the act is done,” and the circumstances existing at the time. 31 An. 371-3.
    Under the prayer for general relief, judgment may be rendered on grounds not set up in the petition, if sustained by the evidence adduced without objection. 7 L. 46-51 and 2,152; 3 h. S. 480; 2 An. 588, 492; 5 An. 646; 11 M. 26, 297, 548; 12 M. 243;-9 M. 303; 3 ÍT. S. 300, etc.
    When defendant fails to testify to a fact peculiarly within his knowledge, if it exists, the presumption is against him that the fact does not exist. 33 An. 1073.
    In the absence of any agreement, payments are to be imputed to the debt the-debtor had most interest to discharge — the most onerous debt. O. C. 2166; 16-An. 294; 2An.816; 25 An.315; 15 An. 174,526; 24 An. 472; 31 An. 789.
    The imputation is made rather to the debt, for which the debtor has given secuz’ity than to that which he owes simply. 16 An. 375.
    The payment must be applied to the debt lawfully due, that is, the principal, no to the usurious interest. 22 An. 420.
    Parol testimony is admissible to show the real consideration of a contract evidenced by an authentic act, when not expressed therein. O. 0.1894,1900; 12 An.--736; 32 An. 432.
    While the price agreed on is of the essence of a contract of sale, it is not essential* that the price be stated in the act. O. 0.1894; 12 An. 124-6.
    An authentic act is full proof of the agreement contained in it, against the contracting pai*ties; and parol evidence shall not be admitted against or beyond its contents, nor on what was said before or at the time of its execution. O. O. 2236, 2276, 2238, 2422.
    As between the paz'ties, parol is not admissible topi’ove simulations; this can only be shown by a counter lettez*, or other written evidence. 29 An. 511; 35 An. 505;-3 An. 153; 18 An. 577; 10 An. 125; 4U. 167; 4 An. 487; 9 L. 566; 3 R. 457; 40 An. 157; 42 An. 522.
    A man can not be heard to deny his judicial declaration. 42 An. 522; 40 An. 157, etc.
    Chaplin, Breazeale <& Chaplin for Defendant and Appellee:
    A person standing by is silent ‘while his own pz'operty is being sold and suffers another to become the purchaser, he is estopped from disputing the title thusacquiz’ed. 5 An. 367.
    A party who has pointed out property, is estopped from objecting to the action of ‘ the shez’iff in levying upon it. 13 An. 461.
    The plea that the plaintiff is estopped from contesting the validity of the sale-because he appointed an appraiser of the property sold, is valid. 27 An. 314.
    He can not be permitted to avoid the responsibility of that act by stating that he-did it under protest. Ibid.

    The price of the sale znust be certain, that is to say, fixed and determined by the* parties. O. 0.2464.

      'Three circumstances concur to the perfection of the contract of sale, to-wit: the thing sola, the price and the consent. 21 An. 196; 24 An. 85.
    In this particular, there is no difference between the contract of sale and the-contraet of giving in payment. 21 An. 196; 24An. 85.
    Fraud is never presumed.
    He who alleges fraud must prove it.
   The opinion of the court was delivered by

Bermudez, O. J.

This is an action to annul a judicial sale of certain property, or to recover its proceeds.

It is urged, as a ground of nullity, coupled with charges of fraud and ill practices, that when the writs issued the judgments had been satisfied and so had no existence.

An exception that plaintiff occupied conflicting positions and should be made to elect, having been sustained, the plaintiff elected, reserving a bill and the defendant then filed a plea of estoppel.

That defence rests on the averment that plaintiff, having appointed an appraiser to value the property seized and having, after the sale, voluntarily surrendered to the plaintiff possession of the property adjudicated to him, has no standing in court to contest the title of the respondent, or to inquire into the debt, evidenced by the judgments, w irfeh were the basis of the sale.

Prom a judgment rejecting his demand the plaintiff prosecutes this appeal.

Plaintiff’s contention is that he was not allowed certain credits resulting from partial payments, and that he was not credited with the value of a number of parish judgments, which he avers to have given in payment to defendant, some |9500.

It appears that Henry, under certain judgments, some obtained and one acquired by him, issued execution against Parson, under which a number of lots of ground, some movables and certain parish judgments in the name of Henry, were seized by the sheriff who notified Parson who appointed an appraiser, and'it is claimed that some seven months after the sale, according to a previous agreement, Parson surrendered the property to the purchaser, Henry.

Parson was at the time, a resident of Natchitoches parish, where the judgments were rendered and executed. He was present and did not enjoin or even oppose the sale, but waited three years before bringing this suit.

It is unnecessary to pass upon the bill of exception to the ruling of the District Judge, requiring plaintiff to elect.

Under the facts disclosed by the record it clearly appears that Parson was duly notified of the seizure of the specific property offered for sale; that he voluntarily appointed an appraiser, was present and permitted the sale to take place without opposition. This is enough to oust him.

It will not do for Parson to say that he made the appointment at the instance of Henry. He was once a sheriff and therefore knew the significance and far-reaching effect of such an act, which is not a vain ceremony. He has not shown any error, fraud or violence.

Evidently he has no standing in court in this suit. 27 An. 314; 11 An. 64; 5 An. 367; 7 How. 172; O. P. 612.

This view of the case dispenses the court from formally determining the contention on its merit, in relation to which it may however be said that the evidence does not establish the nullity claimed and that the ostensible sale of the parish judgments was not a dation en paiement but rather that the same was a mandate garbed as a transfer, nominally, for value received for some occult purpose or scheme.

Judgment affirmed.

Watkins, J., takes no part.


author: Fenner, J.

text:
    No. 10,778.
    Succession of Miss Aglaé Armant.
    The olographic, like every other testament, is a solemn act depending for ita validity upon compliance with the forms prescribed by law; and however clearly it appear that the decedent intended the instrument to be her will, if it is not clothed with the forms prescribed, it can not stand.
    An olographic testamentary writing containing the caption “Testament d’Aglaé Armant,” but without signature at the end or following the testamentary dispositions, does not import such, a signature as is required under the historical and rational interpretation of the Article 1588 of our Code.
    The Article 1588 was copied into our Code from Art. 970 of the French Code, which in turn had been taken from an ordinance of Louis XV, prescribing the forms of the olographic testament. Prior and subsequent to the CodeNapoleou the jurisprudence of France has been uniform to the effect that the signature must be at the end of the testament or at least that no dispositions following the signature can have effect.

      4. This jurisprudence was extant and well known when the framers of our Code-adopted our article. It must be presumed that they intended it to receive th e same interpretation which, moreover,'correspond to the common understanding and to the standard definition of the meaning of the word signatw'e,

    o.A contrary interpretation of a like provision in the English statute of Frauds by certain English and American courts, was so much criticised by sound legiststhat the statute was amended so as to expressly require the signature to be at the bottom of the testament.
    6. We are moreover satisfied in this case that thename, as written in the caption, was not intended to be a signature but that her belief that the instrument washer will was simply based on her ignorance that a signature was necessary.
    7. The other ground assumed in support of the instrument as a will is inconsistent with the foregoing and is besides unsupported by proof.
    APPEAL from the District Gourt for the Parish of St. James. Duffel, J,;

      T. J. Semmes & Legendre for Appellant:
    The signature of the testator to an olographic will need not be at the foot of it; it may be at the top, or in the body of the instrument. Lemoyne vs. Stanley, 3 Leving; Wright vs. Wright, 7 Bing. R. 457; White vs. Trustees British Museum, 6 Bing. 316; Sarah Mill’s case, 4 Dana, 1; Elizabeth Selden vs. J. Ooalter, 21st Vert, 264; Adams vs. Field, executor, 2 Va. Cases,«553; Dalloz, Ho. 2729; Pasicri-Sie, 1863, 2, 333.
    The order of formalities prescribed in article 1588 of the Code is sacramental. 2 an 273, Succession of Mrs. Fuqua.
    The same rule applies to commercial paper. It is not necessary that the signature of the maker of a note or drawer of a draft be at the bottom of it. It may be in any part of the paper, at the top as well as at the bottom. Randolph, Sec. 65; Byles on Bills, Sec. 87; Bayley on Bills, Sec. 11.

      Sims & Poohé, for Appellee:
    1. The paper writing oflered for probate as the last will of the deceased is a nullity. It was never signed by her. The other paper writing styled a “ codicil ” is likewise a nullity. The witnesses thereto are all women and none of the formalities required by law for nuncupative wills under private signature were complied with. C. O. Arts. 1570,1581,1582,1591.
    2. The formalities prescribed by law for the execution of testaments are sacramental; they must bo observed strictly on pain of nullity. C. C. Arts. 1595;: 31 An. 318.
    8.The testimony of the three witnesses with reference to verbal statements made by the deceased concerning her final dispositions was clearly inadmissible. Wills or testaments can not be made by parole. C. O. Art. 1576. The objections-set forth in the bills of exceptions to the judge’s ruling admitting-tliat testimony are again urged.

      4. The pretension that the deceased had signed the alleged will, but that her signature was subsequently cut off, is not supported by a single fact in the record. All the letters and receipts of deceased in evidence and which we have attached, by consent, since the case was submitted show that deceased did not always write her name with an accent over the letter “e,” and sometimes she did not even write her first name in full, but signed herself thus: “ A. Armant.” An examination of those letters and receipts will demonstrate that wherever an accent occurs over the letter “e” in Aglaé, it would have been a physical impossibility to cut off the signature without also destroying all trace of the accent. In a number of instances there is no accent over the “e,” and this is notably the case with respect to the name of the deceased as it appears at the top of the first page of the alleged will.
    .5. Even if there were evidence to create even a suspicion that the signature had been cut off, the presumption would be that the deceased mutilated it animo revoca/ndi. 35 An. 402.
   The opinion oi the court was delivered by

Fenner, J.

“Testament; d’Aglae Armant.” Such is the caption appearing at the beginning of an olographic writing containing testamentary depositions and offered for probate as a will, but without any signature at the end; and the question is, does this caption import such a signature as is required to an olographic testament? Before the adoption of the Napoleon Code an ordinance of Louis XV provided that olographic testaments should be “entirely written," dated and signed in the handwriting of him or her making them.”

Under this provision the jurisprudence of France required, in the language of Pothier, that “la signature'doit Stre á la fin de Pacte, parcequ’elle en est le complément et la perfection; c’est pourquoi un post scriptum aprés signature est hul, s’il n’est pas aussi signé.” Poth. Don. and Test., Ohap. I, Art. 2, Sec. 2. Thus interpreted, the same provision passed into the Napoleon Code. The commentators on the Code and the French tribunals have uniformly adopted the same interpretation. The only exception made (and that by a divided opinion) is that the date may follow signature, and that words written after the signature which are superfluous may be disregarded. Thus in the case of Veuve Guyot, the will" ended thus: “ Fait par moi Pauline d’Espinose, Veuve Guyot, qui ai signé aprés la lecture et méditation.” The court maintained the will on the ground that the name was intended as a signature, and that “the two lines which follow the signature can have no influence on the form of the testament, which was perfect when they were written.” Jour, du Palais, 20 Apr. 1812. It is useless to cite the French commentators; they all agree that testamentary dispositions following the signature are invalid.

The following is a summary of the French doctrine and authorities as given by an annotator of the Code: “Although the natural place of the signature be at the end of the act, because it expresses the final approval given by the testator to the dispositions of last will which he has made, it is, however, admitted that the writing by the testator of his name toward the end of the act may be considered as a signature if it is placed after all the dispositions constituting the testament. It does not matter that after the name there may follow some words connected with it, if the words thus following are superfluous or useless,” quoting: Cassation, 20 April 1813; Merlin Rep. Verbo Signature, Sec. 3, Art. 7; Toullier on Art.1970 Fr. Code; Marcadé on Art. 970 Fr. Code; 4 Demante No. 115; 4 Massé and Vergé, p. 96, Sec. 438; 7 Aubry and Rau, p. 108, Sec. 668; Vazeille on Art. 970, No. 4; 2 Grenier and Bayle, No. 228; 4 St. Espes-Lescot, No. 1010; 21 Demolombe, No. 114; Coin Delisle, Art. 970, No. 42; 3 Troplong, No. 1494; 13 Laurent, No. 227. See also Cross on Successions, who takes the same view.

Mareadé, who is as liberal as any, in commenting on a testament ending thus: “Fait et signé par moi Michel Francois, Falla, le 20 Dec., 1809,” says: “The question must be determined according to the circumstances of fact. If the names are accompanied with the ordinary paraph of the party; if, having no paraph, the party has taken care to write the name in more pronounced character than the rest of the writing; if the name, though written in like character, is that of a party whose acts generally have been signed in ordinary writing and by placing the name in the body of the concluding phrase, one might say that it was a signature, and that the testament was valid. But if, on the contrary, the name thus written was without a paraph and in no manner distinguished from the rest of the writing, and comes from a party who has always attached to his acts an independent signature, one would say this was not a signature.” 4 Marc. p. 10. Applying these tests, we find that the name of this testatrix is written without a paraph, though the evidence shows that she usually, but not universally, employed one; that the name is written without any distinctive characteristics, and that, as appears from every document produced, she invariably attached an independent signature at the end. Moreover, it seems to us that the coupling of the “ d ” with the name, in itself excludes the idea of its being intended as a signature.

Thus, under French jurisprudence, this will would fail to stand for two reasons: (1) because the writing of the name was not intended as a signature; (2) because, whether so intended, or not, the signature was not at the end of the act.

This jurisprudence was extant and well established when, in 1825, the article of the French code was copied into our own. We think it to be a fair presumption that the framers of our Code, familiar with the interpretation of the same language, both prior to and subsequent to the Napoleon code, must Have intended and expected that our own article should receive the.same interpretation, particularly as it conforms to the common and customary meaning attached to the word signature, as well as to the definitions thereof in all standard dictionaries.

Why should we depart from it?

It is true that in interpretating a like provision of the first English statute of Frauds, an English court held that writing the name at the beginning of the testament supplied the absence of signature at the end; and some other coarts, with that subjection to precedent which characterizes that system, followed the decision. But though following it, some of the judges intimated that if it were resnova they would decide differently, and the doctrine was condemned by sound legists. Dr. Brown in his work on Civil Law, and Dr. Christian in his edition of Blackstone, criticise it severely. Browne’s Civ. L., p. 278, Note 16.

And such was the prevalent dissatisfaction that an act of Parliament was passed to amend the statute so as expressly to require the-signature to be at the bottom of the testament.

We were at first much impressed with the clear proof made that' the deceased intended this paper to be her testament. But there is-no more doubt that she intended the invalid nuncupative codicil to be her testament. Yet, as the latter was attested by women who are incompetent testamentary witnesses, no one claims its validity. And so if the olographic will is not signed as required by law, her intentions can not save it.

The question is not whether she intended this paper to be her will but whether it is a will clothed with the forms of law. An olographic, like every other testament, is a solemn act. It matters not how clearly it conveys the last wishes of the decedent, if it is not clothed with the forms prescribed, it is null.

Even apart from the name’s not being at the end of the testament we think the proof does not - show that she intended to sign at all. It simply shows that she did not think or know that a signature was essential. If she had known that it was necessary that the testament should be signed, it is impossible to conceive how, in so important a matter, she should have acted so ambiguously and so differently from the course universally pursued by her in signing-other acts and documents of every description. The simple fact is she did not know a signature was necessary and therefore did not sign. Her mistake in this respect is unfortunate in the interests of justice, but it can not save the will.

The remaining contention of appellant, that ■ the testatrix had signed the will at the end of the act and that her signature had been cut off by some third person, is so inconsistent with the one just disposed of that it hardly lies in the mouth of appellant to urge them both. But, moreover, it is unsupported by proof and has nothing to rest on.

Judgment affirmed.


author: Watkins, J.

text:
    No. 10,695.
    Tutorship of the Minors, Henry F. and Thomas T. Scarborough. On Rule by O. H. P. Sample vs. R. N. Scarborough, Natural Tutor.
    1. An exception of no cause of'action must be determined by the averments of the plaintiff’s petition, construed with the recitals of accompanying documents which are thereto annexed and made parts thereof.
    2. A judgment homologating a tutor’s annual account is provisional merely, and does not conclude the minor, who has a certain time after the termination of his pupilage to object to it, even though his under tutor has been cited to appear for him.
    3. Primarily, tutorship is a personal trust. The tutor has the care of the person of the minor, and the administration of Ms estate; and it is of this administration the tutor is bound to render an account contradictorily with the Under tutor.

      i. It is unquestionably well settled that minors may come lawfully into the possession of the estate of a deceased parent, without there having been any previous administration thereof; but, prior to such possession being talren, and Without an administrator having been first appointed, the natural tutor may act in the • dual capacity of tutor and administrator, and in such case the functions as tutor will be subordinated to those as administrator, in which latter capacity he directly represents succession creditors.

    5. When a tutor files an account, it is one apparently of administration of the succession of the deceased, in so far as it purports to deal with its assets and liabilities; but it is one of tutorship per se, in so far as it purports to treat of charges against capital of, or expenditures for the support and maintenance of, the minors.
    APPEAL from the Tenth District Court, Parish of DeSoto. . Hall, J.

      E. W. Sutherlin and H. T. Liverman for Plaintiff and Appellant;
    In a ease in which the tutor of the sole heirs is administering a succession without opposition from the creditors, a creditor, whose debt is acknowledged by the tutor and placed on his account, which has been homologated, has a legal right to demand the sale of sufficient property of the succession to pay his debt. 0 i. 383; 2 An. 462; 16 An. 420.

      J. F. Pierson for Defendant and Appellee:
    The homologation by the court of the annual or provisional account of the tutor during his administration, is not a judgment, final or conclusive, against his ward. It is only prim® facie evidence of the correctness of the account, in any settlement which may afterwards be made with the minor. R. C. C. 356; 13 An. 464 ; 29 An. 722; 7 R. 229; 10 L. 329; 1 Rob. Ill; 37 An. 222, 808; 29 An. 722.
    A rule under C. P. 990, 992, to sell property of a minor, to pay a claim put upon the tutor’s annual account, or due to a third person, will not lie in favor of such third person against the tutor in possession of the property for the minor. C. P. 995, 996,65 and 66; 36 An. 747 ; 35 An. 828; 34 An. 39; 30 An. 93; 16 An. 420.
    The succession ceases when the estate has been reduced to possession by the heir. C. C. 871; 30 An. 139; 25 An. 335; 24 An. 114; 27 An. 686; 25 An. 143,221; 26 An. 603, 611; 28 An. 849, 372 ; 29 An. 412.
   The opinion of the court was delivered by

Watkins, J.

Claiming to be a recognized crediior of the succes. sion of HenryE. Eullilove, deceased, for a large sum appearing upon a duly homologated account, and alleging his inability to obtain payment thereof, plaintiff proceeded by rule against the defendant as natural tutor of the two minors, sole heirs of deceased, to compel him 1^> pay the debt or, in default of making payment, “to show cause why so much of the property of said succession as is necessary to pay said debt, should not be sold for that purpose according to law,” his averment being that said defendant qualified as natural tutor on the 6th of March, 1885, and that in said capacity he has since been administering the succession left by said deceased, the inheritance of said minors.”

To this rule the defendant excepted on the ground that “ plaintiff’s petition has not set forth or shown any cause of action or legal right to the relief sought herein,” and he, therefore, prayed that his demand be rejected.

That exception was by the court sustained and the suit dismissed. It is from that judgment that plaintiff in rule prosecutes this appeal.

The question of no cause of action thus raised must be ascertained and determined on the face of the petition of the plaintiff for rule, and for the purposes of decision, the averments of the petition must be taken as true.

The District Judge was of opinion and decided that the defendant’s exception was well taken for the reason that the account and judgment invoked by the plaintiff in rule, show that the account was only an annual account filed in conformity to the provisions of Article 356 of the Revised Civil Code and, therefore, the judgment homologating same only furnishes prima facie evidence of the correctness of the account homologated; and that, notwithstanding, the tutor took charge of the estate of the ancestor of his wards without any previous administration, and has ever since been administering it as tutor, such possession and administration are for the benefit of the heirs and governed exclusively by the laws of tutorship and not by the laws governing the administration of successions — hence a creditor of the deceased, or of his succession, must proceed in the collection of his claim in a direct action under C. P. Article 996, and not by rule under C. P. Article 990.

It appears from the plaintiff’s petition for rule, that the account and judgment of homologation are annexed thereto and are made parts thereof, and same may be properly considered and treated as parts of the petition for all the purposes of this argument. The District Judge entertained this view and referred to them in his reasons for judgment.

In addition to the quoted references to the petition and annexed documents, they show the following additional facts, viz: That H. F. Fullilove, grandfather of the minors, died in 1885, and in February of that year, the defendant qualified, and was confirmed natural tutor, and in that capacity has since administered the succession of said deceased.. That on the 14th of February, 1889, said tutor filed “an account with the tutorship of the minors,” which shows “property received from the succession of the deceased, as per inventory in same, $39,305.58.” That as against these values, the accountant claimed credits aggregating $11,000 in amoufit, and also, presented the claim of the plaintiff in rule of $3,076.93 “ for recognition and allowance by the court ” —thus exhibiting the solvency of the succession to the extent of more than $20,000, on the face of the account. That these values are chiefly made up of real estate, say $15,000; movable effects, about $4500; merchandise, $8000, and a large amount of mercantile rights and credits. That on the trial of the account, the judgment of homologation disallowed the claim of the tutor for services, etc., $2700; also, his claim for the support and tuition of minors, as against the capital of the minors, of $1054.78; and reduced his claim of $4266.56 for debts of deceased paid by him, to $1187.63; thus increasing the solvency of the succession, apparently, by the amount of $6743.71. That on the filed account, the claim of the plaintiff is set out circumstantially, as a “note given by the tutor to O. H. P. Sample for debts'paid by him for the tutorship.” That upon the account is endorsed an order of the judge directing that “ due notice of the filing of this account issue, and-same be posted and published for the time, and in the manner required by law.” That the under tutor accepted service of the account and waived citation. That the judgment of homologation approved the account (with the exceptions named) in its entirety, and decreed “that the claims thereon in favor of the claimants be paid by the tutor with interest from date.” That judgment was signed, filed and recorded.

On this state of facts the question for decision is, whether that judgment liquidated plaintiff’s debt against the open succession of the ■deceased, so as to entitle him to proceed by rule, under O. P. 990; or is it only such a judgment as furnishes prima facie evidence - of the correctness of the claim allowed (R. O. O. 356) and carried on the homologated account, not dispensing the creditor from an ordinary suit for an additional judgment liquidating his demand, as against “ heirs in possession” of their grandfather’s estate, as contemplated in C. P. 996.

Primarily, “ tutorship is a personal trust.” R. C. C. 315.

While the tutor has the “ care of the person of the minor,” it is also his duty to “ administer his estate.” R. C. C. 336. “The mission of the tutor is to administer the estate of the minor.” Succession of Webre, 16 An. 420.

It is of this administration “the tutor is bound to render an account * * * contradictorily with the under tutor,” and the judgment of homologation whereof is only prima facie evidence of the account “ homologated ” in any subsequent settlement with the ■minor. R. C. C. 356.

It was such an account that the court had under consideration in Porche vs. Ledoux, 12 An. 450; Tucker’s Succession, 13 An. 464; Stafford vs. Villain, 10 La. 329; and in McGee vs. Dupuy, 7 R. 229.

In treating of such an account in Lay vs. Succession of O’Neil, 29 An. 725, the court said: “ The judgment homologating the several annual accounts are provisional merely, and do not conclude the minor who has a certain time after the termination of his pupilage to object to them, even though his under tutor may have been cited to appear for him.”

The same doctrine is announced in Cochrane vs. Violet, 37 An. 221.

But it must be observed that in all of those cases the accounts considered purported to liquidate the indebtedness of the tutrix toi the pupil, or vice versa. They were accounts of tutorship per se. Bidell vs. Colder, 37 An. 805, presents a like issue and account.

But the case of Soye vs. Price, 30 An. 93, is much relied upon by defendant’s counsel.

That ease arose prior to the adoption of the Constitution of 1879, which conferred upon district courts throughout the State unlimited jurisdiction in civil and probate matters, and the question was, whether the Sixth District Court of the parish of Orleans had jurisdiction to entertain an ordinary suit in the foreclosure of a special rportgage which had been consented by a deceased person, and a supplemental special mortgage consented by one major heir who had unconditionally accepted the succession, and the natural tutor of two minors, who was duly authorized thereto by á family meeting.

The court held that the Sixth Court had jurisdiction because “ there was no doubt, and no dispute, that the tutor and the (emancipated) heir who had accepted unconditionally are in full possession and enjoyment of the estate of the deceased. * * * The estate, so far as it belonged to the minors, was in fact in the hands and under the administration of their tutor and, so far as it appears, is so yet.”

The decision of that case rested upon the proposition “ that minors-(who are beneficiary heirs of necessity) may come lawfully into the possession of the estate of the deceased parent without there having' been any previous administration thereof.”

The case of Lemmon vs. Clark, 36 An. 774, while recognizing and affirming the correctness of the principles of Soye vs. Price, pointed out the distinguishing features of another class of cases in which the tutor acted as administrator, and as such, administered the succession of the deceased for account of its creditors, primarily. The court say: “The cases quoted by counsel for plaintiff are all cases in which the tutor held in a dual capacity of tutor, and executor or admins - trator, and it was there held that the functions as tutor were subordinated to those of executor or administrator, in which latter capacity she directly represented the creditors. But here the tutor acted in that capacity alone and, under the doctrine of Soye vs. Price, represented the minors only, held possession for them, and all of her acts are in the name and behalf of her wards.’ As representative of the beneficiary heirs in possession, creditors of the succession had the right to sue them through her and to recover judgment, restricted of course, in its operation to the property inherited by them.”

The cases which come within that exceptional class referred to, in which the right of the tutor is recognized to administer, ex virtute officii, an estate tailing to his wards as an inheritance, are numerous, and of an early period in our jurisprudence. Vide Wells vs. Cuny, 4 La. 489; Bey vs. Dowell, 1 R. 112; Martin vs. Dupré, 1 An. 239; Bryan vs. Atchison, 2 An. 462; Succession of Story, 3 An. 502; Mouget vs. Penny, 7 An. 134; Hoover vs. Sellers, 5 An. 180; Hair and Lobuzan vs. McDade, 10 An. 534; State vs. Leckie, 14 An. 641; Woolfolk vs. Woolfolk, 20 An. 573.

Applying the principles of these cases to the case stated by the plaintiff in rule, we think it apparently belongs to the exceptional class pointed out in Lemmon vs. Clark, the defendant tutor holding' the dual capacity of tutor and administrator, and that his account in so far as it purports to deal with the assets and liabilities of the succession of the deceased ancestor, is one of administration; and, in so far as it appertains to charges made against capital of the minors, on account of alleged expenditures for their service and maintenance, is one of tutorship only — the rendered account having been notified to creditors of said succession by advertisement, and to the under tutor by citation. But while we think it does not appear from the pleadings and account that the minors Scarborough have entered into possession of their grandfather’s estate as an inheritance, yet upon issue joined and trial had, this fact may be made to appear. Until this fact is made to appear affirmatively, we must hold that a tutor, acting as administrator of an open succession, does not possess, apparently, for the heirs, and that the property will not pass to him, as tuteo-, until his administration as such is terminated.

Possessing the prima fades of an account of administration, on which the claims of creditors of the deceased are entered, a judgment of homologation thereof would seem to entitle plaintiff, as such a creditor, to proceed by rule for the collection thereof. On this theory, we are of the opinion that the petition and annexed documents disclose a cause of action, and that the Dislrict Judge erroneously sustained the defendant’s exception.

It is therefore ordered and decreed that the judgment appealed from be annulled and reversed; and it is now ordered that the defendant’s exception of no cause of action be overruled, and that the cause be remanded for further proceedings according to law and the views herein expressed; the defendant and appellee to pay costs of appeal, and those of the lower court to await final judgment.


author: McEnery, J.

text:
    No. 10,823.
    John B. Alexander et al. vs. Bourdier & Bellesein. D. D. Avery et al. Called in Warranty.
    The doctrine of estoppel as applied in the case of Marsh vs. Smith, 9 R. 528, and Lippmins vs. McCranie, 80 An. 1252, reaffirmed.
    Property situated in one parish may he sold in a succession case in another parish hy the sheriff of the parish where the succession is opened, under the order of the parish court.
    The addition to the name of a party, such as tutor, in the the transferring clause of a sheriff’s deed when it is manifestly a clerical error, in no way wai'ranted hy tiie suit, judgmentfi.fa., or any proceeding in the case, is without effect and can not destroy the deed which intended to transfer the individual interest of the defendant in execution.

      APPEAL from the Nineteenth District Court, Parish of St. Mary. Allen, J.

      Todd & Todd for Plaintiffs and Appellants:
    1. Parol evidence oí the admissions of a party weakest of all evidence. When such party is dead, unless parol evidence of his admissions, acts, agreements, etc., urged against him are corroborated, and it depends solely upon the testimony of one witness, it will generally be disregarded. Bringier vs. Gordon. 14 An. 274; Bodenheimer vs. Executor, 35 An. 1005; Succession Townsend, 40 An. 66; Foote vs. Goodwin, 42 An. 521; 117 U. S. R. 580. This principle and these authorities acquire a controlling and conclusive force when applied to the uncorroborated testimony of a party to the suit, as to the declaration of a deceased person, whose rights or those of his heirs he is seeking to defeat.
    2. Parol evidence of a waiver or ratification of a sale oí real estate or of verbal admissions and declarations, offered to affect the title to real estate, are inadmissible even when offered to establish an estoppel. -Bigelowon Estoppel, 104 TJ. S. R.; 106 U. S. R.
    3. Judicial estoppel and estoppel in pais different. The former has regard to the good faith parties should exhibit before a court of justice. The judicial declarations of litigants must be consistent and harmonious. 30 An. 1041. Whilst to establish the latter estoppel in$)ais:

      (а) “There must be a false representation of material facts.
    (б) The party to whom it was made must have been ignorant of the truth of the matter.
    (c) It must be made with the intention that the other party should act upon it. ($) The other party must have been thereby induced to act upon it.
    (e) He must have been induced to change liis previous position.” Bige. 569.
    (/) He must have been misled. Bige. Estoppel, pp. 453,569-70; 2 An. 759; 6 An. 377; 12 An. 681.
    Standing by in silence will not bar a man from asserting a title of record. Bige. Estoppel, p.594; 50 Ark. 116; 70 Maine, 116;80 Ark. 407;55 Miss. 255; 50 Wis.232; 16 Penn. St. 357; 19 An. 158.
    4. Plaintiffs are forced heirs, and to the extent of their legitime have all rights of creditors, and to that extent can not be any more than creditors, be affected by acts, declarations, etc., of their father, even though such acts and declarations might estop him.
    5. An absolute nullity can not be ratified nor cured even by an estoppel. 32 An. 1008.

      Weeks & Weeks and Foster <& Mentz on the same side:
    It is settled that the question as to what was sold by the sheriff under a judicial order, or writ, must be determined by the transferring clause in sheriff’s deed. 34 An. 423; Id. 100.
    Where a judgment is rendered against an estste represented by a tutor of minors, and against said tutor individually, and a fi.fa. issues on said judgment, and the sheriff’s deed recites only the transfer and adjudication of the interest and demand of the tutor in the property seized, there is no sale and adjudication of the individual property of the persons acting as tutor.

      The Probate Court of the parish of Iberia had no jurisdiction to order the partition of real estate situated in the parish of St. Mary, especially when the proceedings leading up to the sale show that the succession was not the owner of the property. '
    Where the succession is only one of several eo-owners, the property can not be partitioned by the Probate Court. Such a partition is not a probate matter. 30 An. 1337; Id. 182; Id. 10, 1032; Id. 140; 31 An/506; 34 An. 1218.

      D. Gaffery for Defendants and Appellees.

      Farrar, Jonas & Kruttschnitt for the Warrantors:
    1. Upon the facts of this case defendant’s title is good.
    2. If a man stands by and is silent while his own property is sold, and suffers another to become the purchaser, he is estopped from disputing the title of such purchaser. Marsh vs. Smith, 5 Rob. 523; Lippmins vs. McCranie, 30 An. 1252.
    3. The title of defendants to one-eighth of the plantation out of the one-third alleged to have been derived from T. S. Alexander is perfect by the prescription of ten years. This would leave only flve-twenty-fourths open to attack, if the grounds of attack be considered good.
    4. The title of defendants to one-third of one-tliird of the plantation is perfect, under the sheriff’s sale of 1869, under the plaintiff’s own showing, unless the court should hold the deed to be absolutely worthless. This would reduce the flve-twenty-fourths open to attack to two-thirds of flve-twenty-fourths, equal to five-thirty-sixlhs.
    5. Even if plaintiffs be successful, defendants would not, at least at present, be entitled to any judgment against parties called in warranty.
   The opinion of the court was delivered by

McEnery, J.

The plaintiffs, heirs of T. S. Alexander, brought this petitory action to recover possession as owners of one-third of the Waveland plantation, situated in the parish of St. Mary.

The plaintiffs allege that their father, T. S. Alexander, was the owner of one undivided third of said plantation and that he was never divested of title thereto.

Defendants claim title to the whole of said plantation by purchase at a probate sale of property belonging to the succession of Mrs. Louisa Avery, on the 23rd day of September, 1875.

They allege that Mrs. Avery acquired title to one-third of said property, the interest of T; S. Alexander, at sheriff’s sale, in November, 1869, made under execution of the judgment of Jno. M. Vaughn, co-tutor, vs. P. D. Richardson, testamentary executor, et ais. And that Mrs. Avery acquired the other two-thirds of said plantation at an administrator’s sale of the estate of Mary Alexander, on the 15th November, 1869.

The defendants also plead an estoppel to any'claim of the heirs of T. S. Alexander to any portion of said plantation because of the several acts and declarations and silence of their father in relation to the sale of said property, said acts and conduct being of that character which induced the plaintiffs to believe that he had no interest in the plantation and they were thereafter estopped from disputing the title of plaintiffs.

In 1861, Mary Rebecca Alexander, widow of D. D. Richardson, and Theodore S. Alexander, bought at the probate sale of the effects of the estate of David D. and Edward M. Richardson, the whole of Waveland plantation for the price of $103,000; $83,000 of which was on credit, represented by notes secured by mortgage and vendor’s privilege. Mrs. Rebecca Alexander became the owner of two undivided thirds, and Theodore Alexander of the other undivided third. Each party executed notes in proportion for the part of the plantation owned by him.

Mrs. Mary Rebecca Alexander died.

Theo. S. Alexander qualified as tutor of her minor children (the father also having died), Kate and Lizzie Richardson.

J. M. Vaughn, co-tutor of the children of Edward M. Richardson, held some of the notes given for the purchase price of the plantation by Mrs. Mary Rebecca Richardson and Theo. S. Alexander.

John M. Vaughn, co-tutor, and wife, brought suit on the notes held by them. All parties in interest were made defendants. The Wave-land plantation was fully and accurately described. Its sale was prayed for and the mortgage and vendor’s privilege thereon asked to be recognized.

The prayer of the petition is as follows: “Petitioners pray that the said Francis D. Richardson, testamentary executor of the last will and testament of Edward M. Richardson, deceased, Theodore S. Alexander in his own right and individual capacity and as dative tutor of Kate and Lizzie H. Richardson, Louise Richardson, wife of Dudley Avery and the said Avery be duly cited to appear and answer this petition, that thereafter the premises considered, they be condemned and adjudged to pay to your petitioners the aforesaid sum of $24,538.65 with interest thereon at the rate of 8 per cent, per annum on $4,907.73 from February 1, 1861, like interest on like amount from 1st February, 1862, and on like amount from 1st February, 1863, and like amount from 1st February, 1864, and like amount from 1st February, 1865.

The said Francis D. Richardson as indorser and executor, in his latter capacity in the whole amount and interest, the said Theodore Alexander in his individual capacity in the sum of $8,174.53 andas ■dative tutor of Kate and Lizzie H. Richardson, $10,963, with interest as above specified in equal proportions to the whole amounts of the notes, and the said Louise Richardson, wife of Dudley Avery, in the sum of $5,453.63% with interest and in proportion as prayed for • against Theodore Alexander, tutor.”

The prayer concludes for a recognition of the mortgage and vendor’s privilege and for an order for the sale of the property to satisfy the same.

Answers were filed by all parties to this suit, and the contest seems to have been vigorously waged.

The judgment rendered in the case was as follows:

“ It is ordered adjudged and decreed that said plaintiff do recover from the estate of Mary R. Richardson, deceased widow of D. D. Richardson and from Theodore S. Alexander, personally, the sum of $10,324 with 8 per cent, per annum thereon as follows, to-wit: On one-fifth of said amount from the 1st of February, 1861, on another fifth from the 1st of February, 1862, on another fifth from the 1st of February, 1863, and another fifth from the 1st of February, 1865, said amounts to be recovered from the defendants in the following proportions from the estate of Mary R. Richardson two-thirds of said amount and the other third from Theodore Alexander. It is further ordered that plaintiffs’ mortgage and privilege take effect from the the 1st of February, 1859, on the undivided third of the property on •that day sold by the sheriff of the parish of St. Mary, and which heretofore belonged to the estate of Edward M. Richardson, deceased.”

The fi. fa. and the sheriff’s return thereon are lost. The sheriff .kept the fi. fa. until 1875, when he returned it.

But it is a fact that a fi. fa. issued, and by the advertisement offered in evidence, it is shown that one-third of the property was seized, and the sheriff’s deed shows that one-third of the plantation was adjudicated to Louise M. Richardson, wife of Dudley Avery.

All parties who had any right, title, claim or interest in said property were parties to the above suit. They were concluded by the judgment. The heirs of Mary Rebecca Richardson and Theodore S. Alexander owned the plantation in indivisión. If one-third of it was sold they lost all right or title to that third. Two-thirds of the plantation remained. The plaintiffs, therefore, have no right to one-third of the plantation. They could only claim, if they had any title, one undivided third interest in the remaining two-thirds. But what became of this remaining two-thirds interest of the plantation? It. was sold in November, 1869, at the succession sale of Mrs. Mary Rebecca Richardson, and purchased by Mrs. Avery. Theodore S. Alexander was a witness to the act of sale to Mrs. Louise Richardson.

Theodore S. Alexander evidently construed the effect of the first sale as having divested him of all title or interest in said plantation. He was the uncle of Mrs. Louise M. Richardson. After the two sales and the final adjudication of the property to her she went into possession of the whole place. Theodore Alexander acted as her agent, collected rents for her, and accounted to her husband for the same. He permitted the entire property to be assesed in her name for six years. She paid the taxes on the plantation during this time. At her death he permitted it to be inventoried as her property, and made no opposition to its sale as ‘a part of her succession effects. Before leaving the premises he delivered certain plats or maps of the plantation to the defendants ‘as part of the muniments of title to the property.

These several acts of the plaintiffs’ father and his silence for so many years, permitting the property to be sold under several decrees without asserting title, effectually estop them from claiming title to any part of said Waveland plantation. Marsh vs. Smith, 5 R. 518; Lippmins vs. McCranie, 30 An. 1251.

It is evident that the word tutor, in the transferring clause of the deed, placed after Theodore S. Alexander’s name, was a clerical error. The suit, the judgment, the seizure, show that it is a misdescription and can have no possible effect.

Mrs. Louise M. Richardson’s (Mrs¡ Dudley Avery) succession was opened in the parish of Iberia. The order for the sale was obtained there. The property was situated in St. Mary parish when it was sold by the administrator.

This did not render the sale null and void.

In the case of Julia Pierce, 9 M. 461; Chaney, Admr. vs. Gray, 7 R. 144.

Judgment affirmed.