author: Merrick, C. J. Spoefobd, J.,

text:
    Mithoff v. Town of Carrollton—McCaughan v. The Same.
    Under the law which prescribes the obligation of proprietors of lands bordering upon the river to suffer the servitude of a levee for the use of the public, the soil alone owes the servitude.
    TFhen, for the public safety, it becomes necessary to construct the levee on ground on which buildings had been erected by the proprietors of the soil at a time when no immediate servitude was due the public, and the buildings are demolished for that purpose, the owners are entitled to be com" pensatedfor their value, to be estimated at the time they were taken for public purposes.
    APPEAL from the District Court of the parish of Jefferson, Burihe, J.

      Durant S Ilornor, for plaintiff.

      G. Boselius and F. Preston, for defendants and appellants.
   Merrick, C. J.

We see no error in the rulings of the court, as shown by the bills of exception under the pleadings in this case.

This case is distinguished from the case of Dubose against the Levee Commissioners, in this : that the town of Carrollton deemed it necessary to the public safety and convenience, that the houses of the plaintiffs on the line of the new levee should be torn down, and passed an ordinance for that purpose, which was carried into effect. In the Dubose case, the houses were left standing and the levee was built in the rear of them.

The plaintiffs in the lower court obtained judgment for the value of their houses and the land, as taken for public purposes. The defendants appealed.

It is contended by the defendant, that the case of Dubose is decisive of this, and that the plaintiffs are not entitled to recover either for the land or the houses which were demolished.

Whilst we acknowledge the correctness of the decision in the Dubose case, we think a distinction must be made between the resumption of servitude, which the soil upon the banks of the Mississippi river alone owes to the public, and the destruction of buildings (placed upon the soil before the servitude becomes due,) in order to arrive at the use of such servitude.

At the time the owners of the lots, for which compensation is claimed, built upon them, they owed no immediate servitude to the public of any kind. When they erected the buildings upon them, they had the undoubted right to build in such form and manner as they pleased. They were at liberty to put up buildings costly or plain, according to their fancy, whatever that fancy might be. When so erected, the buildings were theirs in the highest sense of the term, and the property thereof being vested in them, as such owners they were protected from an expropriation in order to arrive at the servitude which the soil alone came to owe, by the constitution, which requires compensation to be made in such eases ; Art. 105. By the wearing away of the bank of the river, the safety of the public required the houses of Mithoff and Bobbins to be demolished and a levee to be constructed over the ground occupied by their buildings. Their land, therefore, by virtue of its location and vicinity to the river, became bound, under the laws which prescribed the obligation of proprietors of lands bordering upon the river, to suffer the servitue of the levee and nothing more. The buildings had not been put up in violation of any law, and they could not be removed from the soil without compensating the owners for them. The town authorities might, as was done in the Dubose case, have run the levee behind these buildings, or in front, so as not to obstruct them absolutely, and the proprietors could not complain. But, when the public, by its proper authorities, chose to pull down the houses, it took from the owners something more than the mere servitude, which was due by the soil: it took a part of the property itself, for which the defendant owes the plaintiff compensation. Art. 105 Constitution 1852.

In Mithoff’s case, the Judge of the lower court has expressed his opinion upon the value of the house, which we adopt. He estimates the value of the house at $600. The materials sold for $60. There should be judgment in favor of Mithoff for $540.

In the case of MoGaughan, who is the assignee of Bobbin’s claim against the town of Carrollton, thS Judge of the iower court has not favored us with the calculation upon which his decree is based. Nor has the plaintiff introduced that certain evidence which was in his power. One of his witnesses says the cost of the buildings on Bobbin’s lots was $11,950. Another says they were worth seven or eight thousand dollars ; but he was never inside the buildings. One of defendant’s witnesses, the Mayor of Carrollton, says, that he assessed Bobbin’s improvements at $3000 or 3500 ; but, like plaintiff’s witness, he had not been inside of Bobbin’s houses.

The prdof is quite clear, that the property of both Mithoff and Bobbins was greatly depreciated by the caving of the bank for some years in front, and the apprehension of a further removal back of the levee. This depreciation of plaintiff’s property was the act of God, and they cannot call upon the defendants to indemnify them for it. All the plaintiffs can require is an indemnity for the value of their houses taken for public purposes at the time thby were so taken.

From all the testimony) we think the estimate of the Mayor nearer the truth than the other witnesses, who seem to have testified not so much to the relative situation and value of the houses, as to their value aside from their situation. We think $3250 the relative value of Bobbin’s improvements at the time his houses were removed and the levee built.

The statues, it appears from the testimony, werfe in a mutilated condition before they 'were set up by Bobbins, and there is no reason to suppose that they Were much injured by the removal, or that thby added much to the value of th'e property.

The witness Fur cell's testimony was only éonjectufal; he hev'ér having seen 'the statues in their perfect state. As they were not iii that condition when placed on the property, the testimony of the witness possesses no value as the basis for the assessment of damages.

Taking the value of Bobbins’ improvements at $3^50, and deducting therefrom $32o, the value of the materials sold by Bobbins, and it Leaves $2925, for which the plaintiff, MoGaughan, is entitled to judgment.

It is, therefore, ordered, adjudged and decreed', that the judgment appealed from in these cases be avoided and reversed, and now proceeding to render such, judgment as ought to have been rendered by the lower court in both cases, it is ordered, adjudged and decreed by the court, that the plaintiff, William Mithoff, do recover and have judgment against the said defendant, the said town of Carrollton, for the sum of five hundred and forty dollars ; and it is further ordered, adjudged and decreed, that said plaintiff, J. J. MoGaughan, do recover arid have judgment against the same defendant, said town of Oarrolltorij for the sum of two thousand nine hundred and twentjr-five dollars, and it is further ordered, that the said Mithoff and Cawjhan each pay one half of the costs of the appeal, and that the defendant pay the costs of the lower court.

Spoefobd, J.,

dissenting, and Lea, J., dissenting. We are unanimous in adhering to the doctrine of the recent case of Dubose v. The Levee Commissioners, 11 An. 165. It was there settled, that the law concerning the expropriation of private property for public use, does not apply to such lands upon the banks of navigable rivers, as may be found necessaxy for levee purposes, and that there is no arbitrary limit fixed by law as the maximum distance at which a levee may be placed back of a caving bank.

“ On the borders of the Mississippi river where there are levees, the levees shall foi’m the banks.” O. C. 448.

An enlarged discretion upon the subject of the location of levees is vested by law in the authorities of each levee distx-ict; not, it is true, an absolute and uncontrolled discretion, but one with which the coui'ts will reluctantly interfere, and only xxpon a clear showing of an abuse of power by the local authorities.

In this case the District Judge found no oppression or abuse of authority on the part of the town officers of Carrollton; in his reasons for judgment he con-concedes the necessity of the construction of the new levee, which the plaintiffs contend has injured them so much, and it resixlts from his opinion that he thought the levee was properly located. In this respect I see no reason to .doubt the correctness of his conclusions.

But, in awarding damages, the Judge based his decree solely upop the legal ground, that the plaintiff’s land owed no servitude to the public, because they did not buy with a front on the river ; and, in this coui’t, the .case has been ■mainly argued on that ground.

The soundness of this distinction cannot be admitted, for the reason, that j,t js impossible to confine the Mississippi river to its primitive bed.

The banks of navigable rivers, and especially of the Mississippi, in this lafi-' iude, are constantly undergoing changes by attrition on one side and accretion cm the othex-. If, in the course of time, they roach the land of a proprietor who 4id not buy originally with a front on the river, he becomes, by that fact alone, .subject to all the sex-vitudes imposed by law upon front proprietors; O. 0.. 446, 661. As well might it be contended, that the government is bound to warrant .such a proprietor against the action of the elements and the encroachments of the river upon his lands, as that he should be exempted from contributing .to the public utility, by yielding his land for levee purposes, without compensation, when the advancing tide makes such a protection necessai’y.

And it results, as a logical inference, that when the houses he has built are upon land thus invaded by the stream and rendered indispensible to be used for levee purposes, they too, like the land on which they are built and of which they foi’m a pax-t, should be yielded up to the public service, without compensation, for it is not the act of man, but the act of God and the law which, .causes their demolition. By the location of the new levee (if it be lawfully and properly located) it becomes, under Article 448 o.f the Code, the river bank and no man’s houses shall obstruct the bank. Their destnxetion is necessary to .the exercise of the servitude; or rathex-, it become? a part of the servitude. I am, ■therefoi’e, of the opinion that, under the general principles of law which wex’e ¡x’ecognized and enforced in the Dubose case, the plaintiffs are entitled to no ,.compensation whatever for their land, nor for such of their houses as stooij directly upon the line of the new levee, as located by the town authorities of Carrollton ; it being conceded, or at any rate not disproved, that the levee was properly run where it now stands.

A question of greater difficulty remains. It would seem, that some of the buildings (of the number and value of which there is no evidence in the record) were not directly upon the line of the new levee, but might have been left standing, as in the Dubose case, between the levee and the river.

The question of compensation, in regard to these buildings, differs from the question as to the other houses by reason of some peculiar provisions of the Civil Code. It is true, that the space between the levee and the river should not be so obstructed as to interfere with commerce; C. C. 440, 061. But I think such of the buildings as might have been loft standing after the construction of the levee in its present locality, should have been left until the proprietor chose to destroy them, or until they fell by their own decay; and this opinion seems to be sustained by the following Articles of the Civil Code:

“ Works which have been formerly built on public places, or in the beds of rivers or navigable streams, or on their banlcs, and which obstruct or embarrass the use of these places, rivers, streams, or their banks, may be destroyed at the expense of those who claim them, at the instance of the corporation of the place, or of any individual of full age residing in the place where they are situated. And the owner of these works cannot prevent their being destroyed under pretext of any prescription or possession, even immemorial, which he may have had of it, if it be proved that at the time these worlcs were constructed the soil on which they are built was public, and has not ceased to be so since.” Civil Code 858.

There is an evident implication that, if it be not proved that the soil was not public at the time the works were built, the owner may prevent their destruction.

The next Article is even stronger: “If the works formerly 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 if these houses or other buildings merely encroached upon the public way without preventing its use, they shall be permitted to remain; but the owner shall be bound when he rebuilds them to relinquish that part of the soil or of the public way upon which they formerly stood.” C. C. 858.

But the value of the buildings which should have been left, in this case, outside of the levee, and which have been demolished, is to be estimated not at their prime cost, nor yet at their- supposed worth before the new levee was built, but by an appraisement of what their value would be with the levee in its present position. Eor, the necessary depreciation of the property by reason of its being thrown without the protection of the levee, as in the Dubose case, is damnum absque injurió,; the acts of God and of the law injure nobody.

As the number of the buildings which might thus have been saved, and their value in case they had been, cannot be deduced from the evidence in this record. I am of opinion, that the causes should be remanded to ascertain the truth upon these matters.

It appears that the assignor of one of the plaintiffs had embellished his grounds with marble statues of Jupiter, Mars, Diana and Neptune. There isa complaint that these works of art were mutilated and defaced by the carelessness of the town agents when the houses were demolished, and that damages should he allowed for this. But the evidence shows that they wore delapidated and disfigured before the servants of the town laid hands upon them;'and, that they -were removed with all the caution that the nature of the case required.

I think, therefore, that the judgment of the District Court should be avoided and reversed, and that the demands of the plaintiffs in these consolidated suits for damages against the town of Carrollton for running a levee across their lands, and demolishing structures immediately upon the line of said levee should he rejected, as also any claim in damages for depreciating the value of their property, by the location of the levee; and that their claim in damages for the demolition of such of their buildings as might have been spared without preventing the construction of the levee in its present position should be recognized, and the causes remanded to the District Court for the purpose of ascertaining the number and assessing the value of such buildings, according to the principles hereinbefore stated.


source: Caselaw Access Project

author: Merrick, O. J.

license: Public Domain

text:
    State v. John C. Wilson.
    District Judges have power to admit the accused to hail, at chambers, without proceeding by habeas corpus. An error in the mode of proceeding will not invalidate the decree or the bond taken under it.
    Deputy Sheriffs are expressly authorized by law to> represent the Sheriff in all duties confided to the latter. They have the power to receive an appearance bond and discharge the accused upon its execution, although the order of the Judge directed it to be taken by the Sheriff.
    "When the bond has not been filed it cadnot be considered as in evidence, or as produced on the
    APPEAL from the District Court of the Parish of Iberville. Robertsonr J.

      M W Mo'ise, Attorney General, for the State.

      Z. Latowr, for accused..
   Merrick, O. J.

The accused having been arrested on thq charge of inveigling; a slave, applied to the Judge of the District for a writ of habeas corpus.

It does not appear that any writ actually issued, but the Judge of the District Court made an order admitting the accused to bail, on furnishing his bond with two good and solvent sureties, in the sum of three thousand dollars. The Sheriff was directed to take the bond.

A bond comes up with the record in due form purporting to have been, signed by J. G. Wilson and throe sureties. It was acknowledged before the Deputy Sheriff. It does not appecvr to have been filed in the District Gowrt.

An indictment was preferred against the accused, and, failing, to answer, a judgment nisi was rendered against him and his sureties, which was made final, and his sureties have appealed.

We will consider the questions presented by the appellants in their order :

I. Could the Judge make the order to admit to bail, at chambers, without having the accused before him on a habeas corpus ? The District Judge had power to admit the accused to bail, and we do not consider an error in the mode of proceeding as invalidating the decree or the bond taken under it.

II. Could the Deputy Sheriff receive the bond when the order of the Judge directed it to be taken by the Sheriff? We think the Deputy Sheriff had the power to take the bond.

Warrants, executions and other orders are commonly addressed to theSheriffj yet, no one doubts but they may be executed by the Sheriff through his deputies. See form of fi. fa., Act, 1855, 477. See Sewell v. Sheriff, 33, 35.

The Deputy Sheriff is expressly authorized by law to represent the Sheriff in all duties confided to the latter. C. P. 771 \ Act, 1855, 866 ; see 5 An., French text.

In judicial sales, nothing is more common than for the Deputy Sheriff to take the twelve months’ bonds and other obligations given at such sales. We see no reason why he may not perform the duty imposed upon the Sheriff in taking an appearance bond and discharging the accused upon its execution. Were it not so, the discharge of the accused from custody would depend upon the presence of the Sheriff, and the imprisonment might be prolonged on account of his absence.

III. The third point made is, that the bpnd <toes not make proof of itself, that the forfeiture of the condition was not proven, and that the bond was not offered in evidence. Had the bond been filed we might, perhaps, have inferred from the orders declaring its forfeiture, that it was in evidence, and before the court as a part of the proceedings. But, as the bond has never been filed, we think it cannot be considered as in evidence, or as produced on the trial. Under the authority of the case of the State v. Cooper, 3 An. 225, the judgment must be reversed. We will remand the cause.

It is, therefore, ordered, adjudged and decreed by the court, that the judgment of the lower court be avoided and reversed as to the said Henry Keller, Mathews Ma/i'r and Charles F. SUMs, and that this cause be remanded to thp lower court, there to he proceeded in according to l,w.


author: Voorhies, J. Spoefokd, J.,

text:
    George W. Lewis v. The City of New Orleans.
    Hie principles of law settled ip the case of Stewart v. The City of Jtfew Orleam-, 9 An. 461, reaffirmed.
    Under that authority, held? that the city was pot liable ip the present case for the nonfeasance or misfeasance of the officers .of the police jail.
    Appeal from the Sixth District Court of New Orleans, Cotton, J.

      Durcmt & Honor, for plaintiff and appellant,

      J. Livingston, for defendant.
   Voorhies, J.

The plaintiff alleges in substance that on the 9th of January, 1855, he placed Jesse, a slave belonging to him, in the parish jail of the city of New Orleans for safe keeping and correction; that whilst impxlsoned, he was under the care and charge of the officers employed by the defendant, who derived thereby a pecuniary profit by receiving a per diem compensation; that during his imprisonment, he was employed in doing sundry work and labor-incident to the daily routine of such an establishment, in the course of which he was uecessarily exposed to cold and wet, so that he took sick; that his sick-' ness continued to increase for some weeks, until he became dangerously ill, and no care was taken of him; that the jailkeeper neglected and failed to notify the petitioner of the sickness of Jesse or to dispose of him as required by the city ordinances; that some three or four months after his slave was in jail, he heard by accident that he was yory sifik and required his immediate .attention; thereupon he forthwith proceeded to the jail and took him away — hut being then so far overcome by his sickness ho died a few days thereafter; and that the city is bound to repair the damage which he has thus sustained in consequence of the gross negligence of its agents in exposing his slave unnecessarily and in failing to take care of him whilst sick, or to give notice of his sickness.

The plea set up in the answer is, that there is no cause of action disclosed on the plaintiff’s petition, the defendant not being liable for the illegal or malicious acts of any of its employees.

The plea was sustained and the plaintiff appealed.

We do not think the Judge erred. The power of the corporation to erect a police jail, to employ officers to superintend it, and to pass ordinances for its government, is in effect a power granted for public purposes, and not private advantage or profit, as contended for by fhe appellant According to the principle announced in the case of Stewart v. The City of New Orleans, 9 An. 461, and which we consider conclusive upon the subject, the city cannot be made hable in the present case for the nonfeasance or misfeasance of the officers of the police jail.

It is, therefore, ordered, that the judgment of the court below he affirmed, with costs.

Spoefokd, J.,

dissenting. This case went off without evidence, upon an exception that the petition disclosed no right of action. Its averments are therefore, in the present inquiry, to he taken as true.

These averments are, that the plaintiff entrusted his slave to the agent of the city, to be placed in the parish jail for safe keeping and correction; that the city derived a pecuniary profit therefrom in the daily compensation paid by the owner; that the agents of the city, in disregard of the laws and ordinances, unnecessarily exposed the slave; failed to take care of him while sick, to return him to his master, to send him to the hospital, or even to notify the master of his illness; and that he died in consequence of the gross negligence and want of care Of the city’s agents under these circumstances, to the damage of the petitioner in the sum of §1,500.

Is there any cause of action stated? According to the uniform jurisprudence of this State, up to the 9th Annual Reports, I think there is.

In Chase v. Mayor et al., 9 La. 346, the city was released from a claim for the value of a slave sent to the calaboose, and who had runaway from the chain-gang, on the ground that the agents of the city forthwith gave notice to the master’s agent of his escape.

In Houston v. The Police Jury of St. Martin, 3 An. 566, the proprietor of a showboat descending the river Téche, in the parish of St. Martin, had been detained and caused to lose time by the neglect of the person employed to open a draw in a drawbridge which obstructed the navigation’ of the river. The court said: “ Erom an examination of the evidence we have come to the conclusion that there was neglect on the part of those for whose acts the parish is responsible, and that the parish is bound to repair the damage caused thereby.” The proprietor of the boat had a judgment against the parish.

In McGary v. The City of Lafayette, 4 An. 440, the Supreme Court rendered a judgment in damages against the city beyond the actual injury suffered by the plaintiff; “for the violent and illegal proceedings of the officers of the corporation.”

The ease of Johnson v. Municipality No. 1, 5 An. 100, was entirely analogous to the case stated in the present plaintiff’s petition. The owner of a slave who had died from neglect of the keeper of a prison where he was confined, had judgment against the municipality for his value. The court unanimously adopted the opinion of the District Judge, which commences with the proposition that “the liability of municipal corporations for the acts of their agents, is, as a general rule, too well settled at this day to be seriously questioned.”

In 5 An. 504, MaLauglin recovered judgment against the Municipality No. 2, for damage occasioned by loss of rents in consequence of the commissioners of that municipality having warned him to stop building under certain proceedings which had been commenced for opening a street, but which was after-wards discontinued.

In Walling v. Mayor, &c. of Shreveport, the incorporated town had pleaded an exception that it was not responsible in damages for a trespass done by its officers and agents in laying out a street. The exceptions were overruled, the court observing: “the case, as the record presents it, is that of a corporation exercising through its officers, in an unskillful and improper manner, powers avowedly vested in the said corporation by its charter. It does not differ in principle from that of McGary v. The City of Lafayette, in which the plaintiff recovered large damages from the city of Lafayette because the agents of the corporation had executed in an improper manner the corporate power delegated to them.

“We understand the exception pleaded by the defendants to be applicable only to cases in which officers or agents of corporations do acts injurious to others in the pursuit or accomplishment of objects not within the scope of the powers of the corporation. The distinction appears to us clearly stated in the case of Anthony v. The Inhabitants of Adams, 1 Metcalf, 286.”

It is contended, that this series of decisions was overruled by the judgment in Stewart v. City of New Orleans, 9 An. 461, in an opinion which made no allusion to either of them. It is not neccossary to question the correctness of the decree in the case of Stcwm't. There was judgment for the defendant upon a claim by the owner against the city, for the value of a slave of his who had been killed by a detachment of police officers. But the reasons assigned for the decree, whether right or wrong, are not binding on this court as a precedent, because they were not the opinion of a majority of the court, but of two Judges only ; two Judges dissented altogether, and the third only concurred in the conclusion that the municipal government was not liable in that particular case, without assenting to the doctrine of the opinion.

Without at present going into the grounds of the opinion pronounced by two Judges in the Stewart case, founded mainly upon the opinion of a court not of the last resort in the State of New York, I deem it sufficient to say, that the plaintiff in this case has, in my judgment, stated a legal cause of action against the city, under the authority of the .cases hitherto adjudged in Louisiana.

I think the exception should be overruled, and the cause remanded for a trial upon the merits.

Justice Buchanan took no part in the decision of this case.


author: Buchanan, J.

text:
    Catharine L. Campbell, wife of John Walker, v. John M. Bell, Sheriff, et al.
    Where the wife had obtained a judgment of separation of property from her huáband, and subsequently purchased property in her own name, and .the proceedings were charged by the creditor^ of the husband to have been fraudulent and collusive between the wife and the husband — Held: That to support the.wife’s separate title, the judgment of separation is-not sufficient. The creditors have a right to demand the evidence on which it was rendered.
    ’It must also be shown that the property was purchased with the wife’s separate funds.
    APPEAL from the Second District Court of New Orleans, Morgan, J.

      J. Q. A. Fellowes, for plaintiff and appellant.

      .&. F. MePheeters, for defendants.
   Buchanan, J.

This is an injunction of the execution of-a judgment against

-.the husband of the plaintiff as a defaulting administrator of a succession, and was dissolved by the District Court .for the .following .reasons, in which we entirely concur:

“In February, 1851, Walker was appointed curator of the succession of •Spencer Gates. His administration resulted in a judgment against him, and in favor of the estate, in the sum of $?3? 89, with interest at the rate of twenty per cent, on the sum of $909 40 from the 8th of August, 1851.
“ Under this judgment, execution issued and property was levied upon.
“His wife has enjoined the sale. She had obtained a judgment in March, 1843, dissolving the community of acquets which existed between herself and husband, and also in her favor for $2200, amount of paraphernal property which her husband had used.
“ Subsequent to this judgment, she purchased at succession sales some of the property, the sale of which she has enjoined here, and the rest she purchase at a Sheriff’s sale, made under .an alias fi. fa. issued in October, 1855, on the judgment obtained by her.
“ The representative of the succession of Gates has put her upon the proof of the verity of this judgment. He alleges that it was obtained by fraud and collusion between herself and her husband, upon illegal and insufficient testimony, and that no attempt has been made to execute it by bona fide, nor interrupted suit. He specially denies what is alleged in her petition, that these purchases were made with her paraphernal and individual funds, and avers that she has not boon possessed of nor has she exercised any rights of ownership over the property.
“ Thus put her upon defence of her judgment, she has given in evidence the publication of the decree dissolving the community, but she has offered nothing but the judgment, which, under the allegations in the answer, is not sufficient. She does not .offer the evidence upon which it was rendered, and this the defendant herein had the right to demand, and this it was her duty to furnish. Her not having done so must be taken as evidence against her. Mure v. Tarborough, 11 L. 533.
“ Neither has she shown that desire to enforce a prompt and bona fide execution of the judgment, which is required by Art. 2402 O. O. She introduces in evidence an alias fi. fa. issued in October, 1855, (the judgment was obtained in 1843) ; but what became of the first fl. fa., which should have been returned before the second issued; when it was issued, what was made of it, or whether it issued at all, arc facts which could have been easily proved, which she was bound to produce under the pleadings, if they existed, and which are not to be found in the record, this being the case within the rule laid down in Mure v. Tarborough, 11 L. 533; Bostwick v. Gasquet, 11 L. 513; Berlie v. Walker, 1 R. 431; Longino v. Blackstone, 4 An. 513. But admitting the correctness of the judgment, she does not attempt to show that the money with which she purchased property in 1840 and 1850 was purchased with her paraphernal funds, which she was called upon to do. It no where appears that her paraphernal property, if she ever had any, amounted to more than $2200. She has not shown by proper evidence any attempt to make this judgment, until long after she pretends to have acquired property with her own funds. Neither is it shown, that after the dissolution of the community she ever made or could have made by her industry the money with which this property was purchased.
“ Upon the whole, I am forced to say that the judgment of separation is not binding against third persons, and that the act of the parties seem to have had for their object the securing of the husband’s property from the pursuit of his just creditors, and those are proceedings which courts of justice cannot sanction.”

The appellee has filed an answer to the appeal, praying that the judgment of the District Court be amended by allowing damages of twenty per cent, upon the judgment enjoined against the principal and surety in the injunction bond, according to the Act of 1833.

We think this is a case for the application of tho statute in question. The record informs us that the present is the third injunction which has been issued to stay the collection of a debt incurred by the misconduct of the plaintiff’s husband. See the case of Gates' Succession v. Walker, 8 An. 277. It is fit that a warning should be given to those who lightly affix their signatures to bonds for such purposes.

It is, therefore, adjudged and decreed, that the judgment of the District Court be amended; that the injunction herein issued be dissolved, and that the succession of Spencer Gates, appellee, recover of Oatherine L. Campbell, widow of John Walher, and of J. T. Sling eeda/nd, principal and surety in the injunction bond, m solido, one hundred and forty dollars, as damages, with costs in both courts.


author: ■ Spofford, J.

text:
    J. T. Mason and Wife v. E. B. Towne.
    An action to compel the specific performance of a verbal contract to sell land, with an alternative prayer for damages, resulting from the breach, of the contract, cannot be sustained, even if the contract be proved by competent evidence, unless there has been an actual delivery of the property sold.
    Appeal from the District Court of Madison, Farrow, J.

      J. J. Ammonet, for plaintiff and appellant.

      Short & Parham, for defendants.
   ■ Spofford, J.

This is a suit to compel the specific performance of an alleged verbal promise to sell a tract of land. In an amended petition the plaintiffs introduced an alternative prayer for damages resulting from the breach of the contract.

“A promise to sell amounts to a sale, when there exists a reciprocal consent of both parties as to the thing- and the price thereof; but, to have its effect, either between the eonPraeiing pm’ties or with regard to other persons, the promise to sell must be vested with the same formalities as are above prescribed in Articles 2414 and 2415 concerning sales, in all cases where the law directs that the sale be committed to writing.” C. C. 2437.

The Article 2415, thus referred to as applicable to the promise to sell as well as to an actual sale, is in these words:

“All sales of immovable property or slaves shall be made by authentic act, or under private signature. All verbal sales of any of these things shall be null, as well for third persons as for the contracting parties themselves, and the testimonial proof of it shall not be admitted.” C. C. 2415,

There is no exception to this rule embodied in Art. 2255: “Every transfer of immovable property or slaves must be in writing; but if a verbal salé, or other disposition of such property be made, it shall be good- against the vendor, as well as against the vendee, who confesses it when interrogated on oath, provided actual delivery has been made of the immovable property or slaves thus sold.”

Conceding that this Article also applies to a promise to sell, (upon which it is not necessary to give an opinion,) the plaintiffs must fail in the present action, because they have not alleged or proved an actual delivery of the property sold. Nor have even the allegations of the petition been established by competent evidence. See Marionneaux v. Edwards, 4 An. 103.

Judgment affirmed.


author: Buchanan, J. Spojtobd, J.,

text:
    State v. Jean Lacombe.
    The District Judge did not err in refusing to charge the Jury, that the law under which the prisoner was indicted for larceny is contrary to Article 117 of the Constitution of 1852 and the corresponding Articles in the Constitutions of 1812 and 1845, prohibiting the adoption by the Legislature of (iny system or code of laws by general reference thereto.
    The 88d section of the Act of‘May 4th, 1805, was in force when the first of those Constitutions was; adopted, and they have no retrospective operation.
    Since the adoption of the first State Constitution,, it has been recognized that the common law of England is the law of Louisiana, to the extent and with the limitations provided in that section of the law of 1805.
    The District Judge is prohibited by law from charging! the Jury on matters of fact.
    The constitutional jurisdiction of the Supreme Court, in criminal matters,not extending-to facts, the depositions of witnesses form no i>arfc of the record of appeal, and the copying of such by the Clerks of the District Court, into the transcript, is consequently improper.
    The Act of 1855, relative to crimes and offences, does not violate the 115th Article of the Constitution of 1852.
    A PPEAL from the District Court of the Parish of East Baton Rouge, BobertSon, J.

      E. W. Mdiser Attorney General, for the State.

      J. J. Bm% for
   Buchanan, J.

The prisoner was convicted of larceny on an indictment framed under the 28th section of an Act relative to crimes and offences, approved 14th March, 1855. He was sentenced to an imprisonment at hard labor for one year, and has appealed.

The District Judge did not err in refusing to charge the Jury that the law under which the prisoner was indicted is contrary to the Article 117 of the Constitution of 1852, and the corresponding Articles in the Constitutions of 1812 and 1845.

The 33d section of the Act of May 4th, 1805, (Bullard & Curry, page 248,) was in force when the first of those Constitutions was adopted. In numerous' decisions of this court, since the adoption of the first State Constitution; it has-been recognized that the common law of England' is the I&w of Louisiana, t'o" the extent and with the limitations provided in that section of the law of 1805, which section is moreover expressly preserved in force by the 73d section of the Act relative to criminal proceedings, No. 121 of'the Session Acts of 1855. In the face of these judicial and legislative recognitions of the validity of the' Act of 1805 in its adoption of the common law of England as the standard of definition of crimes and the rule of criminal proceedings, we cannot think of giving- the 117th Article of the Constitution of 1852, and' the Corresponding-Articles of the Constitutions of 1812 and of 1845, a retrospective operation.

The other portion of the charge requested by the counsel of prisoner from the District Judge, refers, as we understand the bill of exceptions, to a matter of fact upon which the Judge was prohibited by law from charging. His refusal to give the charge was, therefore, perfectly correct. The argument of the-counsel of appellant upon this point, in this court, turns principally upon depositions of witnesses before the committing magistrate, which, by some means or other, have found their way into this transcript. Our constitutional jurisdiction in criminal matters not extending to facts, we only notice' those depositions for the purpose of admonishing the Clerks of the District Courts- that the depositions of witnesses in criminal cases are no part of the record-of appeal; and that the copying- of such into the transcript is consequently improper.

A. point is made by appellant’s counsel," that the court refused to charge the jury in writing, as provided by the statute; but by reference to the bill of exceptions, it appears that the charges required in writing by the counsel, were charges which we have just decided the Judge correctly refused to give the. Jury, either orally or in writing. Of such refusal there can be no record; except the bill.of- exceptions. A written, charge of the court to the Jury, contrary to the opinion of the Judge upon the-law, is a self-contradiction and an absurdity.

The Act of 1855, relative to crimes and' offences, does not, in our opinion,, violate the 115th Article of the Constitution of, 1852..

It is, therefore, adjudged and decreed, that the judgment of the District. Court be affirmed, with costs.

Spojtobd, J.,

concurring. The only bill of exceptions in the record is in these words:

“The defendant, by his counsel, required the court to charge the Jury in this writing: That the three Constitutions, these hitherto adopted — that in 1812, superseded by that in 1845, superseded by that in 1852, this actually reigning; each and all prohibited the Legislature from adopting any foreign system of laws, specially contemplated the adoption of the common law of Eng‘ land in criminal matters, and more specially the instructions that larceny formed any exception to the otherwise universal rule that the jurisdiction to inquire of crimes was the place of commission, and that our statute can only be construed to have adopted of the common law of England in criminal, matters the instances denominated precised in our statute; and that the instruction that larceny forms an exception to the otherwise universal rule of the common law, is not denominated precised in our statute, but must be considered under the universal rule of our system of laws, that the jurisdiction-to inquire of crimes, larceny, is the place of their commission, and-not elsewhere. In the clear, uncontrovertible sense, that under our system that larceny cannot be inquired of wherever, but only where committed. The court refused' to charge conform-ably, and to' such refusal; counsel tendered this, his bi¿l of exceptions, to be signed; this the court refused in this form, but stated it would afford counsel the opportunity to except to the court’s refusing to charge the- matter orally, When counsel required the- oral charge, which the court refused, and signed this bill of exceptions accordingly.
(Signed) W. B. Robertson, Judge.”

I do not think the Judge erred in refusing to charge eitherín' “ this writing” or orally, as requested- by the prisoner’s counsel. The object of a charge from the Judge is to enlighten Jurors as to their duties, and not to darken their understanding. The desired instructions, as detailed in the bill of exceptions, are confused and unintelligible; and I think that was a sufficient reason for refusing to give them.

Upon the constitutional' questions treated of- by Mr. J. Buchanan, I concur in his opinion.


author: Spoeeord, J.

text:
    John M. Trescott—Hart, Labatt & Co., Transferrees, v. W. Lewis.
    If proper parties join issne upon questions either of law or fact, before a competent court, they must abide by the decision.
    The form of procedure, by a rule instead of an injunction, to arrest an execution; having been re-sorted to without objection, and a decision rendered thereon after issue joined on the merits,Held: that the defendant in execution, by whom the rule was taken, could not afterwards renew the litigation by resorting to an injunction.
    The judgment discharging the rule was precisely equivalent to a judgment dissolving an injunction, in lieu of which the rule was taken.
    Such judgment, if not appealed from within the legal delay, would have the finality requisite to sus-* tain the plea of res judicata, and although the time for appealing- from it may not have elapsed, it precludes any further action of the court on the matters set up on the rule.
    Appeal from the District Court of East Eeliciana, Satliff, J. Tried by a jury..

      J. O. Fuqua, for plaintiff and appellant.

      Muse & Hcardee, for defendant.
   Spoeeord, J.

The case was formerly before us on a motion to quash the execution issued upon a judgment against the defendant. 11 An. 184.

Within a month after the mandate of this court was filed in the court below, William Lewis took another rule on- Hand, Labatt & Oo., transferrees of Trescott, to show cause why the seizure made under the judgment should not be released, and the writ of execution quashed, on the grounds, first, that Hart, Labatt & Go. were not owners of the judgment; secondly, that the twelve months’ bond given for the judgment had been fully paid by him; and thirdly, that the bond was barred by the prescription of five and ten years.

Heart, Labatt & Go. joined issue upon the rule by a formal plea, denying every allegation therein, except the fact that a fl. fa. had been issued at their instance, and property of the defendant seized; they further pleaded res judicata as to that part of the rule which related to the twelve months’ bond.

It appears that there was a trial of these issues before a competent Judge, that a note of testimony offered was taken, and that a judgment was rendered and signed in the following terms:

“This case having been taken up for trial on the rule by consent, by reason that the law and evidence is in favor of defendants therein, Hand, Labatt & Go., and against the plaintiff, William Lewis, it is, therefore, ordered, adjudged and decreed, that this rule be' discharged, at plaintiffs’ costs.
(Signed) €L W. Watekston,
Judge of Eighth, presiding in Seventh Judicial District.
April 28th, 1866.”

On the 28th May, 1866,. William Lewis sued: out an injunction in regular form against the same execution, upon the same- allegations in substance as wore set forth in the rule which had been thus discharged after a hearing upon the merits; to wit: that Han't, Labatt & Go.- did not own the judgment; that it had been paid, and that it was prescribed.

The defendants in injunction (plaintiffs in execution) interposed to- the injunction suit the plea of resjudieata. They at the same time filed another special plea in these words: “In- this case Han't, Labatt & Go. now come, in addition to the exception of res judicata herein filed, further excepting, say, that said Lewis had no legal right to obtain said injunction, for the reason that he had previously taken a rule upon these defendants to dissolve the execution herein; that said rule had and was designed to have the same effect as an injunction, viz: the dissolving of the execution and release of the property seized, and was really a substitute for one; and that the facts set up in said petition, if they ever existed- at all, existed at the time of the taking of said rule, and that said rule having been dissolved, he is precluded from setting up any matters existing at or prior to the time when it was taken.” Wherefore a dissolution of the injunction was prayed for, with damages.

Both these exceptions having been overruled, an answer to the merits was filed, and after a hearing, there was a, verdict and a judgment perpetuating the injunction, from which the present appeal is prosecuted.

We are of opinion that the court should not have- gone into a trial of the merits of the injunction, but should have sustained the exception quoted above.

It is apparent upon the face of the pleadings, and was also proved aliunde by the plaintiff in injunction himself upon the trial of the exception, that the rule raising the question of ownership, payment and prescription, was intended as a substitute for an injunction; the motive for resorting to such a form of proceeding was a representation by one of the counsel for Lewis to the counsel for Han't, Labatt & Go. that Lewis was not in a condition to give an injunction bond.

It matters not that the proceeding by rule was irregular, since the party against whom it was taken, as a favor to his adversary, waived all questions of form and joined issue upon the merits. Here are all the elements of a suit at law, actor, reus, et judex. The form of procedure is immaterial; if proper parties join issue upon questions, either of law or fact, before a competant court, they must abide by the decision. Exceptúo rei judicatm, obstat quoties inter easdem personas, eadem quastio revocaiur vel alio genere judicii. See Plique & Lebeau v. Perret, 19 L. 323.

The tenor of the judgment which discharged the rule shows that it was rendered upon the merits of the controversy; all the proceedings under the rule tend to the same conclusion. Under such circumstances a judgment discharging- the rule was precisely equivalent to a judgment dissolving an injunction, in lieu of which it appears that the rule was taken, and ajudgment dissolving an injunction upon the merits, after answer filed, has the finality which is requisite to sustain the plea of res judicata. Wells v. Hunter, 5 N. S. 120. The court discharged the rule on the 28th April, 185G, for the expressed reason that the law and evidence on the trial were in favor of defendants, Hart, Ldbatt & Go., and against the plaintiff, William Lewis.

We conclude that, had the proper time elapsed, this decree would have sustained the plea of res judicata in all its technicality.

But the year for appealing from the decree had not expired when the exceptions were interposed, nor has it yet. Article 3522, No. 9, of the Civil Code declares that the “ thing adjudged is said of that which has been decided by a final judgment, from which there can be no appeal, either because the appeal did not lie, or because the time fixed by law for appealing is elapsed, or because it has been confirmed on the appeal.”

If, therefore, the technical plea of res judicata will not hold, because there is time yet to appeal from the judgment on the rule rendered 28th April, 1856, still the question recurs, should not the other branch of the defendant’s exception to the injunction have been sustained, and the plaintiff left to his appeal, instead of litigating over again in a new action the matters already decided by the same court.

The question has been settled affirmatively by two decisions of this court.

In Florance v. Wilcox, 14 L. 58, a cause very similar to this, and one where the year for appealing from the first judgment had not expired when the second rule was taken, the court held that where the legality of issuing the order of seizure and sale had previously been put at issue by the defendant, in a formal opposition, and the injunction granted at the instance of the defendant had been dissolved, the Judge did not err in discharging the rule for another injunction.

“The previous decision precluded any action of the court in relation to the matters set up in the rules which wore substantially those which were included in the defendants’ previous opposition.

The doctrine was expressly affirmed by us in the recent case of Moch v. Garthwaite, Giffen & Co., 11 An. 287.

A plaintiff in execution might be perpetually baffled in collecting his money if injunction after injunction can be sued out from the same court on the same grounds, as fast as they are dismissed. If the judgment debtor acquiesces in the decree overruling his first opposition, it becomes res judicata as to the points there put at issue. If he does not acquiesce, his remedy is by appeal, and if he pursues that, then there is Us pendens, and he should not bring a new suit for the same cause.

It is, therefore, ordered, that the judgment of the District Court be avoided and reversed, and the injunction sued out in this case be dissolved without damages, and without prejudice to the right of appeal from the judgment of 28 th April, 1856; the plaintiff in injunction paying costs in both courts.


author: Sroiroiin, J.

text:
    Winter Iron Works v. John Toy.
    The Acts of the Legislature, approved March 7th, 1816, and March 16th, 1818, pointing out the manner of obtaining residence within the State, related to the acquisition of political rights.
    They prescribed condition? on which a political domicil could be acquired.
    A person who actually lives In the State, animo manendi, must be sued personally. He cannot be brought into court by attachment, because he has occasionally gone outof the State, for temporary purposes, in each year since he came to the State to live.
    APPEAL from the District Court of West Baton Rouge, Robertson, J.
    . Dcwicl JST. Barrow, for plaintiffs and appellants..

      Samuel P. Greaves, for «defendant.
   Sroiroiin, J.

The plaintiffs have appealed from a judgment dissolving the attachment sued out in this case.

The attachment was procured on the sworn allegation that the defendant resides out of the State. He contends that, at the the date of the attachment, he resided in the parish of East Baton Rouge, in this State.

We think it clear, from the evidence, that he did so.

The appellant’s counsel indeed seems to admit that the defendant in part resided in this State, but urges that, as the State of Indiana was the domicil of his origin, and he had not remained uninterruptedly in the State for any entire year since he came here to live, he had not, at the time of attachment, acquired a legal residence in Louisiana pursuant to the Acts of 1816 and 1818. Bul. & Our. Dig. 286, 287.

We are of opinion that these statutes, if still in force, relate to the acquisition of political rights, and do not conflict with the rule of natural justice, that a person who actually lives in this State, animo manendi, should he personally «cited, and not brought into court by attachment on an allegation that he resides out of the State.

It is true a different interpretation was given to the Acts of 1816 and 1818 in the ease of Boone v. Sewage, 14 L. 189, a case cited with approbation in the case of State v. Judge of Probates of New Orleans, 2 Rob. 451.

But we think the correct construction of these statutes was indicated in the later case of Amis v. Bank of Louisiana, 9 Rob. 350, where they were spoken of as prescribing the conditions on which a political domicil in this State was to he acquired.

We are of opinion that the defendant cannot be said to reside out of the State in the sense of the Code of Practice, because he has occasionally gone out of the State, for temporary purposes, in each year since he came hither to live. He does not “reside out of the State” while he lives in it facto et animo manendi.

Judgment affirmed.


text:
    Nolan’s Heirs v. Louisa Jane Taylor et al.
    The fees for services of an attorney at law, although he has acted under an appointment by the court, as tutor ad litem, for minors, cannot be recovered in a proceeding by rule,,.after the determination of the litigation in which he has been employed.
    APPEAL from the District Court of West Baton Rouge, Robertson, J.

      R. G. Beale, for appellant.

      A. 8. Herron, for appellee.
   Merrick, O. J.

It is admitted by the appellee’s counsel, that the statement of facts contained in the brief of the counsel for the appellant is correct. We adopt it. It is as it-follows-:

John Nolan, of West Baton Rouge, died about the year 1852, leaving an estate worth about three hundred thousand dollars.”
“ Said Nolan left no forced heirs. His family consisted of his wife and her two children by a former husband. Nolan leit a wilLby which he gave to his said wife and her two children, legacies of fifty -thousand dollars each; also, appointing his -said wife sole executrix-of his will.'”
Nolan's heirs at law, who were his two'brothers, and the descendants of his deceased brothers and sisters, instituted suit to set aside the provisions of said will by which said legacies were given. Mrs. Nolan, not having qualfied as natural tutrix to her said children at the time said suit was instituted, the plaintiffs prayed that a tutor ad litem should be appointed to represent said minors in said suit. The court appointed James M. Elam, tutor ad litem to said minors. But very soon after said appointment Mrs. Nolan qualified as natural tutrix, and the court then appointed J. M. Elam under tutor. Mrs. Nolan, as soon as she had qualified, employed counsel to defend the interests of her children, in common with her own, arid excepted to the appointment of Elam as tutor ad litem. A compromise was then concluded between the heirs of Nolan and L. J. Taylor, {Mrs. Nolan,) the latter acting for herself and for her minor children, being authorized thereto by a family meeting.”
“By said compromise, Mrs. Nolan agreed to take for herself and children eighty thousand dollars, instead of one hundred and fifty thousand, and pay all the costs of the suit, and also to resign the trust of executrix.”
“ Soon after the compromise John T. Nolcm was appointed dative testamentary executor,- and J. M. Elam filed in the court a motion to have his fee as tutor ad litem fixed, which motion he caused to be served on Robert G. Beale."
“ The court appointed two attorneys as experts, to examine into the matter, and report as to what Elam's services were worth. Said experts reported that the services were worth three thousand dollars, and in pursuance thereto the court gave judgment to that amount in favor of Elam, and against John T. Nolcm, executor of Nolcm's will.”
“Before rendering the above judgment, by the court, R. G. Beale filed an exception to the proceedings, upon the following grounds :
1st. For the reason that there was no litigation pending to authorize the proceeding by rule.
2d. Appearer has not been cited as attorney for any of the parties to show ■cause why the fee should not be assessed.
3d. By the compromise referred to in the said motion, Mrs. L. J. Taylor agreed to pay whatever amount should be due to Elam.
4th. Appearer was not and is not counsel for Mrs. Nolan in said case, hut was counsel for the opposite party.
5th. There has been no default taken in this case.”
[Signed] R. Q-. Beale.

It is urged by the appellant in this court, that it was irregular and illegal to proceed by rule in order to recover the attorneys fees against the estate, and that the service on Robert O. Beale was an insufficient service, because he was •pot the attorney of Mrs. Nolam and her children hut was the attorney for John T. Nolam and others, Nolan’s heirs.

It is further prged, th^t the claim is not due by the succession hut by the legatees for whom the services were rendered, and must he paid hy them out of their own means.

Vo think the first of these objections well taken, and express no opinion upon the other, which involves the constructiop of the compromise.

The fees for services of an attorney at law, although he has acted in the relation of a tutor ad litem, under an appointment hy the gourt, we think cannot be recovered in a, proceeding by rule after the determination by a final judgment of the litigation in which he has been employed. It comes within the rule laid down by this court in the case of Thomas, administrator, v. Bourgeat, 6 Rob. 437, where it is said, that “Thg right to proceed by rule or on motion implies the pending of a suit between the parties, and is confined to incidental matters which may arise in the progress of the contestation, except in certain cases where the summary proceeding is expressly allowed by law.” Sge 3 An. 434; O. P. 170.

Tye know of no law providing for the [¡rial of the demand of the curator ad litem, for his fees, after final judgment, hy way of a summary proceeding. Perhaps, under the present law, it would be more regular, except in concurso, to commence such proceeding hy petition and citation in all cases. See Acts 1855, 162, §1.

One pf the great evils complained of under the law previous to the Constitution of 1845, was the allowance of fees to attorneys acting as curators, &c., on a simple motion. To prevent this abuse, the 71st Article of that Constitution, was adopted. Under that Constitution, the Act of 21st March, 1850, was passed, which provides, “ That in any suit or proceedings where a fee or compensation not established hy law be involved, it shall be allowed to either party to pray for a trial by jury, whether sai4 fee or compensation be claimed from an insolvent estate or a succession, whether by way of opposition or otherwise.”

This statute has been reenacted by the first section of the Apt of 1855, just cited.

Under this law, which allows the trial by jury, it is the 4uty of the courts to prpvent the recurrence of those evils which were incident to the loose manner in which compensation was allowed under the old law, to attorneys and others.

A regular suit in which the opposite party is cited, anA has an opportunity of being heard by way of answer, is one pf the best safeguards, and oughf not to be dispensed with, where the same can be conveniently resorted to, even ¿luring the pendency of the suit,

In the case before us, however, thp judgment between the parties tp the original suit had become final before the rule was taken, and, consequently, there was no suit on which it could be engrafted, conceding a rule to be a regular mode of proceeding.

It is, therefore, ordered, adjudged and decreed by the court, that the judgment of the lower court be avoided aud reversed, and that said rule be discharged as in case of anon-suit, the plaintiff in the rule paying the costs therein in both courts.


author: Spoitobd, J.

text:
    Daniel Searles v. James J. Costillo.
    Actual possession of the land is a fact indispensible to be proved in order to sustain’ the possessory action. O. P'. 47.
    A mere civil or legal possession is insufficient, unless it is shown to have bfeen pl-eced'ed at some time by' a natural possession1 in the plaintiff or his authors.
    APPEAL from the District Court of the parish' of East Baton Rouge, Robertson, J.

      J. J. Burle, for plaintiff and appellee.

      Á. M. Bunn, for defendant.
   Spoitobd, J.

The defendant appeals from a judgment again'st him in* a possessory action.

The: plaintiff offered a witness, who proved that the land1 which is the'object of the action has been lying vacant and unoccupied ever since the plaintiff pretends to have acquired it, up to the time of the alleged disturbance by thé defendant-.

To show possession as owner, the plaintiff offered a parish tax collector’s deed purporting to have conveyed this land to him on the 4th January, 1849,-it being, sold- for taxes said to be due upon it by Elilm Henderson's heirs,- for the year 1847: he also offered1 the Auditor’s certificate to the effect that, the' property in question was assessed in the name of the heirs of Elilm Henderson, for thb' year 1847, and that since 1850 it has been assessed» in the name of the' plaintiff Numerous receipts for the" payment of his State and' parish taxés were also offered by the plaintiff, and there he rested his case.

He must suffer a non-suit. There is no evidence that he, or his authors, ever had a real actual possession of the land, a fact indispensible to be proved in order to sustain this possessory action. C. P. 47; Davis v. Dale, 2 An. 205. A mere civil- or legal possession is insufficient,- unless it be shown to have been preceded at some time by a natural possession in the plaintiff or his authors. Ellis v. Prevost, 19 L. 251. It is not shoiVn that Hendei'soris heirs, the plaintiff’s authors, ever had even a civil'possession, and it is shown that the plaintiff’ himself never had a natural possession. The payment of taxes may announce' the possessor’s intention to preserve the possession1 of the thing, when he or ids predecessor has once had a corporal possession, but it will not constitute á' corporal possession. 0.. O. 8467.

It is, therefore, ordered, that the'judgment of the District Court be avoided and reversed, and that the plaintiff’s petition be dismissed-as in- a casé of non-suit,. he paying costs in both courts.-


author: Spoeford, J.

text:
    Blanche E. Bourgeat, wife of A. Plauché, v. Constance Dumoulin and Husband.
    A donation inter vivos, in which the donor makes a reservation in favor of himself of an annuity sufficient for his subsistence according to his previous habits and condition in life, is not a donation “ omninrn, bonorum,,” prohibited by Article 1484 of the Civil Code.
    APPEAL fi;om the District Court of West Baton Rouge, Robertson, J. Tried by a Jury.

      IT. B. & B. Phillips and W. II. Oooley, for plaintiff and appellant.

      Louis Janin and^Provosty. & Bm'ra/i", for defendant.
   Spoeford, J.

This suit was brought by one of the collateral heirs of Onil Bourgeat, deceaseds to annul' an act of donation inter vivos, made by said Onil Bourgeat to the defendant, his sister-in-law, nearly a year before his death. The plaintiff has appealed from a judgment rendered upon the verdict of a jury in favor of the defendant.

The donation is formal upon its face, but the appellant maintains that it was absolutely null, because it was a donation omnium bonorum, prohibited by the Article 1484 of the Louisiana Code: “The donation inter vivos shall in no case divest the donor of all* his property (cfépouiller entiérement le donateur); he must reserve to himself enough for subsistence; if he does not do it, the donation is null for the whole:”

The fact that it was a dbnation omnium bonorum is denied by the appellees. It appears that some household-furniture, a'horse, a watch, &c., and a claim'to a tract of land in St. Landry, which had-never been reduced to possession by the donor, were not embraced in the donation. Moreover1, the act itself makes the following reservation in favor of the donor: “La présente donation est ainsi faite El la charge ci-aprés expliqué’e savoirr que la demoiselle donataire s’oblige par ces présents, sofennellement et fidélement, de donner chaqué année au sieur donateur une somme d'e quatre cents piastres et pendant- toute sa vie- pour le soutien et 1’entretien du dit sieur donateur et en outre á cause de 1’attachement et de l’amitié que le dit sieur donateur porte á la dite demoiselle donataire, et parceque telle est la volonté du dit sieur donateur.”

It is in proof that the-sum- of four hundred dollars annually would have been, quite sufficient for the subsistence of the'donor, according to his previous habits and to his condition in life; that ho was passionately addicted" to hunting, and spent much of his time in the woods; that the land and slaves which form- the subject of this donation, for many years previous thereto had failed- to yield him a net revenue much exceeding the sum of four hundred dollars, and sometimes not so much; and that he could' live mure comfortably and to his tastes with a fixed income of this sum, and-without the cares of a planter’s life; than by retaining the property with its precarious and fluctuating revenues.

But it is contended by the appellant that the Article" 1484 contemplated a reservation of property in kind, and that this annuity or charge cannot be considered as property in the sense of that Article. This construction would be too narrow; it is not even borne out by the literal terms of the French text; it does not represent the fair meaning of the English text.

By a donation with the reserve of an annuity a man might render his subsistence for life more sure and ample than by retaining the property itself, and a donation under such a charge is not prohibited, as is the donation with a reserve of the usufruct to the donor.- O. O. 1520.

Donations inter vivos are liable'to'b’e revoked or dissolved for the non-performance of the conditions imposed on the donnee. O. O. 1540.

“In case of revocation or rescission on account of the non-execution of the conditions, the property shall return to the donor free' from all encumbrances or mortgages created by the donee; and the donor shall have, against any other persons possessing the immovable property given, all the rights that he would have against the donee himself” O. O. 1555.

“In all cases in which the donation, is revoked or dissolved, the donee is not hound to restore the fruits by him gathered' previous to the demand for the revocation or rescission. But in case of the non-fulfilment of conditions which the donee is bound to fulfil, if it be proved to have proceeded from his fault, he may be condemned to restore the fruits by him received since his neglect to fulfil the conditions.” O. O. 1562.

The punctual payment of the annuity is thus fully guarded by law, and unless it be paid, all the property donated- reverts to the donor unincumbered by any act of the donee.

The annuity thus guarded is itself a property, and-the donor reserving it has not stripped himself omnium T>ononim. He remains his own master, with an income to spend as he pleases.

We do not question the correctness of the decision of the case of Lagrange v. Barré, 11 Rob. 302, which is relied upon by the appellant. The donor there reserved no property, nor any sum of money to he paid to himself; he threw himself upon the bounty of his donee; he reduced himself to the condition of a penniless man, dependant for food, clothing, medical attendance, and the other necessaries of life, upon the promised gratitude of the person to whom he gave his all; the very imprudence which it was the object-of the prohibitory law to remedy. The court rightly held that “the law-maker never intended that on a simple stipulation of alimony a man should divest himself of all his property by donation inter mvos.”

The only question then must be one of fact:- was the sum of four hundred dollars a year enough to support the donor in his condition in life? The jury found that it was, and our perusal of the evidence has led us to the same conclusion.

The judgment is, therefore, affirmed.


text:
    City of New Orleans v. W. North.
    Under the city ordinance providing that “ every keeper of a transient theater, circus, menagerie, or other public exhibition or show, shall pay in advance a tax of ten dollars for each performance,rr &c., a tax cannot be levied on one who keeps a permanent establishment for an exhibition consisting of natural and artificial curiosities, for admission to which visitors are charged a certain
    APPEAL from the Second District Court of New Orleans, Morgan, J,

      F. G* La/oille & Morel, for plaintiff

      Simons & Former, for defendant and appellant.
   Merrick, O. J.

This case comes up on the following agreed statement, viz:

“It is admitted that the defendant has kept, as charged in the petition, a certain exhibition, consisting of natural and artificial curiosities, such as animals, fishes, paintings, cosmoramic views, &C., &c., on St. Charles street, opposite the St. Charles Hotel, for admission- to which he charged each visitor the sum' of twenty-five cents, and that the' same is a permanent establishment, and that the defendant resides in the city of New Orleans, and that no performances are exhibited there except as above stated.”

The petition charges the defendant with “conducting the trade or profession of exhibiting a museum and other curiosities, both natural and artificial, as a show, daily and nightly each day”’ and claims from the defendant three hundred and fifty dollars for thirty-five days’ exhibition of the curiosities of said museum, at ton dollars per day.

There is also a demand in plaintiff’s petition for' seventeen dollars and fifty cents, it being a tax of five per cfent. levied under an ordinance of the city to pay the interest on the bonds due-' the Pontchartrain Railroad Company. As this tax is a per centage upon thb‘ tax of ten dollars per day,- it is evident that it cannot be levied unless the other tax is rightfully' assessed.-

If> the defendant is indebted’ to the city at all- it is in virtue either of the fourth or seventy-first sections of the “ordinance to establish an uniform rate of taxes and licenses on professions, callings,- and other business, and on carriages, hacks, drays, and other vehicles.”

Those two sections provide that the taxes and’licenses shall be fixed, assessed and collected at the following rate, viz:

“Sec. 4. On every keeper'or lessee of a theater or amphitheater, $300.
“Sec. 71. Every keeper of a transient theater, circus, menagerie, or other public exhibition or show, shall pay, in advance; a tax of ten' dollars for each performance, unless the same takes place in one of the establishments on which the annual tax has been paid; and'every violation of this section shall be punished by a fine of twenty-five dollars, enforced'- by imprisonment as the law directs.”

The question presented by the appeal in'-this case is whether a tax has been levied upon the calling of the defendant by either of these sections.

It is clear that the defendant is not the keeper of a theater or'amphitheater, and therefore not within the fourth section of the ordinance. His business is not of that kind which admits of a convenient exhibition of his curiosities at a building constructed as a theater or amphitheater, hence the “performances” could not well take place at one of the establishments on which an annual tax has been paid, unless the annual tax be considered as the ordinary city tax fixed by law, which is paid by every owner of real estate. Therefore, if the defendant is liable to a tax at all, he is liable to pay for his “daily and nightly exhibition each day” the enormous tax of $7,300 per annum.

But the agreed statement of facts in this case shows that the defendant is a resident of New Orleans,, and that his establishment is a permanent one. The seventy-first section of the ordinance has reference only to transient theaters, circuses, menageries, or other public exhibitions or shows. The permanent occupation of the defendant is therefore not provided for by this section, and as it is not pretended that any other section of the ordinance has made provision for the levying of a tax upon the permanent business or calling of the defendant, it must be held to be a casus omissus, and the defendant left to the effect of the ordinary taxation upott> property.

The judgment of the lower court condemning the defendant to pay the tax must be reversed. ,

It is, therefore, ordered, adjudged and decreed by the court, that the judgment appealed from be avoided and reversed, and that there be judgment in favor of the defendant; the plaintiff paying costs in both courts.


text:
    Rosa Mahier, f. w. c., v. V. LeBlanc, Jr., et al.
    A charge of simulation in a judgment or contract will be controlled by an accompanying averment, that certain specified credits were not allowed, which, if they had been allowed, would still have left a balance due the party obtaining the judgment, or in whose favor the contract was made.
    The draft sued upon being an instrument sous seing privé, and no proof aliunde offered of its date, the only date which can be assigned to it is that of its protest.
    The mortgage and seizure by executory process of the defendants having been made before the debt of plaintiff accrued, the latter is precluded, by Art. 1988 of the Civil Code, from having them annulled, as made in fraud of her rights.
    from the District Court of West Baton Rouge, Robertson, J.

      J. J. Bwrk, for plaintiff and appellant.

      E. B. Robertson and E. R. Brunot, for defendant.
   Buchanan, J.

This is a revocatory action instituted by a free colored woman, as bearer of an acceptance of the late Yillenewoe LeBlane, Senior, of a draft in her favor, of the following tenor:

“Ouest Baton Rouge, 80 JYovembre, 1849,
$ 5588 92.
Le premier novembre, mil huit cent cinquante (1850) veuillez payer á mon ordre et au Bureau du Recorder de cette paroisse, la somme de cinq mille cinq cent trente-trois 92-100 piastres, valeur reque, que vous passerez sur le compte de votre servante,
Rosa Mahier.”
Monsieur Yillenewoe LeBlanc, Ouest Baton Rouge.”
Signed across the face “ V. LeBlanc.”
Endorsed in blank “ Rosa Mattter.”

By a notarial protest filed with the draft, it is certified that the same was presented on the 4th November, 1850, to the drawee for payment; and that the drawee replied to said demand that he had no funds to pay the same or any part thereof.

The object of this suit is to annul and set aside certain judgments, and the seizure and sale of property in execution thereof, in favor of the defendants, children of Yillenewoe LeBlanc, Senior, the acceptor of the above described draft, as having been rendered and made in fraud of the plaintiff, as creditor of said Yillenewoe LeBlanc, Senior.

The petition alleges simulation as well as fraud in the judgments and contracts complained of. But this allegation is viewed by us as controlled by subsequent allegations in plaintiff’s petition, to the effect that Yillenewoe LeBlcme had not been allowed certain credits in his accounts with his children, which credits are specifically set forth, and which, if allowed, would still have left a balance due his children by him.

To this action the defendants have pleaded, as peremptory exceptions:

1st. The plaintiff has no right to sue to annul an obligation or contract made before her debt accrued.

2d. This being a revocatory action, is barred by the prescription of one year.

The' defendants also pleaded, by way of answer, in case their exceptions should be overruled, that the acceptance and draft held by plaintiff was a disguised donation to a concubine, made to evade the law, and without any legal consideration.

The case was.tried upon the exceptions, which were maintained by the District Court, and the suit dismissed. The plaintiff has appealed.

Upon the first exception: the draft held by plaintiff purports to be dated the 80th November, 1849 ; but, being a writing sotes seing privé it has, per se, no date as against third persons. The acceptance of the draft bears no date, and for the determination of the antiquity of the claim of plaintiff, as compared with the contracts and judgments which she seeks to annul, the only dat^ which can be assigned to that claim is the date of the p2’otest, to wit: the 4th November, 1850 ; for no other proof has been adduced of the existence of the draft, or of of any other legal consideration for the same, at a previous date to that protest.

On the other haird, the defendants are proved to have held mortgages gi'anted them by three several authentic acts, dated the 27thFebruai*y, 1850, for balance of account acknowledged to be due them, severally, by ViUeneuve LeBlane, senior, as their natui’al tutor; on which mortgages importing confession of judgment, three seve2*al writs of seizure and sale were regulary issued on the 16th Septembei’, 1850 ; and. after demand of payment made of the debtor on the 30th October, 1850, the property mortgaged was duly advertised, and was sold by the Sheriff on the 7th December*, 1850, to the defendants, as the last and highest biddei-s. This statement of facts shows that the mortgages and the seizures by executory process of the defendants wer*e made before the time the draft of plaintiff accrued, and, consequently, under Article 1988 of the Civil Code, cannot be annulled at the suit of plaintiff, as made in fraud of her rights. 12 L. R. 201; 17 L. R. 353.

Our opinion upon the first exception renders it unnecessary to examine the plea of prescription.

It is, therefore, adjudged and decreed, that the judgment of the District Court be affirmed, with costs.


text:
    J. L. Delee v. Sandel & Hardee, Administrators.
    The assignor of a claim, being bound to warrant the existence of the debt assigned, is not a competent witness to prove the debt, without a previous release, and cannot establish sucli release by bis own testimony.
    The usual and proper course is, for the release to be tendered to the witness before he is sworn in the cause ,* and when the testimony is taken under commission, to insert it in the return, with the Commissioner’s certificate that it was so tendered. 1

    Appeal from the District Court of East Feliciana, Ratliff, J.

      J. R. Bowman, for plaintiff and appellant.

      Muse & Eardee, for defendant.
   Buchanan, J.

This is a claim against the succession of Wade E. Qaulden, brought by an assignee and attempted to be proved up by the testimony of the assignor, John Jeter. The defendant excepts to this witness, on the ground that he is bound in law to warrant the existence of the debt assigned. This objection ought to have been sustained, Jeter was clearly incompetent without a release, and there is no release in the record. He was examined under a commission, and in answer to the fourth interrogatory propounded to him by plaintiff he says, “ I am in no manner whatever bound as warrantor or otherwise on said account. I have a written lease signed by John S. Delee, somewhere among my papers, releasing me from all responsibility on account of this claim. But I cannot now lay my hand on it.” This will not suffice. The plaintiff ought to have put on record a release of the liability of this witness over to him, in such a shape that it would have appeared beyond the possibility of being afterwards contradicted by him, plaintiff, that this witness when he gave his testimony, was free from the risk of loss by the result of the suit. As it is, we have nothing emanating from the plaintiff. Wo have merely the say so of the witness, that he has been released; And the obliviousness of this witness, upon the natural facts upon which he was examined, as for instance: the particulars of the settlement between himself and Gaulclen, and of the consideration of the transfer by himself to plaintiff of the claim now in suit, is not calculated to inspire us with confidence in the accuracy of the witness’s recollection of the release which, he tells us, is someiohere among his papers, but which he does not take the trouble to hunt up and produce. The usual and regular course is, for the release to be tendered to the witness before he is sworn in the cause ; and that the release be inserted in the return to- the-commission with the certificate of the Commissioner that it was so tendered.

AnotheS'witness has been examined, also1 under a commission, to prove the pretended settlement between Ganlden and Jeter, on which this suit is founded. But the evidence of this witness {Dyer) is inconsistent with the allegations of the petition, for the petition alleges that,, some time in the year 1849, Gaulden became indebted to Jeter “in a settlement had between the parties,, itr the sum of eight hundred dollars besides the sum- of two hundred and eighteen dollars and forty cents, omitted in said settlement by the said Jeter and Gaulden.1' The witness Dyer states, “I was present when the settlement was made, and assisted the parties in making it, and the balance due to John Jeter by Wade 3. Gcmlden was one thousand and eighteen dollars and forty cents, and •was agreed to by loth the parties." This is obviously not the settlement declared upon in the petition; At all events, the rejection of Jeter's testimony leaves the plaintiff’s case supported by one witness alone, which would be insufficient to entitle him to a judgment, the amount demanded being over five hundred dollars.

Turning, to the evidence of defendants, we find that, while the testimony of plaintiff relates entirely to a verbal acknowledgment of indebtedness by the deceased, Gaulden, (the date of which acknowledgment is fixed by the amended petition at the 5th March, 1849,) defendants have produced the following-document signed by Jeter, of that same date:

“ Keulaktown, March 5th, 1849.
This is to certify, that I have this day made a full and final settlement with' Wade 3. Gaulden, which,is in full of all and every demand up to this date.
John Jetee.”

There is a hill of exceptions taken by plaintiff to the admission of this document in evidence; but it was clearly admissible under the plea of payment, in the answer.

It is, therefore, adjudged and decreed, that the judgment of the District Court be reversed, and that there bo judgment for defendant, with costs in both courts.

Merkicic, C. J., was recused in this cause.


author: M-errick, C. J.

text:
    Gabriel Loubière v. Octave LeBlanc et al.
    The acceptance of a succession may be established against an heir by proof of payment of its debts by bitn. He may however rebut the legal presumption arising from such proof, by showing that iff was done under protestation or with other motives and intentions than that of accepting.
    "Where the heirs have formed a partnership, acts done in the partnership name, which would imply an acceptance of the succession, are presumed to be concurred in by all, and will bind them all in the absence of contrary proof.
    Appeal from the District Court of West Baton Rouge, Robertson, J.

      ¿S. P. Greenes; for plaintiff and appellant.

      B. W. Robertson, for defendants.
   M-errick, C. J.

This suit is brought against the defendants to charge them, as heirs of their father Tilleneme LeBlanc, Sfr., with a debt of $729 89, and interest, due upon a promissory note given by the deceased.

The-defendants are interested as partners in the plantation and slaves which belonged to the deceased, and which they caused.to be sold during his life time, it seems, to satisfjr a large sum of monojr due them' by him, their said father, as tutor.

On the trial- in-the lower court, in order to prove-the acceptance of the defendants as heirs purely and simply, the plaintiff offered to prove by witnesses that the defendants had paid certain debts of the deceased; but it turning out, on an examination of the-witnesses, that the debts were paid by the partnership Tilleneme LeBlanc, Jr. & Co., it was objected' by defendants’ counsel that the .testimony was inadmissible to charge the heirs in their individual capacities. This objection being sustained by the court, the plaintiff excepted, and judgment having been rendered in favor of the defendants; he has appealed.

It is not doubtful that the heir may testify his acceptance of a-succession by the payment of debts as well as other acts. The principle is recognized' in Article 995 of the Civil Code. It is as follows :

“An act of piety or humanity towards one’s relations is not considered as an acceptance; it is not, therefore, an acceptance to take care of the burial of the deceased, or to pay the funeral expenses even without protestation.”

The principle implied by this Article has its origin in the Roman law.

“ Cum debitum paternum te exsolvisse alleges: proportiono hereditaria ag-novisse te hereditatem defuncti non ambigitur. Code L. VI, T: 30, Const. 2; Ibid. L. Ill, T. 28, § 1, Const. 8.

But, as the heir may have other motives in paying the debts of the deceased, ■’than those of accepting the succession, he may rebut the presumption arising from the payment of debts, by showing- that it was done under a protestation or with other motives and intentions. See 8 N. S. 556, 557, Flower v. O'Conner.

The testimony offered was not the less admissible, because the receipt was taken in the name of the firm. It should have been received, leaving to the heirs who did not join in the payment, the right to show that it was done without their knowledge or approbation. For it is clear that the acceptance of a succession can be as effectually brought about by the joint act of all the heirs as by the separate act of each; and where the heirs have formed a partnership and do an act in their partnership name as heirs, they must all be presumed to have concurred in it, and if the contrary be pretended, they should be left to rebut the presumption by showing the real facts under which such payment was made. As the furniture and other movables in the possession of the defendants appear to have been claimed by the heirs prior to the death of their ancestor, the testimony now in*the record is insufficient to charge them as heirs on that account; for it appeal’s they claimed it under another title than that of heirs. But, as we shall remand the case on account of the rejection of testimony, we shall leave the whole case open.

It is, therefore, ordered, adjudged and decreed by the court, that the judgment of the lower court be avoided and reversed, and that this cause be remanded to the lower court for a new trial, with instructions to the court to receive the testimony offered to prove the payment of the debts of the deceased by the defendants, although it shall appear that such payments were made in their partnership name; and it is further ordered, that the defendants pay the •costs of the appeal.


author: Merrick, C. J.

text:
    E. Hébert et al. v. J. C. Woods.
    PlaintiffsT claim to 574 63-100 arpens of land was confirmed by Act of Congress of 28fch February,» 1823. He claimed 574 63-100 acres, .and in 1849 his claim «was surveyed as containing this latter quantity, and the survey approved. ■ Held: That the plaintiffs’ title to the whole 574 63-100 acres would no doubt be. good against third persons, and against any one not claiming under the United States Government; but that it is not so as against a purchaser from the Government, whose patent must prevail against a mere survey without title.
    APPEAL from the District Court of West Batoij Rouge, Robertson, J. Tried by a Jury.

      David JJ. Borrow, for plaintiffs and appellants.

      J. E. Elam, for defendant.
   Merrick, C. J.

This suit is brought to recover of the defendant a small ¡tract of land. The controversy grows out of a conflict in the boundaries of the respective tracts of land claimed by the plaintiffs and defendants.

The original grant through which the plaintiffs claim by mesne conveyances was reported to Congress, January 6th, 1821, in these words:

“ Class Third.
“No. 104. * * * *
John Baptist Hebert claims a tract of land situated in the parish of West Baton Rouge, containing five hundred and seventy-four aspens and sixty-five-hundredths, fronting on the Mississippi, and bounded on the upper side by lands of Alexis Hébert, and on the lower side by lands of Charles Hebert.
“ The claimant proves uninterrupted possession and cultivation ever since the year 1792.”

This claim so reported was confirmed by the Act of Congress approved 28th February, 1823. 3 vol. Statutes at Large, p. 727.

In the applications to the different Boards of Commissioners, as well as in the accompanying survey, the claim was for 574 63-100 acres instead of arpents.

The tract of land does not appear to have been finally surveyed until 1849, when it was surveyed as containing 575 81-100 acres, and the survey approved by the Surveyor General.

By this .survey, the tract of land extends in the rear diagonally into township 8, Range 11 East, and cuts off 28 acres from the East half of the SouthEast quarter of section 23 in said township, the land claimed by the defendant.

Now, if plaintiffs’ claim is limited to 574 68-100 arpents, it will not interfere with the land claimed by defendant.

The defendant claims title to the said East half of section 23, in township 8, range 11 East, in virtue of the Receiver’s receipt, dated 14th November, 1842, and a patent issued in May, 1843.

The question is thus presented: which of these titles must prevail ?

The plaintiff contends that the Act of Congress was but the recognition of a pre-existing right, and that the courts can go behind the confirmation, in order to ascertain the true boundaries and quantity of land contained in claimants’ grant or claim.

The plaintiffs either claim under the Act of Congress or under some prior valid grant from the French or Spanish authorities. If the latter, it should have been produced, and the Act of Congress would not have been necessary. But the plaintiffs produce no such title. It is clear, therefore, that their title .depends upon the Act of Congress. When we examine the Act, we find that plaintiffs’ author claimed 574 63-100 acres, and that Congress granted him 574 •63-100 arpents, and the United States Surveyor, in making the survey, set off -to plaintiffs 575.81 acres, including 28 acres of the land claimed by the defendant under his purchase and patent.

The plaintiffs’ title to the whole 574 63-100 acres would no doubt be goo.d ¡against third persons and against any one not claiming' under the United States .Government. But as between the defendant’s patent and the claim of the plaintiffs for ajl contained in the tract covered by the patent, (which still leaves the plaintiffs their 574 63-100 arpents,) it is evident there is a patent for title on one side and on the othei*only a survey without title.

The patent must prevail. But it is suggested that the entry of the half quarter section has been cancelled. If this b.e so, it should have been made to ¡appear by proof in the record. It is further said, that the survey made by the United States Deputy Surveyor shows no conflict between the plaintiffs’ tract of land and the East half of the South-East quarter of section 23 in township ■8, range 11 East, as shown by the Parish Surveyor.

We think the plaintiffs are precluded from questioning the conflict in the boundary, after admitting on the trial that “ there was no dispute about the locus in quo of the property in dispute.” The plat furnished by the Parish Surveyor is the only one showing the relative positions of the tracts, and the •admission must be considered as having reference to the plat. Moreover, it is not pretended that the defendant has cut any wood or trespassed beyond the boundaries of his half quarter section.

Judgment affirmed.


author: Spoefobd, J.

text:
    J. P. Heiss v. Denis Cronan.
    Where the true agreement between the parties in relation to the transfer of real estate, can only be arrived at by consulting parol evidence which is inadmissible, a title cannot be established.
    APPEAL from the Second District Court of New Orleans, Lea, J.

      A. R. Ogden & Stansbury, for plaintiff and appellant.

      O. B. Duncan, for defendant.
   Spoefobd, J.

The plaintiff sues to be recognized as co-proprietor with the defendant to the extent of an undivided half interest in a tract of land purchased, in the name of the defendant, at a syndic’s sale.

The petition alleges that the original purchase was made in the name of Oronan, for the joint interest of Oronan and the plaintiff, hut that the former fraudulently witholds the property and claims the whole.

Parol evidence was offered to prove the verbal acknowledgments of Oronan, that the facts are as alleged. The testimony was properly rejected. O. O. 2255, 2256, 2415. The allegation of fraudulently denying the original bargain, does not take the case out of the rule, for a verbal agreement of this sort, touching immovable property, is only capable of being enforced at law when the party to be charged confesses it on oath and actual delivery has been made. Every refusal to carry out an oral agreement for the conveyance of land, might in one sense be charged to be fraudulent, and thus the rule would be made nugatory.

But the plaintiff further relies upon an unsigned draft of a power of attorney in the handwriting of Oronan, empowering the latter, as agent of the plaintiff, to represent him in any suit at law which might be brought against any interest he might have in the tract of land bought by Oronan at the syndic’s sale. This iocument was never executed by the plaintiff, nor accepted by the defendant. At the time it was written, there may have been negotiations between the parties as to an interest which wore never consummated. It is not an admission in writing by the defendant, that the plaintiff was owner of an undivided moiety of the land the title to which was adjudicated to Oronan alone; nor can this unfinished and indefinite instrument be eked out by parol.

Finally, the plaintiff relies upon the fact, that in a former suit prosecuted in the name of Oronan alone, (Reiss being in no manner a party,) against the syndic and the succession of John MeDonogh, to clear the title to the land in question from a pretended claim of the MeDonogh estate, the counsel of Oronan offered as a part of his evidence, a projet of an act of sale of the land in dispute purporting to be from the syndic, “ to Denis Oronan and John P. Reiss, the said John P. Reiss b.eing herein represented by the said Denis Oronan.”

The act was not dated nor signed by a notary, or any one else.

If this projet had been offered in a suit to which Reiss was a party, or in which there was any issue as to their respective interests in the land, it would have constituted an admission sufficient to estop the defendant Oronan from denying that Reiss was jointly interested in the land with himself. The authority cited by the appellant from 5 An. 22, Denton v. Irwin, would then have been applicable.

there is no judicial admission in the former suit, that Heiss was equally interested in the purchase, Gronan claimed the whole tract, conducting the suit in his own name. The adjudication was to Gronan alone, and the adjudication was the tille; after the adjudication and before the formal act of sale was passed, there might have been a negotiation between Gronan and Heiss to give the latter an interest in the purchase, and & projet of an act might have been drawn up with that view, which was afterwards abandoned. The projet although offered in evidence by Gronan, under these circumstances, does not prove the land was sold at the syndic’s sale to Gronan & Heiss, and cannot prove that they ever were co-proprietors thereof, unless it is supplied by parol proof, which, as we have already stated, is inadmissible.

It is proper to remark that there seems to have been some mistake also in offering this projet; for the notes of evidence in the former suit, also relied upon by the plaintiff in the suit, speak only of a projet of sale to D. Gronan, not to Gronan and Heiss, and it appears in this case that such a projet was drawn.

The true agreement of the parties can only be arrived at by consulting parol evidence, which we are not permitted to do.

Judgment affirmed.