text:
    No. 261.
    City of Shreveport vs. A. Drouin.
    1. A municipal corporation wliicli seeks to compel the removal of a building winch has existed for many years, on the ground that it rests upon ground dedicated to public use, carries the burden of clearly proving the dedication.
    2. When the evidence produced to show the dedication is a map or plat, and the statements thereon are ambiguous or doubtful as to the extent of the dedication, recourse may bo had to the contemporaneous and subsequent acts of the parties to show their intention and the construction put by them on the dedication.
    3. A plain and positive intention to dedicate is an essential element of a dedication, and that intention must be shown by language or acts so clear as to exclude any other reasonable hypothesis, or, at least, to clearly convince the judicial mind.
    4. Finding that the intention to dedicate to the extent claimed in this ca30 is seriously doubtful on the face of the map and contradicted by the acts of the parties and the circumstances of the case, the claim is denied.
    APPEAL froni tlie First District Court, Parish of Caddo. Taylor, J.

      A. D. Land, City Attorney, for Plaintiff and Appellee:
    1. This is a suit to remove part of a building and other obstruetioiis from a public alloy of the City of Shreveport.
    2. Dedication of this alley as being of the uniform width of twenty feet is shown by a plat filed in office of parish judge of Parish of Natchitoches in 1837, by the original owners of the site of the town of Shreveport, which in 1839 was incorporated as “laid off and divided into lots ” in 1837 — also by map filed by the defendant.
    3. This dedication antedated the sale of the lot now owned by defendant, and the alloy is entitled to its full quantity, and the deficit, if any, must fall on the lot. C. C. 84G, 847.
    4. Expressions of measurement are controlled by the plan. 17 D. 407 ; 26 Ann. 40. In this case the contention of defendant that his lot is entitled to a frontage of forty feet is shown by the plan to be erroneous. See opinion of district judge.
    5. Defendant’s building obstructs more than one-tliird of the alloy and prevents its use for the ordinary imrposos of a public alley in a city. Hence it should he removed.

      Yowng cf? Thatcher for Defendant and Appellant:
    That property may be dedicated to public use is a well established principle of (ho common law. * •• " The importance of this principle may not always be appreciated, but we are in a great degree dependent on it for our highways and streets. * * •• Dillon on Mimic. Corp., Sec. 490.
    An intent on the part of the owner to dedicate is absolutely essential, and unless such intention can be found in the facts and circumstances of the particular case, no dedication exists. When a plat is made and recorded, the requisite intention is generally indisputable. Same, Sec. 499.
    The question whether land has been dedicated to public use is one of intent. The intention to dedicate is absolutely essential, and it should clenhly and satisfactorily appear. Animus declecendi is the vital principle. Am. and Eng. Encyclopaedia o, Daw, pp. 400 and 401, and easps tlieie cited, a few of which we mention, vis: To sustain dedication, intention of owners to dedicate, as well as an actual appropriation by the public must he shown. 21 Wis. 451.
    Dedication cannot be made out without clear intent to dedicate on the part of the proprietor and an acceptance by the public. Lee vs. Lake, 90 Am., Dec. 220.
    To constitute sufficient dedication there must ho the intention on the part of the owner to malee the gift and also an acceptance. Gentleman vs. Soule. 83 Am. Dec. p. 264.
    In order to constitute a dedication for a public highway, there must ho an intention to dedicate by the owner clearly and unequivocally shown, and an acceptance by the public. Mere evi dentiary facts tending to show a dedication do not, of themselves, constitute the dedication. Shelllionse vs. State (Indiana), 2 N. E. Hep. 484.
    The question of the intent to dedicate, is the paramount one in all eases of disputed dedication. Am. and Eng. Encyclopaedia of Law, Vol. 5, p. 402.
    The burden of proving a dedication of land for a slreet is on the town. Nason City, Etc., vs. Town of Nason, 7 Am. and Eng. Corporation cases, p. 421.
    Since dedication is the joint effect of intention of appropriation of land and acceptance by the public, no presumption of dedication can be made, •where circumstances exist which negative the presumption of intention. Any act of the owner, with the evident purpose of rebutting the intent to dedicate, will he, when established, conclusive, to that end. Am. and Eng. Eney., Yol. 5, p. 409.
    As against the original owner, the intent to dedicate must, be made clear, and this intention is to be gathered from acts and declarations explanatory thereof, in connection with all the circumstances which surround and throw light upon the subject in each particular case. Ibid, p. 402.

      An explanatory note on a town pilot, inconsistent with the plat, and its courses and distances must give way to them. Ibid, p. 406; 100 Ind. 463.
    Where the proprietor of hind lays out the samo info building lots, with streets and alleys between them, and makes and records a plat thereof* be, thereby dedicates suon streets and alleys to public use. Fulton vs. Town of Dover (Delaware), 0 Gent, 848, cited in note in Am. and Eng. Enoy., Yol. 5, p. 409. ' .
    There must bo a plain and positive intention to give, and one equally plain and positive to accept; by analogy to other contraéis, there, must be. a concurrence of two parties to pass the right. The positive assent by the owner and the actual use by the public * • must be shown. And when ilie dedication is not express, but to be inferred from ihr* acts and acquiescence of the owner and the use by the public, these must be such as to exclude every ofher hypothesis but that of dedication. 3 Ann. 282; 19 La. 62; 7 Ann. 498; II. I). p. 1568, No. 3.
    The dedication of property 1o public use must appear by evidence so conclusive, as to exclude, all idea of private ownership. 37 Aim. 497.
    'The dedication of property to public use need not bo made in express terms. In case of doubt as to the extent of the property dedicated the contemporaneous and subsequent continuous construction of the dedication put upon it or accepted by both the public and the former owners of the.property should remove the doubt. 34 Ann. 1090.
    If the works formeily constructed on the public soil consist of houses or other buildings which cannot be destroyed without causing signal damage to the owner of them, and these houses or other buildings merely encroach upon iho public way, without preventing its use, they shall he permitted to remain, but the owner shall he hound when he rebuilds them, to relinquish That, part of Iho soil or of the public way, upon which they formerly stood. G. G. Art. 802.
   The opinion of the Couyt was delivered by

Fenner, J.

The City of Shreveport alleges that defendant, who is ^he owner of lot No. 13 in Block 40 of said city, has erected thereon a brick building, fence, etc., which extend beyond the line of his said lot and unlawfully encroach upon an adjoining public alley, obstructing the same unlawfully, and prays for a judgment to remove said obstruction.

The defendant admits ownership of the lot and building, but avers that the latter rests wholly within the lines of his lot and does not encroach upon the public alley.

Both parties agree as to the existence of a duly dedicated public alley, but they differ as to its width under the dedication thereof, the city claiming that it is twenty feet wide, while the defendant attributes to it a width of onty ten feet.

The town of Shreveport was incorporated in 1839, and embraced a territory of 640 acres which had belonged to an association of individuals called the Shreveport Town Company, who, prior to and in view of its incorporation as a town, liad divided a considerable part of it into squares, lots, streets and alleys. A map is produced showing this division, which is admitted by both parties to operate a dedication to public use of tbe streets and alleys thereon depicted and described.

The dispute is as to the extent of the dedication.

The map represents over sixty squares, all of which, except four, arc divided as exhibited in tlie following figure:

Four of the lots fronting on Texas street are divided as shown in the following figure, which exhibits square No. 40, in which the defendant’s lot is situated:

On the margin of the map the following statements are made : “ The lots in Shreveport are 40 feet front by 150 feet. The alleys are 20 feet wide.”

It is admitted that all the squares are 320 feet square.

As applied to all the squares, except four, both the above statements on the margin of the map are perfectly true; all the lots are 40 feet front and all the alleys are 20 feet wide.

But when we come to the other four squares represented in the second diagram, it is manifest that both the statements cannot stand together, one or the other must give way.

It is mathematically impossible for all the lots fronting on Market and Edward streets to have 40 feot front and for the alley to have 20 feet width; for deducting from the 320 feet entire width of the square, the depth of the lots fronting Texas street or 150 feet, and there remain only 170 feet, which cannot contain four lot fronts of 40 feet each anil a 20-foot alley.

The question is, which must control ü

Must the reservation of 40-feet lots yield to the dedication of a 20-feet alley; or must the dedication yield to the reservation 1

Considering that defendant received the lot as a 40-foot lot,1 under a chain of title running back more than forty years, in which it is several times expressly described of such dimensions, and that the occupancy by the brick building in controversy has continued for nearly as long, it certainly seems clear that the burden of proving dedication devolved on tlie city, and that if the title produced by her is ambiguous, the doubt must be construed against her.

The city produces no other proof of the original dedication than the map above described containing the ambiguous and contradictory marginal statements above referred to.

Is not the extent of the dedication intended manifestly doubtful 9

Observe that under the construction of defendant the city will receive precisely the same amount of space for alley-ways, in these four squares as she does in all the other squares. The only difference is that instead of one 20-foot alley-way running through the whole square, a space of 20 by 320, she takes one alle3 of 20 by 160 and another transverse alley of 10 by 320.

Why should it be supposed that the owners intended to grant onetliird more for alle3?s in these squares than in all the rest 9

If such had been their intention, why should they-have taken this additional space from the lots fronting on Market and Edward streets? rather than from the rear of the lots fronting on Texas street 9 What better reason has the city to claim the extra width of its alley from plaintiff, than from the proprietors of the Texas street lots 9 They have no better right to a depth of 150 feet than plaintiff has to a front of 40 feet.

But if owners did intend to reduce the front of these lots, why did they not reduce them all proportionally? The proprietors of all the other lots fronting on Market street enjo3, without dispute, their full frontage of 40 feet; and if the city’s claim, set up at this late day, be allowed, the whole loss must fall on defendant and his lot must be reduced by one-fourtli of its front.

There is absolutely nothing in the instrument of dedication to indicate an intention to cut off so huge a slice from this lot.

The extent of the dedication is not only fairly, but seriously, doubtfuj on the face of the instrument relied on to prove jit.

We have held that in case .of doubt as to the extent of the property dedicated, the contemporaneous and subsequent continuous construction put upon it or accepted bx? both the public and the former owners of the property, should serve to remove the doubt.” McNeill vs. Hicks, 34 Am. 1090.

Applying this test, we find that- the members of the Town Company partitioned the property among themselves in 1843, and this lot fell to Jenkins. He sold in January, 1845, by the simple description of lot 13 in block 40, referring, however, to the plat which gave it, with all other lots, a frontage of 40 feet on Market street b3? a depth of 150 feet. In 3819 his vendee sold it by an express description of these dimensions. In subsequent sales it was described simply by numbers of lot and block, and since, 18(59, by same description with the addition the dimensions of 40 by 150, “more or less.”

Tims it appears that, after the dedication, the owners continuously treated this lob as having these dimensions.

It further appears that the brick building, which the city now seeks to remove, was constructed as far hack as 1858 and has stood, without objection or complaint, until the recent institution of this suit. During all that time the, city authorities and the public have been content with the use of the alley as it stood.

Of course there is no prescription of the public right, hut these circumstances certainly strengthen the contention of the defendant that there was no intention on the part of the owners to dedicate this alley by a width of 20 feet.

We rise from the study of the record with the strong' conviction that such was not' the intention of the owners in this dedication. The map produced is, confessedly, not the original. There is evidence in the record to show that the first- map divided these four blocks precisely as the other blocks were divided, at which time the marginal statements as to dimensions of lots and alleys were consistent and strictly true; that, subsequently, a change was made in the distribution of lots and alleys in these four blocks, and, as this change left the same amount of space for alleys, it was not thought necessary, or was inadvertently omitted, to change the marginal statements. But we are satisfied the owners intended to reserve the same number and dimensions of their lots and to dedicate no greater space to alleys. If such had not been their intention, it seems clear that they would have expressed, in some way, the diminution operated in the size of the lots reduced.

The intent to dedicate is essential to a dedication. That intent may be as clearly expressed in a map or j>lat as by the clearest language; but when, as in this case, the expression is ambiguous, then the same principles apply in determining the intention as in cases where the dedication is not express, but implied from acts and circumstances. In such case, the law is well established that “though no particular form be requisite, there must he a plain and positive intention to give and one equally plain to accept. The positive assent of the owner and the actual use by the public for tire public purposes intended by the appropriation, so as to render it unjust and injurious to reclaim the land, must he shown. And when the .dedication is not express, hut to be inferred from tbe acts or acquiescence of the owner and the use by the public, there must he such as to exclude every other hypothesis but that of (ledieation.”

See authorities cited in Hennen’s Dig. Things (a)2), No. 3.

Many authorities are quoted in the opinion of the learned judge a quo and in the briefs of counsel; but we think there are no doubtful propositions of law involved in the case and but slight differences between the parties in their legal propositions. We do not differ from the judge a quo in his statement of the law which, as usual with him, is learned and accurate; but in our appreciation of the facts and of the-application of the law to them we are compelled to take a different view from his.

It is, therefore, ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and reversed, and if is now adjudged and decreed that there be judgment in favor of the, deiondant, and rejecting plaintiff’s demand at plaintiff’s cost in both courts.


source: Caselaw Access Project

author: Watkins, J.

license: Public Domain

text:
    No. 260.
    Simon Levy, Jr., vs. S. N. Ford, et al.
    1. A promissory note secured by an act of mortgage, executed and issued only for use as collateral security for a presently existing debt, payable at a future dato, to the maker's own order, and by him endorsed, passes, before maturity, free of all equities and offsets in the maker's favor.
    2. In ease the indebtedness of the maker, which said collateral was intended to secure, lias been paid, and the collateral returned to the maker, he may again reissue same to any other creditor of his. either before or after maturity and under like conditions as ho might transfer or pledge a note primarily executed for value.
    3. The pre-existent debt must be extinguished, otherwise there is no novation j if it he only modified in some parís, and any stipulation of the original obligation hesuffered tore-main, it is no novation. It is not presumed, and the intention to make it must clearly result from the terms of the agreement, or by a full discharge of the original debt.
    APPEAL from the First Distript Court, Parish of Caddo. Taylor, J.

      Land <0* Land for Plaintiff and Appellee:
    1. The Bourquin rent notes having been extinguished by a double novation, the mortgage .securing same was not transferred to the substituted credits, in the absence of an express reservation. G. O. 2189, 2195.
    2. The mortgage note, was surrendered to the maker for the purpose of securing the, Bourquin rent notes — and could not be pledged for other debts without the consent of the former holder.
    3. tfaid mortgage note was extinguished by payment and confusion, and could not be reissued by the maker before or after maturity so as to revive the mortgage. 4 II. 416; 19 Ann. 260; 23 Aim. 639; 25 Ann. 438.

      4. The casos in 35. Ann., 5 and 39 Ann. 712 have no application to the case at har. In neither case was there proof of payment or confusion. And in both cases the doctrine is limited to the reissue of mortgage notes, given originally to nominal mortgagees, and acquired by third innocent persons before maturity. In the case at bar the note was obtained from the maker after it had been negotiated, and had “come back” into his hands, and again coming into his hands after maturity, it was reissued after third persons had acquired mortgage rights.
    5. A mortgage cannot be created by the issue or reissue of a note. When a dormant mortgage once arises, it is like an ordinary conventional mortgage, and is extinguished whenever the mortgagor reacquires the evidence of the principal obligation. A man cannot hold as owner an obligation against himself.
    O. The omission of a clerk to write down a part of the alleged testimony of a witness, is no ground for a new trial. 3 ft. 364 ; 32 Ann. 1078, Such omissions must be supxflied before the submission of the case. 33 Ann. 932, 1079 j 29 Ann.<716.

      Wise c6 Herndon and Alexander c6 Blanchard for Defendants and Appellants:
    Suit by junior mortgagee for erasure of anterior mortgage. Alleged ground: Payment of note and extinguishment of mortgage.
    Decision favorable to plaintiff on ground not alleged in petition; novation of notes for which tlie mortgage note in controversy was deposited os collateral security.
    A and B are obligors of an obligation contracted to C. To socare this debt B deposits as collateral security his note secured by mortgage on x>voperty owned by him. Afterwards C releases A and substitutes D in his place. To this B. consents and agrees that the niort- . gage collateral shall continue responsible for the debt. Query: By this arrangement, what is novated ? Is it the whole of the original obligation to 0, or only A’s part of the obligation i Clearly the latter. Pre-existent obligation not extinguished. What was done amounted only to modification of original obligation, and not its novation. C. C. 2187.
    The judge a quo fails to make this distinction, and holds that original obligation is novated.
    Applicability of C. O. 2195, on which lower judge relies, denied. Law governing this case is C. CJ. 2387.
    But even if C. C. 2195 he applicable, case is with defendants, for there was express, reservation by the creditor of the mortgage collateral.
    Maturity of a note does not afflict right to pledge it as collateral security; nor does the surrender of a note to the maker, by party who lias held it as collateral to another note which is paid, extinguish the collateral note. Maker has legal right» to reissue it. 25 Ann. 363 ; 35 Ann. 5 ; 39 Ann. 729, 730.
   Tlie opinion of tlie Court was delivered by

Watkins, J.

The plaintiff, as holder of a junior mortgage on tlie property of the defendant S. X. Ford, has brought this action for the cancellation of tlie inscription of a senior and interfering mortgage, held by tlie defendant William Winter, on tlie ground that the mortgage indebtedness had been paid and satisfied, and tlie note returned to the maker; andón tlie further ground that, if said Ford had reissued said note, it was reissued, after maturity, to Winter, without a valuable consideration, and that lie was not a bona fide holder thereof.

J. G-. McWilliams was cited as one of the defendants, but the reco.rd discloses that he has no interest in the transaction. The principal defendants are S. R. Ford and William Winter, and their contention is that Winter holds the said senior mortgage as collateral security for the payment of certain rent notes due by Mrs. Bourqnin to S. N. Ford, and by him endorsed, certain other indebtedness from the Fords to Winter then existing, and all future indebtedness that might be contracted by them — Winter agreeing to deliver same to A. Cohn as owner, as soon as all indebtedness to him was satisfied. Winter claims to have advanced, under this agreement, $1290 00, and for this sum, and the balance due on rent, he asserts his right, to hold and retain the mortgage note as collateral security.

The judge a quo sustained the demands of the plaintiff in part, to the extent of holding that the obligation of S. R. Ford had been novated, by reason of .the cancellation of the Bourqnin rent notes, in January, 1889, and the acceptance of other notes of Martin & Burns, as lessees, and others of Ford, in their stead; and he ordered the mortgage cancelled to the extent of $5808 06, thus leaving it in operation and effect as to the remainder of the Ford’s indebteness to Winter.

Of this judgment both parties complain.

The salient facts are these :

On the 10th of June, 1886, S. R. Ford executed a promissory note for $7000, due at twelve months, payable to his own order, and endorsed and delivered same to McWilliams, McCutcheon & Demining, private bankers, as collateral security for his account which was then owerdrawn to the extent of $10,000.

Subsequently this bank became merged into the Commercial Rational Bank, and he continued business with it as he had done with its predecessors. Their dealings were continued until the 24th of February, 1387, when Ford settled his indebtedness, and the bank surrendered the collateral.

On the 26th of February, 1387, Ford executed his note to his own order, for $3,610 20, and endorsed and delivered it to Adolph Cohn for a debt he owed him, and also delivered to him, as collateral security therefor, the $7000 mortgage note which had just been surrendered to him.

In April, 1887,' S. R. Ford leased his warehouse to Mrs. M. L. Bourqnin, at a rent of $141 66| per month, for a term of five years, and for which sums she executed her notes.

During the following September, Ford, having found himself in a situation which required additional funds, he sought to discount the Bourquin rent notes to Wm. Winter. He expressed liimself as being willing to discount the paper, but required additional security. Ford then applied to Adolph Cohn for the $7000 mortgage note, to place it with Winter, and he gave his consent, provided he was fully protected. He surrendered the note to Ford on the 16th of September, 1887, and he executed a receipt to Cohn which concludes thus : “The said Winter binds himself to protect Cohn to the amount of the said note of $3610 20.”

On the same date Winter executed to Ford a receipt for the $7000 note, as a collateral security for the payment of the Bourquin rent notes, an acceptance of S. N. Ford for $300, and for any other sum of money he might loan W. P. Ford on notes, or acceptances thereafter; and therein stipulated for its surrender to “ Adolph Colm, the .present owner,” when the rent notes shall have been paid and also all the indebtedness of the Fords.

It must be borne in mind that this transaction occurred subsequent to the maturity of the $7000 note; but that the one with A. Colm took pla.ee before it went to maturity.

In the meanwhile S. N. Ford had continued his account with the Commercial National Bank; and on the 29th of June, 1887 — prior to ihe transaction with Winter — he executed and delivered to the bank a $10,090 mortgage note. He also executed on the 5th of January, 1888— subsequent to the Winter transaction — a $5000 mortgage note, and delivered it to the bank; both of these notes being collaterals for his account.

Becoming solicitous in reference to Ford’s account, the officers of the bank requested him to make arrangements to close it up and he transferred his business to the plaintiff’s bank, and on the 7th of March, 1888, he executed in plaintiff’s favor two notes of $10,000 each, and secured them by special mortgage on his warehouse and various other properties in the City of Shreveport.

On the same date the sum of $11,500 was paid on Ford’s checks, to the Commercial National Bank, and the $10,000 and $50.00 mortgage notes wore surrendered and the mortgages canceled, by direction of the plaintiff. Home additional advances were made to Ford, witli aresultigg balance of $18,720 07 against him, for which suit was filed on March 19, 1889, demanding the foreclosure of plaintiff’s mortgage.

Oil the same date the, present suit was filed in aid of the former one.

The, proof does not disclose that there was'any subrogation of the two foregoing mortgages, to the plaintiff, either legal or conventional. The very object Ford had in view, in consenting the $20,000 mortgage, was to raise funds to pay off the other two, and that was the first thing lie did after he had opened an account with the plaintiff; and immediately afterwards they were canceled and erased from the mortgage records.

In January, 1889, the lease of Mrs. Bourqnin was canceled by the mutual consent of the parties, and her remaining rent notes were surrendered to her. At the same time, a new lease was made of the warehouse to Martin & Burns for the unexpired term of the lease, at $100 pier month, and Ford gave his personal note's for the difference of $-11 (10 per month, the latter being that much less than the former.

These notes were given to Winter in lieu of the Bourqnin notes, and he continued to hold in possession, as collateral security, the $7000 note.

Quite a number of witnesses were introduced for the parties on either side, who detailed the particulars of these dealings and transactions without throwing much additional light on the crucial questions in the case. There arc throe :

.1. Whether S. iS. Ford had the legal right to re-issue the mortgage note before, maturity, or after maturity.

2. Whether Winter obtained a valid title to the note as collateral security.

3. Whether the transaction in reference to the Bourqnin rent noins liad the effect to novate the. debt secured by the-pledge of the note- as collateral security, and thus extinguish it.

i:

The note in controversy was executed and issued only as a collateral security. At the date of its issuance and execution, S. N. Ford did not owe McWilliams, personally, a single dollar; anil when the noto and mortgage were handed to him he obtained from him no value in exchange. When he received them, McWilliams placed them with his bank as collateral security for Ford’s account. When same was subsequently settled and paid, this collatteral paper was surrendered. It was then not due. When it again reached the hands of Ford same possessed no intrinsic, value.

This court has frequently recognised the validity of such dealings, and the legality of the issuance of such paper, and its use in the course of commercial dealings. Morris vs. Cain, 39 Ann. 730; Bank vs. Cason, 39 Ann. 866; Mix vs. Creditors, 39 Ann. 730; Lanatta vs. Bayhi, 31 Ann. 229; Sadler vs. White, 14 Ann. 177; Chaffe & Sons vs. Whitefield, 40 Ann. 631; Lehman, Abraham & Co. vs. Godbury, 40 Ann. 219; Gibert vs. Seiss, 40 Ann. 667. See also, to the same purport, Daniel on Negotiable Instruments, Sections 827 and 830, which quotes with approval Prior vs. Shaw, 20 Eng. Law and Eq. 103; Blanchard vs. Stephens, 3 Cush. 168, and Manning vs. McLeur, 36 Ill. 498, which maintain the doctrine that the holder of collateral, or accommodation paper obtained before maturity, is deemed a holder for a valuable consideration, in the ordinary course of trade, and free from latent defenses on the part of the maker. And in Morris vs. Cain, 39 Ann. 712, we held that when notes executed and used as collateral security, were returned upon the payment of the'debt secured, to the maker, it was legal and competent for him to re-issue them as collateral security for other indebtedness, before their maturity. Schepp vs. Smith, 39 Ann. 5.

But plaintiff’s counsel strenuously resist the idea of such collateral paper, secured as it is by a dormant mortgage in favor of a nominal payee, while it is in the possession, of the maker, being by him re-issued after the apparent maturity of the note. But it is difficult to perceive the basis on which this pretension rests, as, under the authorities cited supra, collateral paper, like accommodation notes, is controled by precisely the same rules, as paper which is primarily issued for value — once the collateral paper has been issued and placed as security.

Of this opinion was the district judge, and hence he maintained the legality of Ford’s re-issuance of the $7000 note, after its maturity— if such were the case. There is practically no difference of opinion with regard to the validity of this note, as collateral security in the hands of A. Cohn, as ho received it from Ford on account of an unquestioned indebtedness, before the date of its maturity.

There is a fact of importance, which should be considered just here; and it is, the transaction between Cohn and Ford, and Ford and Winter, which took place shortly after the maturity of the collateral.

From the evidence it appears that W. P. Ford was the mutual agent, and mandatary of all the parties, in its confection and completion, and it was a perfect understanding with Cohn that he was “to be protected.’’ JUs receipt so states. Hence Winter, in obtainining the note from Cohn as pledgee of Ford, acquired a limited interest in it, which we need not define, and cannot, because Cohn is not a party to this suit, and cannot be bound by our decree in this case; and because it will subserve our present purpose to ascertain the time, source and circumstances of Winter’s acquisition of the paper as collateral security. He acquired it from Cohn, and in his receipt obliged himself to return it to Cohn when: 1. The Bourquin notes were paid; 2. The W. P. Ford acceptance was satisfied; 3. And all other indebtedness of the Fords was settled. To this pledge, S. N. Ford, the maker, consented.

Mr. Daniel says that although a note is transferable after maturity “in like manner and form as before, yet the fact of its dishonor, which is apparent from its face, is equivalent to notice to the holder that lie takes it subject to its infirmities, and can acquire no better title than his transferor had. * *. But there is this limitation to this doctrine, that ii the holder acquired the paper after maturity, from one who became a bona fide holder for value, and without notice, before maturity, lie is then protected by the strength of his vendor’s title.” 1 Dan. Neg. Ins., Sec. 782.

Tile same learned author says “ the general rule, that the purchaser of overdue paper can stand in no better position than his transferor, does not apply, so far as to invalidate bills and notes drawn, indorsed or accepted for accommodation, overdue at the time they are negotiated, or transfered, it being considered that parties to accommodation paper hold themselves out to the public, by their signatures, to be bound to every person who shall take the same for value, the same as if it were paid to themselves. And the fact that the purchaser knew that the paper -was so drawn, indorsed or accepted for accommodation does not weaken his position.” Ibid, Secs. 726, 786.

He says further: “It is to be observed that, as a general rule, the purchaser can never be placed on a worse footing than his transferor, although lie himself could not, in the first instance, have acquired the vantage ground occupied by such transferor. And therefore, even if he have notice that there was fraud in the inception of the paper,’or that it was lost, or stolen, or that the consideration had failed between some antecedent parties, of the paper be overdue and dishonored, he is, nevertheless, entitled to recover, provided his immediate vendor was a bona fids .holder for value, unaffected by any of these defenses. As soon as the paper comes into the hands of a holder, unaffected by any defect, its character as a negotiable security is established; and tlie( power of transferring it to others, with the same immunity which attaches in his own hands, is incident to his legal right, and necessary to sustain the character and value of the instrument as property, and to protect the bona fide holder in its enjoyment.” Ibid.'Sec. 803. These principles are sanctioned and -well grounded in authority. Howell vs. Crane, 12 Ann. 126; Cotton vs. Sterling, 20 Ann. 282; Cook vs. Larkin, 19 Ann. 507; Commissioners vs. Clark, 94 U. S. 285; Cromwell vs. County of Sal., 96 U. S. 51; Hoffman vs. Bank, 12 Wall 181; Henerth vs. Bank, 34 Ind. 380; Momeyer vs. Cooper, 35 Iowa 257; Haskill vs. Whitman, 19 Mo. 102; Hogan vs. Moon, 48 Ga. 156; Woodworth vs. Hunter, 40 Ill. 131; Bassett vs. Avery, 15 Ohio St. 299; Boyd vs. McCain, 10 Mo. 118; Watson vs. Flanagan, 14 Tex. 354; Robinson vs. Reynolds, 22 B. 196.

Many of the foregoing authorities are cited by Daniels, and they fully support the fundamental principles he lias announced. While they do not in terms embrace collateral paper, it comes clearly - within the scope and meaning of them, and, therefore, it is equally clear that it may be reissued after maturity as other paper ; and when once reissued as security by a bona, fide creditor, before maturity, it may be by him passed, or assigned to another, after its maturity, and such other person will be protected by the good faith of his transferor.

Under the circumstances of this case this is, in our opinion, the position occupied hy Winter.

II.

The argument of the second proposition became, unavoidably, blended with the first. As intimated in the first portion of our opinion, we regard it as a well established fact that the plaintiff did not acquire any rights of lien or security by virtue of his payment of the $10,000 and $5000 mortgage notes of Ford; and it is equally clear that, whatever may have been Ford’s statement to plaintiff relative to the details of his indebtedness, it was in the power of plaintiff to have protected himself by having procured a certificate of mortgages, d'liis he did not do. The title of Winter is therefore clear.

III.

The articles of the Civil Code defining novation are few and simple.

Article 2187 provides that “the pre-existent obligation must bo extinguished, otherwise there is no novation ; if it be only modified in some parts, and any stipulation of the original obligation be suffered to remain, it is no novation.”

Article 2190 declares that “novation is not presumed; the intention to make it must, clearly result from the terms of the agreement, or by a full discharge of the original debt.”

In this case there was no plea of novation, but, as we are informed by the opinion of .the learned district judge, and the brief of defendant’s counsel, the novation relied upon as having extinguished the obligation which was secured by the mortgage collateral, is that of the substitution of a now debtor in the lease contract with Ford.

■On this question the evidence is that Winter contracted with Ford to purchase, or discount the Bourquin rent notes, on Ford furnishing the $7000 mortgage collateral, through the dealings detailed with Colin ; and, at the name lime, and as an integral part of the same transaction, Winter contracted to pay W. P. Ford’s draft ón Mm, in favor of S. H. Ford, for $300, and, in the future, to furnish the Fords additional means on notes and acceptances. The proof shows that $1290 additional money was furnished by Winter. He held this collateral paper for the whole of this indebtedness from the commencement. That was a perfectly legitimate transaction, and it was but one, indivisible obligation and agreement. Whether it was binding and conclusive on Colm we cannot say, as he is not a party, now.

By the elimination of the Bourquin notes .from the contract, the contract between Ford and Winter was not novated, for two reasons: First, because “the pre-existent obligation” of Ford to Winter was not extinguished, but only modified. R. C. C. 2187; second, because the intention to novate that obligation does not clearly result from the terms of the agreement.” R. C. C. 2190.

On the contrary we are of the opinion that their intention on this subject was just to the reverse.

Hor can it be correctly argued that such was the legal effect of their convention, in respect to the plaintiff as a mortgage creditor of Ford and a tMrd person. True it is, that article 2195 of the Civil Code declares that “ the privileges and the mortgages of the former credit are not transferred to that which is substituted to it, unless the creditor has expressly reserved them.” The privileges and mortgages indicated are rather those primarily securing obligations than such as secure collateral paper. TMs is evidenced by the language of the following article, which says that “ when novation takes place by the substitution of a new debtor, the original privileges and mortgages of the credit cannot be transferred on the property of the new debtor.”

Who is the new debtor in tMs case ? Of course the new lessees are Then it is clear that it is the mortgage, or lien of the original credit that was in the mind of the Legislature when it enacted the law. As we view this transaction it was the contract of indorsement by Ford and his other obligations that the collateral was intended to secure, and that it was never novated or extinguished, nor the amoimt of his obligation reduced.

Entertaining these views we feel bound to amend the judgment appealed from, by rejecting the demands of plaintiff in toto. It is, therefore, ordered and decreed that the judgment appealed from be so amended as to reject and clissallow the demand'of the plaintiff in toto, and as, thus amended the same be affirmed, and that the plaintiff and appellee be taxed with the cost of both courts.

Mr. Justice MoEnery dissents from the opinion of tire court and reserves the right to file a dissenting- opinion.


author: McEnery, J.

text:
    No. 257.
    Succession of Nathan Pickett and Tutorship of His Minor Heirs et al. vs. James A. Pickett et als.
    CONSOLIDATED.
    Where the attorney of a succession files a final account of said succession for the udministrator who liad previously died, the account and opposition are absolute nullities aud said account cannot be received and homologated.
    The proper proceeding is for those interested to bring a direct action against the succession of the deceased administrator.
    A PEAL from the Second District Court, Parish of Bossier. Boone, J.

      Land & Land for Executor, Appellee:
    1. No judicial proceedings can be carried on in the name of a dead man. 5 R. 508; 5 Ann. 737; 8 Ann. 80; 9 Ann. 241; 22 Ann. 23; 33 Ann. 1013.
    2. An administrator of an administrator cannot file an account in a succession of which he himself was never the legal representative. 1R. 403 ; 6 R. 435; 30 Ann. 485; 40 Ann. 703.
    3. Estoppel must.be pleaded. 33 Ann. 744. Minors can never be estopped. 16 Ann. 98. Minors and married women, if they can be estopped at all, by pleadings or omissions, must be shown to have known the real facts. 38 Ann. 824; 33 Ann. 1194. Opponents who know the facts, could not he misled by an erroneous allegation of facts. Hence estoppel does not apply. 30 Ann. 50.

      J. A. Snicler aíicL B. J. Looney for Graved heirs, Appellees.
    1. There can be no judgment against a dead man or a succession unsupported. Benard vs. Yigneaud, 1N. S. 9; Surgí vs. Colmer, 22 Ann. 23 ; 29 Ann. 650; 30 Ami. 692, 694 ; 34 Ann. 520; 32 Ann. 05; 5 Rob. 508; 5 Ann. 737; 5 N. S. 429 ; 7 N. S. 169; 2 La. 169 ; 4 La. 154; 8 La. 290; 10 La. 488, 220, 377; 14 La. 293; 26 Ann. 386; 34 Ann. 520.
    2. The succession of Nathan Pickett was closed on the acceptance of the heirs and partition on June 7, 1858, and prescription ran from that date. Walling vs. Howell, 34 Ann. 1104» Wade vs. Caspari, 24 Ann. 211; Byrne vs. Garrett, 23 Ann. 587: Britain vs. Allen, 31 Ann. 264; Hite vs. Yaught, 2 Ann. 970 ; also 14 Ann. 144; 3 Ann. 714; 12 Rob. 509; Rev. Code 3068; 26 Ann. 580; 2 Ann. 160; 15 La. 60; 36 Ann. 27; 2 Ann. 927; 1 Ann. 330; 37 Ann. 221.
    3. The claim sought to be revived is exclusively in favor of the interests of the heirs of Nathan Pickett, and founded on the alleged frauds and dehits of W. M. Pickett-, and it is stale, fictitious ami collusive. State vs. Burbank, 22 Ann. 300; 3 N. S. 48; 17 La.J2D; C. C. of 1825, 1887, 1889; 1 Ann. 69; 5 Rob. 101; 19 Ann. 333, 490; 80 Ann- 1002, 1138.

      Young <& Thatcher, Alexander & Blanchard and Watkins & Watkins for Administrator, Appellant: ‘
    1. “Ono who judicially asserts a fact as the basis of a right touching the matter in controversy, cannot afterward change his position and assert the contrary.'’ 31 Ann. 100; 32 Ann. 292; 33 Ann. 732; 37 Ann. 107, 320; 39 Ann. 446; 40 Ann. 186.
    •‘The minority of some of the plaintiffs cannot protect them from this estoppel. They are bound by the acts of their legal representatives, acting within the scope of the powers conferred upon them by law. Barrow’s Heirs vs. Barrow, 36 Ann. 650; 34 Ann. 813.
    2. The sale of the property of a succession does not amount to a partition among the heirs. An administrator may be appointed though the property of the succession has been sold. 2 Ann. 412.
    Partial and provisionl partitions do not amount to a final partition. 15 L. 517.
    “A succession is and ideal being, a unity. It cannot- exist as to one heir and be extinct as to another. To terminate the existence of a succession the heirs must all be sitijw'is, and have capacity to render themselves, by their acts, unconditionally liable for the succession debts.” 30 Ann. 388.
    3. Ho final account of administration was ever homologated. Ho prescription runs during the pendency of a suit. This court has held that this case was pending all the time. 32 Ann. 991.
    4. “‘When the same person is at the same time administrator, and also tutor of a part of the heirs, his possession of the estate must be held to be as administrator.” 30 Ann. 743; 33 Ann. 594; Manning’s unreported cases 404.
   The opinion of the Court was delivered by

McEnery, J.

Nathan Pickett died in 1853, and William Pickett qualified as administrator of his- succession, and as tutor of the minor children.

J. B. Gilmer was the surety on both bonds.

W. M. Pickett, tbe administrator and tutor, died on tbe 8th day of July, 1866, and on the 9th day of July the attorney for the succession, ignorant of his death, filed a final account of the administration of Nathan Pickett’s succession. Oppositions to this account were filed by the heirs of Nathan Pickett, but there was no judgment rendered homologating the account, or any action taken in the case. E. S. Dortch, who was appointed and qualified as administrator of the succession of W. M. Pickett, filed a rule to show cause why the account filed by W. M. Pickett as administrator of the succession of Nathan Pickett, deceased, on July 9th, 1866, should not be homologated. The heirs of Nathan Pickett were cited, and the heirs of J. B. Gilmer, the surety on tlie bonds of W. M. Pickett as administrator and tutor.

The heirs of Gilmer filed five exceptions to the motion to revive, one of which was only passed upon by tbe judge a quo, from which this appeal was taken by Dortch, administrator, et als.

The exception considered by the lower court alleges that the filing of the account, the homologation of •which is sought by the plaintiffs in the motion to revive, is an absolute nullity, as the administrator Pickett was dead when the account was filed.

There have been several suits since the filing of the account in which it is alleged that W. M. Pickett died in August, 1866. But the fact of his death having occurred on the 8th day of July, 1866, seems to be well established, but it was not definitely ascertained and alleged until 1882, when exceptions were filed in the rule taken by the then administrator to revive and homologate the account filed July 9, 1866.

The exception now under consideration, although filed in 1882, was .not tried, because of other exceptions filed and tried prior thereto, from which appeals were taken.

It is alleged by the administrator and heirs of Nathan Pickett, that the heirs of Gilmer are estopped from opposing the motion to revive as the date of W. M. Pickett’s death had been alleged by them in judicial records to have occurred on the — day of August, 1866, in the suit of the heirs of G. B. Gilmer to homologate said account and to be discharged as surety, and the suit of S. W. Vance, tutor of his daughter, S. E. Vance, one of the Gilmer heirs, to revive said account and to homologate the same. We are of the opinion that the facts disclosed in this case do not justify the plea of estoppel. The suits and judicial proceedings referred to and the admissions therein in relation to the day of the death of W. M. Pickett were made in error, under the belief that the account had been filed during the lifetime of W. M. Pickett, administrator of Nathan Pickett.

The attorney for the succession of Nathan Pickett filed the account believing the administrator was alive. When he applied for the administration of the succession of the deceased administrator, he perpetuated this error in alleging that W. M. Pickett died in. -August, 1866, after the date of the filing of the account. Finding this admission is a succession proceeding of which theirs were to form a part, and to which they were responsive, it was but natural that they should look among said records for facts relating to all matters connected with the succession. The heirs of Gilmer did not originate the fact as stated, but adopted it, from other judicial records to which they had a right to look for information. It was the recital of an alleged fact by them which they found in an administrator’s account, alleging the existence of the administrator, whose account by public advertisement and notice they were invited to scrutinize and were thus led to believe that the accountant was alive when the account was filed and opposition by the heirs made thereto.

Parties are held to the allegation which they make in judicial proceedings and they are not permitted to deny what they have solemnly declared to be a fact. But to this rigid rule there are exceptions and the present case comes within them.

What object could be accomplished by the revival of the account and opposition and the suit of S. W. Vance et als. vs. James A. Pickett?

It is evident that the administrator of W. M. Pickett can not administer as such administrator the succession of Nathan Pickett. Only an administrator appointed for that purpose can administer that succession.

If the deceased administrator of Nathan Pickett’s succession owes that succession any money or property, or is responsible for maladministration, the administrator of said succession, or the heirs, must bring suit against the succession of the deceased administrator.

After the death of W. M. Pickett the succession of Nathan Pickett was without an administrator. No one could act for that succession, and the account filed when W. M. Pickett was dead is an absolute nullity. It never had any existence, and can be given none by any judicial proceeding.

No judicial proceedings can be carried on in the name .of a deceased person. No valid judgment can be rendered for or against him. If the account filed July 9th, 1866, were received, there would follow of necessity a judgment against W. M. Pickett, as the administrator of Nathan Pickett. It would be an absolute nullity. 29 Ann. 650; 34 Ann. 520.

We conclude that the account filed July 9th, 1866, in the succession of Nathan Pickett and the opposition filed thereto, and the suit of the Gilmer heirs to revive and homologate said account are absolute nullities, as W. M. Pickett, the administrator, was dead when said account was filed.

Judgment affirmed.


author: Bermudez, C. J.

text:
    No. 10,299.
    The State of Louisiana vs. Dominique Natal.

      A. municipal corporation has the power to contract with an individual, to authorize him to , build a market house, rent stalls and collect dues, during a specified period, with the consideration that the land, which is his property, and the improvements upon it, shall be conveyed to the city, and that the same, at the expiration of the term, shall be turned over absolutely, in good order to the corporation.

      The land and eonstruetions become municipal property at the signing of the contract, and the ownership becomes absolute at tlie expiration of tlie time in tlie city.
    Tlie market thus put up is a public market, and any private market found within the prohibited distance of six squares from, it, is there kept in violation of law.

      APPEAL from the First Recorder’s Court, Parish of Orleans. Murphy, J.

      T. MeO. Hyman, Assistant Cits’- Attorney, and Henry P. Dari for Plaintiff and Appellee.

      Branch If. Miller for Defendant and Appellant.
   Tlie opinion of tlie Court was delivered by

Bermudez, C. J.

'Tlie defendant seeks tlie reversal of tlie judgment of a-Recorder’s Court sentencing liim to the payment of a fine and in default, to imprisonment, for violating a city ordinance which prohibits the keeping of private markets within a certain distance from a public market, known as the “Keller Market.”

His objections to liability are: That the named market, is not a public but is a,private market, that tlie ordinance on which the prosecution is based has been repealed and that, if it exist, it is the creation of a monopofy and an invasion of his immunities and privileges as a citizen of the United States, all, in violation of the Constitution of the United States and amendments of articles 5 and 14 of the same and of the Constitution of Louisiana.

In our inquiry, we will invert those objections.

1. The defence charging the unconstiturionalffy of tlie law relative to private markets in New Orleans and of the ordinances adopted by the City in furtherance of it, is obsolete and exploded. In several instances which it would be tedious to enumerate, it has been unqualifiedly overruled. See 39 Ann. 439.

2. The defence that the ordinance has been repealed is utterly without merit. It was once pressed by the same defendant in a similar prosecution and was properly overruled. State vs. Natal, 39 Ann. 439. He has not shown why the ruling should be departed from.

So that, the only question remaining to be considered is, whether the Keller market is or not a public market, for, if, true it be that it is a private market, then the law and ordinances which prohibit the keeping of a private market within a certain distance from a public market, do not obtain, as tlie public market is the initial point from which the distance is to be computed.

3. Hie defendant contends that the City had no right to make it a public market for the reason that the land and the improvements are not city but private property and that the private market ordinances are designed to protect only those markets which are owned, operated or leased by the City.

The Record shows that in 1867, in furtherance of an ordinance duly passed, the City of New Orleans and John II. Keller entered into a contract whereby, on the conveyance and transfer by the latter to the former, of his title to a square of ground which belonged to Mm in this city, he would be allowed to construct thereon a market and collect the revenues thereof for the term of fifteen years, subsequently extended to thirty years, the same to.remain subject to municipal supervision, control and regulations, actual and prospective, all the constructions and accessaries thus put up tó be turned over, at the expiration of the term, without any compensation and in good order, to the City of New Orleans, who was thereafter to be the absolute owner of both the land and the improvements erected upon it.

The City had the undoubted right to enter into such a contract. She possesses, by her charter then in existence, (Act 1856, No. 164, Sec. 23, all the powers necessary for a proper administration of a municipal government. Previous to that charter, she had been recognized by the then Supreme Court, the right of establishing public markets (Morano vs. Mayor, 2 La. 217) and since then, this right was again admitted. Cougot vs. New Orleans, 16 Ann. 21, also Weymouth vs. City, 40 Ann. 344.

lfy the signature of the act evidencing the contract between the City and Keller, the ownership of the land passed from the latter to the former, subject to his right to put up the' buildings and collect the revenues during the prescribed period; and the buildings themselves) during process of construction, up to completion, became the property of the City, with the same qualifications. Both on becoming municipal property, acquired the character of public property and as such, an immunity from taxation.

It is proper to notice, that the market, by the terms of the contract, was to remain subject to the supervision and control of the City and to all existing and eventual municipal legislation affecting such establishments.

In the case of Leclaire vs. Davenport, 13 Iowa 210, the court held, that under an ordinance of a like tenor and purport, as that passed by the city in this case, a city had the power to authorize the erection of market houses by an individual, to declare the same public markets, and to covenant to protect the owner in the enjoyment of the privileges conceded.

In a kindred case, the Supreme Court of Texas held that a municipal corporation may contract for the building of a market house, with an individual, conceding to him in consideration market privileges, with the right to lease stalls and collect rents, and also an exemption from taxation. City of Palestine vs. Barnes, 50 Tex. 539.

In the case at bar the defendant occupies inconsistent and self-destructive attitudes.

While in one breath he claims that the market is not a public, but a private market, in another he insists that it is a private market, divided into stalls, leased to butchers.

The fact of such division carries with it the implied admission that it is a public market, for, such markets are the only ones which- are divided into stalls, leased to butchers. Private markets, on the contrary, are those which are kept by individuals for their personal use and advantage, without any letting out of stalls to others, and in which only certain articles of food are permitted to be offered for sale.

Conceding, as is urged by the defendant, that the private market ordinances were intended to protect solely the markets owned, operated ox-leased by the city, it is apparent that, as the market in this case appertains to that class, any private market found within the specified distance, is there kept in legal contravention.

No distinction can be drawn between the facts, and the ruling in Weymouth vs. City, 40 Ann. 344, and those in the instant case, as in both, the market is city property.

It is unnecessary to determine whether, when the land and building's upon it, used as a market, belong to a private individual, the market can be considered as a public nxax-ket, as those features are not presented and the question is not at issue in the present controversy.

The defendant has failed to show that the market in question was subjected to the restrictions affecting- private markets.

It is admitted that the defendant’s market lies within the prohibited distance.

For violating the law, the defendant was properly sentenced.

Judgment affirmed.


author: Fenner, J.

text:
    No. 10,220.
    Searing Taylor, Executor, vs. City of New Orleans.
    1. Tlie action of an attorney for liis professional fees and emoluments is barred by the prescription of three years, whether tlie services for which they are claimed be rendered under a contract or under a quasi contract.
    2. The authority of an attorney to represent his client is always presumed, and where there is no denial of such authoi-ity the services stand as rendered under an implied contract outlie part of the client to pay their value.
    3. Where a claim for jirofessional services made against a city is referred to experts, without other action, such a reference does not imply an acknowledgment of the debt interrupting prescription.
    APPEAL from the Civil District Court, Parish of Orleans. Houston, J.

      TJios. J. Semmes <& Legendre, for Plaintiff and Appellant.
    TP". B.Sommerville, Assistant City Attorneyfor Defendant and Appellee.
   The opinion of the Court was delivered by

Fenner, J.

The plaintiff, as legal representative of the late Miles Taylor, brings this action for fees due the said Miles 'Taylor on account of professional services as attorney at law in the famous Gaines litigation.

The claim was met by various defenses amongst which was the plea of prescription of three years, which was sustained in the Court below.

Article 3538 of the Civil Code, provides that the action of attorneys for their fees and emoluments ” is prescribed by three years.

Miles Taylor died on Sept. 23d, 1873. This suit was brought in February, 1883.

The statement of these two facts necessarily throws upon plaintiff the necessity of establishing one of two things, viz: Either (1) that the prescription of three years is not applicable to his claim, or (2) that such prescription has been prevented by some valid cause of interruption or suspension.

It is claimed by the learned counsel of plaintiff that, as to a large, por tion of plaintiff’s claim, the prescription of three years is not applicable.

Tlie basis of this contention is, that the services referred to were rendered outside of tlie contract between the City and Miles Taylor, that? therefore, the obligation of the City to pay for them arose, not from contract, but from gwasi-contraet, and that quasi-contracts are prescriptible only l>y ten years.

We do not find anything in this record to indicate that, in the rendí tion of these services, Miles Taylor acted as a mere negotiorum gestor, without authority of the city. In absence of contrary proof, the law firmly presumes that attorneys act within the authority delegated by their clients. The City never, at any time, disputed the authority of Mr. Taylor to represent her in the litigation referred to.

The only point over raised about the matter was that made by Mr. Taylor himself to the effect that these particular services were extra and not covered by the fixed remuneration stipulated in a particular contract, and were entited to additional remuneration according to their value. He simply claimed on a qnanttmi meruit for these services beyond and outside of the fixed fee stipulated in a particular contract for other services.

In presence of Mr. Taylor’s assertion of authority by appearing and acting in the' name of his client, and in absence of any denial thereof by the City we are bound to assume that he acted with such authority, and that the City’s obligation to pay arose, not from a </u«si-contract, but from an ordinary contract express or implied.

Therefore, the predicate, on which the contention rests, is not well-founded. Were it otherwise, however, the stubborn fact remains that the action is for “fees and emoluments” of an attorney, and whether the services for which they are claimed, wore rendered under a contract or a quasi-contract, the action equally falls under the prescription pleaded. Authorities are quoted holding that where a negotiorum gestor pays debts due by another, his claim lor remuneration does not fall under the prescription applicable to the debts themselves, because his action is not on the debts, but is the action de in rem verso, on the quasi-contract arising from his act in paying them.

In one of the cases, the court said “The plea of prescription of three years cannot prevail, because if Labuzau had no authority to borrow money, then the action is not an action for money lent, because Scott did not borrow the money, and for the same reason; it was not a matter of account, for there were no mutual dealings between the Scott and plaintiff. The action arises out of a (/«cm-contract and is prescribed by ten years.” Garland vs. Scott, 15 Ann. 143; Baton Rouge vs. McDonough, 10 Ann. 395; Owen vs. Holmes, 12 Rob., 144.

But obviously the case at bar is very different, where the action is for attorney’s fees brought directly by the attorney himself who rendered the services, and whether rendered as a mandatary or as a negotiorum gestor, the law bars such an action in three years. There is no more ground for claiming that the prescription of ten years for quasi-contracts is applicable, than there would be that the like prescription for actions of mandate would govern.

Let us next inquire whether any interruption of prescription has been shown. Such interruption is claimed to result from the following acts of the city.

It appears that Mr. James McConnell, who has been associated with Mr. Taylor in these cases, had presented a petition to the City Council, asking that provision be made for payment of his services. On this petition the Council adopted the following ordinance, No. 7220 A. S.

Be it Besolved, That the sum of $2500 be and the same is hereby appropriated to James McConnell, Bsg., on account for professional services rendered in the Gaines’ cases, as detailed in Ms letter of June 16, 1881; provided, however, that the amount of said indebtedness shall be hereafter determined by two competent experts without delay; one to be selected by the Mayor of the City of New Orleans and the other by the said McConnell, and in the event of their failing to agree, said experts to select an umpire, whose decision shall have the force of the thing adjudged between said parties,” etc. Adopted by the City Council July 19, 1881.

Shortly afterward the present plaintiff presented a similar petition in relation to the services of Mr. Milos Taylor. The only action taken thereon is the adoption by the Council of the following report of a committee: “Your committee to whom was referred the petition of H. H. Taylor, Esq., attorney for the heirs of Miles Taylor, deceased, beg leave to return said petition to your honorable body, and recommend that said petition be referred to the committee of experts appointed in the matter of James McConnell.”

No action was ever taken on this claim by the experts, nor are we advised that the City Council has ever passed any other resolution in regard to it.

We are at a loss to conceive how, by any stretch of liberality, we could construe this action to be an acknowledgment of the debt claimed by Mr. Taylor. It is certainly a very strained inference which the counsel asks us to. draw from this resolution, that it had the effect of applying to Mr. Taylor’s claim all the statements and provisions contained in the ordinance No. 7220, with reference to the claim of Mr. McConnell. We can find no warrant for extending those provisions beyond the subject matter to which they expressly refer. We are not authorized to put into the mouth of the Council words which it has never uttered, and acknowledgments which it has never made. We are bound to hold that the Council meant what it said, and no more; and it is impossible -to say that the reference of a claim to experts is an acknowlegment of a debt.

Whilst regretting that the meritorious services of a distinguished advocate in a historical litigation should go unrewarded, the law must be our guide in this case as in that of the humblest litigant.

Judgment affirmed.


text:
    No. 10,297.
    Cohn & Feibelman vs. C. H. Parker, State Tax Collector.
    On© engaged in cutting and making coats and pants, out of jeans cloth which has been already manufactured by another, is not a manufacturer of textile fabrics in the sense of article 207 of the constitution; and “the capital,'machinery, and other property employed” therein, are not exempt from taxation.
    APPEAL from the Civil District Court, Parish of Orleans. King, J.

      Leonard, Maries c6 Bruenn for Plaintiffs and Appellants.

      Walter K. Rogers, Attorney General, and Wynne Rogers, for Defendant and Appellee.
   The opinion of the court was delivered by

Watkins, J.

The tax collector made a seizure of the plaintiffs’ movable and personal property, consisting of a stock of merchandise, being the contents of a store, embracing men’s clothing, and the counters and fixtures, and situated at 70 and 72 Common street, in the city of New Orleans, the plaintiffs having made default in the payment of the taxes assessed on their merchandise in the years 1884, 1885, 1886,1887 and 1888.

They resisted this seizure by injunction, setting up as a bar to the enforcement of said taxes the exemption contained in the two hundred and seventh article of the constitution.

The averment of their petition is that they have been for the past several years, and are now engaged in business as manufacturers of textile fabrics, manufacturing jeans clothing out of raw materials. * * That for the purpose of such manufacture they have employed constantly more than five hands. * * That as such manufacturers they are, under the constitution of the State, exempted from the payment of any license, or property tax upon their said business and manufactory, and upon the capital, machinery, and other property employed in said manufactory.”

• The defendant denies plaintiffs’ right to the constitutional exemption pleaded.

The testimony of the plaintiffs, as witnesses in their own behalf, is that they are, and have been for eighteen or; twenty years, engaged in manufacturing textile fabrics; but- upon their cross-examination they admitted that they did not manufacture the cloth out of which jeans clothing was made — only manufactured coats anil pants, out of jeans cloth, which had been manufactured by others. ■

The contention of plaintiffs involves the construction of article 207 of the State constitution of 1879, which reads as follows : “ There shall also be exempt from taxation and license for a period of ten years from the. adoption of this constitution, the capital, machinery and other property einployed in the manufacture of textile fabrics, leather, shoes, harness, saddlery, hats, flour, machinery, agricultural implements and furniture, and other articles of wood, marble or stone, soap, stationery, ink and paper, boat building and chocolate; provided, that no less than five hands are employed in any one factory.”

A casual inspection of the article is sufficient to show that the interpretation placed upon it by the district judge is correct, and that he properly dissolved plaintiffs’ injunction. It exempts from taxation “ the capital, machinery and other property employed in the manufacture of textile fabrics." It, also, exempts such articles as are employed in the “manufacture of * * leather, shoes, harness, saddlery, hats, etc.” eo nomine. It does not, in terms, exempt from taxation the manufacture of coats and pants, or jeans clothing.

And, to say that it exempts the manfacture of coats and pants, out of jeans cloth already manufactured by another, would be to read into the article an additional exemption not contained in it. Or, to say that the inakingof coats and pants out of a, textile fabric already manufactured, is “the manufacture of textile fabrics,” in the sense of the constitution, would be to confound the terms completely; for the making of the coats and pants presupposes the previous existence of the fabric out of which they are cut and made; and the manufacture of the fabric presupposes the subsequent cutting and malting of the coats and pants.

Hence it is quite clear that one cannot be taken for the other, aud that the cutting and making of jeans coats and pants out of a previously manufactured article, is not, in the sense of the law, “ the maufacture of textile fabrics.”

We do not regard City vs. Arthurs, 36 Ann. 98, as applicable to the question presented here. Tn that case, the payment of the tax demanded by the city was resisted by the defendant on the ground that the property assessed was “a manufactory of fish-lines, ropes, packing and other hempen articles,” and therefore exempt as being “employed in the manufacture of textile fabrics.”

The alleged exemption was maintained by this court, and the defendant relieved from the payment of the tax. Such articles as fish-lines and ropes can only be made by being woven from raw materials, and are themselves “ textile fabrics.” But nets and hammocks made, out of lines and ropes would not be textile fabrics.

The plaintiffs have not presented a case entitling them to relief.

Judgment affirmed.


text:
    No. 10442.
    Vicksburg, Shreveport and Pacific Railroad Company vs. J. M. Sledge.
    By Act 3, Juno 1850, Congress granted certain lands to the State of Louisiana for to aid in tlio construction of railroads. LTo conveyance in violation of tlio terms of this act of Congress to a railroad company could vest-title in said lands to said company. It was a condition precedent to a conveyance of any of tlie sections that the road should be first constructed in sections of twenty consecutive miles each before the road could get title to any portion of the land coterminous with its constructed line. But where the act of the Legislature authorized the road to mortgage said land so granted and the mortgage is executed and bonds issued, secured by the same, the State can not by subsequent legislation abridge the mortgage rights acquired by third parties. Parties who liavo acquire title to the road through a sale by a foreclosure under said mortgage, have the legal title to said land as against a party who claims no title, except by possession, and who went on the land expecting it to be thrown open to public sale and entry. The government of the United States is the only claimant who can contest the right to the forfeiture of said land for tlio non-performance of the condition subsequent required by the act of Congress, as the. State of Louisiana is estopped from declaring the forfeiture by reason of the authorization to the railroad company to mortgage said land.
    The government of the United States, not having asserted by legislative act, or judicial construction the forfeiture for the broach of tiie condition, the apparent legal title is in the railroad company acquiring rights under the forclosure of said mortgage.
    A piaintiff in a petitory action is not hound to show title as against the world against a now trespasser. - •
    APPEAL from the Second District Court, Parish of Webster. Boone, J.

      Stubbs (0 Russell and Wise efi Herndon for Plaintiff' and Appellant.
    1. In a grant of lands by Congress to aid in the construction of a railroad, "‘there be mid hereby is granted,'' arc words of absolute donation; import an immediate transfer of title, and vest a present title in the grantee, though a location of the road and filling of its map is necessary to give precision and attach it to particular tracts. The location and filing accomplishes this.
    2. The condition in such a grant, that “if the road is not completed within a certain time, no further sale shall be made, hut the land shall revert to the United States,” is a condition subsequent.

    3. Time not being the essence of the grant it is not forfeited i2)So facto by the failure of the company to perform the condition, but to enforce the forfeiture action must be taken by authority of Congress.
    4. The company had still a right to construct the road out of time, and until in some way Congress takes advantage of the breach, it is the duty of the government to give the company the benefit of the grant. 8 Opin. Atty. Gen. 244- 256; 11th do 47 ; 16th do 397 - 572; H. R. Ex, Doc. 47th Cong. 29, p. 35, Átt-y. Gen. Brewster; 9 Wall 95; 94U.S.743; 97U.S.291; 103 U.S. 426; 104U.S. 329; 106 U. S. 360; 113 U. S. 629;115U. S. 806.
    5. Eo one can take advantage of the non-performance of a “ a condition subsequent ” but the grantor or his heirs or successors, and if they do not see fit to assert their right to enforce a forfeiture, the title remains unimpaired in the grantee.
    6. On the failure of the company to complete the work, a forfeiture of the grant, if it resulted therefrom, can be enforced only by the United States, by judicial proceedings, or the action of Congress. 21 Wall. GO; 115 U. S. 306; 32 Bed. Rep. 899.
    7. -By the terms of a grant of land to a State to aid in the construction of a railroad within its bounds, the State is a mere trustee or mutual agent of the grantor and the beneficiary.
    8. The grant is to the enterprise and upon the completion of a railroad between the termini - _ named and on the route designated in the grant, its acceptance by the trustee, and certification thereof to the grantor, the trust is at an end and- is terminated ex necessitate.

    9. The road opposite to the premises in controversy, having been completed and accepted, the title, however imperfect whilst encumbered, if it may be so termed, by the uses to which the lands were to be applied, has become perfect and indefeasible. 33 Bed. Rep. 907.
    10. Lists of lands selected by the grantee and certified by the General Land Office convey as complete title as patents. Legal title passes as completely by such certification if patent is not expressly required by law, as though patent issued. U. S. Rev. Stat. See. 2449 ; 6 Land Dec., 543; 115 U. S. 102; 116. U. S. 381.
    11. An estate in fee cannot be defeated for a breach of a condition subsequent by a legislative act, unless the conditionis expressed in the deed. 2 Bl. Com. 153-4; 43ContCom. 120 123; 16 Wall. 223.
    12. The condition subsequent is the resolutory condition of the civil law. The contract is not dissolved of right by failure to comply; the party complaining must either sue for a specific performance or dissolution of contract., C. C. 2046.
    13. .The act of the Legislature transferring the lands to the company contained no provision in terms for forfeiture to the State, nor was-there any subsequent agreement providing for forfeiture, therefore there could be no forfeiture by the State except by judicial proceeding. 92 U. S. 66.
    14. The State had a right iu furtherance of the object of the grant, to make any disposition of the lands it saw fit, “so that it did not cut off the right of the United States to compel the application of the lands to the purposes for which they were grarited or prevent their forfeiture iu case the company fail to perform the conditions of the grant.” 32 Becl. Rep. 900.
    15. The State transferred the lands to the company; specially authorized the mortgage of same to secure the loan to build the road; the mortgage was executed. Third parties * became owners of the debt secured by tbis mortgage; the mortgage was closed and the property and all its rights and privileges acquired by plaintiff with the full permission and in the mode indicated by the State; the State then is privy to all these proceedings and is estopped'from divesting our rested right‘destroying our right as third parties to comply with tlie condition subsequent and thus earn the lands she held intrust for the enterprise. Therefore Act 39 of 1879 is null. 1 Kent, 356; Cooley Cons. 357; 16 "\Valí., 203; Cons. La. 155.
    16. Under the terms of the Act of Congress, the lands have become the property of the railroad complying with the condition subsequent by constructing the road between the termini named and along the route designated.
    17. As against a mere trespasser who sets up no title, i>laiutift'is not bound to show a title perfect against the world. 12 Ann. 748 ; 15 Ann. 76; 35 Ann. 612.

      Young, Drew & Stewart for Defendant and Appellee.
   The opinion of the court was delivered by

McEnery, J.

Plaintiff alleging' ownership to the southeast quarter and west half, and norteast quarter of northwest quarter, east half and northwest quarter of northeast quarter of section 5, township 17, north range 10 west, situated in the parish of Webster, containing 400 acres valued at $2400, brought suit against the defendant now occupying the land, and prays to be decreed the owner of said land, and that the defendant bo evicted therefrom.

Defendant pleads a general denial. lie admits that he is in possession of and occupies the land; that he has been in the possession thereof for twenty-five years, with a view of acquiring it when opened for entry by the United States government. lie alleges possession in good faith, and claims, if evicted, a judgment for the value of improvements placed on said land by him, amounting to two hundred dollars.

By act of Congress, approved June 3, 1856, the Federal government granted to the State of Louisiana, for the purpose of aiding in the construction of a railroad from the Texas line, in tlie State of Louisiana, west of the town of Greenwod, via Greenwood Shreveport a.nd Monroe, to a point on the Mississippi river opposite Vicksburg, every alternate section of land, designated by odd numbers for six sections in width on each side of said road, and in case any of the said odd sections were sold by the United States, or otherwise taken, when the route or line of the railroad is definitely fixed, then by an agent appointed by the government, it was authorized to select, subject to the approval of the Secretary of the Interior, from the lands of the United States, not exceeding fifteen miles from the road, so much in alternate sections or parts as shall be equal to the lands in the six miles which have been disposed of, and provided, that the lands thereby granted shall be exclusively applied to the construction of said road, and shall be disposed of only as the road progresses.

Section 3. That said lands hereby granted to the said State shall be subject to the disposal of the Legislature for the purpose aforesaid, and no other, and tlie said railroad shall be and remain a public highway for the use of the government of the United States, free from toll or charges upon the transportation of any property of the United States.

Section 1. That the lands hereby granted to said State shall be disposed of only in the manner following. That is to say that a quantity of land not exceeding 120 sections, and included in a continuous length of twenty miles of said road may be sold, and when the Governor of said State shall certify to the Secretary of the Interior, that any twenty miles are completed, then another like quantity of land hereby granted may be sold; and so from time to time until sa'id road is completed, and if said road is not completed within ten years, no further sales shall be made, and the land unsold shall revert to the United States. IT. S. Statutes at large, page 18.

The State of Louisiana.accepted the trust in the above recited act of Congress, and on March 11,1857, by act No. 98, session acts of that year, recited in the preamble of said act, in accepting said grant and trust, that—

“Whereas, by an act of Congress, approved June 3, 1856, donating lands to the State of Louisiana to aid in .the construction of railroads within said State, the Vicksburg, Shreveport and Texas Railroad Company is entitled to receive 120,921 acres of land, as shown by* the following statement of the Commissioner of Public Lands.”

The statement from the Commissioner, showing the amount of land that will accrue to said railroad company, is also embraced in the preamble. Section 1 of said act provides “that so much of the land, rights, powers and privileges as are granted to and conferred upon the State of Louisiana by an act of Congress, entitled an act making a grant of lands to the State of Louisiana, to aid in the construction of railroads in said State,’ for the purpose of aiding in the construction of a railroad ' from the Texas line in the State of Louisiana, west of the town of Greenwood, via Greenwood, Shreveport and Monroe, to a point on the. Mississippi river opposite Vicksburg, be and the same are hereby acceqded upon the terms contained in said act of Congress, and the same are all and severally hereby and upon the same terms disposed of, granted to and conferred upon the Vicksburg, Shreveport and Texas Railroad Company, a body corporate, existing under the laws of the State of Louisiana; provided, the said railroad company shall, within ninety days from the approval of this act, accept of the same under the conditions of said act of Congress, by a resolution of its Board of Directors.”

Sec. 2, provided “ that the line of the aforesaid V. S. & T. R. R., as definitely located l>y the Board of Directors as shown by the map of the same now, on fib', in the office of the Secretary of State, and which map is certified to be correct by the President, Secretary and Chief Engineer of said company, be and the same is hereby sanctioned and confirmed as the true line of said railroad and only admitting such slight variations as may be found necessary in the economy of construction.”

Within the ninety days for the delaj’" of accepting the same provided for in Sec. 1, the Railroad Company, accepted, complying with the provision of the act.

The present corporation plaintiff in this suit, controls and operates the railroad along the line and between the termini as designated in the Act of Congress.

It was not completed within the limit of ten years prescribed by the Act of Congress, but was completed and finished “out of time ” in July, 1884, when the Governor certified-to the Secretary of the Interior of its entire construction, between the termini and along the line proposed in the Act of Congress donating the land for the construction of said road.

By act 198, approved the 19th March, 1857, the State of Louisiana, “for the purpose of aiding in the construction of the Vicksburg, Shreveport and Texas Railroad Company granted to said Company ‘ tile full and "perfect right and power to mortgage and hypothecate all or any part of the lands granted by the United States to the State of Louisiana to aid in the construction of said Railroad by virtue of an act of Congress making a grant of lauds to the State of Louisiana, to aid in the construction of Railroads in said State,’ approved June 3d, 1856, and which grant has been accepted by the State of Louisiana by the act of the General Assembly, approved March 11th, 1857.”

Sec. 2, enacts “that said Company shall have the right to include in any such mortgage all the rights, franchises, privileges and immunities of every kind which the State of Louisiana or said Railroad Company has or may have in to, and upon said lands, all which may be fully covered by such mortgage, said mortgage or mortgages may be made to secure any bond or bonds executed by said Company or loans made to said Company or to cover any debt contracted or to be contracted by said Company, and the interest accruing- or to acorné on the same or either of them.” In persuance.of this act authorizing it to mortgage said lands granted and donated to said Railroad Company by the State of Louisiana, in carrying out the object and purposes of the work confided to the State by'the Act of Congress, to construct said road along the line and between the termini mentioned in said act, the Railroad Company on the following September, issued 2,000 bonds of $1,000 each, for the purpose of raising money to build and equip said railroad, and to secure the payment of the same executed a first mortgage upon the entire road, its rights, privileges and franchises, depots, appurtenances, etc., and its lands including those donated to it by Congress and the State of Louisiana. Previous to this mortgage, and only a short time after the acceptance of the grant of land by the Railroad Company by duly appointed agents in accordance with the acts referred to, making a donation of said lauds, the lands were selected, listed and maps made of the same and filed in the Interior Department at Washington, at which time the lands were withdrawn from public sale or entry.

The mortgage executed by the Railroad Company was forclosed and the property, including the lands donated by the State in persuance of the Act of Congress, was sold in the suit of Jackson et. als. vs. the V. S. & T. R. R. Co. The case went to the U. S. Supreme Court, and in the decree of that Court the mortgage was recognized as a valid one and operated as a lien upon all the property therein described. The case was sent to the Circuit Court for further trial and the final decree was rendered ordering the sale to be made in December 1st, 1879. In the decree ordering-the sale all the mortgage property was included. Under the terms of the decree the Railroad with all its property, franchises, etc., was purchased by a Committee of bond holders, who organized under act approved 8th March, 1877, the Vicksburg, Shreveport and Pacific Railroad Company.

By Act No. 39, of 1879, the G-cneral Assembly of Louisiana declared the forfeiture of the lands donated by the State to the V. S. & T. Railroad Co. under and by virtue of Act 98, of 1857, for the reason the entire road had not been completed within ten years from the date of die grant, and donated said lands to the Red River and Mississippi Railroad Co. This road never liad any actual existence and never constructed any line of railroad along the route and between the termini as proposed bjr the State and by the Congress of the United States.

The. defendant entered on the land in 1886, for the purpose of acquiring a right to enter the same whenever it should be opened for public entry. He sets up no title in himself no does he connect himself with any title, as agent, hut relies solely upon his possession as prima facie evidence, of title.

His contention is that the plaintiff has no title, and that the legal title to the land in controversy is in the State of Louisiana by virtue of the legislative act of forfeiture.

The Act of 3d June, 1856, by tlic Congress of the United States, passed a present interest in the lands to the State of Louisiana which became certain, by identity, when the sections were located and maps filed with the Secretary of the Interior.

The State conveyed these sections to the Y. S. and T. R. R. Co. by Act approved March 11th, 1857.

No conveyance in violation of the Act of Congress could pass any title to the Company. It was a condition precedent to the'eonveyanee of any •of the sections that the road should be first constructed in sections of twenty consecutive miles each, before the road could get title to any portion of the land coterminous with its constructed line. 21 Wallace, p. 44. • .

The road had completed a portion of its line, from Vicksburg to Monroe, and from Shreveport to Marshall, Texas. That portion of its line between Shreveport and Monroe was not constructed within the ton years.

The Federal Government neither by legislative act or judicial construction has declared the forfeiture of the grant, and under the well recognize,d jurisprudence of the Federal Courts the legislature of the State of Louisiana, if the State had done no act to estop her from setting up an adverse claim to the present, plaintiff could forfeit the grant to the railroad outlie ground of the lion-fnllillment of the condition subsequent to said grant, the completion of the road within the fixed limits often years. 21 IV allace, 44.

The State of Louisiana by Act 198, of 1857, specially authorized “the V. S. and T. R. R. Co., to mortgage all the lands granted in aid of said railroad by 'filio United States making a grant of .lands to the State of Louisiana, to aid in the construction of railroads, in said State, approved June 3d, 1856, to secure the payment of any bonds, notes or other obligations made or executed by said Company.” A mortgage was executed in pursuance of this act, and bonds secured by the same were issued. The road of the V. S. & T. R. R. Co. was run through the Parish of Webster, .and it was unnecessary as claimed by- defendant to record'the mortgage in that parish to affect the land claimed by the road separated in Webster Parish. The recondition at the domicile of the Company was sufficient. Act No. 194, of 1856.

The mortgage was foreclosed and the property described in the act of mortgag'd, including the land now occupied by plaintiff, which was a part of the Congressional grant upon which the V., S. & T. R. R. Co., by the State was authorized to mortgage, was sold December 1,1879, and purchased by the mortgage creditors, who organized the present company, the plaintiff in this suit, under the laws of this State.

The owners of the bonds secured by the mortgage undoubtedly liad a vested right in the mortgage, so far as the State of Louisiana was concerned.

The government of the United States could have complained of the manner of the executipu of the trust by the State, but it lias made no objection to the interpretation placed upon tlie act donating the lands by the State of Louisiana to said V., S. & T. R. R. Co.

The present plaintiff acquired title through, the decree of the United States Supreme Court, which recognized the validity of said mortgage, and ordered all the property included therein to he sold to satisfy the same.

The State having authorized this act of mortgage under and by virtue of which said parties acquired rights, is estopped from impeaching the same and declaring it a nullity. Rights thus acquired cannot l>o destroyed by subsequent legislation.

The land in controversy was withdrawn from public sale and entry before the defendant went on the same. I-Iis entry thereon was unlawful, and as he sets’ np no title, other than his tresspass, he cannot dispute the apparent title of the plaintiff. Stille vs. Schull, 41 Ann. 816.

The plaintiff has an apparent legal title to the land by virtue of the sale to satisfy a mortgage specially authorized by the State of Louisiana.

By the. act of the General Assembly authorizing said mortgage, the State is estopped from disputing the title and setting up title in herself, Hie original grantor, the United States government, can only take advantage of the non-performance of the condition subsequently attached to the graut. This may he done by legislative act or judicial construction. The government of the United States has made no assertion of the forfeiture, and the legal title to said land will remain in the plaintiff until there is some assertion of ownership on the part of the Federal-government, for the breach of the condition by directing'the possession and appropriation of the land, or that it be offered for sale or.for settlement.

Tlie defendant being in possession of said land unlawfully, without title, etc., as a tresspasser, is not entitled to a judgment for the value of tlie improvements placed on said land.

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 as against the defendant the legal title to the southeast quarter-section, Hie east half and northwest quarter of northeast quarter and west half and northeast quarter of nortwest quarter of section five, township 17, range 10 west, containing four hundred acres, be declared to be in plaintiff, the Vicksburg, Shreveport and Pacific Railroad Company, and that the defendant be evicted therefrom and the plaintiff placed in peaceable possession of said land. It is further ordered that the reconventional demand of defendant for improvements be rejected — defendant to pay costs of both courts.