author: MoEnery, J.

text:
    No. 10,782.
    Crescent City Brewing Company vs. Joseph Flanner.
    The Board of Directors of a corporation has the undoubted right to sell property of the corporation to pay its debts.
    But when the Board of Directors sells the property to one of the members of the board to pay debts, it must appear that there was a necessity for the sale, that the property was bought by the director in open market, at a fair price, without any undue advantage over the corporation, in good faith and without the slightest unfairness.
    'When the Board of Directors v7ho sold the property made the sale necessary by its mismanagement, one of the directors on said board will not be permitted to purchase the property. ,

      A PEEAL from fclie Civil District Court for the Parish of Orleans. ■'*- King, J. _
    Buck, Dinkelspiel & Hart for Plaintiff and Appellee:
    X.
    Tlie directors of a corporation hold to stockholders the relation of trustee and cestui que trust. This fiduciary relation disables them absolutely from becoming-the purchasers of the property of the corporation which they represent.
    II.
    A private sale of valuable real estate, the property of a corporation, therefore made on a resolution of the Board of Directors consisting of five members, by a vote of three of them, to one of their own number, is, if not absolutely null and void, voidable as matter of law, without proof of fraud or unfair dealing, at the option of the cestui que trust. Succession of Stansborougli, 37 An. 27S; Michaud vs. Girod, i Howard 303; Waterman, Taylor and Morawitz on Corporations, cited in brief; Wardle vs. It. R. Co., 103 U. S., page 651; Jackson vs.
    I.udeling, 21 Wallace; European Railway Co. vs. X’oor, 31 Me. 277; Sweeney vs. (3rape Sugar Co., 30 W. Va. 113, and authorities cited below.

      Harry H. Hall and W. 8. Benedict for Defendant and Appellant:
    1. The property in controversy was not purchased for the use of the brewery; was not a requirement to its successful operation, and its purchase was not originally contemplated in the scheme of the erection of the brewery.
    2. The sale of tlie property in controversy was, as is shown by the uncontradicted testimony in this ease, an absolute necessity, and alone prevented the utter insolvency of the corporation.
    3. The Board of Directors referred to did not wreck the corporation. On the contrary, by the sale of the property referred to, they prevented its destruction, and, as a matter of fact, in spite of the vicissitudes through which the company passed, i.t never was wrecked, but paid all of its obligations and the stockholders in full, and is now, under'a different name, in successful and prosperous operation.
    1. The sale was fair, open, made by the advice of experienced auctioneers, wa the highest price that could be obtained, and was made in such manner as would have been adopted by a sensible man indisposing, under the circumstances, of his own property.
    S. Such being the circumstances, the sale was justified by law, as well as by equity, reason and common sense. Morawitz on ITivate Corporations, Yol. 1, See. 527; X0 An. 53; 91 U. S. 590.
    •6. Whatever right a corporation whose property is sold by its directors may have to set aside that sale, such right is not transmissible, and can not be transferred lo another corporation between whom and said Board of Directors and said purchaser there existed no privity.
   The opinion of the court was delivered by

MoEnery, J.

The Crescent City Brewing Company under the laws of this State, organized in 1887 as a corporation for the purpose of purchasing vacant or unimproved real estate in the city of New Orleans, and constructing thereon and conducting a brewery for the manufacture of beer and malt liquors, and for the sale of all products of the brewery.

Its capital stock was $250,000, in 2500 shares of the value of $100 each.

The powers of the corporation were executed and its business managed by a board of directors, composed of five stockholders, a majority of whom constituted a quorum.

In pursuance of Article 11 of the act of incorporation, on the 17th day of September, 1887, the company purchased (1) a square of ground in the second district in the city of New Orleans, designated by the municipal number 188, bounded by Canal, Customhouse, Claiborne and Robertson streets; (2) a certain piece or portion of ground, comprising about three-fourths of a square, designated by the municipal number 187, bounded by Canal, Customhouse, Robertson and Villeré streets, the whole price being $100,000.

The property last described is that in controversy.

Joseph Elanner, who purchased the above described property from the company, was a member of the board, of directors when he made the purchase.

On the 19th of July, 1888, a special meeting of the board of directors was called for the purpose of disposing of said property. At the meeting of the board a resolution was adopted which recited that the above property was idle capital, and it was resolved to sell the same to Joseph Elanner for the sum of $20,000. The president was authorized to transfer the property to Elanner. Elanner was present and voted blank, and one of the directors voted nay on the motion to adopt the resolution.

The deed was made to Elanner, and he went into possession of the property.

On the first Monday in February, 1890, a new board of directors was elected, and at its first meeting, February 8, 1890, a resolution was adopted repudiating the action of the former board in selling the property to Elanner, the former director and vice president of the board, and authorized a tender to be made to him in conformity to law, and on his failure to re-transfer said property to the company, suit should be instituted against him for the property. The tender was duly made, and Flanner refused to accept the same and re-transfer the property. This suit was then instituted to avoid the sale to Planner as illegal, voidable, as an unfair and suspicious transfer of property by a trustee to himself, he being one of the board of directors who derived substantial pecuniary advantage therefrom.

On the 17th May, 1890, the New Orleans Brewing Association purchased all the property and assets of the Crescent City Brewing Company. The property in controversy was conveyed among the other assets, with a recital of the pendency of this suit for its recovery, and the New Orleans Brewing Association was authorized to have itself, recognized as a party plaintiff therein, to carry on the suit at its own expense, and for its own account, to final termination. It appeared in court and was subrogated and entered of record as plaintiff.

The corporation acted within a reasonable time in the institution of this suit to set aside the sale. The first board of directors, elected after the sale occurred, at its first meeting, repudiated the sale and authorized this suit.

It does not appear that any meeting of the shareholders had been called, and this sale submitted to them for ratification, nor does it appear that they had any notice of the transaction.

In a ease similar to the instant one, where the relations of the parties gave rise to suspicions, this court in the case of Hancock vs. Holbrook, 41 An. 53, announced the principle of law which should govern, as follows: “As a strictly legal question, the right of a board of directors of a corporation to apply its property to the payment of its debts, and the right of the majority of the stockholders present at a meeting called for the purpose to ratify such action and to dissolve the corporation, can not be questioned.

“ But when such action is taken at the instance and through the influence of the president of the corporation, and when the debt to which the property is applied is one for which he is himself primarily liable, and especially when he acquires, in his personal right, the property, thus disposed of, such circumstances undoubtedly subject his acts to severe scrutiny, and oblige him to establish that he acted with the utmost candor and fair dealing for the interest of the corporation and without taint of selfish motive. Twin-Lick vs. Marbury, 91 U. S. 590.”

And to the same effect .is the doctrine in Morawitz, Private Corporations, Vol. 1, Section 527, which says: “But a transaction between a director and a corporation, even if the latter was represented by a majority of the board, will always be scrutinized by the courts with strictness, and will be set aside at the suit of the corporation, upon proof of the slightest unfairness or imposition practised upon it.

“A director will not be allowed to obtain any advantage over the corporation, of which he is agent, through his position, on the information which he has obtained of the affairs of the corporation, or his influence over his co-directors.”

The circumstances attending the sale were of that character which will not bear the above test.

It is alleged in the resolution which authorized the sale that it was idle property. The defence is that the sale was a necessity, as the affairs of the company were in a desperate condition, and it was jecessary to sell the property in order to raise money to complete the brewery building.

The property was purchased for the use of the brewery as an absolute requirement to its successful operation. It was necessary to have a separate lot from the one on which the brewery building was located, under the United States revenue laws, for a bottling ■establishment.

This is made certain by the fact that after the property was purchased by Flanner, he leased a part of it to the company from which he had purchased it, for the very purpose for which it had been originally bought.

That he thought it would be necessary for the company to repurchase it, is apparent from the declaration that he would resell to the company on reimbursement of the purchase price.

This declaration he afterward affirmed under oath in the United States Court, in the matter of the application for the appointment of a receiver.

The sale, therefore, was not advantageous to the company, tut, ■on the contrary, was an obstacle, an embarrassment, to the successful operation of the brewery.

The sale does not seem to have been an imperative necessity. The outstanding subscriptions for stock had not been collected, and there were bonds of the company unsold.

But in this desperate condition of the company, before the sale of ■any property which was essential for its success, the stockholders ■should have been convened and their interest consulted.

The record shows that the wreck of the company was through the fault and mismanagement of the board of directors, who sold the property to one of its members.

This is the judicial admission made by the board in the matter of the appointment of the receiver in the United States Court. It is said that this was only a pro forma admission for the purpose of having a receiver appointed, but it is, nevertheless, the solemn judicial admission of the board of directors. It would be the grossest injustice to the stockholders and against the soundest principles of public policy to permit a board of directors, to whom the .affairs of the corporation have been committed, under the plea of the necessity to pay the debts rendered necessary by their mismanagement, to allow them to sell the property of the corporation and to become the purchasers.

The sale was not made in open and fair market, but by agreement among the directors.

Several persons were asked to purchase the property. But in a large commercial city it would be unreasonable to suppose that the directors could, by private inquiry, exhaust the list of buyers. It would have been prudent, at least, to have fixed a minimum price on the property and offered it to the public through the usual channels for selling city property.

There • were several auctioneers consulted, but it seems their advice was solicited more in the interest of protecting the purchaser than fixing a just price .on the property.

That Elanner bought the property for his own interest and advantage, with a view of its speculative value, is, we think, fully disclosed in the record. According to his own statement he sacrificed in securities more than $3000 to raise the cash to pay for the property.

Subsequent évents proved it a profitable investment. He refused, in accordance with his own sworn declaration, to re-transfer the property to the company and the lease of the property to the brewery, and his estimated value of $10,000 on a part of it shows that the company lost by the sale. We do not reflect upon the motives of the directors nor of the purchaser. They had no intention of committing a fraud upon the stockholders, and no actual fraud has been committed, within the ordinary meaning of the word. They undoubtedly thought they were at the time acting for and in the interest of the corporation in the desperate condition of its affairs, and the sale of the property, ander the circumstances, would be justified.

They took the advice of their attorney, who advised the sale. But the corporation suffered an injury, nevertheless, and the relations of the parties were such that the law will not permit the slightest advantage to appear against the corporation of which the purchaser is a director. Such acts are held constructively fraudulent, and voidable at the election of the principal.

Judgment affirmed.


source: Caselaw Access Project

author: Breaux, J.

license: Public Domain

text:
    No. 10,765.
    Mrs. Kate Farelly vs. Metairie Cemetery Association et als.
    The acts of defendants, entrusted with enforcing rules ancl regulations of an association, do not bind them so as to prevent them from recognizing changes that have taken place since the title deeds were issued to lots in their cemetery.
    They have the right to limit all interments in lots to the members of the family owning lots and their relatives.
    The plaintiff not having been placed in charge of the property, it having been placed by the testatrix in charge of another, she can not recover judgment.
    APPEAL from the Civil District Court for the Parish of Orleans. King, X _

      Aug. Bernau for Plaintiff and Appellant:
    Vnder Sections 386 and 387 of the revised Statutes of Louisiana acts of sale in cemeteries are made equally authentic and .in part full proof as if they had been passed before a notary public and two witnesses. Consequently the recitals therein are entitled to all the privileges and protection extended to the same by law and can not be contradicted by parol. C. C. 2276, 2238,2242, 2236, 2237; 40 An. 167, McKenzie vs. Bacon; same 336, Anderson vs. Beanham;82 An. S39,Bayle, tutrix, ot als. vs. “Ward; 35 An. 505, Carey vs. Richardson. A fortiori, where the party seeking to contradict the contents of such deeds, is a party to the act.
    The proof of loss of- primary evidence which would authorize the introduction of secondary evidence must depend upon the particular circumstances of each case. 2 An. 190, Sexton vs. McGill; and where the better evidence is in the possession of the adverse party, secondary, evidence to establish the purport or recitals of the same is admissible. 12 R. 456, ICraeutler et al. vs. Bank of the TJ. s.-; and the onus is on him who has the best means of knowledge; 15 An. 663, Rowman vs. MeElroy et al.
    Where secondary evidence was admitted into the records without objection being made thereto, such evidence shall be binding and be given full force and effect. TX. fi. 551, Tate vs. Penne; 19 La. 4S2, Iluey vs. Dinkgrave; 2 Robinson 221 and 222,Langfit et als. vs. Railroad Co.; 15 An. 300, New Orleans vs. Dispersed of Judah; 21 An. 454, Vale vs. Olivier et al; 15 An. 529, Cox vs. Bradley.
    Real property purchased and standing in the name of one person can not by parol evidence be shown to belong to another person, though such other person may have given the money for the purchase thereof, and the party in whose name the deeds were made out had been the agent of the complainant; nor will evidence be admitted to establish the fact that a person other than the one in whose name the title deed has been made out is the real owner of the property, though the party who had title made in himself had fraudulently applied money stolen by him or unlawfully acquired, to effect the purchase. Nor is evidence admissible that property standing in the husband’s name was really the wife’s property, having been purchased with the wife’s separate funds and by her husband placed in his own name without authority. 3u An. 89S, Hackenberg vs. Gartskamp, tutrix, et al; 32 An. 635, Perrault, tutrix, vs. Perrault et al.; 26 An. 446, George vs. Campbell; same 751,French,Executrix, vs. Bach et al.; 12 An. 213,Heiss vs. Cronin; 15 An. 539,Barbin, Administratrix, vs. Gaspard et al.; 14 An. 61, Wood vs. Harrell. Nor are building contracts and receipts for payment on the same admissible in evidence for the purpose of proving the ownership of real property, the transfer of real estate being provable only by a written title. 12 An. 261, Boyle vs. Succession of Leitcli.
    The title of the Metairie Cemetery Association showing the ownership of a lot in a particular person can not be contradicted by proof that the apparent owner of such lots had been repaid the purchase price of the same. Secondary evidence introduced to introduce this fact, which is admitted to be true by the president of the cemetery association, is entitled to the same protection as the primary evidence itself.
    One who loans money to another wherewith to purchase real property, which property so purchased is placed in the name of the borrower, does not give the right to the party who loaned the money to claim any ownership in said prop • erty.
    Nor is the person who loans money to another with which to purchase property, or pays for the property for another, entitled to a vendor’s lien, nor has he any privilege thereon. Labouisse vs. Cotton Rope Mfg. Co., Vol. 9, Southern Reporter, p. 204 (May 27, 1891). • The respondent cemetery association is bound by it own rules andregulations, and where the laws of the association reserve the burial places in the cemeteries for the exclusive burial of members of the family and relations of the owner, an heir and near relative of such owner, holding and claiming under such owner, is entitled to an injunction to restrain the burial of a stranger, who is not related to the family, in the family tomb.
    Whore a testatrix has left her property to various legatees, and one of her legatees is placed in charge of her tomb, it will be presumed, in the absence of other evidence to the contrary, that such tomb was to be reserved and preserved for the purpose of burial in accordance with the laws of the cemetery association, and where such legatee disclaims having taken charge of the tomb and dedines being made a party to a suit, and disclaims any interest therein, and actually withdraws from the suit, — the respondent association will not be permitted to prop up its unauthorized intermeddling- with the affairs of others by championing the rights of a party who disclaims having' any interest in the contest.
    Where after judgment has been rendered against a party dissolving an injunction,, with damages and costs, such party applied for a new trial; and shows to the court that she has discovered themissing primary evidence, the loss of winch-east her in the suit, and annexes to her rule for a new trial a strong affidavit,, and the original title deeds, showing conclusively that if the case bereopened, the matter adversely decided would be determined in her favor, it is the duty of the court, in furtherance of justice, to grant a new trial. 2 An. 225, Stone vs. Rose; 22 An. 521, Robinson vs. Howell. And where such new trial was improperly refused by the lower court, the Supreme Court finding in the record the necessary evidence, will not remand the case, but at once proceed and render such judgment-as should have been rendered by the lower court, lsi An. 270, Beebe & Co. vs. Kaiser & Bryan.

      Gus A. Breaux and Ohas. B. Stafford for Defendants and Appellees,
   The opinion of the court was delivered by

Breaux, J.

Mrs. Kate Farelly, the plaintiff and appellant, was granted a writ of injunction against the Metairie Cemetery Association; also, against the sexton of the cemetery, and against the Sisters of St. Mary’s Boys Orphan Asylum.

In her original petition she alleged that she is the sole heir of Mrs. Mary Burke, her late aunt, who was the owner of a tomb in Metairie Cemetery, which, by her will, was left in charge of the Sisters of the asylum before mentioned, for the burial of the members of her family.

That the defendants had given authority to bury in this tomb a deceased person not related to her family, and that his remains would be placed therein unless defendants are enjoined.

In a supplemental petition she alleged error in her original petition, in having alleged that she is the sole heir, there being other heirs and legatees.

There was no objection made during the trial to this supplemental petition; not supported by affidavit or bond. It was placed at issue by answer and is now properly part of the pleadings.

In their answer, the defendants aver that plaintiff is without title or interest in the tomb claimed by her.

That it was paid for by Edward Burke, the deceased husband of the late Mary Burke, or by the executor of his will.

That if this tomb was a part of the property of the succession of the late Mary Burke, it was left, by her will, in the care and charge of the Sisters of St. Mary’s Catholic Boys Asylum.

The Sisters of this asylum, without their consent and in error, having been joined in this answer with the other defendants subsequently presented a separate defence, in which they alleged that they are absolutely without interest, as the St. Mary’s Catholic Boys Asylum is a chartered institution, of which they are not the legal representatives. This asylum is represented by the board of directors.

On the trial it was proven that Edward Burke died in June, 1880. His heir is a daughter, Mrs. Goddin. By last will, he appointed Augustine Burke his executor, and made him his residuary legatee.

In September, 1-880, five lots of ground, containing 360 superficial feet, were purchased for the sum of $500, and the title issued in the name of Mrs. E. Burke.

Plaintiff’s witness, the president of the association, testifies: “ The title to lots in the cemetery is made out to the one to whom the party paying for them directs, and that the appearance of the latter, as the party signing the deed of purchase, is not required.”

Another witness for plaintiff identified the lots, and is the one who contracted for the tomb in which the remains of Mrs. Burke now lie, and testifies to its being the Burke tomb.

The secretary of the St. Mary’s Boys Asylum testifies that on reading Mrs. Burke’s will they were informed that their board had charge of the tomb, but as they had never been authoritatively placed in possession of the tomb, they never took any special step in the premises.

By him it was proven that application had been made to place the body of Mrs. Ethelred Stafford, a niece of E. Burke, in the Burke tomb.

He wrote in answer that the asylum could not raise any objection to the use of the tomb by actual relatives of Mrs. Burke. The plaintiff does not oppose the placing the remains of Mrs. Stafford in the tomb. The contention arises in opposition to placing the remains of her husband, Ethelred Stafford, in that tomb. '

A receipt was filed in evidence showing that the executor of B. Burke’s estate paid at one time $1000 “on account of tomb built for the estate.”

The entire cost of the tomb, viz., $3150, was paid for by the executor of that estate, with the written approval of Mrs. Burke and of Mrs. Goddin, his daughter.

The executor filed a final account, which was opposed by his widow, in which she claimed to be refunded the amount paid by her for the lots. i. e., the said $500 paid by her for the succession of Ed. Burke.

Mrs. Burke died in 1884.

She bequeathed one-eighth of her property to the St. Mary’s Boys Asylum, and left the tomb in charge of that institution.

The plaintiff also was one of her legatees.

Plaintiff pleads the authenticity of the transfer to Mrs. Burke under Sections 385 and 387 of the R. S., and that it can not be defeated by parol.

The defendants contend that under the rules and regulations of the association, all interments in lots in the cemetery are restricted to the members and their relatives, and that it devolves upon them to enforce these rules and regulations.

It is admitted that the Sisters of St. Mary’s Boys Orphan Asylum were made parties in error, and that they are without any interest in the suit.

Judgment was rendered in favor of defendants dissolving the writ of injunction.

An application for a new trial was made and overruled.

The motion for a new trial relates that the copies of deeds issued to Mrs. Burke were not introduced in evidence for the reason that they could not be found, as they were in the possession of the executor of Mrs. E. Burke’s estate, who did not know that he had them.

The plaintiff objected to a question to the president of the Metairie Association, propounded with reference to the entry in their books, in the name of an individual, not necessarily showing ownership, on the grounds that they are estopped by the recitals of the deed of sale, and that parol evidence is not admissible.

The first ground relating to estoppel will be hereafter considered. As to the second, the testimony being verbal, will not be considered in determining the rights of the parties, in so far as it does not refer to facts testified to by the witness when he was examined in chief. This witness for plaintiff testified: “ When a party comes in and pays for a title, we make out the title to whoever he directs; of course we know no one except the party he names. If he takes another man’s money and asks us to make the title in his name, we issue it in his name as we would in any one else’s.”

The record discloses that the title issued to Mrs. Burke.

That the tomb was paid for by the estate of the husband.

It was intended as a family tomb by Mrs. Burke, and by the heirs of her husband.

In this tomb their remains should rest undisturbed. They are now protected by the rules and regulations of the Cemetery Association.

She bequeathed one-eighth of her property.to the St. Mary’s Boys Asylum, from which a round sum was realized, and directed in her will that the constituted authorities of that asylum should have charge of the tomb.

They have not been made parties to this suit.

The authentic character of the recital from the defendant’s books and of the title issued are relied upon by the plaintiff.

The defendant association is bound by these and can not be heard to deny any of its acts in matter of the issuance of this title.

But if it be shown by competent evidence that Mrs. Burke was not the owner, the defendant company can take notice of the fact and invoke its rules, maintaining the rights of the members.

Changes may take place, transfers may be made, agents may have acted in their own names and afterward acknowledged the titles of their principals, the tomb may be owned by another than the owner of the land.

In all these possible occurrences the defendant company is not es-topped from applying its rules so as to carry out the intention of the organization.

The trust is important.

The association should not be held estopped unless grounds are manifest and conclusive.

If by her acts or declarations Mrs. Burke has conclusively shown the ownership to be in her husband’s estate, this fact can be established at defendant’s instance.

If, as contended by the plaintiff, the evidence is parol, it can not prevail against the title as issued.

But if, by written evidence, it be proven that the price was paid by the executor, from the husband’s estate, the plaintiff is without right of action.

The tomb was paid for by the estate of the husband.

The payment was made by the executor, not as a loan to Mrs. Burke, but in satisfaction of the price, as shown by her written approval.

As to the lots, she filed an opposition, claiming the amount paid by her.

Counsel for the defendants states that this opposition has been maintained; that the amount was paid to Mrs. Burke.

There is no evidence of payment of record. The payment is not denied by plaintiff’s counsel.

As to the plaintiff, it is manifest that whether Mrs. Burke has been paid or not, she is without right, for the tomb has been placed in charge of the St. Mary’s Boys Asylum. If the land is not paid, its value, relative to the tomb, is small, of which plaintiff would own only a fractional portion, were her claim allowed. In any event, be the interest what it may, Mrs. Burke has shown a regard for the memory of her husband which strongly appeals to the equity of the court.

Her remains are now near his.

Her will, as expressed, should be respected and the charge complied with by the St. Mary’s Boys Asylum legatees and beneficiaries.

With the consent of that authority, the defendant association can act in matter of enforcing their said rules and regulations.

In her motion for a new trial, plaintiff alleged diligence in her attempts to procure needful evidence.

Questions of diligence in procuring evidence is left in great part to the District Court.

The plaintiff’s oath that another did not know that he had these title deeds is not sufficient to entitle her to a new trial.

She testified as a witness that they had been delivered to the executor, or were seen in his possession.

He was not called upon during the trial to testify with reference to his possession of these titles.

Our conclusions, as above expressed, do not make it necessary to amend the judgment appealed from.

Judgment affirmed at appellant’s cost.


author: Fenner, J.

text:
    No. 10,911.
    Mrs. Maria Weintz et al. vs. Peter J. Kramer et al.
    1. The prescription of one year is not applicable to an action brought upon the bond of a notary public for failure to perform the duties incumbent on him.
    2. The obligations of the bond of a notary publfc in New Orleans are governed by Section 2521, R. S , which is a special statute with reference to notaries of this parish, and which has heretofore been construed by this court to extend liability in favor of persons other than those who actually employ the notary.
    8. A bond for the “ faithful performance” of duties voluntarily assumed and done for personal profit involves something more than mere horesty — it involves care, attention, diligence and reasonable competency.
    4. The decision in Weiek vs. Henno, 41 An. 1153, is vindicated and approved.
    5. A notary undertakes the confection of a testament by public act, with full knowledge that its validity depends on the most exact fulfilment of the formalities required by law. He is reminded of this and guarded by the requirement to make “ express mention” of these formalities, and that they have been complied with. The formalities are clearly and plainly stated, and the notary has only to follow the language of the law to be safe. If he chooses to deviate from the law and to substitute language of his own choice to convey the same meaning, he does so at his own risk and can not throw resulting loss on innocent persons.
    6. The measure of plaintiff’s loss is the amount which she would have received on her legacy after payment of succession debts and privileges. Where the succession has been administered and an account rendered and homologated, such judgment must be accepted as prima facie correct, and throws upon plaintiff the burden of proof in any attackjon the items of the account.
    APPEAL from the Civil District Court for the Parish of Orleans. Monroe, J. _
    A. L. Tissot and Henry P. Dart for Plaintiffs and_Appellees:
    1. When a notarial will is annulled because the notary failed to state the residence of the witnesses after the manner required by the statute, he is liable to the legatee whose legacy fell as a result of said annulment.
    2. The sureties on his official bond are responsible in solido with him. Rochereau vs. Jones, 29 An. 82; Schmitt vs. Drouet, 42 An. 1084; Dalloz, Vol. 39, p. 349, et seq., Nos. 802-307, 389, et seq., Nos. 424, etseq.; Idem, Vol. 8, pp. 1-26-29.
    3.The action by such a legatee is ex contractu. Eox vs. Thibaut, 33 An. 33. Should it be held ex delicto, the cause of action begins at the rendition by the Supreme Court of the judgment annulling the will. Hotard vs. R. R. Co., 36 An. 550; Scott vs. Seslye, 39 an. 749.
    A. J. Lewis, W. S. Benedict, H. Heidenhain and E. Warren for Defendants and Appellants:
    1. This is an action sounding in damages and prescribed in one year, dating from the death of the party from whom rights are claimed. O. C. 3536, 3537; 31 An. 529; 6 Robinson, 384, 566; Code Napoleon, Art. 1382.

      2. A notary public exercises a profession, and is not responsible in damages for mistakes in language in the reception of a nuncupative will by public act. Any losses resulting therefrom are damnum absque injuria. Act April 8, 1868, 16th La. 312; 5 An. 282; 23 An. 710; 29 An. 82.
    3. If liable, responsibility exists in favor of contractor and heirs, not legatees. 42 An. 1064.
    4. Prescription of one year from date of death in action brought as for property prevails more particularly when such property is not described nor identified.
   The opinion of the court was delivered by

Fenner, J.

The plaintiff was a legatee of the late Frank P. Burger, who bequeathed her two lots of ground, with the improvements, in New Orleans.

Burger’s will was taken in nuncupative form by public act before Peter J. Kramer, Esq., notary public. The will was subsequently attacked by certain of the heirs, and the same was annulled by this court upon the express ground ‘‘ that the notary who executed it failed to state that the attesting witnesses were residents of the parish of Orleans, the place where the same was executed. See 41 An. 1153.

Being ousted of the legacy under this decision, she brings an action against Kramer and his sureties for the value of said legacy, alleging that she has lost the same by reason of the fault, negligence, imprudence and want of skill and inattention to his business of the said notary.

There is no dispute that Kramer was regularly appointed a notary public by the Governor; that Thuem and Hassinger were his sureties on his official bond.

The condition of this bond is that the notary “ shall well and faithfully discharge and perform all the duties incumbent upon him in and for the parish of Orleans, and for the faithful performance of all duties required by law toward all persons who may employ him in his profession as notary in accordance with the act relative to notaries.”

The petition was met by exceptions of prescription of one year and no cause of action.

The plea of prescription is disposed of by our decision in a like action upon the bond of a notary, where we said: The prescription of one year is based on the hypothesis that the action is one for damages for a quasi offence. We are not concerned here with the question as to whether defendant’s breach of duty was, or not, technically a quasi offence. The action is on a bond, and, therefore, ex eontraetu, to which the prescription invoked is not applicable.” Brigham vs. Bussey, 26 An. 676; Pox vs. Thibaut, 33 An. 33.

The exception of no cause of action is based upon the idea that the obligations under the bond are governed exclusively by the terms of Section 2503 of the Revised Statutes., which provide that the notary’s bond shall be “ conditioned for the faithful performance of all duties required by law toward all persons who may employ him in his profession of notary,” and, therefore, that as plaintiff did not employ this notary and the petition does not so allege, it sets forth no breach of the bond and no cause of action thereon. Without deciding that this would be a proper construction of this statute, it is sufficient to say that, with reference to notaries in the parish of Orleans, the broader requirement of Act No. 609 of 1857 is reproduced and held in force by Section 2521 of the Revised Statutes, which exacts a bond conditioned “ for the faithful performance of his duties.” The bond in this ease, as shown by our above quotation of its terms, was evidently framed to comply with requirements of both these sections. The effect of the condition prescribed by the Act of 1857, and Section 2521, Revised Statutes, has already been construed by this court. The suggestion that it applied only in favor of persons employing the notary was repudiated, and the court said: “The Act of 1857 fixes, as the broad and legitimate condition of the notary’s bond, that he shall faithfully perform his duties in that capacity.” Rochereau vs. Jones, 29 An. 84.

There can be no doubt that this bond, given by a notary of New Orleans, is governed by Section 2521, Revised Statutes, which is a special statute applying exclusively to notaries of this parish and must prevail over the general provision of Section 2503, which applies to the notaries of the State, generally. We observe that Section 2521 has been again reproduced in the latest act touching notaries in New Orleans, Act No. 42 of 1890.

If the contentions of defendants were well founded there would be no liability under the notary’s bond for any fault or misconduct however gross in that most important of all notarial functions, the confection of testaments. No one could be injured by the nullity of the testament except the legatees, and as they are not the persons who employed the notary, they would have no recourse.

The further legal defence'is interposed that the bond does not guarantee the competency of the notary, but only his fidelity and honesty. Such is not the tenor of the bond, which is conditioned that the notary shall well and faithfully discharge and perform all the duties incumbent upon him,” etc.

Our jurisprudence recognizes no such restriction, but has held the notary and his sureties responsible for faults of omission or commission unattended with any suggestion of fraud or dishonest intent. Brigham vs. Bussey, 26 An. 676. Fox vs. Thibaut, 33 An. 33.

In a later case we distinctly said: “The stipulations which the bond contains constitute the contract entered into, and must be strictly construed. The object contemplated was to make certain that the notary would discharge well and faithfully all the duties incumbent upon him, and in case of his failure to do so, and loss was sustained thereby, to hold the surety liable. * * * Before the notary and his surety can be held, it is necessary to inquire whether the act done or not done, committed or omitted, was or was not authorized by law, was or was not incumbent upon him, was or was not required of him, whether he was directed to do it, whether he has failed to discharge his duty, and whether injury has been sustained.” Schmitt vs. Drouett, 42 An. 1064.

It is true that the State takes certain other precautions to secure the competency of notaries by having them examined, etc., but, not content with these, it adds the obligation of the bond to protect people who are interested in the due and proper performance of their duties. That protection would amount to little if it only guarded against intentional dishonesty and fraud.

Although the statute only requires a bond for “faithful performance,” such “ faithful performance ” of duties voluntarily assumed and carried on for personal profit involves more than mere honesty —it involves care, diligence, attention and reasonable competency.

The defendants next deny that the notary here committed any fault, and they assail the correctness of the decision of this court in Weick vs. Henne, 41 An. 1153, which annulled the will. As defendants were not parties to that suit, they are not technically bound by the judgment. But we see no reason to change the conclusion therein reached. If it was a strict application of the law, it was made in a matter in which, above all others, the law enjoins and requires the utmost strictness. Baudry la Oantinerie, in his admirable commentary on the French Code, says: “ The most common cause for annulling testaments by public act is for want of or defect in the express mention (of fulfilment of the forms required). It would be wrong to blame the courts for the severity with which they enforce this requirement, because that only, manifests the respect for the authority of the law which inspires their decisions. The blame, if any, ought to rest upon the legislator, who has perhaps exceeded the just measure of rigor in regard to these formalities.” 2 Baudry la Oantinerie, Droit Civil, No. 561.

We rest our decision in the case referred to upon our respect for the authority of the law, which requires that express mention should be made that the witnesses were persons “residing in the place where the will was received,” meaning thereby residing in the same parish. To say that they were “ witnesses residing in the neighborhood ” certainly does not fill the requirement, and the reasons are sufficiently given in the opinion.

Finally, it is contended that such an error on the part of the notary is not a fault of so grave a character as to subject him to responsibility, being a mere error of judgment, which a discreet and diligent man might have committed. We have no desire to exaggerate the fault of the respectable notary who acted in this case. But his error was sufficiently grave to entail the nullity of the will and to subject the plaintiff here to the loss of her legacy.

He knew that the validity of the will depended upon the most exact and scrupulous fulfilments of the formalities prescribed by law. The directions of the law are precise and unambiguous. He had only to use the terms of the law itself to be absolutely safe. If he chose to substitute other terms, he did so of his own motion and at his own risk, and can not throw the resulting loss on innocent persons who had the right to rely on his proper performance of the duties incumbent on him. The words of the statute are not sacramental, but the words used must be such as expressly declare fulfilment of the formalities. “Implication is not to be resorted to unless, at least, it be an implication necessarily involved in the meaning of the express words used.” Succession of Rosa Vi'dal, Ante, p. — .

It is important that notaries should be impressed with the gravity •of their responsibility when they undertake the confection of testaments which involve the devolution of entire estates and the execution of the final wishes of the de eujus with regard to those who come after them. They know that their validity depends on the strictest compliance with the law, and they should follow the plain letter of the law, or assume the responsibility of any deviation. The very object of the requirement of “express mention” is to guard them against neglect or forgetfulness, and to fix their responsibility.

Under the French law, from which our system is derived, we are referred to many authorities unequivocally upholding the responsibility of notaries for such errors. Dalloz Repertoire, Vol. 39, Nos. 302, 307, 389, et seq., and 424; Id,, Vol. 8, pp. 1-26-29, where the authorities and decisions are referred to. We conclude, therefore, that the judge a quo did not err in holding defendants responsible for the damage suffered by plaintiff.

The measure of this loss is the amount which plaintiff would have received had the will been valid.'

It appears that the succession of Burger (the de eujus) was duly administered. It consisted exclusively of the real estate bequeathed to plaintiff and to another legatee, which was sold under order of court and realized (with some rentals) the sum of $2505. The administrator filed an account, showing disbursements on account taxes, privileges, costs, etc., and leaving a net balance of $939.55. Amongst the liabilities on the account allowed by the court was an item of $500 paid to Che widow “ as per compromise.” The judge a quo thought the defendants carried the burden of proof to show the correctness of this payment. We consider it fairly presumable that the court allowed the item as due to the widow, either in payment of a debt due or of her privilege as widow in necessitous circumstances, in either of which cases the claim would prime the legacies. The defendants are entitled to the benefit of the presumption that this judgment of the court was correct, and if plaintiff desired to attack it, the burden of proof was on her. We must, on this ground, amend the judgment.

It is, therefore, adjudged and decreed that the judgment appealed from be amended by reducing the amount thereof from $824.99 to $626.36, and as thus amended the same is now affirmed, appellee to pay costs of appeal.


text:
    No. 10893.
    Succession of Rosa Vidal.
    1. In a proceeding, in a succession under administration by a testamentary executor, by an heir to annul the will and the probate thereof and to be recognized as sole legal heir and as such to be put in possession of the succession, questions of title to specific property are foreign to the issue, and should not be engrafted on such a proceeding. The heir when recognized takes tlio rights of the succession as they are; no more no less.
    2. Under the law of Louisiana a testament is a solemn act dependent fox' existence upon compliance with the forms prescribed by law.
    3. The Code requires that a testament by public nuncupative act shall bereceived by the notary, dictated-by the testator, written down by notary and read to the testator, all in the presence of the witnesses, and that express mention must be made in the will itself that all the foregoing requirements have been complied with.
    4. Where such a will only recites that the will was read in the presence of the witnesses and does not declare that it was dictated and wx'itten down in their px’esenco, the omission is fatal.
    APPEAL from the Civil District Court for the Parish of- Orleans. Bightor, J. _

      Merrick & Merrick for Plaintiff and Appellee:
    1. The supposed nuncupative will by public act in controversy is void because there is not therein “ any express mention that the will was received,” by the notary, “ or was dictated by the testator orwritten by the notary, in the presence of the witnesses.” C. C., Art. 1878. These defects are fatal under Art. 1593, as has been expressly held in a case entirely parallel. Duval vs. Palms, 20 An. 203; Weick vs. Heine, 41 An. 1155; Succession of Vollmer, 40 An. 597, and numerous cases therein cited. The <. ase of the succession of Wilkins, 21 An. 115, cited approvingly in the opinion of this court in the Vollmer case, declares the very form adopted in the present case to be void. See also Miller vs. Shumaker, 42 An. 400; Succession of Sparks, 12 Rob. 38 and 39; Graves vs. Graves, 10 An. 212; Christine, tutor, vs. Verbois, 11 An. 108.
    2. Theunc.le of the deceased is nearer of kin by one degree than the cousins (he * being in the fourth degree and they in the fifth), and he is entitled to the inheritance to their exclusion, li. C. C. 914 [910].
    3. A party who files a petition in court, claiming to be the nearest of kin and sole heir of the deceased person, Rosa Vidal, and also her universal legatee under a will which he sets up as valid, and who has obtained a decree on such allegations probating the will and appointing him executor, and who has'eaused an inventory to be taken and has filed a petition for the homologation of the inventory by public act which he signed, and has obtained a decree homologating the inventory, and who has to a petition filed therein by another party denying his heirship and alleging the illegality of the supposed will filed a general denial, which contains a negative pregnant in these words, viz.: defendant “ pleads and avers a general denial to each and every of the allegations in the petition of Antonio Bilbenny, plaintiff herein, except as hereinafter admitted. Further answering respondent avers that he is the owner in possession of the property referred to, in good faith, by just titlb and by right of law, and that the plaintiff herein has no right of action in the premises, all of which he is ready to verify by proceedings at law in this Honorable Court, as well as by fact;” concluding with a prayer for judgment quieting him in title. and possession of his property will not put at issue any other title than that claimed through Rosa Vidal as heir and legatee by the defendant in this case and denied by the plaintiff in his petition, and the defendant can not be permitted to attempt to prove under the pleadings that the effects inventoried by him at his instance did not belong to the estate as shown by him in his formal proceedings in the Vidal succession of which this suit is an incident, but belonged to him personally in virtue of some other pretended claim antagonistic to his title as heir at law and universal legatee of Rosa Vidal affirmed by his general denial. Walker vs. Walker, 87 An. 107; Citizen’s Bank vs. Munroe, 87 An. 857; Gradley vs. Conner, 4 An. 416. Allegations that “plaintiff had not complied with his contract is only a legal conclusion.” 47 Fed. Rep., p. 43 No. 3; Rooks vs. Williams, 13 An. 374; Pargoud vs. Guice, 6 L. R. 77, bottom of page; Fortier vs. Zimple, 6 An. 55, last paragraph of page; Graydon vs. Justus, 24 An. 222; Cornell vs. Hill, 30 An. 251, No. 2 syllabus. “AYhat a party does not allege he can not prove,” Giraudel vs. Mendeburne, 3 N. S. 509; Dumartrait vs. Deblanc, 5 Ñ. S. 38 and 39; Ponsonby vs. Devaillon, 6 N. S. 243; Benoit vs. Hebert, ID. R. 214; Dixon vs. Emerson,9D. R. 107; Compton vs. Compton, 9 An. 499; Lyons vs. Jackson, 4 Rob. 265; AVells vs. Dezier, 9 An. 119; Colm & Bruen vs. Levy, 14 An. 355; Schneider vs. Letchford & Co., 21 An. 271; Paul LeVyson & Co. vs AVard, 24 An. 158,159; Drew vs. Attakapas Mail Trans. Co., 26 An. 306; Perkins vs. Potts, 8 An. 14 and 15; Dorsey vs. Hills, 4 An. 107; Pipes vs. Garrett, 1 Rob. 19; Rawitzki vs. L. & N. R. R. Co., 40 An. 47, 51.
    4. The defendant is also estopped by his acts. They can not be controverted by him except possibly under specially alleged circumstances supported by affidavits. Any other rule would render all legal proceedings and titles insecure. R. O. C., Art. 1106 [1098], 1108 [1101], No. 1; Webster,guardian, vs. Smith, 6 An. 710; Succession of McCloskey, 29 An. 406, 407; Board of Liquidators of Hart & Hebert vs. Huguet, 33 An. 362; Boatnervs. Scott, lRqb. 551, 552; Verret vs. Belanger, 6 An. 109; Gaudet vs. Gauthreaux, 40 An. 186. See authorities cited Compton vs. Sanford, 30 An. 838; Lippmins vs. McCrane, 30 An. 1251; Alexander vs. Bourdeer & Bellesein, 43 An. 322; Marsh vs. Smith, 6 Rob. 518.

      W. S. Benedict for Defendant and Appellant.
   The opinion oí the court was delivered by

Fenner, J.

After the death of Rosa Vidal, one Francisco Bilbenny, her cousin, presented to the court a notarial document, purporting to be the testament of deceased by public nuncupative act, by which he was constituted her universal legatee, and alleging that he was also her heir-at-law, prayed that the will be probated and ordered for execution; that an inventory be taken, and that he be appointed and qualified as testamentary executor.

The will was accordingly probated; Francisco Bilbenny was appointed and qualified as executor, and an inventory was taken, exhibiting, as the only property of the succession, certain real estate therein fully described and valued at $3000.

No further proceedings had been taken, when one Antonio Bilbenny, a resident of Barcelona, Spain, appeared and filed a petition, in which he averred that he was the legitimate uncle of deceased and her nearest of kin and sole legal heir; that the will, which had been probated, was null and void; that the succession owed no debts, and that, as sole heir, he accepts the same, purely and simply; that the succession property consists of the real estate which had been described in the inventory, together with the fixtures and stock in trade of the business therein conducted; that he was entitled to the recovery and possession of all said property, and he prayed for judgment annulling the will and the probate thereof, and recognizing him as sole heir of deceased, and, as such, entitled to recover and be put in possession of all her estate, real and personal, and that Francisco Bilbenny, so-called testamentary executor,” be cited and be decreed to deliver the real and personal property belonging to the succession, and to account for the same and for the rents and revenues thereof.

Francisco Bilbenny answered, pleading, first, the general denial, and further averring u that he is the owner in possession of the property referred to in good faith and by just title and by right of law, * * all of which he is ready to verify by proceedings at law in this honorable court, as well as by fact.”

In the course of the trial under these issues, the defendant sought to introduce certain evidence tending to show an independent title to the property not derived from the succession, to . which the counsel for plaintiff objected .on the ground (substantially) that Francisco Bilbenny was estopped from claiming adverse title to property which the inventory, taken and homologated at his own instance, declared to be property of the succession.

The judge a quo ruled out the testimony, but on grounds different from that stated in plaintiff’s objection, viz.: that the only question before the court here is as to heirship vel non, and not as to ownership of property, * * and no evidence is admissible here as to ownership of any specific piece of property claimed to belong to the succession of Rosa Vidal.”

To this ruling the counsel for both sides excepted.

Counsel for Antonio claims that, by his answer, Francisco had put at issue the title to the specific property, and had propounded a title in himself, resting on nothing but his denial of Antonio’s allegations, and that his title must stand or fall by the decision of the issues as to the nullity of the will and heirship.

Counsel for Francisco contends that he has set up an adverse title generally, based on law and fact, and had the right to establish such title by all appropriate evidence.

The judge concluded, as we think rightly, that this is an action by an heir to annul a will and the probate thereof, and to be recognized as sole heir of deceased, and as such to be put in possession of her estate and authorized to recover the same. Such is the obvious purport of the petition of plaintiff, as indicated by the prayer thereof, which'we have epitomized above, and which, as we have often held, determines the character of the action.

The obscure and vague assertion of adverse ownership contained in Francisco’s answer can not be permitted to engraft upon such an action the features of a petitory action involving title to specific property, which features are entirely foreign to the relief sought.

An heir when recognized and put in possession succeeds to the rights of the de eujus, whatever they may be, and must assert those rights against adverse claimants by independent proceeding after the decree recognizing his heirship and putting him in possession We do not indicate what further proceedings may be proper in this particular case, by reason of Francisco’s relation as executor; and still less do we determine the soundness of the estoppel set up in the objection to evidence.

This brings us to the consideration of the vital questions involved in the case.

I

As to the nullity of the testament.

The instrument, which is intended as a will by public nuncupative act, is in the following words (omittiDg the dispositions) :

“ Be it known, that on this 20th day of March, 1888, I, R. H. Downing, a notary public in and for the parish and State aforesaid, did repair to the house of Miss Rosa Vidal, inhabitant of the said parish of Orleans and State of Louisiana, where at her request and dictation the following instrument was written by me, the said notary, and declared by the said Miss Rosa Vidal to be her last will and testament.

* }J. * * * *

“ In faith whereof said Rosa Vidal has signed or affixed her mark, she hereby declaring to me, notary, that being unable to sign the foregoing instrument, owing to the fact that she was and has been for some time suffering from paralysis, she has hereto affixed her mark in presence of Messrs. Jacinto Bunol, P. Barreré and Louis Macardhy, witnesses of lawful age, residing in this parish, and me, said notary, after having read the same in a loud and audible voice in the presence of the said witnesses and the testator, and without turning aside to other acts, this 20th day of March, 1888.”

A comparison of this instrument with the one recited at length in the decision in the case of the succession of Wilkin, 21 An. 115, will exhibit a complete identity in every feature having the slightest bearing on the question. In that case the will was pronounced void, because it contained no “ express mention ” that the will was “received,” “ dictated by the testator” and “written by the notary as dictated” in the presence of the witnesses.

A like conclusion was reached in two other undistinguishable eases: Christene vs. Verbois, 11 An. 108; Devoll vs. Palms, 20 An. 208.

In presence of such perfect precedents, it is needless to cite others announcing similar principles in eases only analogous.

Stare decisis would sufficiently support a similar ruling in this case, even if the principle were doubtful, but we consider it, beyond question, sound. Testaments, like donations inter vivos, belong, under our law, to the class of solemn acts, that is acts that depend for their existence upon compliance with the forms prescribed by law.

Our Code requires that the will by public nuncupative act shall be received by the notary, dictated by the testator, written down by the notary, and read to the testator, all in presence of the witnesses ; and that “ express mention ” must be made in the will itself that the foregoing requirements have been complied with. No proof of the most scrupulous fulfilment of every formality would suffice without 'this “ express mention.” No particular form of words is required, but they must be such as expressly declare, in substance, that the foregoing requirements were fulfilled. Implication can not be resorted to unless, at least, it be an implication necessarily involved in the meaning of the express words used.

In this case, it is apparent that there is no “ express mention,” that the dictation and writing down of the will took place in the presence of the witnesses. The only thing which the instrument mentions as having been done in the presence of the witnesses is the reading of the will. It does not follow, by any necessary implication from the statement, that the will was “read in the presence of the witnesses,” that, therefore, it had been dictated and written down in their- presence. Those acts succeed each other in point of time, and it might well be that the witnesses who were absent when the will was dictated and written, might have been introduced in time to hear it read.

The judge rightly annulled the will and the probate thereof.

II.

The sufficiency of the proof of the sole heirship of Antonio Bilbenny is not questioned and does not admit of question.

The judgment of the court conforms, substantially, to the prayer of Antonio’s petition, and is not subject to any complaint, because it reserves the right to ail parties to contest the ownership of specific property in appropriate form of action. This reservation conforms to the ruling made on the evidence which we have already approved. It passes on nothing and reserves nothing beyond what would have been reserved by law without mention.

Judgment affirmed.


author: Watkins, J.

text:
    No. 10,905.
    Succession of Auguste and Marcel Theze.
    It has long been the settled jurisprudence o£ this court that a purchaser at a judicial sale is held bound to looh to the jurisdiction of the court granting the order of sale; but the truth of the record concerning matters within its jurisdiction can not be disputed, and it has been sanctioned .in many recent eases, and must be adhered to as a rule of property.

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

      Aug. Bernau for the Executor, Appellee:
    Real property sold by the administrator of a succession at public auction, under an order of court obtained on his sworn representations that there ore debts due, and where it appears that there is only one piece of property belonging to the succession, that no minors arc interested therein; that the proceedings on their face were regular and the court had jurisdiction; the purchaser of such property is in such case fully protected by the order of court directing the sale. 41 An. 902, Sucession of Lehman; 42 An. 896-897, Sucession of Romero; 39 An. 67, AVebb et al. vs. Keller; 40 An. 620, Lehman, Abraham & Oo. vs. Worley Administrator; 34 An. 1004, Thos. Nesom vs. Julius Weis et al.
    Though a purchaser of real property sold under an order of court may examine the proceedings, in order to ascertain whether on their face the same are really what they purport to be, and are not partition proceedings intended to deprive minors of all their property, without observing the requirements of the law and under the disguise of a sale to pay debts (as held in the Succession of Dumestre, 40 An.), yet nevertheless, where such proceedings on their face appear to be regular and it appears that in the lower court, the question whether the succession required administration was affirmatively decided by the court which appointed the administrator and directed the sale of the property — a purchaser of such property can not be permitted to inquire into the sufficiency of the evidence adduced before the court, which directed the appointment of the administrator and the sale of the property to pay debts.

      Ernest J. Wenek for Defendant and Appellant:
    1. Although a purchaser may be protected by the order of a court directing a sale in a matter over which it has jurisdiction, yet he has the right to inquire into the validity of the proceedings and conducive to the order of sale to ascertain whether, under the showing made, the court had the power to make the order. His refusal to comply with the adjudication may be justified whenever the order of sale and the proceedings instituted to procure it are on the face of the papers unwarranted by law. 40 An. 571, Succession of Dumestre.
    2. A purchaser at a judicial sale, who, before paying the price or entering into possession of the thing purchased, discovers illegalities in the proceedings which have led to the sale, calculated to throw a cloud upon his title, may refuse to execute the purchase. 9 An. 560; 16 An. 420; 40 An. 571.
    3. The doctrine that a purchaser at a judicial sale is protected by the decree which ordered the sale, and not bound to look beyond it, is not applicable to the case of a purchaser at a judicial sale who, before paying the price or entering into possession of the thing purchased discovers illegalities in the proceedings which have led to the sale, calculated to throw a cloud upon his title. In him there is a locus penitentice afforded by the misconduct or negligence of those with whom he has contracted, and who are the warrantors of his title. The presumption, omnia vita actaftiisse, created by law for his protection, can not be invoked against him as an estoppel, although available to throw the burden of proof upon him of the illegalities of which he complains. Same authorities.

      i. When it appears that the deceased left no debts, no creditors demand an administration, and the administrator, or other representative of the succession, being appointed, provokes a sale to pay debts, which, upon the face of the record, even if due, are created a long time after the death of the owners, and are incident to the real estate, such as taxes and insurance, the sale will be held unwarranted, and in effect a proceeding in partition. In such case, an adjudicatee will not be forced to comply with the terms of such adjudication.
   The opinion of the court was delivered by

Watkins, J.

Augusta Theze and Marcel Theze, being joint owners of the lot and property, with improvements, situated at No. 308 Decatur street, city of New Orleans, a one-half undivided interest was inventoried in each of their successions, which were separately administered — one by an executor and the other by an administrator.

Upon proper representations of the respective legal representatives of said successions, the proper judge granted two separate orders for the sale of said respective interests in said property, to pay debts of said successions, said sales being fixed for the same date, and were to be made on like terms. • •

Subsequently, the two mortuarise were cumulated and afterward treated and dealt with as one succession, and in this situation the sale was made and the property adjudicated to George Sick, at the price of $3400.

He having declined to accept title, said representatives ruled him to show cause why he should not comply with the terms of the adjudication, and, on the trial, his objections being found and adjudged untenable, said adjudicatee has appealed.

The grounds relied upon by defendant in rule are that the said successions, nor either of them, owed any debts, and there was no necessity for either an administration thereof or for the sale of the said property.

As a fact, it appears that the public administrator petitioned the court to be appointed administrator of one of said successions and dative testamentary executor of the other.

That this application was opposed by Henry Theze, an heir of the deceased, the ground of his resistance being that said deceased, nor their successions, owed any debts, and there was no necessity for an administration thereof, and if an administration was deemed necessary, opponent was entitled to be preferred in receiving appointment.

His opposition appears to have been overruled, on the ground first stated, and sustained on the other, he having been qualified and confirmed, and is now acting as administrator and executor.

As the proceedings appear to have been perfectly regular and as the court evidently had jurisdiction of the res, the objections of the adjudicatee do not appear to be jurisdictional, and are, therefore, unavailing to him.

We have so decided in many cases. .

It has long been the settled jurisprudence of this court that a purchaser at a judicial sale is held bound to ‘ look to the jicrisdietion of the court granting the order of sale, but the truth of the record concerning matters within its jurisdiction can not be disputed.” 14 La. 146; 15 La. 182; 7 R. 66; 7 An. 468; 14 An. 154; 26 An. 596; Webb vs. Keller; 29 An. 536; Frazier vs. Zyleck; 31 An. 280; Heineman vs. Janney.

Also, that the “purchaser at a judicial sale of property of the succession is not bound to look further back than the order of the court directing the sale.” Succession of Hubard, 18 An. 485; Woods vs. Hilliard Lee, 21 An. 505; 11 R. 72; 16 La. 440; Nesom vs. Weis, 34 An. 1004.

This doctrine has been repeatedly affirmed in more recent cases. Webb vs. Keller, 39 An. 55; Linman vs. Riggins, 40 An. 761; Succession of Lehman, 41 An. 987: Gale vs. O’Connor, 43 An. 413.

Our understanding of the adjudicatee’s defence is that the record is, in effect, untrue in its statement that the successions of the two decedents owed debts, necessitating an administration and sale. As such, it certainly and evidently invades the rule just announced, that “ the truth of the record concerning matters within the jurisdiction of the court” granting the order of sale “can not be disputed.”

In Webb vs. Keller, 39 An. 55, we maintained the validity of a sale made under an order of court, which had not been preceded by a tableau or statement of debts, and held that debts placed upon a tableau subsequently filed and homologated by the judgment of a competent court were sufficient, because that was “ a mere irregularity, and did not challenge the proceedings as.null and void.”

It is true that that suit was a revocatory action against an adjudi catee in possession; but in Succession of Byrne, 38 An. 518, a suit' like the instant one, we made a similar ruling, stating:

“We do not regard the alleged irregularities, in the partition, of such a character as to cast a cloud upon the title of Madeline and John Bligh Byrne, in the sense of Gasson vs. Palfrey, 9 An. 560, and Succession of Webber, 16 An. 420. Indeed, the respondent urges no complaint of their title at all; his complaints are of irregularities in the partition proceedings alone.”

True it is that this court did hold, in Succession of Dumestre, 40 An. 572, that “ although a purchaser may be protected by the order of court directing a sale in a matter over which it had jurisdiction, yet he has the right to inquire into the validity of the proceedings, conducive to the order of sale, to ascertain whether, under the showing made, the court had the power to make the order.”

But we had occasion to examine that decision in reference to a suit like the instant one, in a subsequent case, and we said of it that it appeared that “ minors had an interest in the property,” and that, therefore, “ we viewed it as a partition proceeding in disguise, without the prescribed forms of law having been attended to, and that its covert purpose was to divest, illegally, the title of the minors.” Succession of Lehman, 41 An. 987.

Of course, the judge had no authority to thus order a sale in globo of minors’ property, for the purpose of a partition of a succession composed of sundry properties, the proceeds of the sale largely exceeding the debts due, and the result of which was to leave the surplus in the hands of a tutor dispensed from bond. That was an extreme case — one sui generis.

But in the successions of Auguste and Marcel Theze there is but-a single piece of property — that under consideration — which owed some small debts and the costs of administration. There is not shown to have been any cash in the hands of the legal representatives thereof, nor any revenues wherewith to discharge the same, and the heirs were of full age. There exists no parallel between the two cases.

After looking into the question very carefully, our judgment is convinced that the district judge correctly made the rule on the' adjudicatee absolute.

Judgment affirmed.


text:
    No. 10,894.
    Thomas Smith et al. vs. James B. Sinnott.
    An executor lias capacity to institute and prosecute to judgment, real actions* for recovery, into the succession of the testator, property in the hands of' strangers, without joining his universal legatees as plaintiffs. And for like* purpose sue for the partition of partnership property.
    APPEAL from the Civil District Court for the Parish of Orleans.. Monroe, J.

      J. G. Gilmore and S. L. Gilmore for Plaintiffs and Appellants:
    By tho laws of Louisiana a commercial partnership can not own immovable property; the partners are joint owners. 3 La. 394; 28 An. 419; McKee vs. Griffin, 10 La. 420; 7 M. 244; Louque Dig., p.511; 3 Rob. 3D6; Thomas vs. Scott,. n>. 313, 4S4, 44; R. C. C. 2880, 2881.
    "Whore the deceased was in community or partnership with any one who has survived him, it is the duty of the executors to sue for a partition. Arts. 1135, 1136, R. C. C.; 3 Rob. 44, 368; Succession Blanche Dumestre, 42 An. 411, and • authorities cited in brief.
    In the course of administration of a succession in bringing or joining as plaintiffs in an action of partition of real estate acquired by the co-owners as commercial partners, the executors need not join the heirs of the testator who was one of the co-owners and commercial partners. The purchaser at,, partition sale is protected by the decree. Woodworth vs. Thomas, 38 An. 236 and authorities cited in brief. Rev. O. C., Arts. 1135,1136, 871, 872, 873.

      Benjamin Ory, for Defendaut and Appellee, cited:
    C. C. 1668, 1669, 1670, 1135, 1136, 1137, 1155, 1165, 1166,1609; C. P. 165, Sec. 1; C. I>. 122, 123; 4 An. 570; 32 An. 321; 4 An. 260; 9 An. 302; 3 La. 128; 16 La. 157; 17" La. 348; 19 La-36; 4 La. 56; 30 An. 177; C. P. 1029.
   The opinion of the court was delivered by

Watkins, J.

This is a proceeding by rule, taken on the part of plaintiffs in the suit entitled Thomas Smith and Executors of Charles Smith vs. James B. Sinnott, it being a suit for the partition of the property situated at the corner of Perdido and Howard streets, in the city of New Orleans, to compel Thomas Eagan, purchaser, to take title thereto — same having been adjudicated to him at the price-of $8000.

The two grounds of objection urged to the title are (1) that all parties in interest were not cited as defendants in said partition suit:, and (2) that the executors Of Charles Smith — one of the joint co-proprietors — were incapacitated in law to prosecute said suit and ■stand in judgment therein ivithout being joined and authorized by the heirs of the deceased testator.

On the trial the lower judge discharged the rule, and plaintiffs have appealed.

The facts are as follows, viz.:

At an auction sale, made in the succession of James Cowsley, the property sought to be partitioned was adjudicated to Smith Bros. & ■Co., in the foreclosure of a special mortgage. Succession of Cowsley, 39 An. 570.

Smith Brps. & Co. was a commercial partnership, composed of Charles Smith, Thomas Smith, and James B. Sinnott. In the partition suit Thomas Smith and the executors of Charles Smith, deceased, were plaintiffs, and James.B. Sinnott, the other and third ■co-proprietor, was cited and made defendant — the plaintiffs alleging ■themselves to be the joint owners of two-thirds and defendant of one-third of the property, and they being unwilling any longer to hold same in indivisión.

There was no dispute about facts in that case, the defendant appearing in propria persona, admitting the joint ownership of the property, and submitting himself to the jurisdiction and judgment of this court.

Under the judgment therein rendered, the property was adjudicated to the defendant in rule, and proees verbal duly executed.

There are no forced heirs to the succession of Charles Smith, but there are testamentary heirs, or universal legatees under his will. R. C. C. 1609. 4 An. 570.

Some of these legatees are present or represented in this State, who were not joined as plaintiffs in the partition suit, and who were not made parties defendant.

The 'proof shows that the administration of his estate has not been ■closed, and said legatee’s heirs have not been put in possession of their inheritance.

The testator owed no debts; and the only sums there are to be disbursed by his executors are the expenses of administration and •one special legacy, for the payment of - which it is admitted there .has been at all times a sufficiency of cash on hand.

Therefore, the question for decision is, whether, under the circumstances related, there were proper and sufficient parties plaintiff to authorize the judge a quo to render a valid judgment, decreeing a partition of the common property, or, in other words, did the executors of Charles Smith have the capacity to institute and prosecute the suit, and stand in judgment — the defendant urging no objection?

These are the questions propounded by a purchaser at a public judicial sale, who alleges the incapacity of said executors on that account, and declines to take title.

The property sought to be partitioned was undoubtedly held and owned in indivisión by the three members of the commercial firm of Smith Bros. & Co., notwithstanding the title was taken in the partnership name, because a commercial partnership can not deal in or acquire ownership of real estate. R. C. C. 2825; 3 La. 394; 23 An. 419; 10 La. 420; 7 O. S. 244; 3 R. 256, 313, 488.

Under the law it is the duty of the curator of a vacant succession, or of absent heirs, to institute suit for the partition of property held in joint ownership by the deceased and third persons, in order that the part belonging to the deceased in the partnership property be ascertained. Succession of Dumestre, 42 An. 411; R. C. C. 1135.

But those principles of law being conceded the question yet remains for ascertainment, had the executors of Charles-Smith capacity to bring the partition suit and stand in judgment?

Conceding for the argument, and nothing more, that Article 123 of the Code of Practice has equal application to suits brought by as to those brov,ght against executors — which we do not undertake to decide — it is evident to our minds that the heirs therein referred to, are legal heirs, or heirs of the blood (R. C. C. 879), and not “the universal successors of the deceased.” R. C. C. 844, 1606.

In the former article it is provided “that the person who has become the universal successor of the deceased, who is possessed of all his property and rights, and who is subject to all the charges for which the estate is responsible, is called the heir,” etc. The latter provides that “ the universal legatee is bound to demand * * * the delivery of the effects included in the testament.” R. C. C. 1607.

In this case the will was not introduced in evidence, and, presumably, it gave to the executors full seizin of the testator’s effects. R. O. C. 1659.

But if they were not given full seizin, they were entitled “ to execute the legacies contained in the will, and to cause any other conservatory acts of the property to be made.” R. C. C. 1660.

To eliminate from the property of a succession the interest of a stranger is a matter of administration, and a suit for that purpose is such a “ conservatory act of the property ” as an executor may do in his own right and capacity. R. C. C. 1135, 1660.

The universal legatees of the deceased have not been placed in possession of their inheritance. Until, the partition was effected they could not be placed in possession of the testator’s property and rights, nor could they legally become subject to the charges for which his estate is responsible. The executors have not discharged the special legacies. The contingency has not arisen in this case, in which the universal legatees are entitled to be called heirs of the deceased.

The defendant, Sinnott, filed an answer in the partition proceedings, admitted the joint ownership of the plaintiffs in the property, and submitted himself to the jurisdiction of the court.

That the executors of Charles Smith had capacity to sue and stand in judgment, and that the court had jurisdiction rations mátense st \personas, there is in our minds no doubt — at least, in a case like this, where there are no forced heirs, and where the execution of the will involves the administration and disposition of the whole estate.

Entertaining this view we must reverse the judgment.

It is, therefore, ordered and decreed that the judgment appealed from be annulled and reversed; and it is now ordered that the rule taken to compel the adjudicatee to accept title and complete the ad - judication be made absolute at the defendant’s cost in both courts.


author: McEnery, J.

text:
    No. 10,887.
    Canal & Claiborne Railroad Company vs. Orleans Railroad Company.
    A street railway company which is authorized by the city of New Orleans to enter upon the tracks of another, must, before doing so, make compensation to that company.
    The material in place is the private property of the company occupying the street and in the absence of any agreement it must be expropriated to public uses like any other private property.

      When the city ordinances provide the mode of compensation, and the two corporations are within the limits of the same franchise, the ordinances will control the mode to be pursued in reference to fixing the compensation, as the corporations accept their franchises with reference to said ordinances.
    But the city ordinances can not arbitrarily fix the amount of compensation.
    There is no limitation in the ordinances of the city of New Orleans which prevents the street railway companies from contracting with reference to the amount due for the use of tracks.
    APPEAL from the Civil District Court for the Parish of Orleans. Bightor, J.
    J, B. Beckwith for Plaintiff and Appellee:
    1. Under the Constitution of 1869, private pioperty can not be taken or damaged for any public use until frll compensation is made. Constitution 1879, Article 156; GrifEen vs. R. R. Co., 41 An. 808; Cooley Const. Lim., 680, 681 (note); Chicago vs ‘Taylor, 125 U. S. 161,170; Railroad Co. vs. Ayers, 106 Ill. 518.
    2. When any individual or corporation is tobe divested of property for any public use, against the will of the party tobo divested, a strict compliance with the law providing for expropriation, and the conditions pi'eeedent to taking the property, must be strictly complied with, or title and rights are not divested, and the party claiming to have divested any one of property and right must affirmatively show full compliance. Cooley on Const. Lim., 528; Gillenwoter vs. R. R. Co., 113111. 1; Stanfoi'd vs. Warn, 27 Cal. 171; Nicholls vs. Bridgeport, 23 Conn. 189; Judson vs. Bridgeport, 25 Conn. 428; People vs. Brighton, 20 Mieli.57.
    3. The grant of street railway franchise under which the plaintiff, the Canal & Claiborne Railroad Company is now operating its road on Canal street, contains no condition or limitation of the grant, by which the city of New Orleans can grant other railway companies lawful right to run their cars on that company’s track on Canal street, without the consent of the Canal & Claiborne Railway Company, first given and obtained.

      •Chretien & Suthon and F. N. Butler for Defendant and Appellant:
    A contract by a street railroad company, granting the use of its tracks to another company, must conform to the terms of the grantor’s franchise.
    The right of the Canal & Claiborne Street Railroad Company to charge another company for the use of its Canal street track is regulated by Ordinance 1204, N. S.
    A limitation upon exercise of a franchise of a corporation is as binding as a provision of its charter.
    A corporation can not enter into a contract unless authorized by its charter, expressly or by implication. Angelí and Ames on Corporations, Section 256. When no such authority is conferred, such a contract is ultra vires and null. 44 Mo. 550; 45 Mo. 217; 57 Mo. 571; 46 N. Y. 551.
    A grant to a street railroad to lay its tracks on a street gives to it no right of property in the street. The use of the tracks thus built may be given to another railroad company by the city, under the power of eminent domain, delegated to the municipality. 36 Ohio 239; 118 Mass. 290; 41 An. 561.

      Wlien the municipality does exercise this right of eminent domain, and fixes the compensation to be paid the company owning the track, the said company can not enforce a contract giving it more than the price fixed by the city.
    When the Canal & Claiborne Street Railroad accepted its new franchise in December, 1887, and failed to demand that the city exercise its*right of reversion, it accepted the Canal street franchise subject to what the city had given to defendant, in July, 1887.
    A corporation is presumed to contract with reference to the term of its existence. The existence of a contract of a private corporation can not force upon it a perpetuity of existence. 8 Peters 281; Munnna vs. Potomac Co.
   The opinion of the court was delivered by

McEnery, J.

The plaintiff sues the defendant for $2800 on the following contract:

“ Be it known, on the 6th day of August, in the year of our Lord one thousand eight hundred and seventy, and of the independence of the United States of America the ninety-fifth, before me, William Joseph Oastell, a notary public in and for the parish of Orleans, State of Louisiana, duly commissioned and qualified, and in presence of the witnesses hereinafter named and undersigned, personally came and appeared Bertrand Saloy, Esq., herein acting in his quality of president of the Orleans Railroad Company, and under and by virtue of a resolution of the board of directors, adopted at their sitting on the 18th of July, 1870, a duly certified copy of which resolution is hereto annexed and made part hereof, of the first part, and Edward S. Wurzburger, Esq., herein acting in his quality of acting president of the Oanal & Claiborne Street Railroad Company, and John G. Campbell, Esq., herein acting in his quality of secretary of said Canal & Claiborne Street Railroad Company, and under and by virtue of a resolution of the board of directors of said company, adopted at their sitting of the first day of August, 1870, a duly certified copy of which resolution is also hereto annexed and made part hereof, of the second part, of this city.

“Which appearers declared, that acting as aforesaid and in accordance with Ordinance No. 810, Article 878, approved December 24, 1867, and Ordinance No. 1443, approved May 11, 1869,' all new •series of the common council of the city of New Orleans.

“ They do by these presents bind their respective companies or •corporations, their administrators and assigns, as follows:

“ 1. That the said Orleans Railroad Company, party of the first part, shall pay to the Canal & Claiborne Street Railroad Company, party of the second part, four (4) cents per mile for each and every mile traveled by each and every car belonging to or run by the said party of the first part on the track or trunk road, from Dryades street to St. Charles street, on the upper side of Canal street, and on the lower side of Canal street, from Royal to Dauphine street, the tracks on Canal street being left free and unobstructed.

“2. The said Canal & Claiborne Street Railroad Company, party of the second part, shall keep its roads, such as they now exist, on the upper side of Canal street, from Dryades to St. Charles street, and on the lower side of Canal street, from Royal to Dauphine street, in good order and repair.

“ 3. That the said Orleans ¡Railroad Company, party of the first port, shall put in and keep in good order during the time or as long as they may use them, all necessary switches, inlets and outlets that may be requisite to connect their different roads with the trunk road on Canal street, and shall also put in good order and running gear such portions of the trunk road that may be necessarily disturbed to make the said connections, and said party of the first part shall furnish and pay for all switch tending and other labor that shall be necessary in running their cars on, over and off the trunk road on the upper and lower side of Canal street.

“4. That the said Orleans Railroad Company, party of the first part, shall make monthly returns to the Canal & Claiborne Street-Railroad Company, party of the second part, of the the number of' cars and miles run over the trunk road on Canal street, from which returns settlements shall be made monthly, said returns to be certified by the president and secretary of said Orleans Railroad Company.

“ 5. That the said Canal & Claiborne Street Railroad Company shall not be responsible for any accidents to persons or damages to-property arising from the carelessness or negligence of the employees-of said Orleans Street Railroad Company, while running their ears on the trunk road, on the upper and lower side of Canal street, as aforesaid, but said party of the second part shall be responsible for all accidents or damages which may be caused by the dilapidated or bad condition of said trunk road.

6. That nothing in this contract or agreement shall be construed as preventing or to prevent the said Canal & Claiborne Street Railroad Company from negotiating with other companies for running their ears on said trunk road on Canal street, provided the same shall not interfere with the rights of said party of the first part, and the free passage of travel of their cars on the trunk road on the upper side of Canal street, from Dryades to St. Charles street, and on the lower side of Canal street, from Royal to Dauphine street, as aforesaid, under this agreement or contract.

“ 7. That this agreement shall last during the term of the charters granted to the said respective corporations or of any extension of said charters.”

The right of plaintiff to recover depends upon the validity of this contract.

The power to regulate and control the public streets of the city of New Orleans is lodged in the municipal authority. The object of the Legislature in conferring this power, and its exercise by the city government, are to serve the public welfare and convenience.

The establishment of street railroads is one of the most important modes of promoting the welfare and convenience of the citizens of New Orleans.

We have held that the council of the city of New Orleans is without power to grant the exclusive use of a street, which belongs to the public, to a railway company. Railroad Company vs. Railroad ■Company, 41 An. 461.

But the street railway company which is authorized to enter upon the tracks of another within the limits of the franchise of both companies must make compensation to that company for the use and wear of the tracks.

The street railway over whose tracks another company enters ■does not lose its right of private property in the material of which the road is constructed. The material in place is the private property of the corporation. When, therefore, a right of way for street railway purposes is granted over the same route to another company it can not be appropriated by the latter company until compensation is first made to the former company. Railroad Company vs. Railroad Company, 36 Ohio 252; Metropolitan R. R. vs. Highland Railway, 118 Mass. 291.

If there is no agreement between the corporations as to the amount of compensation, it must be fixed as in other cases of the condemnation of private property to public uses.

Both corporations were organized and operated with reference to Ordinance 1204, New Series..

Section 4 of said ordinance is as follows:

“ Should the city of New Orleans, at any time during the existence of the contract of the 6th of May, 1867, between it and the Canal & Claiborne Street Railroad Company, enter into an arrangement with other companies, whereby said road on Canal street, from Claiborne street to Front Levee street, and from Front Levee street to Claiborne street, or any part thereof, may be granted, the city of New Orleans-or the road or roads to which the privilege may be granted, shall reimburse to the Canal & Claiborne Street Railroad Company a fair and reasonable proportion of the value of the portion or portions of the road to be so used; and should such proportion not be agreed upon between said Canal & Claiborne Street Railroad Company and the city of New Orleans, or the said road or roads, two disinterested persons shall be appointed, one by the city of New Orleans, or the road or roads, as the case may be, and the other by the Canal & Claiborne Street Railroad Company; and in the event of a disagreement as to said proportion to be paid between said persons thus appointed, a third person, or umpire,' shall be appointed by the judge of one of the district courts of the parish of Orleans, and the decision thereby had shall be final and binding.”

This section was repealed in 1882.

Butin the absence of any agreement, it would be binding upon the two corporations, as they were incorporated with reference to its provisions. Railroad Company vs. Railroad Company, 36 Ohio, 239.

There is nothing in' said ordinance which prevented the Canal & Claiborne Street Railroad Company and the defendant from fixing, by contract, the compensation due the former corporation for the use of its tracks and roadbed.

There are no limitations in the ordinance as to the amount of compensation, and if there were, we would be inclined to consider them unconstitutional, as being in violation of the rights of private property.

The defendant contends that if the contract was legal and valid in its inception, it expired by limitation, the plaintiff’s contract with the city for its franchise having expired in May, 1887.

After the expiration of its contract with the city for the franchise, the Canal & Claiborne Street Railroad Company, in pursuance of the advertisement of the City of New Orleans, purchased the franchise, and there was a new contract made between the city and said corporation. The corporation still existed, and as such, through its president, made the contract with the city. The contract between the Canal & Claiborne Street Railroad Company and defendant was to continue during the existence of their charters, and it is a reasonable construction of the agreement that it was to last as long as the former or its assignee owned the material of the-road, and the defendant occupied and used it.

After the purchase of the right of way, over a part of which defendant ran its cars, there was another corporation organized, the-Canal & Claiborne Railway Company, the present plaintiff.

It was acquired for the purpose of purchasing the material and right of way of the Canal & Claiborne Street Railroad Company, and in pursuance of its act of incorporation did purchase all of said material, and the right of way and franchises of said corporation. This transaction defendant urges destroyed the contract made with the first corporation.

The obligation resulting from the contract between the two corporations is a real obligation, ¡as it is a contract relative to immovable property. Civil Code 2011.

As we have stated, the contract was for the use of the road of the-Canal & Claiborne Street Railroad Company. It is immaterial who owns the property; it owes the servitude during|the existence cf the defendant company, and this company, under the agreement, must pay the amount stipulated to the assigns of the first corporation.

It is so stipulated in the contract in the following words:

“They do by these presents bind their respective companies or corporations, their administrators and assigns.”

There is a clerical error in the title of the suit, made by the clerk of the lower court, styling the plaintiff the Canal & Claiborne Street Railroad Company.

The judgment is amended so as to give the case its proper title, the Canal & Claiborne Railroad Company vs. Orleans Railroad Company.

The amendment not changing the substance of the judgment in any way, it will not carry the costs with it.

As thus amended the judgment is affirmed.