author: Nicholls, C. J.

text:
    No. 13,992.
    W. H. Davis vs. Houston and Shreveport and Houston, East and West Texas Railway Companies.
    Syllabus.
    Where a train upon a railroad has obtained the right of way over the crossing at the intersection of its own road with another, it is negligence on the part of an engineer in charge of an engine upon the other road to risk attempting to make the crossing in front of the approaching train.

      ^ PPEAL from the First Judicial District, Parish of Caddo — Land,

      Thigpen & Foster, for Plaintiff, Appellee.

      Wise & Herndbn, for Defendants, Appellants.
   Statement op the Case.

The opinion of the court was delivered by

Nicholls, C. J.

The plaintiff, a fireman in the employ of the Kansas City Southern Railway Company, sued the defendants for fifteen thousand dollars damages for personal injuries which he received in a collision between a passenger train belonging to the Kansas City Southern Railway .Company and an engine, with tender attached, belonging to the defendant company. The collision occurred at the crossing of the tracks of the roads, about two miles out of the city of Shreveport. The ease was tried by a jury, which returned a verdict of ten thousand dollars for the plaintiff.

The tracks cross each other nearly at right angles. The train was on its way south, while the engine was moving westward. It is claimed on behalf of the plaintiff that the passenger train, at the time of the accident, had the right of way over the crossing; that it had reached the place at which trains going south were in the habit of stopping south and giving Signals of their presence and intended crossing; that it stopped and gave the regular signals, and by reason of that fact trains and engines on the other track should, under the rules which govern railroad movements, have waited until after it had made the crossing before moving forward; that instead of doing that the engineer in charge of the single engine, without stopping and without making signals of any kind, negligently and improperly attempted to reach and pass the crossing ahead of the passenger train, and in so doing placed his engine at the crossing directly in the path of the south-bound train. Plaintiff alleged that in and by the collision which followed he had been permanently injured and disabled, and had suffered great pain, as well as pecuniary loss. Actions of this kind usually present a conflict of evidence, but in this particular case it is exceedingly difficult to ascertain what the facts actually were. It is one of those cases in which the verdict of a jury which was familiar with the locality and knew, saw and heard the witnesses is entitled to very great weight.

The jury reached the conclusion that the defendant companies were at fault and the passenger train had the right of way. We think that conclusion is sustained by a preponderance of evidence. We are not in a position to say that the jury and the court erred. A special feature in this case is the fact that north of the defendants’ track there were two other tracks running in easternly and westernly directions, and running substantially parallel 'to it, the track nearest to it north being that of the Texas Pacific Railroad and the further one being the track of the Vicksburg, Shreveport and Texas Railroad Company (not used by the company), which was called at that time a “dead track,” from the fact of being seldom used.

These tracks were not very far apart. In view of this fact the sitúation was somewhat more complicated as to the particular stopping point where plaintiff’s trains should stop and give signals, than it would have been had the defendants’ track been the only one to be crossed. The stopping point for the crossing with defendants’ track for trains going south would have to be selected with some reference to the track of the Texas and Pacific trains, which should then be just in the rear of the stopping point.

We think the testimony shows that the passenger train either stopped — came to a dead stop or “slowed up” — at or near the point where the trains of the Kansas City Southern Railway Company were in the habit of stopping before attempting to cross the defendants’ track, and that there was no good reason why that particular place should not have been selected for that purpose. It was not unreasonably far and the trains from the two tracks could be seen and 'the whistles heard. If the particular place at which trains could be looked for, seen and heard is fixed and certain, the object of the stopping point is attained. We think the verdict was for too large an amount, and that it should be reduced to seven thousand five hundred dollars.

For the reasons assigned, it is ordered, adjudged and decreed that the judgment appealed from be and it is hereby reduced to seven thousand five hundred dollars, and, as so amended, judgment is affirmed at appellee’s costs.


source: Caselaw Access Project

author: Blanchard, J.

license: Public Domain

text:
    No. 13,641.
    Payne & Joubert vs. C. A. Buford et als.
    Syllabus.
    1. This action as brought cannot be considered revocatory in character, to set aside acts and things done in fraud of creditors, or as giving an unfair preference, because the proper allegations are not made and because necessary parties are not cited.
    2. Viewed as an action en declwation de simulation the attach made on the sheriff’s sale of property must fail, for the evidence shows the sale a real one, and that a valid consideration was paid.
    3. Whatever presumption of simulation arose out of the circumstance of the debtor’s continued occupancy and possession of the plantation, was rebutted by satisfactory explanation.
    4. The vendor’s privilege on machinery put in a sugar house is lOBt if the cred- ■ itor permits the machinery to be sold confusedly with a mass of other things

      5. Haying lost their own privilege, plaintiffs have no interest to contest the rank of other mortgage and privilege creditors on the proceeds of the sale.
    APPEAL from the Twentieth Judicial District, Parish of Termbonne — Uaillouet, 3.

      Norton B. Roberts and Branch K. Miller, for Plaintiffs, Appellant?.

      Bullion & Wallis, for Defendants, Appellees.
   The opinion of the court was delivered by

Blanchard, J.

O. A. Buford and J. B. Bernard, owners of the “Forest Grove” plantation, associated themselves together in an agricultural co-partnership known as Buford & Bernard, and cultivated the plantation.

On June 19, 1897, they bought of the commercial firm of Payne & Joubert certain sugar house machinery, or parts of machinery, for the price of $5,100, represented by three notes. This contract was recorded in the mortgage records of the parish the second day thereafter.

The first of the notes to mature was, it seems, paid. The other two have not been paid.

The machinery so purchased was made use of as part of the equipment of the sugar house on the plantation.

Ermann & Cohn were the factors or commission merchants of Buford & Bernard, and the latter firm owed the former, at the end of 1897, a sum exceeding $10,000 for advances, which they were unable to pay. '

In February 1898 Ermann & Oohn brought suit on their claim, and Buford and. the widow and heirs of Bernard (who had died) confessed judgment in their favor. This confession was made the basis of a formal judgment by the court.

At or about the same time, Mello Wolf brought suit against O. A. Buford for $2000, with interest, etc.

She held notes for this amount, which were secured by vendor’s privilege on an undivided fourth of the ■ plantation, and by special mortgage on an undivided half thereof. Her demand was for a judgment against Buford for the amount of her claim, with recognition of her vendor’s privilege as above and that her “entire mortgage be recognized as bearing on three-fourths of the property.” Her privilege and mortgage primed all other liens or encumbrances recorded against the plantation.

Buford confessed judgment in her favor and a formal judgment was thereupon entered up, with recognition of privilege and mortgage as claimed by her.

Following this, writs of fi. fa. issued on the two judgments and the “Forest Grove” plantation was seized, advertised for sale and sold on March 26, 1898 — Ermann & Cohn becoming the purchasers for the price of $10,000, which was two-thirds of the appraised value of the property.

Of this sum, the adjudicatees paid into the hands of the sheriff $4,692.68, which sum was used by the sheriff in payment of the costs and in satisfying the mortgage claim and judgment of Mello Wolf. The remainder of the purchase price, $5,307.32, Ermann & Cohn retained in their hands to be applied to the mortgages next in rank after the Wolf mortgage.

Some eleven months following this sale, Payne & Joubert brought the present suit. It is an action containing several demands:—

1. The contract with Buford & Bernard for the machinery is sot forth and judgment is asked against Buford and the widow and heirs of Bernard for the balance due under the contract, evidenced by the two unpaid notes, with recognition of the vendor’s privilege on the machinery sold.
2. Ermann & Cohn are made parties defendant and the sheriff’s sale at which they acquired the property is attacked as á sham and fraud, the result of a fraudulent conspiracy concocted to defeat the rights of the plaintiffs and other creditors of Buford & Bernard.
3. In the event, however, the sale be not annulled as a fraudulent simulation, then the charge is made that the pretended purchasers have never paid the price of the adjudication to any one entitled thereto, but make pretense of holding same for account of certain defunct mortgages.

The prayer of the petition is in accordance with the above.

It is noticeable that the judgments under which the sale of the plantation was effected are not attacked. It is the sale only which is assailed.

It is also noticeable that, in the event the sale should be not set aside, while it is prayed that plaintiffs be paid out of the proceeds thereof by preference, as the ranking creditor, Mello Wolf, and other creditors appearing on the mortgage' certificate, read at the sale, as holding mortgages and privileges of registry anterior in date to that of plaintiffs, are not made parties defendant.

The defense to the action is a general denial of the averments of plaintiffs petition, the assertion of the bona fide character of the sale, and the payment of a valid consideration therefor.

It is further set up in defense that if plaintiffs ever had a privilege as vendor of machinery, as claimed in their petition, they had lost the same by permitting- the objects upon which the privilege rested t'o be sold confusedly with the plantation and other movables attached thereto.

The judgment below was in favor of the plaintiffs against their debtors, Buford and the widow and heirs of Bernard, for the amount of the two notes sued on, but rejecting their demand in all other respects. They appeal.

Opinion.

No one disputes the correctness of the moneyed judgment in favor of plaintiffs against Buford and the estate of Bernard.

The suit as brought, in so far as the attack upon the sheriffs sale is concerned, presents only the question of simulation vel non.

It might have been given, too, the character of a revocatory action, seeking to annul acts of a debtor alleged to have been done in fraud of creditors, or as giving an unfair preference, by proper allegations in the alternative and by making proper parties. Thus, it is permissible in the same action to charge simulation, and, in the alternative, allege !oat if the tiling done be not a simulation, then it is a fraudulent act- or transaction done in fraud of creditors, etc.

Johnson vs. Mayer, 30 La. Ann. 1203.

But this was not done, nor were others in interest, necessary parties were this a revocatory action, particularly Mello Wolf, under whose writ the salé was likewise effected, made parties defendant.

Viewed as an action en declaration de simulation, the attack on the sale must fail, for the evidence shows the sale a real one and that a valid consideration was paid.

Brown vs. Brown, 30 La. Ann. 966.

Mello Wolf was paid out of the purchase price the amount of her judgment, which was founded, as we have seen, on a vendor’s privilege and special mortgage, and the validity of which is not questioned.

The remainder of the price was, as the law authorizes, retained by the purchasers in their hands to be applied to subsequent mortgages inferior in rank to the Wolf mortgage, but priming the judgment of Ermann & Cohn against Buford & Bernard.

But plaintiffs urge that Buford retained possession of the plantation after its sale to Ermann & Cohn and cultivated the same, and they point to this as a badge of the simulation they set up.

True, Buford did remain on and cultivate the place and it is not shown that he held it merely as a tenant of the purchasers.

But it is shown that Ermann & Cohn agreed, in the event of their purchase, to transfer the property to Buford for what it cost them, of which amount Buford was to pay them one-half on January 15, 1899, and the remainder January 15, 1900, with 8% interest from date. ■

This was a legitimate transaction and accounts for Buford’s continued occupancy of the premises. Ermann & Cohn were satisfied to obtain their money out of the property; did not care to hold it themselves; and were willing to sell to Buford at a price representing what the property stood them in hand. When Buford, remaining on ■ the place and cultivating it, paid them, they would make him a title. The parties being in good faith, we can see no legal objection to this arrangement.

See Davis vs. Citizens’ Bank, 39 La. Ann. 523.

Erwin vs. Chaffe, 51 La. Ann. 53.

Holmes vs. Sheriff, 15 La. Ann. 553.

Amato vs. Ermann & Cohn, 47 La. Ann. 978.

Undoubtedly, plaintiffs had the vendor’s privilege upon the machinery purchased from them and put in the sugar house, and that by seasonable registry of the evidence thereof, if registry was required, the same was preserved as against creditors who held mortgages at that time upon the plantation or subsequently acquired mortgages upon it.

But when, later, the plantation and everything upon it, immovable by destination, was seized under judgments obtained against the owners, and advertised for sale, and plaintiffs neglected to take timely action to protect their privilege as vendors of the machinery, they lost the same. Thus, they allowed the things upon which their privileges rested “to be sold confusedly with a mass of other things.”

O. O. 3227.

They should have demanded a separate appraisement and separate sale of. the machinery. It is by reason of sleeping on their rights in this particular that a loss is entailed upon them.

See Citizens’ Bank vs. Maurian, 37 La. Ann. 857.

Scannell & Lafaye vs. Beauvais, 38 La. Ann. 217.

Shakspeare, Smith & Co. vs. Ware, 38 La. Ann. 571.

Succession of Rogers, 41 La. Ann. 400.

Having lost their own privilege, plaintiffs have no standing to contest the rank of other mortgage and privilege creditors in respect of the remainder of the purchase price of the plantation left over in the hands of Ermann & Cohn after payment of the costs and expenses of the sale and the amount of the Mello Wolf judgment.

Besides, in so far as they attack the validity or continued existence of those mortgage and privilege claims and their right of priority, it were essential to make the holders thereof parties to this litigation, and this has not been done.

We find other matters discussed in the briefs filed on behalf of the plaintiffs, but deeming them either not issues properly raised in the ease, or not relevant, or material, the same are passed without comment.

Judgment affirmed.

Rehearing refused.


author: Nigholls, O. J.

text:
    No. 14,014.
    State of Louisiana vs. Putnam & King.
    Syllabus.
    TRe Supreme Court has no jurisdiction of an appeal where the only matter at issue is between a tax-collector and a license tax-payer as to whether the amount of the year’s business shown by the latter’s return be too small or not, and the authority of the tax-eoilector to bring the action as brought is denied.
    The legality and constitutionality of the license is not involved In such a suit.
    APPEAL from the Civil District Court, Parish of Orleans— St. Paul, J.

      Hugh O. Cage for State, Plaintiff, Appellee.

      Clegg & Quintero, for Defendants, Appellants.
   Statement op the Case.

The opinion of the court was delivered by

Nigholls, O. J.

The tax collector of the First District of the city of New Orleans served a rule upon the defendants to show cause why the license which they had paid to the State for doing business for the years 1897, 1898, 1899 and 1900, as commission merchants, should not he increased each of those years by the sum of eighty-seven dollars and fifty cents, and why they should not pay interest and penalties on those sums. The defendants called in question, on numerous grounds, the right of the tax collector to make such a demand. These objections were overruled and the court made the rule absolute, and gave judgment accordingly. The amount involved is below our ordinary appellate jurisdiction and the ease is not one coming before us as one involving the constitutionality of a tax or license.

There was no issue raised in the lower court as to the legality or constitutionality of the license itself. Defendants do not contest its legality. What was at issue was, first a matter of fact, whether the defendants in making returns of their business for past years, had returned as large an amount for each year as they should have done.

2nd. — Assuming that they should have made returns for a larger amount than they did, whether the tax collector had. “authority to sue” them to recover the amounts. Neither of these questions involve the legality of the tax (Rock vs. Tax Collector, 52 Ann. 825). We are compelled to dismiss this appeal for want of jurisdiction ratione maieriae.

The appeal is dismissed.

Rehearing refused.


author: Monroe, J.

text:
    No. 13,570.
    Succession of George Muller.
    Syllabus.
    1. A married woman who makes a nuncupative will by public act which recites that certain property, acquired during the marriage, in the name of the husband, is his separate property, is not thereby estopped to assert the con trary.
    2. Property purchased by the husband during the existence of the community Is presumed to have been acquired for the community, and will be held to belong to the community, unless the husband, at the time of the purchase, clearly manifested the intention to acquire for his own account, with his separate funds.

      APPEAL from the Civil District Court, Parish of Orleans— King, J.

      Lazarus & Luce for Mrs. Leonie Muller, Surviving Widow, Plaintiff, Appellant.

      James D. Seguin for George Muller, Administrator, and Franz Joseph Gumbel, legal heir and testamentary legatee, on demand of Edward A. Tor, with the will annexed, Defendants, Appellees.

      James D. Seguin for George Muller, Administrator, and Franz Joseph Gumbel, legal heir and 'testamentary legatee, Defendants, Appellees.
   The opinion of the court was delivered by

Monroe, J.

-The transcript before us presents the following case, to-wit: George Muller, the decedent (whose real name appears to have been Gumbel), lived in New Orleans, where he conducted a printing establishment from as early as 1866 until December, 1897, during which time he so far prospered as to have acquired a plant, consisting of presses, type, etc., which, together with paper and other stock on hand, at the latter date, is estimated to have cost from fifteen to twenty-five thousand dollars, though probably not, at any time, worth that amount for selling purposes. In addition thereto he acquired, in 1885, an improved lot, on Bienville street, for which he paid $3000, in cash, and where he, thereafter, lived and conducted his business. In September, 1893, he married, under the regime of the community, Mrs. Leonie Ramelli, a widow with several children, who, about that time, received from the succession of her mother $1811.05, of which, she deposited in bank, after her marriage, but for her own account, $1731.05. In October, 1894, and in July, and August, 1895, Muller purchased other pieces of real estate on Barracks and Claiborne streets, and St. Bernard avenue, in this city, for which he paid, in cash, $2000, $1200 and $1250, respectively, there being nothing in either of the acts by which he acquired to indicate that the purchase was made with his separate funds. In 1897 he appears to have become dissatisfied here, and to have determined, at any sacrifice, to go elsewhere; and in furtherance of this resolution he offered his printing establishment, not including the real estate, for sale,' first at one price and then at another, and finally sold it for $3500, cash, to another George Muller, who had been employed by him for a number of years, but who was not otherwise connected with him; and with this, and other money, in December, 1897, he migrated, with his wife, to San Diego, California, where he established a domicile, and died about a year later, leaving an olographic will, dated at New Orleans, September 5th, 1894, whereby he bequeathed one-half of his estate to his wife and the other half to his brother, Eranz Joseph Gumbel, who lives in Germany, and named the former as his executrix. The succession was opened in San Diego, but the widow did not qualify as executrix, and some one else was appointed to administer the estate in that place. Thereafter, the George Muller who had purchased the printing establishment, claiming as a creditor, and ignoring the will, opened the succession here and was appointed administrator, and the widow then filed one or more petitions in which, among other things, she propounds the will and claims, as widow in community, and as legatee, respectively, an undivided half interest in any community property, and an undivided half interest in any separate property, which may have been left by the decedent within this jurisdiction, and further claims, as a creditor, on account of her paraphernalia, the sum of $1'T31.05.

To this petition the administrator and the co-legatee answered, setting up various matters which need not here be considered. The co-legatee, however, especially denied that any of the property left by the decedent in this city belonged to the community, and alleges that all such property was purchased with the decedent’s separate funds; that the plaintiff so acknowledged in a will made by her, by authentic act, and that she is, therefore, estopped to assert the contrary. The judge a quo sustained the claim thus set up by the co-legatee, but gave judgment in favor of the widow for $1581, on her claim for paraphernal funds, and recognized her as the legatee of the decedent to the extent of one-half of the latter’s estate. And from the judgment so rendered the widow, alone appealed. A few days after the taking of the appeal, however, the following agreements were entered into by the litigants, respectively, through their counsel and are now embodied in the transcript, to-wit:

“Whereas, a judgment has been rendered herein on the issues between the administrator, Eranz Joseph Gumbel, one of the legatees, and Mrs. Leonie Muller, surviving widow and legatee, upon the various claims made by the respective parties, and whereas said Mrs. Leonie Muller simply desires to appeal from said judgment in so far as it holds that she is not entitled to a community interest in the property acquired after her marriage with deceased, as set forth in her petition filed herein, and is willing to acquiesce in said judgment in all other respects; and,
“Whereas the claim for her separate money, for the probate of the will, and for her claim under the will, are separate, independent and distinct from her claim for community interests in the property of the deceased, acquired after her said marriage; and, whereas, she has taken, or will take, an appeal to the Supreme Court of Louisiana from said judgment, it is, therefore, agreed between the parties in interest that said appeal shall be prosecuted by her in so far as it affects her claim to a community interest, as above set forth, and that, in all other respects, said judgment be carried out and executed; it being expressly understood that, by the execution of said judgment in other respects, her appeal shall not be waived or abandoned, and that no motion shall be made to dismiss for that reason. It is further agreed that the record and documents in the case, except in so far as they may apply to her claim for a community interest, shall be omitted from the transcript of appeal.
(Signed) “Lazarus & Luce, Attys. for Mrs. Leonie Muller.
(Signed) “James D. Seguin, Attorney for Fram J. Gumbel and George Muller, Administrator
“It is agreed that in making up the transcript of appeal taken by Mrs. Leonie Muller, all pleadings, documents, and evidence, not having application to the claim of Mrs. Leonie Muller for community interest in the property acquired by her deceased husband after her marriage to him, shall be omitted from the transcript. It is further agreed that in the event of any document or portion of evidence is omitted (sic) from the transcript, which may have application to the aforesaid issue, and which the parties hereto, or their counsel, wish to supply, they shall have the right to have copies of such documents or evidence made and filed in the Supreme Court, as part of the transcript of appeal, at any time.” (Signed, Etc.)

It will thus be seen that the appellant acquiesces in the judgment appealed from in all respects, save “in so far as it holds that she is not entitled to a community interest in the property acquired after her marriage” with the decedent. So that, as the administrator and co-legatee have neither appealed nor prayed for any amendment of the judgment appealed from, it follows, that the issue thus saved is the only one before us for decision. And, as no suggestion has been made as to the supplying of any omitted document or evidence, it also follows that said issue is to be decided upon the facts disclosed by the transcript as filed.

Under these circumstances, and as the judge a quo does not appear to have maintained the plea of estoppel set up as against the plaintiff, it seems, at least, doubtful whether that question is included in the issues saved for review; but as the parties to the agreements recited have otherwise so interpreted them, that question will be considered. It appears that, in January, 1896, the plaintiff made a nuncupative will, by public act, whereby she bequeathed to her husband all that the law would permit her to dispose of, in her share of the community, including the usufruct, and in which she acknowledges that the real estate acquired after marriage was purchased by her husband with his separate funds, and disclaims all interest herein. Being examined as a witness, however, she testifies that said will was dictated by her husband, and that she then wrote it over again and handed it to the notary. She also testifies that her husband borrowed the money which she had in bank, telling her that he intended to buy the Claiborne street property with it, and this testimony is corroborated by the fact that there is in evidence her check, bearing date June 21, 1895, for $1581.05, to her husband’s order, and by him indorsed “for deposit,” and by the further fact that the Claiborne street property was purchased July 1st, 1895, for $1200, cash, and that there is also in evidence the cheek of her husband, of even date with the act of purchase, for $1525, to the order of the vendor of said property, and by him indorsed.

It is clear to us that there is no estoppel, and that there would be none if the declarations relied on had been embodied in a contract instead of being irrelevant recitals in a will. C. C. 2336 et seq; Harrang vs. Blanc, 34 Ann. 632; Vicknair vs. Trosclair, 37 Ann. 376; Lester vs. Sheriff, et als., 46 Ann. 340. And we are moreover, of the opinion, in view of the testimony and of the facts referred to, that said recitals are of little or no value for any purpose, since the strong corroboration of the plaintiff’s testimony afforded by the checks mentioned, considered with reference to the date of the purchase, point to the conclusion that the Claiborne street property, at least, was purchased with funds borrowed by the deceased from his wife, and hence that said recitals are, to that extent, affirmatively shown to be at variance with the truth.

Proceeding, then, to the question, whether any of the property in controversy should be held to belong to the separate estate of the husband, we find, from the evidence in the record, that the lot on Bienville street was purchased by the decedent July 18, 1885, eight years, and more, before his marriage, and was, beyond doubt, his separate property; but that the several pieces of property on Barracks and Claiborne streets, and on St. Bernard avenue, were purchased by him after the marriage, during the existence of the community, and with nothing said or done, at the time, to indicate that he was investing his separate funds, for his -separate benefit, the contrary being the case, as we have seen, so far as concerns the property on Claiborne street. Under these circumstances, according to well settled -jurisprudence, the three properties last mentioned, unquestionably belonged to the community. Young vs. Young, 3 Ann. 611; Bass vs. Larche, Tutor, 7 Ann. 104; Joffrion vs. Bordelon, 14 Ann. 619; Breaux vs. Carmouche, 15 Ann. 588; Durham vs. Williams, Tutrix, 32 Ann. 162; Moore vs. Stancel, 36 Ann. 823; Hero vs. Bloch et al., 44 Ann. 1032.

The further question is then presented on behalf of the appellees, whether the estate of the decedent should be recognized as the creditor of the community for the amount of the decedent’s separate funds claimed to have been invested in the property in dispute. The counsel for the xllaintifl', however, object to the consideration of this question, on the ground that no such claim is set up in the pleadings. And we find the objection well taken, the answer filed on behalf of the co-legatee, who alone is concerned in the matter, so far as we are able to judge from the record before us, limiting its demand to the property itself. Moore vs. Stancel, 36 Ann. 823, 824.

It is, therefore, ordered, adjudged, and decreed, that the judgment appealed from, in so far as it holds the real estate acquired by the decedent after his marriage to have been his separate property, be annulled, avoided and reversed, and it is further ordered, adjudged and decreed that said real estate be now held to have been the property of the community existing between said decedent, George Muller, and his wife, Leonie Muller, the plaintiff now before the court. It is further ordered and adjudged that the costs of the appeal be borne by the succession.

Provosty, J., takes no part.

Reheating refused.


author: Breaux, J.

text:
    No. 13,468.
    Independent Ice and Distilled Water Manufacturing Company, Limited, vs. J. S. Anderson.
    Syllabus.
    1 Defendant songlit to obtain his release from the payment of an asserted indebtedness by pleading the litigiousness of the claim. The claim is litigious. It is the basis of a suit pending in court. Plaintiff paid no consideration for the claim. It became his by the abandonment of the owners (who were the Independent Ice and Distilled Water Manufacturing Company, Limited,) by whom it was transferred to the present plaintiff without consideration.
    2. The law is that in order that a debtor owing a claim that is litigious may obtain his release, he shall pay to the transferree the real price of the transfer. The transferree did not pay anything for the claim. No price could be tendered, and, in consequence, no release could be obtained.
    3. Speculation in suits is sought to be restrained. The gratuitous transfer of a litigious claim, in good faith, is not considered, under the terms of the law. in the light of the purchase of a suit for speculative purposes.
    APPEAL from the Civil District Court, Parish of Orleans— King, J.

      William F. Brewer and Parkerson & Tobin for Plaintiff, Appellant

      Buck, Walshe <& Buck, and William 8. Benedict, for Defendant, Appellee.
   The opinion of the court was delivered by

Breaux, J.

Plaintiff brought suit to recover the sum of three, thousand dollars and twenty-three and 1-100 dollars from the defendant.

Defendant, while manager of the Independent lee and Distilled Water Manufacturing Company, Limited, borrowed, plaintiff! sets forth, an amount of that corporation and, in addition, defendant became indebted to it for items collected by him for its account. The shares issued'by the company were issued in the proportion of ninety-seven to Thompson, and fifty shares to defendant, Anderson. Three other shares were owned by three other shareholders, each being the owner of one share, making a total of one hundred and fifty shares issued altogether by the company:

Disagreements arose between Thompson and Anderson, and, as a result, suits were instituted. One of these suits came up on appeal some time since, and the existence of the corporation as between the parties was sustained. Anderson vs. Thompson, 51 Ann. 727.

In January of 1899, Thompson sold his shares of stock to Zitker and McGard, and for an amount stated as being a full and complete consideration. Following this sale Anderson sold his shares of stock, and from that time neither Thompson nor Anderson had any interest in the corporation. A number of days after Dr. Thompson had transferred his shares of stock for an adequate price to the parties named, the plaintiff corporation, through its Board of Directors, subrogated Dr. Thompson to all of its claims against Anderson and to all interest in the present suit. There was no consideration for this transfer of the suit in question. The parties sought to make it appear that there was a consideration by inserting a declaration in the transfer that it, the consideration for the transfer, consisted of the shares of stock which Dr. Thompson had sold as before mentioned. It is evident that this transfer was purely gratuitous and that after the relinquishment had been made of the suit in favor of Dr. Thompson, the parties concerned sought to give this transfer some validity by seeking to have it appear that it was covered by the terms of the previous sale of the stock. The following is an excerpt from the resolution of the Board, which evidences the act of transfer by the corporation: “The said company shall transfer and subrogate to Dr. Thompson all the rights, title and interest of said Independent Ice and Distilled Water Manufacturing Company, Limited, in the suit of that company against J. S. Anderson, No. 55,203 of the docket of the Civil District Court, and under this resolution Thompson became the owner of the claim which had previously belonged to the company and this, as we have before stated, without the least consideration so far as the record discloses.

Defendant interposed a peremptory exception setting forth that Dr. Thompson, who claimed as subrogee of the Independent Ice and Distilled Water Manufacturing Company, Limited, had not paid any consideration for the claim; that at the time of the asserted transfer to him by this company, the suit for the same was pending in the court in the name of the company; that the pretended acquisition of plaintiff’s (the said company’s) right therein by Dr. Thompson was the acquisition of a litigious right, that it having been acquired without consideration, the said Thompson had no standing in court and that his suit should be dismissed.

Evidence was taken upon this exception, showing that the transfer in question was made without consideration. The exception was maintained and the suit dismissed. From this judgment plaintiff prosecutes this appeal.

The first and principal question to be decided in this case is one which arises out of the fact that the present plaintiff, subrogee of the original plaintiff, is the transferree of a litigious right, and that he owns the right without having paid anything for it. The litigiousness of the claim is manifest. The transfer without consideration gives rise to a new question in this jurisdiction. We have found no decision in our reports bearing directly upon this subject. The contention of defendant is that he is entirely released from payment of his (plaintiff’s) claim. The law provides that the debtor is entitled to a full release and acquittance upon tendering the amount paid for the litigious claim. When the holder and owner has not paid anything, there cannot be a tender of any amount. This is in substance the law.

The article of the Code invoked by defendant contemplates that one against whom a litigious right has been transferred, may get himself released only by paying to the transferree the price of the transfer and interest. We take it that a proper construction excludes the donation or the transfer of a claim for nil from the terms and provisions of the article. C. C. 2652. No price having been paid, the debtor can make the tender of no amount to obtain his release. Without a price, there is nothing upon which the debtor can operate to obtain his release.

In the absence of decisions upon the subject by this court, we have reference to commentators on the civil law. Pothier says: “The donee of a litigious claim may exact all that was due to the donor.” (Dupin Edition) Droit Erancais, Yol. 2, p. 261, Sec. 291. The purpose is to restrain buyers from purchasing litigious claims. Laurent, upon the same subject, informs us that, under Articles 1692, 1699 and 1700 of the Code Napoleon, corresponding to Articles 2652 and 2653 of the Louisiana Code, a sale and not a donation is referred to. The text does not embrace a donation. (Sec. 583). All the authors entertain that view. The following is the translation of an excerpt from a digest of French decisions: The gratuitous transfer of a litigious right is not subject to the re-purchase authorized by Article 1699 C. N. (C. C. 2652) Euzier-Hermann, Yol. 4, p. 219. The principle is well established. The authorities are sometimes divided in their conclusions in treating of the method followed in executing the right, as for instance, if the donation is only a sale in disguise and other similar acts of no application here.

The issues have not been disposed of on the merits. The case was dismissed on exceptions. We do not think that in the present condition of the case, we should pass finally upon the questions presented on the merits.

It is, therefore, ordered, adjudged, and decreed that the judgment appealed from is annulled, avoided and reversed, the peremptory exception being overruled.

It is further ordered, adjudged, and decreed, that the suit be reinstated on the docket "of the District Court to be proceeded with in accordance with the views herein expressed. Costs of appeal are to be borne by the appellee and the costs of the District Court to await the final determination of the suit.

Rehearing refused.

Provosty, J., takes no part.


author: Provosty, J.

text:
    No. 14,040.
    Thomas G. Rapier, Jr., Trustee of the Estate of W. J. O’Donnell, Bankrupt, vs. Miss Mary E. O’Donnell et als.
    Syllabus.
    A partition of property by legatees in disregard of an injunction of the testator, does not violate any prohibitory law of this State, or contravene public policy; it is a matter of private, not of public, concern.
    APPEAL from the Civil District Court, Parish of Orleans— Theard, J.

      CaiToll & CaiToll and Frank B. Thomas, for Plaintiff, Appellant. Saunders & Gurley, for Defendant, Appellant.

      Omer Villere, for Mrs. Omer Villere, Defendant, Appellee.
   The opinion of the court was delivered by

Provosty, J.

Peter O’Donnell in his will bequeathed the property of his succession to his children, four in number, expressing in his will the desire that the property should he held in indivisión for a term of five years. Before the expirátion of this term, the heirs made a partition of the property. Subsequently one of the heirs went into voluntary bankruptcy, and his trustee now institutes the present suit for the purpose of having said partition declared to be a nullity, on the ground that by the terms of the will the owners of the property were deprived of the power to partition it; also for the purpose of recovering the supposed proportional share of the bankrupt in the revenue yielded by the property since the partition.

The theory of the suit is that the act of the heirs in partitioning the property before the expiration of the term fixed by the will was in violation of a prohibitory law and in contravention of public policy, and was on that account so radically null as to produce no civil effects; in such way that the bankrupt continued to be a co-owner in indivisión, entitled to his proportional share of the revenues of the property.

The policy of our law is express against the compulsory joint ownership of property, and against the putting of property out of commerce. The partition in question was, therefore, in line with the policy of our law. AH else in connection with the devise and the tenure of this particular property was matter of private, not of public, concern; and as the intention of basing the suit on injury to creditors is disclaimed, we agree with the defendant that the petition shows no cause of action.

It is, therefore, ordered, adjudged and decreed that the judgment of the lower court be affirmed with costs in both courts.


text:
    No. 13,739.
    Rachel Benton, Testamentary Executrix of E. B. Benton, vs. Miss Ella Benton and Mrs. Mary Monroe.
    Syllabus.
    1 A dative testamentary executor is authorized to bring an action to recover for the succession, real estate claimed to be owned by another under a tax title, when the heirs of the deceased are absentees. (C. P. 123.)
    2 Issues as to whether or not the property belongs to a community alleged to have existed between deceased and the plaintiff who sues individually, as well as testamentary executrix, cannot be determined in such action, though the defendant be one of the heirs of the deceased, if the other heirs be not parties.

      i!. Where title to certain property is a matter of contest between “A” and “B” it may be redeemed by parties representing the interests of either of the two when it is claimed, under a tax title, by a third person adversely to both “A” and “B,” leaving the effect of the redemption to be subsequently determined as between the other parties.
    4. A letter from the adjudicatee of property sold at a tax sale to an attorney at law, who has represented her, to accept on her behalf money tendered to redeem the' property, which letter was exhibited to the parties making the tender as evidence of his authority, cannot be excluded from being received in evidence, on the ground of its being a communication between client and counsel.
    5. When it has been shown that such letter has been mislaid or lost and could not be found after diligent search, secondary evidence of its contents can be received; it is not a condition precedent to such evidence being received that the loss of the letter should have been advertised.
    APPEAL from the Twenty-sixth Judicial District, Parish of St. Tammany — Thompson, J.

      WicJcliffe & Falls, Stifft & Madison and Thomas M. Burns, for Plaintiff, Appellee.

      Stephen D. Ellis, Benjamin M. Miller, and Benjamin Bice Forman, for Defendants, Appellants.
   The opinion of the court was delivered by

Nicholls, C. J.

•Statement of the Case.

Nicholls, C. J. The present suit was instituted by the plaintiff, in the capacity of testamentary executrix of Edward B. Benton, and also individually.

She alleged that her deceased husband owned at the time of his death the property situated in the parish of St. Tammany, known as Honey Island, which was described in the inventory of the succession of E. B. Benton filed in court.

That it belonged to the community which existed between said Benton and herself at the time of his death, which property was still in her possession and had been since September 24, 1897; that her said husband died on the 4th day of June, 1897.

That oH the 15th day of May, 1897, the sheriff, ex officio tax collector of the parish of St. Tammany, sold and transferred by act of sale said property to Ella S. Benton, for the price and sum of one hundred and sixty-eight dollars and ten cents, for the taxes due the State of Louisiana and parish of St. Tammany upon said property for the year 1896.

That said act of sale was recorded in the clerk’s office in St. Tammany on the 8th day of June, 1897.

That on the 7th day of June, 1897, Ella S. Benton opened the succession of petitioner’s deceased husband and offered for probate a will of said deceased disposing of the above described property and naming her as executrix thereof, and prayed to be confirmed and qualified as such executrix.

That she was confirmed and qualified as such executrix on the 10th day of June, 1897.

That on the 24th day of June, 1897, she was destituted and removed from office as such executrix by order of the court, and on the third day of August, 1897, petitioner was appointed dative testamentary executrix of said will, and on the 24th day of September, 1897, qualified as such.

That Ella S. Benton was during all of said time and was still a citizen and resident of the State of New York.

That on the 14th day of May, 1898, petitioner, through her attorneys, Stifft & Madison, Esqrs., offered and tendered to Eugene D. Saunders, Esq., attorney at law, attorney and agent for and representative of Ella S. Benton in all her matters and affairs in the State of Louisiana, and especially in the succession of Edward S. Benton, the sum of two hundred and twenty-three dollars and thirty-two cents, being the amounts paid by her for said property, as above set out, together with all the penalties, interest and costs allowed and prescribed by law for the redemption of said property from said tax sale, and its restoration to the succession of Edward S. Benton.

That Saunders, acting as attorney and agent Lor and representative of Ella S. Benton, under due and sufficient authority from her so to act, accepted the money so tendered for the purposes for which it was tendered, and gave to petitioner, through her attorneys, his receipt therefor in his capacity as aforesaid.

That notwithstanding the foregoing facts Ella S. Benton, on the 4th day of November, 1899, attempted to convey the property to Mrs. Mary E. Monroe, domiciled in said parish of St. Tammany, by an act of sale dated the 4th day of November, 1899, which act of sale Mrs. Mary E. Monroe had caused to be recorded in the clerk’s office in the parish of St. Tammany, on the 20th day of November, 1899.

That the act of sale from Ella S. Benton to Mrs. Mary E. Monroe was null and void, for the reason that Ella S. Benton at the time same was made had no right, title, interest in and to said property, and that the making and recording of same constituted a cloud upon the title of petitioner and said succession to said property, as also did the said title from the sheriff to Ella S. Benton, as above described; that both of said titles and the recording thereof should be cancelled and erased.

The premises considered, she prayed both individually and in her capacity as dative testamentary executrix, as above set out, that the court appoint an attorney ad hoc to represent Ella S. Benton, who was a non-resident of and an absentee from this State; that Ella S. Benton, through said attorney ad hoc so appointed, and Mrs. Mary E. Monroe be cited; that after due trial there be judgment in favor of petitioner, both individually and in her capacity as said dative testamentary executrix, against Ella S. Benton and Mrs. Mary E. Monroe, decreeing that the said title from the sheriff to Ella S. Benton, dated May 15th, 1897, and recorded in said recorder’s office, and'the said title from Ella S. Benton to Mrs. Mary E. Monroe, dated the 4th day of November, 1899, and duly recorded, were null and of no force and effect, and ordering them to be cancelled and erased from the office of the said clerk and ex officio recorder of said parish.

The court appointed B. M. Miller attorney ad hoe to the defendant,. Ella S. Benton, and directed that she be cited through him. He and; Mrs. Mary E. Monroe excepted that they were not proper parties to the suit; that all the heirs of said Edward S. Benton should be made parties, and that the so-called dative testamentary executrix had no capacity to stand alone in judgment with reference to a title to real estate.-

Should the said exception be overruled, they further excepted that the said Mrs. Rachel Manscoe was never the lawful wife of Edward B. Benton, and had no legal interest whatever in the matter and things set up.

Should the said exception be overruled they further excepted that the property described and referred to in said petition, and in the tax deed to Miss Ella S. Benton, and by Ella Benton sold and transferred to Mrs. Mary E. Monroe, did not belong to the estate of Edward B. Benton at the time of his death, and was no part of his succession.

That he sold the said property by act before George W. Christie, notary public, to Edward Telle, and Edward Telle, on the 30th of March, 1896, sold the said property to Joseph D. Taylor, and the said property at the time of Edward Benton’s death belonged to the said Joseph D. Taylor and was bought by the said Ella S. Benton from the sheriff of the Parish of St. Tammany under a lawful and legal assessment under the name of owner of record, to-wit: Joseph D. Taylor, and that petitioner as dative testamentary executrix of Edward Benton had no legal interest to contest the sale made by the sheriff of the Parish of St. Tammany of property lawfully assessed to Joseph D. Taylor and belonging to him.

That the petition was vague and inconsistent, and the petitioner should be called on to elect which of the several alfeged causes of action and demands she would stand on and prosecute.

In view of the premises, exceptors prayed that these exceptions be maintained, and the said suit be dismissed with costs and for general relief.

The plaintiff filed a plea of estoppel against the exceptions. She pleaded that the defendants were estopped from pleading that the property was or was not the property of Edward B. Benton, deceased, at the time of his death, for the reason and by the fact that Miss Ella S. Benton did, in court on June, 1897, propound a document purporting to be the last will and testament of said Edward B. Benton, disposing of the property herein and for the reason and by the fact that the said Miss Ella S. Benton and the said Mrs. Mary Monroe had, at various times by proceedings in this court, by act of sale and other ways, claimed as heir and legatees under said alleged will said property as the property of said Edward B. Benton at the time of his death, and had attempted to sell, transfer, convey, and accept same.

Plaintiff prayed that said exception be dismissed.

The exceptions of the defendants and the plea of estoppel were referred to the merits.

The defendants answered under reservation of their exceptions, pleading first the general issue. They specially denied that Edward B. Benton owned at the time of his death all the property known as the Honey Island described in the inventory, and especially denied, if the court should come to the conclusion that he did own it, that it belonged to any community which might have existed between Rachel L. Benton, properly called Rachel L. Manscoe, and Edward B. Benton.

1. — Because Edward Benton’s original acquisition of the said property was long before any pretended or alleged marriage between himself and the said Rachel L. Manscoe.

2. — Because the said plaintiff was never the lawful wife of Edward B. Benton; because

3. — That her pretended judgment of divorce in Knox County, Ind., was absolutely null and void and of no effect; because the court had no jurisdiction of^the said Burrell Manseoe, who was her husband at that time, since her domicile and his was in the Parish of Orleans, La., where they had resided and were residing during the year of 1869 and for years before and after, and there was no citation or summons on the part of the said Burrell Manseoe, and the pretended divorce proceedings upon which Rachel L. Manseoe relied were absolutely null and void and of no- effect for want of jurisdiction of the court and for want of citation, and she never was legally divorced from the said Burrell Manseoe, and she had no capacity to appear in this case and attack the said sale or claim any title to said property.

4. — -Because at the time of the pretended marriage the judgment of divorce upon which she relied had not been rendered, and was not executory and could not under the law be executory until the end of the term and was not actually rendered until after the date of her pretended marriage which she claimed to have occurred on the 11th of August, 1869, and never having been lawfully the wife of said Edward B. Benton, she could not be the widow in community nor claim as such to be dative testamentary executrix, and as such executrix she had no capacity to sue for or recover any property claimed to have belonged to the said Edward B. Benton and for further answer showed—

That Edward B. Benton originally bought the property referred to before any pretended marriage with the said Rachel L. Manseoe; that he sold the said property and parted with it to Edward Telle by act before George W. Christie, notary publicj in New Orleans, on the 27th day of December, 1877, registered in the Parish of St. Tammany, and Edward Telle sold the said property on March 30th, 1886, to Joseph D. Taylor, at New Orleans, by act passed before C. G. Rebentisch, notary public.

That respondent, Ella S. Benton, bought the said property as the property of said Joseph D. Taylor, having been assessed in his name for the year 1896, and standing properly in his name upon the books and records of the Parish of St. Tammany, and thereby acquired a good and legal title thereto, and the act of sale was recorded on the 8th day of June, 1897, but was filed for record with the clerk on the 22nd day of May, 1897, the sale having been made on the 15th of May, 1897.

That respondent, Ella S. Benton, having purchased the property of the said Joseph D. Taylor, by an act in all respects good and valid and having a good and perfect title thereto, was in lawful possession thereof.

Respondents denied that the said Rachel L. Manseoe, calling herself Rachel L. Benton, had any right or capacity to redeem or offer to redeem any property of the said Joseph D. Taylor, and denied that Eugene D. Saunders, on the 14th day of May, 1898, or at any time, had any power or authority to receive or accept any tender of redemption money, and denied that any lawful tender of redemption was made.

They especially denied that Eugene D. Saunders, as an attorney, had any authority, and averred that it was no part of his duty as an attorney to do what he did, and he had no such authority.

Respondents further showed that as soon as Ella S. Benton had been notified of what Eugene D. Saunders had done or attempted to do, she promptly and immediately repudiated his actions and returned him the New York exchange which he had sent her, and his actions in the premises were wholly null and void.

That within the year after the recordation or registry of the tax sale made by the sheriff to Edward B. Benton on 30th June, 189G, recorded 16th July, 1896, it was redeemed by Joseph D. Taylor by his payment in full into the hands of the sheriff the price and 20 per cent, penalties and interest added and all costs. The said Edward B. Benton was dead at the time of the said redemption and his heirs under his will, Ella S. Benton and Charlotte E. Benton, were absent from the parish.

Respondents admitted that Ella S. Benton being in lawful possession of the said property under a title translative of property prima facie valid, and which was in all respects valid, did, on or about the 4th of November, 1899, sell the said property to Mrs. Mary E. Monroe, and was in lawful possession thereof.

They prayed the demand of the said plaintiff he rejected, and reiterating the allegations of the exceptions filed and making them part of their answers, they prayed that the said Mrs. Mary E. Monroe might be quieted in her possession and enjoyment of the' said property as owner, and he decreed to he the lawful owner of the said property, and for costs and for general relief and for trial by jury.

The plaintiff pleaded against the allegations in the answer of defendants attacking her marriage to Edward B. Benton, and disputing her capacity as dative testamentary executrix as res judicata the judgments rendered in the succession of Edward B. Benton, No. 360, of the docket of the court.

The ease on the prayer of the defendants was tried before a jury.

The jury returned a verdict for the plaintiff and the court rendered judgment ordering, adjudging and decreeing, that the plaintiff, Rachel L. Benton, dative testamentary executrix of Edward B. Benton, deceased, both individually and as such executrix, have and recover judgment against the defendants, Miss Ella S. Benton and Mrs. Mary E. Monroe, decreeing that the tax title from John H. Stroble, sheriff and ex-officio tax collector of St. Tammany Parish, to Ella S. Benton, dated May 15th, 1897, and recorded in book “S,” folio 298 of the recorder’s office of said parish, conveying to said Ella S. Benton the property on IToney Island in St. Tammany Parish, described in the petition, to be null and void and of no force and effect, and that it be cancelled and erased from the records of the office of the said recorder of the said parish.

It is further ordered, adjudged and decreed that the title from Miss Ella S'. Benton to Mrs. Mary E. Monroe, dated the 4th of November, 1899, and recorded in said office in book “U,” folio 502 to 504 and in mortgage book “H,” pages 23 to 26, be adjudged and ¿ecreed null and void and of no force and effect, and that same be cancelled and erased from said records.

It is further ordered, adjudged and decreed that the plaintiff do have and recover of the said defendants, Miss Ella S. Benton and Mrs. Mary E. Monroe in solido for costs herein expended, and that she might have execution therefor.

Defendants appealed.

Opinion.

The object of this suit is to set aside a tax sale made by the tax collector of the Parish of St. Tammany on the 15th of May, 1897, to Miss Ella S. Benton, of the property described therein and known as Honey-Island, and to set aside a sale of the same property made on the 4th of November, 1899, by Miss Ella S. Benton to Mrs. Mary E. Monroe, and to have said property decreed to belong to the Succession of Edward B. Benton, and to the community of acquets and gains alleged to have existed between him and the plaintiff, Rachel L. Benton.

The action was brought by the plaintiff claiming to be widow in community with Edward B. Benton, and as dative testamentary executrix of his last will and testament. The only defendants in the suit are Miss Ella S. Benton and Mrs. Mary E. Monroe. The former was originally brought into court through a curator, but appeared later through her counsel.

Edward B. Benton left a last will and testament by which, after making certain special legacies (one to Mrs. Mary E. Monroe), he constituted his two sisters, Miss Ella S. Benton and Charlotte Benton, his residuary legatees and Ella S. Benton his testamentary executrix. She qualified as such, but was removed and Rachel L. Benton was appointed and qualified as dative testamentary executrix.

The two sisters of Benton were absentees domiciled and residing in Massachusetts.

During the last illness of E. B. Benton his sister, Ella S. Benton, was with him at his home on Honey Island and remained with him until his death. Just prior to his death "the Honey Island property (that involved in this litigation) was advertised to be sold and was offered for sale to enforce taxes assessed against it in the name of one Joseph D. Taylor. At this offering Miss Ella S. Bentop became the adjudicatee for the sum of one hundred and sixty-eight dollars. This property had originally stood in the name of Edward B. Benton. He transferred the title to Edward Telle and Telle transferred it to Joseph D. Taylor. While the title was standing on the records in the name of Taylor, it was offered for sale in enforcement of delinquent back taxes which were assessed against the property as belonging to Taylor. Edward B. Benton became the adjudicatee at that offering. A deed to the property was given to him as a purchaser which was duly recorded in St. Tammany Parish.

Notwithstanding that fact the property was offered a second time for sale in enforcement of taxes assessed against it as the property of Taylor, and it was bought in, as has been stated, by Miss Ella S. Benton, she .receiving a tax deed which was placed of record after the death of her brother, and while she was testamentary executrix. It is claimed that the sale from Benton to Telle and from Telle to Taylor were simulations resorted to by Benton for some purpose of his own, and that notwithstanding the transfers of the legal title of the property, it remained constantly the property of Benton. While the title stood in Taylor’s name, there arose contentions between Benton and Taylor in respect to the status of the property and to their business relations which seem to have been submitted for decision and adjustment to John Q. A. Fellows as amicable compounder. He made an award to the effect that Taylor should transfer the property to Benton on the latter’s paying him $884 cash, or giving notes with vendors’ lien for a like sum on the property, payable in one year from date with interest from date, with right reserved to pay said mortgage at any time before maturity. Taylor to ti^msfer to Benton and to subrogate him to all his rights and claims and demands against Edward Telle or any other which he might have in regard to the Honey Island property.

Numerous objections are made to this award. It is claimed that it was not proved that Fellows had authority to make it; that if he had authority of any kind he had exceeded it. We have referred to this paper simply for the purpose of showing that both Taylor and Benton were interested in the question of the title to this property.

Assuming the award to have been authorized and binding, none of the parties in interest took steps under it until after the death of Edward B. Benton and the appointment and qualifying of Rachel L. Benton as dative testamentary executrix.

After qualifying as executrix she offered on behalf of the succession to carry out the obligations imposed on Benton by the award, but Taylor refused to accept the offer without assigning reasons.

Taylor took no steps to redeem the property from the effect of the ■first tax sale (that at which Benton became the purchaser) until after the death of Benton when he sent by mail, money to the tax collector of the Parish of St. Tammany for that purpose. The tax collector turned it over to the clerk of the District Court who retained and produced the same on the trial of the cause. The tax sale had been made on the 30th day of June, 1896, and the money was received by the sheriff on the 19th of J-une, 1897. It is urged that neither the sheriff nor the clerk were the proper parties to whom a tender should have been made; that they were not authorized to receive the money and that the money received was not of legal tender character. After the plaintiff was qualified as executrix and within the year for redemption, she tendered to Ella S. Benton, as purchaser at the second sale, the amount necessary to redeem the property. The money was tendered to and received by Eugene- D. Saunders, as being authorized to that effect by Miss Benton. Saunders forwarded the money twice to Miss Benton, but she returned the same to him with a denial of his right to have accepted it for her. The money is still in the hands of Mr. Saunders. This suit followed and Miss Benton in her answer adheres to her denial of the authority of Mr. Saunders to have acted for her in the matter. The case was tried before a jury which returned a verdict in favor of the plaintiff against both of the defendants, and by judgment of the court the two sales were set aside as prayed for by the plaintiff. Defendants appealed.

We think the plaintiff was authorized to institute the action to recover the property for the succession as against the adverse claims of Miss Ella S. Benton (as a tax purchaser of the same) and those of Mrs. Mary E. Monroe. (C. P. 123; Executors of Hart vs. Boni, 6 La. 99; Smith vs. Sinnott, 44 Ann. 51). We do. not think there are proper parties before the court for us to determine whether the claim of the plaintiff, that the property belonged to a community of acquets and gains between herself and Edward B. Benton, be well grounded or not. We do not think that issue can be properly adjudicated or passed upon in this, suit as matters stand. The most we should do would be to decree the property to belong to the Succession of Benton if we ascertain there is no title in Miss Ella S. Benton to the property under the tax adjudication, leaving the rights of the heirs and of the plaintiff infer se to be advanced and disposed of in other proceedings.

We are of the opinion, under the evidence, that Eugene D. Saunders was authorized to accept on behalf of Miss Ella S. Benton the tender made her for the redemption of the property from the tax sale. The. written authority for that purpose was contained in a letter written by her to Mr. Saunders, which letter was shown by his testimony to have been mislaid .or lost and could not be found after diligent search. It had been shown to and read by the attorneys of the plaintiff who made the tender, and they acted upon it. They, as well as Mr. Saunders, testified to the contents of the letter.

In view of the asserted right of Benton to the ownership of this property as between himself and Taylor independently of the tax title, and of his claims to its ownership under the first tax sale title, we think the plaintiff was warranted in redeeming the property as against adverse claims asserted against both Benton and Taylor.

We are impressed from all the circumstances of the ease that it was not Miss Ella S. Benton’s intention, when she became the adjudicatee at the second tax title, to act adversely to the interests of her brother, then lying upon his death bed. We think, on the contrary, that she acted for and on behalf of her brother in the premises and to disembarrass the title from the claims and pretensions of Taylor. We do not think she would have repudiated the authority of Mr. Saunders, or would have advanced the claim which she does to ownership in this property adversely to the succession, but for those advanced by the plaintiff as widow in community. The property should be decreed to be the property of the Succession of Edward B. Benton. The advertisement of the loss of the letter was not necessary as a condition precedent to receiving secondary evidence as to its contents. The secondary evidence received was properly received and established fully the agency of Mr. Saunders. We find nothing in that letter which would justify its exclusion as a confidential communication between client and attorney.

The property should be decreed to belong to the Succession of E. B. Benton, reserving to be hereafter advanced and disposed of, all claims which either the plaintiff, Mrs. Rachel L. Benton or the heirs of. Edward B. Benton, may set up as between themselves. We do not think the sale made by Miss Ella S. Benton to Mrs. Mary E. Monroe should be set aside, except in so far as it may be inconsistent with the recognition which is made in this decree that the ownership of the property involved in this litigation is in the Succession of Edward B. Benton. In so far as by said sale Miss Ella S. Benton has conveyed to Mrs. Mary E. Monroe all right and interest which she may have acquired therein as heir and legatee of Edward B. Benton, the said sale remains unaffected by this judgment. We think the terms of the judgment as written are too broad. For the reasons herein assigned it is ordered, adjudged and decreed that the Succession of Edward B. Benton is owner of the property involved in this litigation of which property the defendant, Miss Ella S. Benton, became the adjudicatee at the tax sale made by John T. Stroble, sheriff of the Parish of St. Tammany and ex-officio tax collector, on the 15th day of May, 1897, and for which property the said tax collector executed deed of sale to her recorded in the clerk and recorder’s office of that parish on the Sth day of June, 1897. It is further adjudged that the act of salé made by Miss Ella S. Benton to Mrs. Mary E. Monroe on the 4th day of November, 1899, is of no effect in so far as its provisions are inconsistent with the recognition herein made of the ownership of said property being in the Succession of Edward B. Benton. It is further ordered, adjudged and decreed that all claims which either the plaintiff Mrs. Rachel L. Benton individually or the heirs of Edward B. Benton may have as among themselves in respect to the property involved in this litigation are expressly reserved to them to be hereafter advanced and disposed of. It is further ordered, adjudged and decreed that the judgment appealed from, except in So far as modified or amended hereby, is affirmed. Costs of appeal to be borne by the Succession of Edward B. Benton.

Rehearing refused.


author:
Blanchard, J.
      Per Curiam.

text:
    No. 13,566.
    Mrs. John Sundmaker vs. Yazoo and Mississippi Valley R. R. Co.
    Syllabus.
    X. It Is a question of fact to be determined from tbe evidence whether a railway train, moving within municipal limits, was being run at a rate of speed unsafe and dangerous to the general public — so much so as to amount in law to omission to use reasonable care to avoid accidents in general and the one in question in particular.
    2. For, if the train was, considering all the circumstances, recklessly propelled, and to its high rate of speed is the casualty due, then there was fault on part of defendant amounting to actionable negligence.
    3. It matters not that there was no statute or municipal ordinance regulating the rate of speed at which trains should be run in that part of the city. Because legislatures or town councils fall to act in this respect, does not give railway companies license to run trains recklessly fast through much used districts of a city.
    4. The right to protection of life and limb is inherent, and is not affected by the omission of statutes, or by the non-existence of laws or regulations recognizing the right and guarding against its violation, or making provision for its enforcement.
    5. The rule that the highest rate of speed consistent with the safety of their passengers is permissible to railway trains, has its exceptions, and one of these arises where a train enters the limits of a city or town where people congregate and pass to and fro in numbers. Then it is that those in charge of a train owe a duty quite as great to those on the outside as to those on the inside. Thus, while conveying their passengers in safety and with speed, • the latter must be so regulated and controlled as to show due regard to the safety of those without the train, and especially is this true where the railway tracks are laid upon the streets and public places of the city.

      APPEAL from the Civil District Court, Parish of Orleans — St. Paul, J.

      A. F. & O. S. Livaudais, for Plaintiff, Appellee.

      Gustave Lemle, Hunter Q. Leahe, and Farrar, Jonas & Kruttschnitt {J. M. Dichimson, of counsel), for Defendant, Appellant.
   The opinion of the court was delivered by

Blanchard, J.

On application for rehearing,

Per Curiam.

Blanch'ard, J. This is an action for personal injuries resulting in the death of John Sundmaker, a child two years of age.

The suit is brought by the widowed mother in her own right and as surviving parent and heir of the child. It embraces both causes of action as given in Act 71 of 1884.

It was tried before a jury in the court a qua, and from a verdict of ten thousand dollars in favor of the plaintiff, and a judgment of the court based thereon, this appeal is prosecuted.

The first plea tendered by defendant was an exception of no cause of action. It does not seem to have been passed on by the trial court.

This exception is leveled at the insufficiency of the allegations of the petition. The contention of defendant is that plaintiff has no case unless there was fault or negligence on its part producing the death of the child, and that the petition is lacking in the essential averment its death was due to omission of the agents of the company to use reasonable care to avoid the injury after they became aware of the child’s presence on the track.

We find in the petition this allegation that:—

“A south bound train of cars, propelled by steam, in charge of defendant’s agents, negligently, recklessly and wantonly propelled and traveling at a great degree of speed in front of your petitioner’s dwelling, ran over, mangled, crushed and instantly killed petitioner’s child,” etc.

In a previous allegation it was set forth that the casualty had occurred within the corporate limits of the City of New Orleans.

While as a matter of pleading the meagerness of the averment quoted affords much justification for the criticism of defendant’s counsel, the allegation suffices to admit proof that the train of cars which killed the child was drawn through the city limits and across the locality where the casualty occurred at a high rate of speed.

It becomes, then, a question of fact to be determined from the evidence whether or not, considering the corporate environment, the locality, the surroundings and all the circumstances, the train was being run at a rate of speed unsafe and dangerous to the general public — so much so as to amount in law to omission on part of defendant to use reasonable care to avoid accidents in general and this one in particular.

Frick vs. Ry. Co., 75 Mo. 595.

Eor, if the train was recklessly propelled, if it were, considering that it had entered the city limits and was crossing an inhabited district and had reached a much-used locality, running too fast for safety to those who might cross or go upon its tracks, and to this 'high rate of speed is the death of the child due, then there was fault on part of defendant amounting to actionable negligence and a cause of action is disclosed. See Curley, Tutrix, vs. R. R. Co., 40 La. Ann. 816; McGuire vs. R. R. Co., 46 La. Ann. 1543; Norfolk vs. R. R. Co., 84 Va. 63,

It matters not that there was or is no statute or municipal ordinance regulating the rate of speed at which trains should run in that part of the city. Because legislatures or town councils fail to act in this respect, does not give railway companies license to run trains recklessly fast through thickly populated or much-used districts of a city.

In recognition of this, this court said in Houston vs. R. R. Co., 39 La. Ann. 797:—

“It would evince criminal negligence to move a train at a high rate of speed through cities, towns, or villages, or other places where people are accustomed to throng.”

The right to protection of life and limb is inherent, and is not affected by the omission of statutes, or by the non-existence of laws or regulations recognizing the right and guarding against its violation, or making provision for its enforcement.

Coming to the merits of the ease, defendant denies any negligence on part of its agents resulting in the death of the child, and avers that the proximate cause of its death was the negligence of the plaintiff.

As to the latter the contention is that the child was a trespasser upon the railway track and that plaintiff was guilty of negligence in allowing it to be there unattended.

It is insisted that the engineer of the train did not and could not see the child in time to prevent the casualty and thus was not at fault.

The child was run over by defendant’s passenger train about 9:20 o’clock on the morning of October 20, 1899.

The place of the accident was within the corporate limits, and the train was coming into its depot in the city.

It had entered the municipal limits about three-quarters of a mile from where the child was run over, and had only about two miles to go before reaching its depot. Its speed at the time of the accident was between thirty and forty miles an hour.

The plaintiff with her child was living at the home of her brother-in-law. The house, a small one, was about 50 or 60 feet from the railway track. This track, at that point, is located on Colapissa street, between Carrollton avenue and Dublin street, and practically occupied the street with its embankment and road-bed. There is no roadway for vehicles there, but a great many .pedestrians pass along the street, in the main using the railway track, which is gravelled and affords good walking.

Carrollton avenue is a very important thoroughfare of the city. Dublin street is not greatly used where it crosses Colapissa street. The distance between Carrollton avenue and Dublin street is about six hundred feet.

The place where the child got upon the track is about 250 feet from and north of Carrollton avenue. The train that struck it was coming south towards the avenue and, therefore, ran over the child just before reaching Carrollton avenue.

The mother was engaged in scrubbing a room. The child was with her in the house, playing around. He appears to have left the room unknown to her and passing out, crossed ten or fifteen feet of intervening yardway, passed through or under an old dilapidated fence and gone upon the railway track, where it was run over and instantly killed.

The fence referred fo appears to have divided the street, or, practically, the railroad right-of-way, from the lot the house was located on. It had been put there by the railway company and it is in evidence that it was looked after in the matter of repair by the section foreman of the company. But it was very much out of repair at the time in question, for the child appears to have had no difficulty in getting through it on its way to the track. There was no gate for it to pass through.

From the point where the child was killed the track was straight for 1200 feet in the direction from which the train was approaching. It was clear and free from anything to obstruct the view.

The curve around which the train came to the straight stretch of 1200 feet was a gradual one.

The child on the track could and should have been seen by the engineer as soon as the locomotive emerged from fhe curve, even though it were, as the testimony shows, in a stooping position.

The preponderance of evidence is to the effect it could have been seen.

One witness who was walking on the track south of the child a distance of two and a half blocks (say about nine hundred feet) saw the child before and at the moment the train struck it and easily made it out as a child.

Two other witnesses standing on the south side of Carrollton avenue ■ 300 feet from the child saw it and readily recognized it as a child.

Tet the engineer says he discovered the object upon the track only about four hundred feet before he reached it and did not make it out as a child until within 150 feet of it. It was then too late to avoid the casualty; too late at the time he first noticed the object 400 feet away. At the rate the train was running it could not be stopped under 700 feet.

The engineer made no effort to check the train until he made out the object to be a child. Then he used every means in his power to stop it, but the proof is that it was not stopped under 800 feet from the point of contact.

He states, in explanation of the fact that he made no efEort to stop the train when he first noticed the object, that the child was lying down on or between the cross ties at one end of same, and he thought it was a dead dog or goat or chicken, and did not distinguish it as a child until it raised its head.

But it is otherwise established that the child was not lying down on the track; it was standing on it in a stooping position and recognizable as a child.

We are satisfied “the object” on the track could and should have been recognized as a child 600 feet away at least, and had the train been running at a moderate rate of speed, say not faster than 15 miles an hour, as we hold it should, it could have been stopped in time and the casualty avoided.

As the train emerged from the curve, heretofore spoken of, it came at once into a locality where people live, and where it was to be expected, and where the proof shows, the track would be crossed and much walked upon.

Thirteen or fourteen hundred feet from this curve is Carrollton avenue, on which a double track electric railway is located, with cars passing every few minutes. A great many people besides those who use the cars pass along the avenue, and as many as 1200 or 1500 vehicles each day cross the railway track where it intersects the avenue. This was the situation at the time of the accident.

In view of its near approach to the crossings at Dublin street and Carrollton avenue and the populous character of the locality, the train should have been slowed down to a much more moderate rate than was the case in passing over the curve, and should have been run at not •exceeding half the speed used as it passed over the crossings alluded to, and for the rest of its way to that point near its depot where a city ordinance requires its speed to be diminished to six miles an hour.

Indeed, as soon as this train entered the city’s limits, shown to have been only three-quarters of a mile from where the casualty occurred, it would have been the part of prudence to have moderated its speed to half the rate the evidence shows it was running at when the child was struck.

We hold that a speed of 30 miles an hour where the child was killed was a dangerous rate, and this, together with the engineer’s failure to seasonably see and distinguish the child, was the proximate cause of its death.

If the City Council did not, by ordinance, require a much more moderate rate of speed, the company should have, of its own motion, made a regulation to that effect.

It was at fault in not so doing, and must abide the consequences.

The rule that the highest rate of speed consistent with’the safety of their passengers is permissible to railway trains, has its exceptions, and one of these arises when a train enters the limits of a city or town, where people congregate and pass to and fro in numbers. Then it is that those in charge of the train owe a duty quite as great to those on the outside as to those on the inside.

Thus, while conveying their passengers in safety and with speed, the latter must be so regulated and controlled as to show due regard to the safety of those without the train who pass to and fro over the track and sometimes temporarily make use of the same by walking up and down it — something always to be anticipated in cities. Especially is this true where the railway tracks are laid upon the streets and public places of the city.

With regard to the amount of damages to be awarded, the verdict of the jury is excessive. The mother has- sued on both causes of action allowed by the statute — that which the law gives her in her own right, and that which she inherits from the child as its heir. We think on both causes combined she should have the sum of five thousand dollars, and that to this extent the award of the jury should be reduced.

We are not of the opinion that the mother is to be considered as having, by want of care, contributed to the child’s death, and thus barred herself from recovery, as was the rule laid down in the Levis ease, 43 La. Ann. 63.

We think the verdict should be reduced to five thousand dollars, and, accordingly, it is ordered, adjudged and decreed that the judgment appealed from be amended by reducing the same from ten thousand dollars to five thousand dollars, and as thus amended the same is affirmed —costs of appeal to be borne by plaintiff and appellee, those of the lower court by defendant and appellant.

Provostv, J., takes no part.

On Application for Rehearing.

Per Curiam.

A further consideration of the case, on the application for rehearing filed, has led to the conclusion that a further reduction in the judgment should be made and that its amount should be fixed at four thousand dollars instead of five thousand dollars. Accordingly, it is ordered that the decree heretofore entered be vacated, and it is now adjudged and decreed that the judgment, appealed from be amended by.reducing the same from ten thousand dollars to four thousand dollars, with legal interest from April 30,1900, and, as thus amended, the same be affirmed —costs of appeal to be borne by plaintiff and appellee; those of the lower court by defendant and appellant.

Rehearing refúsed.

Monroe, J. I dissent from the refusal of the court to grant a rehearing.


text:
    No. 13,995.
    Mrs. Mary Lee Scovell et al. vs. Heirs of Levy et al.
    Syllabus.
    1. A mortgagee has the right to executory process upon the property of an insolvent. Statute 15 of 1894.
    2. The substitution of a special to a general mortgage and a partition of the property left the minors without interest in the property and without right to a collateral attack upon the release of the mortgage, or upon the partition.
    3. The error of father and tutor, if any error has been committed, cannot equitably be corrected at the expense of innocent third persons.
    4. Minors, as well as majors, cannot claim a right upon the property disposed of in a partition which has not been reserved, as long as the proceedings are not attacked in a direct action. The record kept by competent authority has great force when innocent third persons are concerned.
    5. In establishing the residuum of the community, that is, its assets, after having deducted the debts from the active mass, only debts of the community are to be deducted, and not debts that have been secured by special mortgage in favor of minors in proceedings instituted to that end.
    APPEAL from the First Judicial District, Parish of Caddo — Wells, J., ad hoe.

      Thomas Fletcher Bell, for Plaintiffs, Appellants.

      Alexander & WilMnson and IioTbert & Barret, for Defendants, Appellees.
   The opinion of the court was delivered by

Breaux, J.

Defendants, owners of a mortgage by inheritance from their late father S. Levy, Jr., sought to foreclose it in accordance with its terms. The act of mortgage is dated July 25th, 1893, and was executed by S. J. Zeigler in favor of S. Levy, Jr. Mrs. S. E. Zeigler, the wife of the irst marriage of S. J. Zeigler, died on April 8th, 1885. She was a creditor of the community existing between her and her husband for paraphernal funds which her husband had received and converted to his own use. Prior to his second marriage, S. J. Zeigler qualified as tutor of his children, issue of his marriage with his late wife Mrs. S. E. Zeigler. An inventory was made of the property showing large assets. The property in controversy in this case was part of the assets carried on that inventory. It was bought from the Succession of S. W. Yance during the life of the former wife of S. J. Zeigler and it belonged to the community which had existed between S. J. Zeigler and his late wife, the mother of petitioners in injunction to which we will refer again later.

Plaintiffs, children of the first marriage, sued out an injunction to restrain defendants and the sheriff from selling the property in question, on the ground that at the date of the dissolution of the community between their father and mother, it belonged one-half to them, and the other to their father; that besides their father was indebted to their mother, in a large amount which they inherited and which is secured by preference on all property of the community; that their rights could not be defeated or dislodged by any act of their father after the dissolution of the community; that defendants’ mortgage can embrace only a residuum after the discharge of the community debts. On this point they invoke the decision in Newman vs. Cooper, 50 Ann. 1206, and Prior vs. Giddens, 50 Ann. 216, and aver that the residuum of the community can be ascertained only by a liquidation and settlement of the community inside of the insolvency proceedings in matter of Estate of S. J. Zeigler, a “declared insolvent.”

Defendants sought to meet the questions propounded by plaintiffs by urging that about the eighteenth day of October, 1884, the father of plaintiffs, S. J. Zeigler, during the community with the mother of plaintiffs, Mrs. S. E. Zeigler, purchased the property as before mentioned from the Succession of S. W. Yance; that during the community, while their mother, Mrs. S. E. Zeigler, was living, their father, S. E. Zeigler, sold an undivided half interest to S. E., M. B. O., and S. W. Yance; that afterwards they, the Yances, and S. J. Zeigler, partitioned the property into equal parts, the Yances taking the north half and S. J. Zeigler, their father, the south half; that at the date of the partition, the mother of plaintiffs, Mrs. S. E. Ziegler, had departed this life, but that plaintiffs, who were then minors, were legally represented in the proceedings of partition and that, besides, since the act of partition, and since their emancipation or majority, they have ratified the act of partition, and that they are estopped from denying the validity of the act.

The further fact is pleaded by defendants that, after the partition, S. J. Zeigler sold his interest in this property to S. W. Yance; that he also shortly afterward sold the interest of plaintiffs, then- minors, to the same purchaser, just named, in accordance with the recommendations of a family meeting legally convoked and held for that purpose and duly homologated, which sale divested all interest of the minors, now majors, and plaintiffs here; that this purchaser, Vance, in 1891, mortgaged the property to Norman F. Thompson, and, subsequently, he executed a second mortgage of which their father, S. Levy, Jr., became the owner; that their father foreclosed his mortgage and bought the property at sheriff’s sale; that, thereafter, their father, Levy, Sr., continued to own the property until 1893, and in that year Levy, Sr., sold it to S. J. Zeigler, reserving, to secure the price, a mortgage and vendor’s privilege, and it is this price they are now seeking to recover, as heirs of their father, S. Levy, Sr.

They aver that plaintiffs have no mortgage or any other claim on the property, and that they (defendants) are entitled to continue in foreclosing their own mortgage. This was the view of the District Court. From the judgment rejecting plaintiffs’ demand and ordering the sheriff to proceed with the sale of the property, plaintiffs prosecute this appeal.

We do not infer that the learned counsel for plaintiffs objects to the foreclosure proceédings on the ground that Act 15 of 1894 has no application. That act specially provides that the holder of special mortgages, as in this case containing the pact de non alienando, shall not lose the right to executory process upon the property of insolvents and from this it is obvious that the act of surrender constituted no bar to direct foreclosure.

This, we understand, plaintiffs do not controvert, but urge that the fact that the mortgage rests upon the property of a dissolved community owing community debts, unsettled, renders it necessary to settle the community and establish the residuum before foreclosure.

If the property be community property and subject to community debts, a disposition or attempted disposition of it to the prejudice of the creditors may be enjoined and restrained, but if it be not property subject to the rights of creditors, there is no reason to arrest foreclosure proceedings. It remains for us to determine whether the property involved in this suit was community property and, as such, is still subject to the payment of the debts of the community.

Many of the issues have already been decided. It may well be said that “every crack and cranny” of the points involved have heretofore been examined and studied. In the different suits decided, rights claimed by plaintiffs were recognized as contended for by them in the suit now before us for decision, but plaintiffs seek to extend the scope of their rights to a limit never intended by the decisions in question and not covered by their text. Citing Zeigler vs. His Creditors, 49 Ann. 144, plaintiffs point out that the judgment decrees that this claim (that is plaintiffs’ claim) needs no registry. But here it remains the plaintiffs are not interested as creditors of a community. Their legal mortgage was cancelled and erased from the record and with the advice of a family meeting a special mortgage was substituted. In the decision cited infra, their rights are considered at some length. In the decree in this case, to which we have just referred, the court restricts the rights of the minors to the general and' special mortgage in their favor on the property authorized to be specially mortgaged in their favor. (Italics ours). Zeigler vs. His Creditors, 49 Ann. 186. This clearly enough limited all rights of the minors growing out of the tutorship of their father. This sets at rest all claims which they once had against their father, who was their tutor, on other property than that mortgaged as just stated.

But these are not the only proceedings operating as a bar to plaintiffs’ suit. A partition suit was instituted in 1891. The following briefly sets forth the ownership of the property and the right of owners having undivided interests to proceedings in partition.

S. J. Zeigler bought the property in 1884 at the succession sale of S. W. Vance. His wife was living. She was also alive when he sold an undivided interest to Mrs. S. E. Vance, Miss M. B. G. Vance, and S. W. Vance. We have noted that Zeigler’s wife died in 1886. The Vances, with the plaintiffs, were the owners in indivisión at the date (hat the said partition was provoked and duly made, in accordance with the terms of a family meeting duly homologated.

The following is the admission of record regarding the partition: “also admitted that on June 13th, 1891, S. E., M. B. G., and S. W. Vance filed a petition in the First Judicial District Court for a partition at private sale of Buckhall plantation,” part of which is the subject of this controversy. Then follows evidence that the partition was made.

In order to have the facts in juxtaposition, we here state that S. J. Zeigler, after this partition had been made, sold to Vance; Vance mortgaged to Levy; Levy foreclosed the mortgage made by Vance; Vance bought in the property, and sold it to Zeigler, retaining vendor's mortgage which he now seeks to enforce.

The owners in indivisión divided the property. The act evidencing the partition was recorded, and third persons had the right to conclude, as they did, that the property was free from any claim on the part of those who were parties to the deed of partition. After the partition, the property was mortgaged and sold as just above statjed and title acquired. It has been repeatedly held that while third persons, acting under rules of court, must look to the jurisdiction of the court, the truth of the record concerning matters within its jurisdiction cannot be disputed. Webb vs. Keller, 39 A. 55.

It must be borne in mind that all mortgages or claims on the property had been cancelled even some time before the partition, that is, at the date that a special mortgage was substituted to the general mortgage as we have before stated.

Plaintiffs, as paraphernal creditors of their father, claim that their rights as creditors accrued and attached to all the community. This we take, as being generally correct, not to the extent, however, of continuing to be creditors to be paid out of the proceeds of property that has been sold to effect a partition in proceedings in which they are parties. The question is completely answered in Chopin vs. Bank, 47 Ann. 660, in which the court held that “the suit for a partition calls on the defendants to urge all the defenses on which they propose to rely, and the decree for a partition concludes them from any attack on the plaintiff’s title, the basis of their demand for a partition.” See, also Hewes vs. Baxter, 45 Ann. 1049.

On appeal, in a case in which plaintiffs were parties regarding error urged by them to have been committed to their prejudice by their tutor and others who acted in their behalf in matter of rights inherited from their mother, this court said: “The minors were in court as defendants through special tutors, and the parties litigating were in reality all joint owners. The only effect of the error would be that in the ultimate partitioning or division as between the father and his children, he would be chargeable toward the minors for the amount of their actual interest in the property.” Having thus determined, we could not anywhere find support in jurisprudence for changing the situation by holding' that the father and tutor is not chargeable with errors, if any have been committed, but that they must be corrected at the expense of third persons who acted on the faith of recorded titles.

We feel no hesitation in arriving at that conclusion in view of the fact that the minor’s general mortgage was commuted to a special mortgage before the partition in question was made.

Lastly, should this claim be brought into the insolvency proceedings, and the executory process stopped in order to refer the mortgage to those proceedings? We find it impossible, consistently with our view of the law, thus to decree. Defendants are creditors whose claims are secured by mortgage. By special statute, they are authorized to foreclose and recover the amount of their claim in foreclosure proceedings. They as mortgage creditors cannot be forced into insolvency proceedings.

Eor these reasons, the judgment appeáled from is affirmed.

Eehearing refused.