text:
    No. 2432
    Second Circuit
    DUDLEY H. GRESHAM v. C. E. GRAVES
    (December 10, 1925, Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest—Mortgages—Par. 98.
    Article 2645 of the Civil Code provides that the sale or transfer of a credit includes everything which is an accessory to the same, as suretyship, privileges and mortgages.
    2. Louisiana Digest—Warehouses—Par. 4, 5; Bills and Notes—Par. 125.
    The sale of a note secured by the pledge of negotiable instruments, such as warehouse receipts carried with it the transfer of the pledged instruments in the absence of an express agreement to the contrary.
    Appeal from Fourth Judicial District Court of Louisiana, Parish of Union, Hon. S. D. Pearce, Judge.
    This is a suit to recover from defendant the value of four bales of cotton which he alleges he had delivered to defendant.
    There was judgment for plaintiff for part of the claim and defendant appealed.
    Judgment reversed dismissing plaintiff’s suit.
    Elder and Everett, of Farmerville, attorneys for plaintiff, appellee.
    H. E. Dawkins, of Ruston, H. G. Fields, of Farmerville, attorneys for defendant, appellant.
   ODOM, J.

Plaintiff brings this suit to recover of defendant the sum of $596.15, the value of four bales of cotton which, he alleges he had delivered to defendant, the four bales being represented by negotiable cotton warehouse tickets which he deposited with defendant as collateral security for a debt which he owed him, the tickets being numbered 12, 300, 12, 574, 13, 819, and 14, 001.

He alleges that on a date subsequent to that on which said tickets were pledged, he paid his indebtedness to defendant and demanded the return of the tickets, which was refused by defendant.

Defendant, in answer, denied receipt of the two tickets numbered 13, 819 and 14, 001, but alleged, on information and belief, that the cotton represented by said tickets was delivered to the mercantile firm of Caldwell Brothers and was sold by them and the proceeds thereof applied' as a credit on an open account due by plaintiff to that firm.

But it was admitted, in answer, that the other two tickets numbered 12, 300 and 12, 574, representing each one bale of cotton, were pledged to defendant as collateral security for a debt of $137.50 which plaintiff owed him and that after said tickets were so pledged to him the plaintiff informed him that Caldwell Brothers would take up the note which plaintiff owed defendant and take over the two cotton tickets which he held as security and that Caldwell Brothers did take up said note and that he turned over to Caldwell Brothers the cotton which he held in pledge and that he had nothing further to do with said cotton.

There was judgment in the district court in favor of plaintiff for $108.61, from which judgment defendant appealed.

Plaintiff did not appeal from the judgment nor has he moved in this court that the judgment be amended.

OPINION.

There is involved in this case both a question of fact and a question of law.

Our learned Brother of the district Court wrote an elaborate opinion on both the facts and the law involved, and while we agree with him in his final conclusion as to the facts we think he erred in his interpretation and application of the law.

On the question of fact, he held, as we understand his opinion, that in the last analysis, Graves, the defendant, held only two cotton tickets representing two bales of cotton as collateral security for the $137.50 note which the plaintiff owed him and that plaintiff had prevailed upon Caldwell Brothers to take up this note, which they did by paying the defendant the amount of the debt, and he found that when Caldwell Brothers paid defendant the amount of his debt there was nothing said about the surrender by defendant to Caldwell Brothers of the cotton tickets held as collateral along with the note which Caldwell Brothers had taken up but that defendant did surrender both tickets to them and that the proceeds of the sale of both bales of cotton represented by the tickets exceeded the amount of the debt by $108.61; and he he.ld that the proceeds of one bale of cotton was sufficient to satisfy the debt. He held, further, that as a matter of law defendant should have surrendered to Caldwell .Brothers along with the note that they took up only so much of the collateral as was necessary to pay and satisfy the note, and therein we’think he erred.

The facts which it is necessary to narrate in connection with this point, are as follows:

The defendant, Graves, was during these transactions an employee of the mercantile establishment of. Caldwell Brothers at Bernice, Louisiana. The plaintiff is a land owner and planter in that vicinity and had a white man named Bays and a colored man named Everett cultivating his land under the share system, half and half.

To make the crop of 1923 it was necessary that the plaintiff, the land owner, arrange for supplies not only for himself but for Bays and Everett, his tenants, also.

The defendant, its • seems, had some idle capital which he used in buying notes and in furnishing supplies to farmers, making collections in the fall when cotton was gathered and marketed.

In the early part of 1923, the plaintiff ar-c ranged with defendant to advance to his tenant Bays the sum of $125.00, and on February 2nd, plaintiff and Bays executed their joint note payable to defendant for $137.50 to cover the amount to be advanced and interest thereon at 10%, the note falling due on October 1st.

The money was not actually paid by defendant to either Bays or plaintiff but it was understood that Graves, the defendant, should arrange with the mercantile establishment of Caldwell Brothers to advance to said Bays during the year supplies to the amount of $125.00 for which the defendant should be responsible and for which he actually paid.

Bays, the tenant, purchased goods and supplies from Caldwell Brothers during the year amounting to considerably more than the amount of the note.

The defendant paid Caldwell Brothers the $125.00 less a discount of 5% which Caldwell Brothers allowed him.

Just what arrangement the tenant Bays and the plaintiff made with Caldwell Brothers to supply Bays more than the amount which defendant had paid is not certain but it is shown that Bays’ account at Caldwell Brothers during that year amounted to considerable more than $125.00.

The plaintiff having become responsible for the $137.50 note to defendant, in the fall of the year, after the cotton was ginned, delivered to defendant, he says, four cotton tickets representing four bales of cotton to secure said indebtedness; but the lower court found, as stated, that the defendant actually held only two tickets.

After these tickets had been delivered to defendant, plaintiff went to Caldwell Brothers and asked them to take up the note for $137.50, which they agreed to do, and plaintiff immediately told Graves, the defendant, that Caldwell Brothers would take up the note. Caldwell Brothers immediately paid Graves the amount of the note and Graves surrendered to them not only the note but the two cotton tickets as well. This was some time in the month of October. The testimony shows that plaintiff said nothing to either Caldwell Brothers or Graves as to what disposition Graves should make of the cotton tickets which he held as collateral to the note but merely told Graves that he had arranged with Caldwel Brothers to take up the note.

Caldwell Brothers, it seems, wanted the tickets along with the note and Graves says he thought he should surrender them, which he did.

The court held that it was his duty to surrender enough of the collateral to take care of the debt and no more.

All parties considered this transaction as a sale of the note by Graves to Caldwell Brothers at plaintiff’s request.

Article 2645 of the Civil Code provides:

“The sale or transfer of a credit includes everything which is an accessory to the same; as suretyship, privileges and mortgages.”

We find the rule stated in Daniel on Negotiable Instruments, Section 748, as follows:

“The assignment of a debt by whatever form of transfer carries .with it any bill or note by which it is secured, and the transfer by endorsement or assignment of a bill or note carries’ with it all the securities for. its payment, whether a mortgage or otherwise.”

The rule is stated as follows in 4 Cyc. page 69:

“In the absence of any stipulation or provision in the contract of assignment concerning the securities or other incidents, an unqualified sale of a chose in action carries with it as incidental * * to the chose all securities held by the assignor as collateral to the claim, and all rights incidental thereto, and vests in the assignee the equitable title to such collateral securities and incidental rights.”

See also, 5 Corpus Juris, 948.

It has been repeatedly held by our Supreme Court that the sale of a note secured by a mortgage carries with it the accessory mortgage and privilege.

Perkins Bros. vs. Liquidator, 49 Ann. 653, 21 South. 743.

Succession of Forstall, 39 La. Ann. 1056, 3 South. 277.

And authorities cited.

By the same rule of reasoning the sale of a note secured by the pledge of negotiable instruments carried with it the transfer of the pledged instruments in the absence of an express agreement to the contrary.

The pledge of a chattel creates in the pledgee a species of ownership.

Fidelity & Deposit Co. vs. Johnston, 117 La. 880, 42 South. 357.

Kyle vs. Sigur, 121 La. 888, 46 South. 910.

In the case of Chaffe vs. Dubose, 36 La. Ann. 257, the court, with phief Justice Manning as its organ, said:

“If the pledgor could control his pledges and prevent his collecting the pledge, or disposing of it after the time permitted, or restrict him in the mode of collecting it, the value and utility of this form of security would vanish.”

In the case at bar, plaintiff owed defendant $137.50 evidenced by a promissory note for that amount. He pledged as security fqr the debt negotiable cotton instruments. Subsequent to the pledge he induced Caldwell Brothers to take up the' note and informed defendant of that fact. He did not offer to pay his note and redeem the pledge. The note was not paid but was transferred by defendant to Caldwell Brothers. Thereafter, on December 18th, the plaintiff had a settlement with Caldwell Brothers and the note was marked paid by them on that date. If the plaintiff had expected or intended to redeem and regain possession of the cotton tickets he should have paid the note to defendant and demanded the delivery of the pledged tickets 'to him.

Under the circumstances, we hold that the transfer of the note to Caldwell Brothers carried with it the transfer of the pledge and relieved defendant of any further responsibility to plaintiff therefor.

On the question of fact as to how many bales of cotton involved in this suit was actually 'pledged to defendant, the testimony is conflicting.

Plaintiff brings this suit to recover four bales represented by the tickets above described. He says that these specific tickets were delivered to defendant in pledge. Defendant admits that he held tickets 12, 300 and 12, 574, but denies both in answer and in testimony that he ever had the other two tickets.

D. W. Caldwell testified that bale 13, 819 was turned over to him by Bays to secure him for his indebtedness over and above the amount advanced him by defendant. He says that Gresham turned over to him bale 14, 001 in person to hold on Gresham’s debt to him and that the other two bales were turned over to Graves.

J. R. Hammock, who kept book for Caldwell Brothers, during the season of 1923, says that two of the bales of cotton in question were turned over to Caldwell Brothers. He says that Graves had a place to keep his cotton tickets and that Caldwell Brothers had another place to keep the tickets that belonged to the firm and that tw.o of the cotton tickets involved in this case were found in Caldwell Brothers’ files. He does not know who delivered them to Caldwell Brothers.

On the contrary, we have the testimony of the plaintiff that he personally delivered one of the bales in question to defendant. He delivered another bale, but admitted that he sold it. He does not claim to have delivered any more than one bale personally but says he instructed Bays, his tenant, to deliver the other three bales and Bays says he did.

But as against the testimony of Bays and plaintiff we have the testimony of Caldwell that Bays delivered only one bale to him and that Gresham delivered another, and the testimony of Hammock that Caldwell held two of the tickets. Of the remaining two bales, Caldwell says that Gresham told him that if he would pay Graves $137.50 debt he should have the tickets.

We are satisfied that all four of the bales of cotton in question passed into the hands of Caldwell Brothers with plaintiff’s full consent.

Plaintiff says that his cotton was put up as security for his debt and the debt of Bays. They both owed Caldwell for supplies. After Caldwell took up the note, neither Gresham nor Bays owed defendant anything and necessarily defendant had no further interest in any of the cotton. If the cotton, as plaintiff says, was put up to secure these debts, why should not Caldwell Brothers, who were the sole creditors of both plaintiff and Bays, have the cotton.

The proof is that on December 18th Bays sold his one-half interest in three bales of cotton to Caldwell. The proceeds amounted to $226.74, for which he signed a receipt. This amount was credited on his account with Caldwell Brothers. The receipt which is signed reads in part:

“For my half of three bales of cotton yard number 13,. 819, 12, 574, and 12, 300.”

He admits making the settlement and signing the receipt. These are three of the bales involved in this suit. It seems that Bays considered this a sale to plaintiff, inasmuch as plaintiff was surety for the debt he owed Caldwell Brothers. The cotton was then treated as plaintiff’s cotton but Bays was given credit on Caldwell Brothers’ books for the proceeds of one-half thereof. Caldwell says he purchased all four of the bales in question, treating them as plaintiff’s cotton. He attaches what they refer to as a bill of sale but Which is in reality only a statement showing the purchase of the cotton from D. H. Gresham. Gresham, the plaintiff, denied selling the cotton, but the witness Bays says he told Gresham to sell the cotton for the best price obtainable and credit 'his one-half on what he owed. He testified that Gresham exhibited to him what he called a bill of sale showing what the cotton brought, and says that he understood that the cotton was finally to go to Caldwell Brothers to pay their debts. The statement which Caldwell exhibited showing the sale of four bales of cotton by Gresham to him shows that it was the identical cotton sued for. Caldwell says he took the cotton at the request of the plaintiff and at prices suggested by him. The statement which he exhibited in court is a carbon copy of the original of which he says he delivered to plaintiff and which Bays says the plaintiff exhibited to him. Caldwell then credited plaintiff on his account with one-half of the proceeds of the three bales of cotton in which Bays was interested and with the entire proceeds of the other bale. This left a balance of $108.61 due by Caldwell Brothers to plaintiff.

It seems that defendant • handled two other bales of cotton making four bales in all, but the other two bales are not involved in this suit. Defendant explained that he was surety on a mortgage note due by plaintiff to the bank and that the other two bales were sold and the proceeds applied to the payment of that debt.

For the reasons assigned, it is therefore ordered, adjudged and decreed that the judgment appealed from be avoided and reversed., and plaintiff’s suit dismissed at his cost.


source: Caselaw Access Project

author: ODOM, J.

license: Public Domain

text:
    No. 2431
    Second Circuit
    C. H. THOMPSON, ET AL. v. J. S. CROW
    (December 10, 1925, Opinion and Decree.)

      (Syllabus by the Editor)
    1. Louisiana Digest—Compensation—Par. 15.
    The defendant when sued on a promissory note and mortgage, cannot plead compensation and offset which consists of an unliquidated account.
    2. Louisiana Digest—Compensation—Par. 19.
    Defendant when sued on a promissory note and mortgage owned by a partnership, cannot plead compensation and offset of a debt due by one of the partners.
    3. Louisiana Digest—Evidence—Par. 63, 106.
    For the purpose of trial of the issue as to whether the note which is the basis of plaintiff’s suit has been paid and extinguished by compensation, the note is properly admissible in evidence.
    4. Louisiana Digest—Executory Process— Par. 79.
    The point that the court had insufficient evidence to authorize a fiat ordering a sale under executory process can only be properly urged on appeal from the court’s order.
    5. Louisiana Digest—Injunction—Par. 15.
    The fact that the court had insufficient evidence to authorize the fiat ordering a sale under executory process is no ground for the granting of an injunction.
    6. Louisiana Digest—Injunction—Par. 2.
    Article 738 and Par. 7 of Article 739 of the Code of Practice in regard to injunctions do not apply where the plaintiff has an unliquidated account.
    Appeal from the Fourth Judicial District Court of Louisiana, Parish of Union, Hon. S. D. Pearce, Judge.
    This is a suit in which the plaintiffs, the owners of a promissory note secured by a mortgage proceded by executory process against the property mortgaged. The defense was compensation and offset. The defendant also proceeding as plaintiffs in injunction, sought to enjoin the sale. There was judgment for plaintiffs and against defendant on the plea of compensation, and. dissolving his injunction.
    Defendant appealed.
    Judgment affirmed.
    H. E. Dawkins, of Farmerville, attorney for plaintiffs, appellees.
    H. C. Fields, of Farmerville, attorney for defendant, appellant.
   ODOM, J.

Our learned brother of the district bench in a well considered written opinion has correctly, we think, set forth the pleadings and the facts in this case as follows:

“Plaintiffs, O. H. Thompson, and G. C. Payne, alleging themselves to be owners of a certain promissory note for three hundred and fifty dollars, with eight per cent per annum interest thereon from maturity— November 1, 1919—and ten per cent attorney’s fee, executed and signed by J. S. Crow, on June 16, 1919, and payable to the order of T. L. and M. Davis, secured by mortgage on forty acres of land situated in Union parish, Louisiana, which act of mortgage is notarial in form, proceeded by executory process against the property mortgaged and gave notice to the debtor that unless the debt was paid within four days the property would be seized, advertised and sold to pay the said note. The note and mortgage are of even date and passed before T. L. Holloway, notary public for Union parish, the note having been paraphed by the officer to identify it with the act of mortgage; the said note and mortgage were subsequently transferred by endorsement by the payees and thus became the property of the plaintiffs herein. The property mortgaged is described as SW% of SE% Section 14, Township 22 North, Range 2 East, with all improvements thereon. Within two days after the issuance of this notice the defendant, J. S. Crow, presented a petition to the court in answer to the same. He acknowledged the execution and signing of the note and mortgage as alleged by plaintiffs, but alleged that he had paid all of the same except the sum of eighteen dollars and ninety-two cents which he alleges he had tendered to counsel for plaintiff after the institution of this suit by executory process, and that same had been refused; whereupon he prayed for a writ of injunction without bond restraining and enjoining the plaintiffs and the sheriff of Union parish from proceeding with the seizure and sale of the forty acres of land mortgaged to secure the payment of the said note.
“The payment pleaded by the defendant in the main suit, who is plaintiff in the injunction, consists of an unliquidated account against T. L. Davis, one of the plaintiffs in the main suit, of five items aggregating the sum of three hundred and fifty-seven dollars and forty cents; the items and amount of each being specifically set forth in the petition for injunction, viz: The price of two bales of cotton sold by defendant to T. L. Davis, $213.40; hauling gravel, $76.00; hauling concrete mixer, five wheel-barrows, one block and tackle from Eros, La., to Marion, La., $40.00; hauling steel cross-beams, $20.00; and the purchase price of a gravel slip sold by defendant to said T. L. Davis, $8.00. Defendant alleges that he was to receive credit for the above amounts on the said note for $350.00, which he alleges was promised him by the said T. L. Davis. He therefore pleads the said account as a liquidated account' in compensation against the aforesaid note and mortgage. The period of time covered by the account runs from March to August, 1921.
“At the outset of the trial, and on defendant being asked to establish his account, which he sought to plead in compensation, counsel for plaintiff objected to testimony to establish the claim upon the ground that an unliquidated account could not be pleaded in compensation against the promissory note sued upon. The objection was overruled and the testimony admitted subject to the objection. This objection and ruling was then made general to similar testimony. Defendant then testified to each and every item of his claim, and his two sons also testified in his behalf relative to some of the items of his claim.
“Plaintiff in rebuttal offered and filed in evidence the deposition of T. L. Davis, taken under commission, in which this witness denied that defendant, J. S. Crow, had ever paid anything whatever upon the note, sued on in this case. He denies the receipt of two bales of cotton claimed as a credit by defendant on the note, but admits that he received one small bale to be applied on defendant’s open account with him that year, and that the cotton was so applied; he denied ever owing the charge of eight dollars for a gravel slip; and as to all the other charges made by defendant he testified that defendant had testified that defendant had been paid in full. All of the items except the cotton were charged for services rendered by defendant to T. L. Davis in the latter’s building operations, in which operations T. L. Davis appears to have had associated with him his nephew, Miles Davis.
“The testimony of Miles Davis is also to the effect that all of defendant’s claims for services in the building operations had been paid, with other claims for labor and materials. Witness T. L. Davis also testified that all of his payments for labor and services rendered to him by defendant were in cash and goods, as desired by defendant; that defendant owed him a considerable amount on open account which he allowed to go out of date for the reason that defendant was not able to pay it, and that it could not be recovered by judgment; that defendant never made any payments of the note, or requested that any amount be credited on it, nor did he mention the note dfter it was given.
“Even if the account of defendant was a liquidated account, and as such pleadable in compensation as against the note sued on, which, under the law, it is not, the evidence to the effect that it has been paid is so strong, and the presumption of its extinguishment is so great, that the court would not be justifiable in allowing it to offset the note sued on by plaintiffs to any extent. The claim is in no sense of the law a liquidated account and as such raised to that rank that the promissory note in the case occupies; and for that reason the plain provisions of the Civil Code, to say nothing of the innumerable decisions of the Supreme Court of this state, deny the holder of the account the right of using it as an offset to the note. .
“But this is not the only reason why defendant cannot legally plead his account in compensation and offset in this case, nor is it the weightiest reason. The note sued on, which defendant endeavors to offset with, an account, appears upon its face to have been given by defendant to ‘T. L. and M. Davis’ as payees, who were evidently partners. Who they were, and if partners, the nature of the partnership does not appear from the testimony or the record of the case; while the testimony of defendant, J. S. Crow, shows unquestionably that T. L. Davis individually owed him the account he endeavors to plead in compensation in this case. And this being true, it would hardly be contended that the individual debt of a partner is pleadable in compensation against a partnership debt. In other words, if Crow owes the partnership of T. L. and M. Davis a sum of money, and T. L. Davis owes Crowe a sum of money, and Crow is sued by T. L. and M. Davis on the said partnership debt, he cannot plead in compensation in such suit his claim against T. L. Davis. See Smith vs. Duncan & Jackson, 1 M. 25; Smith vs. McMicken, 3 La. Ann. 322; Dick vs. Byrne, 7 R. 467. Also citations under Section 19 under head ‘Partnership’ vol. II La. Dig. pp. 183, 184.
“Either of the above two reasons are a sufficient bar to protect the plaintiffs against the plea of compensation sought to be interposed by defendant against the note sued on herein. If, in truth and in fact, T. L.' Davis still owes defendant, J. S. Crow, the debt CroW is seeking to offset the 'note sued on herein, it is exceedingly unfortunate for Crow, for which he himself is alone to blame, in that he took no receipts from Davis and nothing in the way of a written statement to show for the transaction, and in allowing so long a time to elapse—between three and four years— without any action on his claim. It may be that he trusted too implicitly in Davis doing what he says he instructed Davis to do, and what he says Davis agreed to do, and was not aware of the consequences of his neglect. He has slept over his rights with the invariable result.”

We concur in the conclusions reached by him.

Counsel for defendant, after referring to the testimony adduced on the trial, says, in brief:

“It is defendant’s contention that as this note was made in favor of T. L. and M. Davis, and the mortgage recited it was to secure the payment of a note made in favor of T. L. and M. Davis, that the note and mortgage could not be validly transferred without a written assignment, and that there was no evidence on the part of the plaintiff to show any valid transfer of the note. It is well known that when a note is made in blank and endorsed in blank that then it is transferrable without any written assignment, but where the note is made in favor of a certain party and is secured by an act of mortgage in favor of the same party the mortgage and the note cannot be transferred except by written assignment, and that an endorsement of the note under such conditions will not transfer the mortgage.
“We take the position further that as this note was not transferred validly and there was no assignment of the mortgage, that the plaintiffs in this case never did acquire any rights in the mortgage, and, therefore, the court could not order a sale under executory process.”

The negotiable instrument law (Act 64 of 1904) page 147, provides:

“Sec. 30. An instrument is negotiated when it is transferred from one person to another in such manner as to constitute the transferee the holder thereof. If payable to bearer it is negotiable by delivery; if payable to order it is negotiated by the endorsement of the holder completed by delivery.”

The mortgage note sued on is made payable to T. L. and M. Davis and endorsed by T. L. and M. Davis. There is no contention that the note was not delivered to plaintiffs after endorsement.

Section 59 of the same act provides:

“Every holder is deemed prima facie to be a holder in due course; * *

It was therefore not necessary for plaintiffs to submit any further evidence to show a valid transfer. The note was endorsed in blank by the payee who delivered it to the plaintiffs. Plaintiffs being holders in due course had a right to bring suit for its collection. The fact that the note is secured by a mortgage does not change the rule with reference to its negotiability.

The only issue raised in the district court and therefore the only issue before us is whether the note sued on by plaintiffs has been paid and extinguished by compensation. For the purposes of the trial on that issue the holders of the note in due course had a right to use it in evidence and the lower court admitted it for the purpose for which it was offered.

The rule which counsel for defendant invokes is not applicable to the issues before us. The holders of the note sued on were granted a writ of seizure and sale under the note and the mortgage securing it. The question as to whether the judge who granted the order had sufficient evidence on which to base that order is not before the court because there was no appeal from that order.

Counsel for defendant argued orally and in brief that inasmuch as there was no formal written transfer of the note and mortgage the court could not order a sale under executory process.

That point could properly be urged only on appeal from the court’s order. On appeal from such an order the only question is the sufficiency of the evidence to authorize the fiat. But insufficiency of the authentic evidence on which such an order is granted is no ground for an injunction.

See Dupre, administrator vs. Anderson, 45 La. Ann. 1134, 13 South. 743.

In the case of Franec vs. Brewster, 141 La. 1031, 76 South. 187, the court said:

“The only process afforded a defendant for arresting executory proceedings, on the complaint that there Was not sufficient authentic evidence before the judge to authorize the issuance of his fiat, is by an appeal from the order of seizure and sale. And the only remedy for arresting executory proceedings, on grounds not disclosed by the proceedings, is by injunction.”

Citing Article 738 of the Code of Practice and several decisions of the Supreme Court.

Defendant in the case at bar sought to arrest the sale of the property on one of the specific grounds set out in that article of the Code, to-wit: “That he has a liquidated account to plead in compensation to the debt claimed” as set out in paragraph five of his petition for injunction. On that question of fact the court correctly ruled against him.

For the reasons assigned, it is ordered, adjudged and decreed that the judgment appealed from be affirmed, defendant to pay all costs.


author: REYNOLDS, J.

text:
    No. 2485
    Second Circuit
    THE PEOPLES HOMESTEAD & SAVINGS ASSOCIATION v. C. J. ADAMS JOHN J. ADAMS, Inervenor and Third Opponent THOMAS J. JACKSON, Intervenor and Third Opponent SLAGLE-JOHNSON LUMBER CO., Intervenor and Third Opponent
    (December 10, 1925, Opinion and Decree.)

      (Syllabus by the Editor)

    1. Louisiana Digest—Courts—Par. 128.
    Under the Constitution of 1921, Section 10, Article VII, and Act No. 19 of 1912 the Court of Appeal has no jurisdiction of the distribution of a fund of $4005.00 between the owner of a privilege and the judgment creditor. The Supreme Court has jurisdiction of all cases of this type involving more than $2000.00.
    Appeal from the Sixth Judicial District Court of1 Louisiana, Parish of Ouachita, Hon. Percy Sandel, Judge.
    This is a suit in which the plaintiff seized land and improvements under an executory process. The intervenors claim a privilege on the land and improvements. There was judgment in favor of the intervenors and third opponents. The plaintiff appealed. The Court of Appeal being without jurisdiction transferred the case to the Supreme Court.
    McHenry, Montgomery, Lamkin & Lam-kin, of Monroe, attorneys for plaintiff, appellant.
    Hudson, Potts, Bernstein & Sholars, of Monroe, attorneys for intervenors, appellees.
   REYNOLDS, J.

Under executory process in suit No. 12,681 on the docket of the Sixth Judicial District Court of Louisiana in and for the Parish of Ouachita entitled The Peoples Homestead & Savings Association versus C. J. Adams lot No. 12 of Block No. 2 of T. E. Flournoy’s First Addition to the town of West Monroe, Louisiana, was duly seized and sold according to law, the land and the improvements thereon being appraised and sold separately, the land for $500.00 and the improvements for $3505.00.

Slagle-Johnson Lumber Company, Inc., filed a petition of intervention and third-opposition in the suit in which it set up that it had sold and delivered to C. • J. Adams building material of the value and at the price of $1054.53 for use in improving and actually used by him in improving the property so seized and sold; that it had duly registered in the office of the recorder of mortgages of Ouachita parish its claim of a privilege on the property to secure the payment of the debt, and demanded to be paid the amount of its claim with legal interest thereon from February 11, 1924, by preference over the seizing creditor and all other creditors of C. J. Adams.

The Peoples Homestead & Savings Association filed an answer to the intervention and third-opposition of Slagle-Johnson Lumber Company, Inc., putting • the allegations of its petition of intervention and third-opposition at issue.

The case was tried upon a written agreed statement of facts.

The district court rendered judgment in favor of the intervenor and third-opponent Slagle-Johnson Lumber Company, Inc., for the sum of $1054.53 with legal interest thereon from February 11, 1924, until paid, and ordered the judgment paid out of the proceeds of the- property seized and sold by preference over all creditors and particularly the Peoples Homestead & Savings Association, and that the defendants pay all costs.

From this judgment The Peoples Homestead & Savings Association has appealed.

OPINION.

The fund to be distributed is $4005.00, and, under Section 10 of Article VII of the Constitution of 1921 this court is without jurisdiction; and under Act No. 19 of 1912 the case must be transferred to the Supreme Court to be there proceeded with as it had been appealed to that court in the first instance.

It is therefore ordered, adjudged and decreed that this case be transferred to the Supreme Court of the State of Louisiana.


author: ODOM, J. CARVER, J.

text:
    No. 1922
    Second Circuit
    BODCAW LUMBER COMPANY OF LOUISIANA v. THE PARDEE COMPANY
    (October 21, 1925. Opinion and Decree.)
    (December 10, 1925. Rehearing Refused.)

      (Syllabus by the Editor.)

    ON THE PLEA OF ESTOPPEL.
    1. Louisiana Digest—Estoppel—Par. 2, 31.
    The fact that the plaintiff claims that the land is wild and in the possession of no one at the time that the suit is brought does not estop him from showing that the land has been cultivated or in the possession of someone in the past.
    2. Louisiana Digest—Laws—Par. 70; Petitory and Possessory—Par. 73, 77.
    The only purpose of Act No. 38 of 1908 is to permit suit to test title to real estate in which no one is in actual possession; because under the Code of Practice, where no one is in actual possession there is no provision for the bringing of suit to test the title to land.

      ON EXCEPTION NO CAUSE OP ACTION.
    3. Louisiana Digest—Sales—Par. 279.
    The fact that Act No. 38 of 1908 contains the wording “and the judge shall decide which of the claimants are the owners of the land in dispute”, does not thereby prevent plaintiff’s vendor and warrantor from intervening for the purpose of maintaining plaintiff’s title.
    ON THE PLEA THAT THE INTERVENTION GAME TOO LATE.
    4. Louisiana Digest—Appeal—Par. 564, 565, 566.
    Where the defendant did not object to an intervention that was filed on the day that the case was put on trial, he cannot make his objection for the first time in the Court of Appeal.
    ON THE MERITS.
    5. Louisiana Digest—Possession—Par. 5.
    Possession of a part of land under a title to the whole land and intention- to possess the whole is possession of the whole.
    6. Louisiana Digest—Prescription—Par. 20.
    Under Civil Code Articles 3492, 3443 and 3444 one who takes physical possession of land under a title translative of property is presumed to have continued possession until the day on which he sold. Therefore, he has sufficient to give him a good title by prescription of ten years if he sells more than ten years after taking possession.
    ON APPLICATION FOR A REHEARING.
    7. Louisiana Digest—Sales—Par. 279.
    Articles 389 and 390 of the Code of Practice clearly give the vendor and warrantor of land in dispute in a suit brought under Act No. 38 of 1908, the right to intervene for the purpose of maintaining his vendee’s title, even though the vendor and warrantor does not claim ownership or possession of the land in dispute.
    8. Louisiana Digest—Prescription—Par. 1.
    The articles of the Civil Code which treat of prescriptive titles to real estate are unaffected by Act No. 38 of 1908 which gives one the right to sue for title to real estate where no one is in possession at the time suit is brought.
    Appeal from Third Judicial District Court of Louisiana, Parish of Bienville, Hon. J. E. Reynolds, Judge.
    This is a suit brought under Act 38 of 1908 in order to have the plaintiff declared the owner to certain wild land of which no one has .the actual physical possession. There was judgment for plaintiff, who was declared to be the owher of the land in dispute and defendant appealed. In the Court of Appeal the defendant filed a plea of estoppel and an exception no cause of action.
    Plea of estoppel and exception no cause of action overruled and judgment of the lower court affirmed.
    Henry Moore, Jr., and White, Holloman & White, of Alexandria, attorneys for plaintiff, appellee.
    Hawthorn and Stafford, of Alexandria, attorneys for defendant, appellant.
   ODOM, J.

This suit is brought under Act No. 38 of 1908. Plaintiff alleges that it is the owner of SE*4 of SW% of Section 35, Township 16 North, Range 8 West, situated in Bienville parish and sets out its chain of title thereto. It alleges that the defendant erroneously claims to own the same property, and it is alleged

“said property*is wild land, nobody is in actual physical possession thereof, and petitioner is entitled to judgment adjudicating it to be the owner under the provisions of Act No. 38 of 1908 of the Legislature of Louisiana.”

And it is further alleged:

“Plaintiff is obliged to commence judicial proceedings against defendant, and has notified its vendor, Stephen L. Norman, of this action which it is commencing, and has called on him to conduct this suit, and reserves the right to sue him for an indemnification in case plaintiff fails herein.”

It prays for judgment decreeing it to be the owner of the land described and that its rights against its vendor, Stephen L. Norman, be reserved, and that its right to amend and claim the value of timber cut and, removed from the land, if any, be reserved.

Defendant, in answer, denied that plaintiff owns the land described for various reasons especially set but which we do not deem it necessary to mention under the view which we have taken of the case, but it admits that it claims to own the land described in plaintiff’s petition and admits the land is not now in the possession of anyone. It also admits that it has cut and' removed some timber from the land and expresses willingness to pay for same in case plaintiff should be adjudged the owner of the land.

This answer was filed on September 15, 1922.

The 'case was set down to be tried on Monday, November 20, 1922, and on that day Stephen L. Norman, plaintiff’s vendor, filed in court what he styles a petition of intervention setting out that he had sold the land in dispute with other land to the plaintiff in the case under a warranty deed and that as such warrantor he was interested in the result of the case and therefore had a right to intervene and set up the title under which he held together with his possession and that of his vendor’s and he joins the plaintiff in this suit and, adopts as his allegations all the allegations of the plaintiff’s petition and adopts the chain of title set up by the plaintiff in article four of its petition; and in addition thereto sets out that in 1899 he' purchased the land from W. M. Cloud and wife and went into possession of the said property by clearing and fencing a portion thereof and that said Cloud, his vendor, had likewise exercised ownership thereof by building a house thereon and that they transferred their possession to him; and he alleges possession by all the various owners of the land back to the government and introduces a plea of prescription of ten years in bar of defendant’s right and in aid of his own title.

He prayed that plaintiff be decreed owner of the land in dispute.

There was judgment for the plaintiff decreeing it to be the owner of said property and entitled to the posession thereof, and defendant appealed.

In this court the defendant has filed a plea of estoppel and an 'exception of no cause of action.

ON THE PLEA OF ESTOPPEL.

Counsel for defendant earnestly and quite strenuously urge that inasmuch as this suit was brought under the provisions of Act No. 38 of 1908 which is an act

“* * * to authorize the institution of suits to establish title to real estate where none of the parties are in actual possession of the same”

and inasmuch as plaintiff has alleged that “said property is wild land, nobody is in actual physical possession thereof” which allegation was specifically adopted by the warrantor, they are estopped from showing on the trial that any one ever had possession of the said land, on the ground that they cannot be heard to dispute their judicial allegation.

In other words, as the plaintiff and its warrantor have judicially admitted that the land is not now occupied they cannot now introduce proof of previous possession in order to support warrantor’s plea of prescription.

We do not think counsel’s position well taken.

The fact that the land is now wild and is not now in the actual corporeal possession of anyone by no means implies, as we see it, that the land has always been wild and that no one has ever occupied it.

We know from experience and observation that there are thousands of acres of land in this country which at the present time are not physically occupied by anyone, are covered with second growth timber, but which lands at one time were in cultivation.

Act No. 38 of 1908 authorizes suits to test title between claimants where none of the parties are in actual possession of the land; which means, of course, possession at the time the suit is brought.

Under that act a suit may be brought to test title to a piece of land on which a residence is situated if no one is actually occupying it and in possession thereof; and in order to set out a cause of action the plaintiff must allege that the real estate is not in possession, of anyone. Surely in making such an ■ allegation he would not preclude himself from proving previous occupancy as a basis of prescription in support of his title.

The passage of Act 38 of 1908 was made necessary on account of a peculiar condition brought about by the provisions of the Code of Practice with reference to possessory and petitory actions.

Under the Code a claimant of real estate cannot bring a possessory action unless .he has actual possession and cannot bring a petitory action unless the other claimant is in actual possession.

Therefore if no one was in possession there could be no suit to test title prior to the passage of Act 38 of 1908.

The only purpose of the act, as we see it, was to permit suits to test title to real estate in cases where no one is in actual possession.

But that act did not change the laws with reference to land titles nor alter in any respect the rules of procedure with reference to the establishment of the claim of either litigant in a judicial proceeding.

When suit is brought under Act 38 of 1908 the door is open to either claimant of the land to introduce any relevant testimony in support or aid of his title and as prescription is one of the modes of acquiring title to real estate either claimant may show previous possession of the property in support of his title.

If counsel’s position be correct, the only testimony legally admissible in a suit of this kind is record evidence. Therefore a title based on prescription of thirty years could not avail a claimant unless someone were in actual possession of the land.

So it would be a remarkable rule, indeed, which would say to a claimant of land not actually'possessed by anyone, that in order to get into court to assert his claim he must allege that the land is not now occupied, and then to say to him that inasmuch as he has alleged that the property is unoccupied he cannot prove his title.

The plea of estoppel is overruled.

ON EXCEPTION OF NO CAUSE OP ACTION. -

This exception is levelled at the intervention of Norman, plaintiff’s vendor and warrantor. Counsel for defendant contend that under Act 38 of 1908 no one can be heard or permitted in the suit except the claimant of the land, and that inasmuch as Norman does not set up title in himself but specifically alleges that the plaintiff owns the land, he must be dismissed from the suit.

They call attention to the wording of the act itself—

“and the judge shall decide which of the claimants are the owners of the land in dispute”

and contend that all parties who are not claimants are barred.

They also cite the case of Fortner’s Heirs vs. Good Pine Lumber Co., (Mrs. Ezell, intervenor) 146 La. 11, 83 South. 319.

The cited case is no authority for dismissing the intervenor from this case.

In that case Mrs. Ezell intervened, set up title in herself and asked judgment against both plaintiff and defendant decreeing her to be the owner of the property.

The court held that under Act 38 of 1908 the issues must be tried out as between the plaintiff and defendant, and Mrs. Ezell’s intervention was dismissed on the ground that she claimed title in herself as against both plaintiff and defendant, thereby changing the issues entirely.

In the case at bar, Norman is the plaintiff’s vendor and warrantor. The plaintiff notified him of the action which it had brought against the defendant and called •on him to conduct the suit. He therefore came in not as an outsider but joined plaintiff to maintain the title which he had conveyed and warranted. In a sense he is the real plaintiff in the suit. He is an intervenor in the suit, but he has joined the plaintiff and has raised no new issue but has asked that the plaintiff’s title be maintained.

By coming into the suit after having been notified, he had become a party to the suit and while he is not a claimant of the land he has an interest in seeing the plaintiff’s title upheld and he joins plaintiff in the suit for that purpose. His interest did not change the issue involved which 'is, whether plaintiff has a better title to the land than defendant.

The intervention of Mrs. Ezell in the Fortner case, supra, changed the issues altogether, as she set up title in herself as against both plaintiff and defendant.

The exception of no cause of action is overruled.

ON THE PLEA THAT THE INTERVENTION CAME TOO LATE.

As has already been stated, the intervention of Norman was filed on the day the case was put on trial. Counsel for defendant urge before us that it was manifestly unfair to defendant to permit the intervenor to come into the ca,se on the day of the trial and introduce proof of previous possession of the land in dispute in order to sustain his plea of prescription when neither the petition nor the answer raised any issue under which such testimony was admissible and that defendant was taken by surprise and had no opportunity to rebut intervenor’s evidence.

A reading of the record fails to disclose that counsel for defendant offered any objection to going to trial ■ or that they objected to the evidence offered by intervenor. They did not, so far as this record discloses, plead surprise and ask that the case be postponed in order that they might prepare to rebut whatever evidence of previous possession intervenor might bring on. Had they pleaded surprise and asked for time the trial judge would no doubt have granted it. Not having made their plea in the lower court it will not avail them here.

ON THE, MERIT'S.

The land in controversy was entered by James R. Kolb from the United States on January 16, 1851, under private cash entry, which entry was carried to patent on October 1, 1852.

The plaintiff owns said land under an unbroken chain of title from the entryman Kolb.

The same land was selected by the state of Louisiana as swamp land on November 4, 1850, under the swamp land act or Congress of March 2, 1849, and the selection was approved—

“so far as not claimed or held by individuals”

on May 6, 1852.

The State of Louisiana granted the same land to Calvin Pardee under patent dated May 21, 1890, and Calvin Pardee sold it to the defendant company on December 6, 1907.

There are various points raised in the pleadings and briefs with reference to the respective record titles of the plaintiff and defendant, but under the view which we take of this case it is not necessary for us to pass upon the issues raised.

The land in question was purchased by S. L. Norman, the plaintiff’s vendor and warrantor, from W. M. Cloud and wife, Prances Middleton, under a warranty deed dated September 23, 1899, recorded January 16, 1900.

The testimony satisfied us that the purchaser, Norman, within a very short time after his purchase went into actual physical possession of the land by clearing about ten or fifteen acres and by fencing about twenty or twenty-five acres thereof, and that following his fencing and clearing of the said property he actually cultivated it for a period of three years immediately thereafter.

It seems that he did not continue to cultivate this land but lived in the community until about 1912 or about the time he sold the property to the plaintiff in this case. As stated, there is no testimony that he occupied this property physically after he ceased to cultivate it during the three years immediately following his purchase thereof, but there is testimony which indicates that he never at any time intended abandoning the property or that he in fact gave up possession thereof. He says that for ten years after he purchased the property the clearing and the fences which he made thereon were still there.

He sold this property to the Bodcaw Lumber Company, the plaintiff in this case, under warranty deed dated March 20, 1912, and recorded March 23, 1912, and transferred to that company the possession which he had.

By reference to the deed from W. M. Cloud and wife to Norman it will be noted that there was 160 acres of land included therein. Norman as a witness in his own behalf was not quite certain that the clearing which he had made was in the particular forty acres of land in controversy, although he thinks that a portion of the clearing that he made was on that forty.

However, there seems to be no question but that the clearing which he made was on some portion of the 160 acres which he bought from Cloud and as stated we think it reasonably clear that a portion of the clearing was on that particular subdivision in controversy in this suit.

Norman states, though, that he is quite positive that Cloud had built a house on the particular subdivision in question and was living in the house just prior to the time that he sold it to him.

It is clear, therefore, that a part of the land in controversy was in the actual, physical possession of Norman and his authors in title in 1899, more than ten years prior to the date on which Norman sold to plaintiff.

Possession of a part under title to the whole is possession of the whole.

Brown vs. Broussard, 43 La. Ann. 962, 9 South. 911; Railsback vs. Leonard, 118 La. 916, 43 South. 548; Louisiana Land Co. vs. Blackwood, 131 La. 539, 59 South. 984.

Norman having taken physical possession in 1899, he is presumed to have retained possession until the day on which he sold —a period of more than ten years.

Civil Code, 3492, 3443, 3444.

Under the law and testimony we are satisfied that, regardless of any question as to whether the plaintiff has a better record title to the land than defendant, Norman’s title was a good one by prescription and that he conveyed a perfectly good and valid title to the plaintiff.

This view dispenses with the necessity of passing upon the various questions which these litigants have raised with reference to the record title.

For the reasons assigned, it is therefore ordered, adjudged and decreed that the judgment appealed from he affirmed with costs.

Reynolds, Judge, recused.

ON APPLICATION FOR REHEARING.

CARVER, J.

Defendant’s able counsel apply for a rehearing, alleging various errors in our opinion. They file an ingenious brief in support of the application, most of which is merely a re-argument of matters fully covered in our original opinion, as to which we deem it unnecessary to add anything further. They particularly complain that we erred in misconstruing and refusing to follow the decision of the Supreme Court in the case of Fortner’s Heirs vs. Good Pine Lumber Co., 146 La. 11, 83 South. 319. They say that in that case Mrs. Ezell’s intervention was dismissed not as said by us because she changed the issues by claiming ownership but because she changed them by claiming possession; that therefore Norman’s intervention in this case should have been dismissed because he, too, claims possession and not ownership; that by allowing the Norman intervention we broadened the scope of Act 38 of 1908 which provides for confining the litigation to parties with recorded titles; and that we particularly erred in saying that one claiming title by thirty years’ prescription could be a party to a suit under that act.

What we said about one claiming title by thirty years’ prescription was said arguendo; was not necessary to a decision of the case, and if erroneous does not invalidate the conclusion arrived at.

However, we think the act available to anyone having a recorded title, even though his vendor held only by thirty years’ prescription.

It is true that in the Fortner ease Mrs. Ezell’s intervention was dismissed because she claimed to be in possession of the land, but the possession meant was possession at the time of filing the intervention and not possession at any previous time. The reason given for the dismissal on account of possession was that such possession brought Mrs. Ezell’s case within the principles of the petitory or possessory action, the court holding that Act 38 of 1908 was available only to and against parties then out of possession.

The Fortner case would be in point if Norman had come into the suit claiming to own the lands himself and alleging that he .was then in possession of them; but he does not do that; he intervenes to maintain the title conveyed to plaintiff with warranty and does not allege ownership in himself or present possession either in himself or in plaintiff.

There is nothing in the Fortner case or in the act which either gives or denies to a third person not claiming present' possession the right to intervene if he has an interest in doing so; but such right is clearly given by Articles 389 and 390 of the Code of Practice which reads as follows:

“An intervention or interpleader is a demand by which a third person requires to be permitted to become -a party in a suit between other persons, by joining the plaintiff in claiming the same ' thing, or something connected with it, or by uniting with the defendant in resisting the claims of the plaintiff, or, where his interest requires it, by opposing both.”
“In order to be entitled to intervene, it is enough to have an interest in the success of either of the parties to the suit, or in interest opposed to both.”

Counsel also contend that Act 38 of 1908 limiting suits under it to parties out of possession eliminates all questions of possession and prescription and requires the court to decide cases brought under it on the respective merits of the recorded titles alone.

We cannot agree with this view. The act does not purport to do anything more than afford to claimants under recorded titles an opportunity to test their respective claims when at the time of the suit the land is not in the actual possession of either party. It relates only to procedure and not to substantive rights, which rights are governed wholly by other laws. Amongst these laws are those relating to prescription and the possession necessary to support it. The possession mentioned in the act is possession at the time á suit is brought under it and not any previous possession which may have converted a poorer into a better title by prescription. The articles of the Civil Code treating of this possession and prescription in our opinion remain Wholly unaffected by Act 38 of 1908.

Counsel also ask us to re-examine the case of McHugh vs. Albert Hanson Lumber Co., 129 La. 680, 56 South. 636. We have done so but do not find anything in that case contrary to the view herein expressed.

Rehearing refused.


text:
    No. 1923
    Second Circuit
    THE PARDEE COMPANY v. BODCAW LUMBER COMPANY OF LOUISIANA
    (October 21, 1925, Opinion and Decree)
    (December 10, 1925, Rehearing Refused)

      (Syllabus by the Editor.)

    1. Louisiana Digest—Pleading—Par. 54, 62.
    An exception of no cause of action may be filed at any time even in the Appellate Court.
    2. Louisiana Digest—Sales—Par. 279.
    Under Article 384 of the Code of Practice the warrantor “may plead every exception in defending the case which the defendant might have pleaded, even such as are personal to the defendant”. Therefore, the warrantor in a suit brought under Act 38 of 1908 may plead defenses which the defendant did not plead in order to defeat plaintiff’s action.
    3. Louisiana Digest—Prescription—Par. 20.
    Under Articles 3442, 3443 and 3444 of the Civil Code, in order to acquire property by ten years’ prescription the purchaser, more than ten years before, must have had actual physical posses- . sion under title translative of property and in good faith, but it is not necessary for his vendee to have actual possession also because “possession once acquired may be preserved by the mere intention of the possessor”. Civil possession of his vendee is sufficient.
    4. Louisiana Digest—Timber—Par. 15.
    One who sold timber on land belonging to another must pay the owner the value of such timber, cut and removed from the land.
    5. Louisiana Digest—Estoppel—Par. 2, 31.
    Defendant, having admitted that the land is in the possession of no one, is not nor are his warrantors thereby estopped from introducing proof of previous possession.
    Appeal from First Judicial District Court of Louisiana, Parish of Bienville. Hon. J. R. Reynolds, Judge.
    This is a suit to test title to real estate under Act 38 of 1908. Defendant called his vendor in warranty.
    There was judgment for defendant granting him title to the land and the value in money of the timber cut and removed from it.
    Plaintiff appealed.
    Judgment affirmed.
    Hawthorn & Stafford, of Alexandria, attorneys for plaintiff, appellant.
    White, Holloman & White, of Alexandria, attorneys for defendant, appellee.
   ODOM, J.

This is a suit to test title to real estate under Act No. 38 of 1908.

Plaintiff, the Pardee Company, alleges that it is the owner of southwest quarter of northeast quarter and southeast quarter of northwest quarter of Section 24, Township 16 North, Range 9 West, situated in the parish of Bienville.

Plaintiff sets forth that it acquired the property on December 6, 1907, from Calvin Pardee, and that Calvin Pardee acquired it on June 16, 1890, by patent from the state of Louisiana, and that the land was granted to the state of Louisiana by the United States under the swamp land act of Congress of 1849, the selection having been made by the state of Louisiana on November 4, 1850, and approved May 6, 1852.

Plaintiff sets out that said property is being claimed by the Bodcaw Lumber Company of Louisiana and that nobody has been in actual possession thereof.

It asks that it have judgment in its favor and against the defendant, decreeing it to be the owner of the land and entitled to possession thereof.

The defendant answered, admitting its. claims to the land and setting up title in itself by a chain of title from Roland L. Horne, who is alleged to have entered the land from the United States by cash entry on January 26, 1851.

Defendant admitted plaintiff’s allegation to the effect that nobody has been in actual physical possession of the land.

Defendant alleged that it purchased said land from Thomas J. Lawhorn, a resident of Bienville parish, and called said Lawhorn in warranty.

The warrantor came into court under defendant’s call and adopted the defendant’s allegations insofar as its ownership was concerned, but denied the allegation with reference to possession of the land and set up that he and his vendors have been in actual physical possession of the land described in plaintiff’s petition from the time it was entered from the United States government by Horne down to the present time, and asked that plaintiff’s demands be rejected and that defendant be decreed the owner of the land and entitled to possession thereof.

It is alleged by defendant and not denied by plaintiff that a certain amount of timber had been cut and removed from the land by authority of the plaintiff company.

There was judgment in the District Court in favor of defendant, decreeing it to be the owner of the land in dispute and entitled to the possession thereof and for $1443.79, value of the timber admitted to have been cut and removed from the land.

From this judgment the plaintiff has appealed.

In this court the plaintiff has filed an exception of no cause of action to the answer of the warrantor, based, as we understand it, on the proposition that in an action brought to test title under the provision of Act No. 38 of 1908 no one has the right to be heard except those who are actual claimants of the land in dispute.

A considerable portion of plaintiff’s brief is devoted to the question as to whether an exception of no cause of action may be filed in an appellate court. We do not think it necessary to discuss that point for the reason that we think it settled that an exception of that kind may be filed at any time, even in this court. In fact, this point, as we understand it is practically conceded by counsel for both the defendant and warrantor.

The main contention of counsel for plaintiff with reference to the appearance of the warrantor in this suit is that under the provisions of Act No. 38 of 1908 no party except the actual claimant of the land at the time the suit is filed has a right to file any pleadings in the case or make any appearance whatsoever therein.

Counsel for plaintiff devote the greater portion of their argument and their brief to a discussion of this question. In support of their contention on this point they cite the case of Fortner’s Heirs vs. Good Pine Lumber Co., (Mrs. Ezell, Intervenor), 146 La. 11, 83 South. 319.

We shall not enter into a full discussion of this point for the reason that in the case of Bodcaw Lumber Co. vs. The Pardee Company, 3 La. App. 162, 169, on the docket of this court, which is a companion case to this one, we have already discussed the question fully. We will state, however, in this connection that we do not consider counsel’s point well founded. The court in the Fortner case held that Mrs. Ezell, the intervenor therein, had no standing in court; but the facts in that case were quite different from those in this case.

In that case Mrs. Ezell intervened in the suit, setting up title in herself, claimed to be the owner of the property, and asked for judgment decreeing her to be such owner, and opposed both the plaintiff and defendant. By doing so she changed the issues in the case entirely, and the court held that inasmuch as Act No. 38 of 1908, under which the suit was brought, provided for the testing of title as betw'een the claimants of the land, the intervenor had no standing in the case.

In the case at bar the warrantor has not intervened in the suit, setting up title in himself, but has done what the law provides he shall do in all cases where a vendor and warrantor is called in warranty in a suit.

Article 384 of the Code of Practice provides that:

“The warrantor thus cited is bound to appear before the court in which the principal demand has been instituted even when he resides out of its jurisdiction in order to defend the suit for the defendant; he may plead every exception in defending the case which the defendant might have pleaded, even such as are personal to the defendant.”

And it has been held that he may make any defense which he has tending to defeat the plaintiff’s action.

We are therefore of the opinion that plaintiff’s exception of no cause of action is not good.

For a discussion of this question, see our opinion in the case of Bodcaw Lumber Company vs. The Pardee Company, 3 La. App. 162, 169, supra.

Another point which is specially pressed by counsel for plaintiff is that the warrantor, even when admitted in the suit, is not permitted to urge any defenses not urged by the defendant himself; and that inasmuch as it was admitted in the answer of defendant that nobody has been in actual possession of the land in question, the warrantor cannot prove possession in order to make out his title.

That contention is answered by the article of the Code of Practice quoted above which provides that the warrantor may plead exery exception in defending the case which the defendant himself might have pleaded, even such as are personal to the defendant.

With reference to the allegation of the plaintiff that the property involved' is “wild land, that nobody has been in actual physical possession thereof”, which allegation is admitted by the defendant, we think counsel for plaintiff are in error in their construction or interpretation of the meaning of that allegation.

Plaintiff argues that the above quoted allegation means that no one has ever been in possession of said land. We do not Interpret the allegation to mean that. We think that clause should be construed in connection with the act under which the suit was brought. Under that act it is not necessary to allege that no one has ever been in possession .of the land but only that no one is in actual possession thereof at the time of the suit. In the'light of what is necessary to be alleged in order to bring the action under the act, we interpret plaintiff’s allegation to mean that nobody is or was in possession of the land at the time suit was filed. We have no doubt that is the construction counsel for defendant placed on it. Hence their admission in the answer.

Under our interpretation of the allegation and the admission which was made by counsel for defendant, we are of the opinion that the allegation of the warrantor with reference to possession and the proof administered by him in support of the title inured to the benefit of the defendant.

Under the view which we take of this case, it is not .necessary for us to decide the question presented with reference to the record title under which the plaintiff and the defendant claim. We have reached the. conclusion that the title of the defendant is good by prescription.

John and Sam Holmes, two colored men, purchased the land in question from William Ricks under a warranty deed dated July 29, 1903, which deed was duly recorded.

William Ricks, who sold to Holmes, purchased the land from E. B. Lassiter under title translative of property, which was duly recorded in Bienville parish.

The testimony shows that Holmes, who purchased from Ricks in 1903, went upon the land shortly after they purchased it, rebuilt an old house which they found there, cleared and fenced some twenty or twenty-five acres of it and cultivated it for some three or four years.

Taking the date of the passage and recordation of the deed from William Ricks to Holmes, or July 3, 1903, as the beginning of the prescriptive period, we find the land in 1903 in the actual physical possession of purchasers under title translative of property whose good faith is presumed and in fact is not challenged.

They possessed as owners and in good faith under tbeir title until February 5, 1908, when- they sold back to Ricks under notarial act duly recorded.

That the possession of the land by Holmes was sufficient to start the prescription of ten years is not questioned.

They transferred the ownership and possession of the land to Ricks; Ricks in turn transferred the ownership and possession to Lawhorn on September 9, 1909, and Law-horn to the defendant on March 17, 1910.

The record does not show affirmatively that either Ricks or Lawhorn or the defendant took corporeal possession of the land upon their respective purchases, but-that was not necessary; they had civil possession, which was sufficient.

In the case of Wilcoxen vs. Rogers, 16 La. 10, the court said:

“Although Foster did not, perhaps, continue to have corporeal possession of the land after his purchase, he possessed it civilly animo domini and' by virtue of a title sufficient to transfer the property.”

Article 3442 of the Civil Code provides that:

“When a person has once acquired possession of a thing by the corporeal detention of it, the intention which he has of possessing suffices to preserve the possession in him, although he may have ceased to have the thing in actual custody, either himself or by others.”

In the ease of Miller vs. Albert Hanson Lumber Co., 130 La. 666, 58 South. 502, the court said:

“Possession once acquired may be preserved by the ■ mere intention of the possessor.”

Article 3443 of the Civil Code provides:

“This intention of retaining possession is always supposed, where a contrary intention does not appear decidedly; so that, although a person may have abandoned the cultivation of his estate, he shall not therefore be presumed to have abandoned the possession, but shall he presumed, on the contrary, to have the intention of retaining it, and shall retain it in fact.”

And Article 3444 of the Civil Code provides :

“To retain the possession of a thing when a man once has it, it, is not even necessary that he should have such positive intention; a negative intention suffices, that is, it suffices that the positive intention, which he had in acquiring the possession, shall not have been revoked by a contrary intention for, so long as this revocation does not take place, the possessor is supposed always to retain his first intention, unless a third person has usurped or taken from him the possession, or he has failed to exercise an actual possession for ten years.”

There is no suggestion or intimation that any of the parties who held under Holmes did not intend to retain possession.

More than ten years elapsed between the date on which Holmes went into corporeal possession of this property as owner and in good faith under title translative of property and the date on which this suit was filed.

We, therefore, hold that defendant’s title to the land in question is good.

On the other branch of the case, that is, with reference to the value of the timber which was cut and removed and the plaintiff’s liability therefor, there is no dispute.

The plaintiff sold the timber on the land to the Mansfield Hardwood Lumber Company. That company cut and removed the timber, amounting in value to $1443.79. As plaintiff does not own the land it follows, of course, that it must reimburse defendant that amount.

For the reasons assigned, it is therefore-ordered, adjudged and decreed that the judgment appealed from be affirmed with costs.

ON APPLICATION FOR REHEARING

CARVER, J.

Plaintiff’s counsel earnestly urge that a rehearing should be granted herein. Many of the reasons advanced are the same as those disposed of in the opinion this day handed down in the case of Bodcaw Lumber Company of Louisiana vs. The Pardee Company. In that case the Bodcaw Lumber Company, vendor and warrantor, intervened to maintain its title. In this it is called in warranty, and the record does not show that plaintiff made any objection to the call in the lower court. On the trial, though, after plaintiff and defendant had both closed, the record shows as follows:

“The warrantors offer in evidence deed from E. B. Lassiter to Wm. Ricks, dated July 10, 1891, as recorded in Book ‘CC’, page 215, on October 21, 1891. Also offer in evidence.
“Objection. Counsel for plaintiff objects to all the testimony offered by the warrantor inasmuch as it affects the plaintiff as it is admitted by the defendant that no one is in possession of this property.”
“Ruling. Objection is referred to the effect of the evidence; evidence admitted subject to objection; objection and ruling made general.”

In this court plaintiff filed an exception that the warrantor had no cause of action or interest in the suit. In this pleading it alleged, in Article 1, that it had filed its suit alleging “that the property was wild land and in the possession of no one”; and, in Article 2, “that defendant answered admitting that the land was wild, vacant land, and in the possession of no one”.

What the petition really alleged was as follows:

“(5)

“Your petitioner further represents that the said property is wild land; that nobody has been in the actual, physical possession thereof, and that it is ■ therefore entitled to have judgment adjudicating it to be the owner, under provision of Act 38 of 1908.”

The answer of defendant admitted the allegations of Article 5.

I.

Plaintiff's exception in this court that the warrantor’s answer set forth no cause of action and that he had no interest in the suit is cleárly without merit.

As to a cause of action, he was not propounding any but was defending against the plaintiff’s demand. He had a clear interest in doing this, because if defendant’s title was not good he was obliged by his warranty to refund the price he had received.

Act 38 of 1908 does not either give or deny to a defendant the right to call his warrantor to defend the suit, but if he has not the right his effort to do so should be challenged in the lower court and it is too late to do so on appeal.

It is true that when the warrantor offered evidence the plaintiff objected, but he did not do so on the ground that the call in warranty was not permissible but solely on the ground that defendant had admitted that no one was in possession of the property.

II.

Plaintiff’s counsel also urge that we have erred in construing defendant’s admission as meaning only that no one is now in possession; that the words “has been” clearly relate to the past; and that what the allegation and admission really meant is that no one has ever been in possession; wherefore, no testimony of past possession was admissible.

■ Taking the most, technical view, there is certainly some difference between “has been” and “has ever been”, and plaintiff, in contending for “has ever been” is going somewhat beyond the allegation as made and admitted.

In construing pleadings, though, as well as contracts and laws, the niceties of grammar are not of controlling importance.

We are satisfied, for the reasons stated in .our original opinión, that defendant’s admission does not go to .the- extent claimed by plaintiff. Prom the objection to testimony above quoted that “it is admitted by the defendant that no one is in possession” and the allegations made in the pleadings filed by plaintiff in this court and above quoted, it would seem that plaintiff’s counsel then regarded the ■ allegation in Articled of the petition and defendant’s admission of its truth as amounting to what we have construed them to mean.

Counsel further urge that pleadings are to be construed most strongly against the pleader. This is probably correct, - as to pleadings where the language is selected by the pleader; hut if the doctrine were applied in this case it would destroy itself. The plaintiff made the allegation and under the doctrine the pleading would have to be taken most strongly against it. The defendant merely admitted it and if by reason of his admission we are to take the admission of the allegation most strongly against the admittor, we would be giving different meaning to the same words.

Counsel argue that as defendant has not shown any actual possession of the property for the ten years preceding the suit, Article 3444 of the Civil Code forbids indulgence of any presumption that it retains the intention to possess the property. They cite Albert Hanson Lumber Co. vs. Riggs Cypress Co., 130 La. 772, 58 South. 567, as follows:

“The deadening of some timber in 1898, which was never removed, seems to be the only act of real possession performed by the Hanson Company. The extent of this possession is not shown with any degree of certainty; and the intent to retain possession is not presumed, where one ‘has failed to exercise an actual possession for ten years’. C. C. 3444.”

This contention is disposed of by the ruling in the case of Miller vs. Albert Hanson Lumber Co., 134 La. 231, 63 South. 883, in which the court says:

“Counsel for defendant cites Article 3444 of the Civil Code, under the title ‘Of Possession’, to the effect that the possessor is supposed to retain always his intention to retain possession, unless a third person has usurped or taken from him the possession, or he has failed to exercise an actual possession for ten years. (Italics ours.) This last clause has no application to cases of possession in good faith, under color of title, where such possession was corporeal in the beginning. Such a case is governed by Article 3478, et seq., relative to the prescription of ten years.
“Even in the case of the prescription of thirty years, based on the corporeal possession of immovables, without title or good faith, it is provided that such possession may be preserved by external and public signs, announcing the possessor’s intention to preserve the possession of the property, as the keeping up of roads, and levees, the 'payment of taxes, and other simliar acts. In Leonard vs. Garrett, 128 La. 534, 54 South. 984, this court held that civil possession follows possession by occupancy until ousted by adverse actual possession. It follows that the last clause of Article 3444 is not applicable to possession under a just title, where it has been preserved by external and private signs as provided in Article 3501. The last clause of Article 3444- may find its application in cases where possessors, without color of title, have not preserved their possession as provided in Article 3501.
“The ease of Albert Hanson Lumber Co., 130 La. 772, 58 South. 567, was a possessory action, in which the plaintiff failed to show actual possession.”

Rehearing refused.


author: CARVER, J. ODOM, J.

text:
    No. 2481
    Second Circuit
    JOHN SHARP PRICE v. GILLILAND OIL COMPANY
    (November 4, 1925, Opinion and Decree.)
    (December 17, 1925, Rehearing Refused.)

      (Syllabus by the Editor-.)

    1. Louisiana Digest—Master and Servant —Par. 159, 159 (a).
    The plaintiff, an injured employee, suing for compensation under the Workmen’s Compensation Law, Act No. 20 of 1914 proved that although the fractured bone in his foot had completely healed there remained a tilting which caused pains when he stood up and tried to walk. Therefore he has a right to compensation for total disability to do work of any reasonable character under Section 8, Subsection 1 (b) as
    amended by Act 216 of 1924.
    2. Louisiana Digest—Master and Servant —Par. 159, 160 (e).
    Where a condition of total disability at the time of the trial in a suit under the Workmen’s Compensation Act, No. 20 of 1914, Section 8. Subsection 1 (b) is shown and it is likely to continue for a considerable time, we think the purposes of justice demand that the matter be left for time to determine. In case the total disability does cease, defendant can avail itself of the right granted by the statute to review the judgment after a year.
    ON APPLICATION FOR A REHEARING.
    3. Louisiana Digest—Master and Servant —Par. 159, 159 (a).
    Where it is shown that it is possible for an injured employee suing under the Workmen’s Compensation Act No. 20 of 1914, Section 8, Subsection 1 (b) to do some work, it would be a harsh and unjust ruling to hold that he must work while in pain, when it is shown that work will retard the process of healing. Therefore, judgment for total disability is justified.

      Appeal from First Judicial District Court of Louisiana, Parisli of Caddo, Hon. T. F. Bell, Judge.
    This is a suit brought hy an injured employee for compensation under the Workmen’s Compensation Act No. 20 of 1914, Section 8, Subsection 1 (b) of 1924.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Julius T. Long, of Shreveport, attorney for plaintiff, appellee.
    Alex F. Smith, of Shreveport, attorney for defendant, appellant.'
   CARVER, J.

This is a suit under the Workmen’s Compensation Law, Act 20 of 1914, as amended by Act 216 of 1924, page 398, in which plaintiff claims compensation on the basis of total disability under Section 8, 1 (b) of the act as amended.

Defendant admits liability, but claims that the disability is only partial and temporary.

I.

EXTENT OF DISABILITY

On November 25, 1924, while removing coils from a water tank in the Homer Oil fields, a stack of steel pipe consisting of seven pieces, each two inches in diameter and about twenty feet long, fell on plaintiff’s foot and leg. The internal malleolus or ankle knuckle was fractured and slightly displaced.

Plaintiff was carried to Doctor Middleton who put splints on the foot. After three or four days these were removed and the foot was encased in a plaster of paris cast, which remained twenty-one days.

Plaintiff married on February 21, 1925, and a few days afterwards went to Griffith, Arkansas, where he stayed about two weeks. While there he worked for the Standard Oil Company as a roustabout a few days and afterwards as pumper a few days. The testimony does not show exactly how many days he worked in either capacity.

He then returned to the Homer field to the house of his father-in-law.

In April he worked for the United States Central Company pipeline three days and in May for the Standard Oil Company cleaning up the yard three days.

While engaged in these various jobs he received standard wages of $4.50 to $5.50 per day.

The trial was held on May 26, 1925.

Plaintiff testified that his foot pains him all the while; that when he works it pains worse, swells up, gets sore and “gives out” so he is not “able to stand up and walk”.

Doctor Adair took an x-ray picture of the foot on February 14, 1925, and Doctor Barrow one on March 15, 1925. The second one" showed improvement.

Physicians examined plaintiff a few days, before the trial and on the day of the trial. There was some difference of opinion between them some of which was due perhaps to the fact that their attention was not directed to exactly the same things.

It seems that the fracture of the bone had completely healed at the time of the trial, but there remained a slight tilting and none of the physicians claimed that his foot was well.

Doctor Sanderson testified that the foot was turned outward and was flat; that the arch seemed to have broken; and that the bearing of the weight had been shifted to the inner side of the center of the weight bearing line of the foot and ankle joint, throwing the weight on one instead of both the gondyles of the tibia, causing the foot to tire easily.

He further says that though the extent of an injury to the ligaments of the ankle joint could not be determined either by an x-ray picture or by physical examination, yet that tiny force sufficient to fracture the internal malleolus is bound to have lacerated the ligaments.

Doctor Cassity agreed with Doctor Sanderson as to the foot being flat, as to the shifting of the weight to one side, and as to the laceration of the ligaments in such injury. He also said he could hear a rough sound in the joint as of a tendon inflammation and that there was serious impairment of the ligaments.

Doctor Barrow, who took the second picture, testified that it showed Improvement from a bone standpoint since the first picture was taken, and further, that the arch appeared above the normal limit and did not show flatness of. foot.

Doctor Crain says:

“I examined the man’s foot, both of them up and down and laterally of both feet, and I find one foot practically the same as the other, I find an enlargement over the internal malleolus which is a natural consequence of a broken joint—the foot here from the x-ray shows the internal malleolus fracturem as practically healed, of course I took Dr. Barrow’s views on that 'as to its position.” »

He was not asked as to inflammation of tendon laceration of ligaments, displacement of malleolus, shifting of weight or turning of foot outwardly. Both he and Doctor Sanderson thought that the plaintiff could work but that it would be painful. In Doctor Sanderson’s words, plaintiff’s injury was not so much a disabling one as a painful one. He further says that heavy work would pain very severely but that in his opinion plaintiff could go to work and support himself and wife.

Doctor Crain on being asked how long it would be before the trouble would be corrected, replied:

“Well, I should think that if it is handled properly, that is, stay off of it long enough and do not try to do too much heavy work on it, I would think that four or six months more ought to fix it all right, as well as it is possible for it to get.”

On this testimony the district judge concluded that plaintiff’s condition was one of total disability and compensation was allowed on that basis. We cannot say he manifestly erred. The few days’ work that plaintiff did—causing his foot to swell and the pain to increase as it did doubtless retarding recovery, although some of the jobs are shown to have been easy ones —was not, we think, work of a reasonable character.

II.

AS TO PERMANENCY.

Doctor Sanderson says that in his opinion there will be no future improvement unless something is done to adjust the weight-bearing point and he does not know what could be done.

Doctor Crain, as shown by his testimony, above quoted thinks that in four or six months more his foot will be all right or at least as well as it is possible for it to get, provided plaintiff stays off of it long enough and does not try to do too much heavy work on it.

Doctor Cassity says:

“I would simply say that there was a possible clearing up absorption of the bony products, due to the fracture of the bone becoming more solid, and that would not have any bearing upon the cause of the disability here, you see it is not the bone in my judgment, that is causing the disability.”
“Q. Now, what was that grating that you spoke of in there?
“A. That, I judge to be due to some remaining inflammation or irritation of the tendon sheet, and that now, I will say that that possibly may be reduced by the rest that you could give him and would probably clear up, but if he returns to work and is on his feet a great deal for a long time, it would probably come back again.”

Doctors Barrow and Adair were not asked about this prophesy as to when if ever the condition of total disability to do work of a reasonable character will cease.

Where a condition of total disability at the time of the trial is shown which is likely to continue for a considerable length of time, we think the purposes of justice demand that the matter be left for time to determine. In case the total disability does cease, defendant can avail itself of the' right granted by the statute to review the judgment. This was our holding in the case of Chandler vs. Oil Fields Gas Co., 2 La. App. 778; O’Donnell vs. Fortuna Oil Co., 2 La. App. 462, and King vs. McClanahan, 3 La. App. 117.

The judgment of the lower court was in favor of the plaintiff for twenty dollars per week during disability for not exceeding four hundred weeks beginning November 25, 1924, subject to a credit of two hundred dollars paid by defendant, and fixing the attorney’s fees of plaintiff’s attorney, Julius T. Long, at one-third, and for the reasons above given it is affirmed.

ON APPLICATION FOR REHEARING

ODOM, J.

In its application for rehearing, defendant complains at the court’s finding that plaintiff is totally disabled and points out that Dr. Sanderson testified that plaintiff could do some work.

It is no doubt that plaintiff can do some work, but Dr. Sanderson and other physicians testified that plaintiff suffered pain while standing, and some .of the physicians testified that in order for the fracture to heal properly, plaintiff would have to rest.

Even where it is shown that it is possible for an injured employee to do some work, it would be a harsh and unjust ruling to hold that he must work while, in pain, and especially so when it is shown that work will retard the process of healing.

If we thought the plaintiff could work without pain and suffering and that such would not aggravate the fracture, we would not hesitate to hold that he is only partially disabled.

But under the circumstances of this case, we think our findings are correct.

Rehearing refused. .