text:
    No. 10,998.
    Succession of J. W. Montgomery.
    On Opposition to Account.
    The renunciation of a married woman to her rights against her husband and his property, in order to be valid and binding, must have been made as required by tile act of 1835 embodied in R. C. C., Art. 129.
    The notary must have explained to her, out of the presence of her husband, the nature of her rights and that of the contract she agrees to, and must have detailed the circumstances and the occurrence in the act.
    A failure to comply with the requirements of the law, which are conditions precedent, vitiates the renunciation.
    The presumption omnia rite acta does not attach in a case like this.
    It does in that of a District Judge authorizing a married woman to borrow and mortgage, because he is a judicial officer empowered to hear and determine; but not in that of a notary, who is a ministerial officer who has no judgment whatever to exercise and pronounce.
    The burden is on the creditor who opposes the 'renunciation of a married woman in order to defeat her money and mortgage claims against her husband and his property to show, by legal evidence, that the essential formalities required by Art. 129, R. C. C., as conditions precedent for the validity of the renunciation, have been observed.
    APPEAL from the Eighth District Court, Parish of East Carroll. Montgomery, J,
    J. M. Kennedy and Jos. J37. Bansdell for the Appellees:
    Under the law, married women are not sui juris. In their case incapacity is the rule; capacity the exception. Their incapacity to contract is specially declared by law. C. C. 17S2.
    Where the law provides certain formalities to be observed, and certain things to be done, in order to bind a married woman, these formalities must be complied with, and those things done, else she is not bound.
    The statute of jVfarch 27, 1835, now Art. 129 of the Civil Code, which capacitates or authorizes mdrried women to renounce their paraphernal and other rights against their husbands in favor of third persons, requires that the notary who takes the renunciation shall explain to the wife, out of the presence of her husband, the nature of those rights, and of the renunciation she is about to make, and shall set forth in the act itself the fact of this explanation being made. C. C. 129.
    When the certificate of the notary in the act fails to detail and set forth this explanation, as required by the law, it is fatally defective; and the renunciation is invalid, and of no effect. Sue. of G-remillon, 4 An. áll; Ashford vs. Tibbitts, 11 An. 167.
    The granting of a certificate by a judge authorizing married women to mortgage their separate property for borrowed money, etc., under Arts. 127, etc., of the Civil Code, is a judicial act, not to be likened to the mere ministerial duty of the notary in cases of renunciation; and the presumptions obtaining in favor of the regularity and validity of the acts and certificate of the judicial, do not obtain in favor oi those of the ministerial officer. 37 An. 213; 30 An. 811,

      J, L, Dagg and G. B. Wyly contra:

    The law requires the notary to explain verbally to the married woman, out of her husband’s presence, the nature of her rights and of the contract she agrees to, and the court will presume that he did his duty in this respect, as he is a sworn officer, ard there is no proof that he failed in his duty. A sworn officer is always presumed to have done his duty until the contrary is proven. 28 An. 232; Hennen’svDigest, “Evidence,” III (d), No. 17, and authorities cited.
    The declarations o£ parties to a public act can not be contradicted by those who made the declarations, unless upon allegations of fraud, duress or error. 16 An. 307.
    Although the notary’s act does not recite that he explained verbally to the married woman, out of her husband’s presence, the nature of her rights, etc., her renunciation will be hold valid for the same reason that a married woman was h eld bound for her note executed, under the authorization of the judge, notwith - standing the certificate of the judge did not state that she was examined by him separate and apart from her husband, as required by Art. 128, R. O. O. 28 • An. 232.
    The fact that the notary is a ministerial officer, while the judge is a judicial officer, does not change the character of the duties required of each in reference to the recitals to be made by each respectively. The judge, in making the examination required by Art. 127, R. O. 0., and in deciding whether ornot the authority to borrow money should be granted, performs, perhaps, a judicial function. But when he draws the certificate required by Art. 128 his act is purely ministerial, as much so as is that of the notary in making the recitals required by Art. 129. Hence the decision in the Locke case (28 An. 132) is directly in point.
    It having been held that, in the absence of allegations and proof of fraud, the wife can not contradict the judge’s certificate and thereby be relieved of her obligations, so much more should she, in the absence of allegations and proof of fraud, duress or error, be held to her mere renunciation of rights in an act in which she assumed no obligations. Pilcher vs. Schwartz & Pugh, 28 An. (not reported; see Opinion Book 45, folio 407).
   The opinion of the court was delivered by

Bermudez, C. J.

This controversy involves the validity of a wife’s renunciation of her rights against her husband and the property mortgaged by him, in favor of a creditor.

J. W. Montgomery having died, his widow filed an account of her administration of his estate; on which she placed herself as a creditor for §6307, with the legal mortgage accorded by law to secure its payment, the same to be satisfied in preference to the claims of all other creditors.

The account was opposed. Mrs. Montgomery having died, her son was appointed to succeed her, and he filed another account, adopting that,previously presented.

There was judgment dismissing the opposition and maintaining the claim and the mortgage contended for in favor of Mrs. Montgomery and of her succession.

It is from that judgment that the present appeal is taken.

There is no contention as to the amount of the claim and as to a proper registry of it, at the date of the mortgage by Montgomery in favor of Davis, in 1881.

The litigation relates to the validity of the renunciation, mentioned in the notarial act, as having been made by Mrs. Montgomery.

That instrument contains the following declaration:

“I certify that there does not exist on the Deesona and other plantations any mortgage, except the following legal mortgage in favor of Mrs. Eliza Vail, wife of the mortgagor, for $6945.05, recorded on the 3d day of August, 1874; and she appears and declares that she renounces untó said G. Malin Davis her right of mortgage on said property, and agrees that his mortgage shall take precedence of hers, and she further declares that she has no other mortgage against her husband’s property, recorded or otherwise.”

It is claimed that this renunciation meets the requirements of the law. R. C. C. 129, originally act of 1835, March 27, See. 2, which reads as follows:

Married women, above the age of twenty-one years, shall have the right, with the consent of their husbands, by act framed before a notary public, to renounce in favor of third persons their matrimonial, dotal, paraphernal and other rights. The notary public, before receiving the signature of any married woman, shall detail in the act and explain verbally to said married woman, out of the presence of her husband, the nature of her rights and of the contract she agrees to.” Also R. S. 1717, 2518. 3985.

On the other hand it is contended that the recital does not show that those legal exigencies have been satisfied, and therefore, in the absence of such, the renunciation is defective and null.

A simple reading of the provision forcibly impresses upon the mind that the law permits a renunciation, provided the notary, before receiving the signature of the married woman, explains to her verbally, out of the presence of her husband: 1. The nature of her rights and that of the contract she agrees to. 2. That he shows that he has done so, by detailing, in the act, the nature of the double information which he has thus given her; and that the formalities have been fully observed. It is not until after he has so furnished her this information and thus detailed what has occurred that he has authority to receive her signature.

A compliance with those requirements is an essential condition precedent, for the validity of such renunciations, which is exacted for the protection of married woman who are inopes coneilii; in order to shield them, as effectually as practicable, from marital pressure, intimidation or captation. It is nothing but just that; they should pieviously know their rights, just as they are, with precision, and it is for that purpose that the notary is required to inform them, and to show how he has done so in order that they may not afterward deny that they had full knowledge of those rights, the whole, of course, to occur out of the presence of the husband. The proof which the law allows to show that those formalities have been gone through faithfully is the notary’s recital in the act.

In the matter of the succession of Gremillon, 4 An. 411, the declaration made by the parish judge, acting as a notary, was attacked as insufficient and it was so held; yet by reference to the act it is perceived that it declares that Mrs. Gremillon voluntarily appeared, with her husband’s authority, to renounce generally to all the rights whatever she had on the property mortgaged by her husband in favor of Poydras, whereupon the judge explained to her specifically the rights which the law accords her in such a case, which he classified under five heads, covering upward of a close written page, winding up with a statement that she notwithstanding persisted in renouncing, and had declared that neither she nor her heirs would ever run counter the mortgage for any motive whatsoever. See record No. 1183 in the clerk’s office.

It will be noticed that the parish judge, ex-officio notary, had failed to mention the all-important fact, if it existed, that all this had occurred “ out of the presence of the husband.”

The then court, therefore, said: The statute of 1835 * * * contains the proviso that the notary public, before receiving the signature of any married woman, shall detail in the act and verbally explain to her, out of the presence of her husband, the nature of her rights and of the contract she agrees to. A substantial compliance with the proviso is essential to the validity of the renunciation. One of its motives was to guard the wife against the influence of the husband, the moral effect of whose presence might control her will to the prejudice of her interest. This formality was disregarded irt the present ease, and the renunciation must be held inoperative.

In another case, Ashford vs. Tibitts, 11 An., p. 168, it appears from the transcript that the act of mortgage contained the following declaration by the notary:

“ Then appeared Mrs. Harriet Ashford, wife of said Tibitts, who, being by me made acquainted with her rights and privileges on the property of her said husband, apart and out of his hearing, did notwithstanding declare to me that she does by this act formally re - nounce the same in favor of the said Mrs. Woodruff for the purpose aforesaid.” See record No. 4460 in the clerk’s office.

It will be observed that although the notary stated that he had made the lady acquainted with her rights and privileges, out of her husband’s presence, he failed to specify or detail in the act the nature of the rights explained to her.

On the contention that this statement was, however, a substantial compliance with the law, the then court said in a quite summary way:

“ We think that her (Mrs. Ashford’s) mortgage should have been recognized, as her renunciation was defective, in that the notary did not detail in the act the nature of the rights she renounced,’f referring to the statute 1835 and to 4 An 412, Succession of Gremillon.

In the instant case, it is more than apparent that the renunciation is fatally defective, not only because the notary did not detail the rights, the double information which is to be given by him to the wife, but also because it does not appear that what transpired, if anything of that kind did, occurred out of the presence of the husband.

A failure to have made a recital in the act of those circumstances implies that the formalities were not fulfilled, and carries the nullity of the renunciation.

The further defence that the presumption is that the notary, who is a sworn public officer, must be presumed to have done his duty, and that this presumption has not been rebutted, can not hold.

In support of this position decisions are invoked which go to the extent that, where a district judge had issued a certificate to a married woman to authorize her to borrow money, and in order to secure Its reimbursement, to mortgage her individual property, omitting to -mention that he had examined her out of the presence of her husband, as directed by the statute, the presumption omnia rite aeta, that be had done Ms duty had been held to attach. R. C. C. 128 28 An. 232; Locke vs. Lafitte; Pilcher vs. Schwartz, Id. 494.

In refutation of this contention it suffices to say that the judge, in such cases, acts in his judicial capacity, exercising a judicial discretion, hearing and determining. He is required officially to ascertain a certain condition of things, and after he has done so to decide whether the authority shall or not be granted; so much so, that in a proper case his refusal might be the subject of an appeal. The notary, on the contrary, is not a judicial officer. He is vested with mere ministerial powers. He is a scribe, who has authority to identify parties appearing before him and authenticate their declarations. In cases of renunciation he is commanded to do certain things, and he must, where he has done them, detail in the act what he has accomplished. He has no power to refuse to receive the renunciation, if made legally, or to approve or to disapprove the same. His omissions or commissions are not judgments subject to be appealed from.

In the case of Ashford, 11 An., in which it appeared in the act that the notary stated that he had made the lady acquainted with her rights and privileges, the court did not hold that the presumption attached, that he had done his duty.

It is proper to add that the burden of proving fulfilment of the formalities was on the creditor who affirmed a valid renunciation, and not on the wife who denied the same.

Judgment affirmed.


source: Caselaw Access Project

author: Bermudez, C. J.

license: Public Domain

text:
    No. 11,001.
    August Rist vs. W. H. Hartner et al.
    The pica ol! prematurity can not be successfully set up by a tutor who has acquired ’ real estate in his official name, with due authority for account of his ward, when sued by one of them to be recognized as owner of an undivided part of the same.
    The sale made by him at private sale, under advice of a family meeting, to a third party who fails to pay the price which was on credit and who transfers the property to him in his individual name and not as tutor, can not be said to have been ratified, from the fact that, under a settlement alleged to have taken place between him and the minor, a sum of money passed to the latter, unless it is shown that this was preceded by an account and delivering of vouchers, as required by Act 361 of the ft. O. 0., and that the minor knew of the infecting radical vices which contaminated the act, and yet voluntarily cured the nullities»

      The plea of tender of such sura, as a condition precedent to the suit against the purchaser and the tutor for the nullity of the sale and revendication of the property, is not well founded.
    APPEAL from the Sixteenth District Court for the Parish of East Feliciana. Brame, ./.

      W- F. Reman for Plaintiff and Appellant:
    A minor’s immovable property can be sold only on the advice ol a family meeting, by order of the judge, at public auction, after thirty days’ advertisement. R. C. 339-341.
    A sale made without the formalities prescribed by law, by a tutor, of the immovables of a minor, is an absolute nullity. Vaughan vs. Christine, 3 An; 328.
    An action for the revendication of property so sold is prescribed only by ten years from the minor’s majority. Ib.
    Where the title of plaintiff has never been divested, h'is right to recover the property is absolute, and not dependent'upon any antecedent resolution or tender as a condition precedent to the institution of his suit in revendication. Heirs of Self vs. Taylor, 33 An. 769; Heirs of Wood vs. Nichols, 33 An. 745 ; 43 An. 534
    All that equity could possibly require would be to permit him to set up his claim in reconvention. Heirs of Wood vs. Nichols, 33 An. 745; Ib. 769 ; 3 An. 328.

      Wedge, Rilbourne & Stone for Defendants and Appellees.
   The opinion of the court was delivered by

Bermudez, C. J.

This is a petitory action for a share of certain real estate, including a demand for rents and revenues.

It is brought by a minor who has become of age, in his own name, as heir of his mother, and also as heir of his sister. It is directed against a tutor, Hartner, who, under the advice of a family meeting, had bought it for account of the minors, whose tutor he was, and one of whom was the plaintiff. Hartner subsequently sold it to a third party, Schntzman, at private sale, and acquired it back from that party in his individual name. It is also directed against that party for rents and revenues.

The prayer is for the nullity of both sales and for the rents and revenues.

The defendant, Hartner, pleaded a settlement by him with the plaintiff, which can not be attacked collaterally, by which the plaintiff ratified the sale attacked; a want of tender of the amount received by plaintiff, $888.73, under that settlement, and prematurity of the action, which can not be brought before a liquidation of the succession of plaintiff’s mother, which is still under administration.

The other defendant, Schwartzman, besides urges a demand for the value of repairs and improvements made in good faith by him on the property, and that plaintiff can not maintain this action without first tendering the amounts expended.

There was judgment holding that plaintiff should have made a tender of $300.25 only, and for not having done so, dismissing his suit.

From the judgment the plaintiff appeals, and a prayer is made that the amount to be required as a tender be raised to that demanded below ($888.73).

The record shows that the defendant in 1875, on the advice of a family meeting, purchased for account of the three minors of Mrs. Rist, whose tutor he was, a plantation and a home residence, and that he did so, taking the title in his capacity as tutor; that in 1879, on a similar advice, he sold it at private sale to one Schutzman, who, failing to pay for it, transferred it to Hartner in his individual name, and that it thus stands yet.

It appears that a settlement was made between the plaintiff and the defendant after his majority, and it is claimed that it proves that plaintiff knowingly ratified the sale to Schutzman, taking in place of the plantation and the residence the sum of $869.23 and a judgment for $19.50, both amounting to the estimated value of his interest therein.

The defences of prematurity, tender and ratification will be considered in their regular order.

That of prematurity can not hold. It does not lie in the mouth of the tutor, when sued by the minor of age to recover from him property acquired by him as tutor for account of the minor from the succession of the latter’s mother, to say that her succession has not been fully administered, that it owes debts and is insolvent.

The purchase placed the real estate in the name of the minor, in whom the title vested and has continued until legally alienated in their name or by themselves.

It is clear that one in whose official name as tutor property stands as belonging to his wards is estopped from denying their rights to it, and can not urge the plea of prematurity set up. 41 An. 632, Burney vs. Ludeling.

The final liquidation of the succession of Mrs. Rist is not a condition precedent for the validity of the sale of her property at succession sale, which vests on adjudication to the purchaser, even though the price be not paid and the sale is to an heir. In that case the remedy should be either a nullity of the sale or the payment of the price if due in specific performance.

The plea of tender is not maintainable. The sale by Hartner to Sehutzman, although made with the advice of a family meeting, was made by private contract, not after adjudication preceded by advertisement. The sale was a nullity and did not divest the minors of their title to the property, which could not be transferred unless after compliance with legal exigencies.

The price of adjudication to Hartner as tutor was not paid. It remained due, subject to a final settlement with the mother’s succession. Heirs can purchase that way in successions in which they inherit.

The sale from Hartner, tutor, to Sehutzman was made entirely on credit, no money passed from the purchaser to the vendor, and the minors can not be said to have received any consideration even indirectly.

The sale or the transfer by Sehutzman to Hartner is in the latter’s name individually, and purports to have been made for cash, acknowledged paid and received; but this payment must not be considered as a reality. In their brief counsel for appellees say that Schutzman failing to pay for the property transferred it back to Hartner, individually.

Surely, as Hartner, tutor, received nothiiig from Sehutzman, it can not be conceived how the minors can be asked to make any tender, if the plea refers to the price of that sale, which it possibly does not.

It certainly first relates to the amount secured by plaintiff under the alleged agreement averred by Hartner, and second to the value of the improvements and repairs claimed by Sehutzman.

In the just decided case of the same plaintiff against the same defendant, No. 11,002, for an account of tutorship, a plea of tender for the $800.25, said to have been received under the settlement, it has been held that tender could not be required. For the reason there given, the same ruling must be made here, as that sum forms part of the $888.73 which, it is insisted, should have been offered before suit.

In relation to the.plea of want of tender for the difference, which the lower court declined to require, but which is asked by answer to the appeal, and likewise touching the defence of ratification, it suffices to say that, if the amount was received as alleged, it can not be considered prima facie as paid in settlement of the sales by Hartner to Sehutzman and by the latter to the former, for the obvious reasons that it could have been only an agreement or contract between the tutor and the minor, not preceded by the account required by Art. 361, R. .0. 0., and therefore a nullity; and that the very sale claimed to have been ratified was subsequently set tyh naught by Schutzman, and his ostensible title annulled. The evidence does not show that, if the- amount was designed to have been paid by Hartner to plaintiff in settlement of his rights in and to the property, or as a purchase price of the same, it was understood in that light by the plaintiff, who may [have treated it as an adjustment and liquidation of other business accounts. The testimony explanatory of of the receipt preponderates the other way, and establishes the reverse of the pretension.

The ratification of a transaction which is a nullity is a recognitive and confirmative act, and can not be successfully pressed unless it is shown to have taken place with a full knowledge of the circumstances and formal intention to cure the radical vice contaminating it and with which it is infected, by an unreserved sanction and approval.

The plaintiff does not urge, on appeal, error in the dismissal of his claim for- rents and revenues against Schutzman, and the latter does not insist on his for improvements and repairs. Both may be considered as abandoned, but without prejudice to their rights, if any, to demand the same in another proceeding.

It is therefore ordered and decreed that the judgment appealed from be reversed and annulled; and it is now ordered and adjudged that the plaintiff be recognized as the owner of the undivided five-twelfths of the property described in the petition, without prejudice to the rights of either and all of the parties to set up and urge any claim not herein- passed upon, touching which the same are reserved; the costs of the lower court and those on appeal to be paid share alike by the defendants.


author: Penner, J.

text:
    No. 10,993.
    J. B. Hobson et al. vs. Glenn D. Peake.
    Where a succession owes no debts and lias been unconditionally accepted by the heirs, who are in actual possession oí the estate through an agent duly authorized, an administration is unnecessary and illegal; and when such proceedings are carried on with the full knowledge of the agent of the absent heirs, who himself becomes a purchaser at a sale made therein, such a sale, so far as that purchaser himself is concerned, is a nullity so absolute that it could furnish, in his favor, no basis for any prescription save that of thirty years.
    A proceeding in a personal action against absent defendants by substituted service through a curator ad hoc unaccompanied by any seizure of property is not “ due process of law,” and the judgment and sale thereunder are absolute nullities. The case is not affected by the fact that such a proceeding had been recognized as valid by prior decisions of this court, especially when, prior to-the date of the proceeding, the Supreme Court of the United States had repeatedly condemned such proceedings as not “ due process ” under the Constitution of the United States.
    3. An agent who has misconducted himself in the business of his agency, and who-has engaged in illegal transactions by which he acquires interests adverse to those of his principals, and whose services, as a whole, have resulted in injury to his principals, can not, under a qua/ntum meruit, claim compensation for his; services. . ■ ' '
    4. Defendant ceased to be agent from the date of his purchases and became a possessor for his own account, and in bad faith. As such he is bound to account for the revenues, and is entitled to recover only his expenses necessary for the preservation of the property, such as taxes, and his useful improvements only to the extent to which they have enhanced the value of the prop-1 orty. Judgment in favor of plaintiffs for recovery of property, and case remanded for further proceedings as to counter claims between parties.
    APPEAL from the Fifteenth District Court for the Parish of Pointe Coupée. Semple, J.

      O. O. & A. Provosty for Plaintiffs and Appellants:
    1. The property of non-residents can not be divested by the contrivance of opening the succession of the person from whom they derive title by inheritance, and selling the property at succession sale. Where a succession owes no debt, and the heirs have accepted purely and simply, and are in possession through an agent, an administration is unnecessary and illegal; and asale made in the e#ourse of it is an absolute nullity. 38 An. 716.
    2. Where at such succession sale the agent himself becomes the purchaser, he is guilty of constructive fraud, which will furnish good grounds to annul liis title "in a suit instituted against him, by his principals, for that purpose. Vi’An. 160.
    3. His having instigated the null and void succession proceedings is proof conclusive of actual fraud.
    4. Where a man undertakes, of his own accord, to manage the property of another, he incurs all the obligations that would result from an express agency. C. O. 2295.

      5. It is now the settled jurisprudence that as against a non-resident, substituted service can be effectual as “ due process of law,” under the 14th amendment of the Constitntion of the United States, only where, in connection therewith, property in the State is brought under the control of the court, and is subjected to its disposition by process adapted for that purpose. Laughlin vs. Ice Co., 35 An. 1184., Duruty vs. Duruty, 42 An.
    6. The records of the District Courts of this State must speak for themslves, and can neither be contradicted nor eked out by parol evidence. 12 It. 531; 4 M. N- . 8.176; 6 An. 700; 10 An.700; 12 An. 349.
    ¶, Citation, or that appearance of the defendant which will do away with the necessity of citation, can not be shown by parol after judgment, and so as to give validity to the judgment, but must appear from the record. 21. An. 27, 682 ;1 Itob. 30. It is only in process posterior to judgment that corrections by parol are permissible. Same authorities, also 35 An. 101.
    ■U. Where an agent is unfaithful to his trust, and abuses the confidence reposed in him by his principal, or where he misconducts himself in the business of the agency, he may be deprived of commission or compensation. Am. and 15ng. Kncy. of Law, Vo. Agency, Vol. 1, p. 397.
    U. While mandate is not in its essence gratuitous, yet it is so in its nature; hence, in order to recover on a quantum meruit, the agent must repel this presumption of gratuity by proof of specific services, such as can not be supposed to have been rendered gratuitously. 36 An. 211; 21 An. 558.
    10. A mandatary acting for himself, as well as for others, can not recover on a quantum meruit. 16 An. 155.
    11. The action of an agent for the value of his services and his expenses incurred in the agency is prescribed by ten years; and the continuity of services does not interrupt the prescription where the duties of the agency have consisted in making an annual voyage to see about paying taxes, collecting rents and procuring tenants for one or more plantations. 35 An. 1012; 7 An. 222; 5 La. 15; 6 M. N. S. 228.
    Moist & Claiborne for Defendant and Appellee.
   The opinion of the court was delivered by

Penner, J.

Dr. Jesse Beaty, a resident of South Carolina, died before the war, leaving to his two brothers, Samuel Beaty and Robert Beaty, Sr., and to his two sisters, Patsy and Margaret A. Beaty, Ms property in the State of Louisiana, consisting of three plantations, known as West Oaks, in the parish of Iberville, and the McOrea and McKneely places, in the parish of Pointe Coupee. The heirs accepted his succession purely and simply and took possession of the estate through their duly appointed agent, Robert MeBeth, who promptly came to Louisiana and sold the plantations for large prices, paid partly in cash and partly in mortgage notes with vendor’s privilege.

After the war, the heirs sent the present defendant, Glenn D. Peake, as their agent to visit Louisiana and look after their mortgage claims. He came here, and, after collecting what he could, foreclosed- the mortgages and obtained the retrocession of the Mc-Orea and MeKneely places, with which we are alone concerned, to the heirs. •

Samuel Beaty died in 1870; Patsy Beaty in 1872, and Margaret A. Beaty in 1885.

The plaintiffs in this suit are heirs of said Samuel, Patsy, and Margaret A Beaty, in certain proportions fully set out in their petition, and this is formally admitted in the record.

At the death of Samuel Beaty, his heirs accepted and took actual possession of his estate in Louisiana, through their agent, Glenn D. Peake, the defendant.

The defendant continued to act as the agent, with the broadest powers, of these plaintiffs and their ancestors, until the year 1882, at which date the results of his agency, according to his own showing, were summed up as follows: The West Oaks plantation, in the parish of Iberville, had been sold for more than $6000, and the proceeds, together with the revenues of all the property, amounting to about $2000, and also a further sum of $2900 collected in cash, had all been absorbed by the expenses of the agency; the defendant was the owner of the McOrea and MeKneely places; the plaintiff heirs had not a cent’s worth of property left in Louisiana, and were, besides, indebted to the defendant in a considerable balance for expenses of his agency.

The plaintiffs seem to have lived in ignorance of the details of these transactions until not long prior to the institution of this suit, when they employed an attorney to investigate them, and, as a result of the information thus obtained, they bring the present suit, in which they claim the nullity of the titles of Peake to their interests in the McOrea and MeKneely plantations, together with an account of their rents and revenues.

Peake’s title to one-fourth of the McOrea plantation, belonging to the heirs of Samuel Beaty, rests upon a sale made in a succession proceeding under the following undisputed circumstances:

Samuel Beaty died in 1867. His heirs had accepted his succession unconditionally and had taken actual possession of the property and held the same through their agent, the defendant. The succession owed no debts. Nevertheless, in 1874, the public administrator applied for the administration of the succession of Samuel Beaty, simply alleging his death, that his heirs were absent and unrepresented, that he owned land in the parish, and that an administration was necessary. Under this proceeding, an order of sale was obtained and the property was sold and adjudicated to Glenn D. Peake, the defendant.

The evidence shows that the public administrator acted with the full knowledge, if not at the suggestion, of Peake. Peake knew better than any one else that] the succession of Samuel Beaty had been unconditionally accepted and was in the actual possession of the heirs; that the succesion owed no debts, and that the heirs, so far from being unrepresented in this State, were fully represented by him as their duly authorized agent then present in the State.

It seems superfluous to cite authorities to support the proposition that such a sale, in such a succession proceeding, to such a purchaser, is a nullity so absolute, so far, at least, as that purchaser himself is concerned, that it gave him no shadow of title, and could furnish, in his favor, no basis for any prescription short of thirty years.

The judge so held, and, beyond doubt, correctly.

The balance of the property claimed by plaintiffs is held by Peake under title derived from a judicial sale made under a judgment rendered in 1882 in a suit brought by Glenn D. Peake against the present plaintiffs and other heirs.

This suit was brought for a balance alleged to be due to him for his services and expenses as agent. Although Peake was a resident of South Carolina and a near neighbor of his principals, he came to Louisiana to bring this suit against them without giving them any notice thereof. It was a purely personal action. The defendants were all non-residents of the State. They were not cited, but were assumed to be brought into court through a curator ad hoc, who was appointed to represent them. They never appeared or answered. There was no attachment or other seizure of property before judgment.

Under the repeated adjudications, both of the Supreme Court of the United States and of this court, such a proceeding is not “ due process of law,” and the judgment and sale founded thereon are absolute nullities. Pennoyer vs. Neff, 95 U. S. 714; Harkness vs. Hyde, 98 U. S. 478; Brooklyn vs. Ins. Co., 99 U. S. 476; Laughlin vs. Ice Co., 35 An. 1184; Duruty vs. Duruty, 42 An. 357.

An attempt is made to charge plaintiffs with notice of this proceeding, and with an authorization of the curator ad hoc to' represent them personally. The charge was not sustained by satisfactory evidence, and the evidence was, besides, improperly admitted, and was without avail to remedy the defect of citation or appearance as shown by the record. Harris vs. Alexander, 1 Rob. 30; LeBlanc vs. Perroux, 21 An, 27; Glidden vs. Goos, 21 An. 682; Babin vs. Nolan, 13 Rob. 531.

There was no citation except of the curator ad hoe, and no appearance by him except in the unqualified capacity of curator ad hoc, and his fee as such curator was taxed and paid as par of the costs. The record must speak for itself, and its radical defects prior to judgment can not be supplied or cured by parol. Adams vs. Bazile, 35 An. 101.

The judge a quo declined to annul this judgment on two grounds, viz: (1) that the suit partook of the nature of a proceeding in rem, for which ground there is not a shadow of foundation; (2) that the proceeding had been taken in conformity to prior jurisprudence of this State, which had recognized the validity of substituted service on non-residents who had property in the State without any seizure of the property itself. In this there is no force. Without intimating that it could avail under any circumstances, it is sufficient, for the purposes of this case, to say that the decisions of the Supreme Court of the United States in the cases above cited from 95th, 98th and 99th U. S. Reports had all been rendered years before this action was brought. Those decisions were based on the Constitution of the United States and involved questions purely federal in their nature, upon which the decisions of the federal Supreme Court were authoritative and paramount. On such questions the decisions of that court, and not of this, settle the jurisprudence and the law. When the same questions afterward came before this court we had nothing to do but to follow those paramount precedent.

It follows that this judgment and the sale thereunder must be decreed to be absolute nullities.

It remains to adjust the counter-claims between the parties for revenues, expenses,, improvements, etc.

Defendant’s claim on his agency account up to 1882, on which his pretended suit in that year was brought, must be rejected. We need not determine the plea of its prescription, which presents questions not free from doubt, because, on its merits, the account gives rise to no just claim against these plaintiffs. That account shows cash collections by defendants amounting to nearly $11,000 — far more than sufficient to pay all the necessary and useful expenses as recited in the account. The difference, for which the suit of 1882 was brought, is made up of $8000 charged for the agent’s personal services over and above his expenses. This claim is based on no contract and must be determined according to the quantum meruit. When we consider the conduct of this agent with reference to the two judicial proceedings above referred to, his illegal and unwarrantable attempt to divest his principals of their property in his own favor, and the result of his services as exhibited in the summing up made at the beginning of this opinion, the question as to such services, quantum meruunt? can receive from a court of justice but one answer— nihil.

“Where an agent is unfaithful to his trust and abuses the confidence reposed in him by his principal, or where he misconducts himself in the business of his agency, or where he engages in transactions by which he requires interests adverse to the interests of his principals, he may be deprived of commission and compensation.” 1 Am. and Eng. Encyc. of Law, p. 397, and numerous authorities there cited.

We have no desire to criticise the conduct of Mr. Peake with undue severity. He may have acted on bad advice; he may have satisfied himself of the propriety of his course; but the law condemns his conduct as utterly inconsistent with that uberrima fides which should characterize the relations of an agent to his absent principals.

Prom the date of his respective purchases Peake held the property, not as agent, but as possessor for his own account. We are bound to hold that he was a possessor in bad faith under O. O., Art. 3452, as one “who possesses as master, but who assumes this quality when he well knows that he has no title to the thing, or that his title is vicious and defective.” Charged, as Peake is, with actual knowledge of the facts, and with conclusively presumed knowledge of the law, he was bound to know the nullity of his titles.

As possessor in bad faith he is bound to account for the revenues, and is entitled to recover expenses necessary to the preservation of the thing, such as taxes, and also for useful improvements, but only to the extent to which they have enhanced the value of the prop - erty. These latter rights repose on no text of the Oode, but on the great equitable principle which prevents one from enriching himself gratuitously at the expense of another. Pearce vs. Frantom, 16 La. 414; Baillio vs. Burney, 3 Rob. 319; Williams vs. Booker, 12 Rob. 254; Gibson vs. Hutchins, 12 An. 545.

All matters prior to 1882 were settled by our decision as to the agency account. Nothing remains but to determine (1) the amount of revenues from that date; (2) the taxes paid from that date; (3) the useful improvements and the extent to which they have actually enhanced the value of the property. These questions were not passed upon in the court below, and we have striven in vain to reach a satisfactory conclusion from the evidence in the record. That evidence does not define with exactness the date and character of the improvements made, and the defendant’s answer does not even specify them; and the evidence is not directed to the only pertinent question, viz.: the enhancement of value.

We shall make our decree final as to the recovery of the property, but will remand the ease for further proceedings with reference to the adjustment of the matters just referred to.

It is therefore ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and reversed; and it is now adjudged and decreed that the sale made in the succession of Samuel Beaty, and the judgment and sale in the suit of Glenn D. Peake vs. Margaret A. Young et al., be and they are hereby decreed to be null and void in so far as they affect the plaintiffs in this cause; that the said plaintiffs be decreed to be owners of the property described in the petition, and known as the McCrea place and the McKneely place, in the proportions in which they inherit the same from Samuel Beaty, Patsy Beaty and Margaret A. Young, as set forth in the petition, and that Glenn D. Peake, defendant, be condemned to restore the same to plaintiffs; and it is further ordered this cause be remanded to the lower court for further proceedings according to law for the determination of the rights of the parties as to rents, taxes and improvements according to the views expressed in this opinion, defendant to pay costs in both courts.


author: Breaux, J.

text:
    No. 10,874.
    J. W. Clemens, Curator, vs. V. A. and S. Meyer et al.
    Plaintiffs and defendants having traced their title to a common author, can not question the validity of their title.
    The American state papers published by order of Congress and the copies which they contain of legislative and executive documents are admissible in evidence.
    To maintain the prescription of thirty years the intention of possessing as owner and the corporeal possession of the thing must be proven.
    To maintain the prescription of ten years there must be a title received from one the possessor honestly believed to be the real owner.

      Montgomery, J. PPBAL from the Eighth District Court, Parish of Madison.

      Stone & Murphy for Plaintiff: and Appellee:
    Minor heirs become vested with all rights of possession, etc., upon the death of their parents, the law accepting the succession for them. C. O. 910 to 917-977; 12 R. 266; 23 An. 117.
    The plea of ten years’ prescription must have for its basis a title translative of property, at least ten years old. C. C. 3179.
    To support the plea of thirty years’ prescription, the party claiming under it must show with legal certainty an uninterrupted, continuous possession as owner for the time necessary to prescribe. O. O. 3500 ; 39 An. 1033; 1R. 556.
    Where one purchases an undivided interest in lands from the administrator of a succession or from an heir, he thereby recognizes the title of the succession from which he purchases and of the other heirs to the remaining interests, and. he can not prescribe against the heirs with whom he holds as co-proprietor. Joint owners can not acquire title against each other by prescription.” Simon et al. vs. Richard et al., 12 An. 812.
    Prescription of ten years or of thirty years does not run against minors; and if running against the ancestor at his death becomes suspended in favor of the minor during minority. C. C. 3522, 3551; 38 An. 216; 39 An. 105; 10 An. 576; 6 An. 109; 13 An. 310; 11 An.601; 10 An.575 ; 7An,116; 12 An. 97; 23 An. 117; 11 La. 61; 10 M. 287; 9 La. 379; 11 R. 529.

      Charles J. Boatner for Defendants and Appellants.
   The opinion of the court was delivered by

Breaux, J.

Plaintiffs brought this petitory action to recover from the defendant the hale of the east half section No. 3, in township No. 15, north of range 12, east.

They are the children of Horace Groves, who, with his brother Elijah, inherited from Moses Groves and wife.

One of the plaintiffs was born on the 26th January, 1853, and died on the 29th July, 1884; the other was born on the 6th day of March, 1854.

In April, 1830, Rachel Rundell and others sold a tract of land to Moses Groves containing 160 acres.

In the deed the land is described as part of the land entered by Chiliao Smith.

On the 14th day of August, 1830, Sydney M. Smith sold to the same purchaser, Groves, another tract, also containing 160 acres.

This completes the title of Moses Groves to 320 acres.

The defendants are the owners of Araby plantation in the parish of Madison.

Since many years the lands in controversy have been cultivated as part of that plantation,

J. W. Fisk, defendant’s author, purchased from Elijah Groves, in 1860, an undivided one-half interest in the east half of section 3.

The deed contains declaration that the half section contains 320 acres.

The most ancient title to Araby plantation dates from the year 1850 — thirty-eight years prior to the institution of this suit.

In the deed of that date H. Nutt was the vendor and Mrs. Urquhart the vendee.

No description in that deed includes the land claimed, The sections and other subdivisions make no mention of any portion of section 3.

It is next in order proven that in June, 1870, J. W. Fisk sold one-half of this plantation to D. Urquhart.

The land in controversy was not described in this deed.

On the 18th day of November, 1870, Urquhart sold to Mrs. E. W. Fisk the undivided half of the east half of section 3. .

On the 19th day of April, 1872, Mrs. E. W. Fisk sold to Urquhart the one-half of the east half of section 3, containing 320 acres.

In 1882 all the lands were sold to the defendants and completely described as belonging to the defendants. Then, for the first time, the east half of section 3 is described in its entirety as the property of the defendants.

But Urquhart, their author, owned only the one-half of the east half of section 3, which he had bought from Fisk, and, therefore, could not transfer the entire half of that section.

J. W. Fisk did not purchase a larger area from Groves than the one-half of the east half.

Defendants’ answer is a general denial, and the prescription of thirty (30) years and of ten (10) years is pleaded.

With reference to the former prescription, it will not be denied that to maintain it, the intention of possessing as owner must be proven and the corporeal possession of the thing.

It is not shown that the possession of this land by the successive owners of Araby plantation has been continuous. It is established by the testimony that at times the owners of this plantation cultivated the land in controversy, but it isnotproven that they exercised the right of ownership over it; or ever in any manner claimed to be the owners, or did anything showing the intention to possess as owners.

The immediate predecessor of the defendants, Urquhart, testifies that he possessed the east one-half of section 3; occupied and cultivated it by right of ownership as per act of sale. This purchase to which he refers, witness testifies, was in 1870. He does not state that this possession as owner preceded 1870. He is the only witness who has testified with reference to acts of ownership, such as contemplated by Article 3436, to enable a party to maintain the prescription of thirty years. Another witness, Zeigler, testifies that he has known the property about thirty years.

When he knew it first, about thirty years ago, it was cultivated by the owner of Araby plantation.

We are not informed by him that the cultivation was that of an owner, even of the crop, or of one known or looked upon as the owner, nor that the owners of that plantation have since cultivated this land or claimed to own it.

Another witness, Stanbrough, testifies that the land now claimed was in the plantation enclosures after the purchase of J. W. Fisk. The deed of purchase dates from 1852. It is not shown how long it was after the sale.

This witness afterward states that the land was cultivated by Nutt, who was the vendor to Fisk. He only knows of the cultivation.

These are the facts submitted to prove the intention of possessing as owner and the consequent ownership of the realty.

The defendants also plead the prescription of ten years.

After a study of the records we have not found any title in defendants, or their authors, prior to 1882. Title, good faith and possession must concur to maintain this plea.

The question of good faith and possession does not arise, as there is no title upon which to base that prescription.

We will not return to propositions already considered, to show why we reach the conclusion that defendants have no title prior in date to 1882.

It suffices, at this time, to state that in selling and transferring ihe one-half of the east half, it did not include the entire one-half section.

The plea of prescription of thirty years must be overruled; the evidence not having, established the condition required from a date sufficiently remote.

The prescription was suspended during the minority of plaintiffs.

The prescription of ten years or of thirty years does not run against minors. C. C. 3522, 3554.

One of these minors was a minor nineteen years, the other twenty years after their father’s death.

The time necessary to bar their claims is therefore forty-nine years as to one, and fifty as to the other.

It is also objected that plaintiffs have failed to prove title from the government.

The evidence offered, the American State Papers, Yol. 2, to show title in Chileab Smith, the transferee of the United States government, but rejected by the court, should have been admitted to prove the right of plaintiffs’ author as grantee. It is legal evidence. Watkins vs. Holman, 16 Peters, 55; Dutillet vs. Blanchard, 14 An. 97.

It is properly before us by bill of exceptions and will be considered.

In addition, the defendants] trace their title to E. W. Groves, the co-heir of plaintiffs’ father, under which they claim the whole tract.

Their author was Moses Groves, also plaintiffs’ author.

We have already stated that in 1860 defendants’ author, J. W. Eisk, bought from E. W. Groves. They therefore each trace title to the same author.

It is held as settled if the parties trace their title to the same source neither will be permitted to attack the title of their common author. Girault vs. Zuntz, 15 An.

Defendant having no right except such as one derived from E. W. Groves, is a privy thereto and bound by its recitals equally with the author. Greenleaf on Evidence, Sec. 23.

The defendants also contend that the locus in quo is not proven.

That, if it be admitted that a confirmation was made to Ohileab Smith of the whole of section 3, that 360 acres of the section were sold to plaintiffs’ ancestor and that plaintiffs’ right is not barred, there is still nothing to show that they have acquired any right to the east half of the section.

The deed of sale by Sidney M. Smith to Moses Groves describes part of the land as containing 160 acres, and refers particularly t<? Certificate 1499, granted to Ohileab Smith by the commissioner.

The boundaries are also given. They correspond with the descrip tion and boundaries given on the plat in evidence.

The plat locates Section 3, and the boundaries set forth in the deed locates the land in controversy as being in that section.

We therefore conclude that one-half of the east half is the property of plaintiff, viz., 160 acres.

That the prescription of thirty years is not a bar, for the reason that the intention to claim as owners is not made evident by the facts proven.

That the prescription of ten years is unavailing, as defendants’ title does not date ten years prior to the institution of the suit.

That the plaintiffs and the defendants own jointly the east half of section 3, once owned by a common author.

That the locus in quo is proven.

Judgment affirmed at plaintiffs’ costs.


author: Breaux, J. Eenner, J. Breaux, J.

text:
    No. 10,834.
    Carondelet Canal Navigation Company vs. City of New Orleans.
    Our former decree in dismissing this appeal was based upon the fact that it appeared from the record that the judgment appealed from was unsigned, was correct; but under the showing now made that the judgment had been duly-signed and that the omission from the recoi’d of the signed judgment was an error of the clerk which had escaped the notice of the city’s counsel, thepublic interests represented by the city justify us, under precedents of this court, in extending a more liberal relief than could be claimed by merely private litigants.

      The Carondelet Canal Navigation Company was exempted from taxation by an. amendment to its charter, approved March 10, 1858.
    ’The immunity was not repealed by Act 207 of the Constitution of 1879.
    The public benefit anticipated from the corporation is sufficient consideration for the exemption; none other need be shown.
    The plaintiff admits ownership on the part of the State.
    The property being a constituent part of the canal, incident thereto, and serving the purpose of the company in maintaining its navigation, is exempt from taxation.
    A PEAL from the Civil District Court for the Parish of Orleans. VoorMes, J.

      Chas Louque for Plaintiff and Appellee.

      W. B. Sommerville, Assistant City Attorney, and Carleton. Hunt, •City Attorney, for Defendant and Appellant.
   The opinion of the court was delivered by

Breaux, J.

Plaintiff sued out an injunction claiming exemption from taxation on the property described in the petition.

The defendant presented the plea of general denial.

The case was tried.

The judgment appealed from making the injunction perpetual and decreeing the exemption of the property is not signed, nor is there any evidence that it has been actually signed. It was intended to be definitive, and to decide all the points in controversy.

A judgment is incomplete until signed.

That it may be appealed from it must be signed. Bertrand Saloy vs. Collins, 30 An. 63; Jacob vs. Preston, 31 An. 514.

The court will notice ex officio that the judgment is not signed. Chartier vs. Police Jury, 9 An. 42.

Appeal is dismissed at defendant’s costs.

On Application for Rehearing.

Eenner, J.

Finding, on the face oi the record, that the judgment -appealed from had not been signed, we only followed the settled precedents of this court in dismissing the appeal, and no one can question the correctness of our action.

Now, however, the City of New Orleans shows, under certiorari, that the judgment was regularly rendered and signed in the lower-court, that the clerk, in making up the transcript, had erroneously copied only the judgment entered on the minutes instead of the-signed judgment, and that the counsel of the city, misled by the-complete certificate of the clerk, had, through inadvertence, omitted, to notice the defect. Were ordinary litigants and private interests, alone concerned, it would doubtless be too late to obtain relief; but. we can not permit the public interests represented' by the City of' New Orleans to suffer injury by such an inadvertence of counsel. Precedents justify us in extending such protection to municipal corporations with a more liberal allowance than in the case of private-litigants. 1 An. 215; 3 An. 230; 4 An. 180, 352; 7 An. 495.

It is therefore ordered that a rehearing be granted, and acting-thereon, that our former decree herein be set aside, and that the case be reinstated, under submission, for decision in due course, on the merits.

On the Merits.

Breaux, J.

Certain property fronting on Bayou St. John, near its. mouth, was assessed for the year 1888, as the property of the plaintiff company.

It is described as a lot of ground, near the mouth of Bayou St-John, on its east bank, measuring 188 feet front on the bayou by 540> in depth.

The collection of the tax was being enforced by seizure and sale, when an injunction was sued out on the grounds that plaintiffs are the lessees of the said property, and are entitled to the franchises of' its predecessor, the Orleans Navigation Company, and that the property being owned by the State will revert to the State at the expiration of its charter, and that by Sec. 9 of Act 74 of 1858the canal is exempt from taxation.

The court maintained plaintiff’s injunction.

From the judgment the defendant appeals.

The Bayou St. John was a natural stream, and Oanal Carondelet. was known as the work of the Spanish governor whose name it bears.

As public property it became a part of the public domain at the; cession of Louisiana.

In 1805 the territorial legislature incorporated the “Orleans Navigation Company,” and made it the duty, and gave the authority to ■that company, to improve the canal and bayon. The company was authorized to buy and hold other property.

The company having violated its charter by not complying with its conditions was dissolved. State vs. N. O. Navigation Co., 7 An. 680.

The New Orleans Canal and Navigation Company, its successor, having failed to comply with its obligations, the present company, ■the Carondelet Canal and Navigation Company, was incorporated (Act No. 160 of 1857), and the New Orleans Canal and Navigation Company transferred to it all its interests, including the lot of ground seized in this case.

The said act limited the duration of the charter to twenty-ñve years, and provided that the State might, at the expiration of that term, become the owner on paying to the corporation for its improvements and other property which the plaintiff company has the enjoyment. In the event of an extension of twenty-five years, the State reserved the right, without compensation, of becoming the absolute owner of the said property. Another act was passed in 1858, the corporate succession was extended fifty years from that time, and the property it is provided, is to revert to the State on due compensation.

Certain privileges and immunities were granted to the company, among them exemption from taxation until the expiration of. the charter.

The land on which taxes is claimed, plaintiff admits in its petition and in its brief, belongs to the State. It was donated by Congress on April 18, 1814.

The act exempting the plaintiff has not been repealed.

The case falls within the doctrine laid down in 8 Wallace, 430, and 105 U. S. 362.

Act 74 of 1858 amends and is a component part of Act 160 of 1857.

The act of exemption establishes a consideration.

In several decisions the benefits to accrue to the community are specifically set forth. 11 M. 434.

In one of the decisions it is even found that an additional harbor has been created. 29 An. 434.

Benefits anticipated from the corporation are sufficient consideration for the exemption; none other need be shown.. Cooley on Taxation, p. 54.

It is contended that the property can not be regarded as within.' the exemption.

That the Legislature intended to exempt only the property for the improvement of the bayou as a navigable waterway, and no other. The admission for the trial states that the property is. situated on “the right-hand side of the Caiondelet canal and that the same is improved. That the improvements consist of a house rented for a restaurant to third persons, and the other improvements are used by the canal for the storage of their utensils.”

In the case heretofore decided with reference to exempting this-company, the court says:

“The legislative intent was clearly to exonerate the property of the company represented by its stock and the machinery used for the contemplated improvement of the canal and bayou.” 36 An. 396.

The machinery being exempt, the place on the banks of the stream selected to store it and other materials, to protect them from loss and decay, is also exempt. That buildings of some sort are required can not be doubted.

It is a constituent part of the canal necessarily incident thereto.

In Navigation Company vs. Commissioners, 16 Penn., it is admitted that a canal was exempt from taxation, and it was decided by the court “Where a canal is exempt from taxation the toll house*is not taxable,” being necessarily appurtenant to the canal.

In addition, in the pending case, the State reserved the right to become the owner at the expiration of the charter, and declared the canal exempt.

That one of the buildings is occupied as a restaurant does not defeat the exemption. Burroughs, p. 14, Sec. 74, Corporation.

The question relates to exemption of this lot vel non.

The immunity having been granted many years prior to the adoption of the Constitution of,1879 is not defeated by an admission' that one of the buildings yields a revenue as rental without proof of its amount. It is not shown how little or how much is collected as rent.

The exemption and the right to resume possession being expressed in one act of the Legislature, we conclude that the legislative intent was to exempt the canal and the property appurtenant to it and serving the purpose of the company in maintaining its navigation.

The sovereign authority having reserved the right of becoming the owner of this property on the^forfeiture or at the expiration of the term of the charter, we construe the exemption with reference to that right.

Judgment affirmed at appellant’s cost.


author: McEnery, J.

text:
    No. 10,989.
    Succession of Howard McKnight. Opposition of Mrs. Cora E. P. Calhoun, Executrix.
    The administrator of the succession of a deceased administrator filed his final account. It was opposed on theground that the deceased administrator’s succession was liable for the loss of certain real estate belonging to the former succession, which he had allowed, through his negligence, to be sold for taxes. The value of the property was $1276.
    Held, that the opposition was a separate cause of action, an unliquidated claim pre-. sented against the last succession, which could have been urged in a direct action, and the jurisdiction of the Supreme Court must be determined by the amount involved, and not by the amount to be distributed in the succession account offered.
    There was no amount to be distributed which was involved in the opposition to the account.
    APPEAL from the Twelfth District Oourt for the Parish of Grant. Coco, J.

      R. J. Bowman for the Administrator, Appellee.

      Hunter & Hunter contra.

   The opinion of the court was delivered by

McEnery, J.

Howard McKnight was the administrator of the succession of Meredith Calhoun.

He died, and his widow, Elizabeth McKnight, administered his succession.

She filed a final account of her administration. W. S. Calhoun, son of Meredith Calhoun, opposed the final account, the basis of the opposition being the indebtedness of said succession to him, on account of the administration of his father’s succession by Howard McKnight. He died, and Mrs. Cora E. P. Calhoun, widow and executrix, made herself a party to said opposition. She abandoned all the grounds alleged in the opposition except one. There was no item on the account objected to, and there was no attempt made to disturb the distribution of the funds as proposed in the final account.

The ground retained and urged in the opposition is that Howard McKnight, administrator of the succession of Meredith Calhoun, through his fault and negligence allowed certain real estate to be sold in the parish of Rapides for taxes. The real estate thus sold was inventoried at $1276.

There is no sum to be distributed in the succession of McKnight that is involved in this litigation. The opposition is only the statement of a cause of action against the deceased administrator’s succession, for illegal or wrongful acts while administrator of the succession of Meredith Calhoun. It is a matter which can be urged in a direct action. Succession of Sanchez, 41 An. 663; Succession of Scott, 41 An. 504; Succession of Pickett, 41 An. 881.

As it is an unliquidated claim against the succession of McKnight for maladministration of the succession of Meredith Calhoun by the deceased administrator, and presented by way of opposition instead of by direct action for recognition, the test of our jurisdiction is the specific sum demanded. The amount is below the lower limit of our jurisdiction.

The appeal is therefore dismissed.