author: Poomí, J.

text:
    No. 9545.
    Mrs. C. McCaffrey vs. J. H. Benson.
    Persons legally married are, until a dissolution of marriage, incapable of contracting another.
    Honce a marriage attempted by the wife of a previous marriage, before its dissolution by law or by the legal presumption of the death, of lier husband, is not valid. In a suit in tended to enforce legal effects of such a marriage against the pretended second husband the latter as defendant can plead the nullity of the marriage by way of exception and without resorting to a direct action. No legal effects can result from such a union.
    The term of absence without news of either of the spouses, which gives a sufficient cause to the other to contract another marriage, is ten years.
    An absence of four .years, unaccompanied by any circumstances tending to justify the belief that the absent husband is dead, is not sufficient to create the legal presumption of the validity of a second marriage contracted by the wife.
    The burden of proof in such a case is ou the wife w'h© seeks to enforce the legality of her second marriage, to show that the absent husband was dead at the time that she attempted to contract another marriage.
    APPEAL from the. Civil District Conl-t for the Parish of Orleans. Bightor, J.

      W. B. Lancaster and J. 0. Nixon, Jr. for Plaintiff and Appellee.

      L. F. Bonehereau and J. Buvigneaud for Defendant and Appellant.
   The opinion of the Court was delivered by

Poomí, J.

Plaintiff snes for a judgment of separation from bed and board against the defendant on the grounds of cruel treatment and of outrageous excesses.

Defendant first pleaded the general denial, and subsequently urged by way of a peremptory action that there was no legal marriage between him and plaintiff, for the reason that when he. agreed to marry her, she was, by previous legal marriage, the wife of another man then living, and from whom she. had never been legally separated. Hence lie prayed for a judgment recognizing the nullity of his marriage with plaintiff. He prosecutes this appeal from a judgment which overruled his exception and granted to plaintiff all the relief which she prayed for.

Tiie undisputed facts of the record are as follows:

Plaintiff was legally married to one Christopher Anthony in April, 1848, and lived with him until 1851, when she voluntarily separated from him on the ground of general ill-treatment. Anthony remained in New Orleans until 1856, when he disappeared.

In 1859, plaintiff, believing that he was dead, contracted a marriage, valid in form, with the defendant, Benson. In 1861, Anthony reappeared, and was seen by several persons, some of whom testify that he was then a resident of the parish of Plaquemines, in this State.

The reappearance of Anthony brought trouble to the Benson household. Friends of the couple expressed the opinion that their union was illegal and was simply concubinage, and advised them to take steps to regulate their conjugal affairs. As rumors had reached plaintiff’s family, asserting the death of Anthony since his reappearance, the parties adopted the plan of presenting themselves to a priest for a second nuptial benediction; that ceremony took place in 1865, but was not irreceded by a license, and the fact was not registered on the archives of the church or of any other institution. This is the marriage which plaintiff declares upon in her action for separation.

The parties continued1 to live together as man and wife during the time which intervened between the reappearance of Anthony, in 1861, and the marriage of 1865. From this state of facts plaintiff draws two legal propositions:

1st. That the burden of proof is on the defendant to show that Anthony was yet alive in 1865.

2d. That the legal presumption is that Anthony was dead in 1865.

I.

Under a proper construction of the law, it appears to us that plaintiff is in error in her first proposition.

Wo find no textual provision in our code, or in fact in the entire system of our laws, -which justifies the presumption of death of any person after an absence of four years, or of less than five years.

In treating of the effects of absence respecting marriages our code, article 80, provides: “Ten years of absence without any news of the absentee, is a sufficient cause for the husband or wife of such absentee to contract another marriage, after having been authorized to do so by tlie judge, on due proof that such absentee, without any news, had continued the time required as aforesaid.”

Prom that text we are authorized to conclude, that in a question involving the validity of a marriage of either the husband or the wife of an absentee, an absence of four years is of itself insufficient to create the legal presumption of the death of the absentee, or to create a presumption iii favor of the, prima facie validity of a marriage contracted by the husband or the wife of such absentee.

That presumption could flow only from proof of an absence of ten years, or from circumstantial evidence of the death of the absentee,, and from a compliance with the positive provisions of the code.

Orir conclusion is clear that under the issue raised by defendant’s exception, the burden of proof is on plaintiff to establish the legality and validity of her marriage with him.

II.

These considerations easily foreshadow orir opinion on her second proposition.

Her counsel contend that the rules of law as contained in our code, on the subject of presumption of death from prolonged absence, are not inflexible, and that courts are authorized to consider any other circumstances which may lead to 'the same conclusion.

They rely very strenuously on the dieta of this Court in the cases of Boyd vs. New England Life Insurance Company, 34 Ann. 848, and of Jamison vs. Smith, 35 Ann. 609. Two very important principles, embodying very wise rules of construction, are reaffirmed in these two opinions, and they have been our mainstay and particular guide in our analysis of the questions involved in the case in hand.

In both oases we reiterated after our predecessors the following language: “It is essentially within tire province of the judge to draw the line of distinction, by the exercise of a sound discretion, founded on the facts of each particular case.”

And in addition to this, we said in Boyd’s case: “But death like all other facts, may bo established by circumstantial evidence, when, from the nature of the case, direct evidence is not accessible.”

“Absence, without-being heard of, though not of sufficient duration to create a legal presumption of death, may yet be one of other and supporting circumstances, which, taken together, would satify the mind and conscience of the judge or jury that the party was dead.” * *

“This disappearance under circumstances of shipwreck, or earthquake, or battle, or explosion, or like perils, might well produce such conviction.”

Reasoning- witliin the scope of these rules, we found legal presumption of the death of Boyd, in the circumstances which showed that he was last seen on a vessel at sea, in rough weather, while he was very sea-sick, by his room mate who, in the night saw him leave the room to go out on the guards of the vessel, whence he never returned, and after which he never was seen, although diligent search and inquiry was made for him on the vessel after she had reached shore; and that he was not seen leaving the vessel with all the other passengers, although a close lookout was kept for him.

In Smith’s case we found that he had joined one of the armies in the late war between the States, and had gone on the battlefield — whence iie never returned; that he liad never returned to this city where he had left his mother and all his relatives and where he owned valuable property and other rights, from all of which we felt justified, many years after his disappearance, to conclude that he was dead.

From the record in this case we find that Anthony was an insignificant, obscure man, with few acquaintances, or friends and no relatives in this city, where he lived for five years after the voluntary separation between him and iiis wife, for whom he had no fondness, or had formed no attachment; that he was homeless and childless after the year 1853; that he had disappeared from this city and from his usual haunts from 1856 to 1861; that he tlieD reappeared and had been seen by his brother-in-law, who had given him some little money. It is not even pretended that he took any part in the disastrous war which was then raging, but it appears on the contrary that he was leading the unexposed life of a plantation laborer in an adjoining parish, where it is said that he had died. But the record fails to show the slightest effort on the part of his wife, her brother, relatives and friends to test the rumor by inquiries, which would have been very easily made, and which -were of such vital importance to her in her project of receiving a second nuptial benediction joining her fate to that of another man. No pretence has ever been made that he had ever left the State, hence we cannot declare that he was even an absentee within the legal sense of the term, and much less can we conclude that his absence from this city from 1861 to .1865, justifies the presumption of his death, more than did his previous and longer absence, from 1856 to 1861.

We note the argument of plaintiff’s counsel touching the disastrous results of a judicial declaration of the nullity of her marriage with the defendant on the ground of her pre-existing and undissolved marriage with another man not proven to have been dead when she sought to contract a second marriage.

We have also considered their construction that such a conclusion would be tantamount to a conviction of bigamy.

Under the issue as we understand it from the pleadings, we are not concerned with that question, and we have to deal merely with the alleged nullity of the pretended marriage with the defendant. '

We fin'd in our code, article 93, the following provision, clearly prohibitory in its character:

‘'Persons legally married are, until a dissolution of marriage, ii capable of contracting another, under the penalties established by the laws of this State.” One of those penalties is the absolute nullity of the marriage between persons, when one or both are not able to contract, and this nullity we must apply in all cases which fall within the scope of the prohibition.

This nullity is invoked by the defendant in a manner and under a mode which are sanctioned by jurisprudence. 15 Ann. 342, Succession of J. M. Minvielle; 15 Ann. 519, Summerlin vs. Livingston.

Prom our investigation of the facts we find that, both in 1859 and 1805, plaintiff was not able to contract a legal marriage with the defendant, on the ground of her pre-existing and undissolved marriage with Christopher Anthony, whose death cannot be presumed to have occurred at any time previous to the year J865.

We conclude from the record that the intention of the parties to this suit in going through the ceremony of a nuptial benediction iu 1865 was to legalize or attempt to ratify the marriage of 1859, which had been literally destroyed by the reappearance of Authony in 1861. But the law does not recognize or even sanction the ratification of an absolutely null contract. Therefore no legal matrimonial effects could or did result from the marriage of 1865, which is the very contract declared upon by plaintiff.

These considerations lead us to a conclusion entirely different from the views taken of the case by our learned brother of the distiict bench, hence we must hold that his judgment is erroneous.

It is therefore ordered, adjudged and decreed that tlie judgment appealed from be annulled, avoided and reversed, and it is now ordered that defendant’s exception be maintained, and that plaintiff’s action be dismissed at her costs in both courts.


source: Caselaw Access Project

author: Manning, J.

license: Public Domain

text:
    No. 9593.
    The State of Louisiana vs. T. J. Boasso.
    The judges of the “City Courts” of New Orleans, under the Constitution of 1879, replace the justices of the peace under the former system, and inherit the,‘power to solemnise marriages from them. They are expressly required to make an “ act ” of every marriage they celebrate and the common and usual name of such “ act ” is a marriage-certificate.
    When a criminal statute makes an “intent to defraud” an ingredient of a crime, it does not mean only an intent to deprive one of personal‘‘property. Defraud has a "broader meaning in such case and means to prejudice the rights of another in any way.

      When a judge has already charged the jury on a given mattev and the prisoner among his requests of charges made thereafter, includes the matter already charged, the judge may well refuse to repeat it.
    When a trial judge has already charged the jury that the State must affirmatively prove that the offence had been committed within the jurisdiction of the court, and a reqnest is made afterwards for that matter to be charged, a misunderstanding of the purport of the request provoking the observation that there was no doubt of the court’s jurisdiction is not serious matter of complaint. The essential thing is that the jury have been charged on that point correctly.
    There can be forgery of a certificate of marriage where no marriage was ever celebrated just as there can be forgery of a promissory note where there was no indebtedness of the maker whose name is forged. As there can be a pretended marriage so there can be forgery of a certificate of marriage that never took place.^
    While judges are prohibited from commenting on the facts to the jury in a criminal trial, they are required to give to the appellate court their reasons for refusing instructions that are prayed.
    It is not essential that the forged instrument be one that, if genuine, an action might be brought on it. If it could be used as proof in a suit either against him, whose name is forged, or in a suit against any other, whether to sustain a claim made or in defence of one, it is susceptible of forgery.
    The constitutional right of being .heard by counsel, cannot be construed into meaniug tnat a prisoner’s counsel must be permitted to re-argue ad mfinitum all that had already been argued and to repeat all that had already been said. There must be some restraint of the volubility of counsel since there must be a limit to the duration of a criminal trial.
    Our statutes dispense with the need of setting out any copy or fac simile of the forged instrument in the indictment, and it may be described by its usual and common name. It is not necessary to set out anything more than is necessary to accurately and adequately express the offence. It is neither necessary nor proper to set forth matters of evidence in the indictment, nor to set forth the kind of suit or matter of contestation in which the forged instrument is receivable in evidence.
    The publisher or alterer of a forged instrument need not have been the 'forger of it. The two acts are distinct and constitute two different and well-defined crimes.
    A PPEAL from the Criminal District Court for the Parish of Orleans. AJL Roman, J.

      M. J. Cunningham, Attorney General, and Lionel Adams, District Attorney, for the State, Appellee:
    1. In any indictment for forging or uttering any instrument, it shall be sufficient to describe such instrument by any name or designation by which the same shall be usually known. R. S. Sec. 1049.
    The marriage certificate or act is required by the Civil Code. Art. 105.
    Justices of the peace are authorized to celebrate marriages within their respective parishes. C. C. Art. 103.
    The judges of the city courts replace the justices of the peace within the city of 2sTew Orleans, and are judicial officers exercising the powers of justices of the peace under another name. Const. Arts. 258,201,266,135; 33 Ann. 148; 34 Ann. 99; see also 32 Ann. 1234.
    Judges of the city courts have also the power to grant marriage licenses. Acts of 1882, p. 40.
    The want of a marriage license and its publication previous to the ceremony does not affect the validity of the marriage., 26 Ann. 94. BTor is a marriage null because the laws relating to forms and ceremonies have not been observed. These laws are but directory. 20 Ann. 97; 3 La. 33; 6 La. 470; 2 Ann. 944: 7 Ann. 253 ; 15 Ann. 253.

      Defects as to legal formalities, e. g. seals or stamps, or due attestations, do not preclude a pi osecution for forgery. It is only when the law, to which an instrument is subject, makes it absolutely and everywhere imperative without certain formalities, that to falsely make it without such formalities is not forgery. It is under this rule that the forgery of a will without the necessary witnesses is declared not to be indictable. 1 Wliarff. Or. Law, 8th ed. § 697.
    2. It is not requisite to charge in the indictment anything more than is «necessary to accurately and adequately express the offence. Whart. Cr. PI. and Pr. § 158.
    It is in general sufficient to follow tho words of the statute. Whar. Cr. PI. and Pr. § 220 ; , 8 Blackf, 212; 2 Iowa 162; 13 Miss. 13 ; 12 Miss. 268; 5 Blackf. 548; 3 Strobh. B. 269 ; 6 Miss. 147 ; 2 Ala. 26; 1 Not & McO. 91; 3 Penn. 142; 3 McCord, 442; 16 Mason, 448 ; 20 Pick, 356; 3 Gratt. 590; 6 Gratt. 664; 3 Blackf. 307; 1 Bailey, 144; 13 Ann. 243; 9 Ann. 210.
    Matters of evidence need not'be set forth in tho pleadings. 14 Ann. 46.
    When tho crime is charged with certainty and precision, with a complete description of such facts as constitute it, in tho language of tlxe statute, and the accused on hearing the indictment road would clearly understand the charge, he is called on to answer, and the court could feel no doubt as to the judgment to be pronounced on conviction tho indictment is good. 9 Ann. 106; lb. 210; Whart. Or. Pl. and Pr. § 166; 1 Starkie’s O. P. 73.
    3. The judge of the Second City Court has tho power to solemnize marriages and to make those acts of the celebration of the marriage which are commonly known as “ marriage certificates.” Const. Arts. 258, 261, 266, 135; 33 Ann. 148; 34 Ann. 99: C.C. Arts. 103, 103.
    4. (a) To “ defraud ” in trials for forgery is construed to mean to prejudice the rights of another. 10. C. 200; 1 Whart. Cr. Law, 8fch ed. § 583. The term “to defraud” cannot he limited to mean ‘ ‘ to deprive a person of his personal property. ”

      (b) The jurisdiction of the trial court over the offense can only he questioned by plea to the jurisdiction or in arrest of judgment.
    (c) There could be a forged “marriage certificate,” although marriage actually took place. 1 Whar. Cr. Law, 8th ed. §§ 660, 680, 693.

      (d) It is error to state the successive gradations of statutory offenses disjunctively; and to state them conjunctively, when lliey are not repugnant, is allowable. Whar. Ci\ Pl. and Pr §§ 162, 251.
    (e) The forged paper need not be such as, if genuine, could be sued on l«needonlybe such as would expose a particular person to legal process. Apparent legal efficiency is sufficient. Whar. Cr, Law, § 680. The tost is whether the instrument could bo used as proof in a suit with another. Ib. §§ 691, 692.
    5. The testimony is not in tho record nor is it brought up by the bill; therefore, even if the appellate court bad the power to review the evidence it would lack the information required for a reasonable exercise of such revisory power.
    The questions of law have already been cited and discussed.
    The prisoner suffered no actual injury because of the refusal of the district judge to hoar argument upon the points of law presented by defendant’s motion for a new trial. If these questions, as presented by tho pleadings, are sound, and tho action of the court below was prejudicial to the accused, they warrant the reversal of the judgment by the appellate court; otherwise, neither the revisory tribunal nor the trial judge cau be justified in disturbing the verdict.
    The remedial interposition of courts in granting new trials is wholly for the benefit of parties, and notto compel the good conduct of judges. 3 Gra. &. Wat. N. T, 717; 35 Ann. 974; 6 Ann. 658; 2 Caines’ 85; 3 Gilm. 202; 2 Tenn. B. 5; 9 Cowan, 680; 1 Scam. 18; 1 Gilm. 475; 2 Ib. 185; 11 Conn. 342; Greenl. B. 442; 4 Day, 42; 10 Geo. 429; 1 Brev. 109; 7 Wend. 79; 1 Neo. & Man. 598; 4 B. Monroe, 386;. 24 Vt. 252.

      6. Even where the forgery is only a forgery at; common law, in order that the uttering of the forged instrument should be an offense it is not requisite that any fraud should he actually perpetrated by it. An intent to defraud will be sufficient, and that intent is to be inferentially proved. 1 Whart. Or. Law, 8th ed. § 705.
    It is scarcely necessary to say that to constitute the offence of uttering, it is in no case requisite to show that the defendant had heen implicated in the forgery. R. S. Sec. 833; 1 Whart. Cr. Law, 8th ed. § 712.

      Maries & Bruerm and A. A. Ker & J. Bmignecmd for Defendant and Appellant:
    1 Where an indictment seeks to charge a crime not provided for specifically by statute, a trial and conviction resulting thorefrom is a nullity.
    2. Where it is shown that no forgery or altering of any document recognized in law, and by or through which the crime of forgery can he committed, and there having boon no forgery, the crime of altering and publishing cannot exist independent thereof.
    3. The constitutional right to be heard in person or by counsel can never be denied by any court.
    4. The publishing must be of a forged, false, altered or counterfeit record, with intent to injure or defraud some person or body politic or corporate. Revised Statutes, sec. 833.
    5. Where it is charged in an information that a certain instrument, created by special statute with specific and distinctive features, has been altered and falsely published as true, it must be shown, in order to maintain the charge, that the identical instrument thus created has been altered and published. It does not maintain the charge to prove that another instrument has heen altered and falsely published, no matter how close its resemblance to the instrument created by the statute and described in the information. State vs. Anderson, 30 Ann. 557.
    6. The criminal statutes of this State make it a crime to falsely publish as true an altered record, but there is no such crime known to the law of Louisiana as altering and publishing as true an altered, false and counterfeit instrument. 30 Ann. 557.
   The opinion of the Court was delivered by

Manning, J.

The indictment contained two counts, first forging a certificate of marriage, and second for publishing as true such forged certificate, and there was a conviction of both. The State entered a nol. pros, of the first and the prisoner was sentenced upon the second to imprisonment at hard labour for fourteen years.

There was a motiou to quash on the ground that the pretended marriage certificate cannot in law be the subject of forgery, because it is invalid on its face and void of legal effects, the invalidity and want of legality being that the City Courts of New Orleaus are without authority to issue marriage certificates or to solemnize marriages.

The certificate alleged to have been published as true purported to have been issued by William Voorhies, judge of the Second City Court of New Orleans, and certified the marriage'of T. J. Boasso with Mary Catherine Kuhn on the 23d day June, 1885.

Justices of tlie peace were authorized to celebrate marriages, Rev. Civ. Code, art 103, and any one who celebrates a marriage must make “an act” thereof, Ibid, art. 105. The judges of the “ City Courts” of New Orleans replace, under the Constitution of 1879, the justices of the peace. Const., arts. 135, 266; State ex rel. Howard v. Walsh, 32 Ann. 1234. And the legislature has expressly granted them the right to issue licenses to celebrate marriages. Acts 1882, p. 40. The judge of the Second City Court of New Orleans has therefore the right to solemnize marriages and is required to make a certificate thereof, that being the name of the kind of “act” he then confects, and hence the motion to quash was properly denied.

.The court was requested to make the following charges to the jury, which were refused:

1. That the offence must have been committed with intent to defraud, and to defraud means to deprive a person of his personal property.

The judge had already in his charge explained to the jury at groat length that an intent to defraud was one of the essential elements of forgery, and he cannot be required to repeat what he has already said with lengthy explanations. He instructed the jury that “ defraud ’! meant something more than the definition of personal property, and he is correct. Wharton says it means to prejudice the rights of another, Cv. Law § 683. The statutejpunishes where the intent is to injure or defraud, Rev. Stats, sec. 833, and the indictment contains the charge of intent to injure and defraud.

2. That the law requires that the offence shall have been committed within the jurisdiction of the court, and if it be not so shewn the accused should be discharged.

. The judge seems to have misapprehended the purport of this request as his answer was that the question of jurisdiction was not before the court, and there was no doubt of .its jurisdiction, but he had already charged the jury that the State must shew affirmatively beyond a reasonable doubt that the offence charged had been com mitted in the parish of Orleans, that is, within the jurisdiction of the court, and the jury when they found the verdict of guilty as charged, necessarily passed upon the proof of that fact and found that it had been proved.

3. That there could be no forgery of a marriage certificate where no marriage ever existed.

To which the judge replies that the evidence on the trial established the possibility of such a contingency. It must be noted that this remarle on the evidence was not made in the presence of the jury, but is the reason given by the judge in the bill of exceptions. While judges are prohibited in criminal trials from commenting to the jury on the evidence, they are required to give to tli appellate tribunal their reasons for refusing instructions that are prayed.

But the instructions prayed are not good law. As well might it be said there could be no forgery of a promissory note where no indebtedness of the maker existed. A certificate of a marriage that had not taken place, might be made for a variety of purposes, e. g., to affect the descent of property, to deceive individuals and families, etc., and when the forgery had for its intent to injure and defraud and the intent has been accomplished and borne its fruits (of which the jury are the triers) the offence is complete.

4. That the alleged forged instrument must be one which, if genuine, a suit could be brought upon it, for if it cannot be sued on it cannot be forged.

It is not essential that the forged instrument be one that, if genuine, an action might be brought on it. If it could be used as proof in a suit, either against him whose name is forged or in a suit against any other, whether to sustain a claim made or in defence of one, it is susceptible of forgery. 1 Wharton Cr. Law, §§ 691-2.

5. That there are two counts joined by a copulative instead of a disjunctive conjunction and they therefore form but one offence and the jury must disregard the charge of publishing as a second count.

The two counts are not joined in any way in the indictment. They are separate, distinct, and each complete in itself.

Besides these five bills there was a motion for a new trial, a motion in arrest of judgment and an assignment of errors.

The first is the. usual motion formally made as a precursor to an appeal, but the counsel for the prisoner insisted on arguing it, which the court refused, saying he desired no argument thereon and overruled it. To this refusal a bill was taken.

The counsel arraign this refusal as a denial of the prisoner’s constitutional right to be heard. The prisoner had been heard' throughout as the. numerous bills and motions attest, and if any error of law had been committed by the. judge, the proper methods had been taken to bring such error before, the appellate tribunal. An argument on the motion for a new trial on the ground that the verdict is contrary to the law and the evidence, could be only a reproduction of the arguments in the several stages of the trial, and surely the constitutional right of being heard cannot reasonably be construed as meaning that a prisoner’s counsel must be permitted to re-argue ad infinitum all that had been already argued, and to repeat all that has been already said. There must be some restraint of the volubility of counsel, since there must be a limit to the duration of a criminal trial. If a judge has a doubt of the correctness of his rulings or of the jury’s verdict, lie ought to and will grant a new trial, but when ho has neither one nor the other, it is no denial of a constitutional right to refuse to hear argument on the formal motion for a new trial, based alone on the ground that the verdict is contrary to the law and the evidence.

The motion in arrest is on the ground that the verdict is an absolute, nullity, for the reason that the indictment failed to specify the matter in which the certificate or attestation was or might have been receivable as legal proof.

The indictment is based on sec.. 833, Rev. Stats., which punishes on conviction, whoever shall forge or counterfeit * * any certificate or attestation of any public officer in any matter wherein his certificate or attestation is receivable and may be taken as legal proof; or (shall alter or publish as true any such false, altered, forged or counterfeited certificate or attestation with intent to injure or defraud any person.

As the judge of the Second City Court had authority to celebrate marriages and to make certificate of such celebration, his certificate is receivable in proof thereof. Our statutes dispense with setting out any copy or fac simile of the forged or published paper, and do not require that it shall be described by any technical name, but it may be designated by the name which it is usually known. Rev. Stats., sec. 1049. “Marriage certificate” is the name by which “acts of marriage” are usually known.

The indictment follows the words of the statute and it is not needful to charge anything more than is necessary to accurately and adequately express the. offence. Wharton Cr. Pl. and Pr., § 158. It is sufficient to state all the circumstances comprised in the definition of the offence as given in the statute, so as to bring the defendant clearly within its provisions. State v. M’Clanahan, 9 Ann. 210. It is neither necessary nor proper to set forth matters of evidence in the pleadings, nor to set forth the kind of suit or matter of contestation in which the forged instrument is receivable in evidence.

The assignment of errors is: first, that the “indictment is defective, in that it seeks to charge the commission of a crime unknown to and not contained in the criminal statutes of this State. Second, that the record shews there was no forging or altering of any document recognized in law by or through which the crime of forgery can be committed. There being no forgery committed, the crime of publishing and uttermg cannot exist independent of forgery. Third, that the record shews that the defendant was deprived of the'right of being heard through counsel and by argument, contrary to his vested constitutional right.”

This last alleged error has been already disposed of. The second is made on the supposition that the publisher of a forged paper must himself have been the forger, whereas the two acts are altogether distinct and constitute two different and well-defined crimes. One man may have forged a paper and another have published it. The defendant may have been innocent of forgery and guilty of publishing the forged instrument. The crime charged is denounced by the criminal statute already cited, and in its identical words.

We find no error tn the rulings of the lower court.

Judgment affirmed.


author: Poché, J. Manning, J.

text:
    No. 9502.
    Robert R. Barrow et al. vs. Mrs. Margaret Wilson et al.
    Tn a petitory action met by the defense of the prescription of ten years, tbe main legal discussion involves the question of the alleged just title, the good faith and the length of time of the defendant’s possession of the property in controversy. The legality or validity of plaintiff’s title is a question of secondary consideration, which comes up in case only that defendant’s plea of prescription should not be found good.
    A just title is one which in form and intent is translative of property, which the purchaser acquires from one whom be believes in good faith to be the true owner.
    If tbe possession begins in good faith, the right of pleading the prescription of ten years is not affected or impaired by the fact that the possession may subsequently have been in bad faith.
    Irregularities and defects in a tax deed, which is prima facie valid, and which are not apparent or stamped on the face of tbe deed, are cured by the prescription of ten years.
    Prescription is suspended by the minority of the parties against whom it is pleaded. Hence, if it appears from the record that the party to he affected by tbe plea of prescription was a minor a short time before the time at which it must have begun to run, and if the record does not show the precise time at which he obtained his majority, the cause will be remanded for trial of that issue.

      \ PPEAL from the Twenty-fourth District Court, Parish of Plaquej_A mines. Livcmdais, J.

      JS. Hcnoard McOaleb for Plaintiffs and Appellants:
    I.
    1. Oust title, good faith and actual possession are all essential to support the prescription often years. B. G. O. 3478, 3479, 3480, 3481, 3482, 3483, 3484.
    2. The Act of Congress of March 2, 1849, donating swamp lands to Louisiana, did not convey title “to lands claimed or held by individuals.” Sec. 2, Acts Cong., 1849.
    3. A United States patent is the superior and conclusive evidence of legal title? and where plaintiffs in a petitory action claim under a patent from the United States issued in 1839» and defendants claim under a State patent issued in 1869, for tlie same land and ten years prescription, plaintiffs should recover the land. Defendants’ title not being valid, cannot be the basis of the ten years prescription. ‘ ‘A State has no power to declare any title valid against a title held under a patent granted by the United States. A claim based on a patent obtained from the State must yield to a patent from the Government of the United States.” 5A.75; 15How.433; 13Pet.436; 13 Pet. 498. “Valid” means good in law. Bouvier’s Law Die., verbo Valid.

    4. The registers of the United States land offices cannot attest or certify the contents of documents in their possession. 3 R. 15. Such certificates are no evidence at all. 6 A. 683; 13 A. 357.
    5. Defendant who, when sued for the price of land by bis vendor, alleged that the latter was without title, that ho feared eviction and claimed to withhold the price on that account, cannot in a subsequent suit brought by tbe true owner to lecovor the property claim to be a possessor in good faith and thus contradict his judicial admission to tlie contrary made nine years before, at a time not suspicious. Rev. O. C. 2291.
    6. In a conflict of titles, the eldest must prevail. Qui prior est tempore, potior est jure.

    7. When defendant’s title is not/traced to a sovereign grant possession in good faith, under successive purchases from private vendors for more than ten years, will not constitute a title by prescription against one who claims under a patent from* the United States. 12 A. 151. The burden of proof rests with the party pleading prescription to show affirmatively a state of facts which will sustain the plea. Idem.

    8. Where plaintiffs have shown that the property was vacant, no one living upon it, and it was occupied only as a pasture for cattle seven years prior to the institution of the suit, the plea of prescription of ten years will not be sustained.
    II.

      a. Where the pleadings and evidence show that the parties trace their titles to the same source, neither can attack the title of their common author. 2 L. 213; 8 L. 239; 1 R, 389; 5 A. 677; 10 A. 327

      b. Where defendant relies on a tax sale as his title, plaintiff has the right to show its illegality. 33 A. 438; 34 A 1273.

      c. Where the land stood recorded in the name of H. L Hunley, who died (and whose succession was opened) in 1863, leaving his sister, Volumnia W. Barrow, his universal legatee, and she died in 1868, bequeathing her estate to plaintiffs, then minors, and while her succession was being administered upon, an assessment, advertisements and tax deed made in 187L, in the name of “ Est of H. L. Handley.” will not convey a just title to the property. The misnomer is fatal 10 A. 771; 12 A. 748; 14 A. 209; 15 A. 15; 33 A, 520, 912; 34 A. 107. 407; 35 A. 952; 36 A. 985.

      d. Where the property was sold for a parish tax exceeding the limit fixed by law (See. 7, Act 42 of 1871), tbe sale is illegal. 34 A. 123; Blackwell, 160; Cooley on Taxation, 295; Bur. roughs on Taxation, 301. The police jury were without power to assess or tax collector to collect taxes in excess of the limitation fixed by law. 29 A. 1; 28 A. 538, 30 A. 1085 ; 32 A. 401.
    e• Where no curator ad hoc was appointed to represent a non-resident in tax proceedings under Act 42 of 1871 (sec. 60), and the land was not divided or sold in tracts of from ten to fifty acres (Sec. 62, Act 42 of 1871; Art. 139, Constitution of 1868), the sale is an absolute nullity. 24 A. 454. 23 A. 231; 28 A. 354; 33 A. 873. *

      f. A description of land on the assessment roll, in the tax collector’s advertisement of sale and in the tax deed, as “160 acres, bounded above by L. Edgcomb and below by A. Cox,” does not sufficiently identify and will not convey title to land known, designated and described in acts of sale registered in conveyance office as “Lot or section Uo. 5, in township 18 of rango 16, 33, containing 159 acres.” The description is void for uncertainty, and cannot be the basis for any judgment. Mauning, Unr. Cas. p. 56; 1 R. 20 10 A. 327, 672; 30 A. 295.

      g- The Auditor’s deed is necessary to complete a tax sale under Sec. 62 of Act 42 of 1871.

      h. Where a tax deed carries its death wounds on its face (1) not designating or describing the property; or (2) giving the name of the true owner; or (3) stating the taxes for which the land was sold, whether State or parish, and how much; or (4) the years for which they were due and unpaid — the prescription of ten 'years will not cure such radical defects, and the decision in Giddens vs. Mobley (37 A. 417) does not apply.

      i. An unrecorded sale cannot support prescription. 11 L. 346; 11 R. 56; 2 A. 787, 868.

      j. Defendants in bad faith and without- title cannot recover for improvements, and are responsible for revenues. R. C. C. 3451, 3452, 3453, 3454; 1 Woods, 57; 35 A 977. The fruits to be restored by the possessor mala fides are what the premises are reasonably worth, with interest to the time of trial. 15 Wal. 624; 33 A. 1178.

      JP. G. Zaeharie for Defendants and Appellees:
    The prescription of ten years possession under a just title is pleadable, and must be sustained aghinst a United States patent issued prior thereto. 12 A. 151. The United States laws and courts do not disregard but sustain the statutes of limitations of the States. 2 Bk. 599; 5 Pet. 402; 5 Peters, 457; 3 Pet. 270 ; 13 Pet. 45; 7 How, 779, 780, 783; 17 Wall. 600; 2 Bank Rep. 318; 12 Bank Rep. 426, 540; Hemp. 325 ; Abb. Athn. 430; 2 Wood and M. 470; 3 Wood and M. 402; 9 Blatclif, 127; 1 Biss, 186 ; 1 Story, 102.
    “ It is sufficient if the possession has commenced in good faith; and if the possession should afterwards be held in bad faith, that shall not prevent the prescription.” C. O. Art. 3481; 3 A. 8; 12 A/242.
    Bad faith is not presumed. O. O. 3481; 12 A. 242; 14 A. 362, 363.
    An immaterial mistake in the spelling of the name of the owner of land sold for taxes will not vitiate the sale, if the land be definitely described. Desty, p. 963; 3 A. 8; Bouvier’s Diet, verb; 2 'Idem, Sonans; Burroughs, 203; 37 H. H, 307; 14 A. 99, 580; Cooley on Taxation, 285; Desty, p. 555 ; 101 111. 645; 47 Cal. 501.
    A slight variance in the q uantity of the land sold from the true quantity owned by the delin • quent, will not vitiate the sale. Cooley on Taxation, p. 282; 9 Penn. St. 38.
    A title not registered may be the basis of prescription. 11 A. 100; 8 A. 5; 4 R. 170; 6 A. 164; 11 A. 57; Guzman vs. Berryman, H. R. Op., Book Ho. 50.
    “ Every proprietor who, for a long time and without any just reason neglects his right, should be presumed to have entirely renounced and abandoned it.” Tatfcel’s Law of Hat-ions, B. 2, ch. 11.
    •Defendants have possessed in good faith for more than ten years, under translative titles. The plea of ten years prescription should be sustained. R. C. C. Arts. 3479, 3451, 3452; 27 A. 598, Hall and Turner vs. Mooring; 4 R. 205, McCloskey vs. Webb; 14 A, 596,-Rob-erts vs. Brown; 18 Howard, 52, 59, Wright vs. Matbison; Blackwell on Tax Titles, p. 671; 13 How. 472, Pillow vs. Roberts; 21 How. 340, Thomas vs. Lawsott ; 5 A. 380, Eldridge vs. Thibbetts; 34 A. 705, Wederstrandt vs. Freyhen; 35 A. 893, Ludeling vs. McGuire ; 35 A. 1086, Hickman vs. Dawson.
    Just title. R C. C 3479,3483,3489,3486,3481,3485,496; Blackwell on Tax Titles, 649, 662, 666; Wood on Limitation of Actions, 528 ; 35 A. 492, Davidson vs. Houston; 15La.566, Divole vs. Choppin.
    Of title valid in point of form. 7 O. S. 406, Carroll vs. Cabaret; 4 H. S. 224, Frique vs. Hopkins ; 11 O- S. 715, Dufour vs. Camfranc.
    Tax sales and judicial sales are assimilated. 33 A. 491, Shannon vs. Lane; 36 A. 392, Aymer vs. Bourgeois; C. P, 695; 3 A. 8, Leduf vs. Bailey.
    Of the elements of judicial titles. 2 Rob. 468, Waldon vs. Caufield; 8 A. 138, Dade vs. Bouguville; 9 A. 522, Mithoff vs. Dewees; 13 A. 450, Hynson vs. Bailey; 6 H. S. 458, Thompson vs. Clianveau; 5 A. 854, Davis vs. Wilcoxen; 8 La. 321, Poultney vs. Cevil; 34 A. 205, Roberts vs. Zansler.
    An apparently valid assessment, an element of judicial title, sufficient for prescription. 8 La. 241, Bedford vs. Urqubart; 4 A. 69, New Orleans vs. Gofctschalk; 10 La. 283, Reeves vs. Towles; 14 A. 598, Roberts vs. Brown; 6 N. S. 349, Nancarrow vs. Weathereby; 7 La. 50, Smith vs. Corcoran. Antecedent to 1868.
    Tax titles are prima facie valid. A rt. 118, Const. 1868; 30 A. 1235, Jurey & Gillis vs. Hugh Allison & Co; 25 A. 236, Coco vs. Thienman; 29 A. 115, Lannes vs. Workingman’s Bank; 30 A. 960, O’Hearn vs. Hibernia Ins. Co; 31 A. 661, ltensbaw, Cammack & Co. vs. Imboden; lb. 840, N. O. Ass’n vs. Labrancke; 35 A. 893, Ludeling vs. McGuire; Sec. 65, Art. 114,1869; 35 A. 1086, Aickman vs. Dawson.
    The want of recital in deed that a curator ad hoe was appointed, does not affect the plea of prescription. Sec. 66, Act 114 of I860; 35 A. 894, Ludeling vs. McGuire; 13 How. 472, Pillow vs. Roberts; 8 How. 56, Wright vs. Madison; 21 How. 340, Thomas vs. Lawson : 21 A. 661, Renshaw vs. Imboden; 33 A. 1043, Mulkolland vs. Scott; 32 A. 912, Lague vs. Boogni; 21 A. 506, Woods vs. Lee ; 14 A. 792, Louailten vs. Castille.
    Of the possession necessary to plead prescription. R. C. C. 2479, 3487; Secs. 4 and 8, Act 39 of 1871, 22 A. 470, Ellison Iler; 4 A. 60, Hayden vs. Nutt. Plaintiff’s petition alleges possession of defendants. R. C. C. 3487, 3434 ; 11 La. 433, Baker vs. Towles.
    Validity of tax title. Sec. 2, of Act 101 of 1873, declares that judicial possession under tax title duly recorded, for two years, is an acquiescence in samo and a waiver of all informalities in assessment and sale, and operates an estoppel against the former owner and authorizes sale by purchaser to any third person.
    Of rents and revenues, and improvements and taxes. R. O. C. 503, 3543 ; Henu. Dig. p. 1195 ; 14 A. 605, Roberts vs. Brown; 10 R. 178, Lazur vs. Generes ; 34 A. 1163, Kibboo vs. Campbell ; 34 A. 1086, Hickman vs. Dawson; 13 A. 494, Stanbrougli vs. Wilson; 2 R. 137, Baldwin vs. Union Ins. Co; 2 A. 347, Beard vs. Morancy; 26 A. 588, Wilson vs. Benjamin; 18 A. 407, Howard vs. Zeigler; 27 A. 398, Dulfilho vs. Mayer; 34 A. 705, Wederstrandt vs. Eroyhen; R. C. C. 503, 3453.
   The opinion of the Court was delivered by

Poché, J.

This is a petitory action involving the title to two separate tracts of land.

Plaintiffs claim the property under the rights of their deceased mother, who was the only heir at law of her predeceased brother, H. L. Hundley, the alleged former owner.

Defendants claim one of the tracts under a patent issued by the State of Louisiana in January, 1869; and the other tract under a tax sale made to their author in September, 1871.

Asserting both conveyances to have created a just title, and alleging^ possession in good faith for upwards of ten years, they pleaded that prescription. That defense prevailed in the district court, and plaintiffs have appealed.

After a prolonged and a thorough examination ot the record, and a mature consideration of the innumerable authorities relied upon by the respective counsel, discussed by them at great length in able and ex-liaustive briefs, we have reached the conclusion that there is no error in the judgment appealed from.

But in view of a very important question which has been discussed on appeal only, and on which the record does not contain sufficient or decisive evidence, we are unable to make a final disposition of the cause in our present decree, and we shall remand the ease for trial on that question.

Under the pleadings as affected by the plea of prescription of ten years, the main legal discussion hinges upon the question of the alleged just title set up by the defendants as a basis of their plea.

I.

The first tract of land is shown to have been acquired by the defendants’ author in 1869, under a patent issued by the State of Louisiana. Upon its face that muniment of title is transferable of the ownership of the property which it purports to convey, and the record contains no evidence to show that the purchaser had any reason to fear or suspect that the State of Louisiana was not the true owner of the land which he proposed to purchase 'and for which he gave valuable consideration.

These are the elements which our Code contemplates as the essential conditions of the good faith which forms the basis of a just title. C. C. 3478, 3484.

We note in this connection the line of argument followed by plaintiffs’ counsel throughout the whole case, and in which he strenuously, and we will add, successfully contends that in 1869 the legal title to this land was in plaintiffs’ author.

It would be difficult to establish a more complete chain of title than the one which he has interwoven in defendants’ path. But under the issue which we are trying, we are not concerned with the legality of plaintiffs’ title. The issue is restricted and the discussion must be confined to the questions of the just title set up by the defendants and of their possession of the lands in controversy as the foundation of their plea of prescription.

Counsel’s argument, although it is predicated on indisputable evidence, is answered by the textual provisions of our Code on this subject. Article 3484 reads: “By the term just title, in cases of prescription, we do not understand that which the possessor may have derived from the true owner, for then no true prescription would be necessary, but a title which the possessor may have received from any person whom he honestly believed to be the real owner, provided the title were such as to transfer the ownership of the property.”

On the question of good faith, plaintiffs submit the poiut that one of defendants’ authors, Burton, who had purchased from Cox, resisted the payment of his notes representing part of the purchase price, on the ground, judicially alleged, that Cox’s title was defective. From the record it appears that this contention arose in 1875, four years after his purchase from Cox, and two years after the latter’s purchase from the State.

That argument is likewise answered by the text of the Code.

Article 3482 reads: “ It is sufficient if the poss ession has commenced in good faith; and if the possession should have afterwards been held in bad faith, that shall not prevent the prescription.”

Article 3481 reads: “Good faith is always presumed in matters of prescription, and he who alleges bad faith in the possessor must prove it.”

These provisions of our law have been frequently expounded by this Court, and application has been frequently made of them in conformity with our present conclusions. Leduf vs. Bailey, 3 Ann. 8; McGovern vs. Laughlan, 12 Ann. 242.

It is therefore safe to conclude that the doubt of the validity of the title of Cox which Burton once entertained, and which was evidently removed, as it appears that he subsequently paid the very purchase notes in question, cannot affect the good faith of Cox at the time of his purchase, or the resulting good faith in the present possessors, both in their purchase and in their possession.

But on the question of possession, plaintiffs’ counsel argues in this Court, that the defendants have not shown possession of the property for ten years, prior to tiie 16th of October, 1884, tiie date of the institution of this suit. One of the witnesses, who rented the property in 1878, says that at that time it was vacant, occupied for cattle only. But this does not exclude the possession which tiie law contemplates as resulting from an authentic sale of immovable property. C. C. 2479.

The lands in question aie shown to have been low marshy lands, and to have been sold by the State as “swamp lands subject to tidal overflow.” Doubtless the grazing of his cattle thereon, was all the possession which the then owner needed of the lands, and such possession, accompanied by the regular payment of taxes, as shown herein, is sufficient in law to supply a proper foundation for prescription. Giddens vs. Mobley, 37 Ann. 417.

At all events plaintiffs are estopped from urging want of possession in 1878, either in these defendanis or their predecessors, by reason of their judicial admission to the contrary. Their petition in this case, filed October 16, 1884, contains the following allegation:

“That about nine years ago the aforesaid defendants, well knowing that they had no title to the aforesaid lands, or' that their pretended title was in all respects vicious and defective, wrongfully and in bad faith entered upon and tools possession of the above described lands, and have ever since illegally gathered for their oton benefit, received, enjoyed and disposed of the fruits and revenues of said lands belonging to your petitioners, and worth the sum of four hundred dollars per annum, making three thousand six hundred dollars for the rents, revenues, use and occupation of said lands during the past nine years, justly due and owing unto petitioners by defendants.” (Italics are ours).

The allegation has reference to both the tracts of land now in suit, and it is palpably inconsistent with the contention that the trafct of land now under discussion was not in the possession, illegal or otherwise, of the defendants prior to the year 1878.

II.

In support of their tax title to the second tract of land in controversy, defendants rely upon a tax collector’s deed, dated December 16, 1871, which recites in substance that the property had been assessed in the name of H. L. Handley, that it had been seized for taxes, of which notice had been given, that the seizure had been duly advertised, that the sale took place conformably to the advertisement, on the 30th of September, 1871, and that the property was then and there adjudicated to Leonard Edgcomb for the sum of $121.90, which was duly paid.

The authority of the tax collector was not disputed, but numerous irregularities in the assessment of the property, and in the manner of effecting the sale, are set up by plaintiffs as elements of nullity of the tax sale, evidenced by the deed which wre have just described.

In this connection we must repeat that we are not trying the legality or binding validity of this sale, but our investigation must be restricted to the question of the good faith of the purchaser at the sale, and of the belief which he had that he was acquiring a just title.

The deed speaks for itself, and amply justifies the legal conclusion that it operated a transferable title of ownership in the purchaser, and hence that it was a just title.

That feature of the case is so absolutely identical with the questions involved in the case of Giddens vs. Mobley recently decided by this Court, and reported in 37 Ann., p. 417, that we feel justified in adopting the reasoning of that case, as our reasons for the disposition of that part of the present case.

We shall therefore content ourselves to refer to our discussion of that case and to the authorities which we quote therein, as amply sufficient to fairly and justly dispose of the points discussed by counsel on this branch of the case in hand.

Great stress is laid by plaintiffs on alleged illegalities and irregularities which characterized the assessment, the seizure and the sale of these lands at the tax sale relied on by the defendants. Among others they contend that the assessment was in the name of II. L. Ilanclley, and not in the name of H. L. Hundley, who was the true owner; that the parish tax claimed of him was in excess of the limit imposed by law to the taxing power of the parish, and that the lauds were not subdivided in lots for the purpose of sale as was required by the Constitution and the laws then in force.

The l-egal answer to these objections is that none of those defects or illegalities were stamped on the face of the tax collector’s deed, which is valid in form and contains a detailed recital of a compliance with all the forms and other requirements of the laws then governing such sales.

As we said in the case of Giddens vs. Mobley, we can but repeat here: “A possessor cannot be deprived of the right of pleading prescription, because he might by inquiry and careful examination discover that his vendor had no title,” or that the tax sale under which he claims as a basis of prescription was defective on account of some latent illegality or irregularity.

We now reach the question which was discussed on appeal only and on which the record is not satisfactory.

It involves the proposition that plaintiffs, who were_ minors when they acquired the rights of their mother, had not been of age ten years previous to the institution of this suit, and that as prescription does not run against minors, it had been suspended a sufficient time to defeat the plea as a means of defense.

That the minority of plaintiffs suspended prescription as long as it lasted, is a proposition which cannot be controverted. C. C. arts. 3522, 3544. The record shows that they were both minors in the year 1869; and their counsel contends that one of them reached the age of majority in 1875, and the other in 1879, only.

But on this point the record is absolutely silent. Hence we have no means of legally ascertaining the precise time at which they both reached their respective majority. It stands to reason that the point is of vital importance to the final and just determination of the controversy, which hinges on the question of prescription.

On the face of the record, and under the law, as we have shoupi. the case is witli the defendants on their plea of prescription, but the ends of justice compel us to remand the case in order to solve the question of the alleged suspension of prescription through and by means of the alleged minority of plaintiffs during a portion of the ten years necessary to sustain the plea; and for that reason only we must reopen the case and reverse the judgment appealed from.

It is therefore ordered that the judgment of the district court herein be reversed; and that the case be remanded to the lower court for trial exclusively on the question of the alleged prescription of ten years by reason of the minority of plaintiffs extending to a time less than ten years before the 16th of October, 1884; the true intent of the trial thus ordered being to legally ascertain the precise time at which the two plaintiffs herein readied their respective age of majority,.either by the lapse of time or by legal emancipation. Costs in both courts to abide the final determination of the cause. 1

On Application eor Rehearing.

Manning, J.

Among the reasons urged by the defendants’ counsel why a rehearing should be granted, is that the opinion does not pass upon his plea of prescription of two, three and five years, and if the plea of ten years’ prescription should not be borne out by the evidence we have ordered to be taken, that he desires to avail himself of these ‘shorter terms. Those pleas were not passed on because the case was rested on the ten years’ plea, but the defendants are not and will not be precluded from urging those pleas, if the longer term shall be found not to be sustained.

Rehearing refused.


text:
    No. 9636.
    Scannell & Lafaye vs. R. Beauvais.—John Hennessey & Bro. Third Opponents.
    If a vendor of parts and pieces of machinery of a sugar mill, which are detachable, permit them to be sold confusedly with the mass of machinery and the sugar house, without provoking a separate appraisement of them, he loses his privilege upon them.
    A vendor of such pieces of machinery has no privilege upon the sugar-house and the acre of ground on which it stands and the other machinery in it, and if he ignores the privilege he has and sets up and attempts to enforce the privilege lie has not, he will lose that which he has and will be remediless.

      PPEAL from the Twenty-second District Court, Parish of St. James. Duffel, J.

      Sims d; Poehé for Plaintiffs and Appellants.
    A. J. Murphy for Third Opponents and Appellees.
   The opinion of the Court was delivered by

Manning, J.

The plaintiffs provoked the sale of the defendant’s sugar plantation by executory process and bought it. On the day of sale, John Hennessey & Bro. filed a third opposition, claiming $2,-694 61, of which $2,400 was for machinery sold by them and alleged to be then in the sugar-house, and the residue was for repairs to machinery. They asserted a privilege superior in rank to the plaintiffs’ mortgage upon the sugar-house and the acre of ground upon which it stands.

The machinery sold by the third opponents is described by them as “Two clarifiers and fittings; one copper evaporator and fittings; one skimming tank, in three compartments; two boilers; one steam and mud drum, with fittings; one No. 3 Knowles plunger pump and steam pipe for same.” They prayed for and obtained an order for a separate appraisement of the sugar-house, acre of ground, and all the machinery therein contained, which was made, the separate appraisement amounting to two thousand five hundred dollars. The opponents did not pray for or obtain a separate appraisement of the machinery sold by them, and the same was sold by the sheriff with the plantation and all of its appurtenances, which were adjudicated to the purchasers, in globo.

The plaintiffs answered the opposition by denying the existence of the privilege as claimed, but the opponents had judgment according to their prayer and the plaintiffs appealed. They have sold the plantation to other parties, and these join in the appeal.

The sugar-house was built in 1870, and has been operated ever since. The machinery of the opponents was sold by them to the defendant in 1883. The testimony is that the several pieces detailed above were movable by their nature and could have been removed without injuring the house or other machinery therein.

The vendor of a movable has a privilege on it for the price :

“ But if he allows the things to be sold confusedly with a mass of other things belonging to the purchaser, without making his claim, he shall lose the privilege, because it will not be possible in such a case to ascertain what price they brought.” Rev. Civ. Code, Art. 3228.

The opponents allowed the parts or pieces of the machinery upon which they had a privilege to be sold confusedly with the other machinery and the sugar-house, and did not cause them to be appraised separately, nor did they claim or attempt to enforce a privilege upon them, but instead claimed the privilege upon tlie sugar-house and all the machinery and an acre of ground, and had these appraised separately .

Had they claimed the privilege they really had upon the machinery they had sold, and caused it to be appraised separately, they could have enforced their claim. Caslin vs. Gordy, 32 Ann. 1285; McIlvaine vs. Legare, 36 Ann. 359. But they liad no privilege upon the sugar-house and the machinery in bulk and ground. They ignored and abandoned the privilege they had, and set up and attempted to enforce a privilege they had not, and the penalty they suffer is the loss of what they might have secured, for they are now remediless.

It is therefore ordered and decreed that the judgment of the lower court is avoided and reversed, and that the plaintiffs have and recover of John Hennessey & Bro., and of James M. Hennessey, liquidator of that firm, their costs on the third opposition in the lower court and the costs of appeal.

Pochio, J., takes no part herein.


author: Fenner, J.

text:
    No. 9676.
    In the Matter of the Estate of Jacob E. Moseman—On Opposition to Final Account of Administrator.

      A policy of insurance on the life of aman vests the rights to the policy and to the fund arising on the happening of the loss, at the date of the execution of the contract. This has been frequently held in cases where third persons are tlie beneficiaries, and the same rule must apply when the beneficiary is the insured himself or “his administrators, executors or assigns.” Hence when such a policy is talcen out by an unmarried man, the rights and interests thereunder belong to his separate estate, and do not fall into a community aúsing under a subsequent marriage. If in such case, premiums have been paid by the community, itis entitled to have such payments reimbursed to it as expenditures made by it for the benefit of the separate estate of the insured spouse.
    .4 PPEALfrom the Twenty-third District Court, Parish of Iberville. ¿\ Talbot, J.

      Pugh and Poise for Opponents and Appellants.

      Hamid H. Barrow, Contra.

      Alex. Hebert for the Administrator, Appellee.
   The opinion of the Court was delivered by

Fenner, J.

Jacob E. Moseman died intestate, having been twice married, leaving six children, offspring of the first nuptials, and a widow and one child of the second.

The active mass of his succession is composed of two items, viz: First. The sum of $3,012 91, amount collected on two insurance policies on the life of deceased. Second. The sum of $396 45, an amount collected for salary due the deceased.

The passive mass (as slightly amended in the decree of the court) consisted of $436 70, privileged debts, and $103 28, ordinary claims, besides $1,100 due to the children of the first marriage on account of paraphernal funds of their mother received and converted by deceased.

The administrator, in his account, assigned the entire active mass to the community, deducted the entire passive mass (including-the $1,100 due the above children) therefrom, gave one-half the residue to the wife, and divided the other half equally between all the children. To this account the widow filed an opposition denying the existence of the debt of $1,100 allowed in favor of the children, and claiming that, if allowed, it should be paid as a debt of the separate estate of the husband out of his share of the community, and also claiming that she was entitled to the usufruct of the share of the community assigned to the children.

The children of the first marriage also opposed the account on the ground that the sums received from the insurance policies belonged exclusively to them, or, if not, to the separate estate of deceased and not to the community of the second marriage.

Thereupon the widow filed a supplemental opposition, claiming that, in case the preiensions of the children of the first marriage should be sustained, she and her minor child would be entitled to the homestead right of $1,060 on the ground of their necessitous circumstances. There were other grounds in the widow’s oppositions not necessary to mention.

The judge, in his final decree, amended and restated the account, as follows:

1st. He approved the administrator’s assignment of the entire active mass to the community.

2d. He held the debt due the children of the first marriage to be a separate, and not a community, debt.

3d. After deducting the remaining passive mass from the entire active, he divided the residue between the widow and the husband’s succession.

4th. From the latter’s half, he paid the debt due the children of the first marriage, and divided the residue equally between all the children, but decreeing the widow entitled to the legal usufruct of said residue.

From this judgment, the children of the first marriage have alone appealed. The widow obtained an order of appeal but failed to perfect the same by giving bond. Neither she, nor any appellee has filed any answer in this court praying for any amendment of the judgment in their favor.

The only error in judgment appealed from urged in this court by the only appellants before us, is as to the disposition of the sums collected on the insurance policies.

The admitted facts are that, at the time when the policies were taken out, Moseman was a widower; that the policies were taken out for his own benefit and payable to “Jacob E. Moseman, his executors, administrators or assigns;” that he paid several premiums on them before his second marriage, and several after that event, the latter undoubtedly, out of community funds.

The legal question is whether, under such circumstances, the money collected on the policies after his death, belong to the community or to his separate estate.

Mr. Bliss, in his work on Life Insurance, after quoting several other definitions, says: “The best one is that given by Bunyou, who says: ‘The contract of life insurance is that in which one party agrees to pay a given sum, upon the happening of a particular event, contingent upon the duration of human life, in consideration of the immediate payment of a smaller sum, or certain equivalent periodical payments, by another.’” Bliss on L. I., § 3.

Every man possesses an insurable interest in his own life, and he may insure it in his own.favor, or in favor of any third person having the requisite interest therein.

The contract creates certain rights and obligations which spring into existence the moment it is formed. Thus, at the date of the policies, Moseman acquired for hjmself the right to receive, at his death, through his executors, administrators or assigns, the sums stipulated to be paid, subject to the condition of compliance with his own engagements to pay the premiums as they fell due.

This condition having beeu complied with, “lias a retrospective effect to the day that the engagement was contracted.” C. C. 2041. The character of the interest and of the ownership thereof takes its impress from the date of the contract.

This is the logical result and inevitable corrollary of the principle settled in our jurisprudence that the title and interest of the beneficiary, when a third person, vest at the date of the contract, and are indefeasible thereafter without his consent. Succession of Kergler, 23 Ann. 455; Saccession of Hearing, 26 Ann. 326; Succession of Clark, 27 Ann. 270; Succession of Bofenschen, 29 Ann. 714; Pilcher vs. N. Y. L. I. Co., 33 Ann. 324.

It is impossible to apply a different rule to the case whore the beneficiary is the insured himself and his legal representatives after his death, and we are bound to hold that the interest of Moseman under these policies, having vested before his second marriage and at a time when he was a single man, belonged to his separate estate, and did not enter inio the subsequent community.

We are of opinion, however, that the community is entitled to reimbursement of the amount of the several premiums which were paid, after the marriage, out of its funds,

We are aware that, in the case of insurance by the husband for the benefit of the wife, it has been held that the latter takes the fund without liability to reimburse the community the premiums paid by it. Succession of Bofenschen, 29 Ann. 714.

Without now affirming this decision on this point, it is sufficient to say that it rests on the principle that the wife receives directly from the insurance company and that the fund does not enter at all as an asset of the succession.

This principle can have no application here, because the insurance is for the benefit of the succession and necessarily forms a part of its assets to be distributed according to law. Hence the premiums paid by the community fall under the common rule entitling it to reimbursement out of the separate estate of all expenditures made by it for the separate benefit of the latter.

These views obviously require a restatement of the entire account; for while, in the condition in which this appeal is presented, we can make no amendment of the decree below except in favor of the appellants, and while the allowances made in favor of all the creditors must stand as to their amounts, yet as the provision made for their payment was so made upon the assumption that the whole estate was community, and as we now transfer the major part thereof to the separate estate of the husband, it is essential that the creditors should be referred for payment to the respective estates to which the law entitles them to look.

As these questions have not yet been passed on by the lower court, we deem it best to remand the case for restatement of the account according to instructions.

The same views apply to the claim of the widow and minor for the homestead allowance of $1,000. We cannot pass upon it now. But, as it was only conditionally presented to the lower court to be considered only in case the insurance funds should be assigned to tbe separate estate, and as, that condition not happening, it was rever considered at all, we do not think she was bound to appeal from a judgment with which she was satisfied, or that she should be debarred from urging her claim, when, by tbe effect of our decree, tbe condition upon which her claim may arise has, for the first time, happened.

It is, therefore, ordered, adjudged and decreed that tbe judgment appealed from, in so far as it fixes tbe amounts due tbe several creditors, be affirmed, and that, in other respects, it be and is annulled, avoided and reversed; and it is now ordered, adjudged and decreed that the case be remanded to the lower court for a restatement of the account and for further proceedings according bo law, with instructions to assign to the separate estate of the deceased the funds arising from the policies of insurance and to refund therefrom to the community the amount of premiums paid during the existence of the latter, and to distribute the separate and community estates according to law among the creditors heretofore recognized and the widow and heirs, without prejudice to the right of the widow and her minor child to assert her claim to the homestead allowance of $1,000, and to have the same passed on by the court according to the law and the evidence. Costs of this appeal to be paid out of the succession.


author: Manning, J. Bermudez, C. J. Manning, J. Manning, J.

text:
    No. 9497.
    John McDougall vs. Pascal Monlezun et als.
    The last article of the Code defining litigious rights to be those which cannot be exercised without undergoing a lawsuit, does not apply to those litigious rights from which one can be released by paying the real price of the transfer under Art. 2652, because the next article particularly defines this latter right to be litigious whenever there exists a suit and contestation on it. These two articles regulate a particular hind of litigious right, and there must be au existing suit for the enforcement of it, or release cannot be had by paying the price of its transfer.
    The fact that a suit may be necessary to enforce a claim does not make the claim a litigious right.
    Where a peremptory exception, sustained below, has been reversed on appeal, and the record leaves in doubt whether a trial on the ir et its vas had, the cause vill be remanded for atrial thereof.
    APPEAL from the Twenty-fifth District Court, Parish of Lafayette. DeBaillon, J.

      Breaux <& Benoudet for Plaintiff and Appellant.

      M. E. Girard, O. O. Mouton and O. JD. Oaffery for Defendants and Appellees.
   The opinion of the Court was delivered by

Manning, J.

The plaintiff sues to recover a tract of laud of seven huudred and twenty arpeuts, in Lafayette parish. lie acquired title from Otto Meine, in April, 1883, and Meine acquired from T. 0. Starke, and Starke bought at a sheriffs sale in 1866.

In 1873 and 1874 (Meine being then the owner) the land was forfeited for non-payment of taxes and was returned as forfeited to the Auditor’s office, in December of 1874 and 1875, respectively. On the 6th of the following May (1876), the tax collector of Lafayette sold the land by public auction, and William Brandt bought it for $65 64, and received from the collector a deed which contained the usual stipulation that the owner might redeem the property within six months. On the 31st of the same month, Meine redeemed the land and obtained from the Auditor his certificate of redemption, and this certificate was recorded in Lafayette the following month, June 15,1876.

It must be noted that Brandt was then the recorder, and himself recorded this certificate of redemption.

Notwithstanding this certificate of redemption, obtained the same month that Brandt had bought at the tax sale, obtained too through the instrumentality of Brandt who was Meine’s agent, and notwithstanding this certificate had been recorded by Brandt himself officially in the next month after his purchase, he sold the land to one Salles in the following January (1877), and this Salles was the deputy'of the tax collector and had himself signed the certificate of redemption before its transmission to the Auditor, wherein he certified that Otto Meine had redeemed the land and paid the forfeiture.

Monzelun acquired from Salles four months after Salles took his deed from Brandt, viz: in May, 1877. These three are the defendants.

During the progress of the trial the defendants peremptorily excepted that the plaintiff had bought a litigious right, the reprobation of which bv law prevented his recovery. The court did not act on the exception then and the parties proceeded, but the trial being concluded, judgment rested upon that exception alone. It was sustained, and the plaintiff had judgment for one hundred dollars, the price paid by him for the land, with interest from the date of his deed to the filing of the exception.

Litigious rights are defined in the last article of the Code to be those which cannot be exercised without undergoing a lawsuit. This article is exclusively occupied with definitions, and begins with the declaration that whenever the terms of law employed in the Code have not been particularly defined therein, they shall be understood as defiued in that article.

A litigious right had been particularly defined in the body of the Code in these words: Aright is said to be litigious whenever there exists a suit and contestation on the same. Art. 2653. We do not conceive that this anterior and particular definition overrides and supersedes that subsequently and generally given. On the contrary the two articles are not inconsistent, as was pointed out in Pearson vs. Grice, 6 Ann. 238, where the Court said: “It is only when forced to commence a lawsuit that it is ascertained that the claim cannot be exercised without undergoing a lawsuit, and it becomes a litigious right by the commencement and existence of the lawsuit.”

The definition in Art. 2653 applies to that kind of litigious right which in the article next before is said one can be released from by paying the price at -which it was.bought. There are different kinds of litigious rights. Article 2652 permits him against whom a litigious right.has been transferred to get released by paying the real price of the transfer, and the next article declares when a l-fght is said to be litigious. The collocation of the two articles forces the conclusion that the kind of litigious right that one can be released from by paying the real price of it is that one, the enforcement of which is resisted by an existing suit. Else why the definition immediately following. These two articles are necessarily construed together. They form parts of the same subject-matter, and manifestly relate to and regulate the particular kind of litigious right that is there under consideration, enacting first how one may be released from the attempted enforcement of a litigious right, and then defining what is the litigious right from the enforcement of which this means of escape is provided.

The decisions of this Court have uniformly restricted the meaning of this kind of litigious right to the terms employed in Art. 2653. In Denton vs. Willcox, 2 Ann. 62, the Court dismissed the objection curtly, although from the note of the Reporter it appears to have been argued with citations of numerous authors. It was a purchase of a judgment which was final in that case. This was followed by Marshall vs. McCrea, 2 Ann. 79, where the demand was unquestionably litigious at the date of the transfer, as it was the subject of a suit then pending-, but that litigation had ceased and the Court said the demand had lost its litigious character by a judgment which had finally deteimined the rights of the parties. See also Consol. Assoc. vs. Comeau, 3 Ann. 553. In Pearson vs. Grice. 6 Ann. ut supra, it was emphatically said this Court has uniformly refused to avoid the sale of a thing on the giound that it was a litigious right unless suit had been brought to enforce the riglitjat the time of sale, and this was cited and applied in Grayson vs. Sanford, 12 Ann. 646. This was succeeded by Billiot vs. Robinson, 13 Ann. 529, where the Court went further than it had yet done and held/ although there was not a formal contestatio litis at the time of sale, it appeared from the particular facts of that case that the right purchased was litigious. There was, however, no abrasion of the general rule established by the antecedent decisions, the Court resting its judgment on the special facts of that case.

There was no suit pending at the time of the purchase by the plaintiff of this land, and the fact that a suit might possibly be necessary to enforce his claim to it does not constitute it a litigious right, and therefore the exception of the defendants was improperly sustained.

The affairs of modern commerce would be seriously hampered by a narrower construction of our codal provisions touching litigious rights. No one could safely purchase a mortgage-note lest perchance the maker of it should resist its payment by flimsy pretexts of the invalidity ot the mortgage, albeit his resistance might be merely for delay.

Recurrence to the French authorities in the explication of the provisions of our Code corresponding to those of the Napoleon Code are rendered unnecessary when a series of our own decisions have settled the meaning of our own text, but as the lower judge quoted Pothier to sustain his ruling, it is pertinent to remark the fact that his teaching-on this subject did not prevail in redacting the Napoleon Code:

“Pothier enseignait que ces expressions comprenaient toutes les eróanees qui sont contestées ou peuveut l’étre, eu total on en partió, par celui qu’on prétend débiteur, soit que le procés soit deja coinmencé, soit qu’il ne le soit pas encore, mais qu’il y ait lieu de l’appréhender. Au contraire, le President de Lamoignon n’admettait le retrait que lorsqu’il y aurait litige engage, ce qui etait également professé par Rousseaud de la Combe et par Mornae. Les rédacteurs du Code ont adoptó cette derniére opinion et ils ont declaró dans Part. 1700, que la chose .est censóe litigieuse des qu’il y a procos et contestation sur le fond du droit.” Répertoire Général, 5 tome, 910, secs. 70-2. See the full discussion of the French commentators in 13 Ann. 529-535.

From the statement of the chain of title hereinbefore given, it is manifest that the plaintiff is entitled to recover. He derives from Otto Meine, who had redeemed the land from the tax sale within the time permitted by the statute under which it was sold. The defendant, Monlezun, derives his title from that tax sale, the effects of -which had been nullified by the redemption. His immediate vendor is the deputy of the tax collector who had himself signed the certificate of redemption, and his vendor in turn is the recorder who had recorded that certificate. And all these acts had been done several mouths before either of these defendants began to create that simulacrum of title which they urge now to defeat the plaintiff’s claim. Brandt and Salles were unquestionably in bad faith, and there is nothing in this record to shew that Monlezun was not in like condition.

It is therefore ordered and decreed that the judgment of the lower court is reversed, and it is further decreed that the plaintiff have and recover of the defendants the tract of land described in his petition, with costs of both courts.

Dissenting Opinion.

Bermudez, C. J.

The right of the defendants to be relieved, depends upon whether or not the right acquired and sought to be enforced is a litigious right.

The proof in the record leaves no' doubt that when McDougall purchased from Meine he was, fully aware that the pretensions of the latter to the land in question could not be enforced before the sale, without undergoing a-lawsuit.

He had been informed, in answer to overtures which he had caused to be made to defendants, that they would not yield, unless to the superior power of law. So that he was meare, not only that a suit was possible, but that it was certain.

It is worthy of note that the purchase price was $100, for property actually worth several thousand dollars.

The Code contains in its body two articles on the subject of litigious rights, viz: Art. 2447, which forbids the purchase of such rights by certain officers of the law; and Art. 2652, which refers to all other persons whomsoever, against whom litigious rights may have been validly, transferred.

The former does not define litigious rights. The latter declares a right to be litigious whenever there exists a suit and contestation on the same.

This declaration is undoubtedly correct, as far as it goes; but it is incomplete, for Art. 3556 (18) R. C. C., with which the Code closes, further defines litigious rights to be those which cannot be exercised without undergoing a lawsuit.

Potliier, who wrote before the Napoleon Code was framed, and from whose commentaries copious extracts were made and incorporated in that remarkable body of legislation, says:

On appelle Oréances litigieuses celles qui sont contestées, ou peuvent l’étre, en total, on en partie, par celui qu’on en prétend le dóbiteur, soit que le procés soit deja commence, soit qn’il ne le soit pas; mais il faut qu’il y ait lien de l’appróhender.” Vente No. 581.

After giving this definition, which sets forth with precision and particularly what constitutes a litigious right, the author proceeds to illustrate.

His definition, though qualified by Merlin, is kindred to that which the latter himself gives while dealing with this subject. Vo. Droits ptigicux No. 1.

Pothier’s definition was not however embodied in the Napoleon' Code, which simply relates to such rights when actually in litigation.

That definition was not adopted in the Code of 1808, which followed in the main the Napoleon Code; but the jurists who revised that body of laws thought differently from the “Gonseil (VJ$tat.'n They amplified the existing legislation and perfected it by incorporating Pothier’s definition substantially in the Code of 1825, which still rules under the name of the Revised Code of 1870.

Hence it is, that although Articles 2652, 2653 and 2447 of our Code substantially correspond with Articles 1699,1700 and 1597 of the French Code, no vestige of Article 3556 (18) is to be found in it.

Article 1699, C. N., with which Article 2652 (2622) of the L. C. corresponds, derives from two Roman laws (per dwersas et al> Anastasio), made in dislike of buyers of suits.

Pothier says that the legislation had for its purpose to put a stop to the cupidity of purchasers of litigious rights and to judicial conti over - sies. Pothier Vte. 591, Maleville, Conseil d’Etat, Dec. 31, 1803.

Tn the case of Billiott vs. Robinson, 13 Ann. 535, in which the que stion of the construction of those various provisions of the Code of 1825 (retained in that-of 1870, R. C. C.) was presented, the Court, while pretermitting any formal or decisive opinion, actually said:

“If a technical eontestatio litis had not been formed, the parties have admitted in their solemn acts that a real one was before them.”

In Spears vs. Jackson, 30 Ann. 525, the Court did not undertake to solve the question.

In Duson vs. Dupré, 33 Ann. 1132, the present Court announced, after quoting Pothier and comparing the various articles, tiiatTa^litigious right is that which cannot be realized without undergoing a lawsuit, or a right touching which there exists a suit or a contestation.

This conclusion is undoubtedly correct.

The language found in Article 2652,"'that “a right is(said to be litigious whenever there exists a suit and .contestation over the same, is not a definition.

It is an illustration of what may be a litigious right. It is nothing-after all, but this: that whenever there exists a suit and contestation touching a right, that right is said to be litigious.

To define is to express with precision the constituent ingredients of the essence of that which is to be defined — incongruous, accidental and extraneous features being left out — in such manner that the definition will not apply to any other object than that defined.

The article does not assume to define with any particularity what a litigious right is in general. It merely declares that a disputed right in suit is a litigious right, and does not assume to propound that none but such litigated rights are litigious rights.

There exists a material and glaring dissimilitude'between litigated and litigious rights.

The former are such as are actually contested in court; the latter such as may be disputed there, or are open to contestation.

So that the words “litigious rights'1'' would rather apply, in their general sense, to'rights not in actual suit.

Owing to the circumstances then, that the exact and full meaning of the terms litigious rights is not given in the article, it becomes necessary, in order to ascertain what are the true real characteristics which constitute ^essential ingredients or elements of a litigious right, to have recourse to Article 3556, which was framed for the special purpose of expounding the signification of law terms used in the Code, and not therein particularly defined.

Paragraph 18 of that article determines and announces- broadly and emphatically that “ litigious rights are those which ecmnot he exercised without undergoing a lawsuit."

This definition is essential. It is exact, full, precise and ample. It embraces within its extensive compass all rights, as well such as are actually in litigation before the court, as such as may eventually be litigated and which cannot be exercised without a lawsuit.

From this view of the law, it is manifest that the right purchased by plaintiff and here sought to be exercised, was a litigious right to the knowledge of plaintiff and has not ceased to be such, and -that under the special provisions of Article 2652, the defendants are entitled to get released by paying to the transferee the real price of the transfer.

I therefore dissent.

Mr. Justice Poché concurs in this opinion.

On Application for Rehearing.

Manning, J.

The defendants complain of our decree in every particular. We adhere to our opinion on the question of litigious rights, but the record leaves a doubt in our minds whether tlie trial on the merits was had in full. The transcript is a bungle and may well have misled us, and as the judgment of the lower court was on the exception alone, we shall remand the case for a trial on the merits. The rehearing is granted. -

On Rehearing.

Manning, J.

It is ordered and adjudged that our decree reversing the judgment below remain unaltered, and that the other branch thereof whereby final judgment was rendered in favor of the plaintiff is avoided and set aside, and the case is remanded to the lower court for further proceedings according to law, the defendants to pay the costs of appeal and those of the lower court to await the final decision of the cause.

Bermudez, C. J., absent.

Poché, J., concurs in the decree remanding tlie cause.


author: Poché, J.

text:
    No. 9660.
    C. D. Favrot vs. City of Baton Rouge.
    Xh© Supreme Court has no jurisdiction over tax suits regardless of the amount; involved, unless the legality or constitutionality of the tax be in contestation.
    Hence in a suit which presents the question of the legality of a tax, and in which the tax is resisted on the further grounds of illegality of the assessment, and irregularities in the mode of levying and of collecting the tax, tlie court will entertain the appeal on ¿me branch of the contestation, the illegality of the tax, and will ignore the appeal on tbo other branch of the case.

      A tax of ton mills by the city of Baton Rouge is not illegal because it does not conform to the limit of municipal power of taxatiou as fixed by the charter of 1878. That feature of the charter must yield to, and be controlled by Article 209 of the Constitution. The decision in the case of Laycock vs. City of Baton Rouge affirmed.
    APPEAL from tlie Seventeenth District Court, Parish of East Baton Rouge. Burgess, J.

      O. J). Favrot and Knox & Laycoejc, for Plaintiff and Appellant.

      B. F. Bmnot and Favrot & Lawson, for Defendant and Appellee.
   Motion to Dismiss.

The opinion of the Court was delivered by

Poché, J.

A statement of tlie jdeadings is necessary to a proper understanding of tbe grounds of the motion to dismiss this appeal.

Plaintiff enjoined the sale of his property for municipal taxes claimed thereon for the year 1882, and for several years previous thereto.

His grounds are in substance:

1. That the rate of taxation claimed of Mm is in excess of the restriction placed to the taxing power of the city of Baton Rouge by its charter, which is Act 44 of 1878.

2. That there was no legal assessment; that tax rolls had not been exposed for correction according to law; that the budget had not been published ten days prior to adoption, and defective descriptions of the property.

The main ground of the motion is that the aggregate amount of the taxes herein involved is not equal to the lower limit of our jurisdiction, and that we are without jurisdiction over the questions involved in the alleged illegality of the assessment and of the mode of collecting taxes.

The point is well taken, it is conceded that the total amount of the taxes is not equal to our jurisdiction, and it is clear that questions involving the legality of the assessment and the mode of levying' and coilecting a tax, do not affect the legality or constitutionality of the tax itself, over which question alone this court has jurisdiction irrespective of the amount involved. Adler, Goldman & Co. vs. Board of Assessors, 37 Ann. 507. State ex rel. David vs. Judges Court of Appeals, not yet reported. Henry C. Minor vs. J. C. Budd, sheriff, not yet reported.

It follows that we have no jurisdiction over that branch of the case. Hence we must decline to consider the questions -involving the alleged illegality of the assessment of plaintiff’s property and the numerous alleged irregularities in the manner of levying and of collecting the tax, and as to that branch of the case, the appeal is ignored.

On the merits, the only question involving the legality of the tax which is herein resisted is the ground that, as the charter of the city of Baton Rouge limits its power of municipal taxation to the rate of taxation by the State, the limit to municipal taxation as fixed by the Constitution of 1879, does not apply or have reference to that corporation,, whicli remains restricted to the rate of six mills, as fixed by the Constitution for the State.

The identical question was presented to us, was fully discussed, maturely considered and finally disposed of in the case of Laycock vs. City of Baton Rouge, reported in 36 Annual, p. 328.

It is worthy of note that the attack on the taxing power of the corporation to the extent of ten mills was then led by the same counsel who represent appellant m the present case.

They now urge that the case was not then fully presented to the court. This modesty is very commendable, but candor compels us to say their argument presents no essential point which is not met in the opinion, and that their position has not been fortified by the lapse of time.

We can add nothing to the reasons which support our decision in that case, and we must conclude, with the District Judge, that the point of resistance is without force, excepting for years previous to the year 1879.

His judgment dissolved the injunction for the taxes claimed for the years 1879, 1880, 1881 and 1882, and we find it correct. Judgment affirmed.