author: Nicholls, 0. J.

text:
    No. 12,676.
    Clara Young et als. vs. C. T. Cade, Sheriff, et als.
    When parties to a litigation have agreed among themselves as well as by order of court that the credit portions of the purchase price should be represented by notes of the purchaser secured by special mortgage and vendor’s privilege on the property sold, the purchaser although one of the heirs in a partition suit can not refuse to comply with that portion of the bid.
    Granting that an heir in a partition suit who becomes a purchaser at the partition sale could not be called upon to pay the cash price of the bid, that fact would not justify such purchaser in asking a title to the property purchased unless such purchaser executed simultaneously the notes called for by the conditions of the sale.
    A PPEAL from the Nineteenth Judicial District Court for the Parish of Iberia. Voorhies, J.

      E. Simon and Foster & Broussard for Plaintiffs, Appellants.

      W. J. Burke & Bro. for Defendant, Appellee.
    Submitted on briefs December 27, 1897.
    Opinion handed down January 10, 1898.
    Plaintiff alleged that the sheriff of the parish of Iberia, in the suit entitled Jasper Gall et at. vs. Amelia Gall et at., on the docket of the District Court for Iberia parish, in execution of a judgment rendered in said suit of partition adjudicated to her at public sale on November 7, 1896, certain property, which she described, being a portion of that ordered to be sold for partition; that out of the proceeds of said sale made that day of the entire property disposed of to divers parties, an amount of-dollars was to be paid over to petitioner, one of the parties to said suit, as her share thereof.
    That said sheriff held said proceeds in his hands to be distributed among the parties to said suit by said sheriff by virtue of said judgment and a written agreement between said parties to said suit, which provided that said fund should not be turned over to the notary public appointed by the court in said judgment; that said sheriff had sufficient funds in his hands to be applied to the payment of the money due on her bid for said property, and that at divers times the sheriff was called upon and positively requested by petitioner to make out and deliver to her a title deed, which he was bound to execute and deliver to her under the circumstances above mentioned; that he had constantly refused and continued to refuse to do so without any lawful excuse for so doing; that she caused to be tendered the amount, and offered to comply with the terms of the' purchase price.
    That she was, therefore, compelled to pray to have issued by the court a rule to be served on the sheriff to show cause why he should not execute in favor of petitioner a title deed of the property adjudicated to her, and that she prayed accordingly.
    The sheriff answered, pleading first the general issue. He then averred that in the suit referred to in plaintiff’s petition the judgment therein ordered the sale of the property to be partitioned to be made by a public auctioneer, but that subsequently and inexecution thereof the parties to this suit entered into a written agreement whereby the sheriff was authorized to sell the said property at public sale, acting as agent of all parties in interest — observing in other respects save as he would thereafter mention the terms of the judgmentrendered in the suit. That to that extent he was made their private agent for the sale of their lands under the terms and conditions as set forth in the advertisement under which the sale took place; that the agreement referred to was a record in the clerk’s office, but that it had been lost or mislaid. That the property referred to in the rule was adjudicated by him to Mrs. Clara Young, but that she failed to comply with her bid, nor had she ever made a legal tender of the amount due by her.
    He averred that whatever proceeds he received from the sale of the property on that day he transferred according to the terms of the judgment (which he was under the power of attorney given him directed to observe) to the notary who was directed by the court to make such partition as was to be made between the parties in interest, and that he had no right to make a partition between those parties, and had no fund wherewith to pay the amount due by Mrs. Clara Young; that the suit in which he was appointed an agent to make sale was one of partition between Jasper Gall, the surviving husband in community, and the heirs of his deceased wife; that said Jasper Gall was insolvent, and that many oppositions were filed claiming to be paid out of the proceeds of the sale the share coming to him for a variety of claims far in excess of any amount which may have come to him through these sales, and that plaintiff did not offer to pay defendant the proportion of the amount of her bid, or indeed any other amount to respondent.
    That subsequent to the sale, under a writ of fieri facias, the suit entitled John Bussey vs. Jasper Gall et at., on the docket of the Iberia court, respondent had, under order of that court, seized and sold this property to Frank B. Williams and William Kyle, who, having complied with the terms of their bid at said sale, had had a deed of sale given to them, and that respondent was without right or authority in any manner to comply with the demand of the plaintiff in rule. That plaintiff had repeatedly recognized that Dulaney, notary public, was the party appointed by the court in the partition proceedings under which she claimed title to conduct the partition proceedings between the heirs, and that she had recognized his custody of all the funds which she alleged in her rule to be in respondent’s hands, and that she was estopped in the proceedings, as would appear on trial.
    The District Oourt discharged the rule, reserving plaintiff’s right to be exercised hereafter as best she might.
    The court stated that the property for which plaintiff sought to have the sheriff execute to her a deed had been adjudicated and delivered to one Williams on the I7th of April, 1897 (after the date of the partition sale), who held it under a recorded title; that any decree that the court would render ordering the sheriff to execute a deed to plaintiff would in nowise affect the title of Williams to that property, inasmuch as the sheriff colud not place her in possession without ousting Williams; that to give a deed to the plaintiff would be vain and leave matters as undecided as ever; that there would still be a clashing of proprietary rights between Mrs. Young and Williams — a question of title to an immovable not to be finally adjudicated upon by rule, but by an ordinary action. That the adjudication of the sheriff at a judicial sale was in itself title and the act of sale added nothing to its force, and being merely intended to offer proof of it (0. P. 695). That there was no question that one heir purchasing property at a sueces - sion or partition sale was not obliged to pay the purchase price until a liquidation be had to ascertain the share coming to him (O. 0. 1348, 2625), but that the court expressed no opinion as to the obligation of the heir to furnish her notes for the purchase price, which are subsequently extinguished pro tanto by the share coming to the purchaser when ascertained by the final liquidation. That no steps had been taken by the plaintiff to compel the sheriff either to correct his prooes verbal of sale of November 6, 1896, or to complete his adjudication with a deed or act of sale immediately after that sale. That no legal proceedings were instituted by her to prevent the sale of that property to Williams by the sheriff on the 17th of April, 1897, after the same property now claimed had been seized anew and sold by order of court in execution of a judgment of Bussey vs. Jasper Gall, the only step taken by plaintiff being to protest against the sale on the 17th of April, on which day the property was transferred and delivered to Williams.
    Plaintiff appealed.
   The opinion of the court was delivered by

Nicholls, 0. J.

The property went to sale on the 7th of November, 1896, under an advertisement, which declared the terms and conditions to be “the interest of J. Gall in each tract would be sold for cash — the interest of Sylvanus Gall in each tract would be sold for cash. The interests of the other heirs would be sold one-third cash and the balance in one and two years; the credits represented by notes, bearing eight per cent, interest, secured by special mortgage and vendor’s lien on the property sold, with ten per cent, attorney’s fees in case of suit.”

The sheriff upon a day not stated therein made out a proees verbal of the sale of the properties, which was recorded in the Oonveyance Book of the parish of Iberia, from which it appears that the property advertised was adjudicated to Williams and Kyle, Jacob Davies, J. E. Leitmeyer and Mrs. Clara Young, plaintiff, and that the three former complied with their bid by paying cash and furnishing notes with mortgage as required by the terms and conditions, and that in consequence the sheriff transferred to these purchasers the title to the properties bought by them.

The prooes verbal recites the fact that the two properties, a title to which plaintiff claims in these proceedings, had been adjudicated to the plaintiff, but this recital is accompanied by the statement that “Lots IS and 18, adjudicated to Mrs. Clara Young, are not included herein, as she has failed to pay the amount bid by her.”

The adjudication to “ Leitmeyer ” is referred to as lot No. 14, and in reference to the same it is recited that “ lot No. 14, adjudicated to J. E. Leitmeyer, was not included in the transfer, he having enjoined the payment of its purchase price, pending action of the District Court, on his third opposition.”

At the foot of the proees verbal is found a P. S. to the following effect:

“ It is agreed and accepted by all parties concerned, that the purchasers pay the entire amount of the purchase price, and in accordance with said agreement, F. B. Williams and William Kyle, paid the sum of ten thousand and seventy dollars, and J. Davis paid eleven hundred and fifty dollars by check on the New Iberia National Bank at sight, signed P. J. Mestayer, Deputy Sheriff.”

Prior to the sale of the 7th of November, 1893, a large number of persons intervened in the partition proceedings by third opposition, praying that the court direct the sheriff to hold in his hands the amounts of their respective claims — these oppositions were principally directed against the interests of Jasper Gall and Sylvanus Gall, but one was directed against the interest of Mrs. Young, plaintiff.

The opposition of Leitmeyer claimed a priority of payment to the extent of his demand ever all parties in interest.

It was under these circumstances that the sheriff declined in his pro oes verbal to transfer to Mrs. Young the properties adjudicated tO' her as he had those adjudicated to Williams and Kyle.

On the 17th of April, 1897, the interests of Jasper Gall and Sylvanus Gall in the two lots which were adjudicated do Mrs. Young, under the circumstances stated, were sold to F. B. Williams under a seizure made thereof in the suit of Bussey vs. Gall et at.; Williams complied with his bid and a title was made to him under the adjudication to him.

On the trial of the rule the husband of the plaintiff was placed upon the stand as a witness for her. In his testimony he stated that he had as her agent bid upon the property claimed by her the sum of two thousand and thirty dollars; that it was adjudicated to his wife; that after the sale he had requested the sheriff several times to make a title to his wife, which he refused to do. That, he finally demanded it of him; that when he made such demand he told the sheriff he was ready to pay him the balance of the price after crediting the purchaser with the amount of money in his hands for ■ Mrs. Young; that he told him he was ready to settle with him in presence of Mr. Oammaek when he called for that purpose. That •the sheriff told him he would let him know later; that later he declined to give the title without assigning any reason; that when he made the demand he told the sheriff that under an agreement .signed by all parties he had been given full power to make the sale, make title and settle with each heir their respective portions.

On cross-examination he stated that he did not make any offer to pay the sheriff any specific sum of money; that he did not do so •from the fact that he did not know the amount the property would get credit for; that he wanted the sheriff to credit the property with the amount he had in his hands and that then he was ready to pay him the balance; that'that was what he told him; that he took to him no sum of money whatever and made no tender of any. He did not do so from the fact that he did not know what particular amount it-would be; that he knew about what it would be, and after the sheriff would have told witness what it was, he was ready to pay the balance.

The only question we have to deal with is whether plaintiff had the legal right to exact of the sheriff, who made the sales of the 7th of November, 1896, a title deed to the property adjudicated to her under the circumstances of this particular case.

We do not find the sheriff to have been either charged with the ■duty of making a partition between Jasper Gall and the heirs of his wife or authorized to do so. If the husband of the plaintiff, one of the parties in interest, did not know what amount his wife was called1 upon to pay in order to obtain a title (granting that under the circumstances of this case the sheriff could have claimed anything less of her than a compliance with her bid) — he certainly could not expect the sheriff to be informed upon that subject. We are not called on to' discuss generally the extent of the rights which can be exercised by heirs under the privilege granted them under Arts. 1343 and 2625 of the Oivil Code. The parties to this litigation had by express agreement among themselves as well as by order of court declared that the credit portions of the purchase price should be represented by notes of the purchaser secured by special mortgage and vendor7» privilege on the property purchased. We see no ground upon which plaintiff’s wife could have refused to have complied with that portion, at least, of the bid. The heirs respectively had the right to protect themselves from litigation which might possibly arise from having a title acquired by any one of the heirs through the sale, spread upon the records without the act of sale declaring on its face that the price was secured by special mortgage and vendor’s privilege and the sheriff as an officer could nof waive the rights of any of these parties.

Plaintiff was not forced to an immediate payment of her bid1. Through these notes she would have obtained the full time which the parties agreed purchasers should have. Granting it to be true that plaintiff as an heir was not called upon to pay the cash portion of her bid, that fact would not justify her in asking a title unless she should simultaneously execute the notes - called for by the condition» of sale.

We have so far considered the situation as one purely between the heirs themselves; that is independently of the fact that numerous third oppositions were filed in this proceeding requiring the sheriff to hold in his hands the amounts named. The legal complications-which would arise from sustaining pretensions such as are advanced by the plaintiff in this case, and the danger which the sheriff would run by departing from orders of court which he was bound to obey, so manifestly show the correctness of that officer’s refusal to make to the plaintiff the title she claims under the circumstances shown, that we do not-think it necessary to discuss the subject at length.

It is possible that the situation may be such- as that plaintiff will ultimately obtain the benefit of her bid upon the property in controversy under her bid, but that is a matter not before us asp matters stand and with the parties before us.

The judgment of the District Court is affirmed.


source: Caselaw Access Project

author: Breaux, J.

license: Public Domain

text:
    No. 12,601.
    State ex rel. Benoit Rozier vs. Hon. Fred. D. King, Judge of Division B, Civil District Court.
    The proceedings were'regular on the face of the papers, and within the jurisdiction of the court.
    Prohibition or certiorari is not a proper remedy where relief can be reached through appeal. 17 An. 1602.
    ^N APPLICATION for Writs of Certiorari and Prohibition. ,

      Theo. Cotonio for Relator.

      Dinkelspiel & Hart for Respondent.
    Submitted on briefs November 2, 1897.
    Opinion handed down November 15, 1897.
    Rehearing refused January 10, 1898.
   The opinion of the court was delivered by

Breaux, J.

The record sets forth and the respondent states, in p his return, that in answer to a rule filed by the syndic of the insolvent estate of Walter G. Salaun and wife for an order of sale to sell the right which was afterward bought by the relator, all the matters alleged by the relator for writs of certiorari and prohibition were alleged by him and were passed upon by the court, after having heard the evidence in open court, and that judgment was rendered in open court; that it was signed after all the delays had expired an 1 while respondent was in the city and at the court house. The respondent adds that, had such not been the case, the judgment having been rendered upon an interlocutory proceeding, it required no signature; that no objection was made at the time to the judge of Division 0, acting for respondent.

Further, the respondent states that the sale of the right was a conservatory act established by the evidence which was introduced on the trial, and that the purchaser has no interest in contesting the validity of the order of sale; that the relator is in actual possession of' the right of possession ” which was adjudicated to him.

In the brief for respondent it was urged that the judgment was appealable, and that relator’s remedy was by appeal, and not by writs of certiorari and prohibition.

The relator avers that the judgment in question was not legally signed; that the judge of Division O was on the 14th of September, 1897, acting in the place of the judge of Division B.

Why it was that the judge of the latter court was acting in place of the former is not definitely shown of record, but it appears that the respondent judge, after hearing the parties, made the rule absolute and signed the judgment; no one has appealed from the judgment.

The relator argues that he could not appeal until the judgment had been legally signed.

The judgment was actually signed by the respondent judge, who had heard the case (i. e., by the judge of Division B.)

A judgment was rendered in the court below, which was appealable, as it was regular, at least on the face of the papers. On appeal this court could have passed upon all questions regarding the merits of the case, and now urged on this application for writs of prohibition and certiorari, and all questions of validity or invalidity of the signature of the judge. This court has repeatedly declined to entertain an appeal from an unsigned judgment, but here, legally or illegally, the judgment has been signed and any existing nullity growing out of an illegal signing is reviewable on appeal.

“ Prohibition is not a proper remedy where relief can be reached through appeal or injunction.” State ex rel. Shaw vs. Ellis, Judge, 47 An. 1602.

But granted for an instant that the judgment had not been signed as stated by the relator, there was no necessity for the signature. If it caused irreparable injury, it was appealable.

This court has decided that a judgment of the court making the rule absolute, as was made in this case, is not required to be signed (Fox vs. Executor, 1 An. 334), and that the signature of the judge is required only to final judgments. Kraeutler vs. Bank, 40 Robinson, 160; Van Winckle vs. Flecheaux, 12 La. 148.

It does not appear of record that the court was without jurisdiction. Moreover, the irregularities, if there were any irregularities, are not reviewable in these proceedings.

The proceedings being regular are within the jurisdiction of the court; the writs applied for. can not, under our jurisprudence, be granted. State ex rel. Scallen vs. Judge, 45 An. 241.

It is ordered and adjudged that our previous order is set aside, and the writ is denied.


author: Blanchard, J.

text:
    No. 12,600.
    State of Louisiana vs. Eli Bazile.
    Act No. 59 of 1896 held not to violate the constitutional provision which requires every law enacted to embrace but one object and to express the same in its title.
    The rule of criminal evidence requires the prosecution to establish the guilt of the accused by legal and sufficient evidence to the satisfaction of the jury beyond a reasonable doubt. It does not go further and require a preponderance of testimony
    The jury being exclusive judges of the facts in a criminal prosecution may, as their judgment indicates, give effect to the testimony of certain of the witnesses and disregard that of others.
    APPEAL from the Tenth Judicial District Court for the Parish of Avoyelles. Oullom,, Jr,. J.

      M. J. Ounningham, Attorney General, and Phanor Breazeale, Dis - trict Attorney (P. A. Simmons, Jr., of Counsel), for Plaintiff, Appellee.
    J. 3. Overton and Alphonse V. Oooo for Defendant, Appellant.
    Submitted on briefs December 31, 1897.
    Opinion handed down January 10, 1898.
    Rehearing refused January 24, 1898.
   The opinion of the court was delivered by

Blanchard, J.

The accused was indicted for assault with intent to rape, convicted and sentenced to five years at hard labor.

He appeals and presents as error the refusal of the trial judge to charge the jury on two special instructions asked for on his behalf.

The first was: “Ina criminal trial the State must establish its case, not only by a preponderance of evidence, but by such proof as •establishes the guilt of the accused to the satisfaction of the jury .beyond a reasonable doubt.”

The judge having already charged fully the law of ‘‘ reasonable doubt,” declined to give the special charge as worded, on the ground stated in the bill of exceptions, as follows: “ Preponderance of evidence does not figure; it requires on part of the State proof of guilt by legal and sufficient evidence to establish the crime to the satisfaction of the jury and beyond a reasonable doubt.”

There was no error in this. The rule of criminal evidence requires the State to establish the guilt of an accused person by legal and sufficient evidence to the satisfaction of the jury beyond a reasonable doubt. It does not go further and require a preponderance of testimony. It is for the jury to weigh the testimony of each witness •called on behalf of the prosecution and defense and to give such ■effect to the same as in their judgment, under the sanction of their •oaths, it may be entitled, always bearing in mind that unless they .are satisfied, from the whole evidence adduced, of the guilt of the .accused beyond a reasonable doubt they must acquit.

The second special instruction asked was: ” Where two witnesses •for the State contradict each other upon some material fact, it is the •duty of the jury to disregard the testimony of both, especially if their testimony can not be reconciled.”

The trial judge refused this on the ground that “ the jury were sole and exclusive judges of the facts, and were authorized to regard or disregard the evidence or testimony of any witness, or witnesses, either in whole or in part, as in their judgment the testimony •of said witness, or witnesses, was worthy of credit or not” — as he had already charged them.

There was no error here. The law is accurately stated by the judge.

A third ground urged for reversal of the verdict and sentence is that the law under which defendant was tried and convicted (Act No. 59 of 1896) is unconstitutional, because its object is not clearly -set forth in its title.

Act 59 of 1896 amends and re-enacts Sec. 792 of the Revised Statutes. It changes that section only in the term of punishment. •The earlier law fixes the punishment for the offence denounced at “not exceeding two years;” the later law at “not more than ■twenty years.”

The provision of the Constitution which the re-enacting law is •claimed to have violated is Art. 29, which declares: “Every law

•enacted by the General Assembly shall embrace but one object, and that shall be expressed in the title.”

The title of Act No. 59 is: “ An act to amend and re-enact Sec. '792 of the Revised Statutes of 1870.”

The point here raised is no longer an open question. It has been .settled by adjudications of this court against the contention of the defendant. State ex rel. Mouton vs. Read, Judge ad hoc, 49 La. An.; State ex rel. Farrar vs. Garrett. 29 An. 637; State ex rel. Rills vs. Barrow, 30 An. 657.

Judgment affirmed.


author: Nioholls, O. J.

text:
    No. 12,596.
    State of Louisiana vs. Willie Gibson and Will Dillon.
    "Where a party proceeded against by information filed in open court has pleaded to the said information and gone to trial and is convicted, and on his appeal the verdict of the jury and judgment are set aside and the case remanded for further proceedings, it is too late for him to urge for the first time in arrest of judgment ofter a second conviction, that the information had been filed without the consent of the court first obtained.
    •The defendant by pleading to an information waives the objection that the said information was filed without leave of court first obtained.
    A PPEAL from the Fourteenth Judicial District Court foi the Parish of West Baton Rouge. Talbot, J.

      M. J. Cunningham, Attorney General, and Alex. Hébert, District Attorney, (P. A. Simmons, Jr., of Counsel), for Plaintiff, Appellant.

      Clarence S. Hébert for Defendant, Appellee.

      Submitted on briefs November 20, 1897.
    Opinion handed down November 29, 1897.
    Rehearing refused January 10, 1898.
   The opinion of the court was delivered by

Nioholls, O. J.

The following entry appears on the minutes of the District Oourt for the parish of Iberville, under the date of the 14th September, 1896:

“ State op Louisiana vs. “ Willie Gibson and Will Dillon.
“Information filed for ‘larceny.’ ”
“ Will Dillon, being present in court, was regularly arraigned, plead not guilty and asked for trial by jury and case assigned.”

The defendant Dillon was subsequently tried and convicted. On appeal to the Supreme Oourt the verdict and judgment were set aside and the case remanded for a new trial (State vs. Dillon, 48 An. 1365).

On,the return of the case to the District Oourt defendant filed (so the minutes state) a “ demurrer,” which was overruled and the defendant was sent to trial. On the second trial he was again convicted, but the court having sustained a motion in arrest of judgment, the State appealed.

In the brief filed in behalf of appellee it is stated :

“ Before going to trial accused, by his counsel, filed a demurrer to the proceedings, based on the fact that the information, though filed in open court, had not been filed with the consent of the court first obtained as required by the statute. This demurrer was overruled and the accused was sent to trial. No reason was assigned by the trial judge and no bill was reserved by the defence. Dillon was found guilty. A motion for a new trial .was made and overruled, and a motion in arrest was presented by the defendant on the ground that the information against him had not been filed with the consent of the court first obtained.

The motion was sustained, and the State having reserved a bill of exceptions to the ruling of the court, annulling and setting aside the verdict, prosecutes this appeal.

Appellee calls our attention to Sec. 977 of the Revised Statutes, which declares that prosecutions for offences not capital may be by information with the leave of the court first obtained, and contends that the law makes a consent of the court prior to the filing of the same a condition precedent to a prosecution under an information, and that evidence of such prior consent must appear oif the face of the record.

The Attorney General contends- that it is not necessary that the minutes of the court should show affirmatively that the leave of court was first obtained to file an information, and that the court ordered it filed, when the minutes show affirmatively that said information was offered to be filed in open court and was filed.

He also directs the court to Act No. 35 of 1880, entitled an act to provide for the trial of offences where the penalty is not necessarily imprisonment or hard labor, or death, by the second section of which act it is provided that “District Attorneys may file information in the office of , the clerk of the District Ocurt, which said filing shall be as valid as if made in open court,” and to the fact that the penalty for larceny is not necessarily imprisonment at hard labor or death.

Appellee’s reply is that, though under this act the District Attorney may file the information in the clerk’s office, out of open court, he none the less must have had prior consent of the court to filing of the information.

The information in this case was filed in open court, the accused was arraigned upon it, pleaded not guilty and asked for trial by jury. He was tried and convicted. He appealed, and succeeded on appeal in having the verdict and judgment set aside and the case remanded for further proceedings.

It was only upon the return of the cause to the District Court that he urged for the first time that the information had been filed without the consent of the court first obtained, and upon the overruling of that complaint he acquiesced therein and reserved no bill of exception. He was tried a second time and convicted, and thereafter was successful in causing the proceedings to be arrested on a motion in arrest of judgment. We are of the opinion that the court, erred. Every affirmative act in the cause from the filing of the information down to the return of the cause to the District Court evidenced the concurrent knowledge and assent of the court, the State and the accused to the regularity and legality of the proceeding against the present appellee. The administration of criminal justice; would be thrown into disrepute were an accused party to be able to hold such an objection in reserve to be utilized only after his case had been remanded to the District Court for a new trial. It was held by this court in State vs. McCord, 23 An. 326, that “in a criminal case the objection that there was no order of court authorizing the filing of the information comes too late if only made for the first time in the Supreme Court.” We are of the opinion that defendant by pleading to the information waived the objection he now urges.

For the reasons herein assigned: It is hereby ordered, adjudged and decreed that the judgment appealed from be and the same is’ hereby annulled, avoided and reversed, and appellee’s motion in arrest is hereby overruled and denied, and the cause reinstated on the docket of the District Court.

It is further ordered that the District Court do enter judgment in the cause under the verdiet therein according to law, the cause being remanded to the District Court for that purpose. 21 An. 348; 38 An. 145.


author: Rbeaux, J.

text:
    No. 12,582.
    State of Louisiana ex rel. Hibernia National Bank vs. The Judges of the Court of Appeals First Circuit.
    On Application Por a Writ op Certiorari.
    Judgment was rendered on appeal by the Court of Appeals. No question of jurisdiction in the pleading or in argument was raised. Want of jurisdiction was suggested the first time on application for rehearing, which was overruled.
    Under certiorari or prohibition this court can correct proceedings in progress, but after the proceedings are ended writs go to the execution o£ the judgments. C.P. 847, 853; 5 JR. 27.
    iQN APPLICATION for Writ of Certiorari*

      John A. Richardson for Relator.
    Respondent Judges for themselves.

      Submitted on briefs November 29, 1897.
    Opinion handed down December 18, 1897.
    Rehearing refused January 24, 1898.
   The opinion of the court was delivered by

Rbeaux, J.

This is an application for a writ of certiorari to annul and have declared void a judgment of the Court of Appeals on the ground that the court was without jurisdiction ratione mater ise.

The facts are that a suit was brought in the District Court for the parish of Claiborne by a judgment creditor of T. J. Caldwell for a decree annulling a mortgage for seven thousand dollars on the ground of simulation and fraud. There was, it appears, a note for the amount identified with the act of mortgage.

The transferees and holders of the mortgage, about the time that suit was brought for its annulment, proceeded to foreclose the mortgage.

The suit in the District Court terminated in favor of the holders of the note and mortgage.

On appeal to the Court of Appeals the judgment was annulled and avoided and the court decreed that the mortgage and the note identified with it, as above stated, were null and void.

It appears that the relator here and the appellee in the Court of Appeals pleaded his cause in the Court of Appeals, yet made no suggestion of want of jurisdiction of that court at any time prior to judgment.

On application for rehearing only; the appellee, whose judgment had been reversed, suggested the want of jurisdiction of the court to decide the case. The application for a rehearing was overruled. The appellee then applied to this court for writ of certiorari, alleging that the Court of Appeals have declared a contract amounting to seven thousand dollars, simulated.

Respondents set forth in their answer to relator’s petition for the writ as follows:

“ A consideration of the pleadings and the record will disclose the fact that both plaintiff and defendant, as well as respondents, treated and considered the case as a revocatory action.”

Be this as it may, the fact remains that no motion to dismiss the appeal for want of jurisdiction, and no suggestion to that end prior to the judgment of the Court of Appeals was made.

Unquestionably, the Circuit Court of Appeals had jurisdiction to annul the mortgage for seven thousand dollars, so far as it affected the complaining creditor, whose demand was for less than two thousand dollars.

In a revocatory action the test of jurisdiction is the amount claimed, save in case which does not here apply. Ex rel. Newman vs. Judge, recently decided.

In an action de simulation the value of the property involved is the test. Katz & Barnett vs. Gill, 43 An. 1041; C. C. 1977, Livingstone vs. Hardie Bros., 41 An. 312; Loeb & Bloom vs. Arent, 33 An. 1086; State ex rel. Zuberbier & Behan vs. Judge, 34 An. 1215.

Manifestly the Courc of Appeals had no jurisdiction to annul the transfer of the note of seven thousand dollars by the holders (Flower, Putnam & King) to the bank. The transfer might well be good, although the mortgage is not one that can be executed.

The nullity of the transfer [of the note was not an incident to annulling the mortgage.

Despite the situation of affairs .in the course of this litigation, we are not authorized under our laws to reverse the action of the Circuit Court of Appeals and annul the judgment — that is, write another judgment.

The writ will not issue to the end of reviewing matters which might have been, but were not, raised in the court below.

Under the writs of certiorari or prohibition we can correct proceedings for lack of jurisdiction while the proceedings are in progress, and we can correct execution of void judgment. But after the judicial proceedings are ended our writs go only to the execution of the judgment. C. P. 847, 853; Clark vs. Rosenda, 5 Rob. 27.

The nullity invoked by relator is that the court had no jurisdiction to.decree that the mortgage was void. If that be so, then the relator at this stage of affairs must seek other modes of relief for protection against the judgment void for want of jurisdiction.

It is ordered and adjudged that the preliminary writ be set aside and that the relief prayed for by relator be refused at their costs.

Miller, J., recused on account of relationship.


author: Watkins, J.

text:
    No. 12,531.
    L. H. Goldman vs. Simon Goldman.
    Amicable compounders are judicial appointees who are selected by the parties to a litigation over partnership and lilie matters; but once they have been appointed and qualified, and one or more of them resign and others are appointed in their stead, it will be assumed that sueli appointments were authorized unless the contrary clearly appears.
    APPEAL from the First Judicial District Oourt for the Parish of, Ouachita. Potts, J.

      Boatner, Potts & Hudson for Plaintiff, Yppellant.

      A. A. Gfunby and E. T. Lamkin for Defendant, Appellee.
    Argued and submitted June 8, 1897.
    Opinion handed down June 22, 1897.
    Rehearing refused January 24, 1898.
   On Motion to Dismiss Appeal.

The opinion of the court was delivered by

Watkins, J.

The grounds of the motion are (1) that the judgment appealed from is based on an award of amicable- compounders and is not reviewable on appeal; (2) there is no evidence or statement of facts in the record from which this court can review the judgment appealed from.

The theory on which the plaintiff prosecutes this' appeal is, that when the report of the alleged amicable compounders was filed, and the defendant’s counsel ruled him to show cause why Same should not be homologated, his counsel submitted an extended opposition thereto, which was, on motion of defendant’s counsel, stricken from the record; and consequently he was not permitted to introduce any evidence in support of his opposition. And it is further to the effect that there were no amicable compounders selected by the parties and appointed by the court conformably to law, and, for that reason, the judgment based upon the report which was submitted, is necessarily illegal, and therefore appealable.

In our opinion the appellant is entitled to a hearing on these questions of law, and his right to an appeal must be recognized and sustained.

The motion to dismiss is denied.

On the Merits.

This suit is one for the settlement of a commercial partnership which once existed between the plaintiff and defendant, the domicile of which was in the city of Monroe; and it was conducted under the firm name and style of L. H. Goldman & Brother, from 1887 until the end of the year 1890, when it was dissolved by mutual consent— the defendant retiring and the plaintiff being left in possession of the books and assets of the partnership for the purposes of liquidation and making a final settlement of the partnership business and . affairs.

The plaintiff avers that the business of said copartnership has been fully liquidated, and that there is due him, on a fair settlement of same, by the defendant as his copartner, the sum of five hundred dollars; and that he is desirous of having a full, fair and final settlement thereof.

The answer of the defendant is a general denial, coupled with an averment that instead of being indebted to the plaintiff “on a fair, just and legal settlement (plaintiff) owes him (defendant) three hundred dollars;” and his prayer is that plaintiff’s demand be rejected, and for general relief.

As appears from the statement of the case, as it is presented upon the appellee’s motion to dismiss the appeal, there was a submission made of the partnership books and accounts to persons appointed by the judge a quo, for the purpose of making an examination thereof, and a report of their findings therefrom to the court; and the record discloses that the court based its opinion exclusively upon the report of the experts or auditors, and rendered a judgment in favor of the defendant for the sum of three thousand four hundred and sixty-seven dollars and nineteen cents, and all costs of suit, including the fees of the amicable compounders.

It is from that judgment that the plaintiff prosecutes this appeal.

A better understanding of the course of proceedings in the lower court can be had by a brief historical statement of them as they occur in the record, chronologically, and which are substantially as follows, viz.:

On the 17th of November, 1896, the plaintiff filed a petition to the effect “ that a true settlement of the partnership and an exact showing of the items of debits and credits between the partners to said business can best be made by auditors appointed by the court, which is necessary in order to facilitate the-trial of the case.”

Thereupon he prayed “ that the court appoint two auditors, one at the suggestion of the plaintiff, and the other at the suggestion of the defendant, who shall be duly summoned and sworn, and to whom, shall be (submitted) the books, papers and accounts of the mercantile firm of L. H. Goldman & Bro. for their examination, investigation, and report to the court a true settlement between plaintiff and defendant,” etc. * * * “That in the event of a disagreement between said auditors in their reports, the (judge) shall appoint a third (person) as arbitrator, to be summarily sworn,” etc.

On the same date, and in the same order, the judge a quo appointed R. L. Prophet and H. D. King auditors, and W. R. Hudson as umpire, to examine the books and papers, and reportas provided for in the foregoing petition; and upon the following day said parties took an oath, in which it was declared that they “ having been appointed as experts to examine the books, papers and accounts of the late firm of L. H. Goldman & Bro.” would “examine said books, papers and accounts, and report as ordered by the court,” etc.

On the 3d of December, 1896, said committee made a report of their investigation to the court, the substance of which is cen - tained in this statement, viz.:

“We would-also represent that said partnership, as we are informed by both parties, was dissolved on the 3lst of January, 1891, and that on that day, as appears from the face of the ledger proper, the balance due to Simon Goldman, the retiring partner, was five thousand five hundred and sixty-five dollars and forty-four cents, as is evidenced by the business statement herewith presented,” etc.

Thereupon the auditors pray that they be discharged.

Their report is accompanied by a memorandum to the effect that “ the above figures do not include the petty ledger accounts, of which there is no record in the general ledger, and nothing to show that they were included in the settlement, or how (same were) disposed of.”

On the 7th of December, 1896, the defendant’s counsel filed a motion, in which he invites attention to the fact that the auditors, in making their examination and report, had failed and omitted to take into account the petty ledger and other papers and memoranda, and that he had been injured thereby, and requested the court to recommit their said report to them with instructions to examine same, and make an additional report; and upon the 9th of December, 1896, the court a qua made an order to that effect upon the agreement of the parties — it being therein recited that the persons so appointed “ are to act as judicial arbitrators and amicable compounders in this case with authority to hear evidence upon all differences between both sides as to accounts and to report to the court on Monday, 11th of December,-1896,” etc.

On the following day, December 10, the aforesaid persons took and subscribed an additional oath as judicial'arbitrators and amicable compounders.

On the 16th of December, 1896, R. L. Prophet resigned his trust or appointment, assigning as his excuse the alleged personal insults and abuse of W. R. Hudson, a member of the committee appointed by the court; and said resignation was received by the court and he was discharged from further service.

On the 21st of December, 1896, W. R. Hudson andH. D. King, the two remaining members of the committee, made a report to the court, in which they state that upon taking up and continuing their previous report of the 30th of November, 1896, they find “that the plaintiff, L. H. Goldman, is justly indebted and due to Simon Goldman three thousand and sixty-one dollars and nineteen cents ” — an amount less then that awarded in said previous report by two thousand five hundred and four dollars and twenty-five cents.

On the 22d of December, 1896, the defendant’s counsel filed a motion in which they prayed for the homologation of said award, and that same be made executory and a judgment be entered up against the plaintiff, and in his favor, in accordance therewith; and thereupon the plaintiff’s counsel filed an oppositionthereto on thegrounds . (1) that the report is misleading and erroneous, and does not present a true showing of the rights of the partners in said commercial business; (2) that said report was not participated in by the entire committee appointed by the court, but that same was the result of the labors of but two of them; and (3) that H. D. King, a member of said committee, was violently prejudiced against him, and that the only member whom he was permitted to select had been compelled to resign.

On considering said objections, the judge a quo appointed H. B* Newhall to fill the vacancy occasioned by the resignation of R. L. Prophet, and recommitted the matter to the full committee as thus composed; and to this ruling the plaintiff by counsel objected and reserved a bill of exceptions to any further submission to this committee for the following reasons, viz.:

“For the reason that H. D. King, one of said compounders, was not fair and impartial, as (it was) contemplated by law he should be, but is violently prejudiced against plaintiff, and had publicly and repeatedly announced that he represented on that committee the interests of the defendant, and proposed to look especially after the same, and that he would not believe the plaintiff on his oath in any manner.”

On the following day the judge, considering the grounds of plaintiff’s complaint against H. D. King, revoked his appointment and selected and appointed J. J. Jordan in his place and stead, and as thus constituted the judge a quo again committed the partnership affairs to the three amicable compounders for examination and report, to which plaintiff’s counsel objected, and excepted in general terms without assigning any additional reasons therefor.

On the next day, December 24, 1896, the plaintiff’s counsel filed a motion to revoke the order referring this case to amicable compounders for the following reasons, viz.: (1) that R. L. Prophet had resigned and the court appointed another person to fill the vacancy thus occasioned without his consent — said appointment was without the sanction or authority of law; (2) that the appointment of H. D. King and W. R. Hudson should be set aside and revoked because they “ are not fair and impartial, but are violently prejudiced against the plaintiff.”

The judge declined to remove W. R. Hudson, and having removed H. D. King and appointed J. J. Jordan in his place, the motion to revoke was refused; and upon the 12th of January, 1897, the three amicable compounders took and subscribed the necessary oath, the plaintiff’s counsel retaining no bill of exceptions to the ruling of the court.

On January 19, 1897, the three arbitrators presented their report to the court, showing that L, H. Goldman is indebted to the defendant in the sum o£ three thousand four hundred and sixty-seven dollars and nineteen cents, for;which they gave judgment in the defendant’s favor; but the report explains why they increased the previous award by the amount of three hundred and ninety-six dollars.

The report contains this important statement, viz.:

“ We beg to state that we have not been furnished with all the books showing assets of the firm. Both their petty ledger and another small ledger, which doubtless show assets, can not be or are not produced by the plaintiff in this case, although he has been repeatedly asked to produce the same. We are, therefore, convinced that many of the assets in his charge are not accounted for, which, if placed in the hands of your committee, would result in a much larger judgment against the said L. H. Goldman, plaintiff in this case.”

On the 20th of January, 1897, the defendants counsel filed a, motion to homologate said award, and to have a judgment rendered pronouncing it executory; and after due service of said motion and order, the plaintiff’s counsel filed an extended opposition, in which are set out with detail, and particularly’ all the grounds heretofore recited, and many others unnecessary to be mentioned.

This was followed by a motion on the part of the defendant to strike out the averments of the opposition, principally upon the grounds which have been assigned by the judge a quo in the rulings he had made; and said motion having been sustained, the opposition was stricken accordingly, but the plaintiff’s counsel retained no bill of exceptions to the ruling.

Thereupon the judge rendered a decree homologating and approving the award of the amicable compounders and giving a judgment against the plaintiff for the sum of three thousand four hundred and sixty-seven dollars and nineteen cents in favor of the defendant; and it is from that judgment the plaintiff has appealed.

From the foregoing statement two propositions are clearly established, viz.: (1) that the plaintiff is indebted to the defendant on a fair, final settlement of the partnership accounts in the full amount of the award, if not more; and (2) that all the defences and objections that were interposed in behalf of the plaintiff are merely technical, and under the circumstances related, can not be favorably entertained.

In the first place the amicable compounders were 'selected and appointed by the court upon the joint motion of plaintiff’s and defendant’s counsel, and the committee reported that the plaintiff was indebted to the defendant in the sum of five thousand five hundred and sikty-five dollars and forty-four cents.

In the next place the matter was recommitted on the application ' of defendant’s counsel, and two out of the three arbitrators reported that the plaintiff was indebted to the defendant in the sum of three throusand and sixty-one dollars and nineteen cents, the third member of the committee having resigned his trust.

Upon the defendant’s counsel moving for the homologation of said award, plaintiff’s counsel opposed same upon the ground that it was participated in by only two members of the committee, and that another was violently opposed to him; and this opposition having resulted in the appointment of a successor of the one resigned, the plaintiff’s objection was removed.

The plaintiff’s counsel then urged objection to II. D. King, the third member, on the ground that he was biased and prejudiced against him, but the judge a quo at once removed King and appointed Jordan, thus again completing the complement of three arbitrators. To this appointment plaintiff’s counsel excepted, but assigned no reason for his objection.

After the completion of the board and the three amicable compounders had subscribed their oaths, the plaintiff’s counsel filed a motion to annul and revoke the order referring the ease to amicable compounders; but upon the declination of the judge so to do the counsel reserved no bill of exceptions.

And when the arbitrators presented their final report and award to the court it was opposed on various grounds; but when upon the motion of the defendant’s counsel the opposition was stricken from the record, the counsel of plaintiff retained no bill of exceptions.

It is undoubtedly true and conceded that amicable' compounders are judicial appointees who are selected by the parties to a pending litigation overcomplicated accounts of partnership, though appointed by the judge of first instance and are, upon their oaths, to examine all the affairs of the partnership and make a report upon which the judgment of the court is to be predicated; but once they are appointed and qualified and have made a report, and thereafter one or more of them withdraw, or are removed at the instance of one of the litigants, and one or more are appointed in their stead, it will be assumed that such appointments have been made with the knowledge or acquiescence of the parties, in the absence of any specific objection having been made seasonably to their appointment on the ground that the judge had not the authority to make the appointment and a bill of exceptions retained to his ruling.

If this were not so, parties litigant would have the opportunity of ' testing the strength of demands of parties who are opposed to them, by means of the award of arbitrators, to whose capacicy they could object subsequently, íd case the report were unfavorable to their interest, or in which they could acquiesce in case the award was favorable thereto.

This situation of affairs is clearly shown in this case.

For it was upon the petition of the plaintiff as the member of the copartnership who retained the assets and was entrusted with the liquidation of its affaii’3 that this suit was brought. It was upon his petition that amicable compounders were selected. And it was upon his motion that the first award against him was set aside because there were but two of the arbitrators participating therein — the third member who was appointed, at his suggestion having resigned. And it was also upon his motion that another member, H. D. King, was removed on the ground of alleged prejudice against him and J. J. Jordan appointed in his place, notwithstanding King had been chosen by the defendant.

The learned judge of the lower court was evidently disposed to do his utmost to secure the most competent and unbiased persons possible for the discharge of the delicate and responsible duties which the law has imposed upon amicable compounders, and in so doing his rulings were nearly altogether in favor of plaintiff.

Our examination of the record has fully satisfied our minds that he has done substantial justice between the parties.

Judgment kffirmed.

The Chief Justice takes no part in this case.


text:
    No. 12,482.
    Mrs. Margaret Russell vs. John H. Lang.
    The law of 1874 decreeing the prescription of three years against actions to invalidate tax titles held to be in force and applicable to facts of this case.
    Purpose of this statute is to obviate necessity on part of purchasers at tax sales, after lapse of three years, of substantiating validity of the tax titles under which they hold

      Wliere the purchaser has actual and open possession, this fact puts original owner under notice of necessity of bringing his action within the time fixed, in default of which the bar of the statute applies.
    Defendant has the right to stand on his possession. Plaintiffs cannot force him. in defence, to assume the attitude of plaintiff in a petitory action.
    Instant case distinguished from Remiclt vs. Lang, 47 An. 922; Blood vs. Negrotto, 47 An. 1132; Johnson vs. Martinez, 48 An. 52; Hoyle vs. Athletic Club, 48 An. 879; Breaux vs. Negrotto, 43 An. 428.
    The law relative to the assessment of;property for taxation, its description, proper use of name of owner, how to be listed when held in indivisión, etc., stated.
    APPEAL from the Civil District Oourb for the Parish of Orleans. King, J.

      Wall & Watt for Plaintiff and Intervenors, Appellees.

      J. Zach, Spearing for Defendant, Appellant.
    Argued and submitted June 14, 1897.
    Opinion handed down January 24, 1898.
   The opinion of the Oourb was delivered by

Blanchard, J.

The plaintiffs and certain parties who appear as intervenors claim the ownership and possession of certain real estate in the parish of Orleans.

The title under which this claim is made is set up, and it is averred that the defendant is wrongfully in possession of the property, without valid title to support the ownership which he asserts.

Defendant answers that he is in possession' as owner under good and valid title. He sets forth this title, and from it we gather that the property was sold at tax sale in 1885 under the provisions of Act No. 82 of 1884, for State taxes due thereon for the years from 1871 to 1878, both inclusive, and was bought by Orloff Lake, who, subsequently, sold to Lallance, and he, in 1891, to defendant.

On his behalf it is further averred that the property had been adjudicated to the State in 1885 for the unpaid State taxes due thereon for the years from 1880 to 1883, inclusive, and that defendant, having redeemed the same by paying the amount due the State, had become subrogated to the rights acquired by the State under the adjudication aforesaid.

Prom a judgment sustaining the demands of the plaintiff and inter - venors and decreeing them owners of the property in controversy, defendant prosecutes this appeal.

In this court he files the plea of prescription of three and five years, and especially does he insist that this action is barred by the prescription of three years. This latter prescription is bottomed upon Sec. 5of Act No. 105 of 1874, which is as follows: * * * “Any action to invalidate the titles to any property purchased at tax sale under or by virtue of any law of this State, shall be prescribed by a lapse of three years from the date of such sale.”

It is shown that the tax sale in question was made in 1885, whereas the present suit was not filed until 1894.

The law of 1874, quoted above, is still in force. It has survived the adoption of the Constitution of 1879 and all tax enactments of the General Assembly since then. Barrow vs. Wilson, 39 An. 403; McDougall vs. Monlezun, 39 An. 1010; Smith vs. City, 43 An. 733; Michel vs. Stream, 48 An. 341.

It is distinctly a statute decreeing the prescription of an action. It does not purport to cure defects, nor does it concern itself with the rights of parties. Its simple declaration is that whatever rights parties may have they must assert them within three years, or for-, ever thereafter “ hold their peace.” It creates a positive bar against “ any action to invalidate ” a tax title after the lapse of three years. Barrow vs. Wilson, 39 An. 406.

It is a statute of repose, sanctioned alike by reason, sound policy and authority. Blackwell, Tax Titles, p. 643; Cooley on Taxation, p. 376; McElmoyle vs. Cohen, 13 Peters, 312.

Defendant and the authors of his title hold under a deed from the State Tax Collector, which sets forth that the property was sold for the non-payment of taxes. They went into possession under this purchase of the identical property claimed by plaintiffs, and this possession has been adverse to plaintiffs for nearly nine years. This is a sufficient showing upon which to predicate the plea in bar of the action. Breaux vs. Negrotto, 43 An. 426; Barrow vs. Wilson, 39 An. 409.

In order to invoke the plea it is not required defendant should show that all the requisitions of the law had been complied with in order to make the tax deed a valid and indefeasible conveyance of the title. If such proof were essential before defendant1 could have the benefit of the law, it would, in effect, be requiring him to show that he had no need of the protection of the statute before he could avail himself of its provisions. Such a construction would deprive the statute of the effect it was clearly intended to have, viz.: obviating the necessity, on part of purchasers at tax sales, after the lapse of three years, of substantiating the validity of tax titles under which they hold. Pillow vs. Roberts, 13 How. 472.

A similar statute in Wisconsin was held by the Supreme Court of that State to be of such binding force that if the tax purchaser’s possession had been actual and open, and the suit to annul his title was not brought within the three years, the statute would protect him even if the tax deed was void on its face. Lindsay vs. Fay, 25 Wis. 460.

The action under consideration is.not one of jactitation or slander of title. Plaintiff and intervenors are not in possession of the property; defendant is, and is so alleged to be in plaintiff’s petition.

Defendant has the right to stand on his possession. Plaintiffs can not force him, in defence, to assume the attitude of plaintiff in a petitory action. Michel vs. Stream, 48 An. 348.

Plaintiffs found defendant in possession under a title deriving its source from a tax sale. Their suit, under some disguise, is virtually an attack on his title and on the tax sale. This is shown by the circumstance that they make the State of Louisiana a party through the Attorney General, who is asked to be cited in order that the State may assert title to the property, if she have any.”

The State could have no title or interest except that she had acquired it at tax adjudication and stood remotely in the character of warrantor to those to whom she had subsequently conveyed the property.

We think plaintiffs have thus directed their attack against defendant.in such way as enables him to invoke the plea of prescription of three years against the action. Michel vs. Stream, 48 An. 348.

This court observed truly, in a case already cited, that the statute awarding this prescription does not concern itself with the strength of one title or the weakness of the other.

Plaintiffs asserted a right. This required an action at law to enforce it.

They were out of possession and must necessarily sue to acquire it. In order to acquire it they must show a better title than the one defendant has. They knew that defendant was in possession as owner under a title having its origin in a tax sale. The deed evidencing this title accurately describes the property and. is otherwise sufficient in terms to transfer its title. Plaintiffs’ suit must be viewed as one intended to test the validity of this title. Defendant’s title must prevail over that of plaintiffs unless the latter can get rid of it by showing that as a tax title it is void for inherent defects such as want of fulfilment of the requirements of law in the matter of the assessment of the property for taxation, or in the proceedings taken for its sale for non-payment of taxes.

When plaintiffs attempt to make this showing they run up against the barrier of the prescription of three years. They are told by the law that even if inherent defects in defendant’s tax title exist, they have no right of action to inquire into the same after the lapse of three years from the date of the tax sale.

It is impossible to view plaintiffs’ action in any other light than one to dispossess defendant by assaulting and overthrowing the tax title which is the basis of his possession.

The road over which plaintiffs must travel to deliver this assault is barricaded by the prescription invoked. The court can not do otherwise than enforce the limitation and deny the action.

It was held in Barrow vs. Wilson, supra, that where a purchaser at tax sale has actual and open possession of the property so purchased, this fact puts the original owner under notice of the necessity of bringing his action within three years, and if he fails to do so the bar of the statute applies.

The instant case is distinguishable from Remick vs. Lang, 47 An., 922. In that case the defendant was not in possession of the property under his tax title. Plaintiff being in possession, his action was one of jactitation or slander of title, and he sought also to enjoin the defendant from asserting title based on the tax deed, and to have the deed annulled.

The property had been adjudicated to the State for taxes prior to 1880, and in 1885 had been sold by the State to Lake, who in turn sold to Perkins and the latter to the defendant. But Lake and his vendees failed to pay the taxes that had accrued after 1879. Whereupon, in 1898, plaintiff (original owner) paid all taxes accruing since. 1879 and took formal redemption and subrogation from the State for same, continuing on in possession of the property. Because of failnre to pay the taxes assessed on the property subsequent to 1879, and which were due when the defendant purchased from the State and which he assumed to pay, it was held that no title whatever passed to the defendant — reaffirming the doctrine announced in State ex rel. Martinez vs. Tax Collector, 42 An. 677, and State ex rel. Powers vs. Recorder, 45 An. 56.

Under these circumstances the defendant, being neither in possession of the property, and no title from the State having passed to him, was not in a position to invoke the prescription of three years in bar of the action brought against him. Whereas, in the instant case, defendant is in possession of the property, and he, not plaintiff, has paid the taxes accruing on the property since 1879,- receiving in his own name, before this suit was filed, the State’s redemption, relinquishment and subrogation for and on account of said taxes.

Under these different circumstances, the present defendant is in position to invoke the prescription denied in the other case.

For the same reasons the case at bar is distinguishable from that of Blood vs. Negrotto, 47 An. 1132, another of the cases relied on by plaintiff’s counsel.

So, too, the eases of Johnson vs. Martinez, 48 An. 52; Hoyle vs. Athletic Club, 48 An. 879; and Breaux vs. Negrotto, 43 An. 428, are to be differentiated from the present one. \

In each of those eases defendant claimed under an adjudication to the State for taxes accrued since 1880, followed by a sale by the State to the author of defendant’s title, and it was held that sales for taxes accruing since the Constitution of 1879 must be preceded by notice to the owner, or no title passes, and in the first named case it was said that neither the prescription of three or five years cured the want of this notice required by the organic law.

In the instant case defendant holds under an adjudication to the State for taxes which had accrued for the years 1871 to 1878, or before the Constitution of 1879, followed by a sale by the State to the author of his title. The “ notice” prescribed by Art. 210 of the Constitution refers only to taxes accruing subsequent to 1879.

Defendant shows payment by Lake (one of the authors of his title) of the purchase price of the property at tax sale from the State. This extinguished all the taxes due prior to 1879. He shows payment of taxes due the State from 1880 to 1887 inclusive, and produces a redemption certificate from the State in his favor. As to the taxes due the city of New Orleans from 1880 to 1885 inclusive, which were assumed as part of the purchase price, it appears that neither defendant nor the author of his title have paid the same. Because of this plaintiffs contend that no title has passed to defendant, and such was the doctrine announced in West vs. Negrotto, 48 An. 922, and other cases.

But it appears that immediately after Lake acquired the property from the State he sold to Lallance, and the latter then filed suit in the District Court against the city of New Orleans to be relieved of payment of city taxes. The city contested the action, but there was judgment decreeing, in effect, that the property in question owed no city taxes for the years from 1880 to 1885, inclusive. This judgment, rendered in 1886, seems not to have been appealed from, and however erroneous it may have been, it is now final and conclusive against the city and forms res judicata as to the city taxes, for the non-payment of which plaintiffs assert no title passed to Lake and his vendees. Reed vs. His Creditors, 89 An. 120, 125.

After this judgment, which was acquiesced in by the parties having an interest to contest the same, it was not to be expected that-the State’s vendees would pay the city taxes, especially since they were in possession of the property under the State’s title and held the State’s redemption certificate for the State taxes since 1879.

The property in this case was so described as to be susceptible of easy identification. 34 An. 255.

The description of urban property for assessment purposes may be made by reference to the plan of the city, town, or village where situated. Sec. 20, p. 139, Acts 1877; Sec. 7, p. 122, Acts 1882; Act 140 of Acts of 1890.

In the instant case the number of the square was given, by what streets bounded, and the numbers by which the lots were designated in the squares were stated. That sufficed for identification. 15 An. 15; 41 An. 765.

The property was assessed in the name of J. R. Russell for the years 1880 to 1885, inclusive, and described as one half of square No. 35, Greenville, Lots 11 to 20 — Oliver, Wall, Lowerline and Pine streets. This description was not inadequate, and the assessment in the name of Russell was the assessment in the name of one of the owners in indivisión. This assessment can not be held an absolute nullity. It was sufficient as to the interest of Russell in the property which was an undivided half, and if the taxes due by his interest were not paid, that interest (an undivided half) could be legally sold under an assessment which placed the whole property in the name of Russell. An assessment of the entire property, correctly described, in his name, while error as to the whole, was not error as to his half, on the principle that the greater includes the less.

It is true Russell died in August, 1881, and notwithstanding his death his name was continued in use in the assessment of the property. If it was illegal to so assess the property, or his interest in it, after his death, this objection falls as to the assessment for the years 1880 and 1881. He was alive when the assessment was made in those years, which are years for the non-payment of whose taxes the property was adjudicated to the State. It has been held that if the assessment of property and proceedings had leading up to a sale for taxes were sufficient and legal in any one of the years for whose taxes the property was sold, the tax title will be maintained.

The lots were evidently vacant and unoccupied and plaintiffs had no agent to represent them in New Orleans. They resided out of the State and there was no one in possession of the property holding under plaintiffs.

When Lake bought from the State he and his vendees took possession, no writ of possession being necessary for the purpose.

Besides, it appears that from 1871 to 1885, when the State sold to Lake — a period of fourteen or fifteen years — no taxes, city or State, were paid on the property by plaintiffs, or by those from whom they derive title. They did not return the property for assessment, nor to be listed for taxation, nor did they seek in any way to meet their tax obligations to the city and State.

Under these circumstances there would seem to be little or no equity in |the demand of plaintiffs, and the observations of this court on a somewhat similar state of circumstances in Webre vs. Lutcher & Moore, 45 An. 579, apply with much force here.

We are referred to Hayes, Administrator, vs. Viator, 33 An. 1162, as holding that “lands held in indivisión by several parties must be assessed as a whole in the name of all the joint owners.”

This quotation is taken from plaintiff’s brief. It is the syllabus of the ease merely, and the syllabus is erroneous. A reading of the body of the opinion shows that no such proposition was sustained and it is not true in law.

There are two. ways of legally assessing real property held by two or more parties in indivisión. One, and the better way, is to assess to each his undivided interest; the other,' to assess the property as belonging jointly to the parties, giving the name of each individual owner, followed by the description of the property. Or, if a firm, or business company, corporation or association owns the property, it may be legally assessed in the name of such firm, company, corporation or association. And in placing the names of taxpayers on the assessment rolls, while it is better to give the Christian or baptismal names, it suffices to use the initials, followed by the family or surname — thus, “ J. R. Russell.” '

This designation of the name of the owner, followed by a correct description of the property, fulfils the requirements of the law. Douglas vs. Dakin, 46 Cal. 51.

And if there be two joint owners, and the name of one only is used, followed by an accurate description of the property, this suffices to bind the interest of the one whose name is used, for his share of the taxes, but, of course, can not bind the other individual owner whose name is not used, nor his interest in the property. The cases of Thibodeaux vs. Kellar, 29 An. 509, and Hayes vs. Viator, 33 An. 1164, cited in opposition to this view, do not sustain the pretension.

Plaintiffs’ contention that the adjudication to the State for taxes due subsequent to 1879, is void because not preceded by the notice required by Art. 210 of the Constitution can nob be sustained. There is nothing in the record to rebut the presumption that this notice was properly given to Russell, at least for the taxes for the years he was alive, 1880 and 1881. The deeds to the State for the taxes of those years so state, and the Constitution, Art. 210, declares that all deeds of sale by collectors of taxes shall be received by courts in evidence as prima facie valid sales, and Sec. 3 of Act No. 82 of 1884 distinctly declares that duly certified copies of such deeds shall be full proof of the recitals thereof. See Saunders on Taxation, p. 313; Acts of 1880, p. 99, Secs. 34, 35, 36.

Defendant’s deed, then, was proof of notice unless overthrown by stronger proof that no notice was given, which was not the case. There is no proof to contradict the recital of the proper giving of the notice. 43 An. 433, 434; 33 An. 438; 35 An. 893; Stroebel vs. Seeger, 49 An. 36. See Del Castillo, plaintiff in error, vs. McConnico et al., decided by the Supreme Court of the United States at October term 1897.

Besides, the facts of this case bring it within the rule laid down in Webre vs. Lutcher & Moore, 45 An. 574, as to unknown owners, relative to whom notice by publication is sufficient, and the tax collector’s deed to the Slate declares Jihat the notice required in ease of unknown ownres was given.

It is therefore ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and reversed, and that the demand of plaintiff and intervenors be rejected at their costs in both courts.

Mr. Justice Breaux: I concur in the decree.

Mr. Justice Miller : I concur in the decree.


text:
    No. 12,584.
    State of Louisiana ex rel. J. M. Courrege vs. John Fisher, Mayor of the Town of New Iberia.
    Application tor writs of certiorari and prohibition. Relief asked from sentence of fine and imprisonment by mayor’s court, based upon allegations of illegality and nullity in reference to both form and matter.
    Regularity and legality of tria 1 reviewed; writs denied in part and granted in part.
    Course of procedure before mayor’s court is summary. Proceedings for the punishment of offenders against municipal ordinances enacted in virtue of implied or incidental powers of corporations, or in the exercise of legitimate police authority for the preservation of peace, good order, etc., and which relate to minor acts and matters, are not usually or properly regarded as criminal.
    The object and purpose of the amendment of the town charter, authorizing the mayor to commit to prison any person refusing to pay afine imposed for violation of a municipal ordinance,.is to coerce the payment of the fine, and not to inflict double punishment.
    y^PPLIOATION for Writs of Certiorari aud Prohibition.

      L. 0. Haeker, Weeks & Weeks and Foster & Broussard for Relator.

      A. J. Cammaek and Walter J. Burke & Bro. for Respondent.
    Submitted on briefs September 6, 1897.
    Opinion handed down January 10, 1898.
    Decree amended as to costs and rehearing refused February 7, 1898.
   The opinion of the court was delivered by

Blanchard, J.

The relator complains of an order for his incarceration in prison issued by the mayor of the town of New Iberia.

This order is based upon a trial and conviction had before the mayor’s court for a violation of a municipal ordinance.

The ordihance in question is as follows:

“ That it shall be unlawful for the owner, manager or clerk of any saloon or coffee-house within the limits of the town of New Iberia * * * to invite, admit or permit to remain therein any lewd woman or prostitute, for the purpose of drinking, carousing or any other lewd or immoral purpose, or any purpose whatever, and any proprietor of such place, or his clerk or agent, violating the foregoing provisions, shall' be liable to a fine not exceeding twenty-five dollars, or imprisonment not to exceed five days, or both, at the discretion of the mayor.”

The facts are that two lewd negro women at night entered the saloon in the rear of relator’s store; one of them bought an intoxicating drink and divided it with her companion, both drinking the liquor in the saloon. A policeman of the town witnessed this violation of the ordinance and reported it to the mayor. The next morning the relator was summoned before the mayor’s court to answer to the complaint. He was tried, found guilty and sentenced to pay a fine of twenty-five dollars.

After a short interval, the accused, having said nothing and intimated no purpose of paying the fine, was asked by the mayor what he intended doing about it. He replied that he would not pay the fine.

The mayor then ordered him committed to the town prison for ten days.

Thereupon the accused, finding he was about to be imprisoned, declared his willingness to pay the fine of twenty-five dollars “ under protest.” But the mayor declined to so receive it and directed the order of imprisonment to be carried into effect.

The relator then applied to this court for its remedial writs of certiorari and prohibition, praying that the validity of the proceedings of the mayor’s court be inquired into and passed upon, and for judgment avoiding the same and l’eleasing him from incarceration thereunder.

This prayer is based upon allegations of illegality and nullity in reference to both form and matter.

Summarized, certain of them are as follows:

1. Want of affidavit charging violation of the ordinance.

2. No warrant issued for his arrest.

3. No opportunity given to summon witnesses, nor to prepare his defence, nor to be heard through counsel.

The writs applied for can not be maintained on any of these grounds. Two of the propositions are erroneous in law; the third without foundation in fact.

The mayor’s court had jurisdiction. The charter of the town shows his authority to impose the fine. There was an ordinance forbidding the act of which relator was guilty. There can be no question of the validity of this ordinance. It was within the police power of the town. There was warrant in the charter for it. A trial usual before mayor’s courts was had. The result of that trial was the imposition of a fine authorized by the ordinance.

The course of procedure’before a mayor’s court is summary. Proceedings for the punishment of offenders against municipal ordinances enacted in virtue of implied or incidental powers of corporations, or in the exercise of legitimate police authority for the preservation of peace, good order, safety and health, and which relate to minor acts and matters, are not usually or properly regarded as criminal. A. and E. Ency. of Law, Vol. 24, 504; State vs. Gutierrez, 15 An. 192; Natal vs. Louisiana, 139 U. S. 621; Mayor and City Council vs. Meuer, 35 An. 1193.

In this view, it is not essential that an affidavit should precede an arrest for the violation of a municipal ordinance, or that a formal warrant for arrest should issue.

The purpose of both is to bring the party accused to the bar of the court to answer to the charge made.

In the instant case the accused appeared in response to the summons to do so.and submitted to the trial. Thereafter it did not lie in his mouth to complain that his appearance there was not preceded by an affidavit and warrant. Bishop’s Crim. Proc., Vol. 1, Sec. 235; State ex rel. Zuberbier vs. Judge, 33 An. 16.

It is not shown that the relator asked for time to summon witnesses and was refused it; nor to prepare for his defence and was denied it; nor to be heard by counsel and was forbidden it.

The fine imposed by the mayor was within the authority of the ordinance. He might have imprisoned him for five days without imposing the fine, or he might have inflicted both the fine and imprisonment. He imposed only the fine.

Thus far he was acting under the ordinance relating to lewd women hereinbefore quoted. Bub when the relator refused to pay the fine thus imposed, it is claimed on behalf of the mayor that he violated the sixteenth amendment of the town charter, and that, thereupon, arose the authority of the mayor, under the terms of that amendment, to deal further with him.

We quote as follows from the charter amendment aforesaid: <l In all cases wherein the mayor shall, in the exercise of the powers herein g; anted him, and in accordance with the laws and ordinances of the corporation, impose any fine, penalty or forfeiture on any person for the breach thereof, and such person shall not comply with and perform the judgment imposing the same, he shall be committed to the town prison until discharged by law for a time not to exceed thirty days, for any one offence, the time to be determined by the mayor trying the offence.”

Under the authority here conferred the mayor had the power to sentence the relator, for refusing to pay his fine, to prison for any number of days not exceeding thirty. He did sentence him to ten days. But immediately, in order to obviate the sentence of imprisonment, the relator offered to pay the fine.

This the mayor refused to receive and directed his imprisonment.

In this the mayor erred. The purpose and object of the sixteenth amendment to the town charter, heretofore quoted, is to coerce the payment of fines imposed and nob to inflict double punishment. • ■ It follows that when relator offered to pay the fine it should have been received and the accused discharged.

To this extent he is entitled to relief'at our hands.

It is, therefore, ordered and decreed that the sentence of twenty-five dollars fine, imposed upon relator by the respondent mayor for violation of the municipal ordinance relating to lewd women, be recognized as legal and valid, and in so far as this fine is concerned the peremptory writs applied for are refused, and it is ordered that relator stand committed under the judgment and sentence of imprisonment until the fine is paid.

It is further ordered and decreed that upon payment of the fine imposed relator be discharged from custody, and to this extent the alternative writs herein issued be made peremptory.

On Application por Rehearing.

It is called to the attention of the court that the decree herein fails to direct upon whom the costs of this proceeding should fall.

Correcting this, it is now ordered that defendant pay the Costs.

Rehearing refused.


author: Miller, J.

text:
    No. 12,622.
    State of Louisiana vs. Marius Aucoin.
    On an indictment against three the grand jury’s action “ not found” as to two and “atruebill” as to the other may be endorsed on the bach of the bill, and neither that endorsement nor the title “The State vs, M. C. et a/s,” placed on the bach of the bill by the prosecuting officer when he preferred it, affords any cause of complaint to the accused.
    APPEAL from the Eleventh Judicial District Court for the Parish of St. Landry. Dupré, J.

      M. J. Cunningham, Attorney General, and Chas. W. Du Roy, District Attorney, ad hoc (P. A. Simmons, Jr., of Counsel), for Plaintiff, Appellee.

      John N. Ogden for Defendant, Appellant.
    Submitted on briefs December 18, 1897.
    Opinion handed down January 24, 1898.
   The opinion of the court was delivered by

Miller, J.

The accused appeals from the sentence of petty lar-

ceny.

The motion in arrest of judgment is on the ground that the indictment on which he was tried, preferred against him and two others, is endorsed, the action of the grand jury “ not found ” as to the two, and “a true bill” as to the accused, and this is claimed to be a variance between the indictment and the finding, and hence there is no valid indictment.

It is argued that the failure to find a true bill, or “ an ignoramus ” can not be “ blended in the same instrument,” and is an irregularity fatal to the sentence. We believe it to be the common, if not the universal practice to exhibit the action o£ the grand jury by the endorsement of their foreman on the back of the bill. The endorsement has all the certainty of the finding or the failure to find stated in separate papers. In Blackstone the law is stated if on hearing the evidence the grand jury think the accusation groundless, they formerly endorsed ignoramus, but now they assert, as the commentator states, in better style “not found,” and “ not a true bill,” is equivalent to “ not found.” 4th Blackstone, S., p. 306. As it is the province of the grand jury to determine whether the evidence submitted to them is sufficient to put the parties indicted on trial, the action of the jury “ not found ” as to two, and a true bill as to the defendant was properly endorsed on the bill.

It is urged that the title put by the prosecuting officer on the indictment, “The State vs. Marius Aucoin et als.,” was an irregularity and misleading, and in this connection our attention is directed to the greater number of challenges to which the accused is entitled when tried jointly with others. We can perceive in this no cause for surprise to the accused, nor can we appreciate he could sustain any injury, unless injury is to be predicated on the theory it was his right to have the bill found as to all the parties indicted. When called on to plead that accused was fully apprised he alone was to stand his trial, and the law fixed the number of peremptory challenges. We think the motion in arrest was properly denied.

It is therefore ordered, adjudged and decreed that the sentence of the lower court be affirmed.


text:
    No. 12,654.
    Succession of Thomas J. Lyons.
    Items of different accounts were taken to form a total in the final account.
    They are not .separate and distinct from the total acknowledged in the final account, and could notbe allowed without charging the same item twice.
    The last total was correct.

      Tlie husband or his heirs, who claim an amount, which wont to the purchase of community property, must establish satisfactorily that the price was paid out by his separate fund.
    An amount received by the husband, a few days prior to his death, not shown to have been retained (as charged) by the widow, was not deducted, as due by her, or by the community.
    The claim had been rejected on opposition to a provisional account.
    APPEAL from the Twelfth Judicial District. Court for the Parish of Calcasieu. Bead, J.

      B. L. Belden for Succession and Mary Meyland, Plaintiffs, Appellees.

      Pujo & Moss and G. B. Fournet for Opponents, Appellants.
    Submitted on briefs December 16, 1897
    Opinion handed down December 28, 1897.
    Rehearing refused February 7, 1898.
   The opinion of the court was delivered by

Breaux, J.

This was an action brought by the asserted purchaser, Mary Newland, of rights and claims.

The vendor of these rights and claims was Mrs. Adela. Lyons, widow of Thos. J. Lyons. It was alleged that prior to the sale she, the executrix, Adela Lyons, had presented a final account of administration of the succession of Thos. J. Lyons,-of which she was the executrix. The purchasers, opponents here, asked to have it homologated.

We find as a fact, that inventory was made in 1885, and the property was appraised at six thousand two hundred and thirty-eight dollars and six cents, and that at the sale this property brought four thousand one hundred and seventy-seven dollars and fifty-five cents.

In 1896, the forced heir, Mrs. Tabitha Lyons, filed a petition for the removal of the executrix, which was granted, the executrix was destituted from her office, and ordered to deliver the property to the petitioner.

The executrix filed, several accounts during her administration and one after she had been ousted.

In the judgment dismissing her from office, the opposition to the provisional tableau and account of administration filed August 30, 1886, is sustained to some extent.

In 1890, Mrs. Tabitha Lyons, alleging that the executrix, Mrs. Adela Lyons, had failed to deliver the property as directed in the judgment destituting her; and had failed to file an account, moved the court to compel her to file a full and complete account of her administration. In compliance with the court’s order she filed a final account and tableau of administration.

This account, Mary Newland, owner of all the rights and claims of Adela Lyons, desired to have homologated.

The legal heir, Mrs. Tabitha Lyons, opposed its homologation on the ground that there was no community or no gains during the second marriage of the lateThos. J. Lyons; that the executor should have been charged on the account with an item of one thousand eight hundred and twenty-five dollars, for which she was responsible, and that the petitioner held from the forced heir under a simulated title and had no standing in court.

A judgment was rendered 'in favor of Mary Newland, vendee of Adela Lyons. Prom the judgment the heirs of Tabitha Lyons, opponents, have appealed.

The appellants in the brief restated the account and claimed that she, the destituted executrix, had in her possession and retained as owner, as appears from the different provisional account, filed prior to the final account, a large amount that should be added to the amount for which judgment has been rendered, from which opponents appeal. This sum, the appellants assert, is fixed by the judicial admission of the executrix in her account and they claim that her liability for it is beyond question.

The position is correct if the accounts are taken and passed upon each, without reference to other accounts.

It was, manifestly, not the intention of the accountant to thus present them to the court. In the final account we find the first item made up of money collected from various claims, which had been previously carried in provisional accounts. This first item was one of the items which entered into the total active of the succession. The amounts admitted by the executrix were added to amounts afterward admitted as due by her in the final account.

If we were to add the..................................-.........................................................$807 08

152 92

346 00

$1306 00

to the amount of the judgment as due by the executrix, the indebtedness would find no support by reference to the total of claims due the succession, as set forth in the inventory, nor by reference to the testimony of any of the witnesses.

In fine as we take the different accounts the sum of two thousand three hundred and twenty-four dollars and seventy-one cents, the first item before mentioned, includes the amount just stated.

In the second place, appellants argue, that the estate of the late Thomas J. Lyons should be distributed in the proportion of one-third to the surviving widow or her vendee, and the'remaining two-thirds to Tabitha Lyons, the forced heir, because the deceased brought all the property, and there was really no community.

The principle is well settled, that conclusive evidence of the receipt by the husband of amounts during the existence of the community in payment of his individual property will not of itself be sufficient to hold the community indebted for the amount where there is no evidence that it was used in buying property which fell to the community.

We desire to adhere to a principle well settled in our jurisprudence. The property in the community at its dissolution presumably is owned by the community. It is equally as well settled that the husband or his heirs who seeks an amount, furnished by him and which he claims to have been used in the purchase of community property must prove that the price was paid out of his separate funds. The evidence to sustain the claim for the price handed by the husband, out of his separate fund, to his vendor, must be as ample and satisfactory as if a third person were concerned.

With reference to a fund received during the community, claimed as having been used by the community, this court, in Succession of Forman, 38 An. 702, said: “But neither of

these witnesses disclosed, if they knew, what disposition was made of any part of this property.”

The case here is similar; the witnesses did not disclose what disposition was made of the funds.

Again, like “ any other debt, its origin, character and amount must be shown.” Denègre vs. Denègre, 30 An. 277.

The question was passed upon in a number of eases,, notably, Belair vs. Dominguez, 26 An. 605; Subcession of Glover, 2 An. 4; Succession of Viaud, 11 An. 297; Courtney vs. Andrews, 6 R. 508; Stewart vs. Pickard, 10 R. 18; Succession of Daigle, 15 An. 587.

Here the positions taken at different times'are conflicting.' The evidence shows that (ten years after a provisional account had been approved by a judgment rendered in due form)- the Surviving heir, Mrs. Tabitha Lyons, seeks to recover an amount she claims was used in buying property for the community.

While in her opposition to the provisional account filed years ago, which was rejected, she claimed a comparatively large amount as having been improperly retained by the surviving widow.

In other words, the heir claimed in opposition to her step-mother’s account as executrix an amount of paraphernal funds as having been secretly appropriated by the widow — her step-mother — immediately after her husband’s death — that is, the death of Thos. J. Lyons, father of opponents; subsequently, in another opposition, she claimed the same amount of paraphernal funds as having been used by her father in buying property for the community.

As relates to the ability of Adela Lyons, widow, to buy property since the community was dissolved, or during the existence of the community, there is no evidence before the court, save that one of the witnesses testified that she prior to her marriage always said that she was destitute.

It remains as a fact that there is not sufficient evidence to show that the fund of the separate estate was used in buying the property during the existence of the community.

The legal representatives of the children of the forced heir, the-mother being dead, as before stated, claim, in addition, that Mrs. Lyons, widow, owes, to the succession the sum of one thousand eight hundred and twenty-five dollars, which had been paid in cash to the deceased, while he was sick, confined to his bed, a few days prior to his death.

There is no evidence that the widow or the community ever-received this amount. We would not be justified in inferring that one or the other must have received it, because it was handed by the debtor of Thomas J. Lyons to him, Lyons, a few days before he died. He may have used it as a separate fund. ■ At any rate we will not' assume that it was wrongfully retained by widow and concealed from the heir, as alleged by her.

It is therefore ordered and adjudged that the judgment appealed from is affirmed.