text:
    No. 10,262.
    The State ex rel. City of New Orleans vs. The Judge of the Second City Court.
    Act 136 of 1880 does not repeal Act No. 90 of 1877, which is a special statute relative to the-"bringing of suits by the city of New Orleans, before justices of the peace, for the collection of licenses, and to the tax to he paid "by the city on instituting such suits.
    Act 136 of 1880 is a general statuto, which fixes taxes to he paid in the shape of stamps, in all" suits brought before district and oity courts in New Orleans and which is not incompatible with the Act of 1877. Both can he reconciled and. stand together.
    Stamps for $1.50 on a license for $50 by the city is sufficient, and the city judge should issue-, process.
    APPLICATION for Mandamus.

      W. B. Sommerville, Assistant City Attorney, for the Relator.
   The opinion of the Court was delivered by

Bermudez, C. J.

This is an application for a mandamus, to compel’ the defendant to sign and issue process in a case before his court.

The defense is, that the stamps required by law were not affixed to the claim and that, until such stamps have been attached, the judge is-prohibited from acting.

It appears that the city of New-Orleans brought suit by rule, against-a party for a license, claiming $50 and that stamps for $1.50 wore-placed on the claim filed.

The city judge contends that the city ought to have affixed stamps: for $3.00; that the Act of 1877, No. 90, on which the city relies, was-repealed by Act of 1880, No. L36, and that by the latter, stamps foiv $3.00 are required, on a claim between $40 and $60.

The Act of 1877 had for its object to authorize the imaging of city suits for licenses and taxes, before courts of justices of the peace uncí to fix the costs in such cases.

The Act of. 1880 proposed to fix the fees of clerks, sheriffs and constables in the district and city courts for the parisli of Orleans.

The former was a special and the latter is a general statute.

It is true, that the Act of 1880 repeals all laws inconsistent with it .and all laws on the same subject-matter, but this repeal does not apply to special laws which are not evidently or irresistibly repugnant to the .general law and not on the same subject-matter.

Had the Act of 1880 distinctly stated that, in all cases, including those brought by the city of New Orleans for licenses, the stamps on '.all claims between $40 and $60 shall be $3.00, instead of $1.50, as fixed by anterior laws, the clash would have been so irresistible that the two •acts could not have co-existed.

Taken together, the Acts of 1877 and of 1880 simply mean, that, ■except in suits brought by the city of New Orleans, under Act of 1877, ■the stamps in each case shall be affixed as regulated in the Act of 1880.

Repeals by implication are not favored by law.

Authorities need not be quoted on this question. It is a fact advanced by counsel representing the city, that such has been the nni■form understanding and application of the law as well by city judges as by tbe Civil District Court in the exercise of its appellate jurisdiction over such city courts, and this statement is not contradicted.

This Court has already held, that laws anterior to first Monday in August, 1880, relative to justices of the peace, and which were not «1 early repealed, are still in existence and maybe enforced by the city courts created by the Constitution, Art. 135, which are assimilated to such justices. 33 Ann. 146; 37 Ann. 575.

Considering, therefore, that the required amount of stamps has been affixed by the city of New Orleans in the suit in question,

It is ordered and decreed that a peremptory mandamus issue to the judge of the Second City Court directing him to sign and issue the preliminary process in the suit mentioned in this proceeding, brought by the city of New Orleans against A. Chiapella, No. 71, of the docket of his court.


source: Caselaw Access Project

author: Pocnb, J.

license: Public Domain

text:
    No. 10,198.
    Henry Beer et al. vs. W. B. Leonard.
    tiood faitli and possession aro not sufficient, to acquire immovable property by tbe prescription of ton years.
    A title sufficient in form to transfer immovable property is required as the basis of prescription.
    A purchaser of immovable property cannot be judicially coerced to accept a doubtful title.

      APPEAL from the Civil District Court for the Parish of Orleans. Tissot, J.

      Omer Villero for Plaintiffs and Appellants.

      Bayne, Denegre & Bayne for Defendant and Appellee.
   The opinion of the Court was delivered by

Pocnb, J.

The object of plaintiffs in this suit is.to enforce an agreement of the defendant to purchase from them a piece of immovable property, which they hold by purchase from one Francisco Pippo r effected in August, 1881.

The defense rests on the alleged deficiency of Pippo’s title; and it was sustained below. >

It appears from the record that Pippo’s muniments of titles are as-follows: to one-half of the property, by purchase, in the year 1871,, from Joseph Spoturino, then the owner of the whole estate;- and to the-other half by purchase at a public sale from the succession of said. Spoturino, as shown by an authentic act of sale executed in March,. 1878.

Met by the allegation in defendant’s answer, and being aware, that-the projected sale of April, 1871, to Francisco Pippo, had never been signed by'Spoturino, or by the notary who had drawn the same; and met also by the allegation of nullity of the proceedings which led to-the sale of March, 1878, plaintiffs then pleaded the prescription of five- and ten years, on which they rest their respective titles to each distinct undivided half of the property.

Plaintiffs’ main error consists in their attempt to trace their title to the entire property to the sale made in the settlement of the succession of Spoturino. That sale was ordered at the instance of the public administrator, in charge of the succession, for the alleged purpose of effecting a partition of the property admitted to belong in equal portions to Pippo and to the succession. At that sale the adjudication of the entire property was made to Pippo for $825, but as he claimed to already own the one-half, be paid in but half of the price of adjudication, and he therefore obtained, in terms and in fact, the transfer of hut one-half of the property at the authentic sale made to him by the administrator on the 21st of March, 1878.

By the very terms of that sale, and throughout all the proceedings had in the settlement of the Spoturino succession, it is undoubtedly apparent that nothing was intended to affect the status of the other half of the property of which Pippo then claimed the ownership, and of which he was in undisputed possession. His title to that half must therefore be traced to some other source, and plaintiffs are manifestly in error in their reliance on the partition sale.

Conceding, therefore, as the record shows, that Pippo’s possession dates from April, 1871, and that he was in perfect good faith, the question at once presents itself whether he can acquire title through the prescription of ten years by possession and good faith alone.

The question is answered in the negative by the textual provisions of the Code which regulate that term of prescription.

Article 3478 reads: “He who acquires an immovable in good faith and by a just title, prescribes for it in ten years.”

Article 3479 prescribes the conditions on which such an object can be accomplished, and one of them is: “A title which shall be legal, and sufficient to transfer the property.”

Now Articles 2275 and 2440 of the Civil Code contain the requirements of title so as to effect a legal transfer of immovable property, and in substance require that it must be in writing. Barrow vs. Wilson, 38 Ann. 209; Pattison vs. Maloney, 38 Ann. 885; Hall & Toomer vs. Mooring, 27 Ann. 596.

It therefore appears from the record that Pippo had no title legal in form to the half of the property of which he had possession since 1871. Plaintiffs could acquire no other or better title than he himself had. Hence, the defendant must be justified in refusing the title which is tendered to him.

As it is herein shown that Pippo had acquired no title to that half of the property through the partition sale of 1878, it follows that the plea of prescription of five years cannot avail plaintiffs; and their failure to establish a valid title to one-half of the property obviates the necessity of discussing the status or validity of their title to the other undivided half.

We note and have duly considered the argument that the heirs of Spoturino might be estopped by the judicial admissions of the public administrator, and by other proceedings had in the settlement of his succession, from denying or contesting the alleged title of Pippo which was therein admitted, and we do not wish to be understood as expressing any opinion on such an issue. It was incumbent on plaintiffs under the law to tender a title free of all clouds or doubts, and his purchaser cannot be coerced to accept a title suggestive of future litigation on the very face of the papers.

The judgment appealed from is therefore affirmed, with costs.


author: Fenner, J.

text:
    No. 10,226.
    Succession of Mrs. M. Dopler or Dobfle vs. Mrs. Justine Feigel and Husband.
    Tlie provisions of Articles 1497 and 1533, C, C., prohibiting donations of the whole of one’s property without reserve of sufficient for subsistence, and. also prohibiting the reservation of the usufruct of the thing given, by the donor in Ms own favor, embody rules peculiar to donations inter vivos and have no application to onerous contracts.
    The effect of Art. 1526, C. C., is to divide onerous and remunerative donations into two classes: one in which the value of the consideration, charges and services is less than one-half the value of the object and in which, therefore, the act partakes more of the character of a donation than of an onerous contract; and the other in which the value of the consideration exceeds one-half the value of the object and in which the act partakes more of the character of an onerous contract. The first are treated as donations and subjected to the peculiar rules governing them; the latter are treated as onerous contracts and are governed by the different rules applicable thereto.'
    Finding that, under the view most favorable to plaintiff, the contract sought to ho annulled can ouly bo ti eated ns a disguised onerous and remunerative donation in which the vahío of the consideration, charges and services exceeded one-half the value of the object, it stands as an onerous contract and is subject to no vice aj- plicahle to such contracts which would authorize its annulment.
    A PPEAL from the Civil District Court for the Parish of Orleans. A Tissot J.

      B. L. Iliehardson and Branch K. Miller for Plaintiff' and. Appellant:
    1. A donation of immovable property, with the icservation of the usufruct thereon by the donor, is null and void. R. C. C., Art. 1533; J5 Ann. 580 ; 5 Ann. 433; 11 Aim. 707; 12 Ann. 721; 4 Ann. 36.
    2. A donation which divests the donor of the whole of his property, is null and void. It. O. 0.1497, It matters not that the donee agrees to support the donor during life. 11 It. 309.
    3. The testimony of a defendant, the only witness in his own behalf, as to transactions with a party deceased, in support of a claim for entire succession, is the weakest of all evidonce, and cannot support a judgment of recovery. 37 Aim. 95; 7 Tí. 112; 14 Ann. 272 ; 10 Ann. 279; 8 Aim. 278: Wood vs, Egen, 49 Ann. 1006; Bodonheime case, 25 Ann. 1006 ; Bonnalo case, Manning’s Reports, p. 339.
    4. Eb tender of the so-called consideration is necessary. Seef vs. Taylor, 33 Ann. 769.

      ,T. Q. A. Bellows for Defendants and Appellees:
    The true cause of a contract may he shown by any legal evidence, oral or written, and the evidence adduced for that purpose never can he considered as contradicting. Articles O. C. 1894, 3900; 3 Ann. 230.
    The allog tions in a petition that a certain transfer of property is a simulation, and that it is a donation in disguise, are inconsistent.
    Where an actual consideration, no matter how inadequate, has been paid by the purchaser, in an alleged sale, the transaction is not a simulated one..
    The delivery of immovables, where they are disposed of by public act, is always considered as accompanying the act, whether that act he a sale or a donation en paiement.
    Evenwheie it is shown that the expressed consideration of a transfer does not exist, the contract o«v not on that account be invalidated, if the transferee proves that there was another legal and sufficient consideration. 30 Ann. 966.

      An onerous donation, when the value of the thing given does not exceed by one-half that of the charge imposed, is not subject to the rules prescribed for donations mter vivos; and an action for its dissolution must he governed by the rules relating to ordinary contracts.
    Therefore, as in a suit for the rescission of a contract, in which the plaintiff must put, or offer to put. the defendant in the same position in which he was before the contract; in the case of an onerous donation, the donor or his representative, who seeks the rescission of the donation, must offer to return what he has received from the donee, as a con dition precedent of the suit. 33 Ann. 786'.
    The law does not favor actions by forced heirs to undo transactions of tbeir ancestors as done in fraud of their rights. The burden is upon them, and in the absence of convincing proof, and in the presence of evidence which merely cast a suspicion, the court will not take the property of one man to give it to another.
    If it he true that forced heirs can he likened to creditors, and may resort to the revocatory action, their right to sue would be barred by one year from the death of the parent. 39 Ann. 1067.
    In an action by forced heirs to annul a sale by their ancestor to one of tbeir co-heirs of an immovable for a stimulated price for cash, parol evidence is admissible to show that the real consideration of the conveyance was the obligation undertaken by the heir to support the aged ancestor and his $vife during theirLnatural lives. Such an obligation is in law a sufficient consideration for conveyance.
    Such a contract is really a donation inter vivos with an onerous condition, and such a donation can never he reduced below the expense incurred by the donee to perform the charges. 40 Ann. 229.
   Tlie opinion of the Court was delivered by

Fenner, J.

The object of the suit is to annul an act of sale of immovable property made by the deceased, Mrs. Dopier, to the defendant and to recover the property with an account of its revenues. Although the title of the suit nominates the succession as plaintiff, the real and only plaintiff is the grand-daughter and sole forced heir of the deceased

The grounds of attack are that tlie sale, as such, was a mere simulation, intended to cloak or disguise a donation, and that such donation is itself null because it embraced all the property of the donor without reserving sufficient for her subsistence, in violation of C. C. 1497, and also because it reserved the usufruct in favor of the donor, in violation of C. C. 1533.

The act of sale is authentic and perfect on its face. The price is fixed at $900, of which $138.50 was discharged by the. purchaser’s assumption of a mortgage due. on the property, and the balance was acknowledged to have been paid in cash.

The sale was accompanied by a counter-letter which referred to and approved the sale, but which contained the further stipulations that the vendor should retain the entire usufruct of the property during her life, “that henceforth all the kindness and consideration due to an aged mother will be extended to me by said purchaser,” and that “all taxes now due or hereafter accruing upon said property have been assumed by said purchaser.”

•Taking the act and the counter-letter together, the transaction stands as a conveyance of the naked property iü the thing sold upon the following considerations, viz: 1st, the, sum of $900 named in the sale; 2d, the obligation to pay taxes past and future; 3d, the obligation to discharge the duties due from a child to an aged mother, which involve and include nurture, care and services in sickness and in health.

The party enjoying the usufruct of property is bound for the taxes; therefore the assumption of the purchaser to pay them was an obligation not imposed by law.

The purchaser was not the child of Mrs. Dopier, and owed her no legal duties; therefore the assumption of the duties imposed by law on a child was a distinct and additional consideration.

Nothing in the counter-letter attacks or is inconsistent with the verity of the consideration recited in the act of sale. On the contrary, the counter-letter recites and affirms the sale, only adding new stipulations in favor of the vendor and charges on the purchaser.

As we recently said in a similar case: “ The act of safe is perfect on its face. It is just and translative. It can convey property. It describes the real estate, specifies the price in cash, acknowledges payment and settlement. It must stand for what it purports to be until it is set aside. The burden is upon those who attack'to prove that it was made without consideration or an insufficient one.” Moore vs. Wartelle, 39 Ann. 1070.

We agree with the judge a quo that the record does not exhibit the proof required.

The retention of possession by the vendor and her continued collection of rents after the sale, lose all significance as badges of simulation in view of the stipulations in the counter-letter. And if the giving of a counter-letter containing such stipulations be treated as itself suggestive of simulation, we think the evidence m the record conclusively rebuts such suggestion.

It is not disputed that the mortgage debt assumed was due and was actually discharged. While it is admitted that the balance of the price named in the act was not then paid in cash, yet there is evidence, not contradicted, that there were claims due the purchaser for moneys disbursed on the property and otherwise for account of the vendor which, with the other charges assumed, were taken as a satisfaction of the balance of the price. It is further proved that the purchaser fully discharged all the charges assumed; that she paid the taxes; that she performed all the duties of a daughter to her; that she contributed to the supply of her wants, nurtured and cared for her in every way, nursed her in illness and buried her at death. These duties involved, not only valuable services, but considerable expenditures of money.

We are satisfied that a sound and real consideration was given for the property, undoubtedly exceeding one-half of its value after deducting the value of the usufruct which the vendor reserved.

This being so, it is not necessary to class or nominate the contract assailed. The most favorable assumption for plaintiff would be to treat it as an onerous and remunerative donation in disguise. But even in that case the Art. 1526, C. C., declares that the rules peculiar to donations inter vivos do not apply to onerous and remunerative donations, except when the value of the object given exceeds by one-half that of the charges or of the services.”

Therefore, the prohibitions of Articles 1497 and 1533, C. C., heretofore referred to, which apply exclusively to donations, have no application. Landry vs. Landry, 40 Ann. 232.

The effect of the Article 1526 above quoted is to divide onerous and remunerative donations, whether open or disguised, into two classes: one in which the value of the object exceeds, by one-half, the value of the consideration, charges and services, and in which, therefore, the act has more of the character of a donation than of an onerous contract; and the other, in which the consideration, charges and services exceed one-half the value of the object, and in which the act has more the character of an onerous contract than of a donation. The former are treated as donations and subjected to the peculiar rules governing them; the latter are treated as onerous contracts and are governed by the different rules applicable to them.

The present act belonging to the latter class, we know of no rule by which an onerous contract, based on such consideration, passed between capable persons, and tainted with no vice of fraud, error,, violence, or other illegality, can be annulled or avoided.

Nullity or annulment vel non being the only issue involved in this case, plaintiff’s demand was properly rejected.

Judgment affirmed.


author: Watkins, J.

text:
    No. 10,245.
    The State ex rel. A. L. Johnson vs. N. H. Rightor, Judge of Civil District Court for the Parish of Orleans, Division D.
    Determining whether relator is or not entitled to a peremptory mandamus compelling the respondent judge to grant him a writ of injunction, depends upon whether the law entitles him to it, as of right. If the law gives the respondent the discretion to grant or - refuse it, the mandamus will not go.
    In a mandamus proceediugwe are not to enquire whether, in dissolving the writ, tlie respondent exercised a sound and legal discretion, hut to simply ascertain whether he had any discretion at all.

      \ PPLICATION for Mandamus.

      Braughn, Bucle, Bvnleelspiel & Mart for the Relator.

      Cwleton Munt for the Respondent.
   The opinion of the Court was delivered by

Watkins, J.

A. L. Johnson filed a petition in the respondent’s court, in which he claimed a large sum against the city of New Orleans, and requested the issuance of a writ of injunction against her, on certain grounds therein stated. The respondent granted an order directing the defendant to show cause on a day fixed, why the writ should not issue; and upon due hearing thereof, he refused to grant it. The relator assigns here that this act of the respondent was arbitrary and illegal, and “that there is absolutely no remedy or relief in the ordinary course of legal proceedings to protect relator’s right, except the injunction applied for;” and that his only means of obtaining this is by mandamus.

The respondent returns, substantially, that the relator’s petition “is inadequate and fails altogether to justify au injunction,” and that “it discloses no cause of action,” because it will appear by reference to the records in certain other suits and proceedings named, that the demands of the relator against the city are “charged to be fraudulent,” and that this “is an issue under the law, for the (City) Council to pass upon, and not” himself, as judge.

He further returns “that relator has not brought himself within the terms and provisions of the Code of Practice entitling him to the benefits of tlie writ.of injunction, as of right;” and he avers that he is not entitled to the writ under any of its provisions unless it be those of Article 303, which vests in the court of first instance, discretion in determining the necessity for its issuance; , that in refusing the writ applied for by relator be acted within the discretion given him by law, and that his refusal was neither arbitrary nor illegal; and this exercise of judicial discretion cannot be reviewed and altered by mandamus.

Relator has annexed to his petition a copy of his petition for injunction, and made it a part of same. From it we obtain the following statement of his case, as presented to the respondent, viz:

He claims to be the transferee of a large number of claims against the city for about $40,000, for services rendered by the original holders in the months of March and April, 1888, in the departments of improvements and police.

That “under the laws prescribing and regulating the financial administration of the city of New Orleans, her revenues are annually fixed and appropriated by a general ordinance called the Budget of the year, and that the amounts so appropriated to the particular objects stated in said Budget remain dedicated thereto, and cannot be diverted to any other cause or object, as long as any claims against said appropriation exist.”

He avers “that in accordance with said law a budget of appropriations was adopted in 1887, for the year 1888, setting apart certain sums for the Department of Improvements and the Department of Police,” and that in accordance with said appropriations said expenses were incurred, but the City Council “has failed and refused to pass appropriate ordinances against said general appropriation in the Budget to direct the payment of the rolls for March and April, 1888, in which his claims appear,” but has “authorized expenditures against the Budget appropriations for improvements and police for subsequent months * * by reason of which the said appropriations tvill be totally absorbed and leave nothing whatever to pay said rolls of March and April.” Under this state of facts the relator seeks to be recognized as the transferee of said claims and the creditor of the city therefor, and to recover judgment directing “payment thereof, to be made as if ordinances directing same had beeu passed in due and proper time, before the passage of any ordinances directing payments of subsequent work or service out of said Budget appropriations,” etc.

In aid of this specific relief relator prayed for the issuance of a writ of injunction “ prohibiting said city from making any further special appropriations against the general appropriation in said Budget contained to the credit of the departments of public works and police, or from making any payments on ordinances already passed, for services rendered subsequent to that herein claimed, until such amount as is required to pay petitioners shall have been set apart and reserved.”

The argument in support of Lis right to an injunction, is that if the labor and police rolls of March and April are not paid from the revenues of 1888, as the law stands, he cannot be paid at all, and lienee he is in danger of suffering an irreparable injury.

On this state of facts the question of law raised is, not whether the plaintiff was entitled to his injunction at all, but, rather, was he entitled to it as a matter of right, and had the respondent the discretion to refuse it. In a mandamus proceeding we are not at liberty to en-quire whether, in disallowing the writ, the respondent exercised a sound and legal discretion, but to simply ascertain whether he had any discretion in the premises. His exercise of discretion can only be reviewed on appeal.

Such we understand to be the clear import of our opinions in City of New Orleans vs. Great Southern Telephone and Telegraph Company, 37 Ann. 571; and State ex rel. Savage vs. Rightor, judge, 38 Ann. 916.

Code of Practice, 298, provides that “injunction must be granted and directed against the defendant himself, in the following cases,” enumerating them. Article 299, et sequentes, provide that “the injunction ■may be directed,” etc., * * * in the following cases.

But the injunction prayed for by the relator does not fall within the denomination of any of the causes assigned under the formei; it comes, possibly, within the scope of Article 303.

It provides that “besides the cases above mentioned, courts of justice may grant injunctions in all other cases when it is necessary to preserve the property in dispute during the pendency of the action, and to prevent one of the parties, during the continuance of the suit * * * doing some other act injurious to the other party.”

In Bush vs. Guinault, 29 Ann. 795, the Court, in placing an interpretation on the final clause of that article, say: “Under this clause of Art. 303, it is clear, therefore, that a discretion is vested in the judge to determine whether the injurious act set forth is one proper for the exercise of the remedy of injunction.”

Therefore, applying this interpretation of C. P. 303, to the case in hand, and the question propounded is answered in the negative; i. e., that the relator was not entitled to his writ of injunction as a matter of right.

And, inasmuch as the respondent was vested with discretion in the matter of the allowance vel non of the writ, relator cannot control his exercise of it by mandamus. High’s Ex. Legal Rem. sec. 24; State ex rel. Daboval vs. Police Jury, 39 Ann. 765.

It is therefore ordered that the rule on the respondent to show cause be discharged, and a peremptory mandamus refused at relator’s cost.


author: McEnert, J.

text:
    No. 10,254.
    The State ex rel. Peter Gestner vs. W. B. Murphy, Recorder.
    A threat to burn a dwelling.bouso is a threatened breach of the peace, as it puts the party-threatened in fear, and excites him to personal prowess to protect his person and property.
    A magistrate has the power under Sec. 1016 R. S., to order the party making the threats to furnish security that he will not carry out the threat, and in default of furnishing security ho has the power under said section to commit until the security ordered is furnished.
    A PPLICATION for Prohibition.

      Branch K. Miller for the Relator.

      Walter D. Denegre for the Respondent.
   The opinion of the Court was delivered by

McEnert, J.

The question presented in this case is does the threat to burn the dwelling of another come wichin the power of the committing magistrate to put tlie party who makes the threat under peace bonds.

Section 1016 of Revised Statutes provides that the magistrate shall have power in all cases in which it shall appear to him by oath that a breach of the peace has been committed or that there is just cause to apprehend that a breach of the peace is intended, to cause the party charged to give security in such amount as he shall deem reasonable to keep the peace of the State and to answer to the offence if any has been committed. In case of refusal to give such bond he has the power to commit until security has been given. Arson is an offence both against the property and the person living or residing in the house. R. S. 841, 842.

The law makes a distinction in the crime of arson in the penalty when a human being is in the house residing or living in it at the time. The penalty is death when the offense is committed in the night time, and if in the day time at hard labor not more than twenty years. The penalties are less severe when no human being is living or residing in the house at the time. It is an offense against society as well as against property. Any threat therefore to commit arson is a threatened disturbance of the public order and well-being of society. It puts the party whose house is threatened to be burned in fear and invokes him to redress his wrongs, excites him to personal prowess to protect his person, his family and his property.

There is no question but that the magistrate has tlie power to put a party under peace bonds who threatens to do violence to the person'of another. It would be impotent did it not go further and protect a person from the threats of the incendiary, who would not only do violence to his person and his property, but to his family and his neighbors.

We conclude that the threat to burn the dwelling of another is a threatened breach of the public peace, as it tends to provoke to act s of violence and a disturbance of the public order, and the committing magistrate has the power to require the party making the threats to give a bond in accordance with Sec. 1016, R. S., and in default of bond to commit until security is furnished.

It is therefore ordered that the writ of prohibition be refused, at relator’s cost.


author: Waticins, J.

text:
    No -

       State ex rel. M. J. Cunningham, Attorney General, vs. H. L. Lazarus, Judge.
    A rule to tax costs, and judgment thereon, are Interlocutory, and form parts of the original proceedings.
    It is a general rule that the sovereign cannot he sued in his own court without his consent; and hence no direct judgment can he rendered against him therein for costs, except in the manner, and on the conditions, ho has prescribed.
    ■When a state submits itself to the jurisdiction of a cours in a particular case, either by the institution of suit or permitting itself to he sued, that jurisdiction may be used to give full effect to what the State has, by its act of submission, allowed to be done.
    But it is the duty of the courts of the State to carefully examine the acts of submission, and determine the extent to which jurisdiction extends, and render judgment accordingly.
    Neither the constitution nor the law governing such a proceeding as this confers jurisdiction on this court to render a direct judgment against the State for the costs of talcing testimony therein, in any event.

      W. 8. Benedict, for Plaintiff.

      M. J. Ounningliam, Attorney General for the State.
   The opinion of the court was delivered by

Waticins, J.

This proceeding by rule, to have the fees of Arthur* McGuirk, for services rendered in the course of the trial of the aforesaid cause, as an expert stenographer and type-writer, taxed as costs, is one taken in the original suit, and the decree we are invited to render is an interlocutory one, and will, when rendered, form an addendum to the original judgment therein. Iron Works vs. Reuss, 40 La. Ann. 112; 3 South. Rep. 505, Rev. St. § 750. By the terms of the original decree, the charges made by the relator were sustained, the respondent removed from office, and condemned to pay all tlie costs of the proceedings. State vs. Lazarus, 39 La. Ann. 162, 1 South. Rep. 361. Of course, that judgment is a finality, with respect to the respondent, except as to the items and amount of the stenographer’s bill. But quite a different question is presented for solution in respect to the State, because the State was personated by the attorney general as the relator. It is claimed by counsel for the plaintiff in rule that, notwithstanding judgment went in favor of the relator for “the costs of the proceedings,” yet the State occupies the position of plaintiff in an ordinary civil action, and hence she is primarily bound to officers of courts for their costs. As it is of great importance, we will dispose of this issue first, it having been submitted as an exception of no cause of action.

Resistance to the demands of the plaintiff in rule is made by the attorney general on the* authority of State vs. Succession of Taylor 33 La. Ann. 1270; State vs. Taylor, 34 La. Ann. 978. After what appears to us to have been a careful examination of the question of the State’s liability for payment of costs in her own courts, we said in the former case : “The present suit is one in which the State is a party in her own name, and to enforce her own rights, and not those of any person or individual. In her own courts, constituted by herself, whose officers are appointed by herself, and whose costs and fees are paid by herself out of the fund created for that purpose, it would be an extraordinary proceeding to require her to furnish security for the payment of costs.” Page 1273. In the latter we quoted the former with approval, and said : “It is well settled in American jurisprudence that the sovereign never pays costs. This doctriue, which is an essential element of our system of government, was recently recognized by us in the case of State vs. Succession of Taylor, 33 La. Ann. 1271.”

But counsel for plaintiff argues that, in the case of State vs. Succession of Taylor, the question was not the actual liability of the State for costs, but her obligations vel nan to furnish security for costs antecedent to judgment; that, as in that case, there appeared to have been no final judgment rendered for or against the State, the question here was not before us; and that State vs. Taylor was a ciiminal case, and the cost, in such cases, are governed by the provisions of Rev. St. §§ 1042, 1076. As this is a question of vital importance to the plaintiff in rule, and the amount claimed is large, — being in excess of $3,000, — it may be well to look into the authorities on the subject, and apply the law to the facts of this case.

In the first place, as plaintiff’s counsel seems to rely on it, we will examine the federal jurisprudence on the question.

In The Antelope, 12 Wheat. 549, the Supreme Court say: “It is a general rule that no court can make a direct judgment or decree against the United States for costs and expenses, in a suit to which the United States is party, either on behalf of any suitor, or any officer of the government. As to the officers of the government, the law expressly provides a different mode. * * * Their accounts must be certified to and paid out of the treasury, and cannot lawfully constitute any part of the judgment or decree in the cause.”

As announcing a different principle^ counsel cite us to what is said in U. S. vs. Ringgold, 8 Pet. 163, and which, after quoting ipsissimis verbis the rnle as formulated in the opinion supra, is in these words: “But it by no means follows that they [the United States] are not liable for their own costs. No direct suit can be maintained against the United States. But when an action is brought by the United States to recover money in the hands of a party who has a legal claim against them, it would be a very rigid principle to deny to him the right of setting up such a claim in a court of justice, and turn him around to an application to congress.”

There is nothing, to our thinking, that is in the least contradictory or conflicting in those opinions. They are to the effect that no direct judgment can be rendered by any court against the United States for costs. They do not declare that they are not liable for them in proper cases. Now, what the court said, in the case last cited, with regard to the “legal claim” of the defendant in a civil action brought by the Uuited States, was to merely sanction his right to urge it in that suit as a reconventional demand. It did not say that he might take a judgment against the United States for cost of such demand. All those questions were evidently governed by the act of Congress of the 8th of May, 1792, and subsequent acts in relation to judicial costs and other expenses, accounts of which were to be paid from the national treasury upon proper certification and approval of some competent judge.

Those decisions are in accord with our own jurisprudence. It is a familiar principle “that the sovereign cannot be sued in his own courts without his consent.” State vs. Burke, 34 La. Ann. 548, and authorities collated therein. And it. is perfectly true that, as said by the Supreme Court in Louisiana vs. Jumel, 107 U. S. 728, 2 Sup. Ct. Rep. 128: “When a State submits itself, without reservation, to the jurisdiction of a court in a particular case, that jurisdiction may be used to give full effect to what the State has, by its act of submission, allowed to be done but it is the imperative duty of such court to look carefully into the act of submission, and the law under which the submission is made, and determine whether it was done without reservation or qualification ; ■else the judgment it should' render in the premises would be nugatory, and of no binding force against the State.

The case of Mahan vs. Sundry Defendants, 22 La. Ann. 583, was a suit by the clerk of the Fourth District Court of the Parish of Orleans, to ■compel the State Auditor to warrant for “costs in certain cases” in his favor, on an appropriation made by the legislature in 1870, in these words, viz : “Appropriation to pay costs in suits when the State loses the case, $2,000, or so much thereof as may be necessary.” Act 35 of 1870. The casjs in which those costs were incurred were suits instituted by tax collectors, and had relation to the collection of the revenue. The court said: “The State is, doubtless, responsible for all costs ■legally incurred in its behalf, but the mode of paying them is to be provided by the legislature. The appropriation in question is not* ■in our opinion, the provision made for the payment of the costs claimed in this proceeding. If the statute authorizing the suits, or proceedings in which they accrued, does not provide for their payment, or some other special statute, the clerk took the risk of the legislature providing for them, when applied to.”

Referring to the statute under which proceedings were conducted against the respondent in this case, we are confronted with this provision, viz: “That in all such cases the defendant judge shall be condemned to pay the costs, if judgment be rendered against him; ■otherwise, judgment for costs shall be rendered as is provided for in Article 200 of the State Constitution.” Acts La. 1880, No. 122, § 7. That article provides that, “in all cases where the officer sued as above directed shall be acquitted, judgment shall be rendered against the citizens signing the request for all costs of the suit.”

Applying the principles of law, State and Federal — and, we take it, they are unmistakably sound — it is obvious that the State has not consented that we should render a judgment against her, in a suit which was decided favorably to her, for the cost of taking testimony therein. This being an exceptional proceeding — neither criminal nor civil, but one partaking of the character of an impeachment — we must look to the provisions of the Constitution, and the law putting same in force, as the source of our jurisdiction, and its extent. Viewiug them in the light we do, we are constrained to decide that the plaintiff in rule has no right of action against the State, and that we are without power to render judgment against her in his favor. But we are far from holding that the State is not, in law and justice, bound to pay the plaintiff for his valuable services and necessary labor, done in a litigation provoked and carried on in the State’s own interest, and by constitutional direction, in case his primary recourse against the defendant shall prove unavailing. On the contrary, we consider it to be her unquestionable duty to provide such payment. But her exemption from judicial compulsion would render nugatory any action which might be taken by us, either in decreeing her liability, or fixing the amount-thereof; and we must therefore decline such action.

On the other branch of the case there is but little to say. No question is raised by the respondent with regard to the amount or character of the plaintiff’s demands. He was duly cited, but made neither appearance nor answer, and there was no countervailing evidence adduced in his favor. In rendering judgment, we adopt the amount stated in plaintiff’s evidence, because respondent has not questioned the correctness of his account; it was approved by his counsel, and sworn to by the plaintiff, as a witness. But we do not, by any means,, thereby signify any opinion as to the measure of the State’s liability, in case the legislative department of the government shall provide for its payment.

By reason of the default of the respondent, and the law and the evidence being in favor of the plaintiff in rule, and against the respondent, it is ordered, adjudged and decreed that the amount of the plaintiff’s demands be fixed at the sum of $3,220. It is further ordered,adjudged and decreed that the plaintiff’s demands against tins State be rejected, because he has no right of action, and because this Court is without jurisdiction to render judgment against the State in a matter in which she has not yielded her assent. It is further ordered that the plaintiff in rule pay the costs of his proceedings against the State,, and that he recover the remainder thereof against the respondent.


author: Poche, J.

text:
    No. 10,089.

       State of Louisiana vs. Landry Thomas.
    In all criminal prosecutions it is Che desire, and to the interest of the State, that all reason' able facilities be oxtended to tbe accused in the preparation of his defense.
    Hence the accused is not responsible for the error committed by the clerk in issuing subpos. nas to witnesses for the defense, if it appears that the order for such witnesses had been given in a proper manner by the accused or his counsel,, and that the witnesses they ordered are residents of the Parish.

      .A party accused, "who discovers on the day fixed for liis trial that a material and important witness ordered by him and by whom alone he could establish a fact important or indispensable to his defense, had not been summoned, because the given name of the witness had been by error of the clerk changed into another name, in making out the summons, is legally entitled to a continuance on proper showing for the purpose of procuring the attendance of such witness.. !For making the discovery on the day of trial only he cannot be charged with want of due diligence,
   The opinion of the court was delivered by

Poche, J.

The defendant appeals from a sentence of death under a ■conviction of rape, and charges numerous errors to- his detriment.

His first complaint is levelled at the Judge’s refusal of a continuance which he had asked under the following circumstances :

When brought up for trial, on the 28th of October, 1887, the accused filed a motion for continuance, on the ground of the absence of a material and important witness, residing in the Parish, who had not been summoned although his name had been written, with an order for a subpcena in the proper book by defendant’s counsel on the 24th of October, four days previous to the day of trial.

The Judge’s refusal was grounded on want of proper diligence on the part of the accused to secure the attendance of the witness.

It appears from the record, and from the original order for subpcena to witnesses, as written by counsel, and which is attached to his bill of exception, that in writing down the name of that Witness, which is ‘“Archie Sanders,” counsel connected the letters in such a manner that at a first glance given, name looked like “Ardire,” and hence the summons was addressed by the clerk to “Ardue Sanders,” and the Sheriff returned that the person thus named could not be found.

In reading the name as written in the original order we find no diffi•culty to make out the name of “Archie Sanders” as that of the person intended by the writer of the order. The question presented is therefore to determine whether the accused can be held responsible for the error -of tbe clerk in summoning the wrong person, or in making out a summons addressed to so strange and unusual a name as Ardue as a given name, especially when coupled with the cognomen of “Sanders.”

To the suggestion of the District Judge, that under ordinary diligence it was incumbent on the defendant to have discovered the error, and to have had the same corrected in time for the trial, £,‘as the return of the Sheriff was made some time before the case was called for trial,” an easy answer is that the accused should not he made to suffer for an error of the clerk, whose plain duty was to call on counsel for the accused to remove the doubt which he might have entertained as to the precise name intended to have been written by the attorney.

We do not understand the discussion to iavolve the question of due diligence at all; but merely and exclusively to deal with the consequence of a palpable error committed by an officer over whom the accused or his counsel had no control, and for whose error the injured party can surely not be held responsible.

But should the question of due or ordinary diligence be considered as the pivotal point of the contention, the record does not warrant the conclusion that the accused is guilty of any lachos on that score. In his statement that the Sheriff’s return had been made “some time before the case was called for trial,” the Judge does not inform ns of the precise length of time which intervened between the return and the trial; whether the return was made on the same day or the day before. As the order had been given on the 24th, and the trial took place on the 28th, of October, it is clear that the “some time” referred to by the Judge could not have meant several days •, and the doubt resulting from the expression above quoted cannot be construed against the accused. Hence it does not appear that the question of due diligence could be decided adversely to the motion.

Now it appears that, the indictment had been presented on the 21st of October, the case was fixed for trial on the 28th of same month, the subpoenas for witnesses ordered on the 24th and the continuance asked by the accused was only to the 81st of the same month, at which time a jury would have been in attendance. Was there anything extraordinary or unreasonable in the delay prayed for, or day the relief asked suggest anything to justify the conclusion of the trial judge that the sole object of the motion was delay? We think not. In his motion supported by affidavit, the accused states, that by the testimony of Archie Sanders he could prove a very material fact which if established would necessarily have changed the verdict, and that he could not prove that fact by any other witness. 8 Mo. 606, Freleigh vs. State. The fact is detailed with precision in the motion, but we deem it best not to reproduce it in this opinion.

Now, through the error of a ministerial officer who failed to read, or to copy, correctly, a plainly written name, the accused has been deprived of the benefit of most important testimony. It may be that the witness if present would not have testified as represented by the accused. But this supposition cannot impair his legal right to secure his attendance and to produce his testimony.

If the witness, when produced, should entirely fail to establish the fact relied on, that circumstance will strengthen the ease of the State, will remove the last doubt as to the guilt of the accused and the correct administration of justice will to that extent be enhanced.

In a criminal prosecution, the State is not zealous for conviction; her only aim’ is justice, which will not condemn without a fair and impartial hearing. Hence the State herself tenders her whole power to the accused in his efforts to prove his innocence, and her desire as well as her interest require that all facilities be given to the accused to produce all the testimony which the nature of his case may admit of or require.

Counsel for the defendant, after giving his order for witnesses in manner and form required by law and by the rules of the court, together with the written information of the place where the witnesses resided, as shown to have been done in this case, and within a reasonable time before the day fixed for the trial, knowing that the witnesses to bo summoned were residents of, and were present, in the Parish, had every reason and every right in law to presume that the summons would be issued as ordered, and served in time for the trial. Hence his client cannot suffer for the laches or errors of others.

As we are thoroughly convinced that through inadvertence of the trial judge, the defendant has been denied a right to which he was legally entitled, we are constrained to overcome our repugnance to interfere in such cases with rulings of the District Courts, and to set aside the conviction of this defendant. State vs. Egan, 37 Ann. 371. State vs. Bolds, 37 Ann. 310. State vs. Briggs, 34 Ann. 71. State vs. Boitreaux, 31 Ann. 189.

Under these views, the discussion of the other complaints urged by his counsel is entirely obviated.

It is therefore ordered, adjudged, and decreed that the verdict of the jury be set aside, and the judgment appealed from annulled and reversed; and it is ordered that the case be remanded for further proceedings according to law. .


author: Bermudez, C. J.

text:
    No. 10,191.
    Marshall J. Smith vs. The Atlas Steam Cordage Company.
    A suit brought by one in his individual name, but in reality for the benefit of non-residents, as owners of the .claim sued on, must be viewed as instituted by the constituents themselves, who must bo considered as the real plaintiffs in court.
    The authority of the constituents to bring the suit implies the power to stand in judgment to resist any defense or claim which the defendant may set up, either against the original demand, or on any other ground, however disconnected from the principal demand.
    in such a case the defendant has a right to reconvene and his demand must be noticed by the original plaintiffs without the necessity of a citation to them.

      The court before which the action was instituted had jurisdiction over the reconventional • demand, the more so, when it has been put at issue by the defendants therein, by plea and proof.
    Payment of a debt to the authorized agent of the representative of a creditor company, extinguishes the claim and discharges the debtor.
    APPEAL from the Civil District Court for the Parish of Orleans. Monroe) .7.

      Henry C. Miller and Thomas J. Sonnies fov Plaintiff and Appellant:
    1. The holder of an obligation for money payable to bearer, is. by virtue of his possession. vested with the legal title, and may bring suit thereon iu his own name, although the beneficial interest may belong to a third person ,• and the debtor cannot inquire into the title of the plaintiff, except to set up equitable defenses to the obligation sued on — the defendant has no other light except that of defense. 2 X. S. 201; 2 La. 264; 4 X. S. 107; 5 La. 48; 4 La. 220; 18 La. 44; 2 Ann. 413 ; 4 Ann. 349 ; 30 Ann. 680 ; 32 Ann. 288.
    2. The only plaintiffs who are in court for the purposes of reconversion or counter-claim or cross-bill are plaintiffs who were parties to the record, and it is only the defendant who can reconvene against the plaintiffs: for the plaintiffs cannot reconvene against the defendant. O. P. Arts. 374 to 377; 13 X. Y, 249; Mead vs. Buckner, 1 La. 282 : 85 X. C. 363 ; Cross vs. Delvalle, 1 Wall. p. 1; Shields vs. Barrow, 17 Aow. 145.
    3. Although reconvention, or counter-claim or cross-bill may he of Roman origin, yet in all systems the reconventional demand, or the counter-claim or the cross-bill is an auxiliary proceeding, and is confined to matters in question in the original suit: if its purpose be different from that of the original bill, it is not allowed : a cross-bill is generally considered, a defense. 2 Danl Ch. Pr. 3548; Cross vs. Devalle. 3 Wall. J; 7 John Ch. 252; C. P. 574-377; 39 X..Y. 529; 4 John Ch. 357.
    4. The reconventional demand ih this case is purely statutory, and has no foundation in any principle other than that of supposed convenience, but the statue only applies to anon-resident plaintiff, who is a party to the record, and who is in court as a party to the suit. Parties to the record or parties to the suit are one thing,, and the defenses which may be set up to suits brought by parties are quite another thing*. The two must not be confounded.

      Omer Villerd.ior Defendant and Appellee :
    T. When the plaintiff resides out of the State, the defendant may institute against the former a demand in reconvention for any cause, even if such is not connected with or incidental to the principal, demand. O. P- 375; 4- R. 3 ; 10 Ann. 98; 16 Ann. 250; 27 Ann. 642.
    2. When a reconventional demand lias been filed, plaintiff is bound to take notice of same and no citation is necessary. 26 Ann. 540 : 23 Ann. 385.
    3. Plaintiff* can not plead his own turpitude iu defense to a claim against him.
    -/. McConnell on same side.
   The opinion of the Court was delivered by

Bermudez, C. J.

This suit is brought to recover the amount of overdue coupons of bonds issued by the defendant- company for $7350 with a prayer for the recognition of the mortgage consented to secure their payment. -

Defendant objected that the coupons were not the property ot the ostensible plaintiff, but belonged to the firm of L. Waterbury & Co., of New York, against which it had a valid claim, largely in excess of the amount sued for, which they are seeking to avoid.

In answer to interrogatories propounded to him, the apparent plaintiff admitted that he had no interest in the coupons, which were the property of Waterbury & Co.

After filing exceptions, which were never passed upon and were considered abandoned, the defendant company, relying on the answers to the interrogatories and treating Waterbury & Co. as the real plaintiffs in court, reconvened against them, claiming from them $24,408 80 as the rent of certain property under a renewed lease and insurance premiums thereon, the.former for $22,500, the latter for $1908 80, for a period extending from January 1, 1884, to July 1, 1885.

A plea of payment was then filed to this demand.

There was judgment for the nominal plaintiff, as agent of Waterbury & Co., for $1350 with interest, and on the reconventional demand for $24,408 80 with interest, against Waterbury & Co., the costs being apportioned. Waterbury & Co. appeal.

This Court has no concern with the main demand, which is beneath the lowest limit of its jurisdiction.

The contention between the litigants is :

1. Whether Waterbury & Co. can be considered as in court to stand the reconventional demand; in other words: Whether the court had jurisdiction over Waterbury &. Co. on the reconventional demand.

2. If so, whether the plea of payment set up in extinguishment of the claim is established by the evidence.

I.

There can be no doubt that, when Waterbury & Co. authorized Smith to bring the suit, they conferred upon him wypMe&ly the power to stand in judgment for them to resist any demand which the defendant company could set up against them, either touching the coupons, or on any other ground, however disconnected from the main claim.

It is established beyond possible dispute, that where one sues as the agent of another, whether this is done avowedly ab initio, or is subsequently'astertained, he is not the party plaintiff, but that his constituent, for whose benefit he acts, occupies the attitude of real plaintiff in the case.

It therefore follows that, as this suit was brought by Smith, in his own name, but for account of Waterbury & Co., they and not he, were the plaintiff's, anil they stood in the controversy, as though the proceeding had been instituted directly in their name, as a commercial firm.

Such being the case, under the law of this State, the defendant company had a right to set up against them any claim of its own, however disconnected from the original demand. This the company could do, without citing Waterbary & Co., on the theory that, being already in court, they were bound, by the lex fori, to take notice of the defenses and counter claims of the defendant company.

It would, indeed, be monstrous, if the law allowed a non-resident to come here and press his demand before a State court, against a resident citizen debtor, and deny the latter the light of urging against the suing creditor such demand as he might have against him, relegating him to a direct suit only, to bo brought either at the debtor’s domicile or here, on attaching property which is not, or may never come, within judicial reach.

It would be placing absent creditors, plaintiffs in action in this State, on a better and preferable footing than that which a resident citizen would occupy, for, such citizen, in such suit, could be sued on a reeonventional demand.

A law which would sanction such enormity would be iniquitous. Fortunately none such blots the codes of Louisiana.

The rule of practice is distinctly laid down, that, where the plaintiff resides out of the .State, the defendant may claim in reconvention against him, for any cause, though the same be not necessarily connected with, or.incidental to, the action, and that the original plaintiff shall be bound to answer, without pleadimj to the jurisdiction■ of the court. C. P. 375, sec. 2, 377.

Over the controversy growing out of the recen volitional demand in the, instant case, the district court had, therefore, undeniable jurisdiction, the more so, as the claims set forth in that, demand were formally put at issue by the admission of the previous existence of the claims and by the distinct averment of the existence thereof by payment.

The conclusion thus reached is supported by both text writers and judicial adjudications, based on solid principles, all inclining and agreeing in that sense.

A special review of the authorities would prove cumbersome, and a mere reference to them suffices: Story on Conflict of Laws, § 557-8, n. 1; Wharton en Neg. Instr., § 882-3; 9.1 U. S. 406, 413; (!. P. 15; 2 La. 264; 5 M. 525 ; 4 IT. S. 481; 4 R. 1 ; 6 R. 18 ; 10 Ann. 98 ; 11 Ann. 113 ; 16 Ann. 250; 19 Ann. 532; 23 Ann. 385; 24 Ann, 18 ; 26 Ann. 87, 540; 27 Ann. 642; 30 Ann. 6.80,'808; 37 Ann. 803; 39 Ann. 105.

TL

It appears, from two resolutions of the board ot directors of the defendant company, passed on two different days (the 17th and 24th of May, 1884), that tipi claim of the company against Waterbury & Co. was sold to E. L. Ranlett for $15,000 in his draft at ten days on that firm, to be secured by collaterals, and that the claim sold was distinctly stipulated as including the rent in question, aud that payment of that sum by Waterbnry & Co. would discharge them from all liability under the lease.

The facts proved are that E. L. Ranlett was the secretary of the defendant company, with power to act as its treasurer, under its act of incorporation ; that he drew a draft on Waterbnry & Co. for $15,000, which was not honored; that, ready to settle on the basis of the resolutions, Waterbury & Co. authorized their counsel Fearn, as their attorney in fact, to draw on them for the amount, and that Fearn and Ranlett went together to the State National Bank, of which Kennedy was then president.

Under the authority delegated to him by Waterbury & Co., and fully aware of the resolutions, Fearn drew on them on May 26, 1884, a ten days’ draft for $15,000, to the order of E. L. Ranlett, who indorsed it, to which was attached Ranlett’s receipt for the amount of the draft.

On the handing over of both to Kennedy, to whom it seems that Ranlett had pledged certain bonds of the defendant company to secure an individual indebtedness, Kennedy turned over the bonds to Fearn, who carried them off, wholly ignorant of the business relations between Kennedy and Ranlett.

The claim was transmitted by Kennedy, through his bank, to the Bank of New York for collection.

Surely, had .Fearn, as agent of Waterbury & Co., or had the latter themselves paid in cash the $15,000 to Ranlett, or had the receipt itself alone been simply presented to them without any reference to the draft, and had they paid it, no question of the validity of the payment could have arisen, as the resolution specified that, on payment of this sum, Waterbury & Co. would be discharged from the debt, including the rent.

Now, instead of doing this, Waterbury & Co., through Fearn, drew their draft on themselves in favor of Ranlett, who, through Kennedy, forwarded it to the New York bank for collection.

The practical difference between the supposed cases and the instant one, if any, is not discernible'.

It is claimed that the receipt was not transmitted to New York with the draft, as it was delivered here to Fearn on his furnishing the draft on Waterbury & Co.

A member of the firm of Waterbury & Co. beard as a witness, says it was delivered on payment of the draft. If, as is urged, it is true that Fearn received it in New Orleans, he does not say so, and does not state that it was not afterwards sent to New Yorlc.

After all, this is immaterial, as the receipt was designed on its face to be binding and conclusive only on payment of tbe draft. This having been done the debt was blotted out.

As concerns Waterbury & Co. it was a matter of utter insignificance who handled the draft, and to whom the money went.

Under the circumstances they must be deemed that they have acted in good faith, have fully satisfied tlie rent claim when they paid the draft, and that they are completely exonerated, as effectually as if they had paid their debt in cash to the President, Treasurer, Secretary and Board of Directors, and held their authentic voucher for such payment with a formal discharge.

It has not been deemed necessary to allude to the bonds pledged to Kennedy by Ranlett and delivered to Waterbury & Co., through Fearn, more than was done, as they are not considered as factors bearing on the solo important question of payment, which had to be determined regardless of tlie existence of the bonds.

This view of tbe case relieves us from considering a means of defense, touching the immorality of the contract, which was not stated in the beginning of this opinion.

It is therefore ordered and decreed that tbe judgment, appealed from, ou tlie reconventional demand, be reversed and annulled; and it is now ordered and adjudged that, on said demand, there be judgment against tlie Atlas Cordage Company and in favor of L. Waterbury & Co. rejecting said reconventional demand for ever, and that the costs of tlie lower court on said demand and those of this court be paid by the Cordage Company, plaintiff in reconvention.


author: Poché, J.

text:
    No. 10,251.
    Amelia McKenzie et al. vs. Gabriella Bacon et al.
    Under tlie judgment dissolving tlie sale of an immovable as an effect of the dissolving condition, express or implied, for non-payment of the price, the evicted vendee owes rents and revenues to the owner who lias evicted him, for the whole time of his possession, and not from tlie date of the suit for dissolution only.

      As sucli a judgment results from the default of the original purchaser, the dissolution of the sale depended upon an event happening at a date posterior to the contract, and not affecting its vitality ab initio, and of which the evicted vendee had no control.
    Hence his good faith Ts not affected by the happening of the event giving rise to the dissolution of the sale, or by the institution of the suit which led to the application of the resolutory condition. In such cases the question of good or bad faith is not involved in considering the rights or obligations ot the evicted vendee.
    I» determining the right of the evicted vendee to recover the value of improvements placed by him on the property during his possession, ordinary repairs necessary to the enjoyment of the object sold, cannot be classed as improvements.
    APPEAL from tlie First District Court, Parish of Caddo. Taylor, J.

      Young & Thatcher for Plaintiffs and Appellants.
    If the buyer does not pay the price the seller may sue for the dissolution of the sale. C. C. 2561.
    The dissolving condition is that which, when accomplished, operates the revocation of the obligation, placing matters in the same state as though the obligation had not existed. C. C. 2045.
    A resolutory condition is implied in all commutative contracts, to take effect, in case either of the parties do not comply with his engagements; in this case the contract is not dissolved of right; the party complaining of a breach of the contract may either sue for its dissolution with damages, or, if the circumstances of the case permit, demand a specific performance. C. C. 2046.
    The resolutory condition operates a dissolution of the sale and replaces the parties as they stood before. The vendor takes back the property, and all its revenues since the sale are restored to the vendor, and on the other hand the vendee takes back the price with interest. Civil Code, Art. 2045, 2046, 2561; Johnson vs. Bloodworth, 12 Ann. p: 699; Citizens’ Bank vs. Cuny, 12 Bob., p. 281; 6 Ann. p. 2 ; 23 Ann. p. 354; 24 Ann. p. 537; Bike vs.-, 39 Ann.
    The purchasers from the original vendee are bound to take notice of the defeasible title of their vendor; they are affected by the resolutory condition and are bound in respect to the property they hold, precisely as the original vendee was bound. See Johnson vs. Blood-worth, 12 Ann. p. 699; 32 Ann. 463.
    A third vendee stands in no better position than the original vendee when a sale is dissolved for non-payment of the price. The vendee “ could only cede the rights he had and in the condition they were at the time.” 8 La. 83.
    The rule that even possessors in good faith are not accountable for revenues prior to demand is not without exception.
    Where a buyer is evicted he has the right to claim against his seller. Birst. The restitution of the price. Second. That of the fruits or revenues when he is obliged to return them to the owner who evicts him.” C. C. 2506.
    To preserve the rights of the vendor, under the resolutory condition, registry is not necessary. 12 Ann. 699 ; 32 Ann. 461; 28 Ann. 598.
    The effect of the resolutory condition is that a restitutio vn integrwm must be made. The vendor takes back the thing sold with its revenues. The buyer takes back the price with interest. 28 Ann. 739.
    The third vendee takes only such title as his vendor had and takes it cmn onere. 28 Ann. 598.
    Defendant cannot recover for improvements put upon the property after demand. 14 Ann. 340.

      Ordinary repairs necessary for the enjoyment of the tiling- are not improvements that the defendant can recover for. 14 Ann. 233; 3 La. 398.

      Henry G. Miller and F. L. Richardson on same side.

      G. ■). c6 J. S. Boulner and Alexander <& Blanclmrd for Defendants and Appellees:
    The resolution of a contract of .sale for non-payment of price, is an enforcement, not a recission of the contract. 32 Ann. 463; 12 Ann. 099; 11 Ann. 654; 14 Ann. 340; 24 Ann. 537. '
    The obligation to account for fruits and revenues flows from the contract and is binding on parlies and privies thereto. O. C. 1780, 1781.
    As between the von dor and vendee, the effect, of the enforcement of the Desultory condition is a reUitvtio in in teg non. This is aimply a part of their contract. But as to third persona, not parlies to tbe original contract of sale, tlioir rights and obligations are to be determined by the general rules of la w applicable to all purchasers In good faith.
    Such a person takes tbe property subject, only to the liability that may have it taken from him in case the price due to the original vendor is not paid, but he does not assume, nor is he liable, for the purely personal obligation of the original vendee, to restore the fruits and revenues from tlie date of his possession.
    The rights of a purchaser in good faith to the revenues up to judicial demand, are not confined to petitiory and possessory actions «alone, but is a broad principle of equity of universal application. 39 Ann. 1021; 38 Ann. 150; 7 Aun. 252.
   The opinion of tlie Court was delivered by

Poché, J.

This case is the sequel of the controversy between the same parties, which was decided by this court in the early part of last year and is reported in the 40th of Annuals, p. 157.

In that case the demand by plaintiffs involved the dissolution of tbe sale of a cotton plantation oil account, of non-payment of tbe purchase-price, and tlie judgment was in tlieir favor, dissolving the sale to the extent of four-fifths interest therein, allowing to the evicted defendants credit to the extent of four-fifths on the sum ot $5000 originally paid, on account of the sale, with legal interest from the date of said sale, and remanding the cause for trial on the demand for rents and the counter-demand for improvements placed on the property since the sale aforesaid.

The trial below was confined to the conflicting claims of plaintiffs and of John Chaffe & Sons, the vendees in possession of the property at the date of the judgment dissolving the sale thereof.

Those defendants, appellees herein, had purchased the property on December 31, 1879.

Plaintiffs prosecute this appeal from a judgment which held the (baffes liable for rents from the date of the institution of the suit for the dissolution of the sale, with legal interest, the four-fifths of which amount to $2676 13, and allowed them credit for improvements and taxes, the four-fifths of which aggregate the sum of $2819 12, thus making plaintiffs debtois in the sum of $142 99 in the adjustment of the respective claims of the parties for rents and revenues and for the value of improvements.

The discussion between opposing counsel suggests two questions for solution:

1. Can the evicted veudee, in the action on the resolutory condition, who held under a chain of titles from the original or first vendee under the dissolved sale, be held liable for rents for the whole time of his possession, or is he liable only from the date of the suit. ?

2. What are the condition, nature and real value of the improvements which appellees had placed on the property ?

I.

The principles which controlled the decision of this Court in dissolving the sale for non-payment of the price are derived from the following articles of the Civil Code:

Article 2045. The dissolving condition is that which, when accomplished, operates the revocation of the obligation, placing matters in the same state as though the obligation had not existed.”

It does not suspend the execution of the obligation, it only obliges the creditor to restore what he has received, in case the event provided for in the condition takes place.”

Article 2046. A resolutory condition is implied in all commutative contracts, to take effect in case either of the parties do not comply with his engagements ; in this case the contract is not dissolved of right--; the party complaining of a breach of the contract may either sue for its dissolution with damages, or, if the circumstances of the case will permit, demand a specific performance.”

Article 2561. If the btryer does not pay the price, t-lie seller may sue for the dissolution of the sale.”

Article 2130. “ Obligations are extinguished: * * * by the effect of the dissolving condition, which has beeu explained in the preceding chapter.”

Article 2041. The condition being complied with, has a retrospective effect to the. day that the engagement was contracted.”

As consequences of the decree heretofore rendered by this Court in the case, the first or immediate effects to result from an action on the dissolving condition have been practically applied, and have become accomplished facts ; it has been decreed that the buyer has not paid the price; or, in other words, has failed to comply with his engagements, hence, on the. demand of the seller, the contract of salo has been dissolved, the seller is to take the property, and he is held to restore the five, thousand dollars which ho liad received, and the result of the judgment, in its retrospective, effect is to annihilate all the, rights of ownership, in all successive, vendees under the original sale, as though the contract or obligation had never existed.

Hut in receiving their property, after the lapse of eighteen years, during which time it bore fruits for the benefit of the various and successive possessors thereof, the sellers are not placed in the same state or condition as though the sale had never taken place.

They are entitled to, and they must be judicially vested with, the right of recovering the fruits of the property during the whole time that they were out of possession, or otherwise the full effect of the law is not administered or realized in so far as their legal rights are concerned. I-fence flows the obligation of the original buyer and of each successive vendee to return to the seller the fruits or revenues which the property bore to them respectively, in order to place the latter in the state or condition which he would have occupied had the sale never taken place.

To accomplish that result was the object in view by the court remanding the cans e “for the solo purpose of determining the respective demands of the parties touching the rent and revenues of the property and the reimbursement for improvements made thereon since the sale aforesaid.”

It would, therefore, seem that the contention of our learned brother of the district court and of appellees counsel, for the proposition that a different rule applies to the obligations of a subsequent vendee to that which seals the fate of the original purchaser, can find no sanction under the plain meaning of the law, and is in point of tact, in antagonism to the theory of the former opinion which has now become the. thing adjudged as to all the parties to the controversy.

In that case the original purchaser and all the vendees under his title were, made defendants in the cause, and the judgment therein rendered affected them all alike; .they were all treated, and under the law they must be dealt with as forming together one identity; the title sought to be annulled, and it thence follows that by the effect of the judgment all their resj>ective and successive purchases were annulled and dissolved, and that each and all of them must contribute to the acts necessary to place the sellers in the state or condition in which they would have been if the first orioviginal sale had never existed.

In the case of Mortee vs. Roach, 8 La. 81, the contention involved the right of the seller of property to demand the dissolution of the, sale for non-payment against the buyer’s syndic, to whom the insolvent hud surrendered the property, and .the defense rested on the ground that the surrender liad divested the buyer or insolvent -of' his possession. The defense was rejected for the reasons that:

“ The insolvent debtor not having paid the price was not the absolute owner of the slaves; and his right to the property was, therefore, not indefeasible.”
“The cession or surrender of the insolvent debtor’s rights, for the benefit of his creditors, could not, and did not change the character and nature of those rights. They remained the same, for the debtor could only cede the rights he had, and in the condition they were at the time. What was conditional and defeasible in his hands did not become absolute and indefeasible in the hands of his creditors. * * ■ The slaves in controversy not being the. absolute property of the ceding debtor, and his defeasible right to them being annihilated by the rescission of tin-sale, it follows they make no part of the property surrendered. * *

Now, can it be thought for one moment that if the plaintiff in that case had made a demand from the syndic for the hire of the slaves in question, if he had proved that they had earned wages' during the syndic’s possession, and that the latter had collected the same, the court would have hesitated to order the reimbursement of such fruits'? Such a decree would have followed as a logical sequence from the language used by the court in connection with the positive mandates of articles 2045 (2040) and 2041 (2036) of the Code.

Similar views were expressed in the leading case of Johnson vs. Bloodworth, 12 Ann. 699, in which it was held that: The unpaid vendor of a slave sold by private act unrecorded may enforce the implied dissolving condition against his vendee to the prejudice of the mortgage creditor of the latter.”

' These rulings were followed in the late case of Stevenson vs. Brown, 32 Ann. 461, in which the following principle was announced: “ Nonpayment of the price constitutes a resolutory condition in the contract, of sale, and its effect is in no manner affected by the fact that the vendor has faded to preserve his privilege or mortgage by registry.” It might as well be noted here that some relief is sought by the appellees in the instant case from the fact that sometime before Chaffe’s purchase the mortgage which secured the notes representing a portion of the original purchase price of the property had been canceled. But that argument is answered by the theory of the decision just referred to', a theory which, after all, flows naturally from the very laws regulating the subject-matter, and which pervades our entire jurisprudence on the question.- It was said in the case last- referred to, and it had always been previously held, in actions on the dissolving condition that: “ The question of registry lias nothing to do with the case. The right of resolution is an independent substantive remedy, and is in nowise dependent of the existence of a mortgage or privilege.”

But, as we have before remarked, the line of argument followed by appellees’ couucel, and adopted by the district judge, goes truly to the first or immediate effects of the dissolving condition, which have become res mljudieatce under our previous decree, and is a vicious departure from the only line of discussion to be followed on this point.

What we have said leads to the conclusion that the defendants, Chaffe, are liable for rents and revenues. A portion of that liability is conceded in the judgment below, but it is limited to the date of the suit, and not measured by the time of their possession. And that conclusion rests on the theory that they owe rents only from the time that they became possessors in bad faith. As they are shown by our previous judgment to have acquired only a defeasible title, depending upon some event posterior in date to the original contract, not affecting its original vitality, and over which they, as subsequent vendees who had paid their purchase price, had no control, to-wit, the payment of the i>riee by the original purchaser, it follows that the good faith of their possession could not be affected by the liappening of some subsequent events which they could not shape or control. Hence the good faith of their possession was not affected by the institution of a suit predicated on the default of their remote vendor in their chain of titles. It therefore logically follows that the question of good or bad faith of any of subsequent vendees under an eviction resulting from the dissolving condition is not involved in the consideration of their obligation under the law to contribute to the restitutio in integrum, by restoring the fruits which they have respectively reaped from the possession and enjoyment of the property.

Hence, in the case of the Citizens’ Bank vs. Gillespie, 35 Ann. 779, it ■ was said: An action for rent and revenues of immovable property against an evicted possessor, can be maintained against the possessor .only, and for the time of his occupancy.”

In the instant ease, the representatives of the original purchaser, whose default is the primeval cause of the whole controversy, are not before us, and hence we cannot adjust the claims of subsequent vendees inter se, and ultimately against said purchaser j but the respective rights of recourse and obligations of these various parties are provided for by article 2596 of the Civil Code, which is to the effect that: “ When there is a, promise of warranty, or when no. stipulation was made on that subject, if the buyer be evicted, he has a right to claim against the seller :

1. The restitution of the price.

2. That of the fruits or revenues, when he is obliged to return them to the owner who evicts him. * * *

The last clause quoted from the article shows conclusively that within the intendment of our law, a subsequent vendee can be held liable directly to the owner who evicts him, for any cause, for rents and revenues during his occupancy of the property.

All the foregoing considerations tend together to the irresistible conclusion that appellees, John Chaffe .& Sons, are accountable to.plaintiffs for the rents and revenues of the property during the whole time of their possession, which dates from the 31st of December, 1879.

It appears that the only portion of the property which bore any fruits consisted of 157 acres of land which they cultivated or rented out, as it suited their purposes, and from the evidence in the record we agree with the district judge that the rental thereof was not worth more than four dollars per acre per annum, or $628 per annum for the entire property of which they had the use and enjoyment.

II.

On the subject of improvements the testimony is quite conflicting, X»articularly as to the principal item of defendants claim on that score, and which consists of the costs of preparing 92 acres of woodlands for cultivation. For that item the district judge allowed $1750, * * but we think that the allowance is excessive. The burden of proof was on the defendants to make out their claim with legal certainty, and in this they have failed.

Considering that the tillable lands are only worth an annual rental of four dollars per acre per annum, and that these woodlands, although burned out, and although some of the logs have been removed, are not .yet ready for the plow,” we think that an allowance of two dollars per acre is a very liberal compensation for the labor thus far devoted to these lands. The sum of $920 is allowed for that item. The sum of $84 for seven cotton houses is also allowed. As the evidence does not show that a cabin for which $150 are allowed was erected by the defendants, that item must be rejected.

The allowance of $305 80 for the construction of a levee was properly made.

But all the other items of improvements, consisting of ditching, of rails furnished, of cemented cisterns shown to have become useless, are only ordinary repairs necessary to defendants cultivation, and to meet usual wear and tear, and cannot be classed as improvements within the contemplation of law. Daquin vs. Dorron, 3 La. 398; Haynes vs. Harbour, 14 Ann. 236.

The amount of $695 28 allowed for taxes is correct.

We therefore cast the account between the parties as follows:

Plaintiffs are entitled to the following rents : ■

Por the year 1880, 157 acres at $4............................ $628 00

Interest at 5 per cent, from Dec. 81, 1880, to Dec. 31, 1888..... 251 20

Por the year L881........................................... 628 00

Interest of 8 per cent, from Dec. 31, 1881....................\ 219 20

Por the year 1882........................................... 628 00

Interests of 5 per cent, from Dec. 81, 1881..................... 186 40

Por the year 1883...................................'........ 628 00

Interests from Dec. 31,1883................................. 157 00

Por the year 1884............................................ 628 00

Interests from Dec. 31,1874.................................. 125 60

Por the year 1885........................................... 628 00

Interests from Dec. 31, 1885 ................................. 94 20

Por the year 1886........................................... 628 00

Interests from Dec. 81, 1886 .................................. 62 80

Por the year 1887........................................... 628 00

Interests from Dec. 31,1887.................................. 31 40

Por the year 1888, 15 acres at $7 and $4 for.................. 673 00

Total rents............................................... 6825 40

Less one-fifth............................................ 1304 28

Net amount of rents and interests..........................$5520 12

Defendants are entitled to the following amounts for improvements :

Por work on clearing lands................................. $920 00

Por costs of seven cotton houses............................ 84 00

Por costs of a. levee........................................ 305 80

Por taxes.................................................. 095 28

Total....;.............................................$2,005 08

Less one-fifth.............................................. 401 01

Net amount of improvements...........................$1,004 07

It is, therefore, ordered that the judgment appealed from be annulled, avoided, reversed, and it is now ordered that the demand of plaintiffs for rents be allowed up to the sum of (5520 12) five thousand five hundred and twenty dollars and twelve cents, subject tó a deduction of the sum of (1004 07) sixteen hundred and four dollars and seven cents, allowed to the defendants for value of their improvements; and it is, therefore, ordered, adjudged and decreed that plaintiff's do have and recover judgment against the defendants, John Chaft'e & Sons, in the sum of (3916 05) three thousand nine hundred and sixteen dollars and five cents, with 5 per cent per annum interest thereon from' December 33, 3888, until paid and costs of suit in both courts.

Mr. Justice Watkins, having been of counsel, recuses himself.