text:
    No. 1,331.
    Henry A. Willis vs. George E. Wasey.
    Mandamus is a proper remedy to compel the erasure of the inscription of an invalid, or defunct or perempted mortgage or privilege, hub the remedy cannot he invoiced as a means to avoid the effect of another contract intended to affect the property of the party com. plainant.
    An act purporting to be a mortgage, hut not inscribed in the proper hook, has no legal effect as to third parties, and hence a third party has no cause of action to require the erasure of such an inscription, by mandamus.
    APPEAL from tlie Fourteenth District Court; Parish of Calcasieu. Reed, J.

      White and Saunders and I). B. Gorham for Plaintiff and Appellant:
    An exception that petition shows no ground of action, admits tlie truth of all tlie allegations of the petition. 9 Ami. 9 ; 12 Ann. 190. Plaintiff’s allegation amply justify the issuance of the writ.
    Privileges are stricii juris, cannot arise from consent, hut spring from the law. 16 Ann. 107; 23 Aim. 3 ; 24 Ann. 568.
    Mortgages are slricti juris, and take effect against third persons, only from the date of tlieir inscription, in the maimer directed by law. 30 Ann. 835, and authorities cited.
    O. C. Act 2266 — “All sales contracts and judgments affecting immovables, which shall not he so recorded, shall ho utterly null and void, except between the parties thereto.” See C. O., 2242, 2246, 2253; 25 Ann. 290; 21 Ann. 591; 28 Aim. 897; 37 Ann. 568.
    The registry of a mortgage in the Book of Conveyances is without effect as to third parties. 5 Aim. 154:16 Ann. 435; 24 Ann. 78, and authorities cited.
    Wasey having parted with his title to the lands in favor of Winchester, and the latter having sold to plaintiff in good faith, whose title was duly recorded November 18, 1886, neither Wasey nor Winchester could outer iuto any contract, the recordation of which two years after plaintiff’s said recorded title, could operate as a lieu, mortgage or privilege against plaintiff’s said lands, who is an innocent third party.
    The duties of tlie clerk and recorder ar'e purely ministerial.
    “ Mandamus is the proper remedy to compel a ministerial officer to perform a purely ministerial act.” O. P. 834; Prendí vs. Prieur, Recorder, 6 R. 299; Leverich vs. Prieur, Recorder, 8 R. 97; Btate vs. Bordelon et al., 6 Ann. 68; Savage vs. Holmes, Recorder. 15 Aim. 334.
    “Tliis writ may he said to he Hie ordinary legal relief for a party wishing to obtain tho erasure of mortgage upon his property.” Savage vs. Holmes, 35 Ann. 334; Lanaux vs. Recorder, 36 Ann. 975.
    Plaintiff has caused all the parties in interest to he brought before tlie court, which is tho condition precedent to the use of tho writ, for the purpose of compelling the erasure of mortgage. 15 Ann. 335 ; 36 Ann. 970; Doblioux vs. Recorder, 25 Ann. 61.
    In a case such as tlie one at bar, plaintiff is not required to proceed via ordinairia. 15 Ann. 334; 25 Ann. 61; 36 Ami. 975.

      G. A. Fournel for Defendants and Appellees :
    A mandamus will not lie to cause the erasure of the recordation of an act purporting to be a claim or contract affecting real property, when there is no pending litigation or proceed-mg before tlie courts in which tho validity of tho claim or rank of the mortgage, if any, is contested.
    A mandamus will not lie merely to determine the rank or priority of mortgagos and liens.
    When the plaintiff lias other and proper remedy in the ordinary course of legal proceedings-, a mandamus Anil not issue. High on Ex. Rem., Sec. 15, p. 20; C. 3?. 830, 831.
    A mandamus is a summary proceeding, and the right to summary proceeding cannot be extended beyond the cases specially autlioriKod by laAV. 17 Ann. 156 ; C. P. 98, 170, 754, 756; 3 Ann. 434; 12 Ann. 182, 201 and 799.
    An allegation and affida\dt stating merely that “a mandamus is necessary heroin,” is insufficient. C. P. 840, 830 and 831.
   The opinion of the Court was delivered by

Poché, J.

This is a proceeding by mandamus to compel the erasure of an inscription of a certain contract between defendant and another party, alleged to be injurious to plaintiff, as the owner of a large tract of land intended by the contracting parties to be affected thereby.

The defense was by -way of an exception in which it was contended substantially that plaintiff’s petition disclosed no cause of action, and contained no averments to justify a recourse to- the summary proceeding by mandamus. ,

That defense prevailed and plaintiff ajipeals.

It is now settled beyond controversy that a mandamus will lie in favor of a party who seeks to erase tlie inscription of an invalid or defunct or perempted mortgage recorded against his property. And if the pleadings in this case clearly presented such an issue, plaintiff’s position would have been unassailable under our jurisprudence as finally established. Lanaux vs. Recorder of Mortgages, 36 Ann. 975.

But tlie record which conies up to us, and the showing made by plaintiff in bis brief and in the oral argument, leave bis proceeding stripped of two essential ingredients necessary to Lis success.

In the first place bis petition does not characterize the contract which he assails, with legal precision or accuracy; and after considering the different and various descriptions of the obnoxious contract contained therein, the legal mind is left in a state of bewildering uncertainty as to tlie nature of tlie transaction thus submitted to judicial investigation.

Xo satisfactory or definite information is conveyed as to the character or legal effect of the agreement, the inscription of w-hich is alleged to be injurious to plaintiff as the owner of the lands to be indefinitely affected thereby.

In one. part of the petition tlie contract is defined as a “pretended mortgage and lien or claim oil the land hereinabove described,” and in another place, almost in tlie same breath, it is referred to “as resulting from a contract, also recorded Avit.li and in said ■notice, pretended to have been made between said Wasey and tlie above named Charles Winchester.” (Italics are onrs.)

It is then, in another place, held up as “said claim” simply; while further on it is assailed on the ground that “ the existence of said pro-tended claim or mortgage of said Wasey operates as a cloud on petitioner’s title.”

If, after a comparison of these various averments the judge would be about to reach- tho conclusion that the leading idea was that of a mortgage, ho would have to retrace his steps when he reaches the prayer of the petition in which the recorder or cleric is ordered to cancel the inscription of the “ hereinabove described qiretended claim recorded 'in tho notarial records, •* ~ * as an encumbrance on the lands hereinabove described.”

Hence we are left in doubt as to the precise nature, character or intended legal effect of the contract which we are called on to consider. In their oral argument, appellant’s counsel spoke of the contract as a very indefinite and vague document, difficult or almost impossible to describe or define with any precision. And doubtless their defective and insufficient description of the instrument can be fairly traced and attributed to that circumstance. But, in that case, they should have annexed a copy of tho contract to .their petition, and thus have presented it to he dissected by the court.

Conceding, however, for the sake of argument, that the contract is sufficiently described as a conventional mortgage intended by the parties thereto as an encumbrance on plaintiff’s lands, the next difficulty is to ascertain under the pleadings, the manner of its inscription, so as to discuss its legal effect.

The only information whipli the petition aff ords on this subject is that tho obnoxious contract was recorded in “Book P of the notarial records of said Parish of Calcasieu.” But nothing in the record informs us as to what are the “notarial records” of that parish. Tho law provides for a book of conveyances for the inscription of transfers of immovable property, and for a book of mortgages for the inscription of mortgages, privileges, and similar encumbrances.

If the act herein assailed is shown to have been intended by the parties as a mortgage or vendor’s privilege to affect plaintiff’s lands, it cannot, by that fact alone, be injurious to plaintiff, unless it'was inscribed in the book of mortgages, and if the inscription is in any other book, plaintiff has no concern witli it, and no right to require its erasure. To justify the summary relief which ho sought it was incumbent on him to make a proper showing in his pleadings of all the requirements of. the law on the subject. And i’t is clear that a vague averment of an inscription in the “notarial records” of the parish is not sufficient.

But all doubts on the subject are removed by the statement in plaintiff’s brief that the inscription complained of is to be found only in the book of “ conveyances.”

Hence he is in this dilemma: If the act assailed is a mortgage, plaintiff has no cause of action, because it is not inscribed as a mortgage; hence it does not encumber bis lands as a mortgage or privilege; if it is not a mortgage, but some other “claim” or undefined lien, or perhaps an attempted conveyance which “operates as a cloud” on his title to the lands which he claims to own, and which are to be affected thereby, then mandamus is not the proper remedy, and iu -cither event ho must go out of court.

These considerations lead to the same conclusion reached by the district judge.

Judgment affirmed.


source: Caselaw Access Project

author: Fenner, J.

license: Public Domain

text:
    No. 1,335.
    Clinton B. Andrus vs. Board of Police of Opelousas, et als.
    1. A taxpayer who petitions for tlio passage of an ordinance levying a special tax, who actively supports and votes for the ordinance when submitted to the votes of the taxpayors, who lias so acted in advancement of his own •interest, and who has secured advantage from the passage of the ordinance, upon which other parties have acted, is estopped from setting up the illegality and unconstitutionality of the tax as a defense against paying it.

      2. The provisions of the Constitution are intended to protect the citizens against forced contributions levied in invitum beyond the power confided to the taxing authorities; while in this case, the tax is levied with his tree consent and approval and at his express request.
    APPEAL from the First Justice’s Court for the Parish of St. Landry. Brooks, J.

      Kenneth Baillio for Plaintiff and Appellee :
    !Motk)X to Dismiss.
    J. -V certificate which does not certify that the transcript includes all the proceedings, evidence and testimony is defective. 10 670; 3 L. 295, 446, 454; 2 íT. S. 67; 7 L. 537 ; 14 L. 265; 17 L. 27; 3 Ann. 180; 8 Ami. 592; 11 Ann. 644; 4 Ann, 487; 10 Ann. 180; 11 Ann. (¡04; 12 Ann. 582.
    2. Where the appeal from the judgment of a magistrate is not taken in the presence of the parties, and no prayer is made for citation of appellee, and he is not cited, the appeal will be dismissed. 0.1\ 15 L. 214; 16 L. 50; 5 Ann. 115; 10 Ann. 650.

      3. A party is not a competent surety on an appeal bond given by Mm in a representative capacity. 2 H. S. 572: 2 3b 449.
    On the Merits.
    4. Where a special tax is levied under Article 209, Constitution of 1879, the ordinance must not precede, but must follow the vote. Art. 209.
    5. Municipal corporations can only tax in such a manner as the Legislature has seen i>roper • to permit. 33 Ann. 1179.
    0.The police juries of the several parishes are bound to provide suitable courthouses l'or the courts. K. S. 2746.
    7. Municipal corporations can only tax for municipal purposes. Article 202, Constitution of 1879.
    8. Special taxes for improvements under Article 242, Constitution of 1879, cannot exceed 5 mills por annum. Article 242, Constitution of 1879.
    9. Ordinary taxation for parochial imrposes cannot exceed 10 mills per annum. Art. 209.
    JO. Ho estoppel can exist when there is error.

      W. O. Perrautt for Defendants and Appellants :
    1. A plea of estoppel, affecting* the foundation of the suit, and decisive of the action, should be tried in limine. Reference of such pleas is illegal and reprehensible. 38 Ann. 233, 525.
    2. A supplemental or amended plea of estoppel, amplifying and particularising the acts of estoppel already generally pleaded, and which does not allege new matters or change the issues of the original plea, or cause a continuance of the cause, should be allowed at any time before trial commenced. Its exclusion is error.
    3. A person receiving a consideration or benefit through an ordinance, procured by his own consent, cannot repudiate the ordinance, and keep the benefit or consideration. He is estopped. Ifigelow on Estoppel, p. 509; Hole 4, pp. 509 and 510.
    4. A person who petitions for the levy of a special tax, and who actively encourages its levy, and who .subsequently votes l'or tlie ordinance imposing it, when submitted to a vote of the taxpayers, is estopped from making complaint of its illegality or unconstitutionality, even though it be illegal and unconstitutional. Cooley on Taxation, p. 839, and authorities cited in Hole Ho. 5.
    5. Error not alleged in the pleadings cannot be made a matter of defense.
    O. Ignorance of law cannot be pleaded.
    7. The Board of Police of Opelousas can pass an ordinance (when the requisites of the law have been complied with) to aid the construction of public buildings in the town. Oonstist-itution of 1879. Art. 209; Act 126 of 1882. sec. 2; Cooley on Taxation, pp. 610,153, 154,155, 156: Cooley on Constitutional (jiniilalions. pp. 141, 142, and notes; also pp. 284, 285 and 343.
    8. The Constitution. Article 203, and Act 126 of 1882, simply require that, “the rate of tabulation and the purpose l'or which it is intended ’’ shall be submitted to the vote of the taxpayers. It is immaterial whether the ordinance imposing the special tax be passed before or after the vote of the taxpayers, provided they have had an opportunity of voting on the question.
    9. The public improvements contemplated by Article 242 of the. Constitution does not include public buildings. The latter are provided for in Article 209 of the Constitution.
    10. A tax of 2A per cent to aid the construction of public buildings is not unconstitutional because of its amount. Article 209 of the Constitution and Act 126 of 1882 place no restriction on or limitation to the amount of a special tax which the people, can impose upon themselves.
   Tlie opiniop of tlie Court was delivered by

Fenner, J.

There is no merit in the motion to dismiss.

The judgment was signed on May 18th, and, on the same day, in presence of counsel for plaintiff, in open court, defendant made his motion and obtained his order of appeal.

No citation of appeal was necessary. The Articles 1128 to 1138, C. P., manifestly refer to appeals from justices’ courts to district courts, and not to appeals directly to this court.

Appeals were taken simultaneously in this case aiid in another numbered 1,336 of our docket, identical in character. By a clerical error the certificates to the two transcripts were exchanged. Under certiorari, this manifest error has been corrected and the matter is too trivial to require further notice.

A member of the Board of Police of an incorporated town is a competent surety for the board in its corporate capacity on a bond of appeal.

Tlie authorities quoted from 2 N. S. 572, and 2 Rob. 449, have not the slightest application.

On the Merits.

Plaintiff enjoins the sale of his property for a special tax levied under an ordinance of the town of Opelousas, on the ground that the ordinance levying said tax is illegal and unconstitutional.

The defendant opposes a plea of estoppel and a general denial. The plea was referred to the merits, and, after trial, the justice of tlie peace overruled the plea and gave judgment in favor of plaintiff, perpetuating the injunction and declaring the tax illegal and unconstitutional.

The record discloses the following* facts :

In March, 1886, the court house in Opelousas was destroyed by fire. Thereafter a formidable movement was inaugurated to secure the removal of the parish seat to the rival town of Washington. As such removal required future legislative action and a vote by the people, it became the obvious interest of those favoring the removal to induce the police jury to postpone the rebuilding of the court house until such action and vote could be had, while, on the other hand, the people of Opelousas were vitally interested to secure the immediate rebuilding.

To induce such immediate action, tlie Opelousas people offered to aid the xiolice jury in the rebuilding by a subscription of $8009, to be raised by the imposition of a special tax of twenty-five mills on all the taxable property of the town.

To make good this offer, a petition was prepared, addressed to the Board of Police of Opelousas, praying for the levy of sue tax, which petition was signed by more than the proportion of taxpa,, ers in number and value required by the provisions of Acts 41 and 126 of 1882.

Acting upon such petition, the Board of Police passed an ordinance levying the tax as prayed for, and caused the same to be submitted to the vote of the taxpayers, in pursuance of the legal requirements on the subject. At the election 125 voles were cast, 123 in favor, and only two againt, the tax.

After official proclamation of the approval of the tax by the voting-taxpayers, the police jnry of the parish, acting in consideration and upon the faith of said tax, entered into the contract for the immediate rebuilding of the court house, and the admirable structure, in which this court is now sitting, is the result.

The present plaintiff signed the petition for the tax and voted for the ordinance levying the tax. He had previously been one of the numerous citizens who, in order to influence the police jury, had signed and presented a document pledging themselves to support and vote for the ordinance levying the tax.

Plaintiff is a property-holder and large merchant in the town of Opelousas. The evidence is clear that the removal of the parish seat would have been gravely injurious to the value of the property in the town, and to its trade and business; that the peril of such removal was serious; that this peril was averted by the building of this expensive courthouse; and that the voting of the tax was the direct and necessary inducement on which the police jury acted in its prompt erection.

And now, after thus actively co-operating in securing the levy of this tax, and after he lias entered into secure enjoyment of all the benefits contemplated and conferred by the same, he seeks to escape payment of the tax by urging objections to the «legality and constitutionality of the very ordinance which he petitioned the hoard to pass, which he pledged himself actively to support and which he actually voted for.

It is perfectly clear that he is estopped from urging such objections. All authorities accord in maintaining estoppel in such a case.

Cooley says : It sometimes happens that a party who complains of illegal taxation has been so connected with the proceedings in voting, levying or collecting the same, that it would be unjust and inequitable to others or to the public that any remedy should be given him in respect to the illegality. Such a case would exist if one in respect to some interest of his own should petition for or otherwise actively encourage the levy of the tax of which he subsequently makes complaint.” Cooley on Taxation, p. 819.

Bigelow says: This doctrine ( of estoppel) lias been held to apply to tlie case of persons who had procured the passage of an act of the Legislature under which they had acted and obtained advantage; and tlie parties were thereafter held estopped to show' that the act was unconstitutional, though it had been so pronounced by the courts to those who had not participated in its passage.” Bigelow, Estoppel, p. 509.

Burroughs says: “It is a principle well recognized that all who aid in procuring an act of the Legislature, or who ratify it after its passage, are bound by it. * * The principle requires the assent of those who are to bear the burden; if a number of citizens procure an enabling act to allow’ a city to subscribe to the stock of a railroad, it binds those wdio procure it and those who ratify, but those who do not assent to it are not bound.” And again: ‘‘ If a majority vote for a subscription or ratify an enabling- act, it undoubtedly binds the majority; but how about the minority ?” Burroughs on Taxation, Sec. 38.

The learned authors referred to support the doctrine by reference to numerous judicial decisions.

The plaintiff in this case is not affected by the unconstitutionality of this tax, if it be unconstitutional. The provisions of the Constitution are intended to protect the citizens from forced contributions levied in ■invitum beyond the pow-ers conferred on the taxing authorities.

As to plaintiff, this tax is not a forced contribution independent of his ow’n will, but is one levied with Ms free consent and approval and at his express request. Ilence Ms attempt to avoid the effect of the estoppel by pleading error based on his ignorance that the ordinance was unconstitutional, is of no avail. It is of no consequence to him, if some taxpayers should escape payment of this tax; that will not increase the burden which he voluntarily assumed, nor will it, in this case, diminish, in the slightest degree, the benefit he receives.

We must not be understood as making the slightest intimation of an opinion that this tax is illegal or unconstitutional. The question of estoppel precedes the issue on the merits of the case, and, in logical order, required anterior decision. Having maintained the estoppel, that ends this case.

It is, therefore, ordered and decreed that the judgment appealed from be annulled, avoided and reversed, and it is now decreed that there be judgment in favor of defendant dissolving the injunction and rejecting plaintiff’s demand, at his cost in both courts,

Judgment reversed.


text:
    No. 1,336.
    J. Samuel Perkins vs. Board of Police of Opelousas, et als.
    Same principles as in preceding- case.
    APPEAL from the First Justice’s Court, Parish of St. Landry. JBroolis, J.

      .Kenneth Baillio for Plaintiff and Appellee.

      W. G. Ferrault for Defendants and Appellants.
   The opinion of the Court was delivered by

Fenner, J.

The issues presented in this ease are identical with those involved in case of C. B. Andrus vs. same defendant, No. 1335, just decided. For the reasons given in that case a like judgment must he rendered.

It is, therefore, ordered and decreed that the judgment appealed from be annulled, avoided and reversed, and it is now decreed that there be judgment in favor of defendant, dissolving the injunction and rejecting plaintiff’s demand at liis costs in both courts.


text:
    No. 1,337.
    James Williams et al. vs. A. D. Harmanson, Agent, et al.
    1. Tlio prayer of the petition being merely for restoration of possession without any claim for recognition as owner, that fixes the character of the action to be a possessory one.
    2. In such an action the fact and nature of the possession claimed are alone at issue.
    3. It was not necessary for plaintiffs to allege the particular title under which they claimed to possess as owners; but such allegation, if made, does not convert the action into a petitoiy one.
    4. If plaintiff alleges and produces a particular title as the basis of possession, and if such title shows, on its face, that the possession under it is precarious and not as owner, this would be fatal to the action; but the mere allegation of a title of ownership not produced or relied on, or even appearing in tlio record, will not put i>laintiff on proof of it as the sole basis of his right of possession, the nature of which maybe otherwise established.
    5. When long jiossession is proved, accompanied by claims and acts of ownership, and in absence of any proof going to show a particular precarious title, law and the interests of society alike require its protection from extra judicial eviction.
    6. Damages for wrongful eviction allowed and fixed.
    APPEAL from the Twelfth District Court, Parish of Avoyelles. Goeo, J.

      Oullom <& Gappel for Plaintiffs and Aiipellants:
    In possessory action, the defendant is not allowod to attack the title of plaintiff, nor establish it in himself — Kemplo vs. Hulick, 16 D. 44; Dra/ier vs. Hardee, 21 Ann. 541 — for Article 55, C. P., forbids the cumulation of petitory and possessory actions, except by consent of parties — St. Armand vs. Dong, 25 Ann. 166; — but plaintiff must allege title to show in what capacity he claims possession. 16 D. 45.
    He must show the right to possess as owner or usufructuary. 2 Ann. 749; 2 L. 227; O. P. 46 to 53, inclusive.

      It is tlie prayer of tlie petition which determines the character of the action. 16 L. 44; Huglie vs. Brinckman, 37 Ann. 240 ; 34 Ann. 1179.
    In an exclusively possessory action, neither party is permitted to introduce evidence of title. Richardson vs. Scott et al., 6 L. 54; 5 Ann. 690.
    Where a landlord, instead of resorting to the means provided by law, for obtaining payment of Iris rent, and possession of his premises, takes uj>on himself, without authority, to remove tlie property and turn out tlie family of his tenant lie will be liable in damages; and will be no excuse that such removal was effected without violenta' or injury. 2 Robertson, 140; Thayer vs. Littlejohn et als.
    In a suit for damages on account of trespass, the trouble and expense, the plaintiff lias been illegally put to, are to be considered in estimating the damages.
    Attorney’s fees are part of such expense, and may be proved.
    The attempt of a lessee or his vendee, to forcibly remove property subject to lessor’s privilege, is a trespass, sounding in damages. Co-trespass'ers are liable in solido. 29 Ann. 213.

      Thorpe & Peterman for Defendants and Appellees:
    1. In the possessory action, as in others, the burden of proof is upon the plaintiff.

      2. The issues in the possessory action are, first, the fact- of possession, and, second, the character of possession. 34 Ann. 1053.
    3. When the plaintiff himself jiuts at issue his right of possession, exhibiting it in his title, he does so at his risk and peril. J bid.
    4. One knowing and believing property to belong to another does not possess it as owner and can not maintain the possessory action. 13 L. 237; 34 Ann. 3 053.
    5. The possession must he predicated upon an open adverse claim of ownership : a mere surreptitious claim to possess as owner will not suffice. 6 R. 103.
    6. The party must possess as owner in presentí. 13 Ann. 572.
    7. The refusal of the possessor to assess the land as his own and his application to third parties to buy it from defendant and sell it to him. are acts inconsistent with tlie claim of possession as owner, and evidence possession in the name of another.
   Tlie opinion of tlie Court was delivered by

Fenner, J.

Tlie motion to dismiss this appeal lias no merit. Tlie record clearly establishes that the appellants made due and formal application for an order of appeal which was duly granted. The clerk having failed to enter the order oh his minutes, application was made to the judge, on notice to the appellees, to have tlie minptes corrected and the entiy of the order incorporated .therein, which application was granted by the judge.

As tlie order had been granted on the last day of term, application was properly made to the judge at chambers, and lie had the right there, on proper proof of error, to cause his minutes to he corrected so as to conform to the facts. The order as thus entered Axes the return day and complies with all requirements.

The suggestion that the amount in dispute is not within our jurisdiction, is equally unfounded. The claim is for restoration to possession of a farm and for damages for unlawful dispossession in tlie sum of over $5000. Tlie latter chain may be excessive, but it is serious, an’d not, in any sense, so fictitious as to authorize a dismissal of the appeal in a case in which defendants would have clearly had the right to appeal to this court., had judgment gone against them.

On this Merits.

The petition alleges that plaintiffs purchased the tract of land in controversy in 1883, that, since said purchase, they have enjoyed continuous and uninterrupted possession, as owners, have paid taxes thereon and a large gum on account of the purchase price; that A. I). Harmanson, acting as agent of his wife, on the 6th day of February, 1889, with threats and violence, had evicted plaintiffs, their families and tenants from the property, and had unlawfully taken possession thereof and excluded plaintiffs therefrom; and thereby inflicted damage on them. They pray for judgment restoring and maintaining them in possession of the property and for the damages claimed.

Defendants answered by a general denial, and by a special denial that “plaintiffs ever purchased or possessed as owners.”

The evidence establishes, without contradiction, that plaintiffs had enjoyed uninterrupted possession of the property during more than five years; that they had cleared land and built houses thereon; that they had paid taxes, several times, upon it; they exhibited a receipt signed by A. D. Harmanson, agent, for $697 18, “in payment on place.”

The defendants fail, in any manner, to establish that plaintiff’s possession was under a precarious title of any kind, or to qualify or characterize their possession as being under any title other than that of ownership. Their silence in this respect is certainly significant.

They rely simply on the fact that the property continued to bo assessed in iho name of Mrs. Harmanson, and that plaintiffs so permitted and directed its assessment; but this is not so inconsistent with their claim of ownership as to overcome the other evidence, especially when taken in connection with the payment of taxes by plaintiffs. Some evidence was also introduced to show that plaintiffs had applied to two parties to get them to buy from Harmanson and resell to them. But that application was accompanied by the statement that plaintiffs were to pay Harmanson one-half the crop annually on the price, and they wanted the witness to take Ilarmanson’s place as vendor and let them pay only one-third of the crop annually. This is entirely consistent with their claim to he in possession as purchasers and owners.

This is a possessory action. It cannot be distinguished from Kemper vs. Hulick, 16 La. 44, and Huyghe vs. Brinkman, 37 Ann. 240. As we said in tlie latter case, “tlie prayer is alone for the restoration of possession, and that fixes the nature and character of the action.”

In another case we said: “ The plaintiffs aver a title in their petition, which, they claim, has conferred upon them a life estate. This they did for the obvious purpose of showing that they claimed possession in their own right as owners, and not through another. They do not ask in the prayer of their petition to be recegnized as owners, but merely to be quieted in their ppssession. It was not necessary for them to allege by what title they were in possession ; but they had a right to'do so without thereby impressing upon their action the character of a petitory one.” Salabah vs. Marsh, 34 Ann. 1054.

The contention of defendant that, by the allegation of a particular title, the plaintiffs converted their action into a petitory one and were thereby bound to establish such title as good and valid, is not sound. If, indeed, the title thus exhibited showed, on its face, that the possession based thereon was not as owner as required by C. P. Art. 47, it might be fatal to the possessory action, as was held in the case last quoted But the mere allegation of a title of ownersliip not produced- or relied on by either party and not appearing in the record, will be treated as a mere substantiation of the necessary allegation that plaintiff possessed under claim of ownership. We are not concerned with the sufficiency or even with the existence of such title. The fact and nature of the possession are alone at issue. In a petitory action defendants will have full opportunity to cancel and brush aside this title or any other title set up by plaintiffs, if found insufficient. But in face of the undoubted long possession of plaintiffs, of their claim as owners and acts as such, and in absence of the slightest proof attaching any different character to the possession, the law and the interests of society equally require that such possession should be protected from extra-judicial invasion and eviction, and that the parties should be remitted to legal process for the vindication of their rights.

Wo are bound to hold that plaintiffs are entitled to judgment in their possessory action.

It follows that they are also entitled to damages for their unlawful eviction, which is fully proved.

Upon due consideration of all the facts and circumstances of the case, we shall, without additional comment, fix these at the sum of $500, including attorneys’ fees in reinstating the possession.

It is, therefore, ordered and decreed, that the judgment appealed from be annulled, avoided and reversed; and it is now adjudged and decreed tliat there be judgmert in favor of plaintiffs, decreeing them to be restored to possession of tlie property described in the petition, and tliat tlie defendants be condemned in solido to pay to plaintiffs the sum of $500 as damages with legal interest from judicial demand; defendants to pay costs in both courts.

Judgment reversed.


author: Watkins, J. Fenner, J.

text:
    No. 1,338.
    A. A. Pecot et al. vs. Police Jury, Parish of St. Mary.
    1. The provisions of the Constitution, like those of a legislative enactment, operate prospectively and not retrospectively.
    2. Tii© provisions of Article 46 of the Constitution, prohibiting the General Assembly from enacting any local or special law, upon certain, special subjects, cannot have given to it the retrospective effect of repealing, by implication, a prior special statute, though it come within the terms of this constitutional inhibition, same being prospective only.
    3. Act 103 of 1873 held to be constitutional, but not to confer on the police jury of the parish of St. Mary the right to expropriate private property, at the expense of said parish, but only authorizing it to condemn riparions estates to pviblie use for the purpose of opening a public highway on the bank of a navigable stream, within its limits.
    APPEAL from the Nineteenth District Court, Parish of St. Mary. Allen, J.
    D. Oaffery and Sigur & Wilson for Plaintiffs and Appellants.

      Walter J. S-uthon and Foster c& Mente for Defendant and Appellee:
    1. Where a statute provides that the police jury of a parish shall lay out and opon a public road, and proscribes no time within which the said road shall be laid out, and leaves it entirely to the police jury to provide ways and means for defraying the expense of the work, it simply confers a discretionary power, and does not impose a ministerial duty.
    2. Whenever a discretionary power is confided to a political or a public corporation, the courts of the State cannot compel the corporation to use this power. The courts can only require the corporation to act, but cannot control tliem in their discretion as to how they shall act. Dillon, Mun. Corp., vol. 2, p. 764; High on Ext. Leg. Remedies, p. 256, sec. 325, 2 La. Rep. 395; 2 Ann, 542; 29 Ann. 147; 39 Ann. 760.
    3. Where an act of the General Assembly provides that a public road shall he laid out by a police jury from one end of the parish to the other, a citizen of one locality on the line of the projected road cannot demand the partial execution of such a law, and only to tlie extent of benefiting himself or his immediate locality.
    4. An act of the Legislature of 1873, which requires that the police jury of a particular parish shall lay out and ojien a public road, remaining inoperative and unexecuted until 1889, is inconsistent with and repealed by Articles 46 and 258 of the Constitution of 1879; and when said act is sought to be enforced after tlie adoption of that Constitution, it is clearly in conflict with the provisions of that instrument. 35 Ann. 537.
    5. The Legislature of this State has no power against tlie will of a political corporation such as a police jury, to compel it to contract debts for local purposes. The State, in such case, may remove restrictions and permit action; but it cannot compel it. Cooley on Const. Limitations, pp. 285, 286, 289.
    6. Where political corporations, such as a police jury,'arc required under the law to defray certain expenses of the State, and all the expenses of local government, and the Constitution limits them in the rate of taxation, the Legislature has noi the power to superadd to their additional duties which would require for -their fulfillment the exercise of an additional taxing power on the part of such corporations.
    7. The Legislature is without power to impose on the police juries duties which they cannot perform.
    8. Ho private individual has the capacity or the authority to demand the enforcement of a purely public statute. When the question is one of public rights and the people are the real parties, no one citizen, nor any number of citizens, of a particular locality can assume to represent the people. High, ISxtr. Legal Hem., sec.
    9. Where a plaintiff seeks to compel the police jury to make a large disbursement of public funds without alleging that the police jury has on hand funds to meet the outlay or without alleging that the police jury included said outlay in its annual budget of expenses, it shows no cause of action.
   Tlie opinion of the Court was delivered by

Watkins, J.

The plaintiffs alleging themselves to be residents and landed proprietors, living in the first ward of the Parish of St. Mary, bring suit against the police jury of the parish, to compel it to make and open a piiblic road on the east side of the Teche, from Cliarenton to the upper limits of the parish, 4Q feet in width, and according to the provisions of Act No. 103 of the Acts of the Legislature of 1873, and Sections 3368-9-70-71 and 72 R. S., so far as applicable.

It is alleged that the road asked for is of great public necessit}', is especially valuable to petitioners, who had, with a number of other residents of their ward, petitioned the police jury, to open the road. They say that .the Teche is a navigable stream, running through alluvial lands, and that the proprietors along its banks owe a servitude of way to the public, and that the road is of great necessity as a means of communicating with themselves, with the outside world, and is especially useful to connect with roads in the Parish of Ib.eria. They allege as jurisdictional facts, that the road is worth to them upwards of $2500, and that the land to be occupied by it, is worth the stun of $2100.

The police jury filed the following exceptions:

1. That plaintiffs have no authority to prosecute this suit, and no capacity to stand in judgment.

2. Plaintiffs have mistaken their remedy, if any they have.

3. That no jury can be had to try a case of this kind.

4. That Act 103 of 1873 is null and void, and is inconsistent with and repealed by articles 46 and 258 of the Constitution of 1879.

5. That Act 103 of 1873 is unconstitutional, null and void, for the reason tliat the General Assembly of the State of Louisiana, had no power or authority to enact such a law, and exceeded its powers and duties when it enacted the same. That tlie Legislature cannot order the police jury of the parish of St. Mary to lay out and open a public road on the east side of the Bayou Teche and to expropriate private property unless for public good and for public necessity; that the Legislature had no power or authority to order the police jury to lay out and open a public road without furnishing the moans for the same; that the Legislature had no power or authority to order the police jury to incura debt and thus burden the people with additional taxation.

6. Admitting the constitutionality of the Act 103 of 1873, then plaintiffs are not authorized to invoke, or to ask for the partial execution or operation of said act.

7. Plaintiffs’ petition discloses no cause of action.

From a judgment of the district court sustaining in part these exceptions and dismissing the suit, plaintiffs have appealed.

In this court there has been neither answer nor assignment of errors filed, but there has been filed a motion to dismiss, on tlie ground that we have no jurisdiction ratione mateiiw.

I.

The petition alleges that the value to the public of said road is not calculable in money, but that to the petitioners it is worth upwards of $2500, and that the land to be occupied by it, giving the road a width of forty feet, is worth the sum of $2100.”

These averments, coupled with the general statement epitomized from plaintiffs’ petition, clearly make out a case for our jurisdiction.

In addition to these moneyed jurisdictional facts, the character of the relief asked, and the great public- interest involved in the question, would strongly reinforce them, and favor the exercise of our authority in the premises.

Wo think the principles involved in this case are analagous to those announced by us in Handy vs. New Orleans, 39 Ann. 107.

The plea to our jurisdiction is, therefore, overruled.

II.

The district judge prepared his views at length, and filed them in the record, from which it appears he entertained the opinion that Act 303 of 1873, under which this suit is brought, is unconstitutional and void, because it is in conflict with Article 46 of the Constitution of 1879. He uses this expression, viz :

Though it may have been constitutional at the time of its passage, though the Legislature may have then had the power to order the police jury to make tljis improvement, the act, nevertheless, remained inoperative and unobeyed, and the Constitution of 1879 intervening with its command that the Legislature can pass no laws on this subject matter, and declaring that those already passed, which are inconsistent therewith are repealed, prohibits all future action under this statute. .It repealed and strikes with nullity the'Act of 1873, and the question of the necessity of this public road rests, now, with the police jury, where it rightfully belonged at the time of the jiassage of that Act.” In support of his view ou this subject he cites and relies upon our opinion in 35 Ann. 537, State ex rel. Gras vs. Auditor.

He virtually sustains the defendant’s fourth and fifth grounds of exception, and for that reason dismisses plaintiffs’ suit.

These are the only ones of any serious import, or involving serious discussion; for, if the Act of 1873, is unconstitutional, there is an end of the controversy, and if it is constitutional, plaintiffs’ petition. propounds a cause of action; and, it would seem to be manifest, that if plaintiffs have a remedy by way of mandamus, they have one by an ordinary action like this. We faff to see why a jury cannot try this case; plaintiffs have demanded a trial by jury, and, if objection is urged at all, it must, of necessity, be urged by defendant, — and such action would be at variance with its theory.

III.

Act 103 of 1873, is a special, or local law, it is true, but no argument is made, nor contention either, that the Legislature of that period had not the constitutional x>ower to pass it, at the date of its enactment, on June 3d, 1873; and we do not appreciate the contention that same became unconstitutional by the adoption of the Constitution of 1879. Constitutional provisions, like legislative enactments, must operateprospectively, and not retrospectively.

The provisions of Article 46 of the Constitution, in terms refer to the future action of the General Assembly. It says :

The General Assembly shall not pass any local or special law,” etc. This language was certainly intended to apply to the laws which might be thereafter enacted, and not to those already in existence.

We do liot regard the Act of 1873 as being inconsistent with the provisions of Article 46, in the sense of Article 258 of the Constitution. Such an interpretation would give a retrospective effect to that instrument.' Giving effect to that act, we tliink the Legislature had the undoubted right to enact the law. To hold otherwise would be to hold that the creature is more powerful than its creator; or to say that the Legislature which conferred certain powers on the police juries of the entire State could not amend or alter those applicable to one, without altering or abolishing the entire scheme.

The statute simply says, “that it shall he the duty of the police jury * * to locate, make, and open for travel, a new public road.” It does not contemplate the expropriation of private property and payment for an expensive public highway; but merely the condemnation of the front lands of the riparian proprietors on a navigable watercourse, to a public use and public servitude, and at the proper expense of the parish. This is only a,n enabling law, and strictly within the competency of the Legislature.

A public road is declared by the Code to be a public servitude, and the public has a right of way on the banks of navigable streams of this State. R. C. C. 665. Heirs of Leonard vs. City of Baton Rouge, 39 Ann. 278.

The judgment appealed from is erroneous. It is, therefore, ordered and decreed that the judgment appealed from he reversed, and that the cause he remanded for further proceedings according to law and the views herein expressed, and that the defendant and appellee pay cost of appeal, those in the lower court to await final judgment therein.

On Application eor Rehearing.

Fenner, J.

This application assigns to our decision iu this case a much broader meaning and effect than it involves under a proper construction of its terms.

We have simply reversed the judgment maintaining exceptions going to the entire dismissal of action, and have remanded the case to be pro-proceeded with according to law.

This does not mean a determination that the Act 103 of 1873 is constitutional in all its provisions, or that the xdaintiiis are entitled to the whole relief asked by them.

The x>etition alleges “that the Teche is a navigable stream bordered by alluvial lands, and its hanks and shores owe a servitude to the public for roads and levees,” and that “the proprietors on the east side of the bayou along its whole course in the parish of St. Mary fence up and close at will roads and pathways over which the public have travelled.”

This suggests a particular right and a’particular relief to which plaintiffs may be entitled under the Act, and which would certainly not encounter the grave consequences suggested in counsel’s brief, nor any constitutional objection.

As to such acts it is held that they must be executed _ in so far as they do not violate constitutional rights and restrained in so far as they do. In re Douglas, 41 Ann.

We have simply remanded the case to be tried on the merits, and after decision thereon, if api>ealed to, we will determine the extent to which the act is valid and the measure of the relief to wliich plaintiffs are entitled.

Rehearing refused.


author: Watkins, J.

text:
    No. 1,323.
    Mrs. Virginia Morrow vs. Leopold Goudchaux et als.
    1. Notwithstanding the proof should show that a married, woman signed an act of sale of her j paraphernal property at the instance of. and through coercion exercised hy her husband, antecedent to the sale, yet, il* she subsequently perform acts evincing an acquiescence therein, she will bo thereby concluded and debarred from asserting the nullity of the contract.
    2. The code contains no prohibition against the wife’s free use and disposition of the proceeds of a sale of her paraphernal property, and it specially provides that if her husband should receive and dispose of the proceeds of such sale, the wife shall have a tacit mortgage on liis property.
    APPEAL from the Twelfth District Court, Parish of Avoyelles. Coco, J.

      ■Thorpe cG Peterman for Plaintiff and Appellant:
    1. * The prohibition of the code againstja married woman binding herself for the debts of her husband or of the community is one affecting the public order and is directed against every form of contract by wliich such illegal purpose is sought to he consummated. 14 Ann.169; 12H.84; 12Ann.852; 1 Ann. 429; 33 Ann. 666-1039.
    2. “The circumstance of the wife having a separate advantage in the contract is of the essence of the obligation and must be proved by other evidence than proof of her having touched the money.” She cannot be bound unless the consideration of her contract is ‘shown to have enured to her separate, benefit or was employed for her separate use in something which the husband was not bound to furnish her with. 7 N. S. 64; 5 Ann. 586-496. 4 Hob. 508; 29 Ann. 125.
    3. A sale by a married woman of” all her paraphernal property for a consideration made up wholly or in part of a past indebtedness for goods and supplies purporting to have been purchased hy her during the existence of the community is a nullity. 34 Ann. 822.
    4. Where a married woman not separated in property from her husband, sells all her paraphernal estate consisting of valuable plantations, to her husband’s creditor for an expressed consideration of ono-half cash and one-lialf notes, and it is shown that the cash was never paid to the wife but was credited by the purchaser on the debt due him hy the husband; and that the husband took tbe notes and with them settled his indebtedness to third persons, the wife thereby being wholly deprived of every part of the consideration, tlie sale is a more scheme to appropriate tlie wife’s property to the payment of the husband’s debts and will be set ns ule. 2 Ann. 750 ; 5 Ann. 572; 34 Ann. 288-632.
    5. Contracts of the wife which are entiro and have an entire consideration, and which are violative of the provisions of the code, are null in their entirety, — they cannot be valid as to apart of the consideration and void as to the remainder. 1 Ann. 301; 23 Ann, 439 ; 28 Ann. 758
    6. Undue marital influence in the execution of an act of sale is sufficiently shown by proof that the wife was illiterate, weak minded from infancy, addicted to the use of narcotics^ and had been for years tin*, victim of a drunken husband’s tyranny, curses and violence and stood in dread of him, and that be was present when the bargain to sell was made and • when she executed the act which was signed in his presence and hearing and at his bidding. 34 Ann. 288.

      Gullom cG Gajppel and K. Baillio for Defendants and Appellees:
    1. Good faith in contracts is always presumed, and the court will believe the partios under^ stood each other. 13 L. 254; 23 Ann. 272.
    2. Tfraud is never presumed. Jlon., p. 487, Uo. 1, and cases cited.
    3. Duress or violence cannot invalídalo a contract as to a third innocent party without knowledge of such duress or violence.. O. C. 1858; 14 Ann. 15. Especially where there was another motive for making the contract. C. 0.1859; 27 Ann. 478.
    4. Where a party demands the rescission of a sale, lie must, as a condition precedent, return, or offer to return, the consideration he has received. 21 Ann. 425, 514, 4 La. 198; 19 La. 283; 2 k. 160; 6 k. 450.
    5. Plaintiff must allege every fact material to his case, tftare Dociais.

    6. I'o annul a sale because of an unlawful assumpsit of tlie wife-, tlie assumpsit must be specially alleged.
    7. Parties cannot avail themselves of evidence clearly admissible under the pleadings to prove a distinct cause of action not alleged. 31 Ann. 862.
    8. An assumpsit only takes place where there is a pre-existing debt.
    9. A verbal order by A to B to give 0 credit, is an original contract and not an assumpsit.
   Tlie opinion of tlie Court was delivered by

Watkins, J.

Tlie object of this suit is tlie recovery from tlie defendant, G-oudchaux, of a small tract of land situated in the Parish of Avoyelles. Plaintiff alleges that it. is part of her separate paraphernal property and estate, and the sale and conveyance of which to the said defendant was illegal and void, for two reasons, viz:

1. That it was without any valid and free consent on her part, her participation therein having been unwillingly obtained through compulsion and threats of violence exercised by her husband.

2. That no part of the price or consideration was paid to her, or enured to her benefit, hut went to discharge debts of her husband.

The negative of these two propositions is maintained by the defendant.

A careful examination of the record has revealed the following facts substantially, viz:

On the 25th of April, 1878, the plaintiff executed in favor of the defendant a nenie A réméré of a certain tract of land situated in the Parish of St. Landry, in the immediate vicinity of the land in suit, in which there was a stipulation that, upon the payment and restitution of the price of $550 on the 1st of January, 1879, she might exercise the right of redemption. Finding herself in a situation that rendered its exercise exceedingly impracticable, the former act was annulled on the lltli of December, 1878, and a new and different conveyance executed by the plaintiff to said defendant, absolute in character, for the stated price of $3000, of the. land in suit, as well as that situated in St. Landry palish.

The consideration of this sale was stated to bo in cash to the extent of $1500, and a like sum, on terms of credit of one, two and three years, for which Goudcliaux executed three notes of $500 each, payable to the order of the plaintiff. There was $500 paid down on the day of sale, in currency, and the remainder was represented by the amount of $550 specified in the rente á réméré, and the amount of the defendant’s store account which had been kept in the name of A. H. P. Walls, the plaintiff’s husband.

At their respective maturities the defendants paid the three notes to the holder thereof, same having been duly endorsed by the plaintiff with the authorization of-her husband. Within a few mouths after this sale, Walls and his wife and children removed permanently to the State of Kansas, where he deserted her soon after, and the plaintiff and her children were thrown upon the charities of her relations and the Free Masons, by whom she was supplied with means to return to Louisiana again, where she lias over since lived, in penury and want.

I.

A careful scrutiny of all the evidence has satisfied us that there was no such force or coercion employed as to vitiate the contract of sale. The plaintiff and one of her witnesses testify to the effect that her husband was a drinking man, and, when under the influence of alcohol, was quite abusive and insulting to the former. And they stoutly maintain that, on the day of the sale, she was threatened with violence, if she did not sign the act of sale.

Per contra, the defendant and one of his witnesses swear that the plaintiff solicited him to purchase the property, and called upon him, and interviewed him on that subject. The notary, and at least one witness state that the plaintiff accepted the $500, in cash, paid at the time the act was executed, and received the notes.

It is in proof that she endorsed the notes in blank, and thus made them payable to bearer. These occurrences happened on the day subsequent to plaintiffs interview with the defendant and at a time when no force was employed to superinduce them.

There was one witness who testified that ho was personally and well acquainted with the plaintiff and her husband, and said: “From what I know of them I do not think that Mrs. Walls could have been coerced by her husband in doing any act she did not want to do. I considered her the controlling power of the partnership.' I mean by this last remark to say that she could and did, control Walls, a/nd that Walls eoulcl ■not control her."

This witness, Win. M. Ewell, seems to have been a wholly disinterested person in all these transactions. His testimony is supported by like statements made by other witnesses.

Taken all in all, the proof is clear that the sale was freely and voluntarily made on the part of the plaintiff, or if it was not, that her acts of acquiescence in it, and acceptance of its fruits, are quite sufficient to debar her from making claim for its annulment on that score.

II.

It must be borne in mind, in considering the second ground-of nullity charged against tliq sale under consideration, that this suit only has for object the recovery of the tract of land situated in the Parish of Avoyelles; and, that if the act of sale in question be annulled for the causes, or either of the causes assigned, the vente cl réméré of the tract of land situated in St. Landry parish would of necessity revive and remain undisburbed, as it is the act assaulted which annuls that contract, and its revocation would, of course, revive it, as there is no attack made upon it in the plaintiff’s petition.

This vente (l réméré has the corresponding effect of validating the consideration to the extent of $550, the amount of the price, or consideration therein specified.

As before shown, there was $500 paid down in cash on the day of sale, and the three purchase notes of $500 each were executed by the defendant, payable to the order of the plaintiff, and they were delivered to the plaintiff on the day of sale; and her further and subsequent act of endorsement of them was necessary in order to enable any third person to collect them.

When these notes came to their respective maturities, they were paid by Goudchaux.

Thus it is obvious that $2550 of the consideration for this sale was received, and safely reached the destination the plaintiff intended. With regard to the remaining $450 of the price; Goudcliaux says he retained it in liis hands, at the express instance and request of tlie plaintiff, and that same was expended as she directed and upon her orders. He says Mr. Walls was a wholly impecunious person and without means, or credit, and Mrs. Walls gave him instructions to let him have what he wanted.

There was an account on defendant’s books in the name of the husband, which had been running for years, and which had been annually increased by debts, and correspondingly, reduced by sundry credits, until the 25th of April, 1878 — the date on which the vente á réméré was executed — when the books disclosed a debit balance of $200 against him. It is at this date the account 'of Walls was closed, and the dealings of defendant with tlie plaintiff commenced. He explains that it was thought to be more convenient that the account on the books should be continued as it was, and without change, and so it was done, and all purchases thereafter made in his store were on tlie plaintiff’s account, though they appear on her husband’s account, just as before. While this explanation does not appear quite satisfactory, and may be open to doubt, and regarded as an expedient resorted to for the purpose of giving the appearance of fairness and legality to a reprobated transaction, yet we are not prepared to say that it comes within the prohibition of the Civil Code.

It provides that the wife, whether separated in property by contract or judgment, or not separated, cannot, except by and with the authorization of the husband, and in default of the husband, with that of the judge, alienate her immovable effects of whatever nature they may be, except in cases where the alienation of the dotal immovable is per-* mitted.” R. C. C. 2397.

“ The wife, whether separated in property bj contract or judgment, or not separated, cannot bind herself for her husband, nor conjointly with him, for debts contracted by Mm, before or during marriage.” It. C. C. 2398.

These articles have given rise to much discussion by commentators, and jurists, resulting in quite a contrariety of opinion as to their true import in respect to a wife’s alienation of her paraphernal property.

The decisions of this court have been, in some cases, pushed to the extremity of announcing that the two articles quoted, constituting, as they do, a separate chapter in the code, which is entitled “ Of the wife's incapacity to alienate her immovables, or bind herself for her husband," the provisions of either may be considered as interpreting the other, and the prohibition contained in one as exercising control, in some sort, over the other. Hence it has been said that the provisions of the latter article, which declare that “ the wife * * cannot bind herself for her husband, nor conjointly with him, for debts contracted by him ” apply to the alienation of a wife’s paraphernal immovables, and prohibits her from receiving in partial payment of the purchase price, an indebtedness of her husband to the vendee. R. C. C. 2398.

With due deference to the decisions on this subject, we cannot subscribe to that theory.

Article 2397 simply provides that the “ wife * * * cannot, except by and with the authorization of the husband, and in default of the husband, with that of the judge, alienate her immovable effects, of whatever nature they may be,” etc.

Nothing is said in regard to the consideration for this sale, nor as to the destination of the proceeds. There is no prohibition contained in this article in this particular. The next one refers solely and alone to obligations the wife is forbidden to contract. The two are entirely independent, one of the other, notwithstanding they embrace kindred subjects; and neither exorcises any control over the other.

After making a careful examination of the whole jurisprudence, we hnd no decision which so tersely expresses our views on this question as that in Courtney vs. Davidson, 6 Ann. 455. It is as follows, viz:

“But the code does not restrain her, with the authority of her husband, from alienating her paraphernal property; and when dispossd of, imposes no restriction upon her use of the proceeds, more than of any other money belonging to her. The courts, therefore, can impose none; and perhaps, the freedom of trade, good faith, and the true interests of society render it desirable that none should be imposed. It seems to be opposed to the real welfare of families that the husba.nd should be involved in, and harassed with honest debts, contracted, perhaps, in efforts to improve the condition of his family, with a wife rich in money, but rendered incapable, by law, of relieving him.”

Applying that principle to the facts of this case, and we can see neither good legal objection or impropriety in the plaintiff leaving a part of the purchase price in the custody and possession of the purchaser of her paraphernal property, who was merchant, on the faith of which she anight draw subsistance for herself and family, subsequently.

Especially is this true “if all the property of the wife be paraphernal and she have reserved to herself the. administration of it,” for, in this instance, says the code, “she ought to hear a proportion of the marriage charges, equal, if need be, to one-lialf her income.” R. C. C. 2389.

But the code is even more explicit, for it says iai express terms that “tlie wife may alienate her paraphernal property with the authorization of the husband; * * * * * hut should it he proved that the husband has received the amount of the paraphernal property thus alienated by his wife, or otherwise disposed of the same for his individual interest, the wife shall have a legal mortgage on all the property of her husband for the reimbursement of the same.” E. C. C. 2390. .

We are of the opinion that the second ground of plaintiff’s charge against her sale to the defendant, must share the same fate of her first one. Tlie defendant’s title is valid, and the judge a quo correctly upheld and sustained it.

Judgment affirmed.


author: McEnery, J.

text:
    No. 1,330.
    Myrtilla Welsh vs. C. D. Welsh, Administrator.
    The homestead sum of $1,000 allowed the widow and minor children of a dm-asefl person, must be paid to the widow without requiring security from her, when there are no minor children of a previous marriage to whom the amount will “0 after the termination of ihe usufruct of said sum.
    APPEAL from the Fourteenth District Court, Parish of Calcasieu. Heed, J.
    A. 7?. Mitchell for Plaintiff and Appellant.. ■

      fíeorge II. Wells for Defendant and Appellee.
   The opinion of the Court was delivered by

McEnery, J.

Henry Welsh died in the parish of Calcasieu in 1886, leaving his surviving widow, the appellant, in necessitous circumstances. There was no issue of the marriage. By his first marriage lie-left two children, both of whom were majors. • C. D. Welsh, his son by the first marriage, administered Ms father’s succession. The administrator filed his account of tlie administration and placed tlie necessitous widow on liis tableaux as a creditor for the sum of $1,000, less a credit of $98. The usufruct of the $1,000 due the widow is conceded, but the administrator refused to pay over the amount to her without her giving security for tlie amount. On tlie trial of tlie opposition to the account, in which the opponent, the widow Welsh, claimed said amount without giving security, the opposition was dismissed. From this judgment she has appealed.

The only question in this case is does the widow come within any exception which relieves her from giving security 9

The children who are of age by the former marriage have no interest in this controversy.

The act of March 17th, 1852, entitled an act to provide a homestead for the widow and children of deceased persons,” which has become Section 2885 R. S., intended to provide for the widow and minor children of a deceased person left in necessitous circumstances. It was to bo paid in preference to all other debts except the vendors privilege and the expense of selling the property. It was a sum taken from the succession and bestowed as a bounty upon the widow and the minor children.

The act sajs nothing about the giving of security by the widow, but it has been decided that the usufruct created by the act must conform to the laws in pari materia. Suc. of Tassin, 12 Ann. 885; Andrew Cowen vs. Cessaire Bourg, 16 Ann. 615.

If the widow Welsh was the mother of a minor child issue of her marriage with her deceased husband, in accordance with Act 560 of the Revised Statutes, she would be dispensed with giving security.

The Act of March 17th, 1852, gave the widow the usufruct only, as the amount was intended for the joint benefit of the widow and the minor children.

In the cases reported in 12 Ann. 886, and 16 Ann. 615, there were minor children of the deceased by a former marriage to whom the amount bestowed by the act would go after the termination of the usufruct enjoyed by the widow. As the widow was not the mother of the minor children she was not dispensed by -Art. 560 of the Revised Code from giving security for the usufruct of the money.

In the Suc. of Tassin, 12 Ann. 886, the court said, “the general rule is that usufructuaries must give security. The burden is on the opponent to show that she falls within some exception to the rule.”

In the instant case the opponent has brought herself within the exception. The object in giving security is to preserve and secure the money for the person or persons to whom it descends after the termination of the usufruct. There were no minor children by a previous marriage to whom the money will descend after the usufruct ceases. It can not go to the major children of the deceased, because it does not again return to tlie succession of the deceased. The money has been taken from and separated from the succession and bestowed upon the widow and the minor children. It belongs to them — the usufruct to the widow —and the ownership to the minors. In the instant case there is no one to whom the money descends, and as the law, in its humane provisions, intended to provide for the destitute out of the fund of the succession, it is not unreasonable to interpret it to mean that when it provided for the widow and the minor, that its intention was that in the absence of minors it should go to the widow to enjoy the whole amount. But as there is no one to whom the amount descends, it would be an idle thing for the widow to give security for its return to an imaginary claimant who can never appear.

It is, therefore, ordered, adjudged and decreed that the judgment appealed from be avoided and reversed, and it is now ordered that the administrator of the succession of Welsh pay to the widow, Jtfyrtilla Welsh, the sum of $902, balance due her as a widow in heccesitous circumstances, and that she be dispensed from giving security for said amount, and that the succession of Welsh pay costs in both courts.


text:
    No. 1,334.
    Francis M. Lampton vs. State National Bank et al.
    An «amended answer wliicli does not change the issues presented in the original answer, should he allowed 1o he filed.
    Continued possession of the property by the vendor, the ahsenco of the p«ayment of any price for the same, the relationship between, the vendor and vendee, the record in the suit in which execution issued where the property was seized in the possession of the vendor, are material and important facts to prove a simulated sale.
    APPEAL from the Twelfth District Court, Parish of Avoyelles. Goeo, J.

      Thorp c6 Peterman for Plaintiff and Appellee.

      William Hall and Jojfrion & Bordelon for Defendant and Appellant.
   The opinion of the Court was delivered by

McEnery, J.

It will be unnecessary to decide the various issues raised in this case further than to give our reasons for remanding the same.

The defendant hank was a judgment creditor of Mrs. Addie L. Cason. Execution issued on this judgment, and certain immovable property which it is alleged was in the possession of Mrs. Cason was seized under tlieji./«. and advertised to be sold. Francis M. Lampton sued out an injunction restraining the execution of the writ. In Ms petition he alleges ownership of the properly by imrcliase from'-Mrs. Cason. He does not allege in his petition that it had been delivered to him, or that he was ever in possession of the immovable property.

The defendant filed an answer denying all and singular the allegations of the petition\ and further alleged that the sale to Lampton was simulated ; that Lampton is the brother of Mrs. Cason, and the pretended sale was entered into between said parties to the same for the fraudulent purpose of defeating plaintiff in execution in the case of the Bank vs. Mrs. Cason; that said pretended transfer was not acconrpanied by the delivery of the property, and no price was paid for the same, and that Mrs. Cason, the vendor, had remained in continuous possession of said property since the said simulated sale, and that she is still in possession of the same.

On the morning- of the day set for the trial defendant offered to file an amended answer in which it was alleged, after adopting the allegations in the original answer, that the sale to Lampton was an injury to respondent and intended to defeat the collection of his judgment, and that Mrs. Cason, to the knowledge of Lampton, was insolvent. The amended answer was objected to by plaintiff on the ground that it c.hanged the issues raised in the original answer.

The refusal of the district judge to allow the amended answer filed for this reason was an error. The allegations in it are substantially covered in the original answer.

The sale was alleged to be a fraudulent simulation, and any fact bearing upon this allegation is admissible.

On the trial plaintiff offered in evidence the fi-fa. and return thereon, instructions of defendant’s counsel to the sheriff, the act of sale and proof of damages. No evidence was offered as to the possession of said property by Mrs. Cason or Lampton.

In rebuttal defendant offered evidence under admission that if J. W. Oden, an absent witness was present, he would swear that Mrs. Cason had remained and continued in possession of said property since the sale, and he offered to prove by one of the subscribing witnesses to the sale that no money was paid at the time of the sale. He also offered to iwove by Bentley, agent and attorney in fact of Lampton in the act of sale to him from Mrs. Cason, that as such agent and attorney in fact he received no consideration of any kind for said sale. Defendant offered to prove by Geo. E. Phares that Mrs. Cason had remained in continuous possession of the property and had no other. And the defendant also offered to prove by Mrs. Addie Cason, the vendor, that there was no money paid to her at the time of the sale; that Lampton is her brother, and that she has no other property and has remained in continuous possession of the same property transferred to her brrotlier since the sale. The record in the suit of the State National Bank vs. Addie L. Cason was offered in evidence by plaintiff and rejected.

Bills of exception were reserved to the ruling of the district judge rejecting all of this testimony, on the ground that the evidence was not admissible under the pleadings and was irrelevant. It would be difficult to assign any reason for its irrelevancy. Under the allegations in the answer, of a fraudulent simulation entered into by the judgment debtor and the vendee of the property for the purpose of defeating the judgment creditor, continued possession of the property by the vendor, the absence of the payment of any price for the same, the judgment in the suit in which the fi. fa. issued, are material and important facts to show that the property never passed from the vendor to the vendee. There was error in rejecting this testimony.

It is ordered that the judgment appealed from be reversed and the case remanded, to be proceeded with according to law and in accordance with the views herein expressed, the appellee to pay costs of ilppCcll.


author: Poché, J.

text:
    No. 1,345.
    Jacques A. Boyer vs. Volcey Amet, Wife, Etc.
    The neglect or failure of tli© vendee to record his title does not release tlie vendor of his obligation of warranty.
    The fact that the purchaser was aware of the defect of his vendor’s title does not affect his-right to recover the purchase price when evicted.
    The fact that the purchaser buys the property at the sale by which he is evicted does not affect his right to recover his purchase price paid to his original vendor.
    Ho does not, thereby, complete his defective title, but he acquires one entirely now and different.
    In case of eviction the warrantor must restore the purchase price to his vendoe, without reference to the enhanced or depreciated value of the property at the date of the eviction.
    APPEAL from the Twelfth District Court, Parish of Avoyelles. Ooco, J.

      Thorpe c£ Peterman for Plaintiff and Appellee:
    1. A private writing containing neither description nor price, and being coupled with condi' tions to bo performed, is not, as to others than the pretended vendor and vendee, a transfer of immovable property. 10 Ann. 613; 37 Ann. 751; It. C. C. Art. 1764, Sec. 1; 21 Ann. 196; 23 Ann. 699; 24 Ann. 85; 27 Ann. 529; 13 Ann. 361; 28 Ann. 725; 30 Ann. 1117; 34 Ann. 077 ; 5 South. Hep. 58.

      2. A purchaser "with, express stipulation of warranty, can upon eviction recover from his vendor, though at the time of buying ho was aware that his title was imperfect or that the thing sold belonged to another. 33 Ann. 381; 3 Ann. 326; 7 Ann. 268; 34 Ann. 048.
    3. One evicted hy mortgagee under an adverse title having an origin prior to the sale is not debarred hy Art, 2502, P. C. C., from relief against his vendor, though the mortgage he. subsequent to the sale. 9 Ann. 298.
    .4. In eviction the measure of damages is the price paid to the vendor. It. C. O. Arts. 2305. 2506; 6 Ann. 297; 7 Ann. 268; 10 Ann. 137, 260; 14 Ann. 722.
    5. Legal eviction does not require bodily dispossession; it tabes place though possesssiou continue, if it ho under another right adverse to that of llio vendor. 1 It. 362; 9 It. 283; 3 Ann. 326; 14 Ann. 736; 35 Ann. 514.

      A. 33. Irion and Gullom & Oagpel for Defendant and Appellant:
    When the title to property sold at succession sale is cancelled hy agreement, and the property is recoded to the estate, it is the duty of the administrator and tutor of the minor heirs to see that a proper deed is executed and recorded.
    If the administrator, who is'also the tutor, fails to do so, lie is responsible to the heirs for any damage that may follow from such neglect.
    The administrator and tutor who, in such a case, purchases the ceded property from his former ward, cannot complain of the title arising from the retrocession, and if he he evicted hy reason of the non-registry of the retrocession, he can not hold Iris former ward and vendor responsible for his eviction.
    The claim under which plaintiff was evicted did not exist at the time, nor until long after the sale by defendant to him. The warranty of defendant did not cover any claim not in existence at the time of sale, and she is therefore not responsible to plaintiff' for any rights arising through no fault or fraud of hers subsequent to the sale, and is, therefore, not responsible to plaintiff. O. C. 2302; “Karcadó, vol. 6, p. 251; Pothier on Sales p. 54.
    The plaintiff received from defendant the same title which lie as the administrator and tailor received for her. He must he regarded as aware of the status of her title and as a party thereto, and he cannot complain of any defect therein, which may have resulted to his injury.
   The opinion of the court was delivered by

Poché, J.

Defendant appeals from a judgment which condemned her to restore to plaintiff the sum of $3200 as the purchase price of a tract of land which she had sold to him in December, 1885, and from which he had been evicted under the effect of a judgment rendered by this court in the case entitled J. A. Boyer vs. L. A. Joffrion, sheriff et ah, reported in the Thirty-eighth Annual Reports, p. 657; and by which she was also condemned to refund to plaintiff the additional sum of $277 05 for costs and other expenses incurred hy him in said litigation, which involved the validity of the title transferred to him by defendant.

Tlie substantial facts of the case are as follows:

The property involved herein originally belonged to the succession of defendant’s mother, Palmyre Boyer Amet, which was administered by tlie present plaintiff. At a succession sale thereof the property was adjudicated to a stranger who immediately thereafter sold it to A. L. Boyer, a brother of plaintiff, an uncle of defendant, and at that time the tutor of one of the minor children of the deceased.

Some time after she became of age, defendant brought suit against the two Boyers, involving plaintiff’s administration of her mother’s succession, and the acts of tutorship of both of the Boyers as co-tutors of herself and minor sister and brother.

By mutual consent their differences were • submitted to arbitration, and the litigation was thus terminated.

Now it appears that the validity of A. L. Boyer’s purchase of the tract of land in question had also been involved, and that as part of the adjustment of the differences then existing between the parties, Boyer acknowledged the nullity of his purchase, and agreed to retrocede the l>roperty thus acquired by him to the heirs of the succession.

To that effect the act of submission contained the following declaration or article:

“That A. L. Boyer returns to the said heirs the thirty-seven and a half acres of land bought by him in 1878, and that the'said sale to him is hereby annulled, reserving to said A. L. Boyer all rights he had or may have had at the time of the sale of said land.”

This occurred in November, 1881, and shortly thereafter, through the death of her brother and sister, defendant herein became the sole heir of her mother’s succession, and as such she went into the exclusive possession of said land.

In December, 1885, she sold it, with full warranty, to tlie present plaintiff, for $3200 cash. That sale was immediately recorded in the proper office, but no registry was made of the retocessión of A. L. Boyer to tlie heirs of Palmyre Boyer Amet, defendant’s mother.

In May, 1886, A. L. Boyer, in whose name the property yet apparently stood in the records, mortgaged it to a third party, who issued executory process" on his mortgage in 1888.

His proceedings were enjoined by Plaintiff J. A. Boyer, who called his vendor in warranty. But the call was dismissed on exceptions.

The result of the litigation was the enforcement of the mortgage granted by A. L. Boyer, and at the sheriff’s sale thereunder the property was adjudicated to J. A. Boyer, the present plaintiff, for the sum of $1800.

The defense presents for discussion three points which may be summarized as follows:

1. That plaintiff who was, at the time of the retrocession from A. L. Boyer to the heirs of Mrs. Amet, the administrator of the succession, was made aware of the nature of defendant’s title, the only delect of which was the failure of registry, which it was his duty to have recorded, first as administrator, and next as purchaser.

2. That plaintiff’s title was anterior in date to the mortgage granted by A. L. Boyer, and that, therefore, he cannot recover his purchase price.

3. That in any event the evicted vendee cannot recover more than the amount paid to complete his title.

I.

The article in which A. L. Boyer acknowleged the nullity of his title was not a matter between himself and the succession or its administrator, but it grew out of an agreement between himself and the heirs directly, in a litigation instituted by the defendant herself, who was then of full age and acting in her own right. The retrocession, so far as it went, was not to the succession or its representative, but it was made for the benefit of, and directly to, the heirs themselves, who thereunder were placed in possession without the intervention or assistance of the administrator. The adjustment of the latter’s account of administration was the subject-matter of other and different stipulations in the act of submission, and was effected by the award of the arbitrator. Hence it was no part of the duty of the administrator to see to the registry of the retrocession, or to attend to its completion.

A decision of the question of the legal effect of A. L. Boyer’s declaration, hereinabove quoted, and relied on by defendant as a retrocession of the property, would not be free of difficulty, when considered in connection with the absence therefrom of the adjndicatee, who was Boyer’s vendor, in connection with die face that it contained no descripition of the lands which it purported to reconvey and with other defects of the forms required in an act to be translative of title. But fortunately the purposes of this cause do not require a solution of these difficulties.

Conceding,' therefore, that the declaration operated legally as a retro-cession of the property, and effected a mutation of title, the sole defect of which was the failure of a proper and timely inscription so as to give it effect as to third parties, the question now recurs whether the failure or neglect of plaintiff to secure an inscription of this act, after his purchase in 1885, can defeat his right to recover the purchase price as evicted vendee.

It must first be premised that, if die neglect of a vendee in this regard can be treated as laches on his part, the defendant herself has much to account for, as it appears that she allowed her own title to linger without inscription from the time that she recovered the property, November, 1881, until she sold it to plaintiff, in December, 1885.

But, as applicable to the rights of an evicted vendee, the question has been settled by authority. It came up in the case of Clark vs. O’Neal, 13 Ann. 381, in which the court said : The mere fact that the vendee had neglected to record the act of sale did not release the plaintiff from her obligation to warrant the title.”

In point of fact, the sale to plaintiff by the defendant was properly inscribed, and hence he stands before the court as an evicted vendee unaffected by any laches in connection with the non-registry of his, or of his vendor’s, titles. And we can hut repeat in this connection that she alone is amenable to the censure which she addresses to her vendee.

The contention that plaintiff’s right to recover is defeated by the fact that he had full knowledge of the defect in his vendor’s title, finds no support either in law or in tho facts of the case.

According to defendant’s own theory, the only defect in the title whieh she transferred to plaintiff was tho lack of registry of A. L. Boyer’s declaration in the act of submission, which she holds up as the muniment of her title, which was considered as such by all the parties to the various transactions, and which we have conceded, for the sake of argument, to have had that effect.

Now there is not an iota of evidence to show that her purchaser ever knew or even suspected that the evidence of her title had never been registered. And there is no warrant in law to justify the presumption that lie had such knowledge. On the contrary, the fact that he paid a full cash value for the property is strongly suggestive of the reverse.

But, conceding that he was awáre of that defect, does such knowledge militate against his right to recover his purchase price after eviction ¶

That question likewise finds a negative answer in our jurisprudence. It was presented in the case of Hall vs. Nevill, 3 Ann. 326, and it was solved as follows:

Evidence was offered at the trial to prove that, prior to his purchase, Nevill kuew that the title to the 160 acres was defective. This testimony was immaterial, and was properly rejected. It would not debar the defendant from resisting payment pro tanto.” * * ’* That right exists even where there was knowledge on tho part of the buyer, unless excluded by a stipulation of non-warranty, and when the purchaser has expressly bought at his own risk and peril.”

The rule, as thus expounded, results clearly from the provisions of the code on the subject. The only legal right of the buyer which can be affected by that knowledge is that to recover damages. C. C. 2452.

But neither contingency arises in this case, which shows that the sale to plaintiff was made with full warranty.

II.

The error of defendant’s contention on the second point of discussion originates from a confusion of ideas in the application of the provisions of Article 2502 of the Civil Code to the facts of the case on this point. The article reads:

That the warranty should have existence, it is necessary that the right of the person evicting shall have existed before the sale. If, therefore, this right before the sale was only imperfect, and is afterwards perfected by the negligence of the buyer, he has no claim for warranty»”

The argument is that the claim of warranty is debarred by the fact that the mortgage of A. L. Boyer to Artigue was subsequent in date to the sale of defendant to plaintiff.

But the eviction was not effected by the mortgage; it resulted from the right of ownership to the property in Boyer as to third parties by reason of the failure to inscribe his act of transfer to defendant. Dudelf vs. Boykin, 9 Ann. 298.

III.

As the property was purchased by the evicted vendee himself, defendant’s counsel contend that he thus perfected his title,' and hence he should recover no more on the warranty than the amount thus and therefor disbursed. Under the effect of that sale his eviction was as complete as if the adjudication had been made to a stranger, and he had subsequently purchased the property from the latter.

The title which he thus acquired is entirely different from that which he had obtained from defendant. He thereby acquired the title of A. L. Boyer, and he no longer owns or holds the property by virtue of defendant’s sale to him. Hence he cannot be said to have completed his original title, since that which he there acquired is a new one, and springs from an entirely different source. Landry vs. Gamet, 1 R. 362; Succession of Coxe, 15 Ann. 514.

Hence it must be held that his right of recovery under the warranty is unaffected by the incident that he himself became the purchaser at the sale under which he was evicted as defendant’s vendee.

The textual provisions of the code which determine the measure of his recovery are as follows:

“ When there is a promise of warranty or when no stipulation was made on the subject, if the buyer be evicted, he has a right to claim against the seller:
1. The restitution of the price.
'ft ift ift ‘-ft ift ift -ft ift ift ift
3. All the costs occasioned, either by the suit in warranty on the part of the buyer, or by that brought by the origial plaintiff.” * * * C. C. 2506.

Under the provisions of the code of 3808 the evicted vendee was entitled to receive from his vendor the enhanced value of the property from which he was evicted. But since that provision was eliminated from our legislation, the rule has been that the warrantor should restore to the evicted vendee the purchase price without reference to the enhanced or depreciated value of the property at the date of the eviction.

The question was finally set at rest by this court in the case of Burrows vs. Peirce, 6th Ann. 295, in an elaborate and learned opinion from which we transcribe the following apposite language:

“But if the rule of the Civil Law is adopted, the vendee gains all the increasing value of the property, there being no defect in the title ; and yet could lose nothing, for having, like his vendor, failed to discover the defect, if any existed; whilst the vendor, for the same misfortune, would lose not only the price received, but the increasing value of the property, without the ^possibility of participating in it under any circumstance. Again, if the tiling sold has greatly depreciated in value far below the price received, still the price paid is to be restored, in case of eviction, by the express provision of the article of our code; showing clearly that an ever varying rule could not have been contemplated by our Legislature, and that in place thereof they have established a fixed rule for every case.” See also Quillan vs. Yair, 20 Ann. 260.

In the present case the inference is warranted that the property had greatly depreciated in value, but under the provision of the code as wisely expounded in jurisprudence, the right of recovery of the evicted vendee cannot be measured by that circumstance, no more than a claim for the excess on his part if it had happened that the property had brought more than the amount disbursed by him as the price of his purchase from the defendant, could have been sanctioned.

Under the provision of the code he was also entitled to the reimbursement of jthe costs and expenses incurred by him in defending his vendor’s title, after due notice to, and authorization, from her.

Hence we find no error in the judgment appealed from, which has dono justice, although the caso is one of groat hardship to defendant under the peculiar combination of unfortunate circumstances to which she is a victim. But painful as tlie task may be in certain cases, courts must obey and enforce the law as it is written, and in harmony with established precedents.

Judgment affirmed.